Professional Documents
Culture Documents
iv. (4) consult with the client about any relevant limitation on lawyers
conduct when the lawyer knows that the client expects assistance not
permitted by the rules of professional conduct or other law
b. A lawyer shall explain a matter to the extent reasonably necessary to permit the
client to make informed decisions regarding the representation
5. Informed Consent and Disclosure [1.0(e)]
a. (e) Informed Consent denotes the agreement by a person to a proposed course of
conduct after the lawyer has communicated adequate information and explanation
about the material risks of and reasonably available alternatives to the proposed
course of conduct
i. How to get consent: rules differ by state (written or verbal)
ALLOCATION OF AUTHORITY BETWEEN LAWYER AND CLIENT
1. Objectives and Means [1.2]
a. Explained earlier in notes under enforcement
2. Client with Diminished Capacity (1.14)
a. (a) When a clients capacity to make adequately considered decisions in
connection with a representation is diminished, whether because of minority,
mental impairment or for some other reason, the lawyer shall, as far as reasonably
possible, maintain a normal client-lawyer relationship with the client
i. Duty as a lawyer to counsel (explain, be patient)
b. (b) When the lawyer reasonable believes that the client has diminished capacity, is
at risk of substantial physical, financial or other harm unless action is taken and
cannot adequately act in the clients own interest, the lawyer may take reasonably
necessary protective action, including consulting with individuals or entities that
have the ability to take action to protect the client and, inappropriate cases,
seeking the appointment of a guardian ad litem, conservator or guardian
i. Guardian ad litem is sometimes an attorney, but typically the person who
comes in to act in the best interest of the child (takes over decision making
role for the client)
c. (c) Information relating to the representation of a client with diminished capacity
is protected by rule 1.6. When taking protective action pursuant to paragraph (b),
the lawyer is impliedly authorized under rule 1.6(a) to reveal information about
the client, but only to the extent reasonably necessary to protect the clients
interests
i. Can disclose some confidential information to help client with diminished
capacity
CONFIDENTIALITY OF INFORMATION
1. Range of the Obligation [1.6 and 1.9(c)]
a. 1.6 Confidentiality of Information
i. (a) A lawyer shall not reveal information relating to the representation of a
client unless the client gives informed consent, the disclosure is
impliedly authorized in order to carry out the representation or the
disclosure is permitted by paragraph (b)
1. Whatever you have learned about your clients case over the course
of representation is potentially confidential
2. Possible Conflicts
3. Scope of Confidentiality
4. Going up the ladder
i. After Enron: May report outside organization to stop substantial injury
1. Before Enron: Had to report up the ladder of the company
FEES [1.5] ***WRITE OUT RULE unreasonable fee and amount is underlined***
1. The Basic Rule
a. Cost per hour
2. Contingency
a. Percentage of settlement for covering costs of trial
i. Fees must be reasonable and in writing
3. Fee Splitting
a. Referring cases to another attorney
i. Referral attorney gets a fee
CLIENT PROPERTY [1.15]
1. Rule
a. (a) A lawyer shall hold property of clients or third persons that is in a lawyers
possession in connection with a representation separate from the lawyers own
property. Funds shall be kept in a separate account maintained in the state where
the lawyers office is situated, or elsewhere with the consent of the client or third
person. Other property shall be identified as such and appropriately safeguarded.
Complete records of such account funds and other property shall be kept by the
lawyer and shall be preserved for a period of five years after termination of the
representation
b. (b) A lawyer may deposit the lawyers own funds in a client trust account for the
sole purpose of paying bank service charges on that account, but only in an
amount necessary for that purpose
c. (c) A lawyer shall deposit into a client trust account legal fees and expenses that
have been paid in advance, to be withdrawn by the lawyer only as fees are earned
or expenses incurred
2. Commingling
a. Cant commingle funds, must set up trust account
i. Cant put personal money in account, unless to maintain banking fees
3. Retainers and Disputes
LAWYER AS ADVOCATE BEFORE A TRIBUNAL [3.1 3.5]
1. Rule 3.1 Meritorious Claims and Contentions
a. A lawyer shall not bring or defend a proceeding
2. Rule 3.3 Candor Toward the Tribunal
a. (a) A lawyer shall not knowingly:
i. (1) make a false statement of fact or law to a tribunal or fail to correct a
false statement of material fact or law previously made to the tribunal by
the lawyer;
ii. (2) fail to disclose to the tribunal legal authority in the controlling
jurisdiction known to the lawyer to be directly adverse to the position of
the client and not disclosed by opposing counsel; or
iii. (3) offer evidence that the lawyer knows to be false. If a lawyer, the
lawyers client, or a witness called by the lawyer, has offered material
evidence and the lawyer comes to know of its falsity, the lawyer shall take
reasonable remedial measures, including, if necessary, disclosure to the
tribunal. A lawyer may refuse to offer evidence, other than the testimony
of a defendant in a criminal matter, that the lawyer reasonably believes is
false
3. Rule 3.4 Fairness
4. Rule 3.7 Lawyer as a Witness
a. (a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a
necessary witness unless:
i. (1) the testimony relates to an uncontested issue;
ii. (2) the testimony relates to the nature and value of legal services rendered
in the case; or
iii. (3) disqualification of the lawyer would work substantial hardship on the
client
b. (b) A lawyer may act as advocate in a trial in which another lawyer in the lawyers
firm is likely to be called as a witness unless precluded from doing so by rule 1.7
or rule 1.9
5. Rule 3.1 Prohibition on Frivolous Positions
a. A lawyer shall not bring or defend a proceeding, or assert or controvert an issue
therein, unless there is a basis in law and fact for doing so that is not frivolous,
which includes a good faith argument for an extension, modification or reversal of
existing law. A lawyer for the defendant in a criminal proceeding, or the
respondent in a proceeding that could result in incarceration, may nevertheless so
defend the proceeding as to require that every element of the case be established
OBLIGATIONS TO NONCLIENTS [4.1 4.44]
1. Truthfulness [4.1]
a. In the course of representing a client a lawyer shall not knowingly
i. (a) make a false statement of material fact or law to a third person; or
ii. (b) fail to disclose a material fact when disclosure is necessary to avoid
assisting a criminal or fraudulent act by a client, unless disclosure is
prohibited by rule 1.6
2. Communications with persons represented by counsel [4.2]
a. In representing a client, a lawyer shall not communicate about the subject of the
representation with a party the lawyer knows to be represented by another lawyer
in the matter, unless the lawyer has the consent of the other lawyer or is
authorized to do so by law or a court order
3. Dealing with unrepresented person [4.3]
a. In dealing on behalf of a client with a person who is not represented by counsel, a
lawyer shall not state or imply
4. Respect for Rights of Third Persons [4.4]
a. (a) In representing a client, a lawyer shall not use means
5. Inadvertently sent documents [4.4(b)]