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EXAM: Know the simulations and the material we work through + this outline!

SOURCES OF THE LAW


1. Rules and Codes of Professional Responsibility
a. ABA, developed professional conduct rules modern version: 1997
2. Ethics Opinions by State Bar and Appellate Decisions in Disciplinary Hearings
a. State adopts a set of model rules
3. Restatement 3rd and Major Treatises
a. More comprehensive than model rules
b. Not binding, but can be used persuasively
4. Malpractice Law
a. Frequently sets standards for attorneys
b. Forces compliance before receiving insurance
5. Criminal Law
a. Committing a crime as an attorney; fraud, etc
6. Constitutional Law
a. 5th and 6th amendments
i. Right to an attorney, representation and standards right to testify
7. Procedural Law
a. Rules of Civil Procedure
i. Violation of discovery rules, conflicts of interest, etc
8. Other Law
a. Contract Law
i. Fee agreements
b. General state laws
CONTEXTS OF ENFORCEMENT
You violate some law, what happens to you?
1. Disciplinary Actions
a. Occur when you violate a law
b. Typically initiated when client complains (they become a witness)
c. Disciplinary Hearings
i. Run by states highest courts, some delegate responsibility to another entity
1. Independent office with staff attorneys that act like prosecutors
ii. Hearing initiated with complaint by client or another lawyer
iii. Staff attorneys investigate
1. No basis for complaint, dismissed
2. If basis is found, formal complaint is filed with charges
iv. Hearing scheduled
1. Held to answer two questions
a. Did it happen?
b. What will be the sanction?
v. Decision Rendered
1. Factual findings made (what happened)

2. Recommendation for a sanction


vi. Sometimes a judicial agency will review the decision (depends on state)
vii. Decision issued
1. Right to appeal to state supreme court
viii. Potential consequences (sanctions)
1. Disbarment
2. Suspension
3. Public reprimand (newspaper article, etc)
4. Private reprimand
ix. General problems with enforcement method
1. Concern that lawyers judging lawyers
a. Might cut each other a break
2. Ignorant clients dont know about disciplinary system and may not
utilize it if they are improperly served
3. Violation does not need to be a violation of a states ethics codes or
ABA rules, ie: a DUI or assault
2. Malpractice Claims
a. When harm is caused to client, two types of claims:
i. Intentional misconduct
ii. Negligence
1. Any mistake that would not have been made by an ordinarily
competent and diligent lawyer in the same circumstances
3. Motions for Disqualification
a. Motions to exclude a lawyer for conflict of interest
i. Way for the other side to try and get you off a case
b. Courts have own standards that can go beyond ethics codes
4. Criminal Prosecutions
a. Committing a crime
CONTEXTS OF ENFORCEMENT
1. Establishing and Ending an Attorney-Client Relationship [1.2, 1.16]
a. What duties do you generally have to your clients
i. 1.2 Scope of Representation and Allocation of Authority between Client
and Lawyer
1. Talks about who has power and authority in the relationship
a. Lawyer controls the means and client controls the ends
i. 1.2(a) must consult client about how to plan to
reach their end goal
1. Civil: client determines settlement vs trial
2. Criminal: client decides whether or not to
plead guilty
a. Lawyer is counsel to advisement on
decision
b. Client has option to testify
ii. 1.2(b) lawyer does not assume nor condone social,
political, or other views of client (ie: sex offender)

iii. 1.2(c) may limit scope of representation


iv. 1.2(d) cant assist client in criminal or fraudulent
activity
1. What does fraudulent mean and to assist?
ii. 1.16 Declining or Terminating Representation
1. Shall withdrawal if representation will result in violation of law,
lawyer is mentally or physically impaired or lawyer is discharged
2. May withdrawal if it can be accomplished without material
adverse effect on interests of client
a. Usually requires courts analysis and decision
2. Competence [1.1]
a. A lawyer shall provide competent representation to a client. Competent
representation requires the legal knowledge, skill, thoroughness and preparation
reasonable necessary for the representation
i. Attorneys can handle things beyond their expertise, but they must be
willing to get up to speed
1. If it can be done only without unreasonable delay or expense
ii. Does not mean you have to provide the best representation
3. Diligence [1.3]
a. A lawyer shall act with reasonable diligence and promptness in representing a
client
i. Basically, how hard do you have to work
b. Diligence
i. Do you have to file every possible and conceivable motion?
1. No
c. Promptness
i. Getting things accomplished in the case (appropriate timing)
1. No golden rule
a. Must look at circumstances of the case
2. Prioritizing is ok, negligence is not
a. Ex. missing deadlines
d. Comment to 1.3
i. A lawyer should pursue a matter on behalf of a client despite opposition,
obstruction or personal inconvenience to the lawyer
1. Ex. Cancelling vacations, dinners, movies to continue work on
case. Cannot place inconvenience above clients interests
4. Communication [1.4]
a. A lawyer shall
i. (1) promptly inform the client of any decision or circumstance with
respect to which the clients informed consent, as defined in rule 1.0(e) is
required by these rules;
ii. (2) reasonably consult with the client about the means by which the clients
objectives are to be accomplished;
iii. (3) keep the client reasonably informed about the status of the matter;

iv. (4) consult with the client about any relevant limitation on lawyers
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
5. Informed Consent and Disclosure [1.0(e)]
a. (e) Informed Consent denotes 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
i. How to get consent: rules differ by state (written or verbal)
ALLOCATION OF AUTHORITY BETWEEN LAWYER AND CLIENT
1. Objectives and Means [1.2]
a. Explained earlier in notes under enforcement
2. Client with Diminished Capacity (1.14)
a. (a) When a clients 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
i. Duty as a lawyer to counsel (explain, be patient)
b. (b) When the lawyer reasonable 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 clients 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, inappropriate cases,
seeking the appointment of a guardian ad litem, conservator or guardian
i. Guardian ad litem is sometimes an attorney, but typically the person who
comes in to act in the best interest of the child (takes over decision making
role for the client)
c. (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 clients
interests
i. Can disclose some confidential information to help client with diminished
capacity
CONFIDENTIALITY OF INFORMATION
1. Range of the Obligation [1.6 and 1.9(c)]
a. 1.6 Confidentiality of Information
i. (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. Whatever you have learned about your clients case over the course
of representation is potentially confidential

ii. (b) A lawyer may reveal information relating to the representation of a


client to the extent the lawyer reasonably believes necessary:
a. DO NOT HAVE TO REVEAL may
2. (1) to prevent reasonably certain death or substantial bodily harm;
3. (2) to prevent the client from committing a crime 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 lawyers services;
4. (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 clients commission of a crime or fraud in
furtherance of which the client has used the lawyers services;
5. (4) to secure legal advice about the lawyers compliance with these
rules;
6. (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 which the client was involved, or to respond to
allegations in any proceeding concerning the lawyers
representation of the client; or
a. Disclose to smallest extent possible, as much necessay
7. (6) to comply with other law or a court order
b. 1.9 Duties to Former Clients
i. (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. (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. (2) reveal information relating to the representation except as these
rules would permit or require with respect to a client
CONFLICTS OF INTEREST: DUTIES OF LOYALTY
1. Current Clients [1.7] (Have a client, bringing another one in)
a. (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:
i. (1) the representation of one client will be directly adverse to another
client; or
ii. (2) there is a significant risk that the representation of one or more clients
will be materially limited by the lawyers responsibilities to another client,
a former client or a third person or by a personal interest of the lawyer
b. (b) Notwithstanding the existence of a concurrent conflict of interest under
paragraph (a), a lawyer may represent a client if:
i. (1) the lawyer reasonably believes that the lawyer will be able to provide
competent and diligent representation to each affected client;

ii. (2) the representation is not prohibited by law;


iii. (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
iv. (4) each affected client gives informed consent, confirmed in writing
2. Former Clients [1.9]
a. (a) A lawyer who has formerly represented a client in a matter shall not thereafter
represent another person in the same or substantially related matter in which that
persons interests are materially adverse to the interests of the former client unless
the former client gives informed consent, confirmed in writing
b. (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,
i. (1) whose interests are materially adverse to that person; and
ii. (2) about whom the lawyer has acquired information protected by rule 1.6
and 1.9(c) that is material to the matter; unless the former client gives
informed consent, confirmed in writing
c. (c) A lawyer who has formerly ***CONTINUE RULE***
3. Prospective Clients [1.18]
a. (a) A person who discusses with a lawyer the possibility of forming a client
lawyer relationship with respect to a matter is a prospective client
b. (b) Even when no client lawyer relationship ensues, a lawyer who has had
discussions with a prospective client shall not use or reveal information learned in
the consultation, except as a rule 1.9 would permit with respect to information of
a former client
c. (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
**CONTINUE RULE**
4. Firm based Conflicts [1.9(c), 1.10(b)]
a. **CHECK 1.9**
b. 1.10 (b) Imputation of Conflicts of Interest
i. (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 **FINISH**
5. Prohibited Transactions [1.8]
a. Conflict of Interest: Current Clients: Specific Rules
i. (a) A lawyer shall not enter into a business transaction with a client or
knowingly acquire an **FINISH**
ORGANIZATION AS CLIENT [1.13]
1. The Entity Rule
a. (a) A lawyer employed or retained by an organization represents the organization
acting through its duly authorized constituents

2. Possible Conflicts
3. Scope of Confidentiality
4. Going up the ladder
i. After Enron: May report outside organization to stop substantial injury
1. Before Enron: Had to report up the ladder of the company
FEES [1.5] ***WRITE OUT RULE unreasonable fee and amount is underlined***
1. The Basic Rule
a. Cost per hour
2. Contingency
a. Percentage of settlement for covering costs of trial
i. Fees must be reasonable and in writing
3. Fee Splitting
a. Referring cases to another attorney
i. Referral attorney gets a fee
CLIENT PROPERTY [1.15]
1. Rule
a. (a) A lawyer shall hold property of clients or third persons that is in a lawyers
possession in connection with a representation separate from the lawyers own
property. Funds shall be kept in a separate account maintained in the state where
the lawyers office is situated, or elsewhere with the consent of the client or third
person. Other property shall be identified as such and appropriately safeguarded.
Complete records of such account funds and other property shall be kept by the
lawyer and shall be preserved for a period of five years after termination of the
representation
b. (b) A lawyer may deposit the lawyers own funds in a client trust account for the
sole purpose of paying bank service charges on that account, but only in an
amount necessary for that purpose
c. (c) A lawyer shall deposit into a client trust account legal fees and expenses that
have been paid in advance, to be withdrawn by the lawyer only as fees are earned
or expenses incurred
2. Commingling
a. Cant commingle funds, must set up trust account
i. Cant put personal money in account, unless to maintain banking fees
3. Retainers and Disputes
LAWYER AS ADVOCATE BEFORE A TRIBUNAL [3.1 3.5]
1. Rule 3.1 Meritorious Claims and Contentions
a. A lawyer shall not bring or defend a proceeding
2. Rule 3.3 Candor Toward the Tribunal
a. (a) A lawyer shall not knowingly:
i. (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;
ii. (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

iii. (3) offer evidence that the lawyer knows to be false. If a lawyer, the
lawyers 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
3. Rule 3.4 Fairness
4. Rule 3.7 Lawyer as a Witness
a. (a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a
necessary witness unless:
i. (1) the testimony relates to an uncontested issue;
ii. (2) the testimony relates to the nature and value of legal services rendered
in the case; or
iii. (3) disqualification of the lawyer would work substantial hardship on the
client
b. (b) A lawyer may act as advocate in a trial in which another lawyer in the lawyers
firm is likely to be called as a witness unless precluded from doing so by rule 1.7
or rule 1.9
5. Rule 3.1 Prohibition on Frivolous Positions
a. 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
OBLIGATIONS TO NONCLIENTS [4.1 4.44]
1. Truthfulness [4.1]
a. In the course of representing a client a lawyer shall not knowingly
i. (a) make a false statement of material fact or law to a third person; or
ii. (b) fail to disclose a material fact when disclosure is necessary to avoid
assisting a criminal or fraudulent act by a client, unless disclosure is
prohibited by rule 1.6
2. Communications with persons represented by counsel [4.2]
a. In representing a client, a lawyer shall not communicate about the subject of the
representation with a party 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
3. Dealing with unrepresented person [4.3]
a. In dealing on behalf of a client with a person who is not represented by counsel, a
lawyer shall not state or imply
4. Respect for Rights of Third Persons [4.4]
a. (a) In representing a client, a lawyer shall not use means
5. Inadvertently sent documents [4.4(b)]

a. (b) A lawyer who receives a document relating to the representation of the


lawyers client and knows or reasonable should know that the document was
inadvertently sent shall promtpy notify the sender
VICARIOUS RESPONSIBILITY WITHIN FIRMS [5.1 5.2]
1. Need