MODEL RULES

Legal Profession (Background) Rule 8.1 Bar Admission and Disciplinary Matters: Applicants for Bar admission and Lawyers in disciplinary actions (a): CANNOT knowingly make a false statement (b): CANNOT fail to disclose information or fail to respond to requests for information Lawyer Competence; Disciplinary Rules on Lawyer Misconduct Rule 1.1 Competence: Lawyers MUST provide competent representation to clients. Requires REASONABLE legal knowledge, skill, thoroughness and preparation. Exercise skill and knowledge possessed by ordinary or average attorneys (Rest 52 competence and diligence) Fiduciary duties (1) Maintain client confidences, (2) Protect clients property, (3) Loyalty to client (no conflicts), (4) Honesty in dealing w/client (full disclosure CANNOT use info or authority to the disadvantage of client) (Rest. 16(3)) Unless the lawyer has made some sort of SPECIAL REPRESENTATION to the client, there is no specialist requirement. (Rest 52 if lawyers claim to be superior then they will be held to that for liability purposes) Lawyers who are NOT experts can become competent through study etc. Legal malpractice requires that the client be harmed and that there be a causal relationship (But For malpractice) A violation of the Ethics rules DOES NOT create liability per se Rule 1.3 Diligence: A lawyer MUST act w/reasonable diligence, promptness and zeal in representing a client Rule 1.4 Communication: (a) Lawyers must keep clients reasonably informed, (b) Lawyers shall explain matters to extent necessary to allow reasonable informed decisions by the client May not withhold information to serve the lawyers or a 3rd partys interests over the clients Rule 1.6 Maintain Confidentiality of Lawyer-Client Information (below) Rule 1.8(b) Specific Confidentiality: lawyer shall not use information relating to the representation TO DISADVANTAGE a client, unless written consent Rule 8.3 Reporting Misconduct: (a) Lawyers MUST report other lawyers for misconduct/violations, (b) Lawyer must report Judges, (c) 1.6 info exempted Rule 8.4 Misconduct: Lawyers cannot (a) violate rules or induce another to do so, (b) commit criminal act, (c) dishonesty, fraud or deceit, (d) conduct prejudicial to justice, (e) state/imply that lawyer can improperly influence agency/official (f) assist judge in improper behavior Rule 8.5 Disciplinary Jurisdiction: Jurisdiction where lawyer is licensed also the jurisdiction where the court sits or where lawyer principally practices Fields of Practice and Specialization Rule 7.4 Communications of Fields of Practice: Lawyers CANNOT state that they are specialists UNLESS patent or admiralty OK (private certification w/disclaimer) if the jurisdiction officially adopts a particular practice as a specialty Lawyer Client Relationship: Scope and Termination Rule 1.2 Scope of Representation: (a) Lawyers MUST abide by clients wishes regarding scope of representation Lawyers should LIMIT the scope of representation in order to avoid liability/conflict BEFORE representation Client agreements that are post engagement are subject to higher scrutiny difficult to change agreement midstream If client-lawyer drift, representation will be based on facts of relationship Rule 3.1 Expediting Litigation: Lawyer MUST speed litigation if consistent w/interests of client Rule 1.16 Declining or Terminating Representation: Lawyers can withdraw when (1) representation involves violations of law, (2) Disabled Lawyers ability to represent is materially impaired, (3) Client fails to fulfill obligations and has been given warning May optionally withdraw (1) if will not have material adverse effect on clients interests, (2) client misused lawyers services, (3) client persists in a course of action lawyer reasonably believes to be criminal or fraudulent, or is repugnant to lawyer, or (4) if client does not comply with services agreement Legal Fees Rule 1.5 Fees: Legal fees must be reasonable based on (1) time spent, (2) forgone income, (3) custom, (4) result, (5) relationship, etc Fee agreements must be negotiated before the representation begins need not be in writing High fees are allowed Contingent fees not allowed when (1) representing a in a criminal case, and (2) in a domestic dispute outcome Rule 1.5(e): Lawyers CAN divide their fees between lawyers if (1) correct division, (2) client consent, and (3) reasonable total feeMust be based on lawyers actual work NO referral fee Rule 1.8(i): No interest in the clients claim, EXCEPT (1) bond to secure fee, (2) contingent fee swallows up the rule Rule 1.8(a): Limits lawyers ability to enter business transactions (take stock/engage in deals/taking other fees w/clients) Lawyers must (1) be fair, (2) give opportunity to consult outside counsel, and (3) get informed consent in writing

Rule 1.15 Safekeeping Property/Funds: Lawyers must hold trust/bond property separate from personal property unless trust account servicing or fee protection Lawyer as Evaluator for Third Persons - Opinions Rule 2.3 Evaluation for use by 3rd Parties: Lawyers can evaluate the client for use by 3rd party IF (1) Compatible w/purpose of the representation and (2) Consent by the client Still subject to 1.6 Lawyers MUST inform the client of the potential ramifications of their opinion fiduciary duty to 3rd Party if invites reliance upon the legal opinion (Rest) Advising Clients Where Questionable Proposed Conduct Rule 1.2(d)(e): Lawyers CANNOT advise client (d) in committing crime/fraud, or (e) must inform client of inability to assist/advise Lawyers CAN advise about would be actions legality but cannot promote that action Fraud per 1.2 is defined broadly as ANY intention to deceive can be unclear when fraudulent Rule 1.14 Client with Diminished Capacity: Lawyer must provide normal client relationship, even if disabled or (b) can appoint guardian Rule 1.16: If client gives lawyers incorrect info (lies) Lawyer can withdraw if (1) no material adverse effect to client (no reason necessary), if NOT (2) lawyer must adhere to specific reasons where withdrawal is allowed See 1.16(b)4 Rule 4.1 Truth in Statements to Others: (a) Lawyers must tell truth to 3rd Parties, (b) Lawyers must disclose to avoid assisting crime/fraud (but see Rule 1.6) Rule 1.6(b)(2): Allows lawyers to discuss situations w/other lawyers outside of law firms as advisor but discloses info Lawyer Prohibited Transactions Rule 1.8(h) Prohibited Transactions: Lawyers cannot agree w/clients to limit malpractice liability unless permitted by law and client has separate representation in agreement NO states permit by law these agreements Rule 1.8(a) Prohibited Transactions/Conflicts of Interest: Lawyers cannot engage w/clients where they would acquire an interest adverse to the client (conflict of interest), UNLESS (1): Terms are fair and reasonable to client and are fully disclosed in writing (2): Client has reasonable opportunity to seek advice of outside counsel (3): Client consents in writing Confidentiality in the Lawyer-Client Relationship Attorney-Client Privilege: Grounded in Rules of Evidence NOT Legal Ethics Legal advice MUST sought from a lawyer in his capacity as a lawyer. Ex if a neighbor asks for your opinion, and your opinion is informed by legal training whether or not this is in your capacity as a lawyer, depends on the context. (May/May Not be in your role as a lawyer). Communications that are made in confidence, with confidential expectation (implication is that everybody who participates in the communication must be a privileged person) o Privileged PersonClient, Lawyer, or Agent of either. CANNOT be (Wife, mother, husband not part of ACP) o Depends on jurisdiction: control group (Upjohn) vs. privileged person The privilege must be compelled by a proceeding or court order. o Privilege applies during a legal proceeding BUT lawyers ethical duty remains to argue against any order compelling client disclosure. Work Product: Work product doctrine insulates from discovery but NOT an evidentiary privilege. Ordinary WP: Notes you make when talking to client the reason you took notes is b/c might be relevant if client got sued. Opinion WP: Opinion in addition to facts Also includes, mental impressions, evaluations of witnesses (gets more protection) Rule 1.6 Confidentiality of Info: Lawyers MUST not reveal confidential info relating to representation unless client consents, UNLESS, (1) To prevent a future criminal or fraudulent act, (2) to defend himself in a malpractice claim by client, Model Rules: Lawyer shall NOT (1) Reveal or Use to clients disadvantage, (2) Info relating to Representation, (3) client identity UNLESS, (a) Implied authorization, (b) Consent of client, (c) Criminal act must be imminent death/serious injury, (d) lawyer protection from suits Rule 1.8(b): Lawyers shall NOT use client info to the disadvantage of the client, unless client consents or 1.6 (duty of loyalty breach) DOES NOT PROHIBIT use of information that does not disadvantage client Rule 1.9(c): Lawyers shall NOT use FORMER CLIENT info to their disadvantage, unless 1.6 or info is GENERALLY KNOWN

Rule 1.18(b): If prospective client gives significantly harmful information that could be used, the lawyer may not represent a client with interests adverse to those of the prospective client in the same or substantially related matter Additional Confidentiality for Lawyer-Organizational Client Relationship Rule 1.2(b): Lawyers representation DOES NOT constitute an endorsement of clients views/activities Rule 1.13 Organization as Client: The client itself is the organization but rules cover Agents of the organization (Corp, etc) The A-C privilege covers agents of the Corp Mgmt controls the privilege Control-Group or Subject-Matter tests If the Corp doesnt fix problem lawyer may resign per 1.16 resignation may be MANDATORY per 1.2(d) and 1.1(a) Lawyer MAY disclose per 1.6 ONLY IF imminent harm and criminal act Rule 1.13(d): Some employees of a client may NOT be covered b/c NOT THE CLIENT Lawyer must inform/disclose Rule 6.3 Legal Serv. Org.: Lawyers can serve as mgmt of legal services organization w/adverse position to client, BUT cannot knowingly participate in org decisions IF (a) decision would violate Rule 1.7, (b) decision would have adverse effect on client (of org) Rule 6.4 Law Reform Org: Lawyers can serve on Law Reform Committee, if disclose the potential client benefit to committee Duty of Loyalty; Conflicts of Interest Among Current Clients Rule 1.7 Conflicts of Interest: Lawyers cannot engage w/clients who are adverse to other clients, UNLESS (1) lawyer believes there is no conflict AND (2) informed consent in writing 1.7(a)(1): Direct Adversity Conflicts Represent X in deal 1, Represent Y alimony claim 2 against X (consent of both clients) 1.7(a)(2): Material Limitation Conflicts significant risk of material limited by lawyers responsibilities or personal interests. Represent Y in claim 1, Lawyer sues wife to reclaim alimony fee (1 client consent) 1.7(b): for consent, must be able to provide competent and diligent representation reasonable lawyer standard Consent MUST BE informed (1) explain conflict, (2) disclose adverse effects, (3) why consent should be given, (4) alternatives Lawyer can NEVER (even w/consent) represent BOTH parties to a deal or to litigation ASK: is there a likelihood that a difference in interests will eventually occur, and if so, whether that will materially interfere with a lawyers ability to provide independent professional judgments on behalf of his client Hot potato doctrine: Lawyers cannot drop one client in favor of a more lucrative client. Remedies: (1) loss of fees or repayment by lawyer, (2) removal of case, (3) malpractice claims, (4) inflammatory effect on jury Rule 1.10(a) Imputed Disqualification: Firm lawyers CANNOT have conflicts w/other clients of the firm even if not representing personally Rule 1.8(j): no sexual relationship between lawyer and client (unless existed pre-retention) Lawyers and Former Clients Rule 1.9 Conflict of Interest w/Former Client: Lawyer cannot represent new client if 1.9(a): Former clients interests are adverse AND matter is substantially the same, w/o former clients written consent, OR 1.9(b): Lawyer worked w/other firm representing adverse position and potentially received material info protected by 1.6/1.9(c), w/o written consent. 1.9(c): Lawyer CANNOT reveal confidential info obtained via former client AND cannot use that information (except Rule 3.3 Candor rule) ok if GENERALLY KNOWN facts (maybe a former clients confidentiality breach) Duty of Loyalty: Imputation of Conflicts of Interest Rule 1.10(a) Imputed Disqualification: (a) Disqualification of Private lawyers b/c another lawyer in firm has conflict if 1 lawyer, the all lawyers in firmbased on Rule 1.7 or 1.9 (former client) conflictsunless just personal interest (spouse at competing firm) and no significant risk of material limitation of representation Rule 1.10(b): If lawyer leaves firm firm can represent adverse position to former client UNLESS (1) matter is substantially related or (2) a lawyer remaining in the firm has material info protected by 1.6 or 1.9 may be waived by client with written informed consent (per Rule 1.7) Rule 1.11: Disqualification of Government Lawyers Rule 1.12: Disqualification of Judges, Magistrates, Clerks, etc. Rule 1.18(c): Imputation can be avoided with prospective clients where Rule 1.10 is met, there is timely screening, and prospective and current clients give written informed consent Lawyers and Prospective Clients Rule 1.18: Recognizes that firms can Screen-Off lawyers can go to another firm so as to be no conflict Prospective client must reasonably believe discussions are meant to form a representation relationship, or not protected 1.18(b): may not use or reveal information learned in the consultation, except as allowed by Rule 1.9

1.18(c): Lawyer is prohibited from representing a client with interests adverse to those of the prospective client in the same or substantially related matter ONLY if prospective client gives significantly harmful information that could be usedimputed 1.18(d): Imputation is voided if (a) prospective and current clients give written consent, or (b) reasonable measures taken by disqualified lawyer is timely screened, no fees from representation Rule 1.9: confidentiality does not apply to prospective client information that resembles exempted former client information GENERALLY KNOWN Interference/Contact with Represented and Unrepresented Persons: No Contact Rule Rule 4.2 Communication w/Person Represented by Counsel: Lawyer CANNOT communicate w/person represented by counsel about the subject of the representation Unless permission is granted by that partys counsel or by legal/court order Cannot rely on the rule as written See Case Law Former employees are fair game If the persons acts will be imputed to the client (i.e. speeding truck driver employed by Corp) CANNOT talk to them CAN talk to witnesses even if employed by Corp, but CANNOT talk to the tortfeasor Must give interviewee notice that you are representation protects from bad statements to other sides lawyers Lawyers CAN tell their clients to talk to other employees (even if represented) BUT cannot script TESTERS to get information are not illegal if they pose as members of the publicTypically in criminal context Rule 3.8 Special Duties of Prosecutor: advocate + minister of justice. Probable cause to prosecuterights of the accused evidence that will mitigate offense must be disclosed. Rule 4.1 Truthfulness in Statements to Others: overarching behavior rule. Rule 4.3 Dealing w/Unrepresented Person: Cannot negotiate w/Pro Se defendant w/o advising them to get counsel Rule 4.4 Respect for rights of 3rd Party: Lawyers cannot use tactics only to embarrass, delay or burden 3rd Party (i.e. witness) prompt notification of wrong receipt of document The Ethics of Negotiation in Transactional Matters Rule 4.1 Truthfulness in Statements to Others: Lawyer cannot lie to 3rd Party (or opposing counsel) while negotiating No affirmative duty to disclose key facts can misrepresent willingness of client to settle 4.1(b) requires lawyer to disclose if assisting client in a fraud (per Rule 1.2(d))includes lies and misrepresentations but subordinate to 1.6 Must disclose: Policy Limits, Death, but not Statutes of Limitations Cannot rely on prior counsel fraud Rule 8.4(c) Misconduct: Lawyers cannot engage in misconduct, fraud 8.4(a) prohibits fraud indirectly via 3rd Party Litigation Duties: Lawyers Moral Responsibility Rule 3.3 Candor Toward the Tribunal: Lawyers CANNOT make, or fail to correct, false statements to a tribunal (not mediator) 3.3(a): (1) lawyers to make false statements (fail to disclose evidence) ONLY IF he REASONABLY thought it was false, (2)must disclose directly adverse law if not raised by opposing counsel (3) may refuse to offer false evidence unless criminal s 3.3(b): remedial measures to prevent crime or fraud 3.3(c): TRUMPS CONFIDENTIALITY RULES; true disclosure to a court EVEN IF it is protected by Rule 1.6 Rule 3.1 Meritorious Claims and Contentions: Lawyers MUST bring good faith claims NO frivolous lawsuits Rule 3.2 Expediting Litigation: Lawyers should expedite litigation to the extent consistent w/interests of the client Rule 3.4 Fairness to Opposing Party: Regulates Lawyers in a Trial Setting Usually duplicated in Court rules 3.4(c): prohibits lawyers from stating personal beliefs as to credibility/truth of witnesses no persuasion of Court/Juries Rule 3.5 Impartiality and Decorum of the Tribunal: Lawyers are prohibited from (a) influencing judges/juries, (b) ex parte communications w/judges/juries or (3) conduct intended to disrupt a tribunal Rule 8.4(d) Misconduct NO conduct prejudicial to the administration of justice Rule 4.4 Misdirected document w/confidential info regarding matter (a) notify sender, (b) do NOT read it, (b) destroy or return it, (c) do NOT tell the client about the info, (d) do NOT try to use it Client Fraud; Disclosure and Withdrawal Rule 1.2(d) Lawyers CANNOT counsel/assist clients to engage in fraud/crime Includes assisting clients in fraud via legal opinion/evaluation for 3rd Party BUT Lawyers need NOT respond to letter by auditors UNLESS probable almost never probable Rule 1.6: Lawyers MUST give evaluations/opinions but STILL ADHERE to Rule 1.6 confidentiality 1.6(b)(3): Lawyers can disclose to protect themselves from suit by client Rule 1.13: The client is the CORP must disclose fraud/crime to the highest level of the CORPotherwise withdraw per 1.16 Rule 4.1: Lawyers CANNOT make false statements to 3rd Pty (via legal opinions) NO falsified minutes cannot guide clients

Rule 3.3 Obligation of candor to the tribunal Rule 8.4 Misconduct Rule 1.16(b): Withdrawal for failure of client to cease from or use lawyers services to perpetuatefraudulent or criminal activity Intended Client Perjury Rule 3.3: OK for a Lawyer to disclose that client was to perjure or withdraw from case under Rule 1.16(b) Lawyer is required to disclose to tribunal Trial Rules Rule: 3.3 Candor to the Tribunal Rule 3.4 Fairness to Opposing Counsel and Party prevents irrelevant argumentunlawful obstruction to evidencefalse evidenceprohibits frivolity Rule 3.5 Impartiality and Decorum of Tribunalno ex parte communicationsno illicit influencing of court officers or jurors Rule 3.6 Trial Publicityspecific statements allowed during trialimputed to other firm lawyers Rule 3.7 Lawyer as Witness may not be witness for client unless (1) related to uncontested issue, (2) related to nature of legal services rendered, (3) substantial hardship to client would result. OK if another lawyer in the firm is a witness no violation of 1.7 or 1.9 Rule 3.8 Special Rules for Prosecutor Rule 3.9 Advocate in Non-Adjudicative Proceedings hearing in front of a governmental agency or legislative body. Law Firm and Legal Association Regulation Rule 5.1 Responsibility of Partner or Supervisor: Partners are liable for other attys if have direct supervisory authority, liable to ensure they abide w/Model Rules Potential vicarious liability for partner Personal disciplinary responsibility for another lawyer along with Rule 8.4(a) Duty to mitigate consequences of liable conduct of other attys in the firm Rule 5.2 Responsibilities of a Subordinate Lawyer: NO good soldier defenseif should have known BUT if in accordance with supervising lawyers reasonable resolution, then OK Rule 5.3 Responsibilities of Admins, etc: If a lawyer directs an admin/paralegal to improper conduct the lawyer is responsible Rule 5.6 Restrictions on Right to Practice: NO K can limit an attorneys ability to practice in the future (non-compete agreement) CANNOT K to settle w/opposing lawyer NOT bringing more claims CANNOT even propose to limit counsels ability to bring future (unrelated) claims Rule 5.4 Lawyer Independence: basically, from non-lawyer interference in legal judgment no fee-sharing with non-lawyer, no legal service partnership with non-lawyer Rule 5.7 Responsibilities re: Law Related Services: should not interfere in lawyers judgment when providing counsel (if service is lobbying) Rule 1.17 Buying and Selling of Law Practice: The entire practice MUST BE sold cannot cherry pick clients Fees may NOT be increased but lawyers can drop clients if they will NOT pay new lawyers higher fees (contradicts) Unauthorized Practice of Law; Multi-Jurisdictional Practice; Multi-Disciplinary Practice Rule 5.4 Professional Independence of a Lawyer: Lawyers CANNOT share fees w/non-lawyers Rule 5.5 Unauthorized Practice of Law: (1) Unauthorized practice by non-lawyers, (2) Practice by lawyers and non-lawyers, (3) Practice by lawyers outside of their bar jurisdiction Rule 5.7 Responsibilities Regarding Law Related Services: Lawyer must adhere to rules even in other capacities (i.e. lobbying) Rule 8.5 Disciplinary Jurisdiction: Jurisdiction where lawyer is licensed also the jurisdiction where the court sits or where lawyer principally practices Pro Bono Service Rule 6.1 Voluntary Pro Bono: NO required pro bono aspire to do 50 hrs. Rule 6.2 Accepting Appointments: Lawyers should NOT avoid appointments for indigent clientsneed NOT represent if incompetent, conflict, repugnant Rule 6.3 Legal Service Organization: Lawyers can manage legal services organization w/adverse position to client, BUT cannot knowingly participate in org decisions IF (a) conflict under Rule 1.7, (b) decision would have adverse effect on client (of org) Rule 6.4 Law Reform Org: Lawyers can serve on Law Reform Committee, if disclose the potential client benefit to the committee Judicial Ethics Rule 8.2 Judicial and Legal Officials: Lawyers cannot disparage judges candidates for judicial office are subject to judicial code Rule 8.3(b), (c) inform if a judge commits a violation of rules of judicial conduct unless covered by 1.6 confidentiality Advertising and Availability of Legal Services Rule 7.1 Communications Regarding Lawyers Services: No false/misleading statements in communications

Rule 7.2 Advertising: Lawyers may advertise subject to 7.1 and 7.3 testimonials are NOT prohibited NO Kickbacks Rule 7.3 Direct Contact w/Prospective Clients: NO phone or personal solicitation of client w/o family or previous biz relationship Rule 7.5 Firm Names and Letterheads: Firm can use any name (including trade name) not in violation of 7.1