PROFESSIONAL RESPONSIBILITY OUTLINE

SPRING 2024
PROFESSOR ZEHRT

I. INTRODUCTION AND THE REGULATION OF LAWYERS 3

A. GENERALLY 3
B. RULE 8.1 3
C. TERMINOLOGY- RULE 1.0 3
II. LAWYER LIABILITY 3
A. LAWYER MISCONDUCT 3
B. REPORTING MISCONDUCT BY OTHER LAWYERS 4
C. LAWYERS’ RESPONSIBILITY FOR ETHICAL MISCONDUCT OF OTHERS 4
D. CIVIL AND CRIMINAL LIABILITY OF LAWYERS 5
III. DUTY OF CONFIDENTIALITY 7
A. BASIC PRINCIPLES 7
B. GENERAL RULE 7
C. EXCEPTIONS 7
D. ATTORNEY CLIENT PRIVILEGE 9
E. WORK PRODUCT DOCTRINE 10
IV. RELATIONSHIPS BETWEEN LAWYERS AND CLIENTS 11
A. FORMATION 11
B. DUTY OF COMPETENCE 12
C. SCOPE OF REPRESENTATION 13
D. DUTY OF DILIGENCE 14
E. DUTY OF COMMUNICATION 15
F. CANDOR IN COUNSELING 15
G. EVALUATION FOR USE BY THIRD PERSONS 16
H. CLIENTS WITH DIMINISHED CAPACITY 16
I. TERMINATING THE LAWYER CLIENT RELATIONSHIP 17
V. CONFLICTS OF INTEREST 18
A. GENERAL PRINCIPLES 18
B. CURRENT CONFLICTS 18
C. CONFLICTS OF INTEREST– SPECIFIC RULES FOR CURRENT CLIENTS 21
D. REPRESENTING ORGANIZATIONS 23
E. PROSPECTIVE CLIENTS 25
F. FORMER CLIENTS 25
G. IMPUTATION OF FORMER CLIENT CONFLICTS 27
H. LEGAL FEES 28
I. GOVERNMENT LAWYERS 30
J. JUDGES, ARBITRATORS, AND MEDIATORS 31
VI. LAWYERS’ DUTIES TO COURTS 31
A. MERITORIOUS CLAIMS AND CONTENTIONS ONLY 31
B. DUTY TO EXPEDITE LITIGATION 32
C. DUTY OF CANDOR TO THE TRIBUNAL 32
D. DUTY TO PRESERVE IMPARTIALITY AND DECORUM OF THE TRIBUNAL 33
VII. LAWYERS’ DUTIES TO ADVERSARIES AND THIRD PERSONS 34
A. DUTY OF FAIRNESS TO OPPOSING PARTY AND COUNSEL 34
B. COMMUNICATION WITH PERSONS OTHER THAN CLIENTS 35
C. TRIAL PUBLICITY 37
D. TRIAL COUNSEL AS WITNESS 37
E. SPECIAL DUTIES OF A PROSECUTOR 38
F. LAWYER AS ADVOCATE IN LEGISLATIVE AND ADMINISTRATIVE PROCEEDINGS 39
G. LAWYER AS THIRD-PARTY NEUTRAL 39
H. LAWYER AS NEGOTIATOR 40
VIII. UNAUTHORIZED PRACTICE OF LAW 40
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 A. UNAUTHORIZED PRACTICE BY LAWYER 40
B. MULTIJURISDICTIONAL PRACTICE 40
C. UNAUTHORIZED PRACTICE BY NONLAWYERS 41
IX. PROFESSIONAL INDEPENDENCE OF LAWYER 42
A. FEE SPLITTING WITH NONLAWYERS AND TEMPORARY LAWYERS 42
B. PARTNERSHIP WITH NON-LAWYER TO PRACTICE LAW PROHIBITED 43
C. NONLAWYER INVOLVEMENT IN INCORPORATED FIRM OR OTHER ASSOCIATION 43
D. INTERFERENCE WITH LAWYER’S PROFESSIONAL JUDGMENT 43
E. RESTRICTIONS ON RIGHT TO PRACTICE 43
F. SALE OF A LAW PRACTICE 43
G. LAW-RELATED (ANCILLARY) SERVICES 44
X. LAWYERS’ DUTIES TO THE PUBLIC AND THE LEGAL SYSTEM 44
A. COURT APPOINTMENTS 45
B. LIMITED LEGAL SERVICES PROGRAMS 45
C. POLITICAL CONTRIBUTIONS TO OBTAIN GOVERNMENT EMPLOYMENT 46
XI. COMMUNICATIONS ABOUT LEGAL SERVICES 46
A. CONTENT-BASED RULES FOR ADVERTISING AND OTHER COMMUNICATIONS 46
B. RECOMMENDATIONS 47
C. SOLICITATION 49
D. GROUP AND PREPAID LEGAL SERVICE PLANS 50
E. GOVERNMENT REGULATION OF COMMUNICATIONS ABOUT LEGAL SERVICES 50
XII. JUDICIAL ETHICS 51
A. CANON 1: PROMOTION OF JUDICIAL INTEGRITY AND AVOIDANCE OF APPEARANCE OF IMPROPRIETY 51
B. CANON 2: IMPARTIAL, COMPETENT, AND DILIGENT PERFORMANCE OF JUDICIAL DUTIES 51
C. CANON 3: EXTRAJUDICIAL ACTIVITIES 55
D. CANON 4: JUDGES’ POLITICAL AND CAMPAIGN ACTIVITIES 57
E. APPLICATION OF THE CODE OF JUDICIAL CONDUCT 59

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 I. INTRODUCTION AND THE REGULATION OF LAWYERS

A. GENERALLY
1. RPC are the floor, not the ceiling. States can adopt stricter rules, but can also choose not to adopt parts
2. Issued by the ABA, made from committees of lawyers, judges, law professors, etc.
a) Not binding on lawyers- only state ethics rules are, but they serve as a guide to states for what to adopt
B. RULE 8.1
Rule 8.1- Bar Admission and Disciplinary Matters.
An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not:
(a) knowingly make a false statement of material fact; or
(b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful
demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected
by Rule 1.6.
(1) Concerns = patterns of behavior that show dishonesty or disregard for the law
(a) Patterns vs. isolated incidents; recent vs. long ago events; felonies vs. misdemeanors; legal problems reflecting
poor moral character vs. technical violations
2. If you’re going to claim 5A in character and fitness hearing, must state that you are asserting your 5A right
3. If you are investigated, you have the right to retain counsel. Information disclosed to retained counsel receives the same
privilege as in a normal attorney-client relationship and is subject to the duty of confidentiality and cannot be disclosed
C. TERMINOLOGY- RULE 1.0
1. Belief/believed→ The person involved actually supposed the fact in question to be true; may be inferred from circumstances.
2. Fraud→ Conduct that is fraudulent under the substantive/procedural law of the jurisdiction and has a purpose to deceive.
3. Partner→ Member of a partnership, a shareholder in a law firm organized as a professional corporation, or a member of an
association authorized to practice law.
4. Reasonable→ Conduct of a reasonably prudent and competent lawyer.
5. Reasonable belief→ The lawyer believes the matter in question and the circumstances are such that the belief is reasonable.
6. Reasonably should know→ A lawyer of reasonable prudence and competence would ascertain the matter in question.
7. Substantial→ A material matter of clear and weighty importance.
8. Tribunal→ A court, an arbitrator in a binding arbitration proceeding or a legislative body, administrative agency or other body
acting in an adjudicative capacity.
9. A legislative body, administrative agency or other body acts in an adjudicative capacity when a neutral official, after the
presentation of evidence or legal argument by a party or parties, will render a binding legal judgment directly affecting a party's
interests in a particular matter.
10. Writing/written→ A tangible or electronic record of a communication or representation, including handwriting, typewriting,
printing, photostating, photography, audio or videorecording, and electronic communications.
11. Signed writing includes an electronic sound, symbol or process attached to or logically associated with a writing and executed
or adopted by a person with the intent to sign the writing.
12.
II. LAWYER LIABILITY

A. LAWYER MISCONDUCT
Rule 8.4 – Misconduct
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
(e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional
Conduct or other law;
(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law; or
(g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin,
ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This
paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph
does not preclude legitimate advice or advocacy consistent with these Rules.

1. ATTORNEYS CAN BE DISCIPLINED FOR PRIVATE CONDUCT UNRELATED TO THE PRACTICING LAW
a) When an offense indicates a lack of the characteristics relevant to law practice
b) Examples: Offenses involving violence, dishonesty, breach of trust, serious interferences with the administration of justice
c) A pattern of repeated offenses, even minor, can indicate indifference to legal obligation (crazy amount of speeding tickets)

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 2. DISCRIMINATION, HARASSMENT, AND SEXUAL HARASSMENT
a) Discrimination→ harmful verbal or physical conduct that manifests bias or prejudice towards others
b) Harassment→ sexual harassment and derogatory or demeaning verbal or physical conduct
3. CONDUCT RELATED TO THE PRACTICE OF LAW– representing clients; interacting with witnesses, coworkers, court
personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and
participating in bar association, business or social activities in connection with the practice of law
4. EXAMPLES/8.4 IN CONTEXT
a) Committing a criminal act
(1) Just because a lawyer is charged with a crime ≠ misconduct; the crime committed MUST reflect adversely on the
lawyer’s trustworthiness or fitness as an attorney
(a) Examples that = adverse reflections on fitness to practice law→ Fraud; Willful failure to file an income tax return
(b) Examples that ≠ adverse reflections on fitness to practice law→ Adultery; some matters of personal morality
b) Conduct involving dishonesty, fraud, deceit or misrepresentation→ Telling clients I’ll be in court and not showing up
c) Engaging in conduct prejudicial to the administration of justice→ Letting appeals default
d) Attempting an act that, if successful, would violate the RPC
(1) Act does not have to be a crime or constitute criminal activity to amount to misconduct
5. DISCIPLINE FOR CLIENT’S CONDUCT
Rule 1.2(d). A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may
discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the
validity, scope, meaning or application of the law.
a) Knowledge→ Actual knowledge of the fact in question. A person’s knowledge can be inferred from circumstances
b) Lawyers can be discipled for advising clients of illegal activity, even if client doesn’t act on it or actually commit a crime

B. REPORTING MISCONDUCT BY OTHER LAWYERS

Rule 8.3 – Reporting Professional Misconduct
(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that
lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.
(b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's
fitness for office shall inform the appropriate authority.
(c) This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in
an approved lawyers assistance program
1. Substantial = seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware
a) Issues with client funds almost ALWAYS raise a substantial question of honesty/fitness
2. Rule 8.3 is MANDATORY→ knowing and not reporting is misconduct under 8.4(a) (violating another RPC)
3. Analysis to determine whether attorney is obligated to report misconduct:
a) Did the lawyer KNOW?
b) Did the other lawyer’s conduct “raise a substantial question” as to his “honesty, trustworthiness or fitness as a lawyer?”
4. PURPOSE OF THE RAT RULE– Clients report certain types of misconduct (related mostly to failure to respond to phone
calls and the amount of their bills) but they have a limited understanding of all their lawyer’s duties and their activities
a) Lawyers are often the only ones who can report certain violations

C. LAWYERS’ RESPONSIBILITY FOR ETHICAL MISCONDUCT OF OTHERS

1. PARTNERS AND LAWYERS WHO POSSESS MANAGERIAL AUTHORITY
Rule 5.1– Responsibilities of Partners, Managers, and Supervisory Lawyers
(a) A partner in a law firm, and a lawyer who individually or together with other lawyers possess comparable managerial authority in a law firm, shall
make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of
Professional Conduct. (Duty to Establish Internal Systems)
(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules
of Professional Conduct. (Duty of Supervision)
(c) A lawyer shall be responsible for another lawyer's violation of the Rules of Professional Conduct if:
(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or
(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory
authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take
reasonable remedial action.
a) Defines firm as members of a partnership, the shareholders in a law firm organized as a professional corporation, and
members of other associations authorized to practice law; lawyers having comparable managerial authority in a legal
services organization or a law department of an enterprise or government agency; and lawyers who have intermediate
managerial responsibilities in a firm.

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 b) Example: Attorney A is a senior associate and has been assigned direct supervisory responsibility for work of junior
associate J in the case of Cox v. Fox. A told J to interview Cox and prepare her for her deposition. J advised Cox to testify
to a falsehood. After deposition, but while Cox was still available as a witness, A discovered what happened. A made no
effort to reopen the deposition or remedy J’s misconduct = subject to discipline.
c) Lawyers with managerial authority must create internal policies and procedures to ensure that lawyers in the firm conform
to RPC. Policies/procedures should include:
(1) Detecting and resolving conflicts of interest
(2) Identifying dates by which actions must be taken in pending matters
(3) Account for client funds and property
(4) Ensure that inexperienced lawyers are properly supervised
d) Measures taken in a firm depends on the structure and nature of the firm and its practice to determine if measures taken are
sufficient→ Bigger firm/more complex cases = more detailed measures
2. SUBORDINATE LAWYERS
Rule 5.2– Responsibilities of a Subordinate Lawyer
(a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person.
(b) A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer's reasonable
resolution of an arguable question of professional duty.
a) Although a lawyer is not relieved of responsibility for a violation by the fact that the lawyer acted at the direction of a
supervisor, that fact may be relevant in determining whether a lawyer had the knowledge required to render conduct a
violation of the Rules
(1) Example: If a subordinate filed a frivolous pleading at the direction of a supervisor, the subordinate would not be
guilty of a professional violation unless the subordinate knew of the document's frivolous character.
b) Exception: Supervising lawyer gives a subordinate lawyer advice interpreting RPC/duty incorrectly but reasonable
(1) What makes an incorrect interpretation reasonable? Conducting research, reaching out to other attorneys, etc.
(2) If professional duty is clear/not arguable = both lawyers responsible
(3) If reasonably arguable = subordinate attorney not responsible, supervisory attorney may be responsible considering
what went into incorrect interpretation
(4) Example: Subordinate lawyer L was assisting supervisor S on a motion. When drafting the reply to the motion, L saw
a new appellate decision in the controlling jurisdiction. The new decision had not been cited by S and L’s adversary. S
and L’s duty to call the new decision to the attention of the trial judge depends on whether it is “directly adverse” to
their position. L argues that the law of products disparagement and the law of personal libel and slander are so closely
related that the decision must be considered “directly adverse.” S argues that the two bodies of law are similar only by
crude analogy. The responsibility for making the final decision rests with S, and L should not be disciplined for
following S’s instructions not to mention the new decision in the reply.
3. NONLAWYER ASSISTANTS (PARALEGALS, LEGAL ASSISTANTS)
Rule 5.3– Responsibilities Regarding Nonlawyer Assistants
With respect to a nonlawyer employed or retained by or associated with a lawyer:
(a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable
efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional
obligations of the lawyer;
(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the
professional obligations of the lawyer; and
(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:
(1) The lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or
(2) The lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory
authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable
remedial action.
a) Duty to Educate and Guide in Ethics Matters→ Law firms, governmental and business law departments, and other
groups of lawyers employ many kinds of nonlawyers
(1) Lawyers who work with such employees must instruct them concerning the ethics of the profession and should be
ultimately responsible for their work.

D. CIVIL AND CRIMINAL LIABILITY OF LAWYERS

1. CIVIL LIABILITY– MALPRACTICE
a) Different from BPR actions→ point of BPR actions is to protect the public
b) Civil malpractice claims→ client sues attorney in court for damages
(1) Essentially requires Π to try a case within a case– extremely difficult
(2) Π must establish BOTH:
(a) Lawyer failed to exercise competence and diligence normally exercised by lawyers in similar case; AND
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 (b) But for the lawyer's mistake/malpractice, the client would have prevailed in the initial matter in which the lawyer
represented Π
c) Duty of Due Care
(1) To Current & Former Clients→ An attorney owes a duty of due care to a client, but it is not always clear when a
person becomes a client. Courts are quick to find that an attorney-client relationship has been established if the
attorney’s neglect has misled the alleged client.
(2) To Prospective Clients and Third Parties→ If an attorney provides legal services during a consultation with a
prospective client, the attorney must use reasonable care.
(a) An attorney also owes a duty of due care to other nonclients in certain circumstances, including where:
(i) The third party was intended to benefit by the attorney’s rendition of legal services, OR
(ii) The attorney invited the third person to rely on her opinion or legal services.
(3) Standard of Care→ Competence and diligence normally exercised by attorneys in similar circumstances.
(a) If an attorney represents to a client that he has greater competence (e.g., is a specialist)= held to higher standard.
d) Breach of Duty of Due Care
(1) Errors of Judgment→ An attorney is liable for negligence, but not everything that causes harm is negligence.
(a) An attorney is not liable for “mere errors in judgment” if the judgment was well informed and reasonably made.
(2) Knowledge of Law→ An attorney is expected to know the ordinary, settled rules of law known to practitioners of
ordinary competence and diligence.
(a) An attorney has a duty to look up rules of law that he does not know.
(b) If the answer is there to be found through standard research techniques and sources, and if the attorney does not
find it, he has breached the duty of due care.
(c) BUT– some issues of law are unsettled and debatable; if the attorney has done reasonable legal research, then he
has fulfilled the duty of due care—even if he makes the wrong guess about how an unsettled issue will ultimately
be resolved by the courts.
(3) Calling in a Specialist→ Some legal problems are uniquely within the competence of a legal specialist. It is a breach
of the duty of due care for a general practitioner to attempt to handle such a problem if a reasonably prudent lawyer
would have sent the client to a specialist.
e) Causation→ Π must prove that the injury would not have happened but for Δ atty’s negligence
f) Settling/Waiving Malpractice Claims
Rule 1.8(h) – A lawyer shall not:
(1) Make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless the client is independently represented in making the
agreement; or
(2) Settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability
of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith.
(1) Settlements→ Permitted to settle claim/potential claim, BUT ONLY IF the lawyer first advises the client in writing to
seek advice of an independent lawyer, AND the lawyer gives the client a reasonable chance to obtain advice.
(2) Prospective Waivers→ NOT ALLOWED except in the unlikely event that the client is independently represented
(a) NOTE– client MUST actually be represented by independent counsel; advising the client is not sufficient.
(3) A lawyer may practice in a limited liability entity, provided that the lawyer remains personally liable to the client for
her own malpractice, and the entity complies with legal requirements for notice, insurance coverage, and the like.
(4) A lawyer may agree prospectively with a client to arbitrate all legal malpractice claims, provided that such an
agreement is proper under local law and the client understands the scope and effect of the agreement.
(5) Reimbursement of Client→ A lawyer who has breached a duty to his client with monetary effect cannot escape
discipline by reimbursing the client for any loss
(a) EVEN IF the lawyer pays the client back for any damage he caused, he is still subject to discipline.
2. CIVIL LIABILITY– NEGLIGENCE OF OTHERS
a) Respondeat superior applies in suits for professional negligence
(1) An attorney can be held liable for injuries caused by a negligent legal secretary, law clerk, paralegal, or employee
associate when acting within the scope of employment
(2) Under partnership law, any partner may be held personally liable for the entire judgment even if they had nothing to
do with the negligent act
(a) BUT– many law firms are set up as limited liability partnerships, limited liability companies, or similar entities.
3. CRIMINAL LIABILITY– Lawyers can face criminal liability from BPR actions
a) Misappropriation of client funds = fraud/theft
b) Client protection funds→ Funds set aside by the state to pay victims whose funds were stolen by attorneys
(1)
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III. DUTY OF CONFIDENTIALITY

A. BASIC PRINCIPLES
1. POLICY RATIONALE– Encouraging candid conversations and communications between attorney and client; improves
quality of representation and reputation of profession
2. THE ETHICAL DUTY OF CONFIDENTIALITY IS NOT THE ONLY SOURCE OF DUTY
a) ** ON THE MPRE: Determine what source the question is asking about to determine the scope of the privilege**
b) Main sources:
(1) Evidence→ Attorney-client privilege
(2) Civil Procedure→ Hickman work product doctrine
(3) Agency Law→ Fiduciary duties
(4) Rules of Professional Conduct→ Rule 1.6

B. GENERAL RULE
Rule 1.6– Confidentiality of Information
(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. Rule 1.6(a) is the general rule and it is VERY BROAD
a) Analyze info FIRST under 1.6(a) to decide if info is within the scope of duty, THEN see if exception under 1.6(b) applies.
2. Informed consent→ an 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
a) A client can revoke informed consent at any time for any reason
3. SCOPE OF THE DUTY OF CONFIDENTIALITY = ALL information relating to the representation of a client
a) When does it apply?
(1) Can apply to information learned before representation or in a preliminary interview with a potential client
(2) Applies after you are no longer representing a client (fired, withdrawn, concluded matter)
(3) Applies whether the information was learned from the client or elsewhere
b) To what information does the duty apply?
(1) Example: Client’s name; falls within scope of the duty but implied authorization permits disclosure in filings, etc.
(2) To determine if information is within the scope of the duty, ASK:
(a) Is disclosure impliedly authorized?
(b) Has the client provided informed consent to the disclosure?
(c) If not, disclosure is prohibited by duty of confidentiality.
c) Can you say anything?
(1) A lawyer's use of a hypothetical to discuss issues relating to the representation is permissible so long as there is no
reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved.
(2) What about swearing someone to secrecy? No.
(a) Prohibition applies to disclosures by a lawyer that could reasonably lead to the discovery of such information
(3) Can you talk to other lawyers in your firm? May disclose unless the client has instructed otherwise

C. EXCEPTIONS
Rule 1.6(b)-(c) – Exceptions to the Duty to Protect Confidences
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of
another and in furtherance of which the client has used or is using the lawyer's services;
(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from
the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;
(4) to secure legal advice about the lawyer's compliance with these Rules;
(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or
civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the
lawyer's representation of the client;
(6) to comply with other law or a court order; or
(7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm,
but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.
(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. Exceptions to the Duty of Confidentiality are PERMISSIVE→ disclosure not required even if an exception is met

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 2. Exceptions do NOT permit disclosure of all information→ ONLY to the extent that the lawyer reasonably believes is
necessary to satisfy the purpose of the exception
3. Can you disclose your client’s past criminal conduct from years ago that you know is not continuing? No.
a) This wouldn’t fall under any exception and would likely violate your client’s 5A rights.
4. DISCLOSURE TO PREVENT DEATH/BODILY HARM
a) Reasonably certain→ suffered imminently or if there is a present and substantial threat that a person will suffer such harm
at a later date if the lawyer fails to take action necessary to eliminate the threat
5. FUTURE CRIME OR FRAUD– lawyer may not counsel/assist client in conduct the lawyer knows is criminal or fraudulent.
a) One LIMITED circumstance that rarely occurs when you MUST disclose. Consider:
(1) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is crime/fraud
(2) In the course of representing a client a lawyer shall not knowingly fail to disclose a material fact to a third person
when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited
(a) Ordinarily, a lawyer can avoid assisting a client’s crime or fraud by withdrawing from the representation.
Sometimes it may be necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm an opinion,
document, affirmation or the like. In extreme cases, substantive law may require a lawyer to disclose information
relating to the representation to avoid being deemed to have assisted the client’s crime or fraud. If the lawyer can
avoid assisting a client’s crime or fraud only by disclosing this information, then under paragraph (b) the lawyer
is required to do so, unless the disclosure is prohibited by 1.6.
(3) When this LIMITED circumstance occurs: When the client is using the LAWYER’S services to perpetuate the
crime/fraud and the ONLY way to prevent the continuation of the fraud is to disclose
(4) A lawyer cannot continue to represent a client if the client insists/continues criminal/fraudulent activity. The lawyer
must withdraw from representation and may have to disaffirm any opinion, document, affirmation, or the like that the
lawyer previously prepared/filed on behalf of client
(a) Disaffirm: *big deal* If an attorney later discovered their client’s conduct was criminal/fraudulent and was
unaware when they originally filed docs on clients behalf, may be necessary to disaffirm because without, it could
be seen as an endorsement/assistance in criminal/fraudulent conduct = violation of 1.2
6. PAST CRIME OR FRAUD– Situations in which loss suffered by victim of past crime can be prevented, rectified or mitigated
a) Lawyers may disclose information relating to the representation to the extent necessary to enable the affected persons to
prevent or mitigate reasonably certain losses or to attempt to recoup their losses.
b) Does not apply when a person who has committed a crime or fraud thereafter employs a lawyer for representation
concerning that offense (would violate 5A right)
7. DISCLOSING TO SECURE ADVICE ABOUT COMPLIANCE WITH RPC
a) Can ask inside and outside firm; can put in a hypothetical
b) BUT if outside firm→ only to extent lawyer reasonably believes necessary to determine compliance
8. DISCLOSING TO ESTABLISH CLAIM/DEFENSE ON BEHALF OF ATTORNEY IN CONTROVERSY
a) Attorney can disclose to the extent necessary to establish a defense
(1) Examples: malpractice suits, allegations of fraud (with or without client)
b) Exception is permitted when the allegation is made – not necessary for charges/case to be filed
c) Attorney entitled to a fee is permitted to disclose to prove services rendered in an action to collect fees
9. DISCLOSING TO COMPLY WITH OTHER LAW/COURT ORDER
a) People v. Belge→ Hiding the bodies case, atty charged with violation of public health statute and still refused to disclose
(1) Effectiveness of counsel is only as great as the confidentiality of the attorney client relationship. Attorneys are bound
by the 5th Amendment to uphold the right against self incrimination and maintain confidentiality. A client’s 5A rights
cannot be violated by their attorney.
b) Whether “other law” supersedes 1.6 is a question of law beyond the scope of the Rules
(1) **ON MPRE, question will say whether law supersedes or not**
c) If ordered to disclose by court order
(1) Object under A/C privilege
(2) If overruled, the attorney must disclose and cannot be disciplined for it. If they don’t disclose, they can be held in
contempt BUT– must discuss with client under 1.4 (whether to waive privilege)
10. USE OF CONFIDENTIAL CLIENT INFORMATION
a) Model rules regulate disclosure of confidential client info AND the use of that information
Rule 1.8(b): A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent,
except as permitted or required by these Rules.

8
 b) Applicability
(1) Applies when the information disclosed is used to benefit EITHER the lawyer OR a third party (another client,
business associate of lawyer), to the disadvantage of the client
(a) UNLESS the client gives informed consent
(2) Does NOT apply when information disclosed does not disadvantage the client = Do not need informed consent

D. ATTORNEY CLIENT PRIVILEGE

1. POLICY RATIONALE– Open lines of communication between attorney and client; improves quality of representation
a) Benefits both attorney and client
2. WHERE IS THE PRIVILEGE FOUND?
a) Federal courts→ common law, Prop. R. Evid. 503 not adopted
b) Federal court in a criminal case = federal common law
c) Federal court in a civil case = usually federal common law UNLESS jx is solely based on diversity, then state common law
3. SCOPE
a) What does it protect? Confidential communications between atty-client for purpose of obtaining or rendering legal advice
(1) Belongs to CLIENT; Asserted in a judicial proceeding or related matter by attorney on behalf of client
b) Elements
(1) Communication
(a) Oral, written
(b) General observance not protected unless intended to be an assertion
(c) Doesn’t protect underlying facts that were communicated (more protected in criminal cases (5A))
(i) You can’t just tell your attorney something in order to prevent disclosure
(d) Protects communications from client→ lawyer and lawyer→ client
(e) ID of client not generally protected
(2) Between client/client’s representative
(a) Minor and parents, legal guardians, translators, etc
(b) Representative→ Someone with legal authority to act on behalf of the client
(c) Corporate clients→ not all employees are agents (Upjohn)
(d) Applies whether client actually retains lawyer or not
(3) An attorney or her representative
(a) Other lawyers, secretaries, paralegals, investigators
(b) Consulting experts→ Privileged, hired to held lawyer prepare for case, not testifying
(c) Testifying experts→ Non privileged, hired to testify (Fed. R. Civ. P. 26(a)(2))
(i) Should not be present during any meeting that discusses confidential information
(4) In Confidence
(a) Client has reasonable expectation of privacy/ believed communication to be confidential
(b) Third party presence doesn’t always destroy privilege
(i) Not destroyed = representatives, non testifying experts, spouses
(c) Eavesdropper situations→ totality of the circumstances to determine if privilege destroyed, considering:
(i) Location of disclosure
(ii) Steps taken to protect confidentiality
(iii) Steps that could have been taken to protect confidentiality
(d) Prisoner emails example→ not priv bc prisoners, by sending emails, consented to no expectation of privacy
(5) Purpose of communication was to seek or provide legal advice or legal services
(a) Not protected: business, personal, financial, political advice
4. EXCEPTIONS
a) Lawsuits involving breach of duty by lawyer or client (recovering fees)
b) Sixth Amendment ineffective assistance of counsel claims
c) Crime/fraud→ intent of CLIENT is what is relevant
(1) Prop. R. Evid. 503(d)(1) – If the services of the lawyer were sought or obtained to enable or aid anyone to commit or
plan to commit what the client knew or reasonably should have known to be a crime or fraud
d) Waiver→ revealing privileged information to a non privileged person. Can be done by:
(1) Inadvertent/unintentional disclosure
(2) Placing privilege in issue
(3) Express authority
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 (4) Implied authority
(5) Apparent authority
(a) Lawyer has the duty to invoke, but ability to waive belongs to client
e) Joint clients→ generally considered common clients with a common privilege
(1) BUT– if joint clients end up in litigation with each other, neither can assert privilege regarding conversations either of
them had with the attorney during their joint representation

5. ATTORNEY-CLIENT EVIDENTIARY PRIVILEGE V. ETHICAL DUTY OF CONFIDENTIALITY

A/C Privilege Duty of Confidentiality
Information Protected Confidential communications for the purpose of All information relating to the representation of a client
obtaining/giving legal advice
Consequences of violation Malpractice suits + BPR actions BPR action
Protection Strength Stronger: privilege not to share communication in court Weaker, duty owed to client but doesn’t reach outside of
successful assertion = nondisclosure, no testimony relationship, can morph into evidentiary privilege
Applies? In judicial and other proceedings where lawyer may be called In situations other than those where evidence is sought from the
as a witness or otherwise required to produce evidence lawyer through compulsion. Also applies to information gained
concerning a client, learned from client or client rep from sources other than the client
6. CORPORATE CLIENTS
a) All three doctrines apply:
(1) Ethical duty of confidentiality
(2) Attorney client evidentiary privilege
(3) Work product doctrine
b) Upjohn Co. v. United States→ Internal investigation at corp, sent questionnaires to managers and lower level employees,
interviewed some, disclosed some of the findings to the IRS, but IRS sought disclosure of all interviews/questionnaires,
attorney claimed privilege
(1) PP→ 6th Circ said questionnaires not privileged because the employees were outside of the “control group” = old test,
lawyers and senior officials with authority to control actions of corporation
(2) Holding→ Court rejected control group test
(3) Scope of privilege depends on subject matter of the communication, NOT on who is doing the communicating
(a) Privilege can include any management or low-level employees, as long as the communication “relates to the
subject matter of representation” AND is being used to guide the corporation’s legal affairs
7. SURVIVAL OF THE PRIVILEGE– survives the death of a client, even when the need for the protected material is important
to criminal litigation (Swidler & Berlin v. United States)

E. WORK PRODUCT DOCTRINE

1. GENERALLY– protects materials that a lawyer prepares “in anticipation of litigation” from discovery in civil, criminal, and
administrative proceedings
a) Protection found in Fed. R. Civ. P. 26(b)(3)(A) & (B)
b) In order to qualify, the materials MUST be prepared in “anticipation of litigation” (Hickman v. Taylor)
c) It does NOT protect:
(1) Pure facts
(2) Witness names (identity of individuals with knowledge) in civil cases
2. TWO TYPES
a) Opinion Work Product→ Legal theories, opinions, conclusions, or mental impressions of a lawyer
(1) Written or unwritten (lawyers recollection of interview of witness)
(2) Almost always undiscoverable under Fed. R. Civ. P. 26(b)(3)(B)
(a) Given even more heightened protection from discovery
(i) Can only be obtained with a showing of “extraordinary circumstances”
b) Ordinary Work Product→ Tangible material or intangible equivalent in unwritten or oral form, other than underlying facts
(1) Documents, photos, diagrams, sketches, financial records, notes, recordings, computer databases, etc.
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 (2) Can include documents prepared by third parties (experts, etc.) if prepared at the request of the lawyer
(3) Sometimes discoverable under Fed. R. Civ. P. 26(b)(3)(A)
(a) Only discoverable IF:
(i) The requesting party can show “substantial need” for the material; and
(ii) That they are “unable without undue hardship to obtain the substantial equivalent” of the material by
other means
3. COMPARED TO A/C PRIVILEGE
A/C Evidentiary Privilege Work Product Doctrine
Source Evidence law Federal Rules of Civil Procedure
Scope Confidential communications between lawyer and client Materials made usually by lawyer in anticipation of litigation
Standards for Disclosure Immune totally from discovery unless waived Showing of “substantial need” (only for ordinary WP)
Third Parties Presence can constitute a waiver Some documents that are subject to WPD are prepared by third
parties and protected if made at request of lawyer

IV. RELATIONSHIPS BETWEEN LAWYERS AND CLIENTS

A. FORMATION
1. FORMATION OF CLIENT-LAWYER RELATIONSHIP
a) A relationship of client and lawyer arises when:
(1) A person manifests to a lawyer the person’s intent that the lawyer provide legal services for the person; and either
(a) The lawyer manifests to the person consent to do so; OR
(b) The lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the
person reasonably relies on the lawyer to provide the services; or
(2) A tribunal with power to do so appoints the lawyer to provide the services.
b) Togstad→ Medmal consultation “you have no case” ; statute of limitations ran and client got no relief
(1) Four elements of legal malpractice claim:
(a) Attorney client relationship existed;
(b) Lawyer acted negligently or in breach of contract;
(c) The acts were the proximate cause of Π’s damages;
(d) But for attorney’s conduct, Π’s would have been successful in the prosecution of their claim
(2) Holding: Attorney committed legal malpractice because he failed to perform the minimal research than an ordinary
prudent attorney would do before rendering legal advice
(3) An attorney-client relationship is created whenever an individual seeks and received legal advice from an attorney in
circumstances in which a reasonable person would rely on such advice
(a) Π detrimentally relied on atty’s “you have no case” and didn’t consult another attorney
(4) To determine whether an A/C relationship is formed→ CLIENT’S expectations
(5) How to avoid liability when declining representation:
(a) Don’t give an opinion about potential outcomes of the case/whether potential client has a viable claim;
(i) I.e. just tell them you aren’t taking their case
(b) Don’t promise to consult another lawyer to confirm advice;
(c) Advise as to the relevant limitations period;
(i) “While I’m declining this case, you should know that you have a two year statute of limitations to file a
claim if you want to consult another attorney”
(d) Encourage potential client to seek advice from another lawyer;
(e) Send a letter documenting decline of representation
2. REFUSING TO REPRESENT A CLIENT
a) Generally, an attorney can decline representation for any reason
(1) Can also accept representation but limit the scope
(2) Not required to accept a client “whose character or cause the lawyer regards as repugnant” (6.2)
b) But there are 4 exceptions/considerations:
(1) Pro Bono Duties → Lawyers should aspire to complete 50 pro bono hours per year
(2) Court appointments for indigent criminal Δs→ Shall not avoid appointments by a tribunal, except for good cause
(3) May not assist a client in violating the law or ethics rules
(4) Anti Discrimination → Should not refuse representation on basis of race, religion, nationality, sex, age, disability, etc.
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 3. DUTIES TO PROSPECTIVE CLIENTS
Rule 1.18(a)-(b) – Duties to Prospective Client
(a) A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.
(b) Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information,
except as Rule 1.9 would permit with respect to information of a former client.
a) Prospective client→ a person who consults with an attorney about the possibility of forming an attorney-client relationship
b) A person is a prospective client when they consult with an attorney
(1) Consultation→ attorney requests/invites submission of information regarding potential representation without clear
and reasonably understandable warnings limiting the attorney’s obligations
(2) Contacting an attorney to disqualify them does not make someone a prospective client (divorce)
c) There is no duty to a potential client to provide assistance/advice on the merits of a case

B. DUTY OF COMPETENCE
Rule 1.1 – Competence. A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill,
thoroughness and preparation reasonably necessary for the representation.
1. FACTORS TO DETERMINE COMPETENCY
a) Relative complexity and specialized nature of matter
b) Lawyer’s general experience
c) Lawyer’s experience in field in question
d) Preparation and study
e) Feasibility of referring matter
f) Consulting with a lawyer in the field in question
2. REPRESENTATION WITHOUT EXPERIENCE IN FIELD IN QUESTION
a) An attorney can represent a client in matters lawyer has no experience in with proper study and/or association with an
experienced lawyer
(1) BUT– must obtain client’s informed consent before associating with experienced lawyer
(a) Attorney must believe additional attorney will contribute to competent and ethical representation
(b) Fee sharing must be proportional to each attorney’s work on the matter→ client must know division
(c) The reasonableness of the lawyer’s decision to retain lawyers outside her firm will depend on factors:
(i) Background of the non firm lawyers;
(ii) Nature of the services assigned to the non firm lawyers;
(iii) Professional conduct rules in the jurisdictions in which the services will be performed.
(2) Proper study→ Attorney should inform client for need for additional research and any fees for additional research
must be reasonable (Rule 1.5)
b) Informing clients about prior lack of experience in handling certain types of cases is a good idea, but is not required under
the Rules BUT– you cannot misrepresent your experience to a client
(1) Difference between telling client you are “an experienced trial attorney” when you have never tried a case and not
disclosing to your client that you have never prepared a will when client doesn’t ask
3. EMERGENCY SITUATIONS– In an emergency, a lawyer may assist a client, even if the lawyer does not have the skill
ordinarily required in the field in question, if referral to or consultation with another lawyer would be impractical
a) BUT – the assistance should not exceed what is reasonably necessary to meet the emergency.
4. THOROUGHNESS AND PREPARATION– To handle a matter competently, a lawyer must inquire into and analyze the
facts and legal elements of the problem, applying the methods and procedures used by competent practitioners.
a) Competence requires adequate preparation.
5. MAINTAINING COMPETENCE
a) Up to date on legal technology, changes in the law practice, and CLE’s
b) Includes internet security knowledge/effort to protect online information
c) Should take steps to understand the benefits and risks associated with relevant technology
6. COMPETENCE IN CRIMINAL CASES
a) Competence includes inquiry into and analysis of the factual and legal elements of issue, use of methods/procedures
meeting standard of competent practitioners, adequate preparation
(1) Requisite preparation depends on what’s at stake (complex litigation, death penalty)
b) Strickland v. Washington→ Δ confessed against atty’s advice, all that remains is Δ’s sentencing. Atty didn’t investigate, get
a psych eval, or look at Δ’s prior record before sentencing to look for mitigating factors. Δ sentenced to death, appealed
based on ineffective assistance of counsel
(1) In order for a convicted defendant to demonstrate ineffective assistance of counsel:
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 (a) Δ must show that counsel made errors so serious that they were not functioning as “counsel” guaranteed by 6A;
(b) Δ must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors
were so serious as to deprive Δ of a fair trial (trial whose result is reliable)
(2) Even if counsel commits a serious error, the verdict will not be disturbed unless Δ can prove that the error affected the
outcome
c) A criminal defendant can fail to satisfy the Strickland test but the same attorney can be disciplined for failure to provide
competent representation→ Rule 1.1’s standard is much easier to satisfy than the Constitutional standard
d) Pleas
(1) Missouri v. Frye; Lafler v. Cooper→ Attys failed to communicate plea offers to criminal Δ’s and the offers lapsed
(a) To prove prejudice, Δ must show a reasonable probability that:
(i) Δ would have accepted the lapsed plea;
(ii) The prosecution would have adhered to the agreement;
(iii) It would have been accepted by the trial court.

C. SCOPE OF REPRESENTATION
Rule 1.2 – Scope of Representation & Allocation of Authority Between Lawyer and Client
(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by Rule 1.4,
shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly
authorized to carry out the representation. A lawyer shall abide by a client’s decision whether to settle a matter. In a criminal case, the lawyer shall abide
by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.
(b) A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic,
social or moral views or activities.
(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.
(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the
legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity,
scope, meaning or application of the law.
1. ABILITY TO LIMIT DUTIES BY CONTRACT– Remember that the ethics rules are the floor, not the ceiling. An attorney
and client can contract to a higher duty owed
(1) Example: Rule 1.4 requires keeping the client “reasonably informed,” but the client may want it included in their
contract that the lawyer will update them once per month
b) BUT– attorneys cannot contract to a higher duty if the duty might cause them to violate another RPC
c) Example: Hiring an insurance attorney for only an insurance claim, when client’s case is comprised of additional claims
d) Example: Attorney agreeing to represent client only through initial settlement negotiations
e) Why might someone want to limit the duties of their attorney? COST “Unbundled legal services” idea
f) Ghostwriting→ Filing pleadings on a client’s behalf anonymously
(1) Not allowed in federal courts
g) “Reasonable under the circumstances and the client gives informed consent” – why is this okay?
(1) It’s better for litigants to have some representation rather than none
(a) Benefits the client if limited services is all they can afford
(b) Most likely practice areas for limited representation: family and immigration
h) Scope of services to be provided by a lawyer can be limited by agreement with the client or by how the services are
presented to the client
2. LAWYERS AS AGENTS
a) Lawyers are agents of their clients = lawyers can bind clients
(1) Example: Lawyer fails to appeal = binds client to decision to waive appeal
(2) Example: Lawyer fails to timely file a motion = binds client to waiving motion
(3) Actual/Express Authority→ Client directly tells lawyer to do something
(a) A client can give express authority to settle/take action without more consultation, which the lawyer may rely on,
but the client can withdraw advance express authority at any time
(b) If the client has previously indicated that a proposal will be (un)acceptable/authorized acceptance/rejection of an
offer, lawyer does not violate 1.4 by acting as client authorized without communicating to client before acting
(4) Apparent Authority→ Occurs when client tells a third party that the attorney has authority to act on the client’s behalf
(a) ONLY statements by the client can justify reliance by a third party
b) Things that are ONLY client decisions:
(1) Accepting/declining settlement offers in a civil case
(2) Accepting/declining a plea in a criminal case
(3) Whether to testify in a criminal case
(4) Whether to waive a jury trial in a criminal case
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 (5) Waiving attorney client privilege
(a) Privilege only belongs to client
3. ALLOCATION OF AUTHORITY BETWEEN LAWYER AND CLIENT– The lawyer and client should work together,
with the client defining the goals of representation and the lawyer implementing the goals through strategy
a) Lawyer MUST abide by the client's decisions regarding OBJECTIVES of the representation
(1) Example: deciding whether to sue or not
b) Lawyer must CONSULT with the client regarding the MEANS through which the objectives will be accomplished
(1) Example: who to call as a witness: consult with client, but ultimately lawyer’s decision
c) Disagreements with clients
(1) FIRST, consult with client→ Clients usually defer to attorney’s specialized knowledge and skill with respect to the
means of representation, especially when technical, legal, and/or tactical matters are at issue
(a) Lawyers usually (encouraged) defer to clients regarding costs of representation and effects on third parties
(2) SECOND, seek a mutually acceptable resolution
(3) If there is no resolution and the attorney fundamentally disagrees with the client, the lawyer MAY withdraw
(a) OR, the client may resolve a disagreement by firing the attorney
d) Jones v. Barnes→ indigent Δ, Δ wanted atty to assert certain arguments, atty did not assert all in his brief, but attached Δ’s
own brief. Δ loses on appeal and files a writ of habeas corpus, claiming his right to effective counsel was violated
(1) An indigent Δ has no right to compel appointed counsel to press nonfrivolous points he requested if counsel, as a
matter of judgment, chooses not to present those points
(a) Except for decisions allocated to client in the ethical rules, the attorney’s duty is to take professional
responsibility for the conduct of the case after consulting with their client
(2) A lawyer’s refusal to argue all nonfrivolous claims the client wishes ≠ a violation of 6A when the attorney’s conduct
was within the range of competence demanded of attorneys in criminal cases and assures an indigent Δ an adequate
opportunity to present claims fairly in the context of the appellate process
e) Compared to Garza v. Idaho→ Δ’s lawyer failed to file an appeal against Δ’s wishes
4. INDEPENDENCE FROM CLIENT’S VIEWS OR ACTIVITIES– A lawyer's representation of a client, including by
appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.
a) Legal representation should not be denied to people who are unable to afford legal services, or whose cause is
controversial or the subject of popular disapproval. But this rule is not really binding on anyone.

D. DUTY OF DILIGENCE
Rule 1.3 – Diligence. A lawyer shall act with reasonable diligence and promptness in representing a client.
1. DILIGENCE DEFINED– A lawyer should pursue a matter on the client’s behalf despite opposition, obstacles, and personal
inconvenience, and may take whatever lawful and ethical measures are required to vindicate the client’s cause. The lawyer
should act with dedication and commitment to the client’s interests and with zeal in advocacy on the client’s behalf.
a) A lawyer should take all lawful/ethical measures required to vindicate a client’s case, BUT:
(1) Not bound to press for every advantage possible
(2) Does not require use of offensive tactics or failing to treat people with courtesy and respect
b) Diligence includes controlling and appropriately managing your workload
c) Opposite of diligence
(1) Not returning phone calls
(2) Procrastination
(3) Not filing court docs on time
2. PROMPTNESS– Often has severe or devastating consequences to the client’s interests, as when a court-ordered deadline is
missed or the statute of limitations is permitted to run.
a) Even when procrastination does not harm the client’s substantive interests, it can cause the client needless anxiety and can
undermine confidence in the lawyer’s trustworthiness.
b) A lawyer may agree to a reasonable postponement if it will not prejudice her client
3. COMPLETION OF THE MATTER– Once a lawyer agrees to handle a matter for a client, the lawyer must see the matter
through to completion (unless the lawyer is fired or is required or permitted to withdraw).
a) If there is doubt about whether lawyer-client relationship has ended, the lawyer should clarify, preferably in writing.
b) If a lawyer moves firms, they must send letter to client to resolve any doubt regarding the existence of an A/C relationship
4. LAWYER-CLIENT RELATIONSHIP– No relationship = no duty owed
a) If there is any doubt as to whether the lawyer-client relationship was either formed or terminated, the lawyer must either
take affirmative steps to terminate the relationship or act with the required diligence.

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 5. SOLO PRACTITIONERS– To prevent harm to clients, every solo practitioner should designate another competent lawyer
who, upon the death or disability of the solo practitioner, would review the clients’ files, notify the clients of the circumstances,
and determine whether protective action is needed.

E. DUTY OF COMMUNICATION
Rule 1.4 – Communications
(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required
by these Rules;
(2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and
(5) consult with the client about any relevant limitation on the lawyer's 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.
1. DUTY TO OBTAIN INFORMED CONSENT
Require Informed Consent Require IC in writing Required to be in writing Required to be in writing Require Notice
signed by client (but not necessarily IC)
- Accepting settlement or plea - Lawyer as third party - Terms of a business - Advising client on - (To client) Failure to
- Hiring additional attorney neutral becoming a transaction desirability of seeking comply with lawyer’s
- Disclosure of 1.6 info party’s attorney - Aggregate advice of independent terms will result in
- Using 1.6 info to detriment of - Waiver of conflicts settlement/plea counsel (settling termination of A/C
client - Fee sharing with a - Contingent fee malpractice, business relationship
- Limiting scope of representation non-firm attorney agreement transactions) - (To affected party)
- Evaluation for use when - Reciprocal referral Screening of disqualified
evaluation will affect client’s agreements lawyer
interests - Joint representation - (To opposing party) Ex
- Third party compensation for parte communications
client representation - (To clients) Sale of a law
- Using client’s name in practice
advertisement - (To parties) Judge using a
- (Of attorney) Communication legal expert’s advice
with represented party
- (Of attorney) Communication
with control group of corp
- Participation by judge in
settlement
2. DUTY TO CONSULT– Depends on the importance of the action under consideration and feasibility of consulting with client
3. DUTY TO UPDATE– Inform client of significant developments affecting the timing/substance of representation
4. DUTY TO RESPOND– If a prompt response to client’s request isn’t feasible (i.e. atty is in trial), the attorney or staff should
acknowledge receipt of the request and advise client on when a response should be expected
5. DUTY TO EXPLAIN
a) What do you need to explain to the client? Should tell client general litigation strategy, prospects of success, tactics
likely to result in significant expense/injury/coercion of others
(1) Attorney is not expected to discuss trial or negotiation tactics.
b) Withholding information from client→ Attorney can withhold information temporarily if the client would be likely to
react imprudently to immediate communication

F. CANDOR IN COUNSELING
Rule 2.1 – Advisor
In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to
law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.
1. DUTY TO RENDER CANDID ADVICE– When acting as advisor to a client, a lawyer must exercise independent judgment
and render candid advice
a) Candid advice is sometimes hard to take—the facts may be harsh and the choices unattractive. The lawyer should attempt
to keep the client’s morale up but should neither sugarcoat the advice nor delude the client.
2. GIVING ADVICE BEYOND THE LAW– A lawyer may give a client not only legal advice, but also moral, economic,
social, or political advice when relevant to the client’s situation.
a) When practical considerations (cost, effect on other people) are predominant, relying on moral/ethical considerations can
be appropriate
b) A lawyer may also urge a client to seek advice from persons in related professions (accountant, psychiatrist, physician)
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 3. VOLUNTEERING ADVICE– A lawyer ordinarily has no duty to give advice until asked. However, if the lawyer knows that
the client is planning a course of action that will have substantial adverse legal consequences for the client, the lawyer may
volunteer advice without being asked.

G. EVALUATION FOR USE BY THIRD PERSONS

Rule 2.3 – Evaluation for Use by Third Persons
(a) A lawyer may provide an evaluation of a matter affecting a client for the use of someone other than the client if the lawyer reasonably believes that making
the evaluation is compatible with other aspects of the lawyer's relationship with the client.
(b) When the lawyer knows or reasonably should know that the evaluation is likely to affect the client's interests materially and adversely, the lawyer shall not
provide the evaluation unless the client gives informed consent.
(c) Except as disclosure is authorized in connection with a report of an evaluation, information relating to the evaluation is otherwise protected by Rule 1.6.
1. GENERALLY– The client is the person or entity whose affairs are to be evaluated by the lawyer; the rule does not apply when
a client asks a lawyer to evaluate the affairs of a third party and then to make a report to the client
a) Example: Client asks her lawyer to evaluate her legal title to ranch land and furnish the evaluation to a proposed purchaser
b) Example: Client Corp. wants to borrow a large sum from a bank and asks its lawyer to evaluate its legal and business
affairs and to furnish a report to the bank.
c) Example: Bank proposes to lend a large sum of money to Y. Bank therefore asks its own lawyer to evaluate Y’s business
and legal affairs and to report back to Bank. Rule 2.3 does not apply to this situation.
2. CONFIDENTIALITY– The client may limit the scope of the evaluation or the sources of information available to the lawyer,
but the lawyer should describe any material limitations in the report furnished to the third person.
3. LAWYER’S LIABILITY TO THIRD PERSON– A lawyer who is hired to evaluate a client’s affairs for a third person may
be liable to the third person for negligence in rendering the evaluation.
a) Example: Client C hired attorney A to evaluate C’s financial condition for bank B in the hope that B would lend money to
C. A’s opinion letter to B negligently misrepresented C’s financial condition, as a direct result of which B suffered a large
loss. A is liable to B for the negligent misrepresentation.

H. CLIENTS WITH DIMINISHED CAPACITY

Rule 1.14 – Clients with Diminished Capacity
(a) When a client's 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.
(b) When the lawyer reasonably 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 client's 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, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or
guardian.
(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 client's interests.
1. Two most common categories of people that fall under this rule = minors and adults that lack mental capacity
2. “[T]he lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client”
a) Someone has to represent the client’s interests/wishes, some clients are still capable of making decisions
b) Often still has the ability to understand, deliberate, reach conclusions about matters affecting their own well-being
3. This rule applies equally to minors, there is no separate rule regarding attorney-client relationships with minors
a) Children are entitled to opinions that should be given weight in legal proceedings
b) Lawyers represent the child’s interests, NOT what is best for the child
4. DECISION MAKING– A client with diminished capacity may wish to have family/other people involved in discussions with
their attorney, excluding paragraph (b), the lawyer MUST keep the client’s interests at the forefront and look to the client –
NOT FAMILY– to make decisions on the client’s behalf
a) IF:
Client has diminished capacity
Client is at risk of substantial physical, financial, or other harm unless action is taken; AND
Client cannot adequately act in their own interest
THEN, lawyer MAY take reasonably necessary protective action
(1) Examples: consulting with family members, using a reconsideration period to permit clarification or improvement of
circumstances, using voluntary surrogate decision making tools such as durable powers of attorney or consulting with
support groups, professional services, protective agencies/other individuals/entities with ability to protect the client.
(2) Factors to consider in taking protective action:
(a) Wishes and values of the client to the extent known
(b) Client's best interests
(c) Goals of intruding into the client's decision making autonomy to the least extent feasible
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 (d) Maximizing client capacities
(e) Respecting the client's family and social connections
(3) Guardian Ad Litem→ Someone appointed to determine and advocate for the best interest of their ward
(a) Best interests ≠ express wishes of client
(b) Lawyer should consider other options before requesting appointment of GAL
(4) If all of (b) is satisfied, the attorney can only reveal confidential information to the extent reasonably necessary to
protect the client’s interests – very limited disclosure
(a) Impliedly authorized to make the necessary disclosures, even when the client directs the lawyer to the contrary.
(b) BUT, given the risks of disclosure, (c) limits what the lawyer may disclose in consulting with other individuals or
entities or seeking the appointment of a legal representative.
(i) Lawyer should determine whether it is likely that the person/entity consulted will act adversely to the
client's interests before discussing matters related to the client.
5. MINORS– Attorney should respect child’s preference and follow the child’s directions throughout the course of litigation
a) Lawyer has a duty to assist the child in having maximum input in determining the issue
b) Balance between giving child enough information necessary to make an informed decision (including advice and
guidance) and not overbearing the will of the child
(1) Lawyer may NOT advocate for a position contrary to the child’s expressed position
6. GENERAL RULE– Advocating for the client’s express preference will never be in violation of 1.14. Advocating for the
client’s best interest is the job of a guardian ad litem, not a lawyer.
a) Almost every other interested party will advocate for their own position, including the best interest of the person with
diminished capacity→ If you don’t advocate for the client’s wishes, no one will

I. TERMINATING THE LAWYER CLIENT RELATIONSHIP

Rule 1.16 – Declining or Terminating Representation
(a) A lawyer shall inquire into and assess the facts and circumstances of each representation to determine whether the lawyer may accept or continue the
representation. Except as stated in paragraph (c), a lawyer SHALL NOT represent a client or, where representation has commenced, shall withdraw from
the representation of a client if:
(1) the representation will result in violation of the rules of professional conduct or other law;
(2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client;
(3) the lawyer is discharged; or
(4) the client or prospective client seeks to use or persists in using the lawyer’s services to commit or further a crime or fraud, despite the lawyer’s
discussion pursuant to Rules 1.2(d) and 1.4(a)(5) regarding the limitations on the lawyer assisting with the proposed conduct.
(b) Except as stated in paragraph (c), a lawyer MAY withdraw from representing a client if:
(1) withdrawal can be accomplished without material adverse effect on the interests of the client;
(2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent;
(3) the client has used the lawyer's services to perpetrate a crime or fraud;
(4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;
(5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the
lawyer will withdraw unless the obligation is fulfilled;
(6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or
(7) other good cause for withdrawal exists.
(c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a
tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.
(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable
notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any
advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by
other law.
1. TERMINATION BY CLIENT
a) A client can terminate a lawyer at any time, with or without cause, subject to liability for fees
b) If you are fired by a client→ you MUST withdraw
2. TERMINATION IN GENERAL
a) “Papers and property” → A client is not entitled to papers/property that the lawyer generated for the lawyer’s own
purpose in working on the client’s matter– BUT– if termination occurs before the conclusion of the matter, protection of
the client’s interests may require opinion work product disclosure if the client can demonstrate substantial need
(1) Retaining liens→ A lawyer can retain papers/property until their fees are paid in some states
b) Applicable Law, procedure for withdraw
(1) Civil case, appeared = file motion to withdraw subject to court approval
(2) Criminal case, appointed = withdraw requires approval of appointing authority
(3) If asked reason for withdrawal = “Professional considerations require termination of representation” assert A/C priv
c) Can an attorney withdraw without cause? Generally, yes.
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 d) Difference between knowing and having a reasonable belief
(1) Important to know→ rules REQUIRE withdrawal if you KNOW client is using your services to further a crime/fraud
(a) But if you only have a reasonable belief that client’s conduct is crime/fraud = PERMITTED to withdraw
(b)
V. CONFLICTS OF INTEREST

A. GENERAL PRINCIPLES
1. KEY TERMS
a) Concurrent conflicts→ Conflicts involving 2+ current obligations of the attorney (clients, personal obligations, etc.)
b) Consentable conflict→ Conflict where the lawyer can seek informed consent form affected clients and proceed with
representation if informed consent is obtained
c) Nonconsentable conflict→ Lawyer cannot proceed with representation even if they get informed consent from affected
client(s)
2. POLICY RATIONALE
a) Duty of loyalty owed equally to every client
(1) Exercise independent professional judgment/diligence
(2) Duty of confidentiality preservation

B. CURRENT CONFLICTS
Rule 1.7 – Conflict of Interest: Current Clients
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent
conflict of interest exists if:
(1) The representation of one client will be directly adverse to another client; or
(2) There is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a
former client or a third person or by a personal interest of the lawyer.
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:
(1) The lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(2) The representation is not prohibited by law;
(3) The representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or
other proceeding before a tribunal; and
(4) Each affected client gives informed consent, confirmed in writing.
1. ANALYSIS
a) FIRST→ 1.7(a), two types of concurrent conflicts of interest:
(1) Directly adverse→ Acting as an advocate in one matter against a person the lawyer represents in some other matter,
even when the matters are wholly unrelated (Cmt. 6)
(a) Usually violates attorney’s duty of loyalty
(b) Examples: Cross examining a current client as a witness in litigation of another client; suing X on behalf of A and
then suing A on behalf of B, adversarial negotiation against a current client
(c) Simultaneous rep in unrelated matters where clients’ interests are only economically adverse ≠ directly adverse
(2) Material limitation→ A significant risk that a lawyer's ability to consider, recommend or carry out an appropriate
course of action for the client will be materially limited as a result of the lawyer's other responsibilities or interests
(a) Impacts ability to provide competent representation through foreclosing causes of action that should be
reasonably pursued, opportunities, and strategies for client due to conflicting obligations
(b) Examples: representing co-plaintiffs or co-defendants; conflicting obligations to a former client; lawyers other
duties (serves on board of directors, as a trustee or executor); someone other than the client is paying fees
(insurance, minor); lawyers own financial, employment, personal, etc. interests (divorce case, Π repped by
husband, Δ repped by wife example)
b) THEN→ 1.7(b) exceptions
** Must meet ALL FOUR elements, otherwise = no representation
** Any conflict that doesn’t meet all four prongs of (b) = NONCONSENTABLE
(1) The lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to
each affected client;
(a) Objective standard→ what a reasonable lawyer would believe
(2) The representation is not prohibited by law;
(a) Representing two Δ’s in a capital case in some states is prohibited
(b) **ON MPRE→ Problem will tell you if prohibited or not in jx
(3) The representation does not involve the assertion of a claim by one client against another client represented by
the lawyer in the same litigation or other proceeding before a tribunal; and

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 (a) Directly adverse ≠ automatically nonconsentable
(b) Does not preclude an attorney from representing adverse parties to a mediation
(c) Must be one client v. another, both presently represented by the same attorney to violate
(4) Each affected client gives informed consent, confirmed in writing.
(a) Requires that each affected client be aware of:
(i) Relevant circumstances; and
(ii) Material and reasonably foreseeable ways that the conflict could have adverse effects on their interests.
(b) When representation of multiple clients in a single matter is undertaken, the information must include:
(i) Implications of the common representation
(ii) Possible effects on loyalty
(iii) Possible effects on confidentiality and the attorney-client privilege
(iv) Advantages and risks involved
(c) Under some circumstances it may be impossible to make the disclosure necessary to obtain consent.
(i) Example: when the lawyer represents different clients in related matters and one of the clients refuses to
consent to the disclosure necessary to permit the other client to make an informed decision, the lawyer
cannot properly ask the latter to consent (because it wouldn’t be informed)
(d) A client can revoke informed consent at any time for any reason
(i) If informed consent is revoked, to determine if representation of another client can continue, consider:
(a) Nature of the conflict
(b) If the client revoked consent because of a material change in circumstances
(c) Reasonable expectations of other clients
(d) If a material detriment to other clients or the lawyer would occur
(e) Confirmed in writing→ informed consent that is given in writing by the person or a writing that a lawyer
promptly transmits to the person confirming an oral informed consent. If it is not feasible to obtain or transmit the
writing at the time the person gives informed consent, then the lawyer must obtain or transmit it within a
reasonable time thereafter.
(f) Informed consent→ 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.
2. NON-CONSENTABLE CONFLICTS
a) Any conflict that does not meet all four prongs of 1.7(b)(1)-(4) is nonconsentable
b) If a nonconsentable conflict is discovered after representation has begun, the attorney MUST withdraw
3. IMPUTATION OF CONCURRENT CONFLICTS
a) Rule 1.10 Applies: Analyze as if one attorney were representing both current clients
(1) If one attorney couldn’t represent both current clients, the conflict is imputed and one attorney (or both in some
circumstances) must decline or withdraw from representation
(2) 1.10 as applied to current clients→ Attorneys in a firm share concurrent conflicts and cannot represent conflicting
clients UNLESS:
(a) The conflict is based on a personal interest of the conflicting attorney; AND
(b) The conflict does not present a significant risk of material limitation on representation by other attorneys in firm
(3) Does NOT apply to work done before becoming licensed as an attorney (in law school, etc.), but the attorney would
still be screened from work regarding the conflicting client
(a) Screening does NOT require informed consent of conflicting client
(4) This rule does NOT change if the firm has more than one office
(a) If the firm has 27 offices in the US and 10 offices abroad, conflicts apply to every attorney in every office
4. REPRESENTING BOTH PARTIES TO A TRANSACTION
a) Permitted but not advisable– Why?
(1) Could create direct adversity→ Directly adverse conflicts can also arise in transactional matters.
(a) Example: if a lawyer is asked to represent the seller of a business in negotiations with a buyer represented by the
lawyer, not in the same transaction but in another, unrelated matter, the lawyer could not undertake the
representation without the informed consent of each client.
(2) OR, a material limitation
b) If direct adversity or material limitation→ ask 1.7(b) questions:
(1) Can the attorney provide competent and diligent representation?
(2) If yes, need informed consent
(a) BUT: Whether a conflict is consentable depends on the circumstances
(i) Example: A lawyer may not represent multiple parties to a negotiation whose interests are fundamentally
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 antagonistic to each other, but common representation is permissible where the clients are generally
aligned in interest even though there is some difference in interest among them.
(b) A lawyer may seek to establish or adjust a relationship between clients on an amicable and mutually
advantageous basis
(i) Example: Helping to organize a business in which two or more clients are entrepreneurs, working out the
financial reorganization of an enterprise in which two or more clients have an interest or arranging a
property distribution in settlement of an estate.
(c) ASK: Are the parties interests antagonistic or generally aligned?
(i) If antagonistic = nonconsentable; If generally aligned = consentable
c) Can you resolve any potential conflict by limiting the scope of representation? Not really
d) Can you keep confidences learned from one joint client from the other joint client? Not if it relates to representation
(1) Does the information asked not to disclose to the other client relate to the common representation?
(a) If yes→ must disclose information to other client OR withdraw
(b) If no→ In limited circumstances, it may be appropriate for the lawyer to proceed with the representation when the
clients have agreed, after being properly informed, that the lawyer will keep certain information confidential.
(i) ONLY if lawyer can reasonably conclude the keeping the secret from the other joint client would not
have adverse impact on representation of clients in a joint venture
5. REPRESENTING CRIMINAL CO-DEFENDANTS
a) Permitted BUT- you shouldn’t do it regardless→ The potential for conflict is so grave that ordinarily an attorney should
decline joint representation of criminal co-Δs
(1) Potential conflicts that could arise:
(a) Later decision by either Δ to seek separate counsel, judge may not delay trial
(b) Testifying against each other = nonconsentable conflict
(c) Negative inferences drawn by jury
(d) Attorney that learns unknown facts from one Δ must disclose to the other Δ
(e) More evidence against one Δ than the other, can’t give either Δ diligent representation because that would require
less vigorous representation of one
b) Under the Sixth Amendment
(1) Holloway v. AR→ Whenever a trial court improperly requires joint representation over timely objection, reversal of
conviction is automatic
(2) Cuyler v. Sullivan→ If a lawyer represents both a criminal defendant and a codefendant, but neither the defendant nor
the lawyer objects to the multiple representation, the defendant is not denied the effective assistance of counsel (and
therefore conviction will not be reversed) unless the conflict of interest actually affected adequacy of representation
c) Analysis
Material limitation likely under 1.7(a)
Lawyer reasonably believes they can provide competent and diligent representation to BOTH Δ’s
Prohibited by law? More likely here than anywhere else– some states have statutes prohibiting joint representation
of criminal co-Δs
Not adverse parties because criminal prosecutions are State v. Δ, not Δ v. Δ
Informed consent of both Δs

6. REPRESENTING FAMILY MEMBERS

a) Representing Both Parties in Divorce
(1) FIRST, determine if material limitation or direct adversity – THEN do 1.7(b) analysis
(2) CANNOT represent both parties in proceedings/litigation– only in negotiation/mediation/arbitration
(a) 1.7(b)(3) issue because one client asserting a claim against another client
(3) If both parties want as much as possible = antagonistic interests = NONCONSENTABLE
(4) If information could come to light that would present a material limitation OR information that could make one party
entitled to more than the other = likely presents issue of competent/diligent representation
(5) When Acceptable→ When divorce is uncontested, little/no assets, no children, parties agree on division
b) Estate Planning→ Representation of multiple family members through drafting wills for each of them is generally
permitted, BUT lawyer should ask if there is anything one family member doesn’t want the other to know about
(1) If the client says yes = lawyer cannot do both wills; otherwise, pretty standard for attorney to draft wills for a family
(2) Main inquiry: Are interests aligned or antagonistic?
(3) FL Bar Opinion Husband and Wife used the same attorney to draft their wills. Husband used separate atty for codicil
depriving Wife of property given to her in will. Attorney #1 had no agreement with parties re: confidences bc no
adversity at the outset of representation. Husband told Attorney #1 about codicil.
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 (a) Issue: Application of the duty of confidentiality when confidentiality was not discussed at the outset of
representation– i.e. can Attorney #1 tell the Wife?
(b) Conclusion: No. The duty of confidentiality must take precedence over the duty to communicate. The lawyer is
prohibited from telling Wife and is required to noisy withdraw→ Telling Wife “I can’t disclose details but a
conflict in this matter has arisen and I advise you to retain separate counsel”

7. REPRESENTING INSURANCE COMPANIES AND INSURED PERSONS

a) The client is the insured person even if insurance company is paying for representation→ General 1.7 analysis
b) Issue = Insurer Pays Attorney
Rule 1.8(f). A lawyer shall not accept compensation for representing a client from one other than the client unless:
(1) The client gives informed consent;
(2) There is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; and
(3) Information relating to representation of a client is protected as required by Rule 1.6.
(1) BUT, insurer will likely want status reports, etc., which would be confidential information = NEED informed consent
c) Settlement→ If the insurer wants to settle and the insured does not = MUST withdraw
d) Contesting Coverage→ If the insurer contests coverage of the insured, insurer must pay for an attorney for the insured,
selected by the insured, UNLESS the insured agrees to be represented by an attorney chosen by the insurer
(1) This CANNOT be contracted out– insurers can say “you may choose from this list” but cannot say “you agree to be
represented by X attorney by entering into a policy with our company”

8. CLASS ACTIONS
a) Unique/Potential Conflicts
(1) Differing interests of subclasses
(a) Example: Conflict between named plaintiffs and other members of class that are represented; among represented
members of the class; between client’s interests and lawyer’s personal interests
(2) Lawyers collect more/higher fees in class actions, can create an issue with their judgment/focus
(a) Courts are more likely to approve a higher percentage of contingent fee in class actions
(b) Individual members of a class may recover $20, but attorney may collect $1M
(3) An attorney may have more concern for named class members compared to unnamed
b) Ethics Rules Don’t Fit Well For Class Actions
(1) Unnamed class members are not clients of the attorney
(a) Issue because this encourages a preference for named members
(b) Pro because it simplifies conflict checks for attorneys

C. CONFLICTS OF INTEREST– SPECIFIC RULES FOR CURRENT CLIENTS

1. BUSINESS TRANSACTIONS WITH A CURRENT CLIENT– A lawyer’s professional training, with the bond of trust and
confidence between A/C, creates a risk that the lawyer can overreach the client in a business, property, or financial transaction.
Rule 1.8(a). A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary
interest adverse to a client unless:
(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing
in a manner that can be reasonably understood by the client;
(2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the
transaction; and
(3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer's role in the transaction,
including whether the lawyer is representing the client in the transaction.
a) The lawyer need not advise the client to consult independent counsel if the client already has retained for the matter
(1) Only need to ADVISE about independent counsel IN WRITING — but client does not have to actually retain
independent counsel
b) Does not apply to an ordinary fee agreement between a lawyer and client OR to standard commercial transactions in which
the lawyer buys goods or services that the client routinely markets to the public
(1) Example: lawyer who buys a car from his car dealer client or the lawyer who uses a client as her stockbroker

2. GIFTS TO LAWYER FROM CLIENT

Rule 1.8(c). A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the
lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client. For purposes of this paragraph,
related persons include a spouse, child, grandchild, parent, grandparent or other relative or individual with whom the lawyer or the client maintains a close,
familial relationship.
a) The same rules apply to a substantial gift from a client to the lawyer’s relative.
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 (1) Relative = spouse, child, parent, grandparent, grandchild, others that lawyer maintains a close/familial relationship
(2) Gift includes a testamentary gift.
b) Soliciting Substantial Gift→ A lawyer must not solicit a substantial gift from a client who is NOT the lawyer’s relative.
(1) BUT– a lawyer may accept a small gift from a client, such as a token of appreciation or an appropriate holiday gift
(2) Does not prohibit a lawyer from accepting a substantial gift, although the gift may be voidable for undue influence.
(3) Example: Lawyer L is a loyal alumnus of School of Law. The school asked L to serve as a pro bono legal advisor to a
committee that was drafting a new policy for the school. L agreed and worked many hours on the project for no fee.
When the work was done, L told the school’s dean that his daughter would love to attend the school, but that she could
not afford tuition. The dean arranged for L’s daughter to be admitted on a full scholarship. L is subject to discipline for
soliciting a substantial gift from the school to his daughter.
c) Preparing Legal Instrument that Creates Substantial Gift→ Cannot prepare legal instrument (like will or deed) that
creates a substantial gift to the lawyer (or the lawyer’s relative), EXCEPT when the donor is one of the lawyer’s relatives.
(1) Example: Attorney A’s aged father asks her to draft a new will for him. The father tells A that he wants to set up a
testamentary trust that will provide college funds for A’s children. A may draft the will and related documents, but
only because the client is her father.
d) Lucrative Appointments→ Allowed to seek himself/law partner or associate named as executor of an estate or counsel to
the executor or to some other fee-paying position.
(1) BUT– the general conflict of interest principles expressed in Rule 1.7 do prohibit such efforts IF the lawyer’s advice is
tainted by the lawyer’s self-interest.

3. ACQUIRING LITERARY OR MEDIA RIGHTS CONCERNING CLIENT’S CASE

Rule 1.8(d). Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to
a portrayal or account based in substantial part on information relating to the representation.
a) Exception: may acquire such rights after the client’s legal matter is entirely completed, appeals and all.
b) Purpose: client’s interest in effective representation may conflict with lawyer’s interest in maximizing value of rights.
(1) E.g., a lawyer might conduct the client’s criminal trial in a sensational manner to make for a better story
c) Does NOT apply to literary/media rights that are not substantially based on information relating to the representation.

4. FINANCIAL ASSISTANCE TO CLIENT IN LITIGATION

Rule 1.8(e). A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that:
(1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter;
(2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client; and
(3) a lawyer representing an indigent client pro bono, a lawyer representing an indigent client pro bono through a nonprofit legal services or public interest
organization and a lawyer representing an indigent client pro bono through a law school clinical or pro bono program may provide modest gifts to the
client for food, rent, transportation, medicine and other basic living expenses. The lawyer:
(i) may not promise, assure or imply the availability of such gifts prior to retention or as an inducement to continue the client-lawyer relationship
after retention;
(ii) may not seek or accept reimbursement from the client, a relative of the client or anyone affiliated with the client; and
(iii) may not publicize or advertise a willingness to provide such gifts to prospective clients.
Financial assistance under this Rule may be provided even if the representation is eligible for fees under a fee-shifting statute.
a) Purpose→ A lawyer who has too great a financial stake in a case may be unable to give the client objective legal advice.
b) Paying Costs and Expenses for Indigent Client→ A lawyer may pay costs and litigation expenses for an indigent client,
without any provision for repayment
(1) Applies even if the representation is eligible for fees under a fee-shifting statute.
c) Modest Gifts When Representing Indigent Client Pro Bono→ A lawyer representing an indigent client pro bono may
provide modest gifts (NOT loans) to the client for food, rent, transportation, medicine, and other basic living expenses.
(1) Subject to prohibitions in (3)(i)-(iii)
d) Other Financial Help Prohibited→ A lawyer is subject to discipline for giving a client other financial help in the context
of pending or contemplated litigation.
(1) Example: Chem Corp.’s chemical plant blew up, spreading toxic fumes across pasture land belonging to dozens of
farmers. The grass shriveled, the cows died, and the farmers became destitute. Firm took out newspaper ads offering
to represent the farmers on contingency, to advance the costs and expenses of litigation, and to lend money to restore
their farms. The last feature of that offer makes the lawyers subject to discipline.

5. COMPENSATION FROM THIRD PERSON

Rule 1.8(f). A lawyer shall not accept compensation for representing a client from one other than the client unless:
(1) The client gives informed consent;
(2) There is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; and
(3) Information relating to representation of a client is protected as required by Rule 1.6.

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 a) Can arise with minors, employee-employer, insured-insurer, etc.
b) Example: T, a pimp, seeks to employ attorney A to defend C, who is charged with prostitution. T demands to be present
whenever A talks with C, and T directs C to plead not guilty, promising to pay the fine if C is found guilty after trial. If A
agrees to represent C under these conditions, A is subject to discipline.

6. AGGREGATE SETTLEMENTS
a) Aggregate Settlement→ When claims of 2+ claimants are settled simultaneously
(1) Presents an issue when Δ counsel offers lump sum for all claims, Πs counsel accepts and is responsible for dividing
the money among the Πs
Rule 1.8(g). A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a
criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client gives informed consent, in a writing signed by the client. The
lawyer's disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement.
b) The disclosure requirement means that the attorney has to tell the clients how much money each Π is getting
(1) This is confidential information under 1.6, so MUST have informed consent of each client IN WRITING

7. PROPRIETARY INTEREST IN SUBJECT OF LITIGATION

Rule 1.8(i). A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that
the lawyer may:
(1) Acquire a lien authorized by law to secure the lawyer's fee or expenses; and
(2) Contract with a client for a reasonable contingent fee in a civil case.
a) Contingent Fee Exception→ A lawyer may enter into a contingent fee arrangement with a client in a civil case even
though it gives the lawyer a personal stake in the outcome of the case and may thus affect the lawyer’s objectivity
b) Attorney’s Lien Exception→ In some states, an attorney is allowed to secure payment of her fee and repayment of
advanced litigation expenses by taking a lien on the proceeds of a client’s case.
c) Example: F owns a United States patent on a process for manufacturing fertilizer. R brings a declaratory judgment action
against F, alleging that F’s patent is invalid. Attorney A agrees to represent F in the declaratory judgment action in
exchange for an assignment of a one-half ownership interest in F’s patent. A is subject to discipline.
d) Example: East Carolina permits an attorney to contract with a client for a lien to secure the attorney’s fee and advanced
litigation expenses. Attorney A’s fee agreement with client C provides that A shall have a lien on whatever C recovers in
her case against X to secure payment of A’s fee and to secure repayment of litigation expenses that A advances on C’s
behalf. This provision of A’s fee agreement is proper.

8. SEXUAL RELATIONSHIP BETWEEN LAWYER AND CLIENT

Rule 1.8(j). A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer
relationship commenced.
a) Because a sexual relationship between a lawyer and client is likely to distort the lawyer’s professional judgment and
endanger confidentiality = lawyer subject to discipline
(1) Whether or not the client consents
(2) Whether or not the client is harmed
b) UNLESS their consensual sexual relationship predated the lawyer-client relationship
c) When the client is an organization, this rule applies to any person who supervises, directs, or regularly consults with the
lawyer concerning the organization’s legal matters.
d) No Imputation→ conflict created by relationship is personal in nature and is not imputed to the lawyer’s colleagues
e) Pre-existing relationships can still cause conflict→ lawyer should consider whether the sexual relationship will
materially limit the lawyer-client relationship and implicate the general conflict of interest rule for current clients

9. IMPUTATION
Rule 1.8(k). While lawyers are associated in a firm, a prohibition in the foregoing paragraphs (a) through (i) that applies to any one of them shall apply to all of
them.

D. REPRESENTING ORGANIZATIONS
Rule 1.13 – Organization as Client
(a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.
(b) If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or
refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law that reasonably
might be imputed to the organization, and that is likely to result in substantial injury to the organization, then the lawyer shall proceed as is reasonably
necessary in the best interest of the organization. Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization to
do so, the lawyer shall refer the matter to higher authority in the organization, including, if warranted by the circumstances, to the highest authority that
can act on behalf of the organization as determined by applicable law.

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(c) Except as provided in paragraph (d), if:
(1) despite the lawyer’s efforts in accordance with paragraph (b), the highest authority that can act on behalf of the organization insists upon or fails to
address in a timely and appropriate manner an action, or a refusal to act, that is clearly a violation of law, and
(2) the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization,then the lawyer may reveal
information relating to the representation whether or not Rule 1.6 permits such disclosure, but only if and to the extent the lawyer reasonably
believes necessary to prevent substantial injury to the organization.
(d) Paragraph (c) shall not apply with respect to information relating to a lawyer’s representation of an organization to investigate an alleged violation of
law, or to defend the organization or an officer, employee or other constituent associated with the organization against a claim arising out of an alleged
violation of law.
(e) A lawyer who reasonably believes that he or she has been discharged because of the lawyer’s actions taken pursuant to paragraphs (b) or (c), or who
withdraws under circumstances that require or permit the lawyer to take action under either of those paragraphs, shall proceed as the lawyer reasonably
believes necessary to assure that the organization’s highest authority is informed of the lawyer’s discharge or withdrawal.
(f) In dealing with an organization’s directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the
client when the lawyer knows or reasonably should know that the organization’s interests are adverse to those of the constituents with whom the lawyer
is dealing.
(g) A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject
to the provisions of Rule 1.7. If the organization’s consent to the dual representation is required by Rule 1.7, the consent shall be given by an
appropriate official of the organization other than the individual who is to be represented, or by the shareholders.

1. This rule can be awkward because you create relationships with the people of the organizations through representation but you
do NOT represent them
2. CAN YOU REPRESENT BOTH AN ORGANIZATION AND ITS EMPLOYEES?
a) Yes, but requires consent and 1.7 analysis
b) Example→

c) If you decide to just represent the corporation, MUST give warning to the employee that you only represent the
corporation and nothing the employee tells you is confidential (Upjohn)
(1) Failure to give warning could = a/c relationship, creates a prospective client = conflict → must withdraw
3. IF AN EMPLOYEE IS NOT ACTING IN THE BEST INTEREST OF THE CORPORATION
a) 1.13(b),(c) Two Step Analysis
(1) MUST report UP to higher authority in the corporation (usually the board of directors)
(2) If reporting up does not yield results/response a lawyer CAN report OUT to agency, official, etc.
(a) Lawyer CANNOT report OUT if they were hired by the organization to investigate potential violations of law or
to defend organization against alleged violations of law
(i) If the organization knew that the attorney they hired could report findings of an investigation OUT, they
probably wouldn’t hire/investigate at all. Want to encourage investigation and remedies
(a) Also would run afoul of 1.6 if attorney could disclose outside of corp
(ii) Changes duty→ Still have to report UP, but cannot report OUT
b) 4 Elements of 1.13(b)
(1) Lawyer must know
(2) Action related to representation
(a) Action: engaged, intends to act, refuses to act
(3) Action of employee is a violation of legal obligation to the organization OR a violation of law that reasonably might
be imputed to the organization
(4) Likely to result in substantial injury to the organization
c) Does a lawyer always have to immediately report to the board/higher authority upon discovery?
(1) No. The lawyer can approach the employee first depending on the circumstances
(a) Lawyer should give due consideration to:
(i) Seriousness of the violation and its consequences;
(ii) Responsibility in the organization;
(iii) Apparent motivation of the person involved;
(iv) Policies of the organization concerning such matters; and
(v) Any other relevant considerations.

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 (b) In some circumstances, it may be appropriate for the lawyer to ask the employee to reconsider the matter
(i) If the circumstances involve a constituent’s innocent misunderstanding of law and subsequent
acceptance of the lawyer’s advice, the lawyer may reasonably conclude that the best interest of the
organization does not require that the matter be referred to higher authority.
(ii) If a constituent persists in conduct contrary to the lawyer’s advice, it will be necessary for the lawyer to
take steps to have the matter reviewed by a higher authority in the organization.
(iii) If the matter is of sufficient seriousness and importance/urgency to the organization, referral to higher
authority may be necessary even if the lawyer has not communicated with the constituent.
(iv) Any measures taken should minimize risk of revealing information relating to the representation to
persons outside the organization. Even in circumstances where a lawyer is not obligated to proceed, a
lawyer may bring to the attention of an organizational client, matters that the lawyer reasonably believes
to be of sufficient importance to warrant doing so in the best interest of the organization.

E. PROSPECTIVE CLIENTS
Rule 1.18 – Duties to Prospective Client
(a) A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.
(b) Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information,
except as Rule 1.9 would permit with respect to information of a former client.
(c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a
substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter,
except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is
associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d).
(d) When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if:
(1) Both the affected client and the prospective client have given informed consent, confirmed in writing, or:
(2) The lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably
necessary to determine whether to represent the prospective client; and
(i) The disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and
(ii) Written notice is promptly given to the prospective client.
1. Prospective client→ A person who consults with an attorney regarding the possibility of forming an A/C relationship
2. “Client” means a current/former client. Rule is specific when referring to a prospective client
3. A lawyer may condition consultation with prospective client on informed consent that no information disclosed during the
consultation will prohibit the lawyer from representing a different client in the matter.
a) If the agreement expressly provides, prospective client may also consent lawyer's subsequent use of info received
4. Even in the absence of an agreement, the lawyer is not prohibited from representing a client with interests adverse to those of
the prospective client in the same/substantially related matter unless the lawyer has received from the prospective client
information that could be significantly harmful if used in the matter.
5. Attorneys are encouraged to stop a prospective client from giving any harmful information by saying “Stop right there, don’t
give me any more information. Just tell me who you want to sue so I can run a conflicts check”
a) Only get as much information from a prospective client to determine whether or not to take the matter (conflict)
b) The more information you receive from a prospective client, the more likely that it can be harmful
6. Screened→ Isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm
that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect
under these Rules or other law.
7. Consultation→ depends on the circumstances.
a) Likely To Be Consultation→ In person/advertising requests or invitation of information regarding potential
representation without clear warnings that limit a lawyer’s obligation AND a person provides information in response
b) Likely Not A Consultation→ A person provides information to a lawyer in response to advertising that merely describes
the lawyer’s education, experience, areas of practice, and contact information, or provides legal information of general
interest.
(1) Such a person communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer
is willing to discuss the possibility of forming a/c relationship, and is not a prospective client
(2) A person who communicates with a lawyer for the purpose of disqualifying the lawyer is not a prospective client
8. ALL CONFLICTS REGARDING POTENTIAL CLIENTS ARE CONSENTABLE !!!!!!!
a) BOTH former/current client AND prospective client must give informed consent IN WRITING

F. FORMER CLIENTS
1. Former/successive conflict→ conflict between present client and interests of org/person that attorney represented previously
2. MUST analyze the current client under 1.7, and the former client under 1.9
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Rule 1.9 – Duties to Former Clients
(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in
which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in
writing.
(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was
associated had previously represented a client
(1) Whose interests are materially adverse to that person; and
(2) About whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives
informed consent, confirmed in writing.
(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not
thereafter:
(1) Use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a
client, or when the information has become generally known; or
(2) Reveal information relating to the representation except as these Rules would permit or require with respect to a client.
3. GENERAL RULE INVOLVING FORMER CLIENTS
a) 1.9(a) → Objective test because the attorney personally represented the former client
4. PRESENT CLIENT V. CLIENT OF ATTORNEY’S FORMER FIRM
a) 1.9(b) → Requires actual knowledge of harmful information bc attorney did not personally represent the former client
b) Whether an attorney actually acquired harmful information depends on a situation's particular facts
(1) Example: Atty may have general access to files of all clients of a law firm and may regularly participate in discussions
of their affairs = privy to all information about all the firm's clients.
(2) BUT atty may only have access to the files of only a limited number of clients and participate in discussions of the
affairs of no other clients = privy to information about the clients actually represented but not those of other clients.
(3) In determining whether atty acquired harmful info, burden of proof is on the firm whose disqualification is sought
c) Analysis for 1.9(b)
(1) Client was previously represented by attorneys former firm but NOT personally repped by attorney
(2) Same/substantially related matter
(3) Former client and current client’s interests are materially adverse
(4) Attorney learned harmful information about the former client that is material to the matter
(5) Informed consent of former client confirmed in writing?
(a) If yes = representation okay; if no = not okay
5. SUBSTANTIALLY RELATED MATTER
a) Substantially related matter→ Involves the same transaction or legal dispute or if there otherwise is a substantial risk that
confidential factual information as would normally have been obtained in the prior representation would materially
advance the client's position in the subsequent matter. = Objective test
b) If NOT same/substantially related matter = NO need for informed consent of former client
c) Example: Atty repped businessman, learned extensive private financial information about that person may not then rep that
person's spouse in seeking a divorce.
d) Example: Atty repped client in securing environmental permits to build a shopping center would be precluded from
representing neighbors seeking to oppose rezoning of the property on the basis of environmental considerations
(1) BUT atty would not be precluded on the grounds of substantial relationship from defending a tenant of the completed
shopping center in resisting eviction for nonpayment of rent
e) Public info or info disclosed to other parties adverse to the former client ordinarily will not be disqualifying
f) Info acquired in a prior representation may have been rendered obsolete by the passage of time
g) Organization/Corporate client→ general knowledge of policies/practices ordinarily will not preclude subsequent
representation BUT knowledge of specific facts gained in prior rep relevant to present matter will preclude representation
(1) i.e. knowledge about corporation’s negotiation/litigation tactics
h) A former client is not required to reveal the confidential information learned by the lawyer in order to establish a
substantial risk that the lawyer has confidential information to use in the subsequent matter under 1.9(a)
i) Materially advance → degree to which the current representation may actually be harmful to the former client
j) Confidences→ Information not publicly available/revealed to adverse parties of former client
6. ALL CONFLICTS INVOLVING FORMER CLIENTS ARE CONSENTABLE
7. ANALYSIS FOR 1.9(a)
a) Is this the same or substantially related matter?
(1) Would confidences normally been disclosed in prior rep that could harm the former client in this representation?
b) What information did you learn about the former client in the prior representation?
c) Would the information you know harm the former client?
(1) If you have inside information about former client that could advance present client’s position in this matter = yes
d) If you’ve made it this far, you need the former client’s informed consent, which is unlikely
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 8. HOW TO AVOID CONFLICTS WITH FORMER CLIENTS
a) Advance waivers→ waiver saying that client agrees to waive conflicts that may arise in subsequent matters after the
conclusion of their representation
b) Must be specific to the type of conflict and conduct involved, general “one size fits all” is usually not acceptable

G. IMPUTATION OF FORMER CLIENT CONFLICTS

Rule 1.10 – Imputation of Conflicts of Interest: General Rule
(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from
doing so by Rules 1.7 or 1.9, unless:
(1) The prohibition is based on a personal interest of the disqualified lawyer and does not present a significant risk of materially limiting the
representation of the client by the remaining lawyers in the firm; or
(2) The prohibition is based upon Rule 1.9(a) or (b) and arises out of the disqualified lawyer’s association with a prior firm, and
(i) The disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom;
(ii) Written notice is promptly given to any affected former client to enable the former client to ascertain compliance with the provisions of this
Rule, which shall include a description of the screening procedures employed; a statement of the firm's and of the screened lawyer's
compliance with these Rules; a statement that review may be available before a tribunal; and an agreement by the firm to respond promptly
to any written inquiries or objections by the former client about the screening procedures; and
(iii) Certifications of compliance with these Rules and with the screening procedures are provided to the former client by the screened lawyer
and by a partner of the firm, at reasonable intervals upon the former client's written request and upon termination of the screening
procedures.
(b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse
to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless:
(1) The matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and
(2) Any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter.
(c) A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in Rule 1.7.
(d) The disqualification of lawyers associated in a firm with former or current government lawyers is governed by Rule 1.11.
1. Firm→ A lawyer/lawyers in a law partnership, professional corp, sole proprietorship or other association authorized to practice
law; or lawyers employed in a legal services organization or the legal department of a corporation or other organization
a) Whether two or more lawyers constitute a firm within this definition can depend upon the specific facts
(1) Two practitioners who share office space and occasionally consult or assist each other ≠ firm
(2) BUT, if they present themselves to the public in a way that suggests that they are a firm or conduct themselves as a
firm = firm for purposes of the Rules
(3) Law department of an organization, including the government = firm
(4) Lawyers in legal aid and legal services organizations = depends on the structure of the organization
2. GENERAL RULE: DISQUALIFIED ATTORNEY’S CURRENT FIRM– If one lawyer in the firm is barred by 1.7 or 1.9
from representing a client = ALL attorneys in the firm are barred from representation
a) Applies to BOTH current and former clients; regardless of how many offices the firm has, even in different states
3. EXCEPTIONS TO GENERAL RULE: DISQUALIFIED ATTORNEY’S CURRENT FIRM
a) The conflict arises from the disqualified attorney’s personal interests AND the personal interest that disqualified
the attorney is not shared by other attorneys in the firm
(1) Examples: political affiliations, familial relationships, business interests, fiduciary duties owed to others (like serving
on the board of directors of a corp)
(2) Family relationships→ concern with breaching confidentiality
(a) If ^ is the case with disqualified attorney = NOT imputed to other attorneys in the firm
(3) If the conflict arises under this exception, you do NOT need the client’s informed consent OR give them notice
b) The conflict involves a former client of disqualified attorney at a prior firm OR former client of disqualified
attorney’s prior firm (even if not personally repped by disqualified attorney) AND:
The disqualified attorney is timely screened
- Screened→ Isolation of a lawyer from any participation in a matter through the timely imposition of
procedures within a firm that are reasonably adequate under the circumstances to protect information that the
isolated lawyer is obligated to protect under these Rules or other law.
- Purpose of screening = protect confidential info→ how to determine if screening procedures are appropriate
Written notice is given to the former client at issue
- INCLUDING: description of the firm’s screening procedures, statement of the firm and disqualified
attorney’s compliance with the RPC, statement that review may be available by a tribunal, agreement by the
firm to respond promptly to any inquiries/objections by the former client regarding the firm’s screening
procedures
Continued certificate(s) of compliance with the RPC and screening procedures is made available if requested
*** You do NOT need the affected former client’s informed consent– ONLY NOTICE!!!

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 4. OTHER SITUATIONS WHERE SCREENING CAN AVOID IMPUTATION
a) Conflict created by work disqualified attorney did before licensure/in law school
b) Conflict created by disqualified attorney’s former government employment
c) Conflict created by disqualified attorney receiving confidential information from a prospective client
d) Conflict created by disqualified attorney’s former employment/service as a judge, arbitrator, mediator, or law clerk
5. CONFLICT WITH FORMER CLIENT OF FORMER COLLEAGUE– A firm can represent new clients that have
interests materially adverse to a former client of a formerly associated attorney (i.e. ex co-worker) UNLESS:
a) The proposed matter is the same/substantially related to matter formerly associated attorney repped former client in; AND
b) Any lawyer in the firm CURRENTLY has confidential information material to the matter
6. CONSENTABILITY– So long as representation complies with the conditions in 1.7, ANY conflict under 1.10 is consentable
a) If you have the affected client’s (NOT client you want to rep, client that created conflict) informed consent = all good
(1) Only necessary if the prohibition arises from 1.10(a) or (b); Not the exceptions

H. LEGAL FEES
1. TYPES OF ARRANGEMENTS
a) Hourly→ Most common, pay/charged for the time worked
b) Contingent→ Percentage of client’s recovery (if any), MOST REGULATED
(1) Concern: engaging in unethical conduct to ensure client recovers
c) Flat Fees/Fee Schedules→ Charging a set amount for specific services
(1) Common in wills/estates, divorces
d) Retainer→ Fee paid initially to retain attorney for representation
(1) More common when the client does not have an existing relationship with the attorney
Rule 1.5 – Fees
(a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in
determining the reasonableness of a fee include the following:
(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) The fee customarily charged in the locality for similar legal services;
(4) The amount involved and the results obtained;
(5) The time limitations imposed by the client or by the circumstances;
(6) The nature and length of the professional relationship with the client;
(7) The experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) Whether the fee is fixed or contingent.
(b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client,
preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented
client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client.
(c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by
paragraph (d) or other law. A contingent fee agreement shall be in a writing signed by the client and shall state the method by which the fee is to be
determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses
to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must
clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a
contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the
remittance to the client and the method of its determination.
(d) A lawyer shall not enter into an arrangement for, charge, or collect:
(1) Any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony
or support, or property settlement in lieu thereof; or
(2) A contingent fee for representing a defendant in a criminal case
(e) A division of a fee between lawyers who are not in the same firm may be made only if:
(1) The division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation;
(2) The client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing; and
(3) The total fee is reasonable.
2. REASONABLENESS STANDARD
a) Applicable to all types of fee arrangements, but not necessary to assess all factors in every case
b) Variability in rates
(1) Generally, you can’t charge wealthy clients more than poorer clients, but you can raise rates for complex cases/clients
(2) Permissible to lower rates for clients unable to pay
c) Applies to fees AND expenses
d) Amount involved and results obtained looks at overall value of matter compared to fees to determine proportionality
3. REQUIREMENTS FOR FEES
a) ONLY contingent fee arrangements are required to be in writing

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 b) Unless there is a pre-existing attorney/client relationship, the basis and rate of fees and expenses must be communicated to
the client before or within a reasonable time after starting representation
c) Scope of the representation must also be communicated to client in same time frame
d) Change in basis/rate of fees must be communicated to the client BUT not necessary to communicate before you raise rates
4. CONFLICTS WITH FEES
a) Double Billing→ Completing work for multiple clients at the same time and billing both for the full time spent
(1) NOT allowed
(2) Example: Four hour flight for deposition in Client A’s case, doing work on flight for Client B’s case and billing both
clients for four hours
(3) BUT– you can bill each client for a portion of the time (bill Client A for 2 hours, Client B for 2 hours)
b) Recycled Work→ Work already done for a previous client applied to current client’s case (like research)
(1) Cannot bill client for recycled work
c) No charging clients for overhead costs (rent, power, etc.)
d) A lawyer may charge a client for the ACTUAL cost incurred from administrative tasks (printing, mailing, etc.) but
CANNOT mark-up
e) No marking up billing or expenses
(1) Billing example: charging a client for 10 hours of work when it only took you 8 hours because you were efficient
(2) Expenses example: Airline giving firm 10% off of all flights, charging client for full price of flight
5. CONTINGENT FEES
a) When Prohibited:
(1) Criminal cases
(2) Domestic Relations cases→ when based on the securing of a divorce, amount of alimony, or property settlement.
(a) BUT may use contingent fee in a suit to recover money that is past due under an alimony or support decree.
b) Must be reasonable
(1) A lawyer must not use a contingent fee when the facts of the case make it unreasonable to do so
(2) Example: Client C asked lawyer L to represent her as plaintiff in a medical malpractice case. Liability was clear, the
damages were large, and the defendants were affluent. The case was a clear winner, and L knew that he could settle it
with only a few hours of work. L signed C up to a 33% contingent fee. After two hours, L arranged a settlement that C
accepted. Unreasonable for L to use contingent fee and for L to collect ⅓ of the settlement
c) Must be in writing signed by client
(1) A contingent fee agreement must be in a writing signed by the client, and the writing must state:
(a) How the fee is to be calculated, including percentage lawyer will get if case is settled, won at trial, or on appeal;
(b) What litigation and other expenses are to be deducted from the recovery;
(c) Whether deductions for expenses will be made before or after the contingent fee is calculated; and
(d) What expenses the client must pay, whether or not she wins the case
(2) At the end of a contingent fee case, the lawyer must give the client a written statement showing the outcome of the
case, the remittance to the client, and how the remittance was calculated.
6. FEE DISPUTES– In seeking compensation from a client, a lawyer may not employ collection methods forbidden by law,
improperly use confidential information, or harass a client.
a) Remedies Available to Lawyer→ In addition to filing a lawsuit to recover their fees, lawyers have several remedies if a
client refuses to pay all or a portion of a fee
(1) Liens→Most states recognize a charging lien, where any recovery obtained for client serves as security lawyer’s fees.
Even states that do not recognize a charging lien usually recognize a lien if created by lawyer and client agreement.
(a) Many states also permit the lawyer to exercise a retaining lien→ retain documents, funds, and property of the
client until his fee is paid
(2) Retention of Funds in Trust Account→ If a lawyer receives funds on behalf of a client from which his fee is to be paid
(e.g., a settlement check), and the client disputes the amount of his fee, the lawyer must retain the disputed amount in
a client trust account until the dispute is resolved.
(3) Arbitration or Mediation→ Bar associations have established arbitration or mediation services to help lawyers resolve
fee disputes with their clients. Lawyers are encouraged to use these services when they are available.
7. FEE SPLITTING WITH OTHER LAWYERS
a) General Rule→ A lawyer must not split a legal fee with another lawyer
(1) Designed to prevent lawyers from becoming “client brokers” and to discourage excessive fees.
b) Exceptions
(1) Lawyers Within a Firm→ The partners and associates within a law firm may pool and split legal fees

29
 (2) Separation and Retirement Agreements→ A law firm may make payments to a former partner or associate under a
separation or retirement agreement
(3) Certain Splits with Lawyers Outside Firm→ Sometimes 2+ lawyers from different firms work together on a case. Rule
1.5(e) permits them to submit a single bill to the client, and then to split the fee, if the following conditions are met:
(a) The total fee is reasonable;
(b) The split is in proportion to the services performed by each lawyer, or some different proportion if each lawyer
assumes joint responsibility for the matter; and
(c) The client agrees to the split in a writing that discloses the share each lawyer will receive.
8. REFERRALS
a) True Referral Fees Are Unethical– A lawyer cannot pay anyone (including another lawyer) for recommending/referring
(1) Rule 1.5(e) does not permit fee splitting with a referring lawyer who neither assumes responsibility for a matter nor
does work on the matter
(2) BUT a lawyer may set up a reciprocal referral arrangement with another lawyer or with a nonlawyer professional in
which each person agrees to refer clients or customers to the other.
(a) The arrangement must not be exclusive AND the lawyer’s client must be informed of the existence and nature of
the arrangement.

I. GOVERNMENT LAWYERS
Rule 1.11 – Special Conflicts of Interest for Former & Current Government Officers & Employees
(a) Except as law may otherwise expressly permit, a lawyer who has formerly served as a public officer or employee of the government:
(1) Is subject to Rule 1.9(c); and
(2) Shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or
employee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation.
(b) When a lawyer is disqualified from representation under paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly
undertake or continue representation in such a matter unless:
(1) The disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and
(2) Written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule.
(c) Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person
acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in
which the information could be used to the material disadvantage of that person. As used in this Rule, the term "confidential government information"
means information that has been obtained under governmental authority and which, at the time this Rule is applied, the government is prohibited by law
from disclosing to the public or has a legal privilege not to disclose and which is not otherwise available to the public. A firm with which that lawyer is
associated may undertake or continue representation in the matter only if the disqualified lawyer is timely screened from any participation in the matter
and is apportioned no part of the fee therefrom.
(d) Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or employee:
(1) Is subject to Rules 1.7 and 1.9; and
(2) Shall not:
(i) Participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental
employment, unless the appropriate government agency gives its informed consent, confirmed in writing; or
(ii) Negotiate for private employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is
participating personally and substantially, except that a lawyer serving as a law clerk to a judge, other adjudicative officer or arbitrator may
negotiate for private employment as permitted by Rule 1.12(b) and subject to the conditions stated in Rule 1.12(b).
(e) As used in this Rule, the term "matter" includes:
(1) Any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge,
accusation, arrest or other particular matter involving a specific party or parties, and
(2) Any other matter covered by the conflict of interest rules of the appropriate government agency.
1. PRIVATE WORK FOLLOWING GOVERNMENT WORK ON SAME MATTER– Except when expressly permitted by
law, a lawyer who leaves government service and enters private practice must not represent a private client in a matter in which
the lawyer participated personally and substantially while in government service, unless the government gives informed
consent, confirmed in writing.
a) Matter→ A specific set of facts involving some specific parties.
b) “Personally and substantially” → Applies only when the lawyer’s work on a matter was both personal and substantial.
(1) Does not include work that is trifling, and it does not include mere supervisory responsibility.
c) Imputation→ If a lawyer is disqualified by 1.11(a), then everyone in that lawyer’s firm is also disqualified unless the
lawyer is timely screened from the case, the lawyer does not share fees from the matter, and written notice is promptly
given to the governmental agency to enable it to make sure that the above conditions are being met.
2. SUBSEQUENT USE OF INFORMATION GAINED DURING GOVERNMENT SERVICE– Except when expressly
permitted by law, a government lawyer who receives confidential government information about a person must not later
represent a private client whose interests are adverse to that person, when the information could be used to the material
disadvantage of that person
a) Covers only information actually received by the government lawyer
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 b) Confidential government information→ information that is gained under government authority and which the government
is prohibited from revealing, or has a privilege not to reveal, and which is not otherwise available to the public
c) Imputation→ If a former government lawyer is disqualified by 1.11(c), everyone in lawyer’s firm is disqualified unless:
(1) The lawyer is timely screened from the matter; and
(2) The lawyer is not apportioned any part of the fee earned in the matter.
3. CURRENT GOVERNMENT SERVICE AFTER PRIVATE PRACTICE
a) Ordinary Conflict Rules Apply→ The ordinary conflict rules stated in 1.7 (current clients) and 1.9 (former clients) apply
to a lawyer who enters government service after private practice or other nongovernmental work.
b) “Personal and Substantial” Rule Also Applies→ If a lawyer worked “personally and substantially” on a “matter” in
private practice or other nongovernmental employment, the lawyer must not work on that same matter when she later
enters government service, whether or not the later work would be adverse to a former client
(1) BUT– informed consent, confirmed in writing, can waive the conflict
c) Negotiating for Private Employment→ must not negotiate for private employment with any party or lawyer who is
involved in that matter
(1) EXCEPTION for judges’ and adjudicative officers’ law clerks who are seeking work after their clerkships end

J. JUDGES, ARBITRATORS, AND MEDIATORS

Rule 1.12 – Former Judge, Arbitrator, Mediator or Other Third-Party Neutral
(a) Except as stated in paragraph (d), a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and
substantially as a judge or other adjudicative officer or law clerk to such a person or as an arbitrator, mediator or other third-party neutral, unless all
parties to the proceeding give informed consent, confirmed in writing.
(b) A lawyer shall not negotiate for employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is
participating personally and substantially as a judge or other adjudicative officer or as an arbitrator, mediator or other third-party neutral. A lawyer
serving as a law clerk to a judge or other adjudicative officer may negotiate for employment with a party or lawyer involved in a matter in which the clerk
is participating personally and substantially, but only after the lawyer has notified the judge or other adjudicative officer.
(c) If a lawyer is disqualified by paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation
in the matter unless:
(1) The disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and
(2) Written notice is promptly given to the parties and any appropriate tribunal to enable them to ascertain compliance with the provisions of this Rule.
(d) An arbitrator selected as a partisan of a party in a multi member arbitration panel is not prohibited from subsequently representing that party.
1.
SWITCHING FROM JUDICIAL SERVICE TO PRIVATE LAW PRACTICE– A lawyer must not represent a private
client in a matter in which the lawyer has earlier participated personally and substantially while serving as a judge or other
adjudicative officer (e.g., a referee or special master) or as a law clerk to such person, or as an arbitrator, mediator, or other
third-party neutral, unless all parties to the proceedings give informed consent, confirmed in writing.
2. SCREENING CAN AVOID IMPUTED DISQUALIFICATION
a) If a lawyer is disqualified under 1.12(a), everyone else in the lawyer’s firm is also disqualified unless:
(1) The lawyer is timely screened from the matter;
(2) The lawyer is not apportioned any part of the fee earned in the matter; and
(3) Written notice is given to the parties and appropriate tribunal so that they can ensure that foregoing conditions are met.
3. LAW CLERKS NEGOTIATING FOR PRIVATE EMPLOYMENT– A law clerk must notify that judge/officer before
negotiating for private employment with a party (or the attorney for a party) in a matter in which the law clerk is participating
personally and substantially.
a) Law clerks are specially treated because they are usually newly admitted lawyers for whom a clerkship is temporary
4. OTHER ADJUDICATIVE OFFICERS NEGOTIATING FOR PRIVATE EMPLOYMENT– does NOT apply to judges,
arbitrators, mediators, third-party neutrals, and other adjudicative officers.
a) They are forbidden to negotiate for private employment with a party (or the attorney for a party) in a matter in which they
are participating personally and substantially.
b)
VI. LAWYERS’ DUTIES TO COURTS

A. MERITORIOUS CLAIMS AND CONTENTIONS ONLY

Rule 3.1 – Meritorious Claims & Contentions
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.
1. DISCIPLINE FOR ASSERTING FRIVOLOUS POSITION– A lawyer is subject to discipline for bringing a frivolous
proceeding, or for asserting a frivolous position in the defense of a proceeding
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 a) A lawyer is also subject to discipline for taking a frivolous position on an issue in a proceeding.
b) “frivolous” position→cannot be supported by a good faith argument under existing law and that cannot be supported by a
good faith argument for changing the existing law.
c) NOTE it is NOT frivolous to assert a position:
(1) Without first fully substantiating all the facts
(2) Knowing that vital evidence can be uncovered only through discovery proceedings
(3) Even though the lawyer believes that the position will not ultimately prevail
2. DEFENDING IN CRIMINAL PROCEEDINGS– (or for respondent in proceeding that could result in incarceration) may
conduct the defense so that the prosecutor must prove every necessary element of the crime

B. DUTY TO EXPEDITE LITIGATION

Rule 3.2 – Expediting Litigation
A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.
1. REASONABLE EFFORTS– A lawyer must make reasonable efforts to expedite litigation, consistent with interests of client.
2. INTERESTS OF THE CLIENT– The duty to expedite does not require the lawyer to take actions that would harm the
client’s legitimate interests.
a) BUT– realizing financial or other benefit from otherwise improper delay is not a legitimate interest.

C. DUTY OF CANDOR TO THE TRIBUNAL

Rule 3.3 – Candor Toward the Tribunal
(a) A lawyer shall not knowingly:
(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;
(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
(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s 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.
(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or
fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.
(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information
otherwise protected by Rule 1.6.
(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed
decision, whether or not the facts are adverse.
1. CANDOR ABOUT APPLICABLE LAW– An attorney must be candid with the court about the law that applies to the case.
a) False Statements of Law→ An attorney is subject to discipline for knowingly making a false statement of law to the court
or for failing to correct a previously made false statement of material law.
b) Failing to Disclose Controlling Authority→ An attorney is subject to discipline for knowingly failing to disclose to the
court a legal authority in the controlling jurisdiction that is directly adverse to the client’s position and that has not been
disclosed by the opposing counsel.
(1) Fed. R. Civ. P. 11 sanctions can be imposed for failure to cite adverse authority
(2) BUT the attorney is free to argue that the cited authority is not sound or should not be followed
2. CANDOR ABOUT FACTS OF CASE– An attorney is subject to discipline for knowingly making a false statement of fact to
the court or for failing to correct a previously made false statement of material fact.
a) Not required to have personal knowledge of the facts stated in pleadings and other litigation documents—those contain
assertions made by the client or by other persons, not by the attorney.
(1) BUT– when an attorney does make an assertion of fact to the court (e.g., in an affidavit or when asserting facts in oral
argument), expected either to know assertion is true or to believe it to be true based on reasonably diligent inquiry
(2) An attorney’s failure to speak out is, in some contexts, the equivalent of an affirmative misrepresentation
3. NO OBLIGATION TO VOLUNTEER HARMFUL FACTS– The adversary system assumes that opposing sides can use
discovery proceedings and their own investigations to find out the facts.
a) If an attorney’s adversary fails to uncover a harmful fact, an injustice may result, but that is simply the way the adversary
system works.
b) Exception–Ex Parte Proceedings: In an ex parte proceeding, only one side is present. Because the other side has no
opportunity to offer its version of the facts, the model of the adversary system does not apply in the ex parte context.
(1) A lawyer in an ex parte proceeding must inform the tribunal of all material facts KNOWN to the lawyer that will help
the tribunal make an informed decision.

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 4. USING FALSE EVIDENCE– In matter before a tribunal, subject to discipline for offering evidence lawyer knows is false.
a) Knows = actual knowledge, but actual knowledge can be inferred from the circumstances.
b) A lawyer should resolve doubts about veracity in favor of her client, but a lawyer cannot ignore an obvious falsehood.
c) A lawyer may refuse to offer evidence that she reasonably believes is false, except for a criminal defendant’s testimony on
his own behalf
(1) If a CIVIL client has not yet testified, the lawyer cannot call her client to the stand.
(2) Applies in court AND in an ancillary proceeding (e.g., a deposition)
d) Discovery of Falsity After Evidence Has Been Offered→ must take reasonable remedial measures.
(1) FIRST: The lawyer must speak with client, urging cooperation in withdrawing or correcting the false evidence.
(2) SECOND: If the client will not cooperate, the lawyer should consider asking the court’s permission to withdraw.
(a) Ordinarily, withdrawal is not mandatory, but becomes mandatory if lawyer’s discovery of the false evidence
creates such a rift between the lawyer and client that the lawyer can no longer represent the client effectively
(b) Withdrawal alone is NOT a sufficient remedial step if it leaves the false evidence before the tribunal.
(i) The lawyer should also move to strike the false evidence or take other steps to cancel out its effect.
(3) THIRD: if withdrawal is not permitted or will not solve the problem, the lawyer must disclose the situation to the
judge, even if that means disclosing the client’s information that would otherwise be protected under the duty of
confidentiality.
(4) Note that the duty to rectify false evidence continues until the end of the proceedings (final judgment rule)
e) False Testimony by Criminal Defendant→ criminal Δ has 6A right to effective assistance of counsel and right to testify
(1) Issue because a criminal defense lawyer must not present evidence that he knows is false, and ordinarily he must not
reveal the client’s confidential information.
(2) Procedure→ When the client insists on testifying to something that the lawyer knows (because of the client’s
confidential disclosures) is false, very similar to discovery of false evidence after it has been offered
(a) FIRST: The lawyer must try to convince Δ not to testify falsely.
(b) SECOND: If Δ insists on testifying falsely, the lawyer should consider withdrawal, if that will solve the problem.
(i) Usually it won’t bc court will not permit withdrawal or bc withdrawal will not erase/prevent testimony.
(c) THIRD: If all of ^^ fails, the lawyer must reveal the situation to the judge, even if that means disclosing the
client’s confidential information.
(d) Note that the duty to rectify false evidence continues until the end of the proceedings
(e) This solution does not violate Δ’s constitutional right to effective assistance of counsel. (Nix v. Whiteside)
5. OTHER CORRUPTION OF AN ADJUDICATIVE PROCEEDING– A lawyer who represents a client in an adjudicative
proceeding must take appropriate measures to prevent any person (a client or anyone else) from committing criminal or
fraudulent conduct that will corrupt the proceedings.
a) Examples:
(1) Hiding or destroying evidence
(2) Bribing a witness
(3) Intimidating a juror
(4) Buying/bribing a judge
(5) Failing to obey a law or court order to disclose information.
b) Appropriate measures include disclosure to the court, if that becomes necessary.

D. DUTY TO PRESERVE IMPARTIALITY AND DECORUM OF THE TRIBUNAL

Rule 3.5 – Impartiality & Decorum of the Tribunal
A lawyer shall not:
(a) Seek to influence a judge, juror, prospective juror or other official by means prohibited by law;
(b) Communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order;
(c) Communicate with a juror or prospective juror after discharge of the jury if:
(1) The communication is prohibited by law or court order;
(2) The juror has made known to the lawyer a desire not to communicate; or
(3) The communication involves misrepresentation, coercion, duress or harassment; or
(d) Engage in conduct intended to disrupt a tribunal.
1. IMPROPER INFLUENCE– Must not seek to influence a judge, court official, juror, or prospective juror by improper means.
a) Example: A lawyer must not offer a gift to a judge unless the judge would be allowed to accept it under the CJC
2. EX-PARTE COMMUNICATION– While a proceeding is pending, must not have an ex parte communication with a judge,
court official, juror, or prospective juror except when authorized by law or court order.
a) Judges and Court Officials→ Generally, a written communication to a judicial officer is not ex parte if a copy of the
communication is timely sent to the opposing parties.
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 (1) BUT– a lawyer must not communicate orally on the merits of a matter with the judge or other official before whom
the matter is pending without giving adequate notice to the adversary.
(2) If the local rules of court allow lawyers to appear ex parte, without notice to the adversary, to obtain extensions of
time to plead or respond to discovery, a lawyer may do so—but the lawyer must not discuss the merits of the case
when requesting the extension of time.
b) Jurors and Prospective Jurors– In general, before and during trial, a lawyer who is connected with the case must not
communicate (outside of official proceedings) with a juror or member of the panel from which the jurors will be chosen.
(1) Forbids communication on any subject—even the weather; doesn’t matter who initiates the communication.
(2) If a juror or prospective juror attempts to communicate with a lawyer, the lawyer must refuse.
(3) BUT– a lawyer who is not connected to the case may talk to a juror or prospective juror but not about the case
(4) Investigation of Prospective Jurors→ It is not improper for a lawyer to investigate members of a jury panel to
determine their backgrounds and the existence of any factors that would be grounds for a challenge
(a) Must be done discreetly and must not involve contact with the prospective juror or, in most cases, her family.
(b) Internet Presence→ Unless limited by law or court order, a lawyer may review a juror’s or potential juror’s public
Internet presence (e.g., postings on social media websites) in advance of and during a trial.
(i) BUT – a lawyer must not send the juror an access request (e.g., a “friend” request) either personally or
through an agent = prohibited ex parte communication.
(5) Post Trial Communications with Jurors→ After the trial is over and jury is discharged, must not communicate with a
former jury member (or even a person who was a prospective juror) if any of the following conditions is met:
(a) Local law or a court order prohibits such communication;
(b) The juror has told the lawyer that he does not want to communicate; or
(c) The communication involves misrepresentation, coercion, or harassment.
3. DISRUPTIVE CONDUCT– A lawyer must not engage in conduct intended to disrupt a tribunal.
a) Applies in depositions AND in the courtroom
b) Example: Despite repeated warnings by the trial judge, attorney A persisted in banging on the counsel table, interrupting
the judge in mid-sentence, making sour faces while witnesses were examined, and leaning over the jury rail in an
intimidating manner. A is subject to discipline (and, at the court’s discretion, to punishment for contempt of court).
c)
VII. LAWYERS’ DUTIES TO ADVERSARIES AND THIRD PERSONS

A. DUTY OF FAIRNESS TO OPPOSING PARTY AND COUNSEL

Rule 3.4 – Fairness to Opposing Party & Counsel
A lawyer shall not:
(a) Unlawfully obstruct another party' s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary
value. A lawyer shall not counsel or assist another person to do any such act;
(b) Falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;
(c) Knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists;
(d) In pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an
opposing party;
(e) In trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal
knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the
culpability of a civil litigant or the guilt or innocence of an accused; or
(f) Request a person other than a client to refrain from voluntarily giving relevant information to another party unless:
(1) the person is a relative or an employee or other agent of a client; and
(2) the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information.
1. OPPONENT’S ACCESS TO EVIDENCE
a) A lawyer must not unlawfully obstruct another party’s access to evidence
b) A lawyer must not unlawfully alter, destroy, or conceal a document or other item having evidentiary value.
c) CANNOT counsel or assist another person to do any of these things.
(1) Violating MRPC through acts of another (8.4(a))
2. FALSIFYING EVIDENCE AND ASSISTING IN PERJURY– must not falsify evidence. Includes counseling/assisting a
witness to testify falsely.
a) What is permissible:
(1) Probing the witness’s memory
(2) Exploring the basis of the witness’s knowledge
(3) Pointing out holes and fallacies in the witness’s story
(4) Seeking to refresh the witness’s recollection by proper means
b) Impermissible: Trying to “bend” the testimony or put words in the witness’s mouth.

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 3. ABUSING DISCOVERY PROCEDURES– must not make a frivolous discovery request, or fail to make reasonable efforts to
comply with a legally proper discovery request made by the adversary.
a) Abuse of discovery proceedings can also subject both the lawyer and the client to fines and other sanctions under FRCP
4. PAYING WITNESSES– must not offer an inducement to a witness that is prohibited by law.
a) BUT– except when prohibited by local law, the following payments to witnesses are proper:
(1) Travel, Meals, and Lodging→ expenses reasonably incurred by the witness in attending and testifying
(2) Loss of Time→ reasonable compensation for the witness’s loss of time in attending and testifying (e.g., the amount the
witness would have earned at her job had she not had to come to testify).
(3) Experts’ Fees→ reasonable fee to an expert witness for preparing to testify and for testifying. The fee must not be
contingent on either the content of the testimony or the outcome of the case.
5. SECURING ABSENCE OR NONCOOPERATION OF WITNESS– A lawyer must not advise or cause a person to secrete
himself or to flee the jurisdiction for the purpose of making him unavailable as a witness.
a) BUT– a lawyer may advise a person not to voluntarily give information to an opponent or other party if:
(1) The person is a client, or a relative, employee, or agent of a client; and
(2) The lawyer reasonably believes that the person’s interests will not be harmed by not volunteering the information.
6. VIOLATING COURT RULES AND ORDERS–must not knowingly violate a rule of procedure, a rule of evidence, a rule of
court, or an order made by the court
a) BUT– may openly refuse to obey rule/order for the purpose of making good faith challenge to validity of the rule or order.
7. DECEPTION AT TRIAL – A lawyer is subject to discipline for engaging in the following types of deception during trial:
a) Referring to Inadmissible Material
b) Asserting Personal Knowledge of Contested Facts→ A lawyer must not assert personal knowledge of facts in issue (except
when testifying as a witness).
c) Asserting Personal Opinions→ A lawyer must not state a personal opinion about:
(1) The justness of a cause;
(2) The credibility of a witness;
(3) The culpability of a civil litigant; or
(4) The guilt or innocence of an accused.
d) BUT– a lawyer may make an argument based on the evidence concerning any of these matters.
8. USING THREATS TO GAIN ADVANTAGE IN CIVIL CASE– A lawyer may bring, or threaten to bring, criminal charges
against her adversary in order to gain an advantage in a civil case, IF the criminal and civil matters are closely related AND
both the civil case and criminal charges are warranted by the law and the facts
a) BUT– must not threaten to report adversary counsel for a disciplinary violation in order to gain an advantage for her client
(1) If the adversary counsel’s act must be reported, should just report it, not use it as a bargaining chip in the civil case.

B. COMMUNICATION WITH PERSONS OTHER THAN CLIENTS

1. TRUTHFULNESS IN STATEMENTS TO THIRD PERSONS
Rule 4.1 – Truthfulness in Statements to Others
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; or
(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is
prohibited by Rule 1.6.
a) Must Not Make False Statements of Material Fact or Law
(1) Generally, a lawyer has no duty to inform a third person of relevant facts. (Cmt. 1)
(2) Types of Misrepresentation
(a) Making a statement knowing that it is false;
(b) Affirming or incorporating a statement knowing that it is false;
(c) Stating something partly true but misleading, or in some contexts when the lawyer fails to speak or act
(d) Example: Attorney A represented Π in a personal injury case. Π died while settlement negotiation was going on
with the defendant. A must not pursue the settlement negotiation without notifying defense lawyer of P’s death.
(3) Distinguish Conventional Puffery→ certain types of statements ordinarily are not taken as statements of material fact
(a) Estimates of price or value placed on the subject of a transaction are ordinarily regarded as mere puffery, and so is
a statement of a party’s intentions as to settlement of a claim
b) Failure to Disclose Material Facts – Client’s Crime/Fraud– A lawyer must disclose material facts to third person when
necessary to avoid assisting the client in a crime/ fraud unless the lawyer is forbidden to do so by duty of confidentiality.
(1) Where the duty of confidentiality prevents the lawyer from disclosing material facts, and where continued
representation would require the lawyer to assist in the client’s crime or fraud, the lawyer MUST withdraw.

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 2. COMMUNICATION WITH PERSONS REPRESENTED BY COUNSEL
Rule 4.2 – Communication with Person Represented by Counsel
In representing a client, a lawyer shall not communicate about the subject of the representation with a person 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.
a) When Communication Forbidden→ A lawyer must not communicate about a matter with a person the lawyer knows is
represented by counsel, unless that person’s counsel consents, or the law or a court order authorizes the communication
(1) True even if the represented person initiates or consents to the communication
(2) Example: In the case of P v. D, the lawyer for D had excellent reason to believe that P’s lawyer had failed to convey
D’s settlement offer to P. D’s lawyer therefore telephoned P and made the settlement offer directly. D’s lawyer is
subject to discipline for communicating with P without consent of Ps counsel.
b) Application to Organizations→ Corporations and other organizations are “persons” for purposes of this rule
(1) A lawyer must get the consent of the organization’s counsel before communicating with:
(a) A person who supervises, directs, or regularly consults with the organization’s lawyer about the matter;
(b) A person whose conduct may be imputed to the organization for purposes of criminal/civil liability; or
(c) A person who has authority to obligate the organization concerning the matter.
(2) If constituent is represented by her own counsel, then consent by that counsel (rather than orgs counsel) is sufficient.
(3) Consent is NOT needed before talking to a former constituent of the organization.
(a) BUT– when talking with either a present or former constituent, a lawyer must take care not to violate the
organization’s legal rights, such as the attorney-client privilege.
(4) Example: L represents Π in a defamation action against Newspaper. Without getting the permission of Δ’s counsel, L
interviewed the newspaper’s former editor-in- chief and convinced him to disclose some privileged communications
he had with the newspaper’s lawyer about the case. L acted improperly in prying into the privileged communications.
c) Communications Allowed by the Rule
(1) The communication is authorized by law/court order or the communication is not about subject of litigation;
(2) Represented persons from communicating directly with each other; and
(3) A lawyer interviewing an unrepresented person who will be called as a witness by some other party.
(4) EXCEPTION: Lawyers acting pro se→ Even though parties may communicate directly with each other, when a
lawyer is pro se, they are considered to be representing a client and subject to the prohibition

3. DEALING WITH UNREPRESENTED PERSONS

Rule 4.3 – Dealing with Unrepresented Persons
In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the
lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts
to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows
or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.
a) Purpose– An unrepresented person, particularly one not experienced in dealing with legal matters, might assume that a
lawyer is disinterested in loyalties or is a disinterested authority on the law even when the lawyer represents a client.
(1) In order to avoid a misunderstanding, a lawyer will typically need to identify the lawyer’s client and, where necessary,
explain that the client has interests opposed to those of the unrepresented person.
b) Does not prevent a lawyer from negotiating a transaction or settling a client’s dispute with an unrepresented person.
(1) Example: Property owner O wants to lease to M. M is unrepresented, O is represented by attorney A. In negotiating
the terms of the lease, A may communicate directly with M, but A should make clear to M that A represents O and is
not looking out for M’s interests. During the lease negotiations, A may tell M what terms will be acceptable to O. A
may also draft a proposed lease agreement and explain to M what A believes the legal effect of the lease will be.

4. RIGHTS OF THIRD PARTIES

Rule 4.4 – Respect for Rights of Third Parties
(a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use
methods of obtaining evidence that violate the legal rights of such a person.
(b) A lawyer who receives a document or electronically stored information relating to the representation of the lawyer's client and knows or reasonably
should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender.
a) Documents Sent to Lawyer by Mistake– Can happen with e-mail, fax, mail, when docs produced for discovery request
(1) When a lawyer obtains such a document, and when she knows or reasonably should know that it was sent by mistake,
she must promptly notify the sender so that the sender can take protective measures.

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 C. TRIAL PUBLICITY
Rule 3.6 – Trial Publicity
(a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer
knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially
prejudicing an adjudicative proceeding in the matter.
(b) Notwithstanding paragraph (a), a lawyer may state:
(1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved;
(2) information contained in a public record;
(3) that an investigation of a matter is in progress;
(4) the scheduling or result of any step in litigation;
(5) a request for assistance in obtaining evidence and information necessary thereto;
(6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm
to an individual or to the public interest; and
(7) in a criminal case, in addition to subparagraphs (1) through (6):
(i) the identity, residence, occupation and family status of the accused;
(ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person;
(iii) the fact, time and place of arrest; and
(iv) the identity of investigating and arresting officers or agencies and the length of the investigation.
(c) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial
undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client. A statement made pursuant to this paragraph shall be limited
to such information as is necessary to mitigate the recent adverse publicity.
(d) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a).
1. BACKGROUND– Litigants in a trial have a 5A right to have their dispute resolved on admissible evidence, by fair
procedures, in a tribunal that is not influenced by public sentiment or outcry and protection of that right requires some limits on
the kinds of information that can be disseminated to the public before trial—particularly where the trial is to be by jury.
a) On the other hand, the public and the press have countervailing rights under 1A
(1) The public has a right to know about threats to its safety, and it has an interest in knowing about the conduct of
judicial proceedings.
(2) And the subjects of litigation are often significant in debate over questions of public policy.
2. GENERAL RULE– A lawyer connected with a case must not make a public statement outside the courtroom that the lawyer
reasonably should know would have a “substantial likelihood of materially prejudicing” the case
a) e.g., discussing the character or credibility of a party or witness, performance or results of an examination, possibility of a
guilty plea, or existence or contents of a confession
3. RIGHT OF REPLY BUT– a lawyer may make a public statement that a reasonable lawyer would believe is required to
protect client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client.”
4. ADDITIONAL CONSTRAINT ON PROSECUTORS– The prosecutor must not make extrajudicial comments that have a
“substantial likelihood of heightening public condemnation of the accused.”
5. EXCEPTIONS– a lawyer connected with the case may publicly state the following “dry facts” about the case:
a) The claim, charge, or defense involved (provided there is an accompanying statement that the charge is only an accusation
and that the party is deemed innocent until proven guilty);
b) The names of persons involved (unless the law prohibits it);
c) Any information that is already in the public record;
d) The scheduling or result of any step in litigation;
e) The fact that an investigation is ongoing, a request for help in get‐ ting information, and a warning of danger (if
appropriate); and
f) Routine booking information about a criminal defendant, such as his name, address, occupation, family status, the time and
place of arrest, the names of arresting officers, and the names of investigating officers or agencies.
6. ASSOCIATED LAWYERS– Applies to other lawyers who are associated in a firm with lawyers participating in the case.

D. TRIAL COUNSEL AS WITNESS

Rule 3.7 – Lawyer as Witness
(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship on the client.
(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by
Rule 1.7 or Rule 1.9.
1. REASONS TO AVOID
a) Conflict of Interest→ The dual role may create a conflict of interest between the client and the trial counsel.
(1) Example: trial counsel’s testimony may contradict the client’s testimony, or the trial counsel’s obvious bias may make
her an ineffective witness on behalf of the client.

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 b) Differing Functions→ The functions of trial counsel and witness are different. A witness must state facts objectively, but
a trial counsel is supposed to present facts as a partisan advocate.
(1) When the two roles are combined, it may be unclear whether a particular statement is to be taken as evidence or as
advocacy. The tribunal itself can object when the dual role may confuse or mislead the trier of fact.
c) Effect on Adversary→ may be handicapped in challenging credibility of one who serves as trial counsel and witness.
(1) Courtesy and sound tactics may force the adversary to tread softly on cross-examination.
(2) A favorable impression created as trial counsel may lend believability to their words as witness.
2. ETHICAL LIMITATIONS IMPOSED
A lawyer must not act as an advocate at a trial in which the lawyer is likely to be a necessary witness.
a) Uncontested Matter or Mere Formality→ may serve as trial counsel if testimony as a witness will relate solely to an
uncontested matter or to a mere formality.
(1) Example: Attorney A’s testimony will be limited to the authentication of a letter, and there is no reason to doubt the
letter’s authenticity. Either A or another lawyer in her firm may serve as trial counsel.
b) Testimony About Legal Services Rendered in the Case→ may serve as trial counsel if testimony will relate solely to the
nature and value of legal services he has rendered in the case.
(1) Example: State law allows attorneys’ fees to be awarded to the victor in environmental suits brought under the public
trust doctrine. Attorney B’s client won such a case. At the fee setting hearing, B may continue as trial counsel and may
also testify about the number of hours he spent on the case, the nature of the services, and the amount of his ordinary
hourly fee.
c) Substantial Hardship on Client→ may serve as trial counsel and testify about any matter if withdrawal would cause
“substantial” hardship.
(1) Example: For the past five years, attorney C has worked full-time on the discovery and pretrial preparation of a major
tax fraud case. Just before trial, C discovered that she would have to testify on a contested issue concerning some
entries in her client’s books of account. If C withdraws as trial counsel, it will cost her client many thousands of
dollars in extra legal fees, and it will delay the trial by 18 months.
d) Other Lawyers in Firm May Be Witnesses→ A lawyer is permitted to act as advocate at a trial in which another lawyer
in the lawyer’s firm is likely to be called as a wit‐ ness unless precluded from doing so by the conflict of interest rules.
3. CONFLICT RULES– must comply with Rule 3.7 and Rules 1.7 (current clients) and 1.9 (former clients).
a) Dual role can create a conflict between client’s interest in winning the case and lawyer’s interest in earning a fee

E. SPECIAL DUTIES OF A PROSECUTOR

Rule 3.8 – Special Responsibilities of a Prosecutor
The prosecutor in a criminal case shall:
(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;
(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given
reasonable opportunity to obtain counsel;
(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;
(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the
offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor,
except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;
(e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably
believes:
(1) the information sought is not protected from disclosure by any applicable privilege;
(2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and
(3) there is no other feasible alternative to obtain the information;
(f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement
purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise
reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal
case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.
(g) When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of
which the defendant was convicted, the prosecutor shall:
(1) promptly disclose that evidence to an appropriate court or authority, and
(2) if the conviction was obtained in the prosecutor’s jurisdiction,
(i) promptly disclose that evidence to the defendant unless a court authorizes delay, and
(ii) undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of
an offense that the defendant did not commit.
(h) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that
the defendant did not commit, the prosecutor shall seek to remedy the conviction.
1. GENERALLY– prosecutor’s primary goal is to seek justice, not to convict.
a) Prosecutor must assure that the defendant is tried by fair procedures and guilt is decided on proper and sufficient evidence.
b) Local laws may impose additional duties on a prosecutor, and failure to comply with such laws is grounds for discipline
2. WAIVER OF PRETRIAL RIGHTS– Δ appearing pro se with court approval is not “unrepresented” under this rule.
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 a) Example: Indigent accused A was advised of his right to remain silent and of his right to have counsel appointed to defend
him. A asked for the services of a public defender, and said that he did not want to make a statement. Before the public
defender arrived, prosecutor P urged him to “assist us voluntarily in finding out what happened so we can clear this up and
get you out of here without getting into legal technicalities.” P is subject to discipline.
3. DISCLOSING EVIDENCE THAT MAY HELP DEFENSE– Failure to disclose material information may deprive the
defendant of due process. (Brady; Bagley)
a) Example: D was accused of murder. Prosecutor P asked the coroner to pay attention to the size, shape, and location of the
stab wound that killed the victim. The coroner reported that the wound was probably inflicted by a person who was being
held down on the ground by the victim. Since this information tends to suggest self-defense, P must promptly report it to
D’s lawyer.

F. LAWYER AS ADVOCATE IN LEGISLATIVE AND ADMINISTRATIVE PROCEEDINGS

Rule 3.9 – Advocate in Nonajudicative Proceedings
A lawyer representing a client before a legislative body or administrative agency in a nonadjudicative proceeding shall disclose that the appearance is in a
representative capacity and shall conform to the provisions of Rules 3.3(a) through (c), 3.4(a) through (c), and 3.5.
1. APPEARANCES IN A REPRESENTATIVE CAPACITY– Lawyers sometimes appear before legislatures, city councils,
executive agencies, regulatory boards, and other groups that act in a rule-making or policy-making capacity.
a) When a lawyer appears on behalf of a client before a legislative body or administrative agency, the lawyer must disclose
that she is acting in a representative capacity (not on her own behalf).
(1) If a lawyer is appearing on their own behalf (e.g., attending a city council meeting discussing issues important to city
residents), they do NOT have to disclose that they are an attorney
2. DUTIES OF CANDOR AND RESPECT– When a lawyer represents client before a legislative body/administrative agency in
an official hearing/meeting where lawyer/client presents evidence/argument, the lawyer must follow the same rules as in court.
a) Must not make false statements of fact or law, offer evidence known to be false, obstruct access to evidence, knowingly
violate rules/orders of the legislative or administrative body, seek to use undue influence, or engage in disruptive conduct.
b) A lawyer should comply with these rules although the rules do not bind nonlawyers doing similar work
3. LIMITS OF RULE– The Rule does not apply:
a) When a lawyer represents a client in bilateral negotiations with the government;
b) In an application for a license or other privilege;
c) When the government is investigating the client’s affairs; or
d) When the government is examining the client’s compliance with a regular reporting requirement (filing tax returns).

G. LAWYER AS THIRD-PARTY NEUTRAL

Rule 2.4 – Lawyer Serving as Third-Party Neutral
(a) A lawyer serves as a third-party neutral when the lawyer assists two or more persons who are not clients of the lawyer to reach a resolution of a dispute or
other matter that has arisen between them. Service as a third-party neutral may include service as an arbitrator, a mediator or in such other capacity as will
enable the lawyer to assist the parties to resolve the matter.
(b) A lawyer serving as a third-party neutral shall inform unrepresented parties that the lawyer is not representing them. When the lawyer knows or
reasonably should know that a party does not understand the lawyer's role in the matter, the lawyer shall explain the difference between the lawyer's role
as a third-party neutral and a lawyer's role as one who represents a client.
1. GENERALLY– Nonlawyers can serve as third-party neutrals, but some court rules require lawyers for some types of cases
a) Examples of a third-party neutral are an arbitrator, mediator, conciliator, or evaluator.
b) When a lawyer serves as a third-party neutral, she is subject not only to the ordinary rules of legal ethics, but also to
various codes of conduct devised by groups such as the American Arbitration Association.
2. WARNING TO UNREPRESENTED PARTIES– A lawyer who serves as a third-party neutral does not represent any parties.
a) A party who is not familiar with arbitration, mediation, or the like, and who is not represented by counsel, may erroneously
believe that the lawyer third-party neutral is protecting his interests
(1) The lawyer must clearly explain the situation to the unrepresented party (e.g., the lawyer should explain that the
attorney-client privilege does not apply to communications between them)
3. CONFLICTS – A lawyer who serves as a third-party neutral in a matter must not thereafter become the lawyer for anyone
involved in the matter, unless all of the parties give their informed consent, confirmed in writing.
a) Imputed to other lawyers in the lawyer’s firm, but it can be solved by screening the lawyer from the matter, assuring that
he does not share the fee, and notifying the parties in writing about the screening arrangement
b) No conflict when a lawyer who served as a partisan arbitrator for a party is later asked to become that party’s lawyer.

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 H. LAWYER AS NEGOTIATOR
1. GENERALLY– Lawyers must negotiate in both litigation (e.g., settlement negotiations) and nonlitigation contexts (e.g., real
estate transactions, business merger negotiations)
a) Issues of honest and affirmative disclosure often arise in connection with such negotiations
Rule 4.1 – Truthfulness in Statements to Others
In the course of representing a client a lawyer shall not knowingly:
(c) make a false statement of material fact or law to a third person; or
(d) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is
prohibited by Rule 1.6.
2.
PUFFING AND SUBJECTIVE STATEMENTS
a) Key factor = whether the opposing party would be reasonable in relying on the statement made
b) Certain types of subjective statements, such as those relating to the relative merits of the case, estimates of price and value,
and a party’s intentions as to an acceptable settlement are not considered statements of material fact
(1)
VIII. UNAUTHORIZED PRACTICE OF LAW
Rule 5.5 – Unauthorized Practice of Law; Multijurisdictional Practice of Law
(a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.
(b) A lawyer who is not admitted to practice in this jurisdiction shall not:
(1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice
of law; or
(2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.
(c) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a
temporary basis in this jurisdiction that:
(1) are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter;
(2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer
is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized;
(3) are in or reasonably related to a pending or potential arbitration, mediation, or other alternative resolution proceeding in this or another jurisdiction,
if the services arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice and are not
services for which the forum requires pro hac vice admission; or
(4) are not within paragraphs (c) (2) or (c)(3) and arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is
admitted to practice.
(d) A lawyer admitted in another United States jurisdiction or in a foreign jurisdiction, and not disbarred or suspended from practice in any jurisdiction or the
equivalent thereof, or a person otherwise lawfully practicing as an in-house counsel under the laws of a foreign jurisdiction, may provide legal services
through an office or other systematic and continuous presence in this jurisdiction that:
(1) are provided to the lawyer's employer or its organizational affiliates, are not services for which the forum requires pro hac vice admission; and when
performed by a foreign lawyer and requires advice on the law of this or another U.S. jurisdiction or of the United States, such advice shall be based
upon the advice of a lawyer who is duly licensed and authorized by the jurisdiction to provide such advice; or
(2) are services that the lawyer is authorized by federal or other law or rule to provide in this jurisdiction.
(e) For purposes of paragraph (d):
(1) the foreign lawyer must be a member in good standing of a recognized legal profession in a foreign jurisdiction, the members of which are admitted
to practice as lawyers or counselors at law or the equivalent, and subject to effective regulation and discipline by a duly constituted professional
body or a public authority; or,
(2) the person otherwise lawfully practicing as an in-house counsel under the laws of a foreign jurisdiction must be authorized to practice under this
Rule by, in the exercise of its discretion, [the highest court of this jurisdiction].
A. UNAUTHORIZED PRACTICE BY LAWYER
1. A lawyer who is admitted to practice law in one jurisdiction is not, with‐ out more, authorized to practice in any other
jurisdiction. A lawyer is subject to discipline for practicing in a jurisdiction where she is not admitted to practice. (5.5(a))
2. Except as allowed by that jurisdiction’s laws or ethics rules, the unadmitted lawyer must not (5.5(b)):
a) Represent that she is admitted to practice in that jurisdiction, OR
b) Establish an office or other systematic or continuous presence for the practice of law in that jurisdiction.

B. MULTIJURISDICTIONAL PRACTICE
1. PERMISSIBLE TYPES OF TEMPORARY MULTIJURISDICTIONAL PRACTICE– if a lawyer is admitted to practice
in one state, and is not disbarred or suspended from practice in any state, then she may provide legal services in a second state
on a temporary basis in five situations:
a) Association with Local Lawyer→ A lawyer may practice on a temporary basis in a state in which she is not admitted if
she associates with a local lawyer who actively participates in the matter.
b) Special Permission to Practice in Local Tribunal→ An out-of-state lawyer may request special permission from a local
court, administrative agency, or other tribunal to handle a matter in that tribunal.
(1) Admission “pro hac vice,” which means admission for purposes of this matter only.
(2) An out-of-state lawyer who reasonably expects to be admitted pro hac vice may engage in preliminary activities
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 c) Mediation or Arbitration Arising Out of Practice in Home State→ A lawyer may mediate, arbitrate, or engage in
another form of alternative dispute resolution in a state in which she is not admitted to practice if her services arise out of,
or are reasonably related to, her practice in the state in which she is admitted.
d) Other Temporary Practice Arising Out of Practice in Home State→ catch-all category that permits a lawyer to
temporarily practice out of state if out-of- state practice is reasonably related to the lawyer’s home state practice.
(1) Example: Lawyer L is admitted to practice in State One only and represents a State One client that buys shopping
centers. That client asks L to travel to State Two to negotiate with the owner of a State Two shopping center, and to
draft a purchase agreement that will satisfy the owner and that will be valid under the law of State Two. It would be
proper for L to render those services in State Two.
e) Temporary Practice by Foreign Lawyers→ A lawyer who is licensed and in good standing in a foreign juris‐ diction
may engage in temporary practice in the United States under circumstances similar to those above.
(1) A foreign lawyer may provide legal services temporarily in the United States if the services are governed primarily by
international law or the law of a foreign jurisdiction.
(2) Foreign lawyers who seek pro hac vice admission are subjected to greater scrutiny than United States lawyers. Even if
a lawyer is admitted, the judge has the discretion to limit the foreign lawyer’s participation in the matter.
2. PERMISSIBLE TYPES OF PERMANENT MULTIJURISDICTIONAL PRACTICE– If admitted in one US/foreign jx,
and not disbarred/suspended, may open office and establish a systematic/continuous practice in different jx when:
a) Lawyers Employed by Their Only Client→ Some lawyers are salaried employees of their only client, e.g., in- house
corporate lawyers and lawyers employed by the government. They may set up a permanent office to render legal services
to their employer in a state in which they are not admitted to practice
(1) BUT– if they want to litigate a matter in that state, they must seek admission pro hac vice.
(2) Foreign Lawyers Advising on United States Law→ A foreign lawyer practicing under this rule (e.g., serving as
in-house counsel for a corporation) MAY NOT directly advise her client on the law of a United States jurisdiction.
(a) Must consult with lawyer licensed by jx and base advice to her client on advice she obtains from the local lawyer.
b) Legal Services Authorized by Federal or Local Law→ In rare instances, federal or local law authorizes a lawyer to
practice a restricted branch of law in a state in which he is not otherwise admitted to practice.
(1) Example: Lawyer L is admitted to practice law in New York, and he is admitted to prosecute patents in the United
States Patent and Trademark Office, which is located in Washington, D.C. When L “retired” and moved to Florida, he
did not become a member of the Florida bar; rather, he set up a Florida practice that is limited to patent prosecution in
the Patent and Trademark Office. L does not handle other patent matters and does not practice any other kind of law.
L’s restricted practice in Florida is proper. (Sperry v. Florida)
3. CONSEQUENCES OF MULTIJURISDICTIONAL PRACTICE– A lawyer who is admitted to practice in only one jx but
practices in another jx pursuant to Rules 5.5(c) or (d) is subject to disciplinary rules of both jurisdictions.
a) An in-house or government lawyer who practices under 5.5(d)(1) may be subject to the second jurisdiction’s client security
assessments and continuing legal education requirements.
Rule 8.5 – Disciplinary Authority; Choice of Law
(a) Disciplinary Authority. A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the
lawyer's conduct occurs. A lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or
offers to provide any legal services in this jurisdiction. A lawyer may be subject to the disciplinary authority of both this jurisdiction and another
jurisdiction for the same conduct.
(b) Choice of Law. In any exercise of the disciplinary authority of this jurisdiction, the rules of professional conduct to be applied shall be as follows:
(1) for conduct in connection with a matter pending before a tribunal, the rules of the jurisdiction in which the tribunal sits, unless the rules of the
tribunal provide otherwise; and
(2) for any other conduct, the rules of the jurisdiction in which the lawyer’s conduct occurred, or, if the predominant effect of the conduct is in a
different jurisdiction, the rules of that jurisdiction shall be applied to the conduct. A lawyer shall not be subject to discipline if the lawyer’s conduct
conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer’s conduct will occur.

C. UNAUTHORIZED PRACTICE BY NONLAWYERS

1. A person not admitted to practice as a lawyer must not engage in the unauthorized practice of law
a) Lawyer must not assist such a person to do so.
2. GENERAL CONSIDERATIONS IN DEFINING “PRACTICE OF LAW”
a) Whether the activity involves legal knowledge and skill beyond that which the average layperson possesses;
b) Whether the activity constitutes advice or services concerning binding legal rights or remedies; and
c) Whether the activity is one traditionally performed by lawyers.
d) Activities Constituting Law Practice→ appearing in judicial proceedings; engaging in settlement negotiations; and
drafting documents that affect substantial legal rights or obligations (e.g., contracts, wills, trusts).
(1) Preparing an estate plan is generally considered the province of lawyers, and some courts have also held that
nonlawyer clinics on how to obtain a low-cost divorce constitute unauthorized practice.

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 e)
Activities Not Constituting Law Practice→ state and federal agencies often permit nonlawyers, such as accountants, to
appear before them representing clients.
(1) Nonlawyers can act as scriveners, filling in the blanks on standard forms = real estate brokers, title insurance
companies, escrow companies usually permitted to fill in blanks on standard docs related to the sale of real property.
(2) Nonlawyers can also publish books or pamphlets offering general advice, including most do-it-yourself books/kits.
f) Tax Advice→ Giving advice on tax law would probably constitute the unauthorized practice of law, but an accountant or
other layperson may prepare tax returns and answer questions incidental to the preparation of the returns.
3. CONSEQUENCES OF UNAUTHORIZED PRACTICE
a) Nonlawyer = subject to several sanctions, including injunction, contempt, and criminal conviction.
b) Lawyer who assists in such an endeavor = subject to professional discipline.
4. DELEGATING WORK TO NONLAWYER ASSISTANTS– Permitted to delegate tasks to a paralegal, law clerk, student
intern, or other such person.
a) BUT– the lawyer must supervise the delegated work carefully and must be ultimately responsible for the results
5. TRAINING NONLAWYERS FOR LAW-RELATED WORK– A lawyer may advise and instruct nonlawyers whose
employment requires a knowledge of the law
a) e.g., claims adjusters, bank trust officers, social workers, accountants, and government employees.
6. HELPING PERSONS APPEAR PRO SE– A lawyer may advise persons who wish to appear pro se
7. ASSISTING A SUSPENDED OR DISBARRED LAWYER– Violation of Rule 5.5(a)
a) It is proper to hire a suspended or disbarred lawyer to do work that a layperson is permitted to do, but the suspended or
disbarred lawyer must not be permitted to do any work that constitutes the practice of law.
(1)
IX. PROFESSIONAL INDEPENDENCE OF LAWYER

Rule 5.4 – Professional Independence of a Lawyer

(a) A lawyer or law firm shall not share legal fees with a nonlawyer, except that:
(1) an agreement by a lawyer with the lawyer's firm, partner, or associate may provide for the payment of money, over a reasonable period of time after
the lawyer's death, to the lawyer's estate or to one or more specified persons;
(2) a lawyer who purchases the practice of a deceased, disabled, or disappeared lawyer may, pursuant to the provisions of Rule 1.17, pay to the estate or
other representative of that lawyer the agreed-upon purchase price;
(3) a lawyer or law firm may include nonlawyer employees in a compensation or retirement plan, even though the plan is based in whole or in part on a
profit-sharing arrangement; and
(4) a lawyer may share court-awarded legal fees with a nonprofit organization that employed, retained or recommended employment of the lawyer in the
matter.
(b) A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law.
(c) A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer's
professional judgment in rendering such legal services.
(d) A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if:
(1) a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for
a reasonable time during administration;
(2) a nonlawyer is a corporate director or officer thereof or occupies the position of similar responsibility in any form of association other than a
corporation ; or
(3) a nonlawyer has the right to direct or control the professional judgment of a lawyer.
A. FEE SPLITTING WITH NONLAWYERS AND TEMPORARY LAWYERS
1. GENERALLY– A lawyer must not share her legal fee with a nonlawyer.
a) Purpose → to help “protect the lawyer’s professional independence of judgment.”
b) Salaries of nonlawyer employees of a firm are paid with money earned as fees, but that is not regarded as “sharing” a fee.
c) A firm can employ temporary lawyers through a placement agency without violating the fee-splitting rule.
2. DEATH BENEFITS PERMITTED– The lawyers in a firm may agree that, when one of them dies, the others will pay a death
benefit over a reasonable period of time to the dead lawyer’s estate or to designated persons.
3. COMPENSATION AND RETIREMENT PLANS FOR NONLAWYER EMPLOYEES– The nonlawyer employees of a
firm may be included in a compensation or retirement plan even though the plan is based on a profit-sharing arrangement.
4. SALE OF A LAW PRACTICE– One who buys the practice of a dead, disabled, or disappeared lawyer may pay the purchase
price to the estate or representatives of the lawyer.
5. SHARING COURT-AWARDED FEE WITH NONPROFIT ORGANIZATION– When a court awards attorneys’ fees to
the winning lawyer in a case, the lawyer may share the fee with a nonprofit organization that hired or recommended him as
counsel.

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 B. PARTNERSHIP WITH NON-LAWYER TO PRACTICE LAW PROHIBITED
1. Must not form a partnership with nonlawyer if any part of the partnership activities will constitute the practice of law.
2. Example: Family lawyer F formed a partnership with marital psychologist P; their purpose was to offer a full range of
counseling and legal services to family clients. All of the legal work was done by F, and all of the other counseling was done by
P—neither transgressed into the domain of the other. F is subject to discipline because partnership activity = practice of law.

C. NONLAWYER INVOLVEMENT IN INCORPORATED FIRM OR OTHER ASSOCIATION

1. A lawyer must not practice in an incorporated law firm or association authorized to practice law for profit if:
a) Nonlawyer owns any interest in the firm or association (but, when a lawyer dies, her estate may hold an interest during the
administration of the estate);
b) Nonlawyer is a corporate director or officer or the equivalent thereof; or
c) Nonlawyer has the right to direct or control the professional judgment of a lawyer.
2. Example: M is a nonlawyer. She is the business manager of W, Y & U Ltd., an incorporated law firm. As business manager,
she keeps the firm’s calendar, does the firm’s accounting, hires, fires, and supervises all of the firm’s nonlawyer employees,
procures all of the firm’s supplies and equipment, and runs the firm’s library. M cannot become a stockholder in the firm.

D. INTERFERENCE WITH LAWYER’S PROFESSIONAL JUDGMENT

1. Must not allow a person who recommends, employs, or pays for serving client to direct/regulate professional judgment.
2. Example: Life Insurance Company employs lawyer L to prepare estate plans for potential life insurance customers. The
potential customer pays nothing for the estate planning service; L works on a flat salary paid by Federated. L, realizing who
provides his daily bread, makes sure that every estate plan includes a careful expla‐ nation of the “benefits of balanced
protection through Federated’s term and whole life policies.” = discipline.

E. RESTRICTIONS ON RIGHT TO PRACTICE

Rule 5.6 – Restrictions on Right to Practice
A lawyer shall not participate in offering or making:
(a) a partnership, shareholders, operating, employment, or other similar type of agreement that restricts the right of a lawyer to practice after termination
of the relationship, except an agreement concerning benefits upon retirement; or
(b) an agreement in which a restriction on the lawyer's right to practice is part of the settlement of a client controversy.
1. RESTRICTIVE PARTNERSHIP AND EMPLOYMENT AGREEMENTS– Not only limit a lawyer’s autonomy but also
limit the freedom of clients to choose a lawyer.
a) Example: Oakville practitioner A employed young lawyer L by an agreement that purported to prohibit L from practicing
in Oakville after leaving A’s employment = A and L are subject to discipline.
b) Example: 64 year-old solo practitioner S took lawyer Y as a partner. Partnership agreement said that after S retired, firm
would pay S retirement benefit of $5,000 per month if S did not re-enter the practice of law = proper.
2. RESTRICTIVE SETTLEMENT AGREEMENTS FOR CLIENTS
a) Example: Over a period of several years, attorney A represented a series of federal employees in personal injury suits
against the federal government concerning cancers allegedly caused by working in the Laboratory. The government settled
each suit as it came along, but the more suits the government settled, the more new plaintiffs A was able to find. The
government offered to settle all then-pending suits for generous sums, provided that A would never again represent a
claimant in a Lab Radiation case. If A agrees to settle on those terms = discipline.

F. SALE OF A LAW PRACTICE

1. WHEN SALE PERMITTED
a) Rule 1.17 permits the sale of a law practice or a field of law practice, including goodwill, IF:
(1) The seller must cease to engage in the private practice of law, or in the sold field of practice, in the area where the
practice has been conducted;
(2) The entire practice, or the entire field of practice, must be sold to one or more lawyers or firms; and
(3) Written notice must be given to the seller’s clients regarding the sale, the clients’ right to retain other counsel or to
take possession of their files, and the fact that consent to the transfer of the clients’ files will be presumed if a client
takes no action within 90 days of receipt of the notice. If notice cannot be given to a client, a court order is required to
authorize the transfer of the representation of that client to the purchaser.
(a) The seller must “exercise competence in identifying a purchaser qualified to assume the practice.”
b) Selling Lawyer May Practice in Limited Circumstances→ After the sale of his practice, a lawyer may still be employed
as a lawyer on the staff of a public agency or legal services entity that provides legal services to the poor, or as in-house
counsel to a business.
(1) A lawyer’s return to practice because of unanticipated change in circumstances does not necessarily violate the Rules.

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 2. PROTECTION OF SELLER’S CLIENTS AFTER SALE– The purchaser must undertake all client matters in the practice,
and not just those that generate substantial fees
a) Subject to client consent and conflict of interest rules
b) Prevents sale of only fee-generating matters, could leave clients matters that are not lucrative in a situation where they
might find it difficult to find other representation.
c) Clients’ fees must not be increased because of the sale.
d) The purchaser must honor existing fee agreements made by the seller.

G. LAW-RELATED (ANCILLARY) SERVICES

Rule 5.7 – Responsibilities Regarding Law-related Services
(a) A lawyer shall be subject to the Rules of Professional Conduct with respect to the provision of law-related services, as defined in paragraph (b), if the
law-related services are provided:
(1) by the lawyer in circumstances that are not distinct from the lawyer's provision of legal services to clients; or
(2) in other circumstances by an entity controlled by the lawyer individually or with others if the lawyer fails to take reasonable measures to assure that
a person obtaining the law-related services knows that the services are not legal services and that the protections of the client-lawyer relationship do
not exist.
(b) The term "law-related services" denotes services that might reasonably be performed in conjunction with and in substance are related to the provision of
legal services, and that are not prohibited as unauthorized practice of law when provided by a nonlawyer.
1. IN GENERAL– Lawyers are permitted to provide law-related services
a) Law-related services (often referred to as ancillary services) are services that might reasonably be performed in
conjunction with (and are related to) the provision of legal services and that are not prohibited as unauthorized practice of
law when provided by a nonlawyer.
b) Examples: financial planning, accounting, lobbying, trust services, real estate counseling, providing title insurance, and
preparing tax returns.
2. NON-LEGAL SERVICES AND LEGAL SERVICES PROVIDED TOGETHER– If a lawyer provides nonlegal services
in circumstances that are not distinct from legal services, then RPC applies to both the legal and nonlegal services. (5.7(a)(1))
a) Example: Attorney A is an expert in setting up new business ventures. He also knows many wealthy people who invest
money in untried business ventures—so-called venture capitalists. When A draws up the articles of incorporation for client
C’s new business venture and also finds some willing investors for C, A is subject to the RPC in both activities.
3. NON-LEGAL SERVICES PROVIDED BY ENTITY THAT IS CONTROLLED BY THE LAWYER– If a lawyer
provides nonlegal services through an entity that is not her law office but that she controls (either alone or with other lawyers),
that lawyer must take reasonable steps to assure that people who receive the nonlegal services understand that those services
are not legal services and that the RPC do not cover those services.
a) For instance, the attorney-client privilege does not apply to the nonlegal services.
b) If the lawyer does not take those reasonable steps, then lawyer is subject to the RPC with respect to the nonlegal services.
c) Example: Lawyer L is a certified specialist in family law. Many of her clients are women who want to divorce their
husbands and also want to find work outside the home. L and one of her nonlawyer friends own and manage a job
placement service. When one of her law clients needs a job, L usually refers the client to job service. L is always careful to
tell the client that she has a personal financial stake in job service, but L does not explain that the RPC do not apply to
services rendered by job service. L is bound by the RPC in her job placement work.
4. PROVIDING NON-LEGAL SERVICES TO CLIENTS– When a client-lawyer relationship exists between the lawyer and
the individual receiving the law-related services, the lawyer must comply with Rule 1.8(a), which specifies the conditions a
lawyer must satisfy when she enters into a business transaction with her own client. (5.7, cmt 5)
a) Specifically, the transaction must meet the following requirements:
(1) The terms of the transaction must be fair to the client;
(2) The terms must be fully disclosed to the client in writing;
(3) Such disclosure must cover the essential terms of the transaction and the lawyer’s role in the transaction;
(4) The client must be advised in writing that he should seek advice from an independent lawyer; and
(5) The client must give informed consent in a writing signed by the client.’

X. LAWYERS’ DUTIES TO THE PUBLIC AND THE LEGAL SYSTEM

Rule 6.1 – Voluntary Pro Bono Publico Service

Every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least (50) hours of pro bono
publico legal services per year. In fulfilling this responsibility, the lawyer should:
(a) provide a substantial majority of the (50) hours of legal services without fee or expectation of fee to:
(1) persons of limited means or
(2) charitable, religious, civic, community, governmental and educational organizations in matters that are designed primarily to address the needs of
persons of limited means; and

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 (b) provide any additional services through:
(1) delivery of legal services at no fee or substantially reduced fee to individuals, groups or organizations seeking to secure or protect civil rights, civil
liberties or public rights, or charitable, religious, civic, community, governmental and educational organizations in matters in furtherance of their
organizational purposes, where the payment of standard legal fees would significantly deplete the organization's economic resources or would be
otherwise inappropriate;
(2) delivery of legal services at a substantially reduced fee to persons of limited means; or
(3) participation in activities for improving the law, the legal system or the legal profession.
In addition, a lawyer should voluntarily contribute financial support to organizations that provide legal services to persons of limited means.
A. COURT APPOINTMENTS
Rule 6.2 – Accepting Appointments
A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause, such as:
(a) representing the client is likely to result in violation of the Rules of Professional Conduct or other law;
(b) representing the client is likely to result in an unreasonable financial burden on the lawyer; or
(c) client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer's ability to represent the client.
1. EXAMPLES OF GOOD CAUSE
a) Violation of Law or Disciplinary Rule→ When attorney A was a deputy public defender, he represented client Q in an
aggravated assault case, and he learned a great deal of confidential information about Q’s life and criminal background.
Later, A entered private practice, and the local court appointed him to defend D, who was charged with the attempted
murder of Q. The confidential information A obtained from Q is highly relevant to the defense of D. A must decline the
appointment to defend D.
b) Unreasonable Financial Burden→ Court appointed lawyer L to represent D on appeal. D’s trial lasted 13 months and
resulted in a trial record in excess of 150,000 pages. L would be required to work at least 600 hours. The legislature has set
legal fees at $17/hr for appellate counsel in death penalty cases. L is a struggling solo practitioner and will not be able to
support his family if required to take that much time away from clients. L may seek to be excused from appointment.
c) Personal Inability to Represent Effectively→ The trial court appointed attorney A to defend accused child molester M.
A himself was molested by a similar person, and finds that he cannot even look comfortably at M, much less represent him
zealously. A may seek to be excused from the court appointment.

B. LIMITED LEGAL SERVICES PROGRAMS

1. IN GENERAL– Some courts and nonprofit organizations have established limited legal services programs in which lawyers
offer “quick advice” to people who can then handle their own legal problem without further assistance.
a) Examples: programs that show people how to fill out tax forms, legal-advice hotlines, advice-only legal clinics, and
programs that show people how to represent themselves in small claims court
Rule 6.5 – Nonprofit & Court-Annexed Limited Legal Services Programs
(a) A lawyer who, under the auspices of a program sponsored by a nonprofit organization or court, provides short-term limited legal services to a client
without expectation by either the lawyer or the client that the lawyer will provide continuing representation in the matter:
(1) is subject to Rules 1.7 and 1.9(a) only if the lawyer knows that the representation of the client involves a conflict of interest; and
(2) is subject to Rule 1.10 only if the lawyer knows that another lawyer associated with the lawyer in a law firm is disqualified by Rule 1.7 or 1.9(a)
with respect to the matter.
(b) Except as provided in paragraph (a)(2), Rule 1.10 is inapplicable to a representation governed by this Rule.
2. CLIENT CONSENTS TO SHORT-TERM, LIMITED LEGAL SERVICE– client’s informed consent to the limited scope
of the relationship is required
a) If quick advice is not enough to set client on the right track, the lawyer must advise the client to obtain further legal help.
3. APPLICABILITY OF ETHICS RULES– In a quick-advice situation, the conflict of interest rules are relaxed somewhat
BUT the remainder of the RPC apply
a) Example: When attorney A was answering telephone calls on the bar association hotline, she took a call from farmer who
hired a farmhand to help him. The farmhand insisted on being paid cash and that the farmer not withhold any income taxes
or pay any Social Security contributions on his behalf. Based on farmer’s answers to A’s questions, A concluded that the
farmhand was an employee, not an independent contractor. A advised the farmer about his potential tax liability. Farmer’s
statements to A are protected by the attorney-client privilege and the duty of confidentiality = A must not disclose the
farmer’s confidential information or use it to the farmer’s disadvantage.
4. CONFLICT OF INTEREST RULES ARE RELAXED– A lawyer who participates in a quick-advice program ordinarily has
no time to conduct a conflict of interest check.
a) General conflicts principles expressed in Rule 1.7 (current clients) and 1.9 (former clients) do not apply UNLESS the
lawyer actually knows that giving the quick advice creates a conflict of interest (can be inferred from the circumstances)
b) Imputed Conflicts→ Lawyer may dispense advice in a quick-advice program unless the lawyer actually knows that he is
disqualified from doing so because of a conflict imputed from another lawyer in his firm
(1) A conflict created by advice given in a quick-advice program will not be imputed to others in the lawyer’s firm.
c) Conflicts Rules Apply Fully If Quick Advice Leads to Regular Representation→ If a person who has received quick
advice from a lawyer then wants to hire that lawyer to render further service in the matter, the ordinary conflict of interest
rules apply to that further service.
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Rule 6.3 – Membership in Legal Services Organizations
A lawyer may serve as a director, officer or member of a legal services organization, apart from the law firm in which the lawyer practices, notwithstanding that
the organization serves persons having interests adverse to a client of the lawyer. The lawyer shall not knowingly participate in a decision or action of the
organization:
(a) if participating in the decision or action would be incompatible with the lawyer's obligations to a client under Rule 1.7; or
(b) where the decision or action could have a material adverse effect on the representation of a client of the organization whose interests are adverse to a
client of the lawyer.

Rule 6.4 – Law Reform Activities Affecting Client Interests

A lawyer may serve as a director, officer or member of an organization involved in reform of the law or its administration notwithstanding that the reform may
affect the interests of a client of the lawyer. When the lawyer knows that 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.

Rule 8.2 – Judicial & Legal Officials

(a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or
integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.
(b) A lawyer who is a candidate for judicial office shall comply with the applicable provisions of the Code of Judicial Conduct.

C. POLITICAL CONTRIBUTIONS TO OBTAIN GOVERNMENT EMPLOYMENT

Rule 7.6 – Obtain Government Legal Engagements or Appointments by Judges
A lawyer or law firm shall not accept a government legal engagement or an appointment by a judge if the lawyer or law firm makes a political contribution or
solicits political contributions for the purpose of obtaining or being considered for that type of legal engagement or appointment.
1.
PROHIBITED CONTRIBUTIONS
a) “For the purpose of obtaining such employment or appointment” = “pay to play” contributions
b) Government legal engagement → employment that a public official has the power to award
c) The Rule does not prohibit all political contributions by lawyers or firms — only those that would NOT have been made
but for the desire to be considered for the employment or appointment.
(1) The circumstances of the contribution may indicate its purpose:
(a) Contributions that are substantial compared to contributions made by other lawyers or firms, are made for the
benefit of an official who can award such work, and are followed by an award to the lawyer or firm support an
inference that the contributions were for the purpose of obtaining the work.
(b) Other factors, such as a family or professional relationship with the judge or a desire to further a political, social,
or economic interest, weigh against inferring a prohibited purpose.
2. EXCLUDED EMPLOYMENT
a) Excluded from the ambit of the rule are:
(1) Uncompensated services;
(2) Engagements or appointments made on the basis of experience, expertise, qualifications, and cost, following a process
that is free from influence based on political contributions; and
(3) Engagements or appointments made on a rotating basis from a list compiled without regard to political contributions.
(4)
XI. COMMUNICATIONS ABOUT LEGAL SERVICES

A. CONTENT-BASED RULES FOR ADVERTISING AND OTHER COMMUNICATIONS

1. BASIC RULE–COMMUNICATIONS MUST BE TRUE AND NOT MISLEADING
Rule 7.1 – Communications Concerning a Lawyer’s Services
A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it contains a
material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.
a) Applies to all kinds of communications: advertisements, personal communications, office signs, professional
cards/announcements, letterheads, brochures, letters sent by post or e-mail, and recorded phone messages.
b) Types of False or Misleading Communications
(1) Outright Falsehoods→ a lawyer must not use a communication that is simply false
(a) Example: Attorney A’s office letterhead lists him as “Trial Counsel ExxonMobil Corp.” A used to do trial work in
the in-house law department of ExxonMobil, but no member of that department carries the title “Trial Counsel”;
and A left ExxonMobil 18 months ago. The listing is an outright falsehood.
(2) Omitted Facts→ A communication can be true but misleading if it omits a fact that is necessary to make the
communication as a whole not materially misleading.
(a) Example: Lawyer L’s display advertisement in the telephone book Yellow Pages includes the phrase “Yale Law
School— 1987.” Indeed, L did attend a two-week summer program at Yale Law School, but he earned his law
degree at a school of considerably less distinction. The statement is misleading.

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 (3) Unfounded Conclusions→ A truthful communication can be misleading if there is a substantial likelihood that it will
lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer’s services for which there is
no reasonable factual foundation.
(a) Example: Lawyer L, who has no medical training, specializes in defending lawyers against medical malpractice
claims. His billboard advertisement describes him as the “The Juris DOCTOR,” states that he has “decades of
experience in health care,” and includes a photo of him in scrubs, wearing a stethoscope. The commercial is
misleading if it would lead a reasonable person to believe L is a physician.
(4) Unjustified Expectations→ A true communication about a lawyer’s accomplishments in past cases is misleading if it
could make a reasonable person think that the lawyer could do as well in a similar case, without regard to the facts and
law in that case.
(a) Example: Attorney A won jury verdicts in excess of $500,000 in the last three asbestos cases she took to trial. Her
television advertisement includes that truthful statement without explaining that the recovery in asbestos cases
varies dra‐ matically, depending on the precise facts surrounding the plaintiff’s exposure to asbestos. A’s
statement is misleading.
(5) Unsubstantiated Comparisons→ An unsubstantiated comparison of a lawyer’s services or fees with those of other
lawyers is misleading if it could make a reasonable person think that it can be substantiated.
(a) Example: Lawyer L advertises that her fees for estate planning ser‐ vices are “15% lower than the prevailing rate
in Fairmont County.” If L cannot substantiate that statement with hard data, she is subject to discipline.
c) Including a Disclaimer→ Depending on the circumstances, the inclusion of an appropriate disclaimer/qualifying
language may preclude a finding that the advertisement or other communication is misleading to the public.
2. REQUIRED AND PERMITTED INFORMATION
a) Generally Permitted Information
(1) The following are among the types of information that a lawyer may publicly disseminate:
(a) Info concerning name of the lawyer/firm, address, e-mail address, website, and telephone number;
(b) The kinds of services the lawyer will undertake;
(c) The basis on which fees are determined, including prices and payment and credit arrangements;
(d) The lawyer’s foreign language ability;
(e) The names of references; and
(f) Other information that might invite the attention of persons seeking legal assistance.
(2) Consent of Named Client→ If a lawyer wishes to identify some regular clients in an advertisement, the lawyer must
first obtain the clients’ consent.
b) Firm Names, Letterheads, and Other Professional Designations→ Like all communications concerning a lawyer’s
services, law firm names and other professional designations must not be false or misleading.
(1) Current, Deceased, and Retired Partners→ A firm may be designated by the names of one + of its current members.
(a) When partners die or retire, their names may be carried over to successor partnerships.
(i) Example: a law partnership may practice under the name “X, Y, & Z,” even though lawyer X has died.
(b) Misleading–Non-Associated Lawyers and Nonlawyers
(i) A law firm name is misleading if it includes the name of (or otherwise implies a connection with):
(a) A deceased lawyer who was not a former member of the firm;
(b) The name of any lawyer who is not associated with the firm or predecessor firm; or
(c) The name of a nonlawyer
(2) Using Names of Lawyers Who Have Entered Public Service→ A private law firm must not use the name of a lawyer
who holds public office (either as part of the firm name or in communications on the firm’s behalf) during any
substantial period in which the lawyer is not regularly and actively practicing with the firm.
c) Must Not Imply Connection with Public or Charitable Organization→ Trade names (“Bulldog Firm”) – even ones
that do not include the names of one or more partners– are permitted if the name is not misleading and does not imply a
connection with a governmental agency or with a public or charitable legal services organization.
(1) If a firm name uses a trade name that includes a geographical name (Greater Chicago Legal Clinic), a disclaimer
explaining that it is not a public legal aid organization may be required to avoid a misleading implication.
d) False Indications of Partnership→ Lawyers must not imply that they are partners or are practicing together as one law
firm unless they really are.

B. RECOMMENDATIONS
Rule 7.2 – Communications Concerning a Lawyer’s Services: Specific Rules
(a) A lawyer may communicate information regarding the lawyer’s services through any media.
(b) A lawyer shall not compensate, give or promise anything of value to a person for recommending the lawyer’s services except that a lawyer may:
(1) pay the reasonable costs of advertisements or communications permitted by this Rule;
(2) pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service;

47
 (3) pay for a law practice in accordance with Rule 1.17;
(4) refer clients to another lawyer or a nonlawyer professional pursuant to an agreement not otherwise prohibited under these Rules that provides for the
other person to refer clients or customers to the lawyer, if:
(i) the reciprocal referral agreement is not exclusive; and
(ii) the client is informed of the existence and nature of the agreement; and
(5) give nominal gifts as an expression of appreciation that are neither intended nor reasonably expected to be a form of compensation for
recommending a lawyer’s services.
(c) A lawyer shall not state or imply that a lawyer is certified as a specialist in a particular field of law, unless:
(1) the lawyer has been certified as a specialist by an organization that has been approved by an appropriate authority of the state or the District of
Columbia or a U.S. Territory or that has been accredited by the American Bar Association; and
(2) the name of the certifying organization is clearly identified in the communication.
(d) Any communication made under this Rule must include the name and contact information of at least one lawyer or law firm responsible for its content.
1. GENERALLY– A communication about a lawyer’s services is a “recommendation” if it endorses or vouches for the lawyer’s
credentials, abilities, competence, character, or other professional qualities.
a) Subject to the exceptions below, a lawyer must not compensate, give anything of value, or promise to give anything of
value to a person for recommending the lawyer’s services.
b) NOTE: Directory listings or group advertisements listing lawyers by practice area ≠ prohibited recommendations.
2. EXCEPTIONS
a) Paying for Advertising and Other Services→ may pay the reasonable costs of permitted advertisements
(1) e.g., broadcast airtime, directory listings, or newspaper ads
(2) A lawyer may pay the usual charges of:
(a) A legal service plan
(b) A not-for-profit lawyer referral service, or
(c) A qualified lawyer referral service.
(i) Qualified→ the service has been approved by an appropriate regulatory authority
(ii) A lawyer who accepts assignments or referrals from legal services plan/referral service must ensure that
the organization’s communications comply with the lawyer’s obligations (false or misleading)
(3) Paying Others to Generate Client Leads
(a) Lead generators provide consumers with matching, referral, and directory services
(i) e.g., a consumer goes to a website, selects a type of legal problem, and is provided with a list of lawyers
who provide that service and the ability to select and contact one of those lawyers
(b) A lawyer may pay others to generate client leads as long as the lead generator does not recommend the lawyer
and the lead generator’s communications are not false or misleading.
(c) A communication by the lead generator is false or misleading if it creates a reasonable impression that:
(i) It is recommending the lawyer;
(ii) It has analyzed person’s legal problems when determining whether to refer the person to the lawyer; or
(iii) It is making the referral without any payment from the lawyer.
b) Purchase of a Law Practice→ may purchase law practice even though seller recommending purchasing lawyer to clients.
c) Reciprocal Referral Agreements→ Under certain circumstances, a lawyer is permitted to set up a reciprocal referral
agreement with another lawyer or with a non‐lawyer professional
(1) “I will refer potential clients, patients, or customers to you if you will do likewise for me.”
(2) Another lawyer means a lawyer at a different firm (does not restrict referrals among members of the same firm).
(3) Nonlawyer professional → a person who belongs to a professional body that requires a high level of proficiency and
regulates its members (e.g., doctor, accountant, insurance agent).
(4) A reciprocal referral agreement is subject to the following restrictions and guidance:
(a) The agreement must not be exclusive
(i) i.e., lawyer must not promise to refer all potential estate planning clients to his friend and no one else
(b) The referred client must be told about the agreement.
(i) If the agreement creates a conflict of interest for either the referring or the receiving lawyer, then that
lawyer must obtain the client’s informed consent, confirmed in writing, under Rule 1.7.
(c) The reciprocal agreement must not interfere with the lawyer’s professional judgment as to making referrals or
providing substantive legal services.
(d) The agreement “should not” be of indefinite duration and should be reviewed periodically to make sure it
complies with the ABA Model Rules.
d) Nominal Gifts or Gratuities→ A lawyer may give a nominal gift or gratuity as an expression of appreciation to a person
who recommended the lawyer or the lawyer’s firm, provided the gift or gratuity was not intended or reasonably expected
to be a form of compensation for recommending the lawyer’s services.

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 (1) Such gifts must not exceed an item that would be given for a holiday or in the course of ordinary social hospitality.
(2) A gift is prohibited if offered or given in consideration of any understanding that such a gift would be forthcoming or
that referrals would be made or encouraged in the future

C. SOLICITATION
Rule 7.3 – Solicitation of Clients
(a) “Solicitation” or “solicit” denotes a communication initiated by or on behalf of a lawyer or law firm that is directed to a specific person the lawyer knows
or reasonably should know needs legal services in a particular matter and that offers to provide, or reasonably can be understood as offering to provide,
legal services for that matter.
(b) A lawyer shall not solicit professional employment by live person-to-person contact when a significant motive for the lawyer’s doing so is the lawyer’s or
law firm’s pecuniary gain, unless the contact is with a:
(1) lawyer;
(2) person who has a family, close personal, or prior business or professional relationship with the lawyer or law firm; or
(3) person who routinely uses for business purposes the type of legal services offered by the lawyer.
(c) A lawyer shall not solicit professional employment even when not otherwise prohibited by paragraph (b), if:
(1) the target of the solicitation has made known to the lawyer a desire not to be solicited by the lawyer; or
(2) the solicitation involves coercion, duress or harassment.
(d) This Rule does not prohibit communications authorized by law or ordered by a court or other tribunal.
(e) Notwithstanding the prohibitions in this Rule, a lawyer may participate with a prepaid or group legal service plan operated by an organization not owned
or directed by the lawyer that uses live person-to-person contact to enroll members or sell subscriptions for the plan from persons who are not known to
need legal services in a particular matter covered by the plan.
1. GENERAL RULE
a) Solicitation→ a communication initiated by a lawyer/firm that is directed to a specific person the lawyer knows or
reasonably should know needs legal services in a particular matter, and that offers to provide, or can reasonably be
understood as offering to provide, legal services for that matter.
b) BUT– a communication is not a solicitation if it:
(1) Is directed to the general public;
(a) billboard, website, television commercial, or Internet banner advertisement
(2) Responds to a request for information; or
(3) Is automatically generated in response to an Internet search.
2. LIVE PERSON-TO-PERSON SOLICITATION GENERALLY PROHIBITED– must not, by live person-to-person
contact, solicit professional employment when significant motive for doing so is the lawyer’s or firm’s pecuniary gain
a) Live person-to-person contact→ in-person, face-to- face, live telephone, or other real-time visual or auditory person-
to-person communications where the targeted person is subject to a direct personal encounter without time for reflection.
b) Exception: Significant Motive Is Not Pecuniary Gain
(1) Offers to provide free legal services are generally permissible
(2) Certain political or ideological solicitation is constitutionally protected
(a) e.g., solicitation on behalf of a civil rights organization or nonprofit organization
c) Exception: Certain Targets Are Considered Less Vulnerable
(1) A lawyer or firm is generally not prohibited from initiating live person-to-person contact with:
(a) Other lawyers;
(b) Persons with whom the lawyer or firm has a familial, close personal, or prior professional or business relationship
(including current and former clients);
(c) Routine business users of the type of legal services offered by the lawyer or firm
(i) e.g., entrepreneurs, small business owners, executives who hire outside counsel to represent an entity,
and any other persons who regularly engage lawyers for business purposes
(2) Example: Attorney A prepared an estate plan for client C. Two years later, the state repealed its inheritance tax,
creating a much more advantageous way for C to dispose of her assets on death. A may telephone C, advising C to
have her estate plan revised, and A may do the necessary work if C asks her to do so.
3. WRITTEN, RECORDED, OR ELECTRONIC SOLICITATION GENERALLY PERMITTED– Generally, a lawyer may
send truthful, non-deceptive written communications to persons known to face a legal problem via mail, e-mail, text, etc.
a) These types of communications can be easily disregarded by the recipient and are not live person-to-person contact
4. CIRCUMSTANCES RENDERING ALL CONTACTS IMPERMISSIBLE
a) A lawyer is prohibited from soliciting employment, regardless of what method is used or who the target is, IF:
(1) The target of the solicitation has made known to the lawyer that she does not want to be solicited by the lawyer; or
(2) The solicitation involves coercion, duress, or harassment.
5. COMMUNICATIONS AUTHORIZED BY LAW OR COURT ORDER– These rules do not prohibit communications
authorized by law/court order/tribunal (e.g., in class action litigation, a notice to potential members of the class)

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 6. USE OF OTHERS TO SOLICIT– responsibility for prohibited solicitation extends to actions by employees
a) Agents→ A lawyer is always prohibited from using an agent to violate a law or disciplinary rule.
(1) A lawyer must not use an agent to contact prospective clients in a manner that would violate the Rules.
b) People Employed, Retained, or Associated with Lawyer→ Lawyer supervisors are required to make reasonable efforts
to ensure that all persons (lawyers and nonlawyers) employed, retained, or associated with the lawyer are trained to
comply with solicitation rules.
(1) A lawyer is responsible for the conduct of others if the lawyer orders the conduct, knows and approves the conduct, or
when acting as a manager or supervisor fails to take remedial action when the consequences could have been avoided.
c) Other Third Parties→ Recommendations/referrals by third parties (not employees of lawyer) whose communications are
not directed to make specific statements to potential clients on behalf of a lawyer are not solicitations.
(1) A lawyer’s colleagues in other professions, satisfied clients, and family/friends may provide information about a
lawyer’s services to other people.
d) Example: Lawyer L hired R to be a “claims investigator.” R’s work involved checking accident and crime reports at the
local police station and then personally contacting those involved to “advise them of their legal rights.” L furnishes R with
copies of her standard retainer agreement and instructs R to sign up clients when possible. L is subject to discipline.
e) Example: Attorney A has a reciprocal referral arrangement with a debt consolidation company. Employees of the company
initiate personal, face-to-face conversations with debtors and advise them about loans and ways to get out of debt. If a
debtor needs legal assistance, the company employee refers debtor to A. When one of A’s clients needs help getting a
loan/managing debts, A refers the client to the company. A is subject to discipline because he is using the debt
consolidation company to initiate personal, face-to-face communications with potential clients.
f) Example: Lawyer asks Banker friend to provide Lawyer’s contact info to bank customers that might need an estate plan.
The conduct does not violate solicitation rules because Lawyer did not target a specific person in need of legal services in a
particular matter, or communicate with that person. Lawyer has no authority over Banker’s conduct. Lawyer does not
control content of communication Banker makes or whether communication occurs at all. The communication is a
recommendation, the type of “word-of- mouth” referral that is permissible. Because Lawyer is not directing what Banker
says and Banker’s customers are not speaking directly to Lawyer, Lawyer’s request to Banker is permissible.

D. GROUP AND PREPAID LEGAL SERVICE PLANS

1. GENERALLY
a) Group/prepaid legal service plans→ typically part of employee benefits and bear resemblance to health insurance plans.
b) Participants typically pay a monthly premium in return for consultation with a plan-authorized lawyer to obtain legal
services for low/no cost.
c) Plans vary widely as to the services provided, ranging from a brief consultation to full representation ranging from estate
planning to divorce, to civil or (less commonly) criminal actions.
2. LAWYER MAY PERSONALLY CONTACT SPONSORING ORGANIZATIONS– A lawyer or firm may personally
contact representatives of groups that might wish to adopt a legal service plan for its members, beneficiaries, etc.
a) More like advertising than solicitation because it is not directed at people seeking legal services for themselves;
representatives are acting in a fiduciary capacity and seeking legal services for members (who will choose whether to
become a client of the lawyer/firm).
3. PLAN MAY PERSONALLY CONTACT POTENTIAL MEMBERS
a) Lawyers are permitted to participate in a group/prepaid legal service plan, even though the plan uses live person-to-person
contacts to enroll memberships or sell subscriptions, provided that:
(1) The personal contact is not undertaken by the lawyer themselves; and
(2) The plan only contacts persons not known to need specific legal services in a particular matter covered by plan
(a) So long as ^^ is satisfied ≠ solicitation
b) Lawyer Cannot Be Owner/Director→ cannot participate in plan if own or direct the organization that operates the plan.
4. MUST ASSURE COMPLIANCE WITH ADVERTISING AND SOLICITATION RULES– A lawyer who participates in
a legal service plan must “reasonably assure” that the plan sponsors are in compliance with the advertising and solicitation
rules (e.g., must not advertise in a false or misleading manner).

E. GOVERNMENT REGULATION OF COMMUNICATIONS ABOUT LEGAL SERVICES

1. GENERALLY– Lawyer advertising is commercial speech protected by 1st/14A.
a) A state may adopt reasonable regulations to insure that lawyer advertising is not false or misleading, but may not flatly
prohibit all lawyer advertising. (Bates v. State Bar of Arizona)
2. FALSE AND MISLEADING ADS AND IN-PERSON SOLICITATION MAY BE BANNED– A state may flatly prohibit
lawyer advertising that is false or misleading

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 a)
A state may adopt prophylactic rules to forbid in-person solicitation for profit in circumstances that are likely to result in
overreaching or misleading a layperson. (Ohralik v. Ohio State Bar Association)
b) In practice, misleading communications and in-person solicitation are regulated rather than completely banned.
3. DISCLOSURE REQUIREMENTS FOR MISLEADING COMMUNICATIONS– RATIONAL BASIS TEST
a) To prevent commercial speech from misleading consumers, the government may require commercial advertisers to make
certain factual disclosures if such a requirement is:
(1) Not unduly burdensome, and
(2) Reasonably related to the state’s interest in preventing deception.
b) Example: Attorneys who provide bankruptcy assistance to debt relief agencies may be required to include in their
advertisements certain information (e.g., statements identifying themselves as debt relief agencies and disclosing that the
advertised services relate to bankruptcy relief and may result in the debtor’s filing for bankruptcy.)
4. REGULATION OF TRUTHFUL, NONDECEPTIVE COMMUNICATIONS– INTERMEDIATE SCRUTINY
a) Because attorney advertising is commercial speech, regulation of it is subject to only intermediate, rather than strict,
scrutiny. (Florida Bar v. Went For It, Inc.)
(1) This type of commercial speech may be regulated if the government satisfies a three-prong test:
(a) The government must assert a substantial interest in support of its regulation;
(b) The government must demonstrate that the restriction on commercial speech directly and materially advances the
interest; and
(c) The regulation must be narrowly drawn.
b) Florida Bar v. Went For It, Inc. → After conducting a two-year study on the effect of lawyer advertis‐ ing on public
opinion, which included surveys and hearings, Florida adopted a rule prohibiting lawyers from sending any targeted
direct-mail solicitations to victims and their relatives for 30 days following an accident or disaster. SCOTUS upheld the
regulation, finding that it met the three-prong test.
c)
XII. JUDICIAL ETHICS

A. CANON 1: PROMOTION OF JUDICIAL INTEGRITY AND AVOIDANCE OF APPEARANCE OF IMPROPRIETY

Requires a judge to uphold and promote the independence, integrity, and impartiality of the judiciary and avoid both actual
impropriety and the appearance of impropriety.
1. COMPLIANCE WITH LAW AND PROMOTION OF PUBLIC CONFIDENCE IN THE JUDICIARY
a) A judge must comply with the law (including the CJC)
b) A judge must avoid even the appearance of impropriety.
c) At all times a judge must act to promote public confidence in the independence, integrity, and impartiality of the judiciary.
d) Example: Judge R discovered his estranged wife in an automobile with another man. The judge broke the car window and
slapped his wife. Judge R is subject to discipline, even though his conduct was unconnected with his judicial duties.
e) Example: While driving under the influence of alcohol, Judge L ran a traffic signal and violated other traffic laws. Judge L
is subject to discipline.
2. TEST FOR APPEARANCE OF IMPROPRIETY– When a judge’s conduct would create a reasonable perception that she
has violated the CJC or acted in a manner that reflects adversely on honesty, impartiality, temperament, or fitness as a judge
3. COMMUNITY OUTREACH– To promote public understanding of and confidence in the administration of justice, a judge
should initiate and participate in community outreach activities
4. ABUSE OF JUDICIAL PRESTIGE– A judge must not abuse, or permit others to abuse, the prestige of her office to advance
her personal or economic interests or those of others
a) References and Recommendations→ on personal knowledge, a judge may act as a reference/provide a recommendation
(1) Such a communication may be on official letterhead if:
(a) The judge indicates that the reference is personal; and
(b) There is no likelihood that use of the letterhead would reasonably be perceived as an attempt to use the judicial
office to exert pressure.
b) Example: Judge C used her official court stationery when writing to a building contractor with whom she was having a
personal dispute. Judge C is subject to discipline.
c) Example: When Judge B was stopped for a routine traffic violation, he informed the officer: “I am a judge in this town and
I don’t take kindly to being stopped for petty reasons!” Judge B is subject to discipline.

B. CANON 2: IMPARTIAL, COMPETENT, AND DILIGENT PERFORMANCE OF JUDICIAL DUTIES

Requires a judge to perform the duties of judicial office impartially, competently, and diligently.
1. JUDICIAL DUTIES – IN GENERAL: Includes all the duties of the judge’s office that are prescribed by law
a) Judicial duties take precedence over all of the judge’s other activities, including personal and nonjudicial activities.

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 b) Example: Judge P’s elderly, infirm sister needs a custodian to look after her personal and financial affairs. Judge P should
not undertake this responsibility if it will interfere with the proper performance of her judicial duties.
2. HEARING AND DECIDING MATTERS ASSIGNED– A judge must hear and decide all matters assigned to her, except
those in which disqualification is required.
a) Disqualification should not be used as a tool to avoid cases that present difficult, controversial, or unpopular issues.
3. IMPARTIALITY AND FAIRNESS– A judge must uphold and apply the law, and perform her duties fairly and impartially.
4. EXTERNAL INFLUENCES ON JUDICIAL CONDUCT– Public clamor or fear of criticism must not sway a judge.
a) Family, social, political, or financial interests must not influence a judge’s conduct or judgment
b) A judge may not convey, or allow others to convey, the impression that anyone is in a position to influence the judge.
5. COMPETENCE, DILIGENCE, AND COOPERATION– must perform judicial duties competently diligently.
a) Competence requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary to perform the
judge’s responsibilities. To accomplish prompt disposition of the court’s business, a judge must:
(1) Devote adequate time to her duties;
(2) Be punctual in attending court and expeditious in determining matters submitted to her; and
(3) Take reasonable measures to ensure that court officials, litigants, and attorneys cooperate in this regard.
(a) Also, a judge must cooperate with other judges and court officials in the administration of court business.
6. ENSURING RIGHT TO BE HEARD– must allow every person with legal interest the right to be heard according to law
a) Although a judge may encourage settlements, he must not act so as to coerce a party into settlement.
b) Factors for Determining Appropriate Settlement Practice
(1) Whether the parties have requested/consented to participation by the judge in settlement discussions;
(2) Whether the parties and their attorneys are relatively sophisticated in legal matters;
(3) Whether the case will be tried by the judge or a jury;
(4) Whether the parties participate with their lawyers in the discussions;
(5) Whether any parties are not represented by counsel; and
(6) Whether the case is civil or criminal
7. AVOIDANCE OF BIAS, PREJUDICE, AND HARASSMENT– A judge must avoid bias, prejudice, and harassment and
must require others (including lawyers) who are under the judge’s direction and control to do likewise.
a) A judge’s duty to control lawyers does not preclude legitimate advocacy by lawyers when issues of prejudice arise
b) A judge should be aware that facial expression and body language can convey prejudice as easily as words.
c) Example: Whenever an old person testifies in Judge S’s court, Judge S speaks extra loudly in a patronizing manner.
Whenever Judge S conducts voir dire of a jury panel member who is poor, Judge S scowls and adopts a tone of voice
normally reserved for slow learners and errant pets. Judge S is subject to discipline.
8. EX PARTE COMMUNICATIONS–must not initiate, permit, or consider ex parte communication except in three situations:
a) Expressly Authorized by Law→ A judge may have ex parte communications when expressly authorized by law
(1) Some communications authorized by law occur in conjunction with a judge’s service on certain “specialized” courts,
such as drug courts or mental health courts.
(2) Judges serving on such courts may have to assume a more interactive role with parties, treatment providers, probation
officers, and social workers.
b) Mediation or Settlement→ With the consent of the parties, the judge may confer separately with the parties and their
lawyers in an effort to settle or mediate a pending matter
c) Emergencies or Administrative Matters→ In other situations, the judge may have an ex parte communication only if all
four of the following conditions are met:
(1) The circumstances require the judge to communicate with one side only (if the other side cannot be reached);
(2) The communication concerns an emergency or a scheduling or administrative matter as distinct from a substantive
matter or matter affecting the merits;
(3) The judge believes no party will gain a procedural, substantive, or tactical advantage from the communication; and
(4) The judge notifies the lawyers for the other parties of the essence of the communication and gives them an
opportunity to respond.
d) Inadvertent Receipt of Unauthorized Ex Parte Communication→ If a judge inadvertently receives an unauthorized ex parte
communication that relates to substantive matters, she must make provision promptly to notify the parties of the substance
of the communication and give them an opportunity to respond
9. COMMUNICATIONS FROM OTHERS–must not initiate, permit, or consider communications from others made outside
presence of the parties’ lawyers concerning a pending or impending matter, except in two situations:
a) Court Personnel→ may consult about a matter with other judges and with other court personnel whose function is to aid
the judge in carrying out adjudicative responsibilities (e.g., the judge’s law clerk).
(1) Must make reasonable efforts to avoid receiving factual information that is not part of the record; and
(2) Must not abrogate his responsibility to decide the matter.
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 b) Disinterested Legal Experts→ may obtain written advice of disinterested expert on applicable law, provided that the judge:
(1) Gives advance notice to the parties of the expert’s identity and subject matter of the advice to be solicited, and
(2) Gives the parties a reasonable opportunity to object and respond to the notice and the advice.
10. INDEPENDENT INVESTIGATION OF FACTS– A judge must not independently investigate the facts in a case and must
consider only the evidence presented. Extends to information available in all mediums, including electronic research
11. PUBLIC COMMENTS ON CASES– When a case is pending/impending in any court must not make public comment
reasonably expected to affect outcome/impair its fairness, or make nonpublic comment that might interfere with a fair trial.
a) The judge must require abstention from court personnel under her control.
(1) Official Duties Excepted→ The duty to abstain from comment does not prohibit judges from making public
statements in the course of their official duties, or from publicly explaining court procedures.
(2) Judge as a Party→ The duty to abstain from comment does not apply if the judge is a litigant in a personal capacity.
The duty does apply if the judge is a litigant in an official capacity, as in writ of mandamus proceedings
12. PROMISES WITH RESPECT TO CASES LIKELY TO COME BEFORE COURT– Judge must not make pledges,
promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of the office.
13. DECORUM, DEMEANOR, AND COMMUNICATION WITH JURORS– must require order and decorum. With regard to
litigants, jurors, witnesses, lawyers, court staff, court officials, must be patient, dignified, and courteous
a) A judge must not commend or criticize jurors for their verdict other than in a court order or opinion
14. ADMINISTRATIVE APPOINTMENTS→ appointments of counsel, referees, special masters, guardians, court personnel
(1) Must be made impartially on the basis of merit, without nepotism or favoritism
(2) A judge must not make unnecessary appointments or approve compensation in excess of the fair value
b) Appointments of Lawyers Contributing to Judge’s Election Campaign→ must not appoint a lawyer to a position if the
judge knows that lawyer, lawyer’s spouse, or lawyer’s domestic partner has contributed to the judge’s election campaign
more than the jurisdiction’s specified dollar amount within a designated number of years prior to the judge’s campaign.
(1) Does NOT apply if the position is substantially uncompensated; the lawyer is selected as part of a rotation of qualified
lawyers chosen without regard to their political contributions; or the judge finds that no other lawyer is willing,
competent, and able to accept the position.
15. RESPONDING TO JUDICIAL AND LAWYER MISCONDUCT
a) Mandatory reporting: If a judge has knowledge that a judge has violated the CJC in a manner that raises a substantial
question as to the judge’s honesty, trustworthiness, or fitness as a judge, the judge must inform the appropriate authority.
(1) Also applies if the judge has knowledge that a lawyer has committed a similar violation of RPC.
b) Permissive reporting: A judge who receives information indicating a substantial likelihood that another judge has
violated the CJC (or lawyer violated the RPC) must take “appropriate action.”
(1) May range from direct communication with the violator to reporting the suspected violation to appropriate authority.
16. DISABILITY AND IMPAIRMENT OF OTHER JUDGES OR LAWYERS– A judge having a reasonable belief that a
lawyer or judge is impaired by drugs or alcohol or by a mental, physical, or emotional condition must take appropriate action
a) Can include a confidential referral to a lawyer or judicial assistance program.
b) If the conduct of the impaired person is sufficiently serious, the judge may be required to report the person to the
appropriate disciplinary authority.
17. COOPERATION WITH DISCIPLINARY AUTHORITIES– must cooperate/be honest with judicial/lawyer discipline
a) Retaliation against a person known/suspected to have cooperated with an investigation of a judge/lawyer is not permitted.
18. DISQUALIFICATION
a) General Rule–Whenever Impartiality Might Reasonably Be Questioned
NOTE: The rule employs a reasonableness standard; a far-fetched argument or litigant’s whim is not sufficient
(1) Disclosure by Judge→ The judge should disclose on the record any information the judge believes that the parties or
their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no
reasonable basis for disqualification.
(a) Example: Judge plans to retire from the bench at the end of the year and return to private practice. Judge has
talked with Firm about joining. Now Judge is assigned to hear a case in which Δ is represented by Firm. Judge
should disclose the facts and let the parties decide whether to waive disqualification.
(2) Rule of Necessity→ Case law has created a rule of necessity that overrides the rules of disqualification.
(a) Example: Judge is the only judge available to rule on an emergency motion for a temporary restraining order.
Judge may rule on the motion even though he might be disqualified were it not an emergency. Judge should still
disclose the grounds for disqualification on the record and use reasonable efforts to transfer the matter to a
different judge as soon as possible.

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 (b) Example: State trial judge A is assigned to hear a case concerning the constitutionality of a statute that will raise
the salary of all trial judges in the state. Judge A may hear the case because the reason for disqualification applies
equally to all other judges to whom the case might be assigned.
b) Bias or Personal Knowledge→ A judge must disqualify himself if there is reasonable ground to believe the judge has:
(1) A personal bias concerning a party or a party’s lawyer; or
(2) Personal knowledge of relevant evidentiary facts.
(a) Must be personal and stem from extrajudicial source; adverse attitudes toward a party formed on the basis of
evidence presented in the case are not disqualifying.
c) Prior Involvement→ A judge must disqualify himself if the judge previously:
(1) Served as a material witness in the matter;
(2) Served as a lawyer in the matter;
(3) Was associated in law practice with a person who participated substantially as a lawyer in the matter at the time they
practiced together;
(4) Presided as a judge over the matter in another court; or
(5) Served in governmental employment, and in such capacity participated personally and substantially as a lawyer or
public official concerning the proceeding, or publicly expressed in such capacity an opinion concerning the merits of
the particular matter in controversy.
d) Economic Interest→ A judge must disqualify himself if the judge knows that he, either as an individual or as a fiduciary,
has an economic interest in the matter or in one of the parties.
(1) Also required if the interest is held by the judge’s spouse, domestic partner, parent, or child (wherever residing) or by
any other member of the judge’s family who resides in the judge’s household.
(2) A judge must keep informed about his economic interests and must make a reasonable effort to keep informed about
the economic interests of the judge’s spouse/partner and minor children residing in the judge’s household.
(3) Economic Interest→ A person owns more than a de minimis legal or equitable interest
(a) De minimis interest→ Insignificant interest that raises no reasonable question regarding a judge’s impartiality.
(4) Exceptions to Definition
(a) Mutual Funds→ Ownership of an interest in a mutual fund or common investment fund that holds securities is
not an economic interest in those securities unless:
(i) The judge participates in the management of the fund; or
(ii) The proceeding could substantially affect the value of the interest.
(b) Securities Held by Organization→ Suppose that a judge is an officer, director, advisor, or other active participant
in an educational, religious, charitable, fraternal, or civic organization. The organization owns securities of the
XYZ Corporation, which is a party to a case that the judge is assigned to hear. The judge’s involvement with the
organization does not give the judge an economic interest in the XYZ Corporation.
(i) Applies if judge’s spouse, partner, parent, child is officer, director, advisor, etc. in such an organization.
(c) Bank Deposits, Mutual Insurance Policies, and the Like→ Suppose that a judge, or member of the judge’s family,
owns a deposit in the First Federal Bank. That does not disqualify the judge from hearing a case in which First
Federal is a party, unless the proceedings could substantially affect the value of the deposit
(i) Also applies to a deposit in a mutual savings association or credit union.
(d) Government Securities→ An interest in the issuer of government securities is not a disqualifying economic
interest, unless the value of the securities could be substantially affected by the proceedings.
e) Involvement in the Proceeding→ A judge must disqualify herself if the judge knows that she, her spouse or domestic
partner, or a person within the third degree of relationship to either of them, or the spouse or domestic partner of such a
person, is:
(1) A party, or an officer, director, general partner, managing partner, or trustee of a party;
(2) A lawyer in the proceeding;
(3) A person with more than a de minimis interest that could be substantially affected by the proceeding; or
(4) Likely to be a material witness in the proceeding.
(a) Third Degree of Relationship→ Anyone related more closely than cousin
f) Persons Making Contributions to Judges Campaign→ A judge who is subject to public election must disqualify
himself if he knows, or learns through a timely motion, that a party, a party’s lawyer, or the law firm of a party’s lawyer
has, within a designated number of prior years, made contributions to the judge’s election campaign that exceed the
jurisdiction’s specified amount.
g) Public Statements of Judicial Commitment→ A judge must disqualify himself if he, while a judge or a candidate for
judicial office, has made a public statement other than in a court proceeding, judicial decision, or opinion, that commits or
appears to commit the judge to reach a particular result or to rule in a particular way in the proceeding or controversy.

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 h) Remittal of Disqualification→ The parties and their lawyers can waive all grounds of disqualification, except personal
bias concerning a party or a party’s lawyer.
(1) Procedure:
(a) The judge discloses on the record the ground for disqualification. The judge may then ask whether the parties and
their lawyers wish to discuss waiver.
(b) The lawyers consult privately with their respective clients.
(c) All of the parties and their lawyers meet, outside the presence of the judge, and agree that the judge should not be
dis‐qualified. The agreement must be incorporated into the record.
(d) If the judge is willing to do so, she may then proceed with the case.

C. CANON 3: EXTRAJUDICIAL ACTIVITIES

A judge must conduct his personal and extrajudicial activities to minimize risk of conflict with obligations of judicial office.
1. IN GENERAL– Judges are encouraged to engage in appropriate extrajudicial activities. BUT– judge must not:
a) Participate in activities that will interfere with the proper performance of the judge’s duties; lead to frequent
disqualification; or reasonably appear to undermine the judge’s independence, integrity, or impartiality;
b) Engage in conduct that would reasonably appear to be coercive; or
c) Use court premises, staff, stationery, equipment, or other resources, except incidentally, for activities that concern the law,
the legal system, or the administration of justice, unless such additional use is legally permitted.
2. GOVERNMENTAL HEARINGS AND CONSULTATIONS– A judge must not appear voluntarily at a public hearing
before, or otherwise consult with, an executive or legislative body or official, except on matters concerning the law, the legal
system, or the administration of justice
a) Does NOT apply when the judge acting pro se in matter involving judge/interests, or judge acting as a fiduciary.
b) OR matters about which the judge acquired knowledge or expertise in the course of her judicial duties.
3. TESTIFYING AS CHARACTER WITNESS– A judge must not testify as a character witness, except when duly summoned
to do so (i.e., by subpoena), otherwise should discourage parties from requiring testimony as a character witness.
4. GOVERNMENTAL COMMITTEES AND COMMISSIONS– must not accept appointment to a governmental committee
or commission or other governmental position that does not relate to the law, the legal system, or the administration of justice
(1) Likely time-consuming, can involve judge in controversial matters, and interfere with independence of the judiciary.
b) BUT– may represent gov on ceremonial occasion, or in connection with a historical, educational, or cultural activity.
5. PARTICIPATION IN EDUCATIONAL, RELIGIOUS, CHARITABLE, FRATERNAL, OR CIVIC ORGANIZATIONS
a) May take part in activities sponsored by orgs/entities concerned with law, legal system, or administration of justice, and
sponsored by/on behalf of educational, religious, charitable, fraternal, or civic orgs not for profit. Includes:
(1) Assistance in planning for fund-raising, and participation in management and investment of funds;
(2) Solicitation of contributions for the organization;
(a) Only from family members or judges whom the judge has no supervisory or appellate authority
(3) Membership solicitation, even though the dues/fees may be used to support objectives of the organization;
(a) Only if the organization is concerned with the law, the legal system, or the administration of justice
(4) Appearing or speaking at, receiving an award at, being featured on the program of, and permitting her title to be used
in connection with an organization’s event;
(a) If fundraiser, participation permitted only if the event concerns law, legal system, or administration of justice
(5) Making recommendations to a fund-granting organization in connection with its programs and activities; and
(a) Only if the organization is concerned with the law, the legal system, or the administration of justice
(6) Service as an officer, director, trustee, or nonlegal advisor.
(a) Unless likely that org will be engaged in proceedings that would come before the judge, or will frequently be
engaged in adversary proceedings in the court on which the judge sits or one under its appellate jurisdiction
b) Encouraging Pro Bono Service→ A judge may encourage lawyers to provide pro bono publico legal services but must
not use coercion or abuse the prestige of her office.
6. AFFILIATION WITH DISCRIMINATORY ORGANIZATIONS– A judge must not hold membership in an organization
that practices invidious discrimination based on race, sex, gender, religion, national origin, ethnicity, or sexual orientation
a) Even if the judge is not a member of such an organization, he must not use benefits or facilities if he knows/should know
that it practices a prohibited form of invidious discrimination.
(1) BUT– may attend an event in a facility of the organization if attendance is an isolated event that could not reasonably
be perceived as an endorsement of the organization’s practices.
b) Determination of “Invidious Discrimination” → An organization discriminates invidiously if it arbitrarily excludes from
membership, on any of the bases enumerated above, persons who would otherwise be eligible for admission.
(1) An examination of the organization’s membership rolls is not solely dispositive
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 (a) Important to determine how the organization selects its members
(b) Other relevant factors: whether the org is dedicated to the preservation of religious, ethnic, or cultural values of
legitimate common interest to its members, or whether it is a private org whose membership limitations could not
constitutionally be prohibited.
(2) Example: Judge G belongs to the Slovenian League, which limits its membership to all descendants (regardless of sex
or race) of persons from Slovenia. The object of the organization is to preserve the culture and traditions of the
Slovenian people. Judge G’s membership is permissible.
c) Exercise of Religion Does Not Violate Rule→ Membership in religious org does not violate Rule 3.6.
d) Immediate Resignation Required→ Upon learning that an org to which he belongs engages in discrimination, a judge
must resign immediately from the organization.
7. USE OF NONPUBLIC INFORMATION– A judge must not intentionally disclose or use nonpublic information acquired in
his judicial capacity for any purpose unrelated to his judicial duties.
8. FINANCIAL, BUSINESS, OR REMUNERATIVE ACTIVITIES– Generally, a judge may not serve as an officer, director,
manager, partner, advisor, or employee of a business.
a) BUT– may hold and manage her own investments and family, manage or participate in a business closely held by the judge
or a family member, or in a business primarily engaged in investing the financial resources of the judge or her family,
UNLESS such activity will:
(1) Interfere with the proper performance of the judge’s duties;
(2) Lead to frequent disqualification of the judge;
(3) Involve the judge in frequent transactions or continuing business relationships with lawyers or other persons likely to
come before the court on which the judge serves; or
(4) Result in a violation of other provisions of the CJC.
b) Divesting Problematic Interests→ As soon as practicable without serious financial detriment, a judge must divest herself
of investments and other financial interests that might require frequent disqualification or otherwise violate the rule
c) Minimizing Time Spent on Business Activities→ It is improper for a judge to devote so much time to her business
activities that it interferes with her judicial duties.
9. ACCEPTANCE AND REPORTING OF GIFTS, LOANS, BEQUESTS, BENEFITS, OR OTHER THINGS OF VALUE
a) A judge must not accept gifts, loans, bequests, benefits, or other things of value if acceptance thereof is prohibited by law
or would reasonably appear to undermine the judge’s independence, integrity, or impartiality
b) Gifts Acceptable Without Reporting→ The following may be accepted without being publicly reported:
(1) Items of little intrinsic value (e.g., plaques or certificates);
(2) Things of value from individuals whose appearance/interest in a case would require disqualification in any event
(a) e.g., friends, relatives, or persons with cases pending or impending before the judge
(3) Ordinary social hospitality;
(4) Commercial or financial opportunities, including discounts and loans in the regular course of business, provided the
same opportunities are available on the same terms to similarly situated persons who are not judges;
(5) Rewards and prizes given to participants in drawings and contests that are open to persons who are not judges;
(6) Scholarships and fellowships, provided they are available to similarly situated persons who are not judges, based on
identical criteria;
(7) Books, magazines, journals, and other resource materials supplied by publishers on a complimentary basis for official
use; and
(8) Gifts, awards, or benefits associated with the business or separate activity of a spouse, domestic partner, or other
family member residing in the judge’s household, but that incidentally benefit the judge.
c) Gifts that Must Be Reported→ The following may be accepted but must be publicly reported:
(1) Gifts incident to a public testimonial;
(2) Invitations to the judge and her spouse, domestic partner, or guest to attend without charge an activity related to the
law, the legal system, or the administration of justice, or an event associated with any of the judge’s educational,
religious, charitable, fraternal, or civic activities permitted by the CJC, if the same invitation is offered to nonjudges
who are engaged in similar ways in the activity; and
(3) Gifts, loans, bequests, or other things of value, if the source is a person who has come, or is likely to come, before the
judge, or whose interests have come, or are likely to come before the judge
10. FIDUCIARY ACTIVITIES
a) Generally, a judge must not serve as an executor, administrator, trustee, guardian, or other fiduciary. BUT– may serve in
such a capacity for a member of the judge’s family, if the service will not:
(1) Interfere with the judge’s judicial duties;
(2) Involve the judge in proceedings that would ordinarily come before him; or
(3) Involve the judge in adversary proceedings in the court on which the judge sits or one under its appellate jurisdiction.
b) Financial Dealings as Fiduciary→ The restrictions on financial dealings that apply to a judge personally also apply when
the judge acts as a fiduciary

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 c) Conflicting Duties→ When the duties of a fiduciary conflict with judge’s duties under the CJC, should resign as fiduciary
d) Fiduciary Who Becomes a Judge Must Comply with Rule→ If a person serving as a fiduciary becomes a judge, she
must comply as soon as reasonably practicable, but no later than one year after becoming a judge.
11. SERVICE AS ARBITRATOR OR MEDIATOR– A full-time judge must not act as an arbitrator, mediator, or private judge
unless expressly authorized by law. This does not prevent the judge from participating in arbitration, mediation, or settlement
conferences as part of her regular judicial duties.
12. PRACTICE OF LAW– A full-time judge must not practice law.
a) BUT– may act pro se and without compensation, give legal advice and draft/review documents for member of family.
(1) MAY NOT act as a family member’s lawyer in any forum.
13. COMPENSATION FOR EXTRAJUDICIAL ACTIVITIES– Reasonable compensation for extrajudicial activities (e.g.,
compensation for speaking, teaching, or writing) is permitted unless acceptance thereof would reasonably appear to undermine
the judge’s independence, integrity, or impartiality.
a) Any such compensation must be reasonable and commensurate with the task performed.
14. REIMBURSEMENT OF EXPENSES AND WAIVER OF FEES OR CHARGES
a) May accept reimbursement of necessary and reasonable expenses for travel, food, lodging, or other incidentals, or a waiver
of fees or charges for registration/tuition, from sources other than the judge’s employer, if such expenses are associated
with the judge’s participation in extrajudicial activities permitted by the CJC.
(1) Reimbursement may not exceed the actual costs reasonably incurred by the judge
(2) A judge who accepts reimbursement of expenses or waivers of fees must comply with public reporting requirements
b) Factors Judge Should Consider in Determining Propriety of Reimbursement or Fee Waiver→ A judge must assure
herself that acceptance of reimbursement or a fee waiver would not appear to undermine her independence, integrity, or
impartiality. In making this determination, a judge should consider whether:
(1) The sponsor is an accredited educational institution or bar association rather than a trade association or a for- profit
entity;
(2) Funding comes largely from numerous contributors rather than from a single entity and is earmarked for pro‐ grams
with specific content;
(3) The content is related to the subject matter of litiga‐ tion pending or impending before the judge, or to matters likely
to come before the judge;
(4) The activity is primarily educational rather than recreational, and whether the costs are reasonable and comparable to
the costs of similar events sponsored by the judiciary or bar associations;
(5) Information related to the activity and its funding sources is available upon request;
(6) The sponsor or source of funding is generally associated with parties or interests currently appearing or likely to
appear in the judge’s court, thus potentially requiring the judge’s disqualification
(7) Differing viewpoints are presented; and
(8) A broad range of judicial and nonjudicial participants are invited, whether a large number of participants are invited,
and whether the program is designed specifically for judges.
15. REPORTING REQUIREMENTS
a) A judge must publicly report the amount or value of:
(1) Compensation received for extrajudicial activities as permitted
(2) Gifts and other things of value permitted, unless the value does not exceed amount determined by state law; and
(3) Reimbursement of expenses and waiver of fees or charges permitted, unless the amount does not exceed amount
determined by state law
b) Contents of Public Report→ public report must state date, place, nature of activity that judge received compensation for
(1) Any gifts, loans, or other things of value must be described, must also state the source of reimbursement
c) Time for Making Report→ Public reports must be made at least annually.
(1) BUT– reports of reimbursement/waiver of fees must be made within 30 days after the conclusion of the event
d) Location of Filing→ Public reports must be filed in the office of the clerk of the court on which the judge sits, or in some
other office designated by law. If feasible, reports must also be filed on the court’s website.

D. CANON 4: JUDGES’ POLITICAL AND CAMPAIGN ACTIVITIES

A judge or candidate for judicial office must not engage in political or campaign activity that is inconsistent with the
independence, integrity, or impartiality of the judiciary.
1. POLITICAL AND CAMPAIGN ACTIVITIES OF JUDGES AND JUDICIAL CANDIDATES IN GENERAL
a) Except where permitted by law or by the CJC a judge or a judicial candidate must not:
(1) Lead or hold office in a political organization;
(2) Make speeches on behalf of a political organization;
(3) Publicly endorse or oppose a candidate for public office;
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 (4) Solicit funds for, pay an assessment to, or contribute to a political organization or a candidate for public office;
(5) Attend/buy tickets for dinners or other events sponsored by a political organization or a candidate for public office;
(6) Publicly identify herself as a candidate of a political organization;
(7) Seek, accept, or use endorsements from a political organization;
(8) Personally solicit or accept campaign contributions other than through a campaign committee;
(9) Use or permit the use of campaign contributions for private benefit;
(10) Use court staff, facilities, or other court resources in her campaign;
(11) Knowingly, or with reckless disregard for the truth, make a statement that is false or misleading, or that omits facts
necessary to make the communication considered as a whole not materially misleading;
(12) Make a statement that would reasonably be expected to affect the outcome or impair the fairness of a matter pending
or impending in any court; or
(13) In connection with cases, controversies, or issues that are likely to come before the court, make pledges, promises, or
commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office.
b) Activities of Other Persons→ A judge or candidate must take reasonable measures to ensure that other persons do not
undertake on her behalf any of the prohibited activities
c) No “Family Exception” to Prohibition Against Candidate Endorsement→ A judge or candidate must avoid
involvement in a family member’s political activity or campaign for public office.
(1) Reasonable steps must be taken to avoid the implication that the judge or candidate endorses the family member.
d) Participation in Caucus-Type Elections Is Permitted→ Participation in a caucus-type election ≠ public support for a
political organization or candidate.
e) Responding to Statements by Others→ may make a factually accurate public response to false or misleading statements
issued by her opponent, third parties, or the media, concerning her integrity, experience, or fitness
f) Pledges or Promises→ To determine whether a candidate has made a pledge or promise = examine totality of statement.
(1) If a reasonable person would think that the candidate has specifically undertaken to reach a particular result, then a
pledge, promise, or commitment has been made.
(a) NOTE: A statement of personal views on legal, political, or other issues is not prohibited.
(i) SCOTUS has held violative of the First Amendment.
(2) Promises Related to Judicial Organization Permitted→ A judicial candidate may make campaign promises related to
judicial organization, administration, and court management
(a) e.g., promises to dispose of case backlogs or to begin court sessions on time
(b) Also may pledge to take certain actions outside the courtroom, such as working to improve the jury selection
system or advocating more funds to improve the physical facilities of a courthouse.
(3) Responding to Media Questionnaires Requires Caution→ Candidates who respond to such inquiries/interview
requests from the media should give assurances that they will keep an open mind and will carry out their duties
faithfully and impartially if elected.
(a) If a candidate does not respond, she may state that a response might be perceived as undermining her
independence or impartiality, or might lead to frequent disqualification.
2. POLITICAL AND CAMPAIGN ACTIVITIES OF JUDICIAL CANDIDATES IN PUBLIC ELECTIONS
a) A judicial candidate in a partisan, nonpartisan, or retention public election must:
(1) Act in a manner consistent with the independence, integrity, and impartiality of the judiciary;
(2) Comply with applicable election, election campaign, and campaign fundraising laws/regulations of the jurisdiction;
(3) Review and approve the content of campaign statements/materials produced by the candidate or her campaign
committee before their dissemination; and
(4) Take reasonable measures to ensure that other persons do not undertake on her behalf activities that the candidate is
prohibited from
b) Certain Activities Permitted→ may, no earlier than a minimum amount of time prior to the first primary, caucus, or
general or retention election, do the following:
(1) Establish a campaign committee;
(2) Speak on behalf of her candidacy through any medium;
(3) Publicly endorse or oppose candidates for the same judicial office for which she is running;
(4) Attend or purchase tickets for dinners or other events sponsored by a political organization/candidate for office;
(5) Seek, accept, or use endorsements from any person or organization other than a partisan political organization; and
(6) Contribute to a political organization/candidate for public office, but not more than a maximum dollar amount to be
determined by each jurisdiction to any one organization or candidate.
c) Exception–Candidates in Partisan Elections May Be Identified with Political Organizations→ judicial candidate in a
partisan election may, not earlier than a minimum amount of time to the first primary, caucus, or general election:
(1) Identify herself as a candidate of a political organization; and
(2) Seek, accept, and use endorsements of a political organization.
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 3. ACTIVITIES OF CANDIDATES FOR APPOINTIVE JUDICIAL OFFICE– may communicate with the appointing or
confirming authority, including any selection, screening, or nominating commission.
a) A candidate may seek the endorsement of a person or organization, other than a partisan political organization.
4. CAMPAIGN COMMITTEES– may establish a campaign committee to manage and conduct her campaign, responsible for
ensuring that the committee complies with law and the CJC.
a) Solicitation Time Limits→ The candidate must direct the committee not to solicit or accept contributions more than a
certain amount of time (designated by other state law) prior to the applicable election, nor more than a designated number
of days after the last election in which the candidate participated.
b) Campaign Contribution Limits→ The candidate must direct the committee to solicit and accept only reasonable
contributions, not to exceed the jurisdiction’s specified limits.
c) Disclosure Requirements→ The candidate must direct the committee to comply with statutory requirements for
disclosure and divestiture of contributions, and to file with the appropriate authority a report that states the name, address,
occupation, and employer of each person who has contributed an amount in excess of the applicable maximum.
(1) Reports must be filed within a post-election time period designated by the jurisdiction.
5. ACTIVITIES OF JUDGES WHO BECOME CANDIDATES FOR NONJUDICIAL OFFICE
a) When a judge becomes a candidate for a nonjudicial elective office, she must resign her judgeship unless applicable law
permits her to retain her judicial office.
b) If the judge becomes a candidate for a nonjudicial appointive office, she need not resign her judgeship, provided that she
complies with all other provisions of the CJC.

E. APPLICATION OF THE CODE OF JUDICIAL CONDUCT

1. In jurisdictions that adopt the Code of Judicial Conduct, it applies to all persons who perform judicial functions, including
magistrates, court commissioners, and special masters and referees.
2. The Application section of the CJC contains a group of highly detailed exceptions that make various parts of the CJC
inapplicable to several categories of retired and part-time judges.
3. KNOW FOR MPRE
a) A retired judge subject to recall is allowed to serve as an arbitrator or mediator (except while serving as a judge) and is
allowed to serve as a fiduciary.
b) Continuing part-time judges, periodic part-time judges, and pro tempore part-time judges are exempt from many, but not
all, of the CJC provisions that restrict outside activities and political activities.

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