Term
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Definition
A lawyer shall provide competent representation to a client.
Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
Exceptions: A(ssociation with another attorney) L(earn it) E(mergency situation) |
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Term
| 1.2 - Scope of Representation & Atty/Client Relationship |
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Definition
Client decides objectives of representation after consultation with lawyer
Civil client - whether to settle
Criminal client - plea, waive jury trial, testify
Representation of a client is not endorsement of client's political, religious beliefs
Scope of rep. can be limited where reasonable with informed consent
No criminal or fraudulent assistance by atty |
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Term
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Definition
A lawyer shall act with reasonable diligence and promptness in representing a client.
Includes management of workload - how many matters an attorney takes on |
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Term
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Definition
Promptly inform client of any decision or circumstance
Reasonably consult with client about the means of achieving client's objectives
Keep client reasonably informed of status
Promptly comply with reasonable requests for information
Explain matters reasonably necessary for client to make informed consent |
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Term
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Definition
SHALL NOT reveal information relating to the representation unless informed consent, implied authorization, or specific permissive exception.
Permissive exceptions:
1. Prevent reasonably certain death or substantial bodily harm
2. Prevent client from committing crime or fraud resulting in substantial injury to financial interests of another and has used/is using lawyer's services
3. Prevent, mitigate, or rectify substantial injury to financial interests of another and used lawyer's services in furtherance
4. Securing legal advice about lawyer's compliance with Rules
5. Establish lawyer's claim or defense in controversy with the client
6. Compliance with court order or law
7. Detect and resolve conflicts of interest arising from change in lawyer's employment status ONLY IF privilege not violated or client prejudiced by it |
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Term
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Definition
Must be reasonable
Fee arrangement must be communicated to client before (or reasonable time after) representation starts
No contingent fees in criminal or domestic relations cases |
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Term
| 1.7 - Conflict of Interest (Current Client) |
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Definition
2 ways: "directly adverse" or "significant risk" representation will be "materially limited" by responsibilities to current client, former client, or third person, or by personal interests of the lawyer
Consentable if:
- Reasonably believes can provide competent and diligent representation to both
- Not prohibited by law
- Not involve assertion of claim against other client before tribunal |
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Term
| 1.8 - Conflict of Interests (Current Client) Specific Rules |
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Definition
1. Business transactions (fair & reasonable, independent counsel, IC)
2. Client disadvantaging (IC)
3. Soliciting gifts (substantial)
4. Media rights (Prior to conclusion of rep., appeals and all)
5. Financial assistance (court costs)
6. Compensation by non-client (IC, no interference with rep)
7. Aggregate settlements or pleas (IC in writing)
8. Lawyer liability (limiting, IC)
9. Proprietary interest in litigation (lien for lawyer fees; contingent fees in civil cases)
10. Sexual relations with client (okay if banging prior to rep.) |
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Term
| 1.9 - Duties to Former Clients |
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Definition
A lawyer who has formally represented a client in a matter shall not represent another person in the "same or substantially related" matter in which that person's interests are "materially adverse" to former client, UNLESS IC in writing from former client
If former firm represented former client, the interests are adverse, and the lawyer acquired confidential information UNLESS IC in writing of former client
Info of former client (lawyer or firm) not to be used to disadvantage of former client or revealed |
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Term
| 1.10 - Imputation of Conflicts of Interest (General Rule) |
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Definition
Conflict of one lawyer imputed to entire firm except (1) personal interest and no "significant risk of materially limiting" and (2) conflict is from prior firm and properly screened
When lawyer leaves firm, lawyer's former clients do not create conflict for remaining members except: (1) matter is same or substantially related AND (2) any remaining lawyer has confidential info |
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Term
| 1.13 - Organization As Client |
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Definition
Lawyer represents the organization through its duly authorized constituents
SHALL report up if "know" of illegal activity likely to result in substantial harm to ORG
MAY report out if "know" of violation "reasonably certain to result in substantial injury to ORG" only if reasonably believes necessary to prevent injury
Doesn't apply to investigation or defense
Must report up even if fired |
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Term
| 1.14 - Client with Diminished Capacity |
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Definition
| If lawyer reasonably believes that client is at risk of substantial harm, lawyer must take reasonably necessary protective harm (like getting guardian appointed) |
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Term
| 1.15 - Safekeeping Property |
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Definition
Client money must be kept in separate account than lawyer's.
Client must be promptly notified when settlement checks arrive. |
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Term
| 1.16 - Declining or Terminating Representation |
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Definition
CANNOT represent or MUST withdraw:
1. Where violation of law or Rules
2. Lawyer's physical or mental condition impairs rep.
3. Lawyer is discharged
MAY withdraw:
1. No material adverse affect on client interests
2. Client insists on fraud or criminal conduct
3. Client has used lawyer services to perpetrate fraud or crime
4. Client insists on repugnant conduct or conduct with which lawyer fundamentally disagrees
5. Client fails substantially to fulfill obligation to lawyer AND has been given reasonable warning that lawyer will withdraw if not fulfilled
6. Unreasonable financial burden to lawyer or client being unreasonably difficult
7. Other good cause
Lawyer must get permission from tribunal
Lawyer shall take steps reasonably practicable to protect client interests |
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Term
| 1.18 - Duties to Prospective Client |
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Definition
Even where no client-lawyer relationship, lawyer cannot reveal info learned in consultation
Unilateral communication does not make a person a pros. client
Lawyer cannot rep. a client with interests adverse to pros. client in a same or sub. related matter if lawyer received info from pros. client that could be significantly harmful to that person. If lawyer disqualified, imputed to firm.
If lawyer has received disqualified info, representation okay if IC in writing from both clients OR lawyer took reasonable steps to avoid exposure to more disq. info AND screened off AND written notice to pros. client |
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Term
| 3.1 - Meritorious Claims & Contentions |
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Definition
| Only non-frivolous claims, except for criminal defense as to require every element be established |
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Term
| Rule 3.2 - Expediting Litigation |
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Definition
| Lawyer must make reasonable efforts to expedite litigation consistent with interests of client |
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Term
| Rule 3.3 - Candor Toward Tribunal |
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Definition
Lawyer SHALL not:
1. make false statement of fact or law or fail to correct false stmt of material fact or law previously made by lawyer
2. fail to disclose adverse controlling authority
3. offer evidence KNOWN to be false; reasonable remedial measures. Lawyer may refuse to offer evidence that lawyer thinks is false (exception: crim. defendant testimony)
Knowledge of criminal or fraudulent conduct related to proceeding = SHALL take remedial measures
Continues through end of proceeding, even if disclosure violated Confidentiality
Inform tribunal in ex parte proceeding |
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Term
| 4.1 - Truthfulness in Statements to Others |
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Definition
| SHALL not make false statement of law or fact OR fail to disclose a material fact to third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by client, unless disclosure is prohibited by Confidentiality |
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Term
| 4.2 - Communication with Person Represented by Counsel |
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Definition
DON'T DO IT
Predicated on actual knowledge (which can be inferred by circumstantial evidence) of representation
Cannot communicate through others
Must stop if learn of representation
Even if started by opposing party |
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Term
| 4.3 - Dealing with Unrepresented Persons |
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Definition
SHALL not imply disinterst
MUST correct misunderstanding of lawyer's role
Don't give legal advice to parties of adverse interests, except for them to hire counsel |
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Term
| 4.4 - Respect for Rights of Third Persons |
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Definition
Don't use means with only purpose to embarrass or burden third person.
If documents inadvertently sent to lawyer, must notify sender |
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Term
| 5.1 - Responsibilities of Partners, Managers, and Supervisory Lawyers |
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Definition
Partner or lawyer with managing authority in law firm shall make reasonable efforts to ensure whole firm complies with Rules
Direct supervisor must take reasonable efforts to ensure subordinate lawyer complies with Rules
A lawyer is responsible for other lawyer's violation of rules IF ordered the misconduct OR knew of conduct at a time where consequences could be mitigated but did nothing |
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Term
| 5.2 - Responsibilities of Subordinate Lawyer |
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Definition
Still bound by Rules notwithstanding orders
Not a violation of Rules if acting in accordance with supervisor's reasonable resolution of an arguable question of professional duty |
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Term
| 5.4 - Professional Independence of a Lawyer |
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Definition
Can't share legal fees with nonlawyer, except when another lawyers dies you can give to estate/family
Can't form partnership with nonlawyer if any services constitute practice of law |
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Term
| 7.1 - Communication Concerning a Lawyer's Services |
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Definition
No false or misleading communication
False or misleading = material misrepresentation of fact or law or misleading omission |
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Term
| 8.3 - Reporting Professional Misconduct |
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Definition
Lawyer who KNOWS of another lawyer's violation that raises a substantial question as to that lawyer's honesty, trustworthiness, and fitness SHALL report it
Does not include confidential info of info gained in a lawyer's assistance program |
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Term
| Confidentiality versus Privilege |
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Definition
Confidentiality - info gained from a client or others which a lawyer may never reveal unless permitted; also created by lawyer's role of agent/fiduciary of client; thus, ethical duty AND duty enforceable by civil liability
Privilege - law of evidence; shield that protects against compelled revelation of communications between lawyer and client that have been kept confidential; belongs to client
Subpoenas can reach confidential but not privileged information |
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