Ethics Outline

Client Lawyer Relationship

1.1 Competence
-requires skill, knowledge, and thoroughness of preparation reasonably
necessary for representation
-look at: specialized nature and complexity of case, lawyers experience in
the field, etc.
*IF NOT COMPETENT MANDATORY WITHDRAW 1.16
ex) not prepared
*maintaining competence: employee training, prior experience, collaboration, research, observe
trials and hearings, etc.
1.2 scope or representation
(a) give advice, but ultimately its clients decision and you must abide by that
decision
may have implied authorization for some things
-dont have to ask about every little thing
ex) minimum settlement price
-you can accept it without asking the client, but anything lower you
have to ask
(d) cannot counsel client to engage in or assist client in committing crimes or
fraud, but can discuss legal consequences of proposed course of conduct
ex) you can tell them what will happen if they shred the documents, but
you cant help them shred the documents
1.3 Diligence
-act with reasonable diligence and promptness
*IF YOU CANT-WITHDRAW 1.16
-any delay can have adverse effects on the client, whether substantive or not
1.4 Communication
(a) promptly and reasonably inform client about decisions, circumstances, or
limitations relevant to their case
(b) in a way the client can understand and participate in his or her legal matter
avoid issues: delegate authority to communicate to clients to staff, define
reasonable and promptly to let the client know when to expect communication, quick
update, set specific time to respond, go over timeline at the beginning of the relationship
**be proactive: send emails, phone calls, etc.

!1

*comment: some instances where a lawyer may be justified in delaying info if

client would be likely to react imprudently to immediate communication
-DELAY DOES NOT MEAN COMPLETELY WITHHOLD
1.14 diminished capacity
(a) try to maintain normal atty-client relationship to the best extent possible
(b) protective action
1.5 Fees
(a) reasonable fees
-list of factors
(b) communicate scope and fees, preferably in writing
(c) can charge contingent fees
-set out in writing method in which fee will be determined and what client
will be liable for (investigative fees, etc.)
(d) EXCEPT in domestic matters or criminal case
*contingent fees create a potential conflict of interest
-youre invested in the outcome, more likely to want to settle
1.6 Confidential information
*covers anything related to representation except for what is generally known
-larger in scope than attorney-client privilege >deals only with potential
evidence
*helps establish the trust vital to representation
-client has to be comfortable enough to tell you everything relevant
(a) cannot reveal info relating to the representation of a client UNLESS the client gives
informed consent or the disclosure is impliedly authorized (necessary for atty to cary out
duties)
(b) DISCRETIONARY DISCLOSURES
(1) to prevent reasonably certain death or substantial bodily harm
(2) and (3) prevent substantial financial or property damage to another resulting
from crime or fraud in furtherance of which the client has used or is using the attys services
(4) to secure legal advice about compliance with rules (BE GENERAL)
(7) to detect and resolve conflicts of interest arising from the lawyers change in
employment
(c) have to make reasonable efforts to prevent the inadvertent or unauthorized disclosure
of confidential information
1.7 Conflict of Interest: Current clients
*preserving loyalty to the client
(a)(1)and (2) concurrent conflict of interest if 1. representation of one client will be
directly adverse to another or 2. there is a significant risk that the rep of one or more clients will
!2

be materially limited by the lawyers responsibility to another client, a former client, or a third
person or by a personal interest of the lawyer
(b) you can still rep if conflict of interest if:
1. atty reasonably believes he can provide competent and diligent rep to each
2. rep not against law
3. rep does not involve assertion of a claim by one client against another client
repd by the same lawyer in the same litigation in front of same tribunal AND
(can rep. inconsistent positions in different tribunals EXCEPT if there is a
serious risk that action taken on behalf of one client will seriously weaken the lawyers
effectiveness in reping another client, like, setting unfavorable precedent)
4. each client gives informed consent IN WRITING
1.8 specific conflict of interest rules
(a) business transaction rule - protects clients from overreaching attys
(b) no gifts unless family or really close familial relationship
(e) cant give financial help to a client in connection with pending litigation
EXCEPT 1. can advance court costs to be paid back or
2. for an indigent client
(f) cannot except payment for reping client from anyone but the client (5.4 c)
UNLESS
1. client gives informed consent and
2. no interference with lawyers professional judgement or independence and
3. info relating to client remains protected under 1.6
(j) no sex with client unless consensual relationship existed before start of representation
1.9 Duties to Former Clients
*continuation of duty of loyalty
(a) you cannot rep against a former client in a case related to that which you red the
former client in originally UNLESS former client gives informed consent in writing
-involves same transaction or legal dispute or if there is an otherwise substantial
risk that confidential factual info as would have normally been obtained in the prior
representation would materially advance the new clients position in a subsequent matter
ex) atty who repd X in another matter and learned expensive private financial
info about him cannot rep his wife against him in a divorce
1.10 imputation of conflict of interest (If any one of us is out, were ALL OUT)
(a) everyone in a firm cannot knowingly represent a client when any one of them
practicing alone would be prohibited under 1.7 (conflict of interest) or 1.9 (former clients)
UNLESS
1) prohibition is based on personal interest of Dqd lawyer or
2. based on 1.9 and DQd lawyer timely screened out of rep, written notice
promptly given to affected client, and certifications of screening are supplied to client at
reasonable intervals
!3

(c) DQ can be waived by client as long as 1.7 (b) factors are met
1.11 conflicts of interest for former and current gov attorneys
(a) (2) former gov lawyer only DQd from matters he participated in personally and
substantially UNLESS given informed consent from gov to participate
(b) everyone in firm ALSO DQd UNLESS
1. atty promplty screened out and
2. written notice given to appropriate gov agency to confirm rule compliance
(e) definition of matter
1.12 former judge, arbitrator, or 3P neutral
(a) cannot rep anyone in connection with a matter in which lawyer participated personally
and substantially as judge or other adjudicative officer or law clerk or as arbitrator, mediator, or
3P neutral
UNLESS all parties give informed consent in writing
1.13 Organization as a client
(a) you rep the company acting through its authorized constituents
(b) if you know someone is doing something likely to result in substantial injury to the
organization, then atty shall proceed as is reasonably necessary in the best interest of org.
-ex) reporting to a higher internal authority (mentioned ^)
*may want to limit, what, how much, or when you report
-dont want to cause substantial damage to co. yourself by whistle blowing
(c) despite best efforts, if highest authority fails to adress issue in timely manner on
action that is clearly a violation of law and the lawyer reasonably believes the violation is
reasonably certain to result in substantial injury to the org.
-lawyer may reveal info relating to rep whether or not 1.6 permits disclosure but
only to extent necessary to prevent substantial injury to org.
**engagement letter: firm reps the company, not you personally, consult with your own lawyer
on issues related to you
-Ill only be speaking with you to info about my client, the company

1.15 Safekeeping property

Have 3 accounts: trust account (for entrusted funds), business account (holds money
associated with running the practice), and a personal account (personal $)
(a) no commingling funds (mixing your own funds with clients funds)
-not expressly stated
-clients funds lose their identity, presumed to be yours
-creditors can access it
*misappropriation- unauthorized use of entrusted funds by a lawyer
!4

-includes stealing and unauthorized temporary use by a lawyer whether he

gains by the use or not
**PROVE IT: bank record analysis: just show the amount fell below the amount to be held in
trust at any point
(b) you can deposit your own funds in a client trust account for sole purpose of paying
bank fees, only in amount reqd (permissive commingling)
(d) promptly notify and deliver to client after receiving property in which they have an
interest
-dont tell them about it until the check clears into your bank account
(e) dispute over property: keep it separate until the issue is resolved
*applies to advance flat rate fees: keep it in client trust account until work is completed
-if client turns around and wants a refund = misappropriation + 1.16 violations
1.16 Declining or termination of rep
(a) mandatory withdrawal if
1. rep = violation of rules or law
2.lawyers physical or mental condition materially impairs ability to rep
(competence)
3. lawyer fired
(b) Discretionary withdrawal
1. can be done without material adverse affects on client
2. lawyer persists in a course of action involving lawyers services the lawyer
reasonably believes is criminal or fraudulent
*noisy withdrawal: you know client will lie on stand
1. ask for recess 2. remonstrate (try to talk them out of it) 3. resign 4. rectify (they get
new lawyer, lie on stand, you know about it) 5. reveal (you can tell)
4. client insists on course of action lawyer finds repugnant, personal disagreement
5. client does not fulfill obligations to lawyer regarding his services and has been
given multiple warnings
6. unreasonable financial burden on lawyer
7*any good cause for withdrawal
ex) client threatens you, etc.
(c) have to give notice of withdrawal to court
-donest have to be a ton we have irreconcilable differences
(d) give notice to client, give time to find new counsel, refund advanced pay, surrender
papers, etc. (advance clients best interest)
1.18 duty to prospective client
(a) a person who consults with atty about possibility of forming relationship is
prospective
(b) follow 1.6 confidentiality still
(c) loyalty
!5

-cant rep someone else in case involving prospect in same matter in lawyer
received info from prospect that could be significantly harmful to that person in the matter
UNLESS
(d) exceptions

Counselor Specific Rules

2.1 Counselor
-exercise independent and professional judgement and give honest advice
-consider law, moral, economic, social, and political factors

Advocate Rules
duties to tribunal often trump duties to client
3.1 Meritorious claims and contentions
-cannot bring or defend a proceeding unless there is a basis in law and fact for doing so
that is not frivolous
*has to be based on some sort of good faith basis
3.2 expediting litigation
-reasonable efforts to expedite proceedings
3.3 Candor toward the tribunal
(a)(1)*dont lie to the court
(2) do not fail to disclose legal authority known lawyer as directly adverse to the
position of the client
(3) cant offer evidence you know to be false
-if theres only a reasonable belief of falsity, you can still offer it
or choose not to
*cannot refuse to offer testimony of client in criminal matter even if reasonable
belief of falsity > can noisy withdraw
3.4 fairness to opposing party
(a) cant destroy or block access to evidence
(b) cant bribe anyone to testify falsely
(d) no frivolous discovery requests or fail to comply with proper discovery request
(e) AT TRIAL
dont allude to things of which you have no reasonable belief are relevant, assert
personal knowledge of facts in issue, state a personal opinion as to justness of a cause, credibility
of witness, etc.
ex) calling people animals, etc.
(f) dont ask people to withhold info
!6

3.5 impartiality and decorum of tribunal

(a) dont seek to influence judge or jurors
(b) cant talk with court people outside of court
(c) you can talk to jurors after discharge UNLESS
1. comm prohibited by law or court order
2. juror has made known to the lawyer a desire not to communicate
3. communication involves misrepresentation, coercion, duress, harassment, etc.
3.6 Trial Publicity
(a) lawyer (AND their associates 3.6(d)) who was or is participant in investigation or
litigation shall not make a public statement outside of court the lawyer knows or reasonably
should know will have a substantial likelihood of materially prejudicing the trial
(b) list of stuff you CAN talk about
ex) charge, identities of people involved, info on public record, litigation
schedule, etc
(c) you can respond to other public statements made that may prejudice your client
-limited to info nec. to mitigate the adverse publicity
*prejudicial material 107-108
-character, credibility, reputation, or criminal record, possibility of plea deals, existence
or contents of confessions, refusal or failure to make a statement, etc,
3.7 lawyer as W
*may confuse a jury if lawyer advocates in case in which he is also a W
(a) can't act as advocate in trial in which you are likely to be a necessary W (someone
with crucial info that must be divulged) UNLESS
1. tesimonry relates to uncontested issue
ex) testifying to medical condition in defamation case
2. test relates to nature and value of legal services rendered
3. DQ of lawyer would be a substantial hardship on client
3.8 special responsibilities of a prosecutor
(a) don not prosecute a claim P knows is not supported by probable cause
(d) make timely disclosure to D of all info or evidence known to prosecutor that tends to
negate guilt of accused or mitigate the offense
(g) when a P knows of new, credible evidence creating a reasonable likelihood that a
convicted D did not commit an offense:
2. in Ps JX
i. disclose to D
ii.undertake further investigation to determine whether D was falsely
convicted
(h) P knows of clear and convincing evidence convicted D falsely convicted, take steps
to remedy
!7

Transactions with Persons Other than Clients

4.1 truthfulness in statements to others
-cant lie to 3Ps or fail to disclose facts when disclosure is nec. to avoid assisting a
criminal or fraudulent act UNLESS prohibited by 1.6
4.2 comm. with persons represented by counsel
*talk to THEIR LAWYER
*have to have actual knowledge of representation
-can be inferred from circs
-cannot talk to other parties with lawyers except when the other lawyer has consented or
you are authorized to do so by law or court order
4.3 dealing with unrepresented persons
* I rep. X, I cant help you, you need to get a lawyer
*avoid misassumptions about your role and who you represent
-correct misunderstandings about the lawyers role to unrepresented parties
-cant give legal advice other than to get a lawyer
4.4 respect for rights of third persons
a) lawyer cannot use means that have no substantial purpose other than to embarrass,
delay, or burden a third person
b)if you receive a document you know or reasonably should know you were not meant to
receive, you must promptly notify the sender
-if you have to return or delete the doc is of a matter of law beyond the scope of the rules
**you can scrub for metadata in correctly received docs, at least
-their fault if they dont scrub it

Law Firms and Associations

5.1 responsibilities of partners and supervisors
(a) must make reasonable efforts to ensure firm has effective measures in place assuring
all lawyers conform ro rules
(c) a lawyer is responsible for another lawyers violations if
1. he orders, or with knowledge of the specific conduct, ratifies the conduct or
2. the lawyer is a partner or has comparable managerial authority or has direct
supervision over another atty and knows of the conduct at the time when its consequences could
have been avoided or mitigated but fails to take reasonable remedial action
!8

*establish internal policies and procedures - designed to detect and resolve conflicts of interest
-CLEs, mentor training for inexperienced attys, tickler systems, accounting for client
funds
5.2 responsibilities of a subordinate lawyer
(a) bound by rules even when acting under anothers direction
(b) NO VIOLATION if sub. lawyer acts in accordance with a supervising lawyers
reasonable resolution of an arguable question of professional duty
ex) a question arises about a possible conflict of interest pertaining to two clients
-supervisor atty makes reasonable resolution
-sub. atty not liable for acting under that reasonable resolution to a cloudy situation
5.3 responsibilities regarding non lawyer assistance
(a) and (b) also responsible for making sure non lawyers dont violate legal ethics
-law clerks, interns, secretaries, receptionists, paralegal, office manager, notary, copier,
HR staff, etc.
(c) lawyer is responsible for acts of non lawyers if
1. lawyers orders or ratifies the conduct or
2. supervisor and knows about conduct in time to stop or mitigate consequences
but does not do so
5.4 professional independence
*ensure pro. judgement is not compromised
(a) sharing legal fees with a nonlwayer
(b) cant form partnerships with non lawyers if any purpose of the partnership is the
practice of law
(c) cannot let anyone besides the client direct your professional judgement
ex) people paying, etc.
5.5 unauthorized practice of law
(b) if not authorized to practice in JX, cannot
1. establish office or other systematic and continuous presence in the jx for the
practice of law or
2. hold out to public that you are admitted to practice in Jx
(c) CAN provide temporary services in another jx if 4 ways

PUBLIC SERVICE
6.1 pro bono service
-everyone has responsibility to provide pro bono work
-TRY to to 50 hours/year
*DONT HAVE TO DO PRO BONO WORK
!9

6.2 accepting appointments

-shouldn't seek to avoid appointment by a court to represent someone except for good
cause such as (a) (b) and (c)
6.3 membership in legal service orgs
-lawyer can serve as director, officer, or member
-cant participate in decision of org if
1. it would be incompatible with lawyers obligations to another client under 1.7 or
2. it could have a material adverse affect on the representation of the client
6.4 law reform activities affecting client interests
-when a lawyer in an organization involved in reform or administration of law knows the
interests of a client may be materially benefitted by a decision in which the lawyer participates,
the lawyer shall disclose that fact but need not identify the client

Information about legal services

7.1 communications concerning a lawyers services
-no false or misleading statements about services
-it is false or misleading if it contains a material misrepresentation of fact or law
or omits a fact nec. to make the statement as a whole not misleading
*dont want to create unjustified exception of results
7.2 Advertising
(a) can advertise through written, recorded, or electronic comm., including public media
(b) cannot offer anything other than the reasonable cost of adverting to whoever
advertises for you
4. dont have to pay others to refer you clients as long as there is a reciprocal,
nonexclusive referral agreement and the client is informed about the agreement
CANT pay others to recommend your services, pay others to channel work to you, have
exclusive reciprocal referral agreements, or mislead consumers that your group is associated with
a gov agency
CAN advertise: lawyers name, firm name, address, email address, website, phone number and
the kinds of service a lawyer will take, language ability, fee determination, etc.

!10

7.3 Solicitation
(a) cannot actively solicite, only passively
-no in-person, live telephone, or real time electronic solicitation
UNLESS person
1. is a lawyer 2. family, friend, former client, etc.
(c) any solicitation material must be marked advertising material on outside of
envelope, at beginning and end of any recordings
Bates v AZ state bar (USSC) - stae may place reasonable restrictions on time, place, and manner
of advertising
DISASTERS:
FL Bar v Went For It (USSC) - upheld FL state bar 30 day blackout period after an accident
during which an atty could not directly or indirectly solicit accident victims or their families
-client privacy = substantial gov. interest
7.4 comm. of field of practice or specialization
(a) can say he does or does not practice in particular field of law
(d) lawyer shall not state or imply that he is certified as a specialist in a particular field of
law unless
1. he has been certified as a specialist by an org approved by state authority and
2. name and org clearly IDd in communication
7.5 firm name and letterheads
(a) no false or misleading names
ex) Never Lose Law Group
-cannot associate yourself with gov, public, or charitable agency
ex) bar association law group
(b) firm with offices in more than one JX
-have to identify where each office is licensed to practice
(c) cant state or imply you practice in a partnership or group unless you actually do
-no law group or LLC unless you actually are

Maintaining the integrity of the profession

8.1 bar admission and disciplinary matters
*dont lie or withhold info, correct misinformation
-applicant to bar shall not
a) knowingly lie about material of fact
b) fail to disclose a fact nec. to correct a misapprehension
!11

8.3 reporting prof. misconduct

*SNITCH RULE
(a) lawyer who knows (more than suspicion, less than certainty) that another lawyer has
committed violation of rules that raises a substantial question as to lawyers honesty,
trustworthiness, or fitness as a lawyer MUST inform the appropriate prof. authority (highest ct
in JX or atty regulatory body)
**fraud, deceit, dishonesty, misrepresentation
8.4 misconduct
it is prof misconduct for lawyer to:
a) violate or attempt to violate rules, knowingly assist or induce another to do so, or do so
through acts of another
b) commit a criminal act that reflects adversely on lawyers trustworthiness, honestly, and
fitness as a lawyer
c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation
**USUALLY LOSE YOUR LICENSE
d) engage in conduct prejudicial to admin of justice
ex) forging docs, delay filing, causing disruptions in ct, etc.
e) state or imply ability to influence improperly a gov agency or official to achieve results
**moral turpitude
-intentionally acting dishonest for personal gain
-lawyer only answerable for acts relevant to practice of law
-violence, dishonesty, breach of trust, serious interference with admin of justice
8.5 disciplinary authority
(a) lawyer subject to disciplinary authority in the JX where he practices, regardless of
where conduct occurred
-also if he provides or offers to provide services here if not barred here
*lawyer may be subject to discipline in more than one JX for same conduct

!12