Shared Flashcard Set


Model Rules of Prof. Conduct
Summary of rules--BYU Law

Additional Law Flashcards




1.0 Terminology

  • Informed consent: agreement after L has provided adequate info. and explanation re material risks and rea. available alternatives.
  • Reasonably: reasonably prudent and competent L.

1.1 Competence
• Shall provide comptent rep.
• Competent rep. requ's legal knowledge, skill, thoroughness, and prep. reasonably necessary.
○ (ability and effort)
• Factors
○ complexity, specialized nature
○ general experience
○ training/experience in field
○ feasible to refer it out
• General proficiency requ'd is that of a gen. practitioner
○ special training isn't required
• In emergency can give advice even if don't have requisite skill--but limit advice to what is rea. necessary
• L. should keep abreast of changed in law and its practices
1.2 Scope of Rep & Allocation of Auth btwn Att & Cl
• Client has control over objectives or ends
• Att. has control, but must consult w/ client , over the means
• Att. can take action that is impliedly authorized to represent (me: implied = malpractice if don't obey explicit instruction--perhaps)
• Client has absolute control over
○ settle
○ enter/agree to plea
○ waive jury trial
○ testify
• L can limit the representation if client gives consent
• Shall not counsel/assist in crime/fraud, but can explore options and give good faith advice based on the law
• Client has ultimate authority to determine purposes to be served in legal representation.

• "[T]his rule does not prescribe how . . . disagreements [regarding the implications of interests of the court or 3rd persons] are to be resolved"
○ can look to other law
○ Should consult w/ client and try to reach a mutually acceptable solution
○ If there is a fundamental disagreement, can withdraw or be fired

• Limitation must be reasonable under the circumstances

• If L thought was legal but later learns it isn't, then must withdraw
1.3 Diligence
• Reasonable diligence and promptness are requ'd
• Should take whatever lawful and ethical measures are requ'd to vindicate a cl's cause
• Must act w/ commitment, dedication, and zeal in advocacy
• Reasonableness is the norm
• Must control workload
○ procrastination can end in discipline if miss Stat. of Lim's
• Don't violate rules by agreeing to rea. extensions
• Doubt as to whether the at/cl rel. still exists should be clarified by at so client doesn't mistakenly suppose at. is still looking out for her
• Whether at. has to take on appeal depends on scope of rep. originally agreed to.
1.4 Comunication
• Promptly inform cl. of decision/circumstance
• Reasonably consult w/ cl.
• Keep cl. reasonably informed
• Promptly comply w/ rea. requ's for info.
• Shall explain matter to extent rea. nec. for cl. to make informed decisions
1.5 Fees
• Shall not charge unreasonable fee/expenses
○ Factors
§ time and labor reuq'd
§ novelty, difficulty, skill requisite
§ customary fee
§ result obtained/amount involved
§ time limitations
§ nature & length of at/cl relationship
§ experience/rep/ability of lawyer
§ fixed or contingent fee
• Shall communicate basis of rate w/i reasonable time after commencing (prefer in writing)
• Can require advance payment
• contingent fee must:
○ be in writing
§ include %
§ method determined
§ signed by client
○ give accounting upon conclusion
○ not permitted for domestic/crim. matters
• Division of fee btwn firms must be approved by client and be reasonable
• Factors aren't exhaustive

• Must return unearned portion of advanced fee
• Can accept property for services
• Shouldn't agree to provide services up to a stated amount w/ more will likely be required unless disclosed to client
1.6 Duty of Confidentiality
• Shall not reveal confidential info unless by implied consent
• Exceptions
○ prevent death/physical harm
○ crime fraud exception w/ att. used in furtherance
○ mitigate/rectify injury from crime/fraud exception
○ get legal advice on ethics
○ self-defense
○ comply w/ law/court order
• Implied auth. to disclose w/i the firm
• Covers 3rd party info
○ "all information regarding representation whatever its source"
• Lasts forever
• Crime/fraud is optional, not mandatory. But cannot knowingly assist in crime/fraud
• Should first seek to persuade client to disclose before seeking exception to duty
1.7 Conflict of Interest: Current Clients
• Shall not rep. in Concurrent Conflict:
• directly adverse interests or
○ can't be cured by informed consent
• significant risk rep. will be materially limited by duties to other client, 3rd person, or personal interests
○ Cured w/ informed consent (in writing) plus reasonable belief can provide competent and diligent representation
• Conflict can exist before rep. is taken = should be declined
• If conflict arises afterwards = should withdraw
• Current clients shouldn't have to fear taking a new client will adversely affect them
• Material limitation: ability to consider, recommend, or carry out
• No sex w/ client unless intimate relationship existed prior to At/Cl rel.
• Informed consent: both parties are aware of ways their representation could be materially limited
○ in some instances may be impossible to make disclosure necessary
• Client can revoke consent and fire attorney
• Consent to future conflicts is judged client's reasonable understanding of material risks waiver entails
• Possible conflict causes
○ discrepancy in testimonies
○ incompatible position re. an opposing party
○ different settlement possibilities re. claims of liability
• In crim. cases should normally decline to represent on co-defendant
• If common representation fails due to late arising conflict of interest, result can be additional costs, embarrassment, and recrimination
• At outset of common rep. lawyer should at least advise clients that all info. will be shared and if it gets ugly lawyer will have to withdraw from both (e.g. if one wants to keep info from the other)
• Each client in common rep. has right to loyal and diligent rep.
• Lawyer of org. doesn’t necessarily rep. affiliate orgs
1.8 Conflict of Interest: Current Clients: Specific Rules
• Shall not enter bus. trans. w/ client UNLESS
○ Fair and reasonable to client and full disclosure in writing
○ advised in writing to get indep. counsel
○ client gives informed consent in writing
• Shall not use info. re. rep. of a client to disadvantage a client w/o informed consent
• Shall not solicit substantial gift or prepare will that gives a substantial gift unless family
• Shall not negotiate getting media rights until after conclusion of representation
• Shall not provide financial assistance EXCEPT
○ court costs
○ indigent client (only court costs and expenses)
• Shall not be paid by a 3rd party UNLESS
○ informed consent
○ no interference w/ Cl/Law rel.
○ info. is kept confidential under 1.6
• Common representation: shall not participate in aggregate settlement/plea deals UNLESS all clients give informed consent
• Malpractice: Shall not:
○ make prospective arrangement unless client in independently represented
○ settle malpra. claim w/ unrepresented client UNLESS advised to get counsel in writing and given reasonable time to do so
• Shall not acquire proprietary interest in subject matter of litigation EXCEPT
○ lien to secure fee/expenses
○ contingent fee
• No sex w/ client UNLESS preceded At/Cl rel.
• IMPUTATION: everything but sex in this rule is imputed
• Can enter into standard transaction, e.g. buy a car from client dealer
• Violates duty of loyalty
• Gifts governed by general standards of fairness
○ Can be named as executor of an estate
1.9 Duties to Former Clients
• Shall not represent successive clients if interests are materially adverse to former clients in same or substantially related matters
○ Informed consent always cures this
§ not informed consent plus
○ Applies to lawyers switching firms only if they had prior confidential knowledge from previous firm
• Substantially related:
○ same trans. or legal dispute
○ sub. risk that confidential factual info. would materially advance client's position
1.10 Imputation of conflicts of Interest: General Rule
• Conflicts are imputed to entire firm UNLESS
○ personal interest conflict
○ successive confict AND
§ timely screened
§ written notice to prior client
§ certificate of compliance at end of rep.
§ can't receive fees
• Doesn't apply to secretaries, paralegals, law students
• No screening for concurrent conflicts
1.11 Special conflicts of Interest for Former and Current Gov't Officers and Empls
• Former gov. Employeees
○ gov. was client and duties to former clients apply
○ Must get informed consent to rep. client on something you worked on
○ No imputation if properly screened and notice is given in writing
○ Can't rep. client w/ interests materially adverse to gov. if have confidential info.
• Current gov. Employees
○ 1.7 applies--can't have concurrent conflict
○ 1.9 applies--duties to former clients while in private practice
§ Also need informed consent from gov. to participate in something participated in while in private practice

Cannot negotiate for employment w/ firm that is involved in something against the gov. and att. is substantially involved
• Must have been substantially and personally involved
Judicial clerks exempted
1.13 Org. as Client
• Represent org as a whole
• Mandatory disclosure rule: must report discovered wrongdoing
○ unless working on investigation of the wrongdoing
○ must report names of wrongdoers
○ if fired for disclosing, should report this
• Can represent members of org. and org., but will need informed consent if possibility of conflict of interests
• If representing org. produces conflict w/ a member, must tell member they can get indep. couns.
• Applies to gov. as well.
1.14 Client w/ Diminished Capacity
• As far as possible, maintain normal at/cl rel.
• Can take steps to protect client if reasonably believe diminished capacity
○ implied auth. re. risk of substantial physical, financial, or other harm to self/others

• Can only disclose confidential info to the extent reasonably necessary to protect client's interests
• Can seek appointment of guardian ad litem/ conservator/guardian
• If guardian is appointed, decisions trump client's
• 5-6 yr olds have valid opinion re. custody
• obligation to treat cl w/ respect/attention
• Diminished capacity:
○ inability to articulate reasoning
○ variability of state of mind and ability to appreciate consequences
○ substantive fairness of a decision
○ consistency of a decision w/ the known long-term commitments and values of client

• Must take least restrictive actoin
• Impliedly auth. to disclose info even if directed not to

• Can consult with those who have ability to take action and protect client
• Should first consult w/ fam./supp groups/ prof. svcs/etc.
1.15 Safekeeping Property
• separate from L's property
○ separate trust accounts
• Maintain complete records and keep them for 5 yrs after rep. ends
• Prompt notification when receive funds for others
• Prompt delivery of funds to client of 3rd person
• Provide a full accounting upon request
• If a dispute shall keep disputed portion (usually in bus. trust acct) until resolved
• Securities should be kept in safe deposit box

• Don't have to give funds reasonably believe are owed as fees

• If a 3rd party claim on $ isn't frivolous, can't turn the $ over to client until dispute is resolved
1.16 Declining or Terminating Representation
• Mandatory withdraw/refusal of rep.
○ rep. violates the rules
○ L's phy/mental condition materially impairs ability to rep.
○ if fired
• Optional withdrawl/refusal of rep.
○ If no adverse materially affect : any rea
○ rea. bel. using L to perpetuate crime/fraud
○ Cl. insists on repugnant action
○ Fundamental disagreement
○ Failure to pay bill (substantial failure after reasonable warning)
○ Unrea. fin. burden or unrea. difficult cl.
○ Other good cause
• When ordered by the Court, shall continue rep.
• When rep. ends must take rea. practicable steps to protect cl's interests
○ rea. notice
○ time to find other counsel
○ surrendering papers/property
○ refunding advance payment
• Shouldn't accept re. unless can perform competently, promptly, w/o improper conflict of interest, and to completion
• Client can fire L w/ or w/o cause at any time
• If have confidential info. court should accept statement that "professional considerations require termination of the representation"
• Must take steps to protect client even when unfairly discharged
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