Professional Responsibility Outline

Spring 2013 Prof. Iannarone

I.

The Role of Lawyers

a. 3 different types of lawyers:
i. (1) Directive Lawyers
1. Tell others what to do; inform clients of the law
ii. (2) Instrumental Lawyers
1. Client = master & lawyer = puppet; can create problems when lawyer merely does
what client says
iii. (3) Collaborative Lawyers
1. Middle ground between the 2; most often followed model
b. Interested Parties
i. Lawyers owe duties to (Preamble at [1]):
1. Clients
a. Ex: quality representation; right to have a dependable lawyer; honoring
deals; duties owed to clients
2. The legal system
a. Ex: Sanctity of K deals; nature of the adversarial system; respect for the
right to counsel protecting an individuals right to representation
3. Self (lawyer)
a. Ex: reputation: making $; keeping/adding clients; own conscious & values
ii. Conflicts between these 3 interest do arise Preamble at [9]:
1. Virtually all difficult ethical problems arise from conflict between a lawyers
responsibilities to clients, to the legal system and to the lawyers own interest in
remaining an ethical person while resolving such conflicts
iii. Must always identify the 3 competing interests at play here & try to balance them
1. Use the rules to frame this balance

II.

Regulation of the Profession

a. Several source of law regulating professional responsibility
i. Lawyers must be licensed and admitted to practice
1. Lawyers self-regulate through Bar Associations
a. Oversee admission to bar and discipline within the profession
b. Bar Admission Requirements and Restrictions:
i. Misconduct in the Application Process
1. Rule 8.1 Bar Admission and Disciplinary Matters
a. An applicant for admission to the bar may not (1) knowingly make a
false statement of material fact or (2) fail to disclose a fact
b. Comment [1] violation of this rule may be the basis of disciplinary
action if the person is admitted
i. Also explains that the rule requires a lawyer to correct any prior
misstatement
2. In re do Bartolo illustrates that misrepresentations re: high school education,
omitting number of residences & 200+ parking tickets is sufficient grounds for
rejecting applicant as unfit
a. Court does say that applicant may reapply
ii. Territorial Restrictions UPL
1. Rule 5.5 Unauthorized Practice of Law; Multi-Jurisdictional Practice of Law
a. UPL rules prohibit practice of law expect by a duly licensed attorney >
must be admitted to the bar in that state/locality
b. Cannot give any legal advice when not licensed (incl. law students)
c. UPL rules apply to non-lawyers trying to practice and lawyers who are not
appropriately licensed in the relevant jurisdiction

d. UPL laws apply to the where not the what

i. Does not limit the content of advice given > can give advice in GA
relating to NY law if licensed in GA
e. Exceptions to UPL rules:
i. (1) Pro hac vice attorney may be admitted on temporary basis to
practice in specific jurisdiction for specific purpose
1. Leis v. Flynt illustrates that granting pro hac vice status is
solely within the discretion of the judge/court; no
Constitutional protection of this right
ii. (2) Katrina Laws disaster situations
2. Ranta v. McCarney -attny licensed in MN travels to ND to advise -client;
dispute arises re: bill payment; seeks to avoid payment based upon fact that attny was not licensed in ND thus was engaging in UPL
a. Court defines practice of law = doing things that lawyers usually do
b. Looks to public policy in finding for :
i. Want to protect state citizens from non-licensed attorneys b/c:
1. Make sure the attny has proper knowledge
2. Keep track and regulate attnys to hold them accountable
iii. Territorial Restrictions Multi-Jurisdictional Practice
1. Rule 5.5(c) & (d):
a. 5.5(c): Lawyers may practice in another US jurisdiction on a temporary
basis if (1) legal services undertaken in association with attny who is
admitted in the jurisdiction & who participates in the matter; (2) attny is
authorized or reasonably expects to be authorized to appear in a
proceeding in the jurisdiction; (3) same as 2, but applies in pending
mediation/arbitration/ADR, (4) legal services arise out of or relate to
attnys practice in jurisdiction where attny is admitted
i. Comment [6] there is no single test to determine what services
are temporary services
b. 5.5(d): Permits licensed attny to provide legal services through an office
or other C&S presence in the jurisdiction
2. Rittenhouse v. Delta Home Improvement - -attny, licensed in TX, moves to WI
and is denied admission to WI/MI bars; -attny subsequently practices only in
Bankruptcy Court in WI b/c he is admitted to federal bar; state argues -attny is
engaging in UPL
a. Key: lawyer must be admitted to practice before courts pursuant to the
courts rules
b. Illustrates that each specific court has its own admittance requirements >
even courts within the same state
c. Because -attny was admitted under federal law, his practice was
permissible
d. JUR SPLIT not all courts agree that the federal admittance permits attny
to practice in fed court within the state
iv. Education, Knowledge, and Good Character
1. Attnys must have graduated from law school and passed the jurisdictions bar
exam to be admitted
a. Must meet the character/bar fitness requirements
b. Must also pass MPRE (ethics test) and substantive law test
2. In re Lammers involving -attny who doesn't actually graduate from law school
b/c he fails to complete a seminar paper; continues to practice law after passing
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bar exam from 19841991; Court upholds revoking s license and conditioning
reinstatement on receipt of law degree & recompletion of OH bar exam
a. Court focuses on s delay in taking remedial action & continued
misrepresentation
3. Clark v. VA Bd of Bar Examiners finding that question on bar fitness
questionnaire re: disclosure of applicants mental/emotional disorders violates applicants rights under the ADA
a. Court explains that some inquiry into mental health is appropriate, but
question must be tailored so as to not have impact on students decisions to
seek necessary treatment/help
4. Law Students Civil Rights Council, inc. v. Wadmond Supreme Court upholds
requirement of NY character/fitness requirement that applicants to bar swear an
oath of affirmatively support the Constitution of the United States and of the State
of NY
c. Scope of the Law Governing Lawyers
i. Self-regulation of the Profession
1. Preamble at [11] explains that we permit self-regulation to maintain
independence from government and to avoid abuse of the profession
ii. Sources of Regulation:
1. Model Rules/State Rules
a. Model rules promulgated by the ABA
b. Each state has adopted own Rule, most of which are based on the model
rules
c. Violation of the rules can lead to discipline and might be malpractice, but
that is not always the case b/c malpractice involves breach of duty of care
2. Inherent Court Authority
a. Chambers v. NASCO illustrates Court using inherent powers to
discipline attny and client where client & attny did multiple bad acts to
avoid fulfilling a contract for sale of radio station
3. Substantive Law
a. Tort, Contract, Agency Law, Criminal, Antitrust, etc.
4. Procedural Rules
a. Local rules & rules specific to area of practice
5. Restrictions on Right to practice
a. UPL, MJP, bar admission, etc.
6. Rest. of Law Governing Lawyers
7. Informal
a. Peer relations within legal community > need to protect reputation
iii. Structure of the Rules:
1. Preamble > narrative guidelines for what lawyers should do
a. Aspirational in nature
2. Scope > explains what it actually in the Rules
3. Preamble + Scope > provide general orientation
4. Rule 1.0 provides relevant definitions for terms used throughout the Rules
5. Only the text of the rules is authoritative (Scope at [21])
a. Comments to the rules provide guidance for practicing in compliance
with the Rules (Scope at [14])
iv. Defenses and Sanctions
1. Burden of proof
a. When applicant is , then has the burden of proving requisite good
character prior to bar admission
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b. When dealing with -licensed attny, bar assoc. has the burden of proof
2. Under ABA Standards for Imposing Lawyer Sanctions, factors to consider in
determining sanction:
a. (1) Duty violated
b. (2) Mental state
c. (3) Actual/potential injury
d. (4) Aggravating/mitigating factors
v. Obligation to Report Misconduct
1. Rule 8.3 Reporting Professional Misconduct
a. Requires that an attny who has knowledge (as defined in Rule 1.0) that
another attny has violated Rules that raises a substantial question as to that
attnys honesty, trustworthiness or fitness as a lawyer in other respects,
must inform Bar Assoc.
b. NOTE: GA is not a mandatory reporting state
2. In re Himmel client comes to -attny seeking aid in getting $ owed from past
attny resulting from a settlement where 1st attny had converted the clients funds;
aids client in recovering $ through a settlement agreement with 1st attny, but
does not disclose attny misconduct
a. Court finds fault in s failure to disclose b/c of possible injury to other
clients & to impending investigation

III.

Lawyer Advertising & Solicitation of Clients

a. Goals of regulating:
i. (1) Protection of clients
1. Want to provide information
a. Not everyone knows how to find an attorney or get legal advice
2. Prevent clients from being taken advantage of
ii. (2) Protection of the profession
1. Protect lawyers ability to practice
a. Bring in new clients
2. Protect the reputation of the profession
a. Avoid ambulance chaser labeling
iii. We want to balance these competing interests
b. Advertisements
i. Rule 7.1 Communications Concerning a Lawyers Services
1. Prohibits false or misleading communications about a lawyers services
2. Communication = false/misleading if it:
a. Contains a material misrepresentation of fact/law; or
b. Omits a fact necessary to make the statement not misleading
3. Comment [2] truthful statements that are misleading are also prohibited
a. Includes statement with omissions or statements that have a substantial
likelihood to lead a reasonable person to make a specific conclusion
about lawyer/lawyers services for which there is no factual foundation
4. When looking at ads/websites, view language from the perspective of the client
ii. Rule 7.2 Advertising [Limitations on direct advertising]
1. 7.2(a) may be in the form of writing, recording, or electronic media
a. Incl.: Phonebook, TV, radio, billboard/bus/bench, Internet ads/webpages,
Twitter/LinkedIn/Facebook, blogs, speaking engagements, trade shows
2. 7.2(b) No $ to referrers except:
a. Payment to create ads
b. Fees for legal service plan or qualified lawyer referral service
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c. Buying a law practice

d. Refer clients to others, so long as arrangement is not exclusive and the
client knows about the agreement
3. 7.2(c) all ads must contain name & address of one lawyer responsible for the ad
a. Easy thing to tack on when discussing validity of ads
iii. Rule 7.4 Communication of Fields of Practice & Specialization
1. Specialization is okay & may be communicated
2. No statements of certification unless by approved organization & certifying body
is also included
iv. Rule 7.5 Firm Names & Letterheads
1. No misleading names, but trade names are okay
2. Permits using of the same name in different jurisdictions, but must note where
lawyers are licensed
3. Restriction on use of lawyers name when in public office > cannot use in name of
law firm or in communications unless lawyer is actively involved or regularly
practicing with the firm
4. Cannot imply a partnership where there is none
c. Solicitation of Clients
i. Rule 7.3 Solicitation of Clients
1. 7.3(a): No direct, interactive contact with potential clients unless:
a. (1) They are a lawyer;
b. (2) You are family, a close friend, or
c. (3) Have previously worked professionally with them
i. Note motive must be pecuniary gain (see cases below)
2. Cant solicit employment in any fashion if (1) the client tells you not to; or (2) the
contact is coercive, under duress or harassing
a. Viewed from perspective of client
3. Tangible materials must contain the phrase Advertising Material unless prospect
is a lawyer or you know them
4. Ads can be affiliated with a prepaid plan operated by someone else
5. Comment [1] solicitation means targeted communication, directed to a
specific person, offering to provide legal services
ii. Why do we prohibit direct solicitation?
1. Comment [2] To prevent abuse b/c client may not have ability to fully evaluate
all possible options/alternatives with appropriate self-interest in the face of attny
a. Situation is fraught with possibility of undue influence, intimidation &
overreaching
iii. Ohralik v. Ohio State Bar Assoc. attny learns of car wreck; solicits both driver &
passenger in-person (one even at hospital); refuses to let girls out of binding K &
forces clients to pay him proportions of their settlements/insurance $
1. Court finds conduct violates Rules & rejects claim that attnys conduct protected
by 1st and 14th Amendments
a. Explains that in-person solicitation truthful advertising (protected by 1st
Amendment) b/c in-person solicitation exerts pressure and demands an
immediate response without opportunity for comparison or reflections
iv. In re Primus distinguishable from Ohralik b/c situation involved attny solicitation
aimed at protecting civil liberties of potential client [attny sends letter to subjects of
sterilization to inform them that ACLU will provide free representation]
1. Court looks at the motive of the attny > not clients view

2. Finds that b/c attnys letter resulted from association with ACLU & desire to
protect rights, discipline in this circumstance violated 1st and 14th amendments b/c
the action represented political expression & association
v. Florida Bar v. Went For It, Inc. Supreme Court finds FLs prohibition of personal injury
attnys from sending targeted direct-mail solicitations to victims & relatives for 30 days
following accident/disaster does not violate 1st and 14th Amendments
1. Illustrates Constitutional limits on regulation of commercial speech; Standard:
a. (1) State must have substantial interest in regulating,
b. (2) Regulation must materially & directly advance interest, &
c. (3) Must be narrowly drawn to fit the interest
2. FL passed Rule in response to polls showing public opinion re: attnys & personal
injury solicitation > Court finds this to be a substantial state interest

IV.

Lawyers as Counselors
a. Lawyers don't just give legal advice
b. Rule 2.1 Advisor
i. Lawyer must exercise independent professional judgment & give candid advice
1. Ex: Lawyer representing Catholic church being told to defend on basis that fetus
is not a real person
ii. Reflects idea that sometimes just using the law isnt the best course of action
iii. Lawyers must be able to apply the law, not just look it up
c. Rule 2.3 Evaluation for use by Third-Persons
i. Not really discussed, but idea is that lawyer may provide evaluations of a matter affecting
a client for use by someone other than a client if the evaluation is compatible with
representation of the client
d. Rule 2.4 Lawyer Serving as Third Party Neutral
i. Lawyers may be mediators, arbitrators & aid in other ADR proceedings
ii. Must explain that lawyer is not representing either participant & explain role

V.

Law Firms & Associations

a. Working in a Law Firm
i. Supervising lawyers
1. Rule 5.1 Responsibilities of Partners, Managers and Supervisory Lawyers
a. 5.1(a) & (b): Requires supervisors to make reasonable efforts to provide
measures to ensure that all attnys in the firm follow Rules
b. 5.1(c): supervisory lawyers may be responsible for subordinate attny
violations if:
i. (1) Lawyer orders or ratifies the conduct at issue
ii. (2) Lawyer could have fixed the error but didn't
2. In re Yacavino 1st year attny placed alone in remote office, falls behind on work
& lies to clients/falsifies documents relating to progress of cases
a. Illustration of what not to do > always be truthful to clients
b. Firm also disciplined due to lack of mechanisms for monitoring new
associates
c. Court says it is supervising attorneys responsibility to ensure that each
lawyer in organization diligently carries out firms client contracts
ii. Lawyers as subordinates
1. Rule 5.2 Responsibilities of a Subordinate Lawyer
a. Still bound by Rules even when acting at direction of another
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b. Subordinate lawyers can rely on supervisors for resolution of arguable

question of professional duty
i. Subordinate is liable for conduct that is clearly a violation
ii. Comment [2] if question can be reasonably answered in only one
way arguable, but if it involves a real basis for argument or
interpretation, then arguable > MUST be legitimate
1. May defer to supervisors on close question & close
questions only
2. Daniels v. Alexander case involving TRO and custody dispute that begins in NJ
and attnys now filing in CT; supervising attny lies to judge when subordinate
attny clearly knows it is a lie re: reason for now filing in CT, not NJ; subordinate
took no action to correct error & lied about it under oath > both attnys disciplined
a. Key: subordinate attnys cannot sit by when supervisors do wrong
i. Also, even an omission/failure to rectify an error may be
disciplined as lie > does not matter than subordinate did not
actually make the statement to the judge
iii. Responsibilities for non-lawyers
1. Rule 5.3 Responsibilities re: Non-Lawyer Assistances
a. Lawyers must ensure non-lawyers working with them exhibit conduct
compatible with professional obligations of a lawyer or risk being on the
hook
b. Lawyer on the hook if he orders or ratifies misconduct or fails to take
remedial action when he learns of the misconduct
b. Professional Independence
i. Rule 5.4 Professional Independence of a Lawyer
1. Prohibits fee splitting with non-lawyers
a. Does not include paying staff
2. Cannot practice law with non-lawyers or in partnership/corporation owned or
directed by non-lawyers
3. Non-lawyers who are not clients cannot tell lawyers what to do
a. Goal of prohibition: Comment [1] to protect lawyers prof. independence
of judgment
4. Exception to this Rule: D.C.
c. Other Limiting Situations
i. Rule 5.7 Responsibilities re: Law-Related Services
1. Key here: Rules of Prof Conduct still apply if the client might reasonably believe
that the services being offered are legal services
2. Attny must clearly distinguish between law-related services and non-law related
services
3. Law related services = services related to legal services but are not prohibited
as UPL when performed by non-lawyers
ii. Rule 5.6 Restrictions on Right to Practice
1. Lawyer shall not make or offer an agreement to restrict another attnys right to
practice after termination of relationship unless benefits after retirement are
concerned
2. Also cannot condition rights to practice as part of any settlement
3. See also Rule 1.17 concerning sale of law practice

VI.

Public Service
a. Pro Bono
i. Lawyers should undertake pro bono representations
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ii. Rule 6.1 Voluntary Pro Bono Publico Service

1. Sets an aspirational goal of 50 hours of pro bono
2. Pro bono includes: limited means clients, nonprofits devoted to individuals of
limited means, reduced fee for social good, reduced fee to clients of limited
means, activities for improving the legal system or profession
3. Also provides for judges to provide pro bono by serving on bar committees &
assisting in activities to improve/educate about the legal system
4. Can also give $ as a means of satisfying pro bono hours
b. Appointments
i. Rule 6.2 Accepting Appointments
1. Attnys should accept appointments unless there is a good cause for rejecting
a. Comment [2] Good cause = (1) violation of the Rules or law [i.e.,
conflict], (2) unreasonable financial burden, or (3) client/case so repugnant
that attny cannot represent the client adequately
2. Goal here is to protect clients & ensure that the appointed lawyer can put adequate
time/resources into the representation
3. Cannot plead not competent due to lack of subject matter expertise

VII.

Fees & Handling Client $$$

a. Rule 1.5 Fees
i. 1.5(a) General Rule: Lawyer shall not make an agreement for, charge, or collect an
unreasonable fee or an unreasonable amount for expenses
1. Best practices:
a. Communicate everything with client
b. Get fee agreements in writing
c. Be honest
ii. 1.5(b) communicating the basis of the fee:
1. Fee arrangement should be in writing
2. Need to communicate rate of fees before or within a reasonable time after
commencing representation
3. Note Comment [6] attny may require advance payment of a fee, but is obligated
to return any unearned portion
iii. 1.5(c) Contingency fees
1. MUST be in writing**
2. Must state how fees are calculated & how deductions/expenses are handled**
a. Client must sign agreement
3. Must also include a settlement statement**: after case is finished, must explain
how much $ won, how much $ client will receive, and how much $ attny will get
4. NOTE Contingency fees are handled differently to protect both lawyers &
clients (protect against the risks on both ends)
a. Normal contingency fee is ~30% (often times are tiered > 30% of 1st
million; 10% thereafter)
5. No contingent fees in divorce or criminal cases [1.5(d)(1) & (2)]
6. Policy behind 1.5(b) & (c): interest of transparency
iv. 1.5(e) Sharing Fees
1. A division of a fee between lawyers who are not in the same firm may be made
only if:
a. The division is in proportion to the services performed by each lawyer or
each lawyer assumes joint responsibility for the representation;
b. The client agrees to the arrangement, including the share each lawyer will
receive, and the agreement is confirmed in writing; and
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c. The total fee is reasonable.

i. Overall, helps to ensure that client is protected from paying an
attny for doing little to no work
2. Moran v. Harris Court upholds referral fee agreed upon by parties prior to
beginning representation; Court explains that public policy does not preclude
enforcement of the agreement
a. Key: Court says that referral fees are not contrary to public policy, but the
court does not encourage such fee splitting arrangements
v. Key: fees must be reasonable
1. Want to avoid conflicts between clients & attorneys and to prevent problems
before they arise
2. Reasonableness standard applies to ALL types of lawyers fees, incl. contingent
fees
vi. What is a reasonable fee?
1. In re Kutner involving attny representing in criminal battery case; Court finds
fee excessive and unconscionable where attny charged $5K and the case was
dismissed early on without going to trial
a. Illustrates need to evaluate reasonableness factors at the outset of
representation to try and avoid conflicts
2. Rule 1.5(a)(1)(8) Reasonableness factors:
a. (1) Time and labor required, the novelty and difficulty of the question
involved and the skill requisite to perform the legal service properly;
b. (2) Likelihood, if apparent to the client, that the acceptance of particular
employment will preclude other employment by the lawyer;
c. (3) Fee customarily charged in the locality for similar legal services;
d. (4) Amount involved and the results obtained;
e. (5) Time limitations imposed by the client or by the circumstances;
f. (6) Nature and length of the professional relationship with the client;
g. (7) Expertise, reputation, and ability of the lawyer or lawyers performing
the services; and
h. (8) Whether the fee is fixed or contingent
3. In class hypos:
a. Research question on topic you just briefed for another client
i. Discounted rate is okay, but want to remain consistent so as to be
fair to your past client and future clients as well
b. Billable hour bonus structure
i. If falsely reporting time at end of year, attny is subject to sanctions
under Rule 8.4s prohibition on misconduct
c. Client wants to pay for travel; can you double up on time?
i. Doing nothing is seemingly okay, but working on another
case/billing on another project is not okay > bar says you cannot
double bill the same hours
ii. Need to look at who is getting what out of the time
iii. Often, will want to split a total amount of time between clients
who are all benefitting (i.e., if attny goes to Court to wait on docket
for 5 cases all in one day > split fees 5 ways)
d. Attny cannot accept illegal drugs/profits for legal fees
i. Lawyers must follow law too
ii. You can be paid in trade, but must consider rule 1.8 and the
payment, whatever it may be, must be reasonable
b. Rule 1.15 Safekeeping Property
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i. Must keep client $ and lawyers $ separate

1. Need trust account for client $ and operating account for lawyer $
2. Must always give clients their funds immediately
3. One of the easiest ways to get disbarred is by using clients $ for personal
purposes or to pay other clients
a. Only use client $ for allotted purpose
b. See, e.g. In re Rosellini attny is disbarred for using $ from client trust
account to pay personal debts/bills
ii. When someone pays in advance, $ goes into trust; after attny does the work, then transfer
$ info operating account
iii. If being paid via retainer for general availability, $ goes directly into operating account
(paid to lawyer directly)

VIII.

Representing Clients
a. Beginning representation
i. Rule 1.18 Duties to Prospective Client
1. Prospective clients = anyone who consults with a lawyer about the possibility of
forming an attny-client relationship
2. Attny owes a duty of confidentiality to prospective clients
3. Attny shall not represent a prospective client whose interests are materially
adverse to another client in the same or substantially related manner
4. Attny must do certain things if he learns disqualifying info [see 1.18(d)]
ii. Lawyers do NOT have to represent every client who solicits them [limited duty to accept
appointments though]
1. Considerations lawyers need to make:
a. If client can pay
b. Any moral objections to case or clients character
c. Legitimacy of claim and nature of the case
2. Deciding who to represent is where attnys have the most leeway
iii. Togstad v. Vesely, Otto, Miller & Keefe Court upholds jury finding of attny negligence
& award of damages to plaintiff based upon her belief that attny gave her a legal opinion
that she and her husband did not have a med malpractice case; attny claims he told
prospective client that there was nothing in her case file to suggest that his firm would be
interested in taking on the case
1. Illustrates need to be clear with all clients (current & prospective)
2. Key attny-client relationship formally begins when a client reasonably believes
that the attny has undertaken to provide the client with legal services
3. For legal malpractice claim, must show:
a. (1) Attny-client relationship existed
b. (2) acted negligently or in breach of K
c. (3) Such acts were proximate cause of s injuries
d. (4) But for s acts, would have been successful in prosecuting claim
iv. Engagement Letters:
1. Serve to notify client of any potential issues & to resolve any problems before
representation begins; explains scope of relationship; reflects clients & attnys
expectations; should explain all fee structuring; good place to notify client of
any/all things required under the Rules
b. When a lawyer represents a client, he is NOT endorsing the clients views
i. Rule 1.2(b) representationdoes not constitute an endorsement of the clients
political, economic, social or moral views
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1. Comment [5] to Rule 1.2 Legal representation should not be denied to people
with unpopular viewpoints or those who cannot pay > representation
endorsement is a way to prevent these individuals from adequate legal aid
c. Withdrawal (Firing a Client)
i. Rule 1.16 Declining or Termination Representation
1. 1.16(a) attny MUST withdraw/decline representation if (1) representation will
result in violation of Rules, (2) lawyers health impairs ability to represent client,
or (3) lawyer is discharged
2. 1.16(b) optional withdrawal attny MAY withdraw if:
a. (1) Withdrawal can be accomplished without material adverse effect on
interests of client [MUST determine if prejudice will result]
b. (2) Attny believes clients continued actions are criminal/fraudulent
c. (3) Client has used attnys service to commit crime/fraud
d. (4) Attny fundamentally disagrees with clients chosen course of action, or
finds action to be repugnant
e. (5) Client fails to fulfill obligation to attny & has been given notice that
attny will withdraw unless obligation is fulfilled
f. (6) Representation will result in unreasonable financial burden on attny
g. (7) Other good cause exists
3. Comment [1] attny should not accept representation in a matter unless it can be
performed competently, promptly, without improper conflict of interest and to
completion (see Duties owed to Client below)
ii. Maricopa County Public Defenders Office where
1. Identifies process and scope of information needed > Court explains that
ordinarily a trial court should not require attny to disclose confidential
information in order to determine whether attny has an ethical obligation to
withdraw where attny has shown facts establishing a conflict of interest,
compliance with firm/employers conflicts policy, understanding of applicable
rules & cases, avowal that attny has an ethical conflict requiring withdrawal, and
no reason for court to reject that avowal
iii. Rosenberg v. Levin When attny is discharged by client without cause, court holds that
attny is entitle to recover the reasonable value of his services, but recovery is limited to
the maximum fee set forth in the K entered into for the representation
1. Comment [4] Client has the right to discharge attny at any time, with or without
cause
iv. Best practice for declining representation:
1. Be clear & put it in writing
2. Consider possible outcomes & if something could end badly
3. Be explicitly obvious [Taylor Swift Rule]
4. NOTE re: statement on SOL > if you choose to give one when declining
representation, you must be sure that youre correct [if wrong, can be malpractice]

IX.

Duties Owed to Clients

a. Rule 1.1 Competence
i. A lawyer shall provide competent representation to a client. Competent representation
requires the legal knowledge, skill, thoroughness and preparation reasonably necessary
for the representation.
ii. Comment [1] To determine whether attny has requisite skill/knowledge, relevant factors
= complexity & specialized nature of the matter; attnys general experience; attnys
training/experience in the relevant field; attnys preparation & study of the matter; and
whether attny can refer the matter/consult with attny of est. competence in the field
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iii. Cases & Hypos:

1. Togstad attny there did not have basis/knowledge to make him qualified to say
that client did not have a med mal case
2. Can a recent grad handle a personal injury case?
a. Yes, the Rule allows attny to teach himself how to handle a case
b. Comment [2] attny need not have special training or prior experience to
handle legal problems; newly admitted attnys have skill & ability to
evaluate precedent & EV and to draft legal docs
3. Even in situation where tax attny has 25 years of practice, attny still must have
requisite knowledge to handle a real estate case > still must follows these rules
4. Comment [8] attny should know the benefits and risks associated with relevant
technology in order to maintain competence
a. Includes social media
5. Where attny has huge caseload and has relevant concerns regarding having
enough time to adequately prepare any additional cases > raises concerns under
competence & diligence
a. Comment [2] to Rule 1.3 Attnys workload must be controlled so that
each matter can be handled competently
6. Need to be careful in advertising experience & abilities when questionable
advertisements/endorsements could cause issues under Rules 7.1 & 7.2
b. Rule 1.2 Control
i. Concerns the scope of representation and the allocation of authority between the client
and the lawyer
1. Lawyers are fiduciaries > means that attny must stand in the shows of the client
2. As a general rule: Client controls goals of representation
a. Includes objectives and means through which they are achieved, whether
to settle
b. In criminal cases: plea, waiver of jury and testifying
c. Comment [1] client has ultimate authority to determine purposes of
representation within limits imposed by law & attnys professional
obligations
3. Lawyer may limit the scope of the representation
a. Attny can also use special skills/knowledge to execute client goals
4. No assistance with fraud or crime, but can advise as to consequences and
regarding scope of law
a. This does NOT mean recommending means by which crime/fraud might
be committed with impunity > refers to attny presenting legal analysis of
questionable conduct
i. Can ONLY advise on consequences
b. Policy here: want to allow attny to provide client with info/legal
implications that might prevent the client from breaking the law
ii. Under Rule 1.2(a) attny MUST consult with client re: settlements and plea bargains
1. In criminal case, must also discuss whether to waive jury trial & whether client
will testify (see also Rule 1.4)
iii. 1.2(c) A lawyer may limit the scope of the representation if the limitation is reasonable
under the circumstances and the client gives informed consent
c. Rule 1.3 Diligence
i. A lawyer shall act with reasonable diligence and promptness in representing a client
1. Key concern: act promptly

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ii. Comment [1] attny must act zealously in representing clients & take whatever ethical
measures required to vindicate clients issue/cause, but attny retains professional
discretion in determining what actions to take
1. Although attny has discretion, attny must put clients interest first
a. Discretion is limited by attnys fiduciary duties
iii. Must manage work load [see Comment [2] explained above]
iv. Dont procrastinate! > Comment [3]
v. Must handle clients matter through to conclusion > Comment [4]
d. Rule 1.4 Communication
i. Lawyers must communicate with their clients
1. Need to always respond promptly
2. Must always communicate re: settlements & any type of plea bargain (see also
rule 1.2)
3. Comment [5] guiding principle here is that attny should fulfill reasonable client
expectations for information consistent with duty to actin the clients best interests
ii. This duty includes:
1. Consult regarding means to achieve objectives
2. Keep client informed of status
3. Provide information promptly
4. Discuss why a lawyer cant provide services if prohibited
iii. Must provide full explanation so that the client understands and can decide how to
proceed**
1. Explain status of case and provide full update of case details so that client is able
to understand what is going on and how best to act moving forward
iv. Hypo: You and your best friend are both lawyers. You have always wanted to work
together, and you finally have a case where you need outside help. Can you just call up
your BFF and ask her to join you on the case?
1. Brings together 1.1, 1.2 and 1.4
2. Rule 1.1, Comment [6] must get informed consent from client & reasonably
believe the other attnys services will contribute to the competent representation
of the clients interests
3. Rule 1.2, allocation of authority
4. Rule 1.4, communication with client
e. Rule 1.6 Confidentiality
i. Prohibits lawyer from disclosing any information relating to representation
1. Information is protected indefinitely
2. This duty is owed to prospective, actual and former clients
3. When determining if something is protection info, consider the policy behind this
Rule in protecting the relationship between an attny and his client
a. Want to foster and open dialogue & create mutual trust between attny &
client
ii. 1.6(c) A lawyer shall make reasonable efforts to prevent the inadvertent or
unauthorized disclosure of, or unauthorized access to, information relating to the
representation of a client
1. Must take reasonable efforts to prevent disclosure of confidential info
iii. Distinguishable from Attny-Client Privilege:
1. Applies to matters communicated in confidence by the client to his attny, acting in
his capacity as an attny, for the purpose of securing legal advice
a. Exceptions: (1) crime-fraud, (2) waiver by client
2. On exam, note when both would apply
iv. Examples:
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v.

vi.

vii.

viii.

1. Clients name = confidential, but only may be privileged

2. Attnys communication to client detailing answer to whether client can return
stolen property
a. Confidential and likely privileged if answer involves legal advice
3. Attnys discovery that divorce client has off-shore accounts
a. Confidential, but not protected under attny-client privilege
b. Likely still protected under work product exception
People v. Fentress where family friend contacts attny who lives out-of-town and tells
him that he just killed someone and is about to take his own life; friend requests attny
locate a rabbi; attny tells friend to call police; attny then calls his mother, also friend of
the caller, to get her help in locating the rabbi; mother calls the friend, who tells her
everything, and she then calls the police & man is arrested
1. Court holds that s convo with attny = privileged because attny did give legal
advice and was contacted by for the purpose of getting his advice
a. BUT when agreed in decision to call the police > waived confidentiality
regarding the body
2. s convo with the mother was NOT privileged
a. under no impression that mother was acting as an agent of the attny
b. By making these disclosures to her and revealing what he told her son,
waived privilege re: convo with son-attny
i. When client, after consultation, reveals the contents of the
consultation to a 3P, waiver is effectuated
People v. Meredith defense investigator removes wallet, incriminating EV from s
trash can, attny then examines the wallet and turns it over to the police; issue: does the
investigator have to reveal to the police where he found the wallet or is it protected by
attny-client privilege
1. When the attny, or his agent, alters or removes the EV so that the police cannot
make the same observation > attny is required to disclose his observations
a. KEY: if attny prevents prosecution from finding the EV on their own, then
must disclose observations/locations of the EV
2. Policy rationale here: fairness
a. Class example attny removing 1 out of 5 coins from river bank >
fairness is still intact because the police could have located the other 4
coins on their own, so attny would likely not need to disclose details of
where he got the coin
People v. Belge client tells attnys where a body is located; attny goes to confirm clients
story and finds the body, but does not disturb or move it; attny is charged with violating
public health laws pertaining to reporting death to authorities; attny claims he did not
need to disclose the info re: the body b/c of attny-client privilege and confidential
communication
1. Must balance interests of (1) protecting confidentiality and client interests with
(2) fair administration of justice
2. Court finds attny was justified in not disclosing location of body b/c of
confidentiality and privilege
3. Key: do not EVER have to disclose damning info UNLESS there is some
substantive law that trumps
Exceptions to confidentiality
1. Client gives informed consent
2. Disclosure is impliedly authorized to carry out representation
3. Permissive disclosures under 1.6(b):
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a. With ALL of these, attny can only disclose what is reasonably necessary to
fit within the specific exception:
i. (1) To prevent death/bodily harm
ii. (2) Prevent crime/fraud reasonably certain to result in substantial
injury to finances or property (and client uses lawyers services)
Considerations when
1. Focus on effects, not just that a crime will/has occurred
you suspect client
iii.
(3)
Prevent/mitigate/rectify
substantial injury to finances or
fraud:
property
of
another
1.6
iv. (4) Lawyer securing legal advice
1.13
v. (5) Defending against client or in criminal or civil case against
4.1(b)
attny
1.2(d)
1. Comment [10] do not have to wait for commencement of
1.16
action/proceeding that charges complicity > attny may
disclose confidential info directly to a 3P asserting attny
liability in connection with client action
vi. (6) Comply with court order
vii. (7) Address conflicts if no compromising or prejudicing client
b. Factors to consider re: permissive disclosures Comment [17]:
i. Nature of relationship with client
ii. Who might be injured by the conduct
iii. Attnys involvement
iv. Extenuating circumstances
v. Remember attnys role as an advisor
c. Note even if you disclose something to proper authorities b/c of one of
the above exceptions [bad act], attny-client privilege may still be in tact
because privilege belongs to the client
i. Also note Comment [15]
ii. Always assess how serious a client is when he threatens to commit
a crime
ix. JUR SPLIT re: malpractice liability to 3P (example where client attacks his mother after
clients mother tells you that client is dangerous)
1. Some states say yes; other, no re: duty to warn
a. Only arises where interested party/potential victims do NOT know of
potential harm or threat
b. In case of mother, no duty because she knew of the harm (See also Rule
1.14)
x. Example of client seeking reimbursement via suing other driver responsible for accident,
but client had medical bills discharged in bankruptcy proceeding
1. Seemingly defrauding court
2. Consider financial interests of the other driver [Rule 1.6(b)(2)]
3. Consider underlying substantive law re: bankruptcy
4. Consider responsibility to be candid with the court [Chapter 4 of Rules]
f. Conflict-Free Representation Rules 1.71.10
i. In all cases, firms must monitor for conflicts and maintain and updated database for
searching
1. Use the database and memos throughout the firm to check for conflicts when new
clients come in
a. Must keep database updated with new clients/changes to existing clients
b. Need to include personal conflicts, concurrent and 3P personal conflicts,
and former client conflicts
15

ii. Key Questions for evaluating COI [Comment [2] to Rule 1.7]:
1. Who is the client?
a. Current client?
b. Former client?
c. Prospective client?
2. Is there a conflict, and what is its source?
a. Rule implicated
i. Personal interest of attny?
ii. Interest of 3p?
iii. Multiple clients?
b. Imputed conflicts [Rule 1.10]?
3. Is the conflict consentable (can it be waived)?
4. Have you obtained informed consent to the conflict?
iii. Rule 1.7 Concurrent Client Conflicts
1. KEY: attnys cannot take on new clients when (1) representation of that client will
be directly adverse to another client OR (2) where there is a significant risk that
Informed consent is
representation will be materially limited
defined in Rule 1.0(e)
a. A potential conflict = an actual conflict for purposes of 1.7(a)(2)
as the agreement by a
b. BUT these conflicts ARE waivable under 1.7(b)
person to a proposed
i. Lawyer may represent client IF
course of conduct after
1. Attny believes he can actually do the job
the lawyer has
2. Not prohibited by law
communicated adequate
3. Clients are NOT on the opposite side of the v in the same
info & explanation
litigation or transaction
about the material risks
a. NEVER waivable
of and reasonably
4. Each affected client gives informed consent in writing
available alternatives to 2. Types of conflicts between clients:
a proposed course of
a. Client v. Client
conduct
b. Positional conflicts
i. Conflicting client positions = arguments made on behalf of clients
that conflict
1. Think arguments across the v
c. Multiple clients on the same side
d. Aggregate settlements
i. Concern over confidentiality between multiple clients because COI
can easily arise
ii. Think Driver & Rider hypo
iv. Rule 1.8 Lawyer Personal Interests
1. Personal interest conflicts include:
a. Business transactions with clients
b. Using info re: representation to clients disadvantage
c. Substantial gifts
d. Literary right for representation
e. Financial assistance to clients
f. Limiting liability and settling with clients
g. Proprietary interest in litigation
h. Sex with clients
2. Prohibited actions:
a. No business transactions unless requirements of (a) are met
i. Client cannot be taken advantage of
ii. All transactions must:
16

1. Be fair and reasonable

2. Have terms disclosed in writing, so that client can
understand them
3. Client is advised in writing to seek outside counsel
4. Client gives informed consent
b. No solicitation of gifts from client unless family
c. No negotiation of literary/media rights until after a case concludes
i. Concerns attny over-dramatizing the case
ii. Still must follow the rules on subsection (a) re: business
transactions with client
d. No financial assistance to clients
i. Except advancing court costs or paying court costs and expenses of
litigation for indigent clients
e. No one other than client pays attny fees unless (1) client gives informed
consent, (2) no interference with lawyers judgment and attny-client
relationship, and (3) info remains confidential
i. Prohibits 3P interference
f. No aggregate settlements/plea agreements unless informed consent in
writing from all clients
g. No limitation/waiver on liability for malpractice unless client has own
lawyer in agreement
i. In GA > NEVER permitted
h. No settlement of claim with client unless they are advised in writing that
they should seek counsel
i. Want client to be properly advised
i. No proprietary interest in litigation
i. Except liens or contingency
ii. Want client, not lawyer, to have interest in litigation
j. No sex with clients unless prior relationship
i. Meaning before becoming the clients lawyer
ii. This rule is NOT imputed to the entire firm
k. Nearly all of these rules are imputed to an entire firm
3. To get informed consent, must:
a. (1) Determine if you can disclose info before making any disclosures and
attempting to get informed consent
b. (2) Communicate all advantages & disadvantages of giving consent
c. (3) Must get consent from all involved clients
d. (4) Must get it in writing
e. NOTE clients who have given consent may revoke it AT ANY TIME
i. Must always be aware of this risk
v. Rule 1.9 Duties owed to former clients
1. 1.9(a) > Applies to lawyers, NOT firms
a. KEY: substantial relationship test
i. Lawyer cannot represent a person when the lawyer has represented
a client in the same or a substantially related matter in which the
persons interests are materially adverse to the former client
1. Compare the 2 situations > do not need to be identical, only
substantially similar
2. Often applies in disqualification cases
ii. BUT this is waivable if you get informed consent in writing from
the former client
17

2. 1.9(b) > applies where attny has worked in past firm

a. Lawyer cannot represent a person in the same or a substantially related
matter if lawyers firm previously represented a client
i. With materially adverse interests, AND
ii. Lawyer had access to confidential info or other info relating to the
representation that could be used to the disadvantage of the former
client
3. Oftentimes in these cases, new firm will put the infected attny in a Chinese wall
vi. Intersects with Rule 1.18(b) > prohibits a lawyer from using disqualifying info
1. Attny cannot represent a prospective client if he learns disqualifying info, unless:
a. (1) Lawyer gets informed consent from all affect parties
b. (2) Lawyer accessed only a limited subset of info and is timely screened
from participating in the matter
c. (3) Gives written notice to the prospective client
2. Disqualifying info = anything that can materially affect either client, including
confidential info
3. NOTE > GA has no rule 1.18
vii. Rule 1.10 Imputed Disqualification
1. Rule that says conflicts of an attorney will be imputed to a firm
a. Lawyers in a firm CANNOT represent a client when any one of the
attorneys in the firm could not individually represent the client because of
Rules 1.7 OR 1.9
i. Note Rule 1.8 is self-imputing
b. UNLESS the conflict is based on a personal interest
i. Meaning a moral objection
c. OR if the conflict relates to a former client and the lawyers association
with another firm and that lawyer is timely screened AND written notice is
given to any affected former client AND certifications of compliance with
these Rules and with the screening procedures are given to the former
client periodically during the representation
i. Concerned with the info that attny may have previously acquired at
the former firm & client representation
1. Attny must be screened, gets no fee, must tell former client,
and must disclose what firm did to screen this attny
d. When lawyers move firms, their personal conflicts move with them
i. When infected lawyer leaves a firm, the firm then has no
continuing conflicts unless that lawyer revealed
confidential/substantially related info to others at the firm
2. ANY disqualification under this rule is waivable
g. Entity as a Client
i. Rule 1.13
1. 1.13(a) Corporation is the client & advice is given through its representatives
2. 1.13(f) Attny must advise individuals in an organization of who the client is if
the lawyer knows or reasonably should know that there may be a conflict
a. Applies to ALL communications with corporate employees
b. Upjohn Warnings:
i. Attny must disclose (1) that attny is corporations attny, not the
individuals, (2) nature of the communication, meaning why attny
is talking to them, and (3) that the conversation is privileged, but
that privilege belongs to the corp. NOT the individual
c. Note Rule 1.0 definitions of knows and reasonably should know
18

i. Attny should not act based on conjecture or rumors

3. KEY: if attny knows that someone within the organization is going to take action
that will cause substantial injury to the corporation, the attny must (shall)
proceed as reasonably necessary in the best interest of the organization
a. Attny must 1st proceed to higher authority inside organization
b. If highest up (CEO) refuses to take action, then attny MAY go outside the
corporation
c. In both settings, attny can ONLY reveal; what is reasonably necessary to
prevent harm

X.

Responsibilities to Third Parties

a. Interacting with Non-client > Rules 4.1
i. Rule 4.1 demands that lawyers be truthful in their statements to others
1. Includes not making false statements of material fact or failing to disclose
material facts when silence will assist in a fraud
a. What is material might be debatable
b. See Comment [2]
ii. Key: attny cannot flat out lie here
1. Cannot say that client was not drinking if attny knows that he was, BUT can say
you have no EV of my client drinking
2. EXCPETION: settlement negotiations
a. We expect puffery here
b. BUT cannot misrepresent insurance policy limits when such info is
material and could impact negotiations
b. Rule 4.2 Communication with Person Represented by Counsel
i. Always need to ask first if 3P is represented by counsel
ii. Prohibits a lawyer from communicating about the subject of the representation with
someone who is represented by another lawyer, without obtaining the consent of the other
lawyer
1. Can be complicated with corporations because communicating with a constituent
of an organization that is represented may be allowed (or may require consent of
counsel) depending on the circumstances
iii. Can we prohibit clients from talking to one another?
1. Intersection of this rule and Rule 8.4
2. Under Comment [4] to 4.2 > NO
a. The parties themselves may talk to each other
b. If the attny prohibited clients from talking to each other, could be seen as
violating the clients rights under 4.2 > thus constituting a violation under
Rule 8.4(a)
c. BUT attny can still advise them on what to/not to say
i. You can ask clients (or corp. employees) not to discuss the matter,
but you must follow the law so you cannot outright prohibit EEs
from talking to anyone about a matter
iv. What if the other side calls you > Comment [3]
1. Must make sure that they do not have any attny
a. Must end the conversation if they do have an attny and get in touch with
the attny
v. With corporation entities, consider Comment [7] re: who qualifies as a represented party
1. Cannot keep mere fact witnesses away from the other side by claiming they are
represented if all they did was witness an accident
c. Rule 4.3 Dealing with Unrepresented Persons
19

i. Again, ALWAYS first ask if they have an attorney of their own

ii. Must make sure that they understand your role and interests
1. Who you are
2. Who you represent
3. Why you are talking to them
iii. Do NOT give them legal advice (except to advise them to seek their own counsel) if the
unrepresented person may have interests adverse to your client
iv. Risks:
1. Do not want the individuals to think that the attny represents their interests
2. Lawyer must be clear in explaining who he actually represents
a. Upjohn warnings
d. Rule 4.4 Respect for Rights of 3P
i. Cannot embarrass, delay or burden 3P
1. Does not mean that you cannot ask embarrassing questions
2. Means that attny MUST have a legitimate purpose for doing any of these things
ii. Cannot violate a 3Ps legal rights
iii. If a lawyer obtains documents or ESI that was inadvertently sent (aka, privileged or
relating to representation of your client), notify sender immediately
e. These rules seek to protect ______
f. In most situations, first determine who is the represented party
i. Consider who you are trying to protect
1. Former employees > Neisig case (p. 371)
ii. Then, determine what interests are at issue

20