1. Preamble: a. Various functions: advisor, advocate, negotiator, evaluator, third part neutral b. Legal profession largely self-governing 2.

Scope: a. Rules of professional conduct rules of reason i. Some imperative (shall), some permissive (may) discretionary b. Duties flow from client-lawyer relationship whether relationship exists dependent upon circumstances/question of fact c. Failure to comply basis for invoking disciplinary process d. Violation of rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached. e. Annotation: i. Extra-disciplinary application of ethics rules: 1. Not designed to be basis for civil liability only to regulate conduct w/in disciplinary context should not create presumption that legal duty had been breached 2. BUT courts look to ethics rules of Jx in non-disciplinary contexts (malpractice, breach of fid duty, disqualification, motion to suppress/preclude evidence, and disputes over fees) 3. 2002 Amendment: lawyers violation of rule may be evidence of breach of applicable standard of conduct. ii. No Private Cause of Action for violating ethics rule: iii. Ethics Rules as evidence of standards of conduct and care: 1. Violation of rule does not ITSELF create presumption that legal duty has been breached. 2. Majority Rule: most courts look to rules as evidence of standards of conduct and care, particularly in action for legal malpractice/breach of fid duty a. Expert testimony/Jury Instructions: most courts permit expert witnesses in malpractice/fid duty cases to use ethics rules in reaching conclusions; many courts also allow rules to be used in jury instructions 3. Minority Approach: ethics rules not admissible 4. Some authority for approach that permits ethics rules to be used but not identified. iv. Disqualifications: 1. Violation of rule not itself a sufficient basis for disqualification, but courts routinely look to Jx ethics rules in deciding disqualification motions. v. Litigation Misconduct: 1. Dealt w/ in first instance by the trial judge (via contempt, sanctions, and remedies involving fees and suppression or preclusion of evidence). These decisions may also look to rules of professional conduct.

2. Many courts have addressed the relationship between trial courts ruling and disciplinary proceeding vi. Agreements that violate ethics rules: 1. Agreements with non-lawyers: a. Courts not generally receptive when lawyers try to avoid K obligations to non-lawyers by claim L violates ethics rules and is therefore void. 2. Agreements between lawyers: a. Courts reluctant to enforce rule-violative agreements between lawyers. 3. RULES: a. Client-Lawyer Relationship: i. RULE 1.1 COMPETENCE 1. Lawyer shall provide competent representation to a client. Competent representation requires legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. a. Comment: i. Legal knowledge/skill: 1. Factors: relative complexity/specialized nature, general experience, training/experience in particular field, preparation/study, reasonable to refer or confer w/ another competent lawyer. 2. Generally: required proficiency is that of a general practitioner. (expertise in some circumstances) 3. Need not have special training/lots of experience to be competent was is important is proper study/prep/ability to id legal problem/issue 4. In emergency can give advice if lawyer doesnt have ordinary skill necessary, but only to extent necessary in situation. ii. Thoroughness/Preparation: 1. Inquiry/analysis of factual/legal elements of problem use of proper methods/procedures and adequate preparation 2. Required attention/preparation determined by what is at stake or agreement between client/lawyer about scope of representation iii. Maintaining Competence: 1. Keep abreast of changes in law/practice/continuing study/education AND comply with all continuing legal

education requirements to which the lawyer is subject b. Annotation: i. Competence Not defined until 1970s now defined by 4 components: 1. Knowledge a. Of well-settled legal principles b. Basic research using standard resource sources c. Knowledge of procedure must follow all rules of procedure applicable to matters undertaken d. Knowledge of court rules: i. Violation of court rules CAN also constitute a violation of the rule. 2. Skill: a. Drafting: pleadings and documents b. Legal Analysis: ability to analyze relevant rules and principles and apply them to circumstances 3. Thoroughness and Preparation: a. Investigation and Research lawyer must investigate all relevant facts and research applicable law b. Application to client matters after learning relevant laws/facts, must then apply to the clients matters cant just research, must then follow through ii. Failure to comply with ethics rules: 1. Failure to comply with another duty MAY ALSO constitute lack of competence under R.1.1 iii. Delegation and Supervision: 1. Ethical obligation of competence cannot be avoided by referring matters to another subordinate or non-lawyer staff iv. Inexperience: 1. New lawyers: lack of competence particular problem for new/inexperienced lawyer 2. Unfamiliarity with Areas of Law: competence includes when undertaking requires specialized knowledge/experience and requires lawyer either acquire expertise, associate w/ specialist, or decline the

v.

vi.

vii.

ii. Rule 1.2 Scope of Client and Lawyer 1. a lawyer shall abide by clients decisions and, as required by R. 1.4, shall consult w/ client as to means by which objectives of representations are pursued. Lawyer may take action of behalf of client that is impliedly authorized to carry out representation. Lawyer shall abide by clients decision to settle. In criminal case, lawyer must abide by clients decision, after consultation, to enter plea, waive jury trial, or whether client will testify. (subject to c and d)

undertaking and refer to competent specialist. 3. Self-education in unfamiliar area: a. Though per comment 2, a lawyer can practice in a novel field through necessary study excessive studying/preparation for tasks that w/ experience become routine, lawyer cannot expect client to pay Sixth Amendment Considerations: 1. Incompetent representation by criminal defense counsel can violate 6th A. right to effective assistance of counsel. However evaluation under 6th A. may differ from R. 1.1 analysis. Public Defenders and Appointed Counsel: 1. Obligation to be adequately prepared may justify refusal to proceed w/ defense of a criminal case if court-appointed lawyer or public defender has not had an adequate opportunity to prepare. 2. Potential R. 1.1 violation may also be good cause for lawyer to seek to avoid apt. by court. Heavy Caseload: 1. Duty to be competent requires lawyer keep caseload manageable 2. Excessive caseloads can be a significant problem for public defendants and courtappointed lawyers for indigent defendants of heavy caseload do to circumstances beyond lawyers control jeopardize ability to render competent rep lawyer may be obligated to ask for withdrawal if w/drawl not permitted, must continue representation to best of her ability Representation and Allocation of Authority between

2. b lawyers representation of client, including rep by apt, does not constitute an endorsement of clients political, economic, social, or moral views or activities. 3. c- lawyer may limit scope of rep if the limitation is reasonable under the circumstances and the client gives informed consent. 4. d- lawyer shall not counsel client to engage, or assist a client in conduct that lawyer knows is criminal or fraudulent, but lawyer may discuss legal consequences of any proposed course of condict w/ a client and may counsel or assist a client to make a good faith effort to determine validity, scope, meaning, or application of the law. 5. COMMENT: a. Allocation of authority i. Section (a) confers to client ultimate authority. ii. In time of disagreement, client defers to lawyer w/ respect to means to be used to accomplish objectives and lawyer defers to client as to expense to be incurred and concern for 3rd person. iii. If a fundamental disagreement that cannot be resolved, lawyer may w/drawl and client can discharge the lawyer iv. At outset client can give lawyer advance authorization, but can revoke at any time v. In case of clients diminished capacity, refer to 1.14. b. Independence from Clients Views or Activities: i. Legal rep should not be denied to client who cannot afford it or whose cause is controversial or subject of popular disapproval. ii. Representation does not mean approval of clients views/activities c. Agreements limiting scope of representation: i. Agreements may limit scope. May limit specific means client thinks too costly, or lawyer regards as repugnant or imprudent. Agreement must comply w/ Rules and other law. ii. Latitude to make agreement, but must be reasonable under circumstances iii. Limited scope does not preclude the competence requirement, but limitation is a factor to be considered. d. Criminal, Fraudulent, and Prohibited Transaction: i. ds prohibition doesnt preclude the lawyer from giving an honest opinion about actual consequences that appear likely to result from clients conduct.

ii. Critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed w/ impunity. iii. Especially delicate situation if client already in course of action. Required to avoid assisting, and in certain situations, must w/draw from representation of the client. Some cases w/draw insufficient must give notice and disaffirm any opinion, doc, or the like. iv. If client is a fiduciary, the lawyer may be charged w/ special obligations in dealings w/ a beneficiary v. Must consult w/ client about limitations on lawyers conduct 6. Annotations: a. Subsection (a): client decides objectives of representation and must be consulted about means employed i. Lawyer must defer to client about objectives and must consult about means division btwn means and objectives client has ultimate authority over objectives, but lawyer has more authority over means a. Objective: about ultimate resolution of case/substantive rights of the client b. Means: procedural/tactical 2. Lawyer must pursue specific objectives for which lawyer was retained must fulfill objective or violates R. 1.2 AND must adhere to clients decision to cease pursuing previously sought objective 3. Lawyers Limited Authority regarding Means/Tactics: Disagreements btwn Lawyer and Client regarding Means Employed a. Some authorities have concluded that in the event of a disagreement, the clients judgment should prevail even in matter of tactics, procedure, or drafting of docs 4. Lawyers implied authorization regarding means: a. implied authorization clause added to avoid implication that lawyer must always consult w/ client to act. ii. Lawyer must abide by clients decision regarding settlement of claims:

a. L has not inherent power to settle claim. Must get specific authorization. (if aggregate settlement, each client must consent) 2. Ls authority to settle claim: a. Matter of state substantive law. Issue arises when client challengers enforceability of resulting agreement. b. Courts have found various means through which client may grant settlement authority. iii. Lawyer MAY NOT coerce client to approve settlement 1. Fee agreement may not be used to deprive client of right to approve settlement a. A retainer agreement that forbids client to settle w/o Ls consent or that creates financial disincentive to settle may be found to be against PP and impermissible under R. 1.2 2. L who w/draws from case b/c client refuses to settle may forfeit entitlement to fee. iv. Rights of criminal Ds to control certain aspects of litigation: 1. Defense L must meet ethical and constitutional obligations therefore decision-making authority of criminal D is broader than civil D. 2. Control over substantive decisions: a. R. 1.2(a) adds more specific provision that in criminal case, L must consult w/ client a/ decisions a/ plea to enter, waiving jury trial, and whether C will testify b/c C has con. Guarantees (fundamental/substantive) 3. Tactics: a. Tactical/trial strategy decisions CAN be made constitutionally by L after consultation b. Some decisions say it is preferable for L to make these decisions v. Representing Clients w/ diminished capacity will alter decision-making authority division

vi. Unbundled legal services- L who provided services limited in scope 1. Examples: legal hotlines, websites, pro se clinics vii. Ghostwriting for pro se litigants: 1. Some authorities disapprove, some find ethically-permissible in certain circumstances, some require a signature viii. Can only have limited-scope representation if L first clearly explains the limitations ix. Subsection (d): 1. Even passive assistance that L knows is criminal (w/holding info from court or govt) may violate R. 1.2 2. Can never advise client to engage in criminal/fraudulent conduct 3. Ls assistance not excused by failing to inquire into Cs objectives iii. Rule 1.3: DILIGENCE: 1. L shall act w/ reasonable diligence and promptness in representing a C. a. Comment: i. Must pursue regardless of opposition, obstruction, or personal inconvenience. ii. Commitment, dedication, zeal iii. NOT bound to press for every advantage and does NOT require offensive tactics iv. Work load must be controlled v. DONT PROCRASTINATE (doesnt preclude request for reasonable postponement that will not prejudice C) vi. Unless relationship terminated, L must see through all matters to conclusion. vii. In case of sole practitioner, so fulfil duty of diligence, may require each sole practitioner to prepare contingency plan in case of death/disability b. Annotations: i. Nature of Duty: 1. Distinct, but Usually violation of 1.3 will accompany another violation, either stemming from or leading to another violation (R. 1.1 competence; 1.4 communication; 1.15 safekeeping property; etc.) ii. Prejudice to Client:

1. Actual prejudice often results, but IS NOT NECESSARY element of disciplinary offense iii. Promptness: 1. Meeting Deadline: a. Meet deadlines/appear at scheduled legal proceedings 2. Unreasonable Delay: a. Can be subject to discipline for unreasonable delay can be a particularly egregious issue in estate matters iv. Neglect: 1. Must actively carry matter forward 2. Failure to take any action: a. No action subject to discliple 3. Failure to follow through/Complete Client Matters unless lawyer withdraws. Cannot simply abandon a case/client. 4. Inadequate investigation/preparation: a. Rule 1.3 requires an adequate level of prep/investigation v. L not relieved of obligation by delegating work iv. Rule 1.4: COMMUNICATION: 1. Lawyer Shall: a. Promptly inform C of any decision/circumstance w/ respect to which Cs informed consent is required by these rules b. Reasonably consult w/ client a/ means by which clients objectives are to be accomplished c. Keep client reasonably informed a/ status of matter d. Promptly comply w/ reasonable requests for information; and e. Consult w/ client a/ relevant limitation on Ls conduct when L knows client expects assistance not permitted by rules/law 2. L shall explain matter to extent reasonably necessary to permit the client to make informed decision regarding rep a. COMMENT: i. Reasonable communication necessary so C can effectively participate in representation ii. Must communicate any info requiring a decision to be made by C unless prior agreement that L make the decision. iii. Explaining matters: guiding principle: extent depends on circumstances, but should fulfill reasonable client expectations. In case of

representing an organization, report to official. If many routine matters, can arrange occasional reporting. iv. Withholding info: ok to withhold in some circumstances (disclosing psych report would injure C) b. Annotation: i. Duty to consult a/ means: 1. reasonably added to preclude interpretation that L would always be required to consult, even when act is impliedly authorized. ii. Attempt to cover up L error violated duty iii. Settlement offers: under both 1.2 and 1.4 L must communicate settlement offer unless aware from prior discussions that C would reject offer iv. Missing client: must still have reasonable effort to find client to communicate v. Cannot delegate responsibility to communicate w/ C to others and risks violation by communicating w/ 3rd party instead of directly w/ C vi. Must notify clients if cease to practice law. Some authoritysay L has duty to tell C is they are switching firms so C has opportunity to stay or go. vii. Through must respond to requests for info, Ls failure to respond to every request does not violate rule v. Rule 1.6: CONFIDENTIALITY 1. L SHAL NOT reveal info relating to representation unless C gives informed consent, the disclosure is impliedly authorized in order to carry out rep, or permitted by b (2 below). 2. L MAY reveal info to extent L reasonable believes necessary: a. To prevent reasonably certain death/substantial bodily harm; b. Prevent C from committing a crime/fraud reasonably certain to result in sub injury to financial interests or property of another and in furtherance of which the client has used or is using lawyers services. c. To prevent, mitigate, or rectify substantial injury to financial interests/property of another reasonably certain to result from commission of a crime/fraud in furtherance of which C has used Ls services; d. To secure legal advice about Ls compliance w/ the rules; e. To establish a claim/defense on behalf of L in controversy btwn L and C, to establish a defense to criminal charge or civil claim against the L based upon conduct in which the C

was involved, or to respond to allegations in any proceeding concerning the lawyers representation of the C; or f. To comply with other law or court order i. Comment: 1. Duty of confidentiality continues after C/L relationship terminated ii. Annotations: 1. Must act completely to preserve confidentiality 2. Relationship to attorney/client evidentiary privilege the ethical duty relates to ALL info related to representation at all times, attorney/client more limited. Court determination that info not privileged does not mean L has no ethical duty of confidentiality in other contexts 3. No exception for Previously disclosed or publicly available information 4. Cant disclose client identity unless consented to or impliedly authorized 5. Billing information also confidential 6. Disclosures expressly/impliedly authorized: a. Implied depends upon circumstances i. Disclosure in firm unless client otherwise instructs ii. Outsourcing generally impliedly authorized if necessary to rep, particularly when high degree of supervision/oversight, but must be cautious, particularly with outsourcing to other Jxs b. If not impliedly authorized, but get informed consent need not be in writing (knowledge of risks and benefits) need affirmative response, not silence alone 7. Duty extends to prospective clients and to former clients 8. Exceptions to Duty of Confidentiality: nondisclosure would not violate this rule, would violate other rules or law. Disclosure limited to essential information

9. Electronic communication generally as cautious as other mediums, unless circumstances necessitate heightened security vi. Rule 1.16: DECLINING OR TERMINATING REPRESENATION 1. Except as stated in c (3 below), L SHALL NOT represent a C, or, where rep has commenced, shall w/draw if: a. Rep will violate Rules or other law; b. Ls physical/mental condition materially impairs Ls ability to rep; or c. L is discharged 2. Except as stated in c (3 below), L may w/draw from rep client if: a. w/draw can be accomplished w/o material adverse effect on interest of client b. C persists in course of action involving Ls services that L believes is criminal/fraudulent c. C has used Ls services to perpetuate crime/fraud d. C insists of action L finds repugnant or w/ which L has fundamental disagreement e. C substantially fails to fulfill obligation to L and had fair warning that failure will result in w/drawl; f. Rep will result in unreasonable financial burden or unreasonably difficult due to client; g. Other good cause exists 3. L must comply w/ applicable law requiring notice to or permission by tribunal. Must continue to rep when ordered to do so by tribunal. 4. Upon termination, L must take reasonable steps to protect Cs interests: reasonable notice, time for employment of other counsel. L may retain papers relating to C as permitted by other law. a. Comment: i. L should not accept representation unless it can be performed: completely, promptly, w/o improper conflict of interest, and to completion ii. Mandatory Withdrawal: 1. C demands L engage in illegal/fraudulent conduct or that violates rules. Not obligated to withdrawal simply by C requesting such action. a. If appointed, may need approval of appointing authority and if during pending litigation, may need courts approval iii. Discharge: C has right at any time, w/ or w/o cause, pending payment

1. If C can discharge appointed counsel subject to Jx/applicable law. Should be given full explanation of consequences 2. Diminished capacity: may lack legal capacity to discharge iv. Optional W/drawal 1. Certain circumstances must be accomplished w/o adverse effect to C 2. Justified when C persists in course L reasonably believes is criminal fraudulent 3. If Ls services misused in past even if it would materially prejudice client 4. Client insists on action L considers repugnant/fundamental disagreement 5. C refuses to abide by terms of agreement (fees/court costs/agreement limiting objectives of representation) b. Annotations: i. When rep would result in violation of rule/law 1. Ls conflict of interest 2. Required when Continued rep would assist C to commit criminal/fraudulent acts; permissive when L only suspects or C only suggests ii. Required when no longer physically/mentally capable iii. Client refusing to accept Ls advice not necessarily adequate grounds for w/drawal iv. When client refuses to fulfill obligation, must first be given reasonable warning/opportunity (most commonly when fails to pay) v. Dont charge C additional cost to acquire file, but can charge delivery/assemblage costs. vi. May be able to hold papers/property as lien until C pays b. 3- ADVOCATE: i. Rule 3.3: Candor Toward Tribunal 1. L SHALL NOT knowingly: a. Make false statement of fact or law or fail to correct previous statement; b. Fail to disclose legal authority in controlling Jx known to L to be directly adverse to position of C and not disclosed by opposing counsel; or c. Offer evidence known to be false. If L, C, or witness called by L has offered material evidence lawyer comes to know to be false, L shall take reasonable remedial measures,

including, if necessary, disclosure to the tribunal. L may refuse to offer evidence, other than testimony of D in criminal matter, that L reasonably believes to be false. 2. L who represents C in an adjudicative proceeding and knows that the C will or has engaged in criminal/fraudulent conduct related to the proceeding, shall take reasonable remedial measures, including, if necessary, disclosure to tribunal. 3. Duties above apply through conclusion of proceeding and apply even if compliance requires disclosure otherwise protected by 1.6 4. In ex parte proceeding, L shall inform tribunal of all material facts known to L that will enable tribunal to make an informed decision, whether or not the facts are adverse. a. Comment: i. Applies to tribunal proceedings and ancillary proceedings, such as a deposition. ii. Duty of Candor balances duty of persuasive advocacy and confidentiality iii. Cannot allow Tribunal to be misled by false statements of the law or fact or evidence that L knows to be false iv. Representations by a Lawyer: advocate responsible for pleadings/other documents prepared for litigation, but usually not required to have personal knowledge of matters asserted therein. v. Legal argument based on knowingly false representation constitutes dishonesty toward the tribunal. Duty do disclose directly adverse authority that has not been disclosed by other party. vi. Offering Evidence: not limited by materiality 1. Cannot allow knowingly false evidence obligation as officer of court to prevent trier of fact from being misled by false evidence 2. Should try to dissuade client from providing false testimony or submitting false evidence 3. If only part of witness testimony false can call witness, but cannot permit presentation of testimony L knows is false 4. For criminal Ds, some jx require L to present accuseds story, even if L knows it is false. This is allowed even though 3.3 is violated. 5. Prohibition applies only if L knows evidence is false a reasonable belief it is false is ok. Knowledge can be inferred from circumstances cannot ignore obvious falsehood

vii.

viii.

ix.

x.

xi.

xii.

6. Only prohibits offering evidence known to be false, but permits refusing to offer testimony/other proof L believes to be false. (this does not apply for criminal ds wanting to testify) Remedial Measures: 1. First- should explain duty of candor to C and seek cooperation in w/drawing or correcting false statements/evidence. 2. If w/drawal not permitted or will not undo damage, must make disclosure as is reasonably necessary to remedy (even if info protected by 1.6) Preserving Integrity of Remedial Process: requires L to take reasonable remedial measures, including disclosure, if L knows person is engaging in criminal/fraudulent conduct relating to proceeding. Duration of obligation has been established: conclusion of proceeding final judgment affirmed on appeal or time for review has passed Ex parte Proceedings: L of represented party has obligation to make disclosures of material facts known to lawyer that lawyer reasonably believes are necessary to an informed decision. Generally, dont have to withdrawal, but may be required under 1.16 if compliance w/ duty of candor results in extreme deterioration of relationship that L can no longer competently represent client. Annotations: 1. Tribunal: court, arbitrator, leg body, admin agency, other body acting in adjudicative capacity. 2. Ancillary proceeding conducted pursuant to tribunals adjudicative authority: 3. ONLY APPLIES if tribunals judgment is binding a. 3.3 applies to all statements regardless of materiality 4. Applies only when representing a client 5. Lawyer who misstates eligibility to serve as counsel violates 3.3a1; nor may lawyer falsely claim to be acting in representational capacity 6. Notarizing a signature on doc submitted to court is making a statement w/in meaning of the rule.

7. Misrepresenting status of discovery or availability of info is violation 8. Remedial measures: a. Although prohibition against offering false evidence not limited by materiality, duty to remedy not triggered unless evidence is material 9. Criminal Cases: client perjury: a. Client may refuse to offer evidence he believes is false but does not know but must allow it in case of criminal D unless he KNOWS it is false 10. Level of knowledge sufficient to trigger prohibition is very high ii. Rule 3.4: FAIRNESS TO OPPOSING PARTY AND COUNSEL 1. Lawyer SHALL NOT: a. Unlawfully obstruct another Ps access to evidence or unlawfully alter, destroy, conceal doc/other material having potential evidentiary value. L shall not counsel/assist another to do 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 obligation under rules of tribunal, except for an open refusal based on assertion that no valid obligation exists. d. In pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply w. legally proper discovery request by an opposing party; e. In trial, allude to any matter that L 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 witness, or state a personal opinion as to justness of a cause, credibility of witness, culpability of civil litigant, or guilt/innocence of an accused; or f. Request person other than C to refrain from voluntarily giving relevant info to another party unless: i. Person is a relative or employee or other agent of a client, and ii. L reasonably believes that the persons interests will not be adversely affected by refraining from giving such info 1. Comment:

a. Applicable law in many Jx make it an offense to destroy materials for purposes of impairing availability in pending litigation or if commencement of litigation foreseeable b. Falsifying evidence generally a criminal offense c. Not improper to pay witness expenses/compensate expert witness as allowed by law i. Cant pay expert a contingent fee and cannot pay an occurrence witness any fee 2. Annotation: a. Fair completion in adversary system secured by prohibiting destruction/comcealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedure b. Destruction/Alteration of evidence: i. Prohibits L from altering/destroying material having potential evidentiary value c. Unlawful concealment v. legitimate failure to disclose: i. Not a duty to volunteer all relevant info, but prohibits concealment of potential evidence lawyer has legal duty to disclose d. Prohibits counseling/assisting destruction/concealment of evidence e. Witness Fees: i. Most Jxs permit occurrence witnesses to be paid for time/expenses provided payments dont amount to inducements cannot be paid on contingent fee basis ii. Expert may be compensated for testimony, but must be reasonable and not contingent

c. 5 Law Firms and Associations i. Rule 5.1 responsibilities of partners, managers, and supervisory lawyers 1. A Partner in a law firm, and a L who individually or together w. other lawyers possesses comparable managerial authority shall make reasonable efforts to ensure firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to Rules. 2. L w/ direct supervisory authority over another L shall make reasonable efforts to ensure that L complies 3. L shall be responsible for another Ls violation if: a. L orders or, w/ knowledge of specific conduct involved, ratifies conduct involved; or b. L is partner or has comparable managerial authority in the law firm in which the other L practices, or has direct supervisory authority, AND knows of conduct at time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. i. Comment: 1. The first section applies to members of partnership, SHs in a law firm organized as a professional corp; lawyers w/ comparable managerial authority in legal services org or govt org agency; Ls w/ intermediate managerial responsibilities a. Requires lawyers w/ managerial auth to make reasonable efforts to establish internal policies and procedures designed to provide reasonable assurance that all lawyers in the firm will conform to the rules. i. Eg: to protect/resolve conflict of interests; identity dates by which actions must be taken in pending matters, account for client funds and property and ensure inexperienced lawyers properly supervised. ii. What systems necessary will vary depending on the size/type of firm 2. Section 2 applies to lawyers w/ direct supervisory authority 3. You can have a violation of b w/o violating c if lawyer did not know of violation

4. Except for 5.1 and 8.4, lawyer does not have disciplinary liability for conduct of a partner, associate, or subordinate 5. Duties imposed on supervising attorneys does not alter personal duty of each lawyer in a firm to abide by the rules. 6. Assigning excessive caseloads to subordinates could violate 5.1(b) 7. Been interpreted to apply to supervision of outsourced lawyers 8. Under c, ANY lawyer may be held responsible for another lawyers ethical violations if lawyer orders or ratifies the specific conduct OR a partner, manager, or direct supervisor may be answerable in discipline for misconduct merely by having knowledge and at time consequences can be avoided, failing to take reasonable action ii. Rule 5.2: Responsibilities of a Subordinate Lawyer 1. L is bound by Rules notwithstanding that L acted at direction of another person 2. A subordinate L does not violate the Rules if that L acts in accordance w/ a supervisory Ls reasonable resolution of an arguable Q of professional duty. a. Comment: i. Though not relieved of responsibility for violation by fact that L acted at direction of supervisor, fact may be relevant in determined whether had knowledge required to render conduct a violation of rules. ii. When Ls in supervisor-subordinate relationship encounter a matter of prof judgment as to ethical duty, supervisor may assume responsibility for making the judgment. Issue can only be reaonably resolved one way, both lawyers responsible, but if reasonably arguable, and subordinate guided by supervisor. b. Annotations: i. Ethics dilemma faced by public defenders and appointed and K Ls when excessive caseloads make competent/diligent rep impossible. Conscientious effort of supervisor to resolve workload issues will ordinarily constitute a reasonable resolution of an arguable Q of professional duty d. 8 MAINTAINING THE INTEGRITY OF THE PROFESSION i. Rule 8.4 MISCONDUCT

1. It is professional misconduct for an L to: a. Violate or attempt to violate the rules, knowingly assist or induce another to do so, or do so through acts of another; b. Commit a criminal act that reflects adversely on the lawyers 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 admin. of justice; e. State or imply an ability to influence improperly a govt agency or official or to achieve results by mean that violate the rules or other law; or f. Knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law. i. Comment: 1. (a) does not prohibit a L from advising a client concerning action the client is legally entitled to take. 2. Many kinds of illegal conduct adversely affect fitness to practice law: fraud; willful failure to file income tax return, Some offenses to not carry such implication distinction: moral turpitude. 3. L professionally answerable only to criminal offenses that indicate lack of characteristics relevant to law practice. a. Eg: violence, dishonesty, breach of trust, serious interference w/ administration of justice, pattern of repeated offenses 4. Violation of (d) where L, in course of rep C, knowingly manifests by words or conduct bias/prejudice based upon race, sex, religion, national origin, disability, age, sex orientation, socioeconomic status when such actions are prejudicial to admin of justice. a. Trial judges finding that preemptory challenges exercised on discrim basis not alone establishes violation 5. L may refuse to comply w/ obligation imposed by law upon good faith belief that no valid obligation exists ii. Annotation: 1. Applies to private conduct and c-l relationship

2. Pre-admission: Ls have been disciplined for misconduct that occurred before admission to the bar 3. In a disciplinary proceeding, a finding that L violated any ethics rule may be accompanied by finding that L thereby violated 8.4a 4. A violation even to ATTEMPT to violate rules 5. Does not need to be acting as L at the time 6. Does not cover all criminal conduct 7. Need not be convicted, or even charged w/ crime to violate rule 8. Offenses covered: a. Drug/alcohol: b. Crimes involving dishonesty/fraud c. Sex offenses d. Violent crimes, including acts of domestic violence e. Tax law violations 9. Subsection c- dishonesty, fraud, deceit, or misrepresentation: a. Broad and covers conduct outside legal practice i. Fraud: purpose to deceive neither damages nor detrimental reliance a necessary element of ethics violation ii. Model rules do not define dishonesty, deceit, or misrepresentation b. Ls intent/purpose to deceive irrelevant for 8.4c violation, but courts generally look to some mental state for culpability 10. Dishonesty toward clients a. Cannot mislead, lie to client b. Cannot knowingly misappropriate funds 11. Misleading, defrauding, lying to Tribunals a. In addition to 3.3, 8.4c implicated when L misleads/lies to tribunal 12. Plagiarizing: a. May be a violation 13. Ghostwriting/Undisclosed Assistance to pro se litigants:

a. Varies as to extent allowed per Jx, but implicates misrepresentation 14. Deceiving Non-clients: a. Adverse parties, counsel, clients creditors, public, govt auth, lawyers firms/colleagues/supervisors/subordi nates. 15. Criminal Conduct involving dishonesty violates 8.4c as well as 8.4b. 16. Falsification of docs prohibited under 8.4(c) 17. 8.4(d) applies to misconduct that does and does not involve representing a client so long as conduct prejudicial to administration of justice a. Failure to comply w/ court orders can violate 8.4(d) i. Willful failure to pay courtordered child/spousal support can also be a violation b. Failure to cooperation in disciplinary investigation 8.4d c. Abuse of process/frivolous claims 8.4d d. Inappropriate sexual conduct 8.4d e. Abuse of public office/private position of trust 8.4d f. Conduct that is deceitful 8.4d g. Lying to/misleading court 8.4d h. L who proports to rep party w/o auth 8.4d i. Negligent/incompetent rep can violate 8.4d j. Attempting to settle through unethical/illegal means can violate 8.4d k. Engaging in conduct designed to force judges recusal or Ls disqualification 8.4d l. Exhibiting bias/prejudice 18. Subsection e: suggesting ability to influence govt agencies/officials improperly a. Applies to judges/former judges

ii. Rule 1.5: FEES 1. L SHALL NOT make agreement for/charge/collect unreasonable fee or unreasonable amount of expenses. Factors to determine reasonableness include the following: a. Time/labor required, novelty and difficulty of Qs involved, skill requisite to perform properly; b. Likelihood, if apparent to client, that employment will preclude other employment to the L; c. Fee customarily charged in locality for like services; d. Amount involved and results obtained; e. Time limitations imposed by client/circumstances; f. Nature/length of prof. relationship w/ C; g. Experience, reputation, ability of L/Ls; and h. Whether fee is fixed or contingent 2. Scope of rep and basis/rate of fees/expenses shall be communicated to C, preferably in writing, before or within a reasonable time, except when L will charge a regular C same rate. Must communicate any changes. 3. Contingent fee may be charged, except where prohibited. Must be in writing, and specify percentage to accrue to L in case of certain events, including event of settlement, trial, appeal; litigation and other expenses to be deducted from recovery, whether such expenses are to be deducted before or after contingent fee is calculated. Must specify any fees/expenses the C will be charged regardless of outcome. Upon conclusion, L shall provide C will

written statement stating outcome, and in case of a recovery, showing remittance to C and method of determination. 4. L SHALL NOT enter into arrangement for, charge, or collect: a. Any fee in domestic relations matter, payment of which is contingent upon securing of divorce or upon amount of alimony or support or property settlement in lieu thereof; or b. Contingent fee for representing a D in a criminal case 5. Division of fee btwn Ls not in same firm may be made only if: a. Division is in proportion to services performed by each L or each assumes joint responsibility; b. The C agrees to arrangement, including share each L will receive, and agreement confirmed in writing; and c. Total fee is reasonable i. Comment: 1. Reasonableness of Fee and Expenses: a. Factors not exlcusive 2. Basis or Rate of Fees: a. Ideal to promptly provide C with simple memo of customary fee arrangement to reduce misunderstanding. 3. Terms of payment: a. Can require advance payment, but must return any unearned portion. b. Can accept property, such as ownership in enterprise, but cannot involve acquisition of proprietary interest in cause of action or subject matter of litigation (1.8). 4. Division of fee: is single billing to C covering fees of 2+ Ls not in same firm ii. Annotations: 1. Reasonableness of fees/expenses a. Cannot pick and choose among factors 2. Fee cant exceed leg cap 3. No bill padding or double-billing one expense to multiple clients 4. Unreasonable: a. Fees for doing nothing, for doing very little, for doing very little and doing it badly, for over-lawyering, doing remedial work do to own inexperience, for too many Ls working on matter, for billing L rates for non-L work

5. Effect of clients agreement to fee: a. Will generally still be void if unreasonable b. Can subject L to disciple, no matter what C agrees to 6. Investment in C as fee: a. Reasonableness looked at prospectively, not retrospectively 7. Expenses chargeable to client: a. Cannot charge C for general office overhead; some costs/expenses can be charged, but cant use as a profitcenter. 8.

9.