Legal Ethics in a Nutshell
Author:
Rotunda, Ronald D
Edition:
5th
Copyright Date:
2018
44 chapters
have results for ethics
Rule 1.6 Confidentiality of Information 21 results (showing 5 best matches)
- Sometimes law firms have their own in-house ethics counsel or general counsel, and firm lawyers may seek that counsel’s advice on ethics matters. advises that normally Rule 1.4 does not require the lawyer to tell the client about the consultation with this ethics counsel. However, “a law firm’s failure to disclose its own malpractice to a client may expose the firm to civil liability.” Rule 1.13 may require the ethics counsel or the firm itself to report misconduct to a client if the lawyer does not. Ordinarily, Rule 8.3 makes the duty of ethics counsel to disclose firm members’ misconduct no greater than the duty an outside lawyer for the law firm would have.
- That example illustrates an important issue: if a method of communication is useful, common, and usually secure, should the ethics rules nonetheless prohibit it? Most ethics authorities respond “no.”
- Another type of consulting with a lawyer in a different firm does not involve the explicit prior consent of the client. Consider the case when Lawyer #1 seeks legal advice from lawyer #2, when that second lawyer has a special expertise, or a more detached judgment on the ethics issue he is in a different law firm. Sometimes, for example, Lawyer #1 may consult Lawyer #2 on an ethics question to determine if a special action is required. Rule 1.6(b)(4) now specifically allows a lawyer to secure legal advice about the lawyer’s compliance with the ethics rules.
- In short, the lawyer may challenge the court order or obey it; the ethics rules offer her no protection if , the more general duty of confidentiality, a duty that is broader than the evidentiary privilege. This is because “secrets” are a concept of the law of ethics; the law of evidence does not protect them as an evidentiary privilege. Thus, if the law of ethics protects information but the evidentiary privilege does not, then the lawyer may not volunteer the information but would have to reveal it in a deposition or other compelled testimony.
- Some ethics opinions, particularly the older ones, express concern as to whether it is reasonable for lawyers to use cordless telephones or cellular phones. However, federal law, since 1994, gives these phone communications the same legal protections given to land-based telephones. Commentators generally conclude that one has a reasonable expectation of privacy when using cellular and similar wireless phones, and ethics opinions should reach a similar conclusion in light of federal legal protections.
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Rule 1.5 Fees 10 results (showing 5 best matches)
- However, the ethics rules are the ethics rules impose important limitations on the power of the lawyer to shift fees from one firm to another.
- Contingent fees typically occur in personal injury litigation, but the ethics rules do not limit contingent fees to those cases. For example, it is permissible for a lawyer to charge a contingent fee in an administrative agency proceeding.
- Because the lawyer is a fiduciary of the client, the lawyer is subject to discipline if the fees are not “reasonable.” The Model Code used the term “clearly excessive,” but that phrase really meant “unreasonable.” It did not mean that the fee could be excessive as long as it was not “clearly” so. Both the Model Code and the Model Rules list the same factors relevant to determine reasonableness. The ethics rules do not limit the determination of reasonableness to these factors, but they represent typical components that the lawyer may consider in setting a reasonable fee:
- Misunderstandings regarding fees are one of the most frequent causes of clients’ disputes with their lawyers. The Ethics 2000 Commission’s Report recommended amending Rule 1.5 to require that all fee agreements be in writing, except when the client is a regular one and the matter a routine one for that client, or if the total bill would be less than $500. Nevertheless, the ABA House of Delegates rejected this proposed change and kept the “preferably in writing” language.
- Contingent fees by their nature raise potential conflicts of interest between the lawyer and client. For example, the client may wish to settle litigation for a low, guaranteed amount while the lawyer would want to press on, or the opposite may be true. The ethics rules attempt to manage such conflicts, which are inherent with contingent fees, and have specific provisions—examined in the conflicts of interest section—dealing with contingent fees.
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Preface 7 results (showing 5 best matches)
- Times have changed. The emphasis on legal ethics began in 1974 as part of what Vice President Spiro Agnew then referred to as our “post-Watergate morality.” I started teaching legal ethics because the Dean knew I was the new boy on the block, and had been a lawyer for the Senate Watergate Committee.
- What we call “lawyer’s ethics” is real “law” in the same way that the Rules of Civil Procedure are law. These ethics rules are not mere advice. Instead, they impose substantive requirements on lawyers and judges and are just as complex as the rules of civil practice or the rules of evidence. Many ethics rules are not known through some sort of innate awareness nor are they automatically infused into ordinary human beings once they are admitted to the bar.
- Some people think that ethics can be taught only at mother’s knee. It’s a little more complicated than that. Lawyers who think of ethics as intuition are often the same people whom courts routinely disqualify because they do not appreciate the complexities of the rules of conflicts of interest. Many lawyers today are ignorant of recent developments regarding trust fund accounts, lawyer-contact with unrepresented persons, conflicts of interest and attorney disqualification. Several years ago, one of my former academic colleagues, who also practiced law, said she did not buy malpractice insurance because her contract with her clients required them to waive their malpractice claims. Her listeners nodded knowingly, oblivious to the fact that her standard waiver agreement violated state ethics rules, was not enforceable, and could cause her to lose her license.
- In addition to the state law derived from the ABA Model Rules, there is case law, the commentators, and influential advisory ethics opinions of various bar associations and the ABA Ethics Committee. The American Law Institute’s Restatement of the Law Governing Lawyers, Third (Official Draft, 2000), is also an important and helpful tool. I will refer to all of these sources but, given the limited nature of a Nutshell, I am limited in discussing them in detail. For that, one should turn to other secondary sources such as (please forgive the shameless self-promotion): Rotunda & Dzienkowski, Legal Ethics: The Lawyer’s Deskbook on Professional Responsibility (ABA & Thomson Reuters, 2018 ed., updated yearly) (a treatise on legal ethics, published jointly by the ABA & Thomson Reuters Publishing) or Rotunda, Professional Responsibility (Thomson West, 9th ed., 2011) (Black Letter series). Finally, do not forget that ethical lawyering goes well beyond the four corners of the ABA rules: the...
- This Nutshell is intended to offer an initiation to this complex topic. Because the American Bar Association has been the undisputed leader in developing ethics rules, this book is organized around the ABA Model Rules of Professional Conduct. Almost all jurisdictions base their ethics rules on this ABA product, often with non-uniform amendments. Even when a jurisdiction, such as California, uses a different format, the substantive rules reflect the substantial ABA influence.
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Introduction The Preamble, Scope, and Rule 1.0 23 results (showing 5 best matches)
- Sharswood’s lectures greatly influenced the Alabama Bar Association, which published its “Code of Ethics” in 1887. Alabama, in turn, paved the way for the American Bar Association to adopt its own ethics rules.
- Various other states followed Alabama’s lead, but there was no model code of lawyers’ ethics until August 27, 1908, when a nationwide voluntary bar association, the American Bar Association, approved 32 Canons of Professional Ethics based on the Alabama model.
- Since Ethics 2000, the ABA has adopted other revisions to the Model Rules, in particular several changes proposed by Ethics 20/20, another ABA
- Courts routinely refer to the ethics rules in malpractice cases, raise them in some instances, and use them to disqualify lawyers. Courts also rely on these same ethics rules to reject fee arrangements that violate them. Lawyers often object to this transposition of legal ethics into the realm of disqualification motions and malpractice, but it is a natural and virtually inevitable progression. The rules of ethics are judicially imposed court rules. It would be more than a little inconsistent for a court to promulgate a rule prohibiting a lawyer from representing a particular client because doing so would violate Rules 1.6 and 1.9(b), (governing confidences and secrets of a former client), and then to allow the lawyer to appear before the court in blatant violation of the court’s own Rule. Such an inconsistency would be particularly troubling when the purpose of that Rule is to protect that former client. Similarly, it is not logical for a court to promulgate an ethics rule...
- Some courts act inconsistently in this area, but it is important to remember that discipline is not the only way that the courts enforce the ethics rules governing lawyers. In spite of the protestations in the Scope section, courts often use the legal ethics rules to impose tort liability on lawyers. One court has categorized the various approaches in the case law into four different classifications:
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Rule 1.1 Competence 2 results
- It is no accident that Model Rule 1.1 requires competence, because the drafters of the Model Rules believed that the first rule of legal ethics is competence. Not only the law of malpractice but also the law of ethics requires lawyers to be competent.
- Clients can waive many rights, but the ethics rules do not permit the client to waive, prospectively, the lawyer’s duty of competence. If a client has suffered harm due to her lawyer’s incompetence, we can
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Rule 1.15 Safekeeping Property 3 results
- In response to IOLTA, the ABA Ethics Committee announced that ethics rules do not stand in the way of such programs. Even without prior client consent or notice, the “interest earned on bank accounts in which are deposited client’s funds, nominal in amount or to be held for short periods of time, under state-authorized programs providing for the interest to be paid to tax-exempt organizations,” is not treated as funds of the client within the meaning of the ethics rules.
- Under common law rules, interest earned on client trust accounts does not belong to the lawyer. If the lawyer deposits the funds in an interest-bearing account, the interest earned on the client’s property belongs to the client, not to the lawyer. The principal, not the agent, owns the fruits of the principal’s capital. Ethics rules reflect this common law principle that the interest follows principle.
- In recent years, the organized bar has attempted to capture the interest generated by pooling small amounts of funds into much larger state-wide trust funds totaling in the millions. The bar ethics rules forbade the lawyers from taking this interest, so the bar changed the rules. The bar has created an
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- Unlike the American taxicab driver, there is no ethics rule that requires an American lawyer to respond to the first hail. The law does not normally obligate a lawyer to accept any individual client. George Sharswood, in
- While ethics rules do not require a lawyer to take a case (except when appointed), they sometimes require a lawyer to decline a case. For example, a lawyer may not accept a case if doing so will violate a rule of professional responsibility or other law, or if the lawyer cannot perform reasonably prompt and competent service.
- , follow the Restatement, and allow a lawyer to sue a client for wrongful damages if the client fired the lawyer for reasons against “public policy” (if, say, sex or race discrimination is involved, or if the client fired the lawyer for doing her duty under ethics rules). Thus,
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Rule 1.13 The Organization as a Client 8 results (showing 5 best matches)
- Rule 1.13 applies to all organizations, such as corporations, partnerships, trade associations, unions, and so forth. For purposes of the law governing ethics, Rule 1.13 treats all these organizations as entities. The substantive law governing partnerships may treat a partnership as an “aggregate” or an “entity.” Nevertheless, for purposes of ethics, the lawyer represents the partnership as an entity (whether or not it is an aggregate in the law of partnerships). Rule 1.13, Comments 1 to 5 (“The Entity as the Client”).
- Substantive law in some states treat partnerships as “aggregates” of individuals, while other states consider partnerships as “entities.” The ethical rules do not rely on partnership law distinctions. Whether a partnership is an entity or an aggregate for purposes of partnership law, all partnerships are “entities” for purposes of the law of legal ethics. If the default rule were otherwise, we would have a conundrum. In other words, if a lawyer representing a partnership had to treat the partnership as an “aggregate” for ethics purposes that would mean that he also represents each member of a partnership. Then, the lawyer would be in a conflict whenever an individual partner sued the partnership, because the lawyer for the partnership would automatically be representing the partnership and each of its members, including the partner who is suing the partnership.
- The ethics issues involved in the corporate family situation are somewhat analogous to the case where a lawyer, in a private law firm, represents—as one of its clients—the government or a government agency. To that issue we now turn.
- The ethics rules also treat trade associations as “entities.” A lawyer who represents a trade association (
- Assuming that there is no relevant statute that mandates a different result or procedure, and that Rule 1.11 does not command a different result, then one must turn to the other ethics rules. If there is a simultaneous representation of adverse interests, then Rule 1.7 applies, and the law firm is in a conflict. Who is the governmental client? Is the
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- Because the ethics rules allow lawyers to give nonlawyer-employees a share of the profits but not a share in the management, it is unethical for a law firm to sell shares to an investing public. This ethics rule tends to limit the size of law firms because it limits their sources of capital. Large brokerage firms
- does not suggest that this arrangement violates any ethics rule. If this arrangement is proper, then why not the other way around, where the lawyer passes on the fee award to the client? If the court gives the fee award to the client, the lawyer can always waive the fee. The ethics rules do not require lawyers to charge for their services. If lawyers can pass on the entire fee award (by declining to charge for their services), should they not be able to pass on part of the fee award?
- In 2012, ABA Commission 20/20 considered proposing changing the ethics rules to allow nonlawyers to be partners of law firms, much like the D.C. Rule. However, there was substantial opposition, and the Commission withdrew its proposal.
- the corporation is a non-profit. Why should the ethics rule change just because the employer is a not-for-profit corporation? The Rules do not say.
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Rule 7.2 Advertising 2 results
- , North Carolina State Bar Ethics Committee, Formal Opinion, 2011–10 (2011). A few jurisdictions are troubled, arguing, , that the lawyer is really sharing fees for channeling clients, in violation of Rule 7.2. Indiana State Bar Association Legal Ethics Committee, Opinion 1 (2012).
- ABA Formal Ethics Opinion 465 (October 21, 2013).
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- Commentators and courts have questioned whether it is proper for the ABA to use ethics rules to try to change the substantive law or the rules of procedure or of evidence. , noting that the ethics rules should not “delineate rules of evidence,” but should only set forth “strictures on attorney conduct.”
- Legal Ethics The Lawyer’s Deskbook On Professional Responsibility
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- As a general principle, a lawyer may not knowingly assist someone else to violate the ethics rules or to violate those rules through the acts of another. Consequently, a lawyer is responsible for another lawyer’s ethics violation if the first lawyer
- The partners in a law firm have the duty to make reasonable efforts to assure that all of the lawyers in the firm comply with the ethics rules. This duty similarly applies to other lawyers with general supervisory powers, such as the head of a corporate law department, the head of a government agency, or the shareholders of a professional legal corporation. This Rule does not specify the appropriate procedural safeguards. Rather, it provides that the question whether the supervisory lawyers have instituted reasonable measures depends on all the facts. The measures may vary depending on the size of the firm.
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Rule 1.3 Diligence 2 results
- Most ethics rules are for the protection of clients, who can usually waive them if they choose. However, some rules are not subject to waiver. Even a client’s refusal to pay her lawyer’s fee does not waive the rule prohibiting the lawyer from neglecting the client’s case. If the client deliberately ignores his obligation to pay his attorney, the lawyer may withdraw from representation only after taking reasonable steps to protect her client’s interests. If the matter is before a tribunal, the lawyer may not withdraw unless the tribunal permits it. Until the lawyer withdraws in accordance with the requirements in the ethics rules, the lawyer must act, “to the extent reasonably practicable,” to protect the client’s interest. Rule 1.16(d).
- Oregon Ethics Opinion, Op. 2005–162, 2005 WL 5679588 (2005)
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Rule 1.7 Conflicts of Interest—Current Clients 10 results (showing 5 best matches)
- The ethics rules do not provide for implied waivers of conflicts by a client. They set out a procedure for a waiver, and that procedure is explicit. The client should be able to rely on the lawyer, on whom the Rules place the obligation to secure informed consent.
- Because the ethics rules impute many conflicts, it becomes very important to determine which lawyers have conflicts because they can infect all the other lawyers in their firm, just as a computer virus infects an entire network.
- In estate administration, there may also be an ethics issue in determining exactly who the client is
- ethics rules if their representation of a client is “materially limited” by the lawyers’ obligations “to a third person,” which could include another organization such as a union.
- As a matter of legal ethics, the general rule is that there is ordinarily no conflict of interest when a testator hires a lawyer to disinherit a beneficiary even though the lawyer represents the beneficiary on unrelated matters. However, there would be a conflict if the lawyer’s efforts to disinherit the beneficiary would violate the lawyer’s legal obligation of the testator to the beneficiary, or if there is a significant risk that the lawyer’s responsibilities to the beneficiary would materially limit the lawyer’s
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Rule 1.9 Duties to Former Clients 2 results
- disqualification. If the rules disqualify one lawyer in a law firm, they may automatically impute that disqualification on others associated with the affected. The ethics rules impute some disqualifications but not others. Rule 1.10 lays out the basic rule regarding imputation.
- On the other hand, a party does not waive a conflict simply because it did not initially grasp the significance of relevant facts. The burden is on lawyers to provide promptly to the client all information needed to make a valid waiver. We do not expect clients to know the ethics rules governing their lawyers; clients tend to presume that they can trust their lawyers and former lawyers.
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- The Canons of Ethics of 1908 originally allowed lawyers to advertise, and advertise they did. Some advertisements were unseemly or misleading. For example, one 1911 lawyer’s advertisement in the
- when it considered targeted mail that plaintiff lawyers sent to prospective clients soon after an accident. A Florida ethics rule prohibited personal injury lawyers from sending targeted direct mail soliciting employment to victims and their relatives until 30 days following an accident or disaster. This rule prevented the personal injury
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Rule 1.11 Special Conflicts of Interest for Former and Current Government Officers and Employees 4 results
- INTRODUCTION TO THE ETHICS RULES GOVERNING “THE REVOLVING DOOR” BETWEEN THE LAWYER MOVING
- There was no general provision of the former Model Code dealing with this issue. Instead, case law and ethics opinions derived rules from more general provisions in the Model Code. Rule 1.11 both builds on, and helps codify the prior law. It also adds several additional, distinct requirements.
- Model Rule 1.11 deals with what commentators often call the “revolving door” of lawyers who move between private practice and government service. The goal of the ethics rules in this area is to limit potential abuses—
- In addition, the reward structure in the government is different from the reward structure of private firms. For example, consider the case of the government lawyer formerly in private practice who knows confidences and secrets of her former client. This lawyer, now working for the government, obviously cannot ethically reveal her former client’s secrets to her new colleagues because of Rule 1.6. However, the Rules do not impute her knowledge of these secrets to her new colleagues because there is less financial incentive for her to violate her ethics duties, even though the government does not impose a formal screen. A salaried government lawyer does not have the financial interest in the success of the government’s representation that is inherent in private practice. So, the Rules do not require a screen, but it “ordinarily” will be “prudent” for the government to “screen such lawyers.” Rule 1.10, Comment 3.
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- For all other conduct, the ethics law applied should be the law of the jurisdiction in which the lawyer’s conduct occurred, unless the “predominant effect of the conduct” is in a different jurisdiction, in which case that jurisdiction’s rules should apply. Rule 8.5(b)(2).
- conduct of a lawyer should be subject to only one set of rules. Both jurisdictions should be using the same substantive rules against which they measure the conduct. Disciplinary authorities should avoid proceeding against a lawyer based on two inconsistent rules. The choice of law issue is: which jurisdiction’s ethics rules should apply to a lawyer admitted in more than one jurisdiction?
- ) should apply the ethics rules of State
- The rationale for the extraterritorial application of ethics rules is easy to understand. The purpose of lawyer discipline is not to punish (although discipline may deprive the lawyer of her livelihood). Instead, its purpose is to seek to determine the fitness of the lawyer to continue in that capacity. Given this rationale, if the lawyer engages in improper conduct—even if she engages in that conduct while not acting as a lawyer (
- ). Choice of law problems are inevitable because there is no uniform rule governing ethics. Each jurisdiction adopts its own rules. Typically, the jurisdiction follows the ABA Model Rules with its own non-uniform provisions. The ABA Rules are, after all, only a model. If a lawyer practices in two jurisdictions, it is quite plausible that conduct
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- , the power) to grant reasonable requests of opposing counsel that do not prejudice the client’s rights. The ethics rules authorize lawyers to grant a “reasonable request for a postponement that will not prejudice the lawyer’s client.” Rule 1.3, Comment 3.
- even if the client seeks to terminate the lawyer for a less than noble reason. Rule 1.16(a)(3) & Comment 4. For example, if a client decides to fire the lawyer because the lawyer has just hired an African-American associate, the lawyer has no right to prevent the client from terminating the representation. The client is obviously acting for a racist reason, but the ethics rules compel the lawyer to withdraw. Other law, such as civil rights laws, may impose sanctions on the client, but the rules of ethics require the lawyer to cease representing the client who has fired him.
- In general, the ethics rules provide no litmus test for such cases. We know that the lawyer may present an analysis of the legal aspects of questionable conduct but may not recommend “the means by which a crime or fraud might be committed with impunity.” Rule 1.2, Comment 9. The lawyer may not suggest, for example, how the client might conceal his illegal purpose. Comment 10.
- The ethics rules therefore attempt to lay out basic guidelines to distinguish between those matters where the lawyer must let the client make the decision and those where prior client consent is unnecessary. As a general principle, the lawyer is entitled to make decisions in matters that do not affect the merits of the cause or substantially prejudice the client’s rights. However, even in these cases, there may be situations where it would be prudent for the lawyer to confer with the client. In other situations, the client has the exclusive
- For example, assume that the defendant’s attorney, while preparing an Answer to the Complaint, needs more time to complete some research, so he asks the plaintiff’s attorney for a one-week extension in the time allowed to file the Answer. The extension will not prejudice the client’s case. The ethics rules do not give the plaintiff a right to forbid his attorney from granting this specific request. The plaintiff may hate the defendant and try to order his lawyer to grant no extensions (no matter how reasonable the extension is), but the lawyer is acting ethically if he ignores this particular order. The plaintiff may always fire his lawyer for his refusal to obey instructions, but plaintiff may not
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- A lawyer cannot escape responsibility for ethical misconduct merely by claiming that she followed orders. The law of ethics has no “good soldier” defense for lawyers who clearly breach an ethical obligation.
- In recent years, attorneys have brought wrongful discharge suits against their clients or their law firms who have fired them, allegedly for refusing to engage in unethical activity. These lawyers sue even though they are employees at will. Typically, the plaintiff-lawyer asserts that the client or law firm fired them for not following the direction of a supervisory lawyer when that direction violated the ethics rules. Consequently, the discharged lawyers complain that the termination was wrongful.
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Rule 1.8 Conflict of Interest—Current Clients: Specific Rules 7 results (showing 5 best matches)
- The insurance carrier has legitimate interests to know how the defense is going, to evaluate if a particular defense expense is cost-effective, to sue for malpractice if the lawyer for the insured is incompetent, and so forth. The ethics rules do not have to call the insurer a “client” for the insurer to have these rights.
- Originally, the ethics rules placed several important limitations on financial advances. The Model Code had a specific requirement (DR 5–103(B)) that the client must remain “ultimately liable” for these expenses, but also advised (inconsistently) that the lawyer should not normally sue to collect his advances except to prevent fraud or
- The case law is not entirely consistent, but the trend is to consider the lawyer in such cases to owe a duty of loyalty to the insured, and to treat only the insured as the client. This makes eminent sense. Usually, the lawyer will be filing a notice of appearance in court on behalf of the insured, not the insurer. While Louisiana allows a tort plaintiff to file a tort action against the insurance company directly, the purpose of such direct actions is not to change the law of ethics but to let the jury know that the defendant is insured and the insurer will have to pay the judgment up to the policy limits.
- For example, assume that Client agrees to compensate Lawyer by giving her a one-fourth interest in certain real property and mining claims. There is a dispute over the ownership of these properties, and Lawyer defends Client in this dispute. Client eventually becomes dissatisfied with Lawyer’s services and tries to discharge Lawyer, who refuses to leave. Lawyer has violated the ethics rules by refusing to accept the client’s discharge.
- , if a statute or regulation or provision other than the ethics rules permits the lawyer to limit his imputed liability.
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- The judge’s law clerk may, as we have seen, negotiate for employment with a party or attorney involved in a matter—even though the clerk is participating personally and substantially on that matter—so long as the clerk notifies the judge beforehand. The ethics rules treat law clerks seeking private employment differently than other former government lawyers. Rule 1.12(b).
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- THE ETHICS RULES IMPLICATED
- The government is subject to different rules because of the special governmental interest in not excessively burdening government lawyers when they leave government and secure employment in the private sector. In addition, because the government often has unusually broad legal relationships, it does not want the ethics rules to burden it unduly when it recruits a lawyer from the private sector. Other policy reasons also justify treating differently lawyers moving in and out of government. For example, the partners and associates in private law firms and similar private associations of lawyers have an economic incentive to work for the economic good of the entire partnership. The lawyer for the government has no similar financial incentive.
- The more difficult question is whether temporary lawyers are “associated” in a “firm” for purposes of the imputed disqualification sections of Rule 1.10. The ethics rules should protect legitimate client expectations, but it is also true that an overly broad disqualification rule would impose significant costs on the law-temp, resulting in a radical restriction of the law-temp’s opportunity to move from one practice setting to another and a curtailment of the clients’ ability to change counsel. The law-temp is not in the partnership track, has no special loyalty to any particular law firm, and other lawyers in the law firm would not freely discuss matters involving matters of other clients, which do not concern the law-temp.
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Title Page 1 result
Outline 8 results (showing 5 best matches)
Index 1 result
- In general, the ethics rules mandate that the lawyer obey a judge’s orders. The lawyer and client, of course, have the right to claim an evidentiary privilege or to object to a judge’s rulings, but
- Legal Ethics: The Lawyer’s Deskbook on Professional Conduct
- excluded all evidence tainted by a violation of the ethics rules. In that case, the insurer with knowledge of its counsel, paid $120,000 to fact witnesses to testify at depositions. The court found
- , imposed a 60-day suspension on a lawyer who attempted to dissuade his friend from giving expert testimony, thus “breaching a vital canon” of ethics, Rule 3.4(f).
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Center Title 1 result
- A lawyer’s responsibility over nonlawyer employees parallels the lawyer’s responsibilities over subordinate lawyers. Lawyers who have managerial responsibility have a duty to instruct nonlawyer assistants about the ethical aspects of their employment. It is reasonable for lawyers to disclose client confidences to nonlawyer employees, such as secretaries. The rules of ethics have no jurisdiction over these nonlawyer employees, but these rules have jurisdiction over lawyers, and these rules require lawyers to exercise reasonable care to prevent employees from violating the obligation regarding client confidences or secrets. Rule 5.3, Comment 2.
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- fees and join with nonlawyer professionals in a practice that delivers both legal and nonlegal professional services,” provided that the lawyers retain sufficient professional independence. Thus far, the organized bar has largely resisted changes in the ethics rules to allow such multidisciplinary practice.
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Rule 6.2 Accepting Appointments 1 result
- client’s case, or believes, in a criminal case, that the client is guilty. However, if the lawyer’s personal feelings are so intense that his effective representation is impaired, he must not take the case. Indeed, it would be unethical for the lawyer to accept such a case, because the first rule of legal ethics is competence.
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- This Rule has a long lineage. The original ABA Canons of Professional Ethics included a no-contact rule. The ABA Model Code adopted this requirement, as did the Restatement of the Law Governing Lawyers. The same no-contact rule applies to nonparties (such as a witness) whom counsel represents in that particular matter. This extension of the requirement to all “persons” is quite consistent with the rationale of preventing counsel from overreaching.
- Prosecutors have tools of criminal investigation that go beyond the grand jury, and the exercise of these other tools has provoked controversy with the defense bar. Often, the prosecutor may wish to secure evidence from a suspect covertly (by wiring an undercover agent or informant) without seeking permission from the suspect’s counsel. Defense attorneys have argued that such investigative techniques violate various ethics rules, and that courts should enforce these rules by suppressing any evidence acquired by their violation. The U.S. Attorney General has disagreed and argued that prosecutors are authorized “by law” to make such contacts directly or through agents.
- Attorney General Janet Reno, continuing a policy of her predecessor, Richard Thornburg, emphasized that the Department of Justice “has long maintained, and continues to maintain, that it has authority to exempt its attorneys from the application of Model Rule 4.2 and their state counterparts.” 59 Fed. Register 39910, 39911 (Aug. 4, 1994). Attorney General Reno enacted detailed regulations outlining when federal prosecutors could initiate direct contact. State supreme courts and state disciplinary authorities do not take kindly to claims that the U.S. Attorney General has the power to exempt federal prosecutors from state rules of ethics.
- N.Y. Ethics Opinion 812 (May 3, 2007), 2007 WL 5025457
- The Attorney General’s periodic effort to override the ethics rules has not yet succeeded. The leading case is,
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- There are several reasons for this about-face. First, the Model Rules, like the former Model Code, have no specific provision prohibiting lawyers from engaging in surreptitious tape recording of their conversations with witnesses, opposing parties, or clients if these recordings are otherwise legal. In addition, most state ethics opinions rejected the ABA’s opinion and allowed such secret tape recordings. In addition, federal law and many states allow secret tape-recording if one party consents to the taping (but the other party remains unaware).
- . Once the receiving lawyer (RL) notifies the sending lawyer (SL), then SL will presumably seek court protection. However, the court may rule that the SL’s mistake caused the loss of the attorney-client privilege. The law of evidence, not the law of legal ethics, answers the question whether sending the material loses the evidentiary privilege.
- that document (the age of the paper; the signature that can be examined for forgery; the age of the writing on the document—the longer ink is on a paper, the further it penetrates that paper, etc.). So, how can a competent lawyer intentionally email a document and unintentionally include the metadata? An incompetent lawyer may not even know what metadata is, but the ethics rules do not require the competent lawyer to help the incompetent adversary.
- 1974, the ABA Ethics Committee issued
- . Hence, the lawyer who made such a threat in these circumstances would violate Rule 4.4. On the other hand, assume that the lawyer tells the opposing litigant, “You took my client’s car without authorization. Unless you return it promptly, she will file charges with the police.” That would not violate the ethics rules, because that is not extortion: the client has a claim of right in the car.
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Rule 1.4 Communication 1 result
- Sometimes when clients complain that the lawyer has “neglected” their case, they really mean that the lawyer has failed to communicate with them. If the lawyer had kept them informed, they would have known that there had been no neglect of their case. Nonetheless, when lawyers keep their clients in the dark and unaware, without good reason, they are also violating the ethics rule requiring lawyers to communicate with their clients. A common complaint to the disciplinary authorities is that the lawyer ignores the client’s request for information.
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- Rule 5.7(a) motivates the lawyer to make sure these law-related services are distinct from her legal business in order to avoid the more demanding and stringent requirements of the rest of the Model Rules. If the law-related services are distinct from her legal services to clients, and the lawyer makes clear that the protections of the lawyer-client relationship do not apply, then with respect to those law-related services, she is not subject to those Rules that govern lawyers only when acting as lawyers. For example, if the lawyer makes clear that the law-related services are distinct, then, the ethics rules regarding the advertising restrictions, conflicts of interests, and the protection of confidential information do not apply. The lawyer still would be subject to those other portions of the Model Rules that apply to lawyers whether or not they are acting in their capacity as lawyers (
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Rule 3.3 Candor Toward the Tribunal 2 results
- , Monroe Freedman, Understanding Lawyer’s Ethics (1990). Comment 7 to Rule 3.3 acknowledges that some jurisdictions require (in a criminal case) that the lawyer present the accused as a witness to give his testimony “as a narrative statement if the accused so desires, even if counsel knows the testimony or statement will be false.” If that is the court rule, the lawyer must follow the requirement of that jurisdiction. Otherwise, the lawyer must follow Rule 3.3.
- the ABA Ethics Committee issued
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- When the ABA initially adopted the Model Rules in 1983, Rule 6.1 was a vague call urging lawyers to engage in pro bono work for people of limited means or for public service or charitable groups. In February 1993, the ABA House of Delegates approved a much more specific Rule, although it remains aspirational. The Ethics 2000 reforms specified even more clearly, “
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- California’s ethics rules, like the ABA Model Rules, prohibit lawyers “from entering into agreements that ‘restrict’ their right to practice law after leaving a firm.” The “majority, contrary to the unambiguous language of the rule, holds that this rule does not bar law firms from entering into noncompetition agreements with their attorneys if such agreements are ‘reasonable.’ ” So, the California courts will enforce a restrictive covenant that the court’s own rules prohibit!
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Rule 8.4 Misconduct 1 result
Rule 3.6 Trial Publicity 1 result
- . The problem becomes more acute with the growth of electronic media. The issue is the extent to which the disciplinary rules may insulate a courtroom from the intrusion of outside prejudice caused by publicity surrounding the case. The primary ethics rule is Rule 3.6. It attempts to balance the right of free speech with the right to a fair trial.
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- Publication Date: April 11th, 2018
- ISBN: 9781640205970
- Subject: Professional Responsibility/Ethics
- Series: Nutshells
- Type: Overviews
- Description: Many law professors aim to probe deep ethical issues in class. But they also need to cover the material that the Multistate Professional Responsibility Examination requires. The Rotunda Nutshell fulfils that need as it digests the Model Rules in an engaging, analytical, and often critical way. In a surprisingly pithy manner, this book places the Rules in an historic context that lets the student understand problems with prior versions of the Rules, which led to the present version. The Nutshell also analyzes the American Law Institute's Restatement of the Law Governing Lawyers, Third. This approach frees up precious class time for important normative issues. And, this Nutshell helps your students come up with better answers to your Socratic questions than you anticipated. This book has proved so popular as an explanation of the basic principles of legal ethics that it has been translated into Japanese and used there to teach American legal ethics.