Legal Ethics in a Nutshell
Author:
Rotunda, Ronald D.
Edition:
4th
Copyright Date:
2013
66 chapters
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Preface 9 results (showing 5 best matches)
- In addition to the ABA Model Rules, each jurisdiction has its own rules, which are derived from the ABA Rules but often with non-uniform amendments. There is also case law, the commentators, and influential advisory ethics opinions of various bar associations and the ABA Ethics Committee. In addition, the , has been 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,
- Times have changed. The emphasis on legal ethics began in 1974 as part of what 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.
- 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. Even when a jurisdiction, such as California, uses a different format, the substantive rules reflect the substantial ABA influence.
- Most lawyers practicing today took a required course in Legal Ethics while in law school, followed by a specific bar examination on that same subject. It was not always so. When I started teaching, my law school did not even offer the course. In those days, it was easy for law students to learn the Golden Rule: Thou shalt not lie, cheat, steal, TTT or advertise.
- 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 cannot be known through some sort of innate awareness nor are they automatically infused into ordinary human beings once they are admitted to the bar.
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Introduction: The Preamble, Scope, and Rule 1.0 51 results (showing 5 best matches)
- 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:
- Since Ethics 2000, the ABA has adopted other revisions to the Model Rules. Ethics 20/20 is another ABA Commission that has considered various changes in the Rules to account for the digital age and the development of global legal practice. The reference to “20/20” refers to 20/20 vision, not the year the Commission will complete its work.
- Nevertheless, the impact of the ABA Canons soon extended beyond membership in the ABA. Many state supreme courts adopted the ABA Canons as court rules, allowing for suspension or disbarment in case of violation. Courts also cited them as authority even when they were not court rules. In addition, the ABA established an Ethics Committee to interpret its Canons. These ABA Ethics Opinions proved to be influential when courts decided issues such as disqualification, legal malpractice, and discipline.
- In examining any problem involving legal ethics, we should first apply our traditional legal skills to the fact situation and then evaluate how the Rules deal with the problem. Sometimes the Rules may be too vague; at other times, they may be quite specific, but may appear to be bad policy. A conclusion that a Rule represents bad policy is important, because the law is not static: what the law ought to be is very relevant, because the “ought” influences the “is.”
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Rule 1.6: Confidentiality of Information 158 results (showing 5 best matches)
- 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.
- 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 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. See also, Model Rule 1.6, Comment 9.
- In short, the lawyer may challenge the court order or obey it; the ethics rules offer her no protection if she ignores the court order and the court holds her in contempt. While courts must uphold valid claims of the attorney-client evidentiary privilege, they will not protect what the Model Code called client “secrets,” i.e., 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.
- ethics rules
- 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.”
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Rule 1.2: Scope of Representation and Allocation of Authority 35 results (showing 5 best matches)
- In general, the ethics rules provide no easy 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 lawyer or client may of course also affect the extent of client control by terminating the client-lawyer relationship. In other words, the client can always fire the lawyer, who then must withdraw, 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.
- ., 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.
- 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 authority to make decisions. The lawyer is the professional fiduciary (not the guardian) of the client, who, in turn, is not the ward of the lawyer.
- Other legal issues raise further distinctions. Assume a client wishes to challenge the constitutionality of a law. The best way to challenge a law that forbids picketing in front of an abortion clinic is to engage in such picketing and then raise the constitutionality of the statute in defense of the criminal charge. The Rules specifically allow the lawyer to give advice to make a good faith challenge to the constitutionality of the law. The lawyer “may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law,” according to Rule 1.2(d).
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Rule 1.13: The Organization as a Client 56 results (showing 5 best matches)
- 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.
- 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. For example, 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 or an organization. Rule 1.12, Comments 1 to 5 (“The Entity as the Client”).
- 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 “government” as an entity? Or, is the client just a certain agency or a particular department?
- In ethics, as in corporate law, if one is to pierce the corporate veil to decide a disqualification issue, one should determine when public policy demands a piercing. Model Rule 1.7 invites such an analysis. See, Rotunda,
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Rule 6.2: Accepting Appointments 4 results
- In addition, a lawyer need not refuse a case merely because he or she does not believe in the merits of a 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.
- A lawyer is not like the cab driver waiting at a taxi stand who must take the next fare. The lawyer need not accept any client who walks through the door. However, it is improper for a lawyer to refuse a court appointed case for the wrong reason. Rule 6.2 (lawyer shall not avoid court appointment “except for good cause”). To achieve the goal of making legal services fully available, a lawyer should not lightly decline proffered employment; even employment that may be unattractive both to him and to the bar generally.
- On the other hand, a lawyer should not decline an appointment by a tribunal merely because the client, or the client’s cause, is unpopular, or because influential members of the community oppose the lawyer’s involvement. A lawyer fulfills “this responsibility [to assist in providing pro bono service] by accepting a fair share of unpopular matters or indigent or unpopular clients.” Rule 6.2, Comment 1.
- Good cause to avoid a court appointment is that representing the client would violate the Rules of Professional Conduct (e.g., there is conflict of interest, or the lawyer cannot perform competently). Or, the representation will likely “result in an unreasonable financial burden” for the lawyer, or the lawyer finds the client or cause “so repugnant” that it likely impairs “the lawyer’s ability to represent the client.”
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Copyright Page 4 results
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Rule 1.7: Conflicts of Interest—Current Clients 119 results (showing 5 best matches)
- Consider the case where lawyer-employees join a union, which represents them in collective bargaining with the employer, who is also the client. In these circumstances, a third-party (the union) is in a posture that is adversarial to the client (typically a government agency or perhaps a corporation). The negotiations with the union typically involve the terms and conditions of employment, including discipline, discharge, work assignments, hours, and so forth. Legal ethics may also govern these issues.
- 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 representation of the testator. ABA Formal Opinion 05–434 (Dec. 8, 2004).
- In estate administration, there may also be an ethics issue in determining exactly who the client is because in some jurisdictions, the client is the beneficiary. In other jurisdictions, the client is the estate or trust, including its beneficiaries. Comment 27 advises the lawyer to “make clear the relationship to the parties involved.”
- Because the ethics rules impute many conflicts, it becomes very important to figure out which lawyers have conflicts because they can infect all the other lawyers in their firm, just as a computer virus infects an entire network.
- What if Alpha is only a low-level, junior associate who will exercise no influence over the case? She may not want to represent a certain client ( ., her neighbor, or a company manufacturing tobacco, or an accused rapist), and the depth of her feelings may be such that she is in a conflict within the meaning of Rule 1.7. However, do the ethics rules impute her disqualification to the entire law firm, pursuant to Rule 1.10?
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Rule 3.4: Fairness to the Opposing Party and Counsel 49 results (showing 5 best matches)
- Courses in legal ethics often refer to Judge John D. Voelker’s famous novel,
- An example of an attorney crossing ethical lines occurred when an attorney said to a plaintiff, “You will be asked if you ever saw any WARNING labels on containers of asbestos. It is important to maintain that you NEVER saw any labels on asbestos products that said WARNING or DANGER.” Quoted in Rotunda & Dzienkowski,
- 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 Rule 3.4(c) states that they must do so openly, so that the judge can rule on the validity of the claim.
- , 50 N.C.App. 450, 274 S.E.2d 396 (1981). The court disciplined an attorney who had attempted to persuade a witness to refuse to testify or, in the alternative, to plead the Fifth Amendment. , 48 P.3d 780 (Okla.2002), 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).
- The mere fact that a legal position is “creative” or contrary to existing law does not make it frivolous. Existing law often has ambiguities and potential for change. Therefore, a lawyer, in subpoenaing a document that appears privileged, may still make a “good faith argument for an extension, modification or reversal of existing law.” Rule 3.1.
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Rule 7.2: Advertising 10 results (showing 5 best matches)
- Most jurisdictions that have considered the use of “Groupon” allow lawyers to use it or similar arrangements (where lawyers market their services through group coupon or daily deal arrangements). E.g., North Carolina State Bar Ethics Committee, Formal Opinion, 2011–10, (2011). A few jurisdictions are troubled, arguing, e.g., 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).
- Second, the lawyer may pay the “usual charges” of not-for-profit lawyer referral services or legal service plan. The old Model Code, in precise and elaborate detail, defined the types of legal service organizations from which a lawyer may accept a recommendation or client referral. In contrast, the present Model Rule 7.2, Comment 7 simply requires a lawyer to act reasonably to assure that the referral plan or service does not communicate with prospective clients in ways that violate these Rules, such as engaging in false advertising. A “legal service plan” is “a prepaid or group legal service plan or a similar delivery system that assists prospective clients to secure legal representation.” A “lawyer referral service” is “any organization that holds itself out to the public as a lawyer referral service.” A “qualified lawyer referral service” is one that the appropriate regulatory authority has approved “as affording adequate protections for prospective clients.” Rule 7.2, Comment 6....
- However, there are restrictions on when lawyers can pay others to refer legal business to them. Rule 7.2(b) forbids a lawyer from giving anything of value in exchange for a recommendation, subject to various exceptions. A “recommendation” is a communication that “endorses or vouches for a lawyer’s credentials, abilities, competence, character, or other professional qualities.” Rule 7.2, Comment 5.
- Rule 7.2, Comment 8 confirms that lawyers may pay referral fees that Rule 1.5(e) permits. Rule 1.5(e) allows a lawyer to pay a referral fee to a lawyer in another firm if, (1) the division is in proportion to services performed assumes joint responsibility for the representation; (2) if the client agrees in writing, including the “share each lawyer will receive;” and, (3) the total fee is reasonable.
- Third, because the Model Rules allow a lawyer to purchase a law practice, Rule 7.3 also makes clear that its restrictions on paid referrals do not apply to a lawyer’s purchase of another lawyer’s law practice, executed in accord with Rule 1.17.
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Rule 1.8: Conflict of Interest—Current Clients: Specific Rules 93 results (showing 5 best matches)
- The restriction on the lawyer’s ability to reduce his malpractice liability is limited to cases regarding his personal incompetence. Thus, a lawyer in a professional legal corporation may limit his vicarious liability for the malpractice of his associates, if other applicable law permits, i.e., if a statute or regulation or provision other than the ethics rules permits the lawyer to limit his imputed liability. ABA Formal Opinion 96–401 (Aug. 2, 1996). Otherwise, the normal tort rule is that a partner in a partnership is vicariously liable for the negligence of his or her partners and (via
- These disputes frequently are connected with charges of a violation of legal ethics. In one typical line of cases, the insured complains that the lawyer purporting to represent the insured is really working against the insured and on behalf of the insurer, in violation of his duty of loyalty and his duty to protect client secrets. For example, it is improper for the lawyer to defend the insured at the same time that the lawyer secretly investigates the insured on his failure to give timely notice of the accident involved as required by the insurance policy. In , 17 Ill.App.2d 44, 149 N.E.2d 482 (1958), the attorneys assigned to represent the insured deposed him to gather evidence that he was not the driver of the vehicle at the time of the accident. The court agreed that the insured’s initial false statements that he was the driver were a breach of the cooperation clause, but it held the insurer’s defense of non-cooperation was invalid in these circumstances. After the lawyers for...
- 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.
- Or, the corporation may hire an outside lawyer and retain her to draft a contract based on certain legal research that the in-house counsel has already prepared. The outside lawyer may be concerned that she should not rely on legal research prepared by someone who did not work under her supervision. Once again, the in-house counsel can allay her fears by advising the corporation to waive any malpractice claims it has against the outside lawyer for relying on the legal research prepared by the corporation’s in-house legal staff.
- 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.
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Rule 6.1: Voluntary Pro Bono Publico Service 12 results (showing 5 best matches)
- 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, “ lawyer has a professional responsibility to provide legal services to those unable to pay.” Rule 6.1 urges lawyers to aspire “to render at least (50) hours of legal services per year.” The hours are in parentheses because the ABA recognized that states might well choose a different figure or express the number as a percentage of a lawyer’s professional time.
- Because pro bono activities are professionally voluntary, albeit morally expected, it is a fact of life that some lawyers are more forthcoming than others in offering free (or reduced fee) legal services to those unable to pay the normal fee. An insufficient number of lawyers engage in pro bono activities to meet the legal needs of the poor. Hence, state and federal governments and some foundations fund various legal service organizations that hire lawyers to represent the poor.
- In , 132 F.3d 1387 (11th Cir.1998), plaintiff challenged the constitutionality of a Florida rule that merely required Florida lawyers to the number of pro bono hours they worked each year. The rule also encouraged them to pay $350 to a legal aid organization if they did not want to do pro bono work themselves. The court held that the Florida program was a rational way to highlight the need for pro bono service before Florida lawyers, and that that bar could discipline a lawyer for a failure to report. The Eleventh Circuit said Florida “undoubtedly has a legitimate interest” in encouraging pro bono service and “the free provision of legal services to the poor has long been recognized as an essential component of the practice of law.” Indeed, the court said, a tradition “of the legal profession is that a lawyer, as an officer of the Court, is ‘obligated to represent indigents for little or no compensation upon court order.’ ”
- While courts have held that there is no constitutional right to compensation for compelled jury service, the difference between compelled jury service and compelled legal representation is not only in the amount of time and effort typically required, but also in the nature of the limited and discrete class burdened. The burden of uncompensated criminal defense representation is borne only by lawyers while the burden of jury service does not single out any discrete class of individuals. Criminal defendants have a right to free counsel, but that does not mean the state can force the counsel to work without any pay. The poor need food, and the government provides welfare. It does not order the grocer to give them food as a condition of its business license.
- lawyers to engage in pro bono work for clients of limited means. For years, commentators have proposed or criticized compulsory . In 1976 in California, for example, the state legislature considered, and defeated, a bill requiring active members of the bar to engage in a minimum of 40 hours per year of mandatory pro bono work for no fee or a “substantially reduced” fee.
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Rule 5.1: Responsibilities of Partners, Managers, and Supervisory Lawyers 6 results (showing 5 best matches)
- 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.
- 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 second to engage in misconduct, or knowingly action to avoid or mitigate the misconduct. For example, “if a supervising lawyer knows that a subordinate misrepresented a matter to an opposing party in negotiation, the supervisor as well as the subordinate has a duty to correct the resulting misapprehension.” Rule 5.1, Comment 5.
- Now, let us change the facts. Assume, in the above example, that Lawyer A does exercise reasonable supervisory care over Lawyer nonetheless violates a client’s confidences, causing the client monetary damage. Lawyer A has not violated Rule 5.1(b), because there has been adequate supervision, nor has she violated Rule 5.1(c), because the supervising lawyer does not ratify the action and does not know about it in time to avoid or mitigate it. Still, the supervisory lawyer is liable in tort under a theory
- There is an important distinction between Rule 5.1 and tort liability, as well a distinction, within Rule 5.1, between failing to supervise and ordering or ratifying of unethical conduct. For example, assume that Lawyer A is the supervisor of Lawyer Neither the firm nor Lawyer A exercises any care to assure that Lawyer in fact does not violate any confidences. Nonetheless, Lawyer A still has violated Rule 5.1(b), because of Lawyer A’s failure to supervise. However, there is no violation of Rule 5.1(c), which governs a supervising lawyer’s liability for ratifying or failure to take reasonable remedial action. A client would not have a cause of action in tort against Lawyer A for failure to supervise because there are no damages. Still, Lawyer A is subject to discipline.
- Even if a lawyer is not a partner or other general supervisor, he or she may have direct supervisory authority over another lawyer. For example, a senior associate may have some authority over a junior associate. Such a supervisor has the same responsibility as a partner or manager to assure compliance with the ethical rules by those lawyers under her direct supervisory authority. While the partner’s or general manager’s responsibilities relate to lawyers in the firm, the supervisory lawyer’s responsibilities relate only to those lawyers under her direct supervisory authority.
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Rule 1.1: Competence 10 results (showing 5 best matches)
- 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 expect that a suit for legal malpractice, as well as disciplinary action, may follow.
- The lawyer need not necessarily be experienced in a particular matter in order to be competent in that matter. There is a first time for everything. If the law required a lawyer to be experienced in a matter before undertaking that matter, he would never be able to acquire the initial experience. Moreover, even a novice lawyer has training in the common denominator of all legal problems: legal method, and the analysis of precedent and evidence.
- The lawyer’s duty to become competent includes the duty to remain competent. A lawyer has an ethical duty to engage in continuing legal education and study in order to “keep abreast of changes in the law.” Rule 1.1, Comment 8. The lawyer may establish the necessary competence by associating in the matter with another attorney (outside of the law firm) who is already competent. Before the lawyer’s association with someone in another law firm is proper, the client must consent to it. Rule 1.1, Comments 2, 6–7; Rule 1.5, Comment 7.
- If workload prevents a lawyer, including a public defender, from providing competent and diligent representation to existing clients, she must not accept new clients. If the court assigns clients, the lawyer should request that the court not make new appointments. If the lawyer is representing a client, she must move to withdraw from representation if she cannot provide competent and diligent representation. “If the court denies the lawyer’s motion to withdraw, and any available means of appealing such ruling is unsuccessful, the lawyer must continue with the representation while taking whatever steps are feasible to ensure that she will be able to competently and diligently represent the defendant.” The lawyer’s legal supervisors “must make reasonable efforts to ensure that the other lawyers in the office conform to the Rules of Professional Conduct.” ABA Formal Opinion 06–441 (May 13, 2006).
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Rule 5.4: Professional Independence of a Lawyer 17 results (showing 5 best matches)
- 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 are publicly traded precisely because these firms needed to increase their ability to raise capital for expansion purposes.
- Fourth, it is now clear that the lawyer may share legal fees with (or donate the legal fees to) a non-profit client, such as the ACLU or the NAACP, who recommended the lawyer or employer for the matter in question. Rule 5.4(a)(4).
- Normally, in fee-shifting cases, the client (not the lawyer) collects the fee award and then pays his or her lawyer the agreed-upon fee, which may be an amount that is different from the court-awarded fee. ABA Formal Opinion 95–392 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?
- The rule prohibiting nonlawyers from sharing managerial responsibility with lawyers applies whether or not the lawyers are practicing in the form of a partnership. If the lawyer is practicing law in the form of a professional legal corporation, no lay person may be a director or officer, or control the lawyer’s legal judgment, or own any financial interest (except that a deceased lawyer’s fiduciary representative may hold the lawyer’s interest for a reasonable period of time during the administration of the estate).
- 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.
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Rule 5.5: Unauthorized Practice of Law; Multijurisdictional Practice of Law 45 results (showing 5 best matches)
- In its report to the ABA House of Delegates in 2000, the Association’s Commission on Multidisciplinary practice recommended that the Model Rules be amended to permit lawyers “to share 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.
- • The lawyer may also provide legal services to her (i.e., as in-house counsel or government lawyer) in a jurisdiction where she is not admitted, as long as she is not before a tribunal. Rule 5.5(d) and Comment 16. If she is before a tribunal, she must secure admission. In-house lawyers often render legal services to the client in various out-of-state offices and facilities of the client. The employer is unlikely to be deceived about the training and expertise of these lawyers, so the Model Rules also offer a safe harbor for this multijurisdictional practice of law.
- Now, consider the possibility of natural disasters and other emergencies, such as Hurricane Katrina in 2005. In 2007, the ABA House of Delegates adopted a special Rule, not part of the Model Rules, titled “Model Court Rule on Provision of Legal Services Following Determination of Major Disaster.” This Rule authorizes out-of-state lawyers to provide pro bono legal services on a temporary basis in an area affected by a major disaster. It also authorizes lawyers admitted in the affected jurisdiction to continue practicing law temporarily in a jurisdiction not subject to a major disaster. Language in Rule 5.5, Comment 14, cross-references and acknowledges this special Rule.
- • The lawyer admitted in State #1 may provide temporary legal services reasonably related to a proceeding before a tribunal or potentially before a tribunal in State #2 if the lawyer reasonably expects to be admitted
- , 72 N.Y.2d 701, 536 N.Y.S.2d 406, 533 N.E.2d 245 (1988) allowed a foreign attorney to collect his fees because, the court said, he did not “practice” in New York when he telephoned his client there and discussed with the client the progress of legal proceedings in Lebanon. The lawyer in was not physically present in New York and did not have an office there. He had an office at Georgetown University, in Washington, DC.
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Rule 1.5: Fees 94 results (showing 5 best matches)
- Contingent fees allow poorer litigants to hire competent lawyers and pay them out of the judgment won. However, the ethics rules do not limit contingent fees to poorer clients. In fact, they specifically allow contingent fees even when the client can afford a different fee arrangement. Clients who can afford an hourly billing may still prefer a contingent fee because of the special incentive it creates for their lawyer. A contingency fee system also makes it easier for clients to budget legal expenses.
- However, the ethics rules are concerned with how lawyers divide the fees if they are in law firms. Once lawyers are in different law firms, 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.
- Joint responsibility “entails,” for that particular matter, “financial and ethical responsibility for the representation as if the lawyers were associated in a partnership.” Rule 1.5, Comment 7. May a lawyer who receives a referral fee fulfill his or her entire ethical responsibility merely by telling the new lawyers that they must comply with the Rules of Professional Conduct? The term “joint responsibility” must include more than that: to protect the client and to encourage referrals to competent attorneys, assuming joint responsibility should require the referring lawyer to assume joint malpractice liability for the particular matter as if the lawyers were associated together. Requiring the referring lawyer to assume malpractice liability of the other lawyer will encourage the referring lawyer to pick with care the lawyer to whom he refers a case. The referring lawyer will have an added incentive to pick the most competent lawyer. Recall that the first rule of legal ethics, Rule...
- 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 eight factors that are relevant in determining reasonableness. The ethics rules do not limit the determination of reasonableness to these eight factors, but these factors represent typical components that the lawyer may consider in setting a reasonable fee:
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Rule 4.4: Respect for Rights of Third Persons 14 results (showing 5 best matches)
- In 1974, the ABA Ethics Committee issued ABA Formal Opinion 337 concluding that it was unethical for a lawyer to engage in secret tape recordings, even if the recordings were legal and did not violate any criminal law. The ABA issued this Opinion shortly after the Senate Watergate Committee discovered that President Nixon (who was a lawyer) had created an elaborate taping system and had been secretly taping many Oval Office conversations. Ominously, the Opinion issued a caveat: “the mere fact that secret recordation in a particular instance is not illegal will not necessarily render the conduct of a public law enforcement officer in making such a recording ethical.”
- 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).
- For example, assume that a lawyer threatens his client’s adversary (the client’s husband in divorce proceedings) with informing the police that the husband had embezzled money, unless the husband agrees to share that money with her client. That lawyer would be committing the crime of theft by extortion. American Law Institute’s § 223.4 (1962). 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. § 223.4 (“honestly claimed as restitution or indemnification for harm done in the circumstances”). Unless some other law in the jurisdiction makes that statement a crime, there is no violation of Rule 4.4.
- 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.
- Some state statutes create a right not to have one’s conversations recorded without consent. In those cases, nonconsensual recordings of conversations for the purpose of obtaining evidence would violate Model Rule 4.4’s proscription against using “methods of obtaining evidence that violate the legal rights of [a third] person.”
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Outline 85 results (showing 5 best matches)
Rule 1.10: Imputation of Conflicts of Interest 56 results (showing 5 best matches)
- 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.
- Rule 1.10 applies to lawyers associated together in a law “firm,” a term intended to encompass not only private law firms but also corporate legal departments and legal service organizations. Because the purpose of this rule is to protect client confidences and client loyalty, the definition of “firm” may vary. A “firm” or “law firm” includes a lawyer or lawyers in a law partnership, professional corporation, sole proprietorship or other association, or in a legal services organization or the legal department of a corporation or other organization. Rule 1.0(c).
- Consider the way the law treats a legal aid office with offices in several locations compared to the differing treatment of a law firm that has offices in several cities. While “firm” includes a legal aid office, it does not include lawyers employed in separate units of the same legal aid organization. Even if public defender lawyers are in the same office, there is less concern about a breach of client confidences because the lawyers do not have the same financial incentives that lawyers in a private law firm would have to talk about the case. As Rule 1.0, Comment 4 points out: “Depending upon the structure of the [legal aid] organization, the entire organization or different components of it may constitute a firm or firms for purposes of these Rules.”
- 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.
- B. The Ethics Rules Implicated by Rule 1.10(a)
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Rule 5.7: Responsibilities Regarding Law–Related Services 12 results (showing 5 best matches)
- 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 apply to 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 (
- “Law-related services” are services that lawyers might reasonably perform in conjunction with, and are related to, legal services, but these services would not constitute the unauthorized practice of law if a nonlawyer performed them. Examples include title insurance, financial planning, accounting, trust services, real estate advice, legislative lobbying, economic analysis, social work, psychological counseling, tax return preparation, patent, medical or environmental consulting, and so forth. Rule 5.7, Comment 8.
- First, the lawyer provides them in circumstances that are indistinct from her provision of legal services to clients. Or,
- Second, the lawyer (alone or with others) controls a separate entity that provides these law-related services, the lawyer does not take reasonable measures to assure the user of these law-related services understand that these services are not legal services and that the protections of the lawyer-client relationship (
- In addition to Rule 5.7, Rule 1.8(a) also regulates business transactions with a client. In fact, one can think of Rule 5.7 as an elaboration of the general principles found in Rule 1.8(a). Thus, , 512 So.2d 191 (Fla.1987) suspended a lawyer for two years and four months for referring law clients who sustained personal injuries to a physical therapy clinic of which he was a principal. He from his clients his involvement in the clinic.
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Rule 1.15: Safekeeping Property 20 results (showing 5 best matches)
- In response to IOLTA, the ABA Ethics Committee concluded 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. ABA Formal Opinion 348 (July 23, 1982).
- 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 exception to basic common law rules so that it can collect the interest from the pool of trust fund accounts. The bar then uses this otherwise untapped resource to fund law-related activities that bar authorities consider worthwhile, such as “public service” advocacy and legal services for the indigent. These programs are called IOLTA (“Interest on Lawyer Trust Account”) plans.
- 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.
- The Supreme Court first raised questions about the constitutionality of taking interest earned from pooled income fund accounts in
- Because the lower court had not decided some factual questions, the Court left for another day whether IOLTA programs constituted an unconstitutional taking of the clients’ property and what, if any, compensation might be due. That day came in
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Rule 8.5: Disciplinary Authority: Choice of Law 10 results (showing 5 best matches)
- In general, if the conduct at issue takes place before a tribunal, the disciplinary authority should apply only the rules of the jurisdiction where that tribunal sits (unless the rules of that tribunal provide otherwise). Let us assume that a lawyer is admitted generally in State A, and is admitted in a case heard in State . If that lawyer then violates the rules of the court in State , State A (and State ) should apply the ethics rules of State
- 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).
- The Model Rules tackle this issue in Rule 8.5(b). The goal of this Rule is to ensure that any particular 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?
- Consider the case where State A seeks to punish conduct that occurred in State (although it violated the rules of State A). 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 in one jurisdiction in another. For example, State A may demand disclosure of client confidences in a situation where 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 ( lying to secure a real estate license), and even if the improper conduct occurs outside of the jurisdiction of State
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- A lawyer in a private law firm may also be a member, officer, or director of a legal services organization engaged in pro bono activities. Congress established the federal Legal Services Corporation in 1974, to offer noncriminal legal services to indigents. The regulations required that at least 60% of the local governing bodies should be attorneys admitted in that state and supportive of the delivery of quality legal services to the poor. The pro bono activities of the legal services organization may include lawsuits against private parties represented by the lawyer’s private firm. Such a situation may raise a conflict of interest question. Rule 6.3 deals with this issue.
- Rule 6.3 tries to solve any perceived conflicts by selectively screening the private lawyer from the decision-making process of the legal services organization. If the private lawyer is also a member, director, or officer of the legal services organization, then the private lawyer should not “knowingly” participate in any decision or action of the legal services organization if such participation would be inconsistent with the lawyer’s obligation, under Rule 1.7, to his or her private clients. Similarly, the private lawyer should not knowingly participate in a decision on behalf of the legal services organization if the decision could have a “material adverse effect” on a legal services’ client whose interests are adverse to the lawyer’s private client. Thus, this Rule does not disqualify the private lawyer from serving on the Board, but it sometimes disqualifies the lawyer from participating in certain Board decisions.
- If a lawyer in private practice is on a legal services board, it may come to pass that the staff members of the legal services organization, on behalf of an indigent client, will file suit against one of the private lawyer’s private clients, or defend the indigent against a suit that the private client filed. This situation may upset the private client, who may not approve that its private lawyer is serving on the legal services board. However, there is no formal conflict of interest because the private lawyer who is a member of the Board does not have an attorney-client relationship with the legal service organization’s clients. The individual legal service clients do not confer with the Board members; nor do they confide their secrets with these Board members. The Board’s role is restricted to establishing broad policy for the Program, and not to managing or directly participating in representing the clients of the legal service organization.
- For example, Lawyer’s practice consists in large part of enforcing the claims of banks against borrowers. Lawyer is a member of the board of directors of the local Legal Services Agency (LSA). Presently, certain clauses in consumer sales contracts facilitate the banks’ collection of its claim. LSA is thinking of bringing an action to challenge these contract clauses. This litigation would affect adversely and substantially the interests of Lawyer’s bank clients. Lawyer may not participate in the LSA board’s consideration of the proposal. Restatement of the Law Governing Lawyers, Third, § 135, Illustration 5.
- If the conflicts rules are too broad, they would discourage lawyers from supporting legal service organizations, which is contrary to public policy. Rule 6.3, Comment 1. Hence, the Rule imposes a selective waiver.
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Rule 1.9: Duties to Former Clients 35 results (showing 5 best matches)
- While Rule 1.9 deals with an individual lawyer’s disqualifications, Rule 1.10, discussed below, deals with 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.
- “if they involve the same transaction or legal dispute or if there otherwise is a as would normally have been obtained in the prior representation would materially advance the client’s position in the subsequent matter.” Rule 1.9, Comment 3 (emphasis added).
- Unless the former client consents, Rule 1.9(a) disqualifies Alpha. Rule 1.9(a) provides that if Alpha formerly represented a client in a matter, she may not thereafter represent another person in the same or a substantially related matter,
- Rule 1.9(a) is straightforward. If a lawyer used to represent a client in a particular matter but no longer does so, that lawyer is still disqualified from representing a new client
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Rule 1.12: Former Judge, Arbitrator, Mediator or Other Third Party Neutral 8 results (showing 5 best matches)
- 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
- One does not have to be a lawyer to be a mediator. Yet, the Model Rules impose restrictions on mediators who happen to be lawyers. Why? The ABA’s rationale was that participants in these mediation and arbitration programs might be confused when lawyers serve as these third-party neutrals: the participants (who might be unrepresented and who may not have experience with third-party neutrals) may think that the lawyer is representing them. This third-party neutral, if a lawyer, may give limited legal advice to the persons who are not his clients: the third-party neutral sometimes may help the parties draft a settlement agreement. Rule 4.3 (last sentence) & Comment 2.
- judges, one turns primarily to ABA Model Rule 1.12. A former judge or a former arbitrator, former mediator, or former “third-party neutral” may not accept private employment in a matter if she acted in a judicial capacity on the merits of that matter unless all parties agree in writing.
- On the other hand, Rule 1.12 does not disqualify a the partisan member of a multimember arbitration panel—from later representing to the arbitration because that type of arbitrator did not serve, in that matter, as an impartial decision-maker. Rule 1.12 governs third-party
- The ABA decided to allow screening because a broader disqualification rule would discourage law firms from developing an arbitration and mediation practice, as well as participating in voluntary court-sponsored Alternative Dispute Resolution (ADR) programs.
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Rule 3.1: Meritorious Claims and Contentions 21 results (showing 5 best matches)
- In contrast, when the client consults the lawyer as an advocate, the lawyer may urge the courts to adopt any non-frivolous interpretation of the law that favors the client. The ethics rules prohibit lawyers from asserting positions, claims, defenses, or motions. Lawyers may not make frivolous discovery requests nor fail to make a reasonably diligent effort to comply with discovery requests.
- Rule 11 has spawned a great deal of satellite litigation over its scope, meaning, procedures, and application. Opponents claim that it has chilled lawyers’ enthusiasm to pursue novel legal theories, and that it is biased against plaintiffs, particularly against plaintiffs in civil rights suits. Since adoption of Rule 11 in 1983, there have been thousands of decisions dealing with its sanctions; in one case, sanctioned lawyers spent $100,000 to reverse a $3,000 sanction in order to vindicate their reputations. In many circuits, a small number of judges are responsible for a disproportionate number of Rule 11 sanctions.
- It is rare that a court will sanction a criminal defense lawyer for taking a frivolous position, but it can happen. In one criminal case, the defense lawyer filed a petition for rehearing arguing that federal tax statutes did not apply to resident U.S. citizens. The court fined the lawyer $2,500 for this frivolous legal argument.
- The duty to refrain from asserting frivolous claims includes the duty to refrain from pursuing dilatory tactics, which are not permissible even in a criminal defense. However, the duty to avoid frivolous claims does not preclude the lawyer from forcing the state to meet its burden of proof in a criminal case. See Rule 3.1, Comment 3. The government, in every criminal case, has the constitutional duty to prove every element of the charge if the defendant pleads not guilty. The government cannot constitutionally shift that burden to the defendant. The defense lawyer acts properly in requiring the state to prove all elements of the crime, even if she offers no legal or factual defenses to the charges. A plea of “not guilty” is frivolous, nor is it fraud on the court—a defendant is not under oath when making his plea. Rather, a plea of “not guilty” really means, “I concede nothing, which is my right.”
- Before the 2002 revisions, the Rule 3.1, Comment 2 specified that a lawyer’s action is frivolous if the client “desires to have the action taken primarily for the purpose of harassing or maliciously injuring a person.” The 2002 revisions removed that language, which focuses on subjective intent. If the plaintiff has a good legal case, it is irrelevant that the plaintiff may file suit primarily in order to cause “pain” to the defendant. It is not necessary for plaintiffs to love or even respect the people they sue.
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Rule 1.3: Diligence 5 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 attorney 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. In any event, until the lawyer withdraws in accordance with the requirements in the ethics rules, the lawyer may not neglect the client’s case. Rule 1.17(d).
- “Neglect” is an important concept in the law of ethics: it means a pattern of action or inaction, not just one instance of delay. If a lawyer on one occasion forgot to file an answer to a complaint in time because of inadvertence, she might be liable for malpractice if the client suffered damages, but she would not be guilty of the ethical violation of neglect. Neglect involves indifference and a to carry out the obligations that the lawyer has assumed to the client, or a conscious disregard for the responsibility owed to the client. Clients resent “procrastination.” Rule 1.3, Comment 3.
- Rule 1.3 requires that a lawyer “shall act with reasonable diligence and promptness in representing a client.” Clients often accuse lawyers of dilatoriness, procrastination, and delay. The Model Rules acknowledge that criticism, and their Comments warn that unreasonable postponements can cause “needless anxiety” to a client. Thus, in addition to the lawyer’s affirmative duty to engage in reasonable communication with his client, the lawyer must not neglect a legal matter entrusted to him.
- . Sometimes the same act may lead to both malpractice and legal discipline, or only malpractice, or only legal discipline.
- Nor does an attorney’s heavy workload excuse her neglect of legal matters committed to her. It is her responsibility to control her workload so that she can handle each matter adequately. Otherwise, she is subject to discipline.
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Rule 1.16: Declining or Terminating Representation 23 results (showing 5 best matches)
- 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.
- However, many courts 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, ., 109 F.3d 173 (3d Cir.1997) upheld a retaliatory-discharge and sex-discrimination claims that a former in-house lawyer brought against the corporation.
- withdraw from a case: if (1) the lawyer’s continued employment would result in violating the disciplinary rules or other law; or (2) the lawyer’s physical or mental condition results in a material adverse impact on the client; or (3) the client discharges the attorney.
- (1) persists in using the lawyer’s services in an action that the lawyer reasonably believes is a crime or fraud;
- The second type of case involves lawyers who are in-house counsel, so the corporation is both the employer and the client. The Restatement of the Law Governing Lawyers, Third, § 32, comment (ALI 2000) also approves of the tort of wrongful discharge in such circumstances: “the client’s right to discharge the lawyer does not abridge the lawyer’s entitlement to salary and benefits already earned. A lawyer-employee [in-house counsel] also has the same rights as other employees under applicable law to recover for bad-faith discharge, for example if the client discharged the lawyer for refusing to perform an unlawful act.” The power that a client-employer “possesses over a lawyer-employee is substantial, compared to that of a client over an independent lawyer. Giving an employed lawyer a remedy for wrongful discharge does not significantly impair the client’s choice of counsel.” The client can fire the lawyer wrongfully, but the client may have to pay damages.
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Rule 8.4: Misconduct 31 results (showing 5 best matches)
- , 71 N.J. 175, 364 A.2d 777 (1976). The lawyer wrote an official of his company/client implying that the lawyer would, or could, improperly influence a federal judge in connection with an SEC investigation of that company. Although there was no evidence that the lawyer communicated with the judge, the state supreme court found an ethics violation and suspended the lawyer because his statements fostered an impression that the lawyer could influence the SEC.
- It is misconduct to assist or induce another to violate a Disciplinary Rule. For example, if a lawyer cannot solicit a prospective client in a hospital room in a face-to-face encounter in an effort to secure legal business, Rule 8.4(a) makes it clear that the lawyer may not avoid his responsibilities by hiring a hospital orderly to speak on his behalf.
- Comment 2 also advises that even a pattern of repeated minor offenses could be disciplinable if it indicates “indifference to legal obligation.” The drafters give no examples, but repeated violations involving minor offenses may just as likely indicate an indifference only to a violation. For example, a lawyer may own a grocery store that repeatedly is open on Sunday, in violation of a local “blue law.” This would not necessarily show any general indifference to other legal obligations. Or, the lawyer receives numerous parking tickets for overstaying the time allotted on the parking meter; the lawyer promptly pays the ticket each time she receives one. That should not show an “indifference to legal obligation.”
- A lawyer, whether or not a public official, may not state or even “imply” to anyone that she has the power to influence a public official or agency on improper or irrelevant grounds. This prohibition applies whether or not the lawyer actually exercises (or even could exercise) the influence. These suggestions of corruption serve no valid purpose and undermine public confidence in the legal system, even if the implication is false.
- Rule 8.4 defines when a lawyer engages in “misconduct.” In general, a lawyer is subject to discipline for violating a mandatory requirement of the Rules, or for engaging in conduct forbidden by other laws if that conduct demonstrates that we should not entrust the lawyer with the confidence that clients normally place in a lawyer. Of course, the fact that the lawyer is subject to discipline does not mean that the disciplinary authorities will in fact seek discipline. They may exercise discretion not to seek a penalty, they may just be overworked, or they may be in error. The authorities do not take legal action against all disciplinable acts, just as prosecutors do not prosecute all crimes.
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Rule 7.5: Firm Names and Letterheads 7 results (showing 5 best matches)
- The Model Rules are more logical and avoid thorny constitutional issues by prohibiting the use of a trade name in private practice only if the name is misleading or implies a connection with a government agency, charity, or public legal services organization that does not exist. For example, “State of Alabama Legal Clinic” may be misleading if it has no connecting with the state and is not a public legal aid agency. In that case, an express disclaimer may be necessary. Otherwise, the “47th Street Law Office” or the “ABC Legal Clinic” is a perfectly valid name for a law office. Rule 7.5, Comment 1.
- Sometimes, holding a public office is a full time job, and a statute or the pressure of the office precludes the office holder from engaging in another occupation. However, in many other instances, statutes allow a lawyer to hold a public position and to practice law or another occupation. For example, a part-time mayor, state legislator, or city council member typically may continue the practice of law. The law firm should not use the name of a public official unless that official is “actively and regularly practicing” with the law firm. Rule 7.5(c). If that lawyer is not practicing, it is misleading to allow the firm to continue to use his name in firm communications because it may imply a connection that no longer exists.
- For example, it is increasingly common for a law firm to be located in more than one jurisdiction, although the lawyers in that firm are not admitted to practice in all the jurisdictions. The Model Rules allow the law firm to use the same name in each jurisdiction, but the firm must indicate each lawyer’s jurisdictional limitations on the letterhead and on other permissible publicity. Rule 7.5(b).
- What about trade names? The old Model Code prohibited lawyers in private practice from practicing under a trade name whether or not it was misleading. In other words, a law firm could not call itself, “The 47th Street Law Office,” even though it really was located on 47th Street. However, the old Model Code did allow a law firm to use the name of one or more deceased partners or retired members of the firm, even thought that really is a trade name.
- The Model Rules also allow the use of the name of a deceased or retired member only if there has been a continuing line of succession. In other words, a law firm cannot call itself “Law Offices of William O. Douglas & Hugo Black” if Douglas and Black were never members of that firm. Rule 7.5, Comment 2.
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Rule 4.2: Communication with a Person Represented by Counsel 36 results (showing 5 best matches)
- 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 non-parties (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.
- N.Y. Ethics Opinion 812 (May 3, 2007), 2007 WL 5025457, considered this question: “Over the objection of counsel representing a town planning board, may in-house counsel for a real estate development company communicate privately, separately, and informally about the developer’s pending applications with individual members of the board who support the developer’s proposed project?” The answer was, yes. The “proposed communications fall within the protection of the First Amendment right to petition.” The Opinion added a few caveats. The lawyer may not deliberately elicit information that is protected by attorney-client or work product privilege, and the lawyer should cease contact with a planning
- The Attorney General’s periodic effort to override the ethics rules has not yet succeeded. The leading case is,
- The purpose of the anti-contact rule is to prevent imprudent settlements and serious admissions by a represented party whose lawyer is not present at the time to offer advice. Another purpose is to facilitate the corporation lawyer’s ability to maintain an effective lawyer-client relationship with members of management. Thus, in the case of corporate and similar entities, the anti-contact rule should only prohibit contact with those officials who have the legal power to bind the corporation in the matter or who are responsible for implementing the advice of the corporation’s lawyer, or any member of the organization whose own interests are directly at stake in a representation. The trend in the case law favors this view. E.g.,
- 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.
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Rule 1.11: Special Conflicts of Interest for Former and Current Government Officers and Employees 34 results (showing 5 best matches)
- 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.
- 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— confidential government information or the risk that the government lawyer might use that position to benefit a future private employer—without unduly restricting the ability of the government to attract lawyers.
- 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.
- 1. Introduction to the Ethics Rules Governing “The Revolving Door” Between the Lawyer Moving Between Government Service and Private Practice
- The fundamental principle is that a lawyer now working for the government may not personally participate in a matter unless Rules 1.7 and 1.9 permit it. In addition, she may not participate in a matter if, while in private practice, she had “personally and substantially” participated in that matter, unless the appropriate government agency gives its informed written consent to the representation.
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Rule 7.3: Direct Contact with Prospective Clients 24 results (showing 5 best matches)
- The legal services plan, when it solicits members, may not target particular persons that it knows need legal services “in a particular matter.” In-person, face-to-face solicitation, or telephone solicitation, comes under this Rule. Instead, the communications of the legal services plan should be “to inform potential plan members generally of another means of affordable legal services.” Rule 7.3, Comment 8. After
- The rationale for this rule is that a lawyer soliciting the representatives of a proposed plan is not engaging in prohibited solicitation but in advertising. That is so because this “form of communication is not directed to a prospective client,” but to the representatives of the plan, who do not seek legal services for themselves but who are “acting in a fiduciary capacity seeking a supplier of legal services for others who may, if they choose, become prospective clients of the lawyer.” Rule 7.3, Comment 7.
- In 2012, the ABA decided to offer a more specific definition of “solicitation.” Rule 7.3, Comment 1 now provides, “A solicitation is a targeted communication initiated by the lawyer that is directed to a specific person and that offers to provide, or can reasonably be understood as offering to provide, legal services.” If the lawyer communicates by using a billboard, a website or a television commercial, or if she responds to a request for information, there is no solicitation. In addition, advertisements automatically generated in response to Internet searches are not “solicitations.”
- The Rules make clear that a lawyer may contact the representatives of a group, such as a union, companies, etc., and urge these representatives to set up a prepaid legal services plan for their members. These third parties (the union, a company, etc.) can then contact (
- One does not normally think of a lawyer soliciting his clients. These clients have already hired the law firm, and when the firm sends them unsolicited information about their possible legal needs, it is only being pro-active, taking the initiative. Hence, Rule 7.3 talks of contact with “prospective clients.”
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Rule 5.2: Responsibilities of a Subordinate Lawyer 7 results (showing 5 best matches)
- 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.
- 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.
- The situation may be different where the firing party is the client. Clients can always discharge their lawyers, Rule 1.16(a)(3). The typical case involves a lawyer who is an in-house counsel. The courts have split on this issue, with several states allowing wrongful discharge suits against clients. Thus, , 7 Cal.4th 1164, 32 Cal.Rptr.2d 1, 876 P.2d 487 (1994) held that an in-house attorney may sue in tort for retaliatory termination. In-house counsel is dependent on one employer to provide his livelihood and career success. Therefore, in-house lawyers “have, if anything, an even more powerful claim to judicial protection than their nonprofessional colleagues.” The client can still fire the lawyer, but the client has to pay damages for wrongful discharge.
- , 80 N.Y.2d 628, 593 N.Y.S.2d 752, 609 N.E.2d 105 (1992), where the lawyer alleged that his law firm discharged him because he insisted that his firm comply with its ethical obligation to report a fellow associate to the state bar disciplinary authorities. The court held that the discharged lawyer has a cause of action for breach of contract; the duty to comply with the state bar’s ethical rules is an implied-in-law condition of the employment contract. Later, New York refused to expand
- . “Giving an employed lawyer a remedy for wrongful discharge does not significantly impair the client’s choice of counsel.” Granted, a “client may always discharge a lawyer, regardless of cause and regardless of any agreement between them.” Nevertheless, the client’s discharge may have adverse consequences. For example, a tribunal may decline “to appoint new counsel for an indigent criminal defendant” or it may deny “a continuance for the client to seek new counsel.” Damages for wrongful discharge are simply another adverse consequence for the client. The lawyer-employee “has the same rights as other employees under applicable law to recover for bad-faith discharge, for example if the client discharged the lawyer for refusing to perform an unlawful act.”
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Rule 7.1: Communications Concerning a Lawyer’s Services 32 results (showing 5 best matches)
- 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 included the following (in all capital letters): “WE GET THE COIN.”
- 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 attorney from contacting the accident victim or a relative, but it imposed no restrictions on the , Florida may ban targeted mailing by plaintiffs’ attorneys for 30 days after the cause of action has occurred. Justice O’Connor, who had dissented in , wrote the majority opinion in
- , 471 U.S. 626, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985) limited the power of the state to require detailed, burdensome, unnecessary disclosures. The Court explained, “unjustified or unduly burdensome disclosure requirements might offend the First Amendment by chilling protected commercial speech.” However, the state may discipline an attorney if he failed to include in his advertisements some information reasonably necessary to make his advertisement not misleading. In this case, the lawyer advertised that he was available to represent clients on a contingent fee basis and that “if there is no recovery, no legal fees are owed by our clients.” This advertisement failed to disclose that the clients might be liable for significant litigation costs even though their lawsuits were unsuccessful. also held that the state cannot discipline an attorney who seeks business by running newspaper advertisements containing nondeceptive illustrations and legal advice.
- Justice Marshall’s thoughtful concurring opinion specifically would allow “benign” commercial solicitation. He defined that as “advice and information that is truthful and that is presented in a noncoercive, nondeceitful, and dignified manner to a potential client who is emotionally and physically capable of making a rational decision either to accept or reject the representation with respect to a legal claim or matter that is not frivolous.”
- by, in effect, declaring that certain types of legal advertising were inherently misleading. In a significant opinion,
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Rule 1.18: Duties to Prospective Clients 11 results (showing 5 best matches)
- The 2002 revisions added a new rule, Rule 1.18, to deal with the lawyer’s duties to prospective clients. The Rule mainly codifies present law (which courts implied from other ethics rules), except for a new subsection Rule 1.18(d) discussed below.
- , 635 F.Supp. 1 (E.D.Pa.1983), is a case that would probably be decided under Rule 1.18 today. The court held that it would not disqualify a law firm when one of its lawyers held only a preliminary discussion with the prospective client and the firm screened that lawyer. The court noted: “Legal scholars and the American Bar Association have suggested the use in certain cases of a ‘Chinese Wall,’ a mechanism that would screen secret documents and firm members possessing knowledge of secrets and confidences in order to avoid disqualification of the entire firm.”
- , 410 F.3d 1104 (9th Cir.2005) involved a law firm that posted on the internet a questionnaire regarding antidepressant drugs. The prospective clients completed and submitted this questionnaire to the law firm. The disclaimer at the bottom of the law firm’s online questionnaire stated that the questionnaire did not constitute a request for legal advice and that the sender did not form an attorney-client relationship by submitting it.
- concluded that even though these prospective clients were not clients, the information that they submitted is protected confidential information. The “vagueness and ambiguity of the law firm’s prose does not amount to a waiver of confidentiality by the client.” The confidentiality rules protect a person “who consults a lawyer for the purposes of ‘retaining the lawyer.’ ” The questionnaire did “not disclaim the purpose of ‘securing legal service,’ ” because, “[m]ore important than what the law firm intended is what the clients thought.”
- Rule 1.18(c), like Rule 1.9, prohibits representation adverse to the prospective client in the same or a substantially related matter. However, unlike Rule 1.9, the Rule only bars representation 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).”
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Rule 2.4: Lawyer Serving as Third–Party Neutral 7 results (showing 5 best matches)
- Lawyer-neutrals may also be subject to various codes of ethics, depending on their precise role. The ABA and the American Arbitration Association jointly prepared the
- A prior version of the Model Rules had a provision, called Rule 2.2, which dealt with of a set of persons with conflicting interests. Rule 1.7 now governs all situations where lawyers represent multiple parties. In contrast, under Rule 2.4, the lawyer represents of the parties when serving as a third-party neutral. When a lawyer serves as a third-party neutral in this way, the parties themselves may or may not have their own legal counsel.
- Generally, one does not need to be a lawyer to serve as a third-party neutral. However, in some court-connected contexts only lawyers can serve in this role. Even when the context does not require a lawyer, it is common for lawyers to serve in the role of third-party neutral. There may be confusion in the minds of lay people about the nature of the lawyer’s role as a third-party neutral. Rule 2.4 deals with this issue.
- Rule 2.4 governs the situation where the lawyer acts as a neutral third-party (a mediator, arbitrator, conciliator or evaluator) who assists non-clients in resolving a dispute or another matter without representing any of these parties as their attorney. Alternative dispute resolution (ADR) has become a substantial part of the civil justice system. The 2002 revisions to the Model Rules added this new provision to reflect that fact.
- Counsel may represent one or more of the persons involved in alternative dispute resolution. The Model Rules will govern these lawyers. If the ADR takes place before a tribunal, Rule 3.3 will govern the counsel’s duty of candor. Otherwise, in order to determine the counsel’s duty of candor to the other parties and to the third-party neutral, the lawyer looks to Rule 4.1 (dealing with truthfulness in statements to others). See Rule 2.4, Comment 5.
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Rule 7.6: Political Contributions to Obtain Government Legal Engagements or Appointments by Judges 7 results (showing 5 best matches)
- Rule 7.6 provides that “pay to play” is unprofessional and unethical. Pay to play occurs when a lawyer accepts a government legal engagement or an appointment from a judge (for example, as a “special master”) if the lawyer makes or solicits a political contribution “ obtaining or being considered for that type of legal engagement.” Rule 7.6 is not a broad prohibition because lawyers have a First Amendment right to participate in the political process.
- It will often be difficult to prove the subjective intention behind the donation. That is because Rule 7.6 requires that the lawyer or law firm would not have made the political contribution “but for the desire to be considered for the legal engagement or appointment.” Comment 5. This Rule forbids less than one might think.
- Rule 7.6 roughly parallels a provision in the ABA Model Code of Judicial Conduct (2007)—Judicial Rule 2.13(B). That Rule provides (subject to a few common sense exceptions) that the judge should not appoint someone to a position (such as special master) if the person has contributed more than a certain amount of money (each state is supposed to insert a figure) within a certain number of years prior to the judge’s election campaign (each state is supposed to insert a figure here too).
- Rule 7.6 only applies to “political contributions,” which are defined as any “gift, subscription, loan, advance, or deposit of anything of value made directly or indirectly to” a candidate, judicial incumbent, etc. Comment 2. Endorsements do not seem to be included in this definition because they do not fit under the examples given, which all refer to money. Indeed, Comment 2 specifically announces (without any effort to explain) that “political contribution” does not include “uncompensated services.” Therefore, if a lawyer endorses the political campaign of a judge with the specific intention of securing a judicial appointment as a special master, or if the lawyer devotes many hours of her time to secure the election of a judge, for the same specific intention, she does not violate Rule 7.6. However, if she gives $1 to the judge’s campaign with that same specific intention, she violates Rule 7.6.
- Note that Rule 7.6 applies to a lawyer “or law firm.” This is the first time that the ABA House of Delegates approved a rule that governs a “law firm” instead of an individual lawyer.
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Rule 3.6: Trial Publicity 9 results (showing 5 best matches)
- There is a tension between a commitment to a robust discussion of public issues in a free press on the one hand, and a commitment to a criminal process, on the other. The jury is supposed to reach its factual conclusions only after evidence and argument in open court, not based on press reports. Chief Justice Burger noted these rights in conflict—fair trial and free press—in , 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976). 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.
- Rule 3.6(a) adopts a general test restricting speech if the extrajudicial statement “will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” This Rule governs whether the case is civil or criminal, with or without a jury. However, Rule 3.6(b) then creates a safe harbor. The ABA created this Rule 3.6(b) in response to This safe harbor states that a lawyer may disclose certain specific matters, such as information contained in a public record, or a request for assistance in obtaining evidence. The lawyer (whether prosecutor or defense) may also warn of the danger concerning an individual if there is reason to believe that there is a likelihood of substantial harm. Lawyers may also announce the scheduling or results of any steps in litigation, the general nature of the claim, the general scope of an investigation, the identity of the accused, and the identity of the arresting and investigating officers.
- Rule 3.6(c) adds a new right not found in the Model Code: a lawyer may make an extrajudicial statement that would otherwise be improper, if it is in response to statements by others and if a reasonable lawyer believes that the response is necessary to avoid prejudicing his client. These self-defense-type statements should be limited to information that is necessary to mitigate any undue prejudice created by the statements that others have made. In a sense, lawyers can fight fire with fire, by using
- , 377 Md. 656, 835 A.2d 548 (2003) held that the safe harbor provisions of Rule 3.6 relating to “public record” should be limited to public government records, ., “the records and papers on file with a government entity to which an ordinary citizen would have lawful access.” The court then imposed a public reprimand of a state’s attorney for, among other things, making a statement at a press conference discussing defendant’s confession to murder.
- Any limits on a lawyer’s right to comment raise serious questions regarding unconstitutional restrictions on the lawyer’s First Amendment rights. A leading decision is , 501 U.S. 1030, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991). A fragmented Supreme Court held that a Nevada Supreme Court Rule governing a lawyer’s pretrial statements about a case—a Rule almost
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Rule 1.4: Communication 3 results
- 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.
- Clients who use lawyers a lot, such as corporations involved with many transactions and court matters, understand that they are unlikely to be in daily contact with their lawyer except during crucial phases of the representation. In fact, such clients may expect that, in many instances, their lawyers will simply take care of the matter, so that they are not bothered by it. However, individual clients, particularly in the case of litigation that does not involve business transactions (divorce, family disputes and medical malpractice actions, among others) often act differently. They want frequent contact with their lawyer. One of the most common complaints of this type of client is that the lawyer should communicate with the client more frequently. Lawyers respond that “high maintenance” clients want constant contact.
- The old ABA Model Code addressed this problem at the aspirational level by exhorting the lawyer to “fully and promptly inform his client of material developments in the matters being handled for the client,” and to keep his client informed of relevant considerations before the client makes decisions. The Model Rules have gone further, by making clear that these requirements are not merely hortatory. A lawyer who violates this principle violates Rule 1.4(a)(1), which requires that the lawyer “promptly inform the client” of relevant matters and consult with the client. In addition, this lawyer violates Rule 1.4(b), which requires the lawyer to explain the matter to the extent necessary to permit the client to understand what is going on, so the client can make informed decisions.
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Rule 1.17: Sale of Law Practice 13 results (showing 5 best matches)
- Recall that, if a lawyer divides fees with another lawyer in a different law firm, each lawyer must assume joint responsibility for the representation, pursuant to Rule 1.5(e)(1). Rule 1.17 does not refer to that section. In fact, Comment 15 to Rule 1.17 specifically provides that Rule 1.17 does apply to the transfer of legal representation unrelated to the sale of a practice.
- , the seller must cease to engage in the practice of law, or an area of practice, in the jurisdiction (or a particular geographic area). The state court adopting Rule 1.17 should choose one of these alternatives. This Rule does not consider a seller as returning to private practice if he becomes in-house counsel, or works for the government or a legal services entity.
- Spurred by the California State Bar, the ABA, in 1990, adopted a new rule, Rule 1.17, allowing for the sale of a law practice by a living lawyer, or by the estate of a deceased lawyer. In 2002, the ABA amended that Rule in order to allow a lawyer to sell of a practice (“an area of law practice”) without leaving the practice of law entirely.
- In effect, this arrangement allowed lawyers to sell a law practice by accepting new members into the partnership. Thus, under the Model Code there was a disparity of treatment between lawyers practicing in a partnership compared to sole practitioners: this Code forbade solos from selling “good will,” but not law firms. Because of this difference in treatment, solos pushed changes to the rules regarding sale of a law practice.
- If a law firm has more than one lawyer, the death of one of them does not end the law practice, because there is a least one other lawyer to carry on the work. However, in the case of sole practitioners who die without having sold their practice, what happens to the files of their clients? When the ABA added Rule 1.17 in 1990, it also added Rule 5.4(a)(2). The Rule provides that if a lawyer (e.g., Lawyer A) purchases the law practice of “a deceased, disabled, or disappeared lawyer,” (e.g., Lawyer ), then Lawyer A may agree to pay the purchase price to the estate or other representative of Lawyer
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Rule 2.3: Evaluation for use by Third Persons 8 results (showing 5 best matches)
- One should distinguish an evaluation for the benefit of a third party from an investigation for the benefit of a client. There is an important difference when the lawyer knows that the client will make the legal opinion and show it to third parties, as compared to when he expects his legal opinion to and shown only to the client. If, for example, the governmental agency discussed in the prior paragraph asks for advice, then the lawyer is acting as an advisor, and Rule 2.1 applies.
- The lawyer is an evaluator when she issues a legal opinion concerning the title of property rendered at the request of a vendor for the information of a prospective purchaser. Or she may write an opinion concerning the legality of the securities registered for sale under the securities laws because a government agency may require this legal evaluation. Or, a government agency may ask its lawyer to furnish an opinion on the legality of contemplated action, so that the agency can publicize this opinion and use it to justify its action. In all these cases, the lawyer is an evaluator. See, e.g., ABA Formal Opinion 335 (1974). Often the client specifically requests the evaluation although his authorization may be implied. Rule 2.3, Comment 1.
- Consider the case where a prospective buyer of an apartment building hires a lawyer to complete a title search on this property. The lawyer’s client is the buyer, not the seller, and the lawyer’s duty of loyalty is only to his client. In contrast, if the seller retains a lawyer to furnish a title opinion that the seller plans to show to the buyer to bolster his claim that the title is a good one, then the client is retaining the lawyer to the property for the benefit of a nonclient. The lawyer’s duty of loyalty is to the client, but the lawyer also assumes legal obligations to the third parties who rely on the evaluation.
- Sometimes clients hire a lawyer to evaluate a matter for the benefit of third parties. Model Rule 2.3 governs this situation. Lawyers have assumed this special role with greater frequency in recent times.
- The client may place limits on the scope of an evaluation, e.g., by excluding certain issues, or imposing time constraints. Or, some persons may simply refuse to cooperate with the lawyer’s evaluation; Rule 2.3 does not arm the lawyer with a subpoena power. The lawyer’s evaluation should disclose all material limits in the evaluation.
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Rule 3.3: Candor Toward the Tribunal 49 results (showing 5 best matches)
- A lawyer is subject to discipline if he knowingly makes a false statement of law to a tribunal. A lawyer also must affirmatively disclose to a tribunal any legal authority in the controlling jurisdiction that he knows is directly adverse to his client’s position and that opposing counsel has not disclosed.
- Is there a right to commit perjury? Some commentators have argued that the accused has a right to testify, and to testify falsely, without his lawyer revealing the client’s perjury. E.g., Monroe Freedman, Understanding Lawyer’s Ethics (1990). Comment 7 to Rule 3.3 acknowledges that some jurisdictions may hold this position. This Comment states that if a jurisdiction requires that the lawyer present the accused as a witness if the accused wishes to testify, “even if counsel knows the testimony or statement will be false,” then the lawyer must follow the requirement of that jurisdiction. Otherwise, the lawyer must follow Rule 3.3.
- This rule does not require a lawyer to make a disinterested exposition of the law. Court proceedings are not dispassionate seminars. The interested party hires his lawyer, after all, to present that party’s interests. But the advocate may not fail to disclose pertinent, adverse legal authority in the controlling jurisdiction. After disclosing these decisions, he may seek to distinguish them, or challenge their soundness.
- , the ABA Ethics Committee issued ABA Formal Opinion 87–353 (April 20, 1987), elaborating on Rule 3.3 and advising that the
- Note that the rule does not speak of “controlling authorities.” It is broader and refers to “legal authority in the controlling jurisdiction.” Hence, ABA Formal Opinion 280 (June 18, 1949) rejects the narrow view that the lawyer must only cite decisions that are decisive of the pending case. Rather, the disclosure rule applies to—
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Rule 5.6: Restrictions on Right to Practice 11 results (showing 5 best matches)
- Justice Kennard, in , wrote a vigorous dissent. The majority was implementing the restrictive covenant 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!
- For example, a lawyer may not accept or propose a restriction in an employment agreement prohibiting a lawyer for a corporation from representing anyone in any future action against the corporation. The former lawyer for the corporation could not ethically engage in subsequent adverse representation that is to the prior representation. Rule 1.9(a). To go beyond that and prohibit violates Rule 5.6(a). ABA Formal Opinion 94–381 (May 9, 1994).
- Rule 5.6(b) is based on two rationales—lawyer freedom and client freedom. Rule 5.6 limits Rule 1.2(a), which provides, in general, that the lawyer must abide by the client’s decisions concerning settlement. Notwithstanding that principle, a lawyer may not accept or be part of a settlement agreement that would limit the ability of the lawyer to accept representation of future clients. For example, if the defendant wanted the plaintiff (in a products liability suit) to settle on the condition that plaintiff’s lawyer agree not to sue defendant in the future, the plaintiff may well agree: it is no skin off his nose. However, that settlement could substantially damage plaintiff’s lawyer, who would not be able to sue defendant in the future. It would also put the interests of plaintiff in conflict with the interest of plaintiff’s lawyer. Hence, Rule 5.6(b) instructs the lawyers on both sides that they may not agree to such a settlement.
- A disciplinary authority or government agency, as part of a settlement of its controversy with a lawyer, may impose restrictions on that lawyer’s right to practice. In this case, the lawyer is the party (the defendant or respondent), not the lawyer for a party. The lawyer is not settling a claim on behalf of a client; he is settling a disciplinary proceeding or other claims against him. ABA Formal Opinion 95–394 (July 24, 1995).
- For the retirement agreement to comply with Rule 5.6(a), it must affect benefits that are available only to a lawyer who is in fact retiring from the practice of law. It cannot impose a forfeiture of income that the lawyer had already earned. For example, a law firm could not place a “retirement benefit” label on income that the partner already earned and seek to deprive the lawyer of those funds if she competed with the law firm. “Beyond that, law firms and employers have significant latitude in shaping the nature and scope of the restrictions on practice and the penalties for noncompliance.” ABA Formal Opinion 06–444 (Sept. 13, 2006).
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Rule 8.3: Reporting Professional Misconduct 24 results (showing 5 best matches)
- Nonetheless, the Court found a violation of the ethics rules. The law firm’s executive committee failed to put into effect any measures to ensure the partner’s ethical performance of his duties they discovered that the partner had misapplied firm funds. This failure violated the Maine Rule that corresponds to Rule 5.3(a), requiring partners to make efforts to enact procedures that will deter unethical behavior. The Court (with one dissent) remanded for an appropriate sanction.
- In re Riehlmann
- In general, lawyers have an obligation to volunteer to the discipline authorities any information about another lawyer’s serious disciplinable violations if those violations raise a substantial question about that lawyer’s honesty or fitness as a lawyer in other respects (unless the information is privileged). Rule 8.3(a).
- The Illinois Supreme Court, in 1988, became the first court to discipline a lawyer solely for failing to report another lawyer’s misconduct, under circumstances where the disciplined lawyer’s client specifically told him not to report the other lawyer’s conduct.
- Rule 8.3(a) requires a lawyer to report if he “knows” that another lawyer committed a reportable violation. “Knows” does not mean absolute certainty. It does mean “actual knowledge of the fact in question.” Rule 1.0(f). The standard is objective. “[M]ere suspicion does not impose a duty of inquiry.” However, there is “knowledge” if “a lawyer in the circumstances would have a that the conduct in question
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- Rule 6.4 states that a lawyer may be a director, officer, or member of a group involved in law reform activities “notwithstanding that the reform may affect the interests of a client of the lawyer.” If there is no breach of loyalty when the lawyer is a member of an organization advocating law reform contrary to a client’s interest, there should be little legal argument that there is a breach of loyalty when the lawyer speaks out on his own behalf. The client could not validly charge that the lawyer acted unethically in taking the contrary position, unless the lawyer is violating client secrets. The Tax Lawyer may participate in a Bar Committee proposing tax reform even if it raises her clients’ taxes. Note that the lawyer is not suing her client; she is involved in changing the law.
- A lawyer only represents a client in the lawyer’s professional capacity. It is not necessary that the lawyer personally agree with, adopt, or support his or her client’s views. Lawyers who abhor cigarettes may represent tobacco companies and still participate in a bar association group that advocates bans on smoking. Their clients may object, and of course they may fire their lawyer, but they have no complaint that their lawyer (or former lawyer) acted unethically. Thus, it is not a conflict of interest for a lawyer to engage in law reform activities even though such activities are adverse to the financial interests of the lawyer’s private clients.
- The client’s interest and the personal law reform interests of the lawyer may coincide. If the lawyer is representing a private client while appearing before a legislative committee and asking for law reform, the lawyer may not deceive the committee as to the identity of the client. Thus, Rule 6.4 provides that when the lawyer knows that the interests of a client may be materially by a decision in which the lawyer participates, he “shall disclose that fact but need not identify the client.” The disclosure of the fact of representation helps to preclude the suspicion that the lawyer exercised improper influence on behalf of a client.
- If the identity of the client is privileged or secret, the lawyer should at least alert the legislative committee or similar entity that she is representing a private client whose identity the lawyer cannot reveal. See also Rule 3.9.
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Rule 3.7: Lawyer as Witness 10 results (showing 5 best matches)
- The advocate-witness rule provides that the advocate should withdraw if she is “likely to be a necessary witness” the testimony relates to an uncontested issue, or it relates to the nature and value of legal services in that case. The lawyer also should not accept employment if she is likely to be called as witness, unless one of the exceptions is applicable.
- The Model Rules limit the instances when an advocate may simultaneously act as a witness. When the lawyer is personally the advocate in a case, there is a conflict. However, Rule 3.7 does not automatically impute this conflict of interest to other members of the disqualified lawyer’s firm. See Rule 3.7(b) & Comment 7.
- The old Model Code explicitly imputed the advocate-witness disqualification to all lawyers in the firm. However, in conformity with the rationale of the rule, the Model Rules do not impute the advocate-witness prohibition. Where the witness is a partner of another lawyer who is the advocate, there is no automatic imputation because there is no realistic danger of confusing the fact-finder. The
- When the advocate-witness rule requires disqualification of the lawyer, the disqualified lawyer may still consult with the party’s substitute counsel and assist that counsel in preparing for trial. The reason for the advocate-witness rule (confusion of fact-finder) does not justify prohibiting the disqualified advocate-witness from consulting with the new lawyer (or with other lawyers in his firm, when the other lawyers become the trial counsel). E.g., , 524 F.Supp. 1205, 1211 n.3 (S.D.N.Y.1981). The disqualified lawyer will not divulge any forbidden confidences or other improper information to the new lawyer, because the court did not disqualify the lawyer-witness for that reason; nor will the lawyer-witness, who is no longer a lawyer-advocate, be able to confuse the fact-finder.
- The reason that the Rules do not normally impute this conflict is apparent once one looks at the reason for its existence. For many years, some commentators (as well as the former Model Code) offered inconsistent rationales for the advocate-witness rule. One reason for the restrictions on the testifying advocate was that such an advocate might be “more easily impeachable for interest.” A second rationale for the lawyer-witness disqualification was because “the opposing counsel may be handicapped in challenging the credibility of the lawyer….” Model Code of Professional Responsibility, EC 5–9. The first justification contradicts the second.
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- 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.
- A lawyer or law firm may outsource legal or nonlegal services, as long as the outsourcing lawyer gives competent legal services to the client, as required by Rule 1.1. The lawyer who is outsourcing work, perhaps to a foreign country, must “ensure that tasks are delegated to individuals who are competent to perform them, and then to oversee the execution of the project adequately and appropriately.” The responsible lawyer “should consider conducting reference checks and investigating the background of the lawyer or nonlawyer providing the services as well as any nonlawyer intermediary involved, such as a placement agency or service provider.” ABA Formal Opinion 08–451 (Aug. 5, 2008).
- A lawyer who fails in her duty of supervision violates these disciplinary rules even though the nonlawyer assistants might disclose no secrets, because the disciplinary violation is the lawyer’s failure to supervise. Conversely, a lawyer who adequately supervises her employees has fulfilled her ethical obligation, even if the employee nonetheless violates his instructions and improperly discloses a client secret or confidence.
- or other legitimate purposes, but the lawyer must exercise due care in selecting the contractor, because these outside agencies employ nonlawyers who have some access to client files. The supervisory lawyer must exercise reasonable supervision over nonlawyers in the firm and nonlawyers outside the firm who work on firm matters. Rule 5.3, Comment 1.
- Lawyers with managerial authority must make reasonable efforts to satisfy themselves that the outside service provider does not make unauthorized disclosures of client confidences or secrets. Rule 5.3, Comment 3. For example, the lawyer who contracts with a recycling firm to dispose of trash should take care to instruct the recycling firm on the importance of protecting client confidences and secrets. Similarly, the law firm that hires a computer maintenance company that has access to client files must take reasonable efforts to make sure that this outside contractor establishes reasonable procedures to protect client confidences and secrets. If there has been a “significant breach of confidentiality,” then Rule 1.4(b) may obligate the lawyer to make the appropriate disclosures to the affected clients. ABA Formal Opinion 95–398 (Oct. 27, 1995).
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- Rule 4.3 does not prohibit a lawyer from negotiating the terms of a transaction or settling a dispute with an unrepresented person (let us call him Alpha), if the lawyer explains that he represents an adverse party, not Alpha. The lawyer may explain to Alpha the terms on which the lawyer’s client will settle the matter; the lawyer may also prepare documents that require the person’s signature, and the lawyer may explain the lawyer’s own view of the meaning of the document or the lawyer’s view of the underlying legal obligations. Rule 4.3, Comment 2. The lawyer is not giving legal advice to the unrepresented party in those circumstances, but
- In other words, the lawyer can tell Alpha, “You must sign on the dotted line here, and initial over there, to make this contract effective.” The lawyer may be giving legal advice (“sign here, if you want to sign the contract”), but that does not violate Rule 4.3 if there is no reasonable possibility that Alpha’s interests on that particular issue (where to sign) will conflict with the lawyer’s client.
- Rule 4.3 restricts the lawyer’s communications with unrepresented persons. If no counsel represents the adverse party, the lawyer for the represented person may neither state nor imply to that party that the lawyer is disinterested. If the unrepresented person does not understand the lawyer’s role, the lawyer should correct the misunderstanding. If the lawyer thinks that the unrepresented person has an interest adverse to his client, he should not give any legal advice to this unrepresented person, other than the advice to seek counsel.
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- The client, though legally competent, may not fully appreciate the significance of the lawyer-client relationship. If the client has the legal capacity to discharge the lawyer (or lacks legal capacity to fire the lawyer), the lawyer should still make a “special effort” to educate the client and explain the consequences and significance of the discharge. Rule 1.16, Comment 6.
- A client’s youthful or advanced age may impair his ability to render a considered judgment, or the client may suffer from a mental disability, so that he does not appreciate the full significance of a problem. In such cases the lawyer should endeavor, insofar as possible, to maintain a normal client-lawyer relationship. Even if the client is disabled, she might still be capable of understanding the matter, and the lawyer should therefore consult with her to the extent possible under the circumstances.
- ABA Formal Opinion 96–404 (Aug. 2, 1996) deals with the problems of clients who become legally incompetent to handle their own affairs. In such cases, a lawyer should take the “least restrictive action under the circumstances.” The lawyer should not seek the appointment of a guardian “if other, less drastic, solutions are available.” Further, if the client needs a guardian for some purposes, the lawyer should seek something less than a general guardianship if possible. While the lawyer may file a petition for guardianship, it must be because the lawyer concludes it is necessary, not simply because someone else (such as a family member) requests it. Finally, if the lawyer recommends a guardian, the lawyer must disclose to the court the lawyer’s expectation of future employment by the guardian. The lawyer must also disclose if the client expressed a different preference for a guardian.
- Rule 1.14 does not give the lawyer carte blanche to impose on the client the lawyer’s personal view of the client’s best interest. Rather, Rule 1.14 authorizes the lawyer to engage in a limited intervention when the client’s mental incapacity is such that she cannot adequately protect her own interests.
- Rule 1.14, Comment 5 advises that the lawyer, to protect the client, should take protective measures such as consulting with family members, using voluntary surrogate decision-making tools (such as durable powers of attorney), turning to professional services, adult-protective agencies or others who have the ability to protect the client, and so forth. What should guide the lawyer in taking any protective action are factors such as “the wishes and values of the client to the extent known, the client’s best interests and the goals of intruding into the client’s decision-making autonomy to the least extent feasible, maximizing client capacities and respecting the client’s family and social connections.”
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- Bar associations and other groups often set up programs such as hotlines, to assist people with short-term limited legal advice. Even though there may be no expectation of life-long or other long-term service from hotlines, the lawyer may sometimes establish a true lawyer-client relationship. Often such programs do not operate under conditions that allow for systematic conflict checks. In 2002, the ABA added Rule 6.5 to protect a lawyer who inadvertently creates a conflict through such representation.
- The “short-term” lawyer must secure the hotline client’s informed consent to the limited scope of the lawyer’s representation. Rule 6.5, Comment 2. In addition, the Rule holds this short-term lawyer to the basic conflicts Rules 1.7 and 1.9(a) only if he of a conflict. Similarly, “short-term” lawyer is subject to the imputation restrictions of Rule 1.10 only if he that another lawyer in his firm is disqualified by Rules 1.7 or 1.9(a). If this short-term lawyer does not know, then the Rules will not disqualify his law firm from representing the adversary to the hotline client. Otherwise, the conflicts rules would impose a considerable burden on these “short-term” lawyers, thus discouraging their participation in these programs.
- If the short-term lawyer agrees to represent the hotline client in an ongoing representation, however, then the basic conflicts rules assume their full force at that time. Rule 6.5, Comment 5.
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Rule 8.2: Judicial and Legal officials 3 results
- The Rules prohibit a lawyer from making any knowingly false statements (or false statements made with reckless disregard as to their truth), when the statements relate to the judge’s, or judicial candidate’s, or public legal officer’s qualifications or integrity. However, this Rule seems to allow inflamed opinions. Thus, Rule 8.2 would
- Rule 8.2 makes a lawyer subject to discipline if he or she knowingly makes any false charges against a judge, judicial candidate, or public legal officer. The lawyer also must not knowingly speak with “reckless disregard” as to the truth or falsity of his or her statements.
- the ABA Model Rules of Professional Conduct provides that lawyers who are candidates for a judicial office must also comply with the applicable provisions of the Code of Judicial Conduct. This Rule prevents lawyers campaigning for judicial office from having an unfair competitive advantage over sitting judges.
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Index 13 results (showing 5 best matches)
Rule 3.8: Special Responsibilities of a Prosecutor 18 results (showing 5 best matches)
- 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. , 975 F.2d 102 (3d Cir. 1992), cert. denied, 507 U.S. 984, 113 S.Ct. 1578, 123 L.Ed.2d 147 (1993), noting that the ethics rules should not “delineate rules of evidence,” but should only set forth “strictures on attorney conduct.”
- In recent years, the Government has appeared to increase its subpoenas of criminal defense lawyers to testify before the grand jury. The Government often seeks information on the amount of the fee the client paid to his lawyer, whether the client paid this fee in cash, and whether the client or a third party paid the fee. The answers to these questions are relevant in light of various federal laws such as the Racketeer Influenced and Corrupt Organizations Act [18 U.S.C.A. §§ 1961–68] and the Continuing Criminal Enterprise Statute [21 U.S.C.A. §§ 848–53]. The fee may be subject to forfeiture if the client acquired money to pay the fee through certain criminal activity or it is evidence of a criminal enterprise.
- After many courts rejected this position, the ABA in February 1990 added what is now Rule 3.8(e). Comment 4 explains that the purpose of Rule 3.8(e) is to “limit the issuance of lawyer subpoenas in grand jury and other criminal proceedings to those situations in which there is a genuine need to intrude into the client-lawyer relationship.” The present version of Rule 3.8(e) does require the prosecutor to seek the judge’s permission to subpoena a lawyer before a grand jury. It does not require any pre-subpoena hearing. It does require the prosecutor to exercise self-restraint and not subpoena a lawyer unless the prosecutor “reasonably believes” that the information sought is not privileged, that the evidence “is essential,” and that there is no other way for the prosecutor to obtain it.
- “If the money was not given as a fee but for safekeeping, the delivery of the money was an act in furtherance of the crime, regardless of whether appellant knew it was stolen. The delivery of the money was not assertive conduct and therefore was not a privileged communication, and, as we just observed, the money itself is non-testimonial. The attorney is simply a witness to a criminal act. The fact that he is also a participant in the act, presumably without knowledge of its criminal quality, is irrelevant since he is not asserting his own privilege against self-incrimination. There is no authority or reason, based on any constitutional provision or the attorney-client privilege, for shielding from judicial inquiry either the fruits of the robbery or the fact of the later criminal act of turning over the money to appellant. Accordingly, it is immaterial that in responding to the subpoena appellant will be making an assertion about who turned over the money and when.”
- Rules 3.8(g) & 3.8(h) respond to the problem that occurs when prosecutors learn that a convicted defendant may be innocent. DNA testing is one of the factors leading to post-conviction exoneration. A 2012 study showed that there were over 870 individual exonerations in criminal cases, in the period from 1989–2012. Samuel R. Gross & Michael Shaffer, Report by the National Registry of Exonerations (2012). The fact that this number (870) is a very small percentage of all criminal convictions is cold comfort to the innocents who were convicted.
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Rule 2.1: The Lawyer as Advisor 10 results (showing 5 best matches)
- Lawyers who become Evaluators assume liabilities towards nonclients. For example, assume that the seller of real estate retains a lawyer to conduct a title search and furnish an opinion that the seller’s title is good. The seller plans to show this opinion to the purchaser. In this case, the , a nonclient. The lawyer’s duty of loyalty is to the client (the seller), but the lawyer also has assumed legal obligations to the third party (the purchaser), whom he knows will rely on his evaluation. Negligence in the preparation of this document could expose the lawyer to tort liability to this third party. See , 826 F.2d 1560 (7th Cir.1987), cert. denied, 484 U.S. 1043, 108 S.Ct. 775, 98 L.Ed.2d 862 (1988). Similarly, a lawyer who drafts a tax shelter opinion so that the client will use it to give comfort to investors may be liable to those investors.
- In offering legal advice, the lawyer need not limit her comments to purely technical legal considerations but may refer to economic, political, social and moral considerations. The lawyer may offer her
- Sometimes the client asks the lawyer to evaluate a matter for the benefit of a third person, such as when she writes an opinion concluding that it is legal to sell certain securities registered for sale under the securities laws. Rule 2.3, Comment 1. If the lawyer reasonably knows that the client will use that opinion to justify its action to third parties, the lawyer is then an advice, then the lawyer is an
- In this situation, the lawyer also must advise the client of the risks of taking this position on the tax return, including adverse legal consequences or penalties that the Internal Revenue Service might impose.
- The lawyer’s role in giving advice often depends on whether the lawyer is acting as an advocate or as an advisor. If the lawyer is acting primarily as advocate, she may urge the courts to adopt any nonfrivolous interpretation of the law that favors her client. In contrast, when the client consults the lawyer in order to seek advice on how to proceed in a matter, the lawyer should offer her good faith opinion on how the courts will likely rule. The lawyer’s efforts to comfort her client cannot limit her duty to give an honest assessment of unpleasant facts.
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- A lawyer may not attempt to influence a judge, juror, prospective juror, or other official by means prohibited by law or by court order. Rule 3.5 incorporates by reference this other law and adds the additional threat of legal discipline.
- In 2002, the ABA added Rule 3.5(c), specifying when the lawyer may not contact jurors the conclusion of proceedings. If a juror lets the lawyer know that he does not want to talk, the lawyer must respect this wish, unless he can obtain a court order to the contrary. A court may also prohibit contact with jurors after discharge. The lawyer’s
- Just as the lawyer-official may not accept anything of value offered to influence her own actions as a public official, neither may a lawyer seek to influence a public official (or juror) improperly.
- communications with jurors or prospective jurors during the proceeding. Similarly, it forbids improper efforts to influence judges, jurors, prospective jurors, or other officials. Deliberate efforts to disrupt a tribunal are of course also sanctionable.
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- Rule 3.9, Comment 3, explains that Rule 3.9 applies when the lawyer is presenting evidence or an argument in connection with a meeting or official hearing of a government agency or legislative body. It does not apply where one represents a client “in a negotiation or other bilateral transaction with a governmental agency or in connection with an application for a license or other privilege….” Nor does this Rule apply when government investigators are examining a client that the lawyer is representing. In those cases, Rules 4.1 through 4.4 apply; they govern transactions where the lawyer is dealing with persons other than clients.
- A lawyer appearing before a tribunal may not deceive the tribunal regarding the fact that the lawyer appears in a representative capacity. The lawyer’s role is clear in any normal court proceeding, because lawyers have to file as counsel of record. Many nonadjudicative proceedings are different, because there often is no formal procedure requiring the lawyer to “enter an appearance” as counsel of record. For example, lawyers may give testimony before a legislative hearing or appear before an administrator and may never be asked if the attorney is there on behalf of a client or on her own behalf. Rule 3.9 corrects that anomaly by requiring the lawyer to disclose if she is representing another party or representing her own interests in nonadjudicative proceedings.
- The identity of the lawyer’s client is rarely privileged. Even when it is privileged, the lawyer may not deceive the tribunal regarding the fact that the lawyer appears in a representative capacity. The lawyer is not misleading if she discloses that she appears on behalf of another, whose name is privileged. Court rules allow a Jane Doe or John Doe litigant in certain circumstances. However, it would when in fact she is secretly acting on behalf of another. In judicial as well as nonadjudicative proceedings (such as those involving lobbying), the government has a legitimate interest in knowing whom the lawyer represents.
- Even in the situation where the lawyer represents the client before an agency, Rule 3.9 does not impose on a lawyer all of the ethical requirements that are thrust on lawyers who represent clients in court. Rule 3.9 provides that the lawyer must conform to Rule 3.3(a) through 3.3(c), as well as Rule 3.4(a) through 3.4(c). Notably, Rule 3.9 does not incorporate Rule 3.3(d), which governs proceedings, because those proceedings involve applications for a type of relief—a temporary restraining order, a default judgment—that are simply inapplicable to the nonadjudicative proceedings that Rule 3.9 governs. Similarly, Rule 3.9 does not incorporate the portions of Rule 3.4 (“Fairness to Opposing Counsel”) governing a lawyer’s obligations regarding discovery, or the limitations on a lawyer asserting personal knowledge of facts. These requirements are often inapplicable before municipal councils, legislatures, and agencies acting in a rule-making capacity. Of course, if the agency imposes...
- Rule 3.9 incorporates Rule 3.5, requiring a lawyer to deal with the tribunal with impartiality and not to seek to influence it corruptly or engage in communications unless other law permits those communications. However, Rule 3.9 does not incorporate the restriction in Rule 3.1 that prohibits making frivolous arguments. Rule 3.9 recognizes that it is common in politics to design arguments that appeal to emotion and do not follow the rigor of Euclidian logic. Hence, Rule 3.9 deliberately omits any citation to Rule 3.1.
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Rule 4.1: Truthfulness in Statements to Others 12 results (showing 5 best matches)
- In addition, Rule 4.1(b) does not require a lawyer to assist a client in a crime or fraud even if Rule 1.6 prohibits disclosure. These misrepresentations can also occur by failure to act. So, in the situation where the lawyer has an affirmative obligation to do something, but cannot disclose because of Rule 1.6, then, the only alternative must be that he or she must withdraw. The lawyer may also file a notice of withdrawal, as provided for in Rule 4.1, Comment 3.
- Rule 4.1(a) states that a lawyer, while representing her client, “shall not knowingly … make a false statement of material fact or law to a third person,” such as the opposing lawyer in the course of litigation. However, immediately following that statement, Comment 2 looks in a different direction. It advises: “Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact. Estimates of price or value placed on the subject of a transaction and a party’s intentions as to an acceptable settlement of a claim are ordinarily in this category, and so is the existence of an undisclosed principal except where nondisclosure of the principal would constitute fraud.”
- In some circumstances, Rule 4.1(a) has real bite. In general, a lawyer has “no affirmative duty to inform an opposing party of relevant facts,” but “Misrepresentations can also occur by partially true but misleading statements ….” Rule 4.1, Comment 1 (emphasis added). A half-truth is a whole lie.
- Contrast, ABA Formal Opinion 06–439 (April 12, 2006). It says that in negotiation, a “plaintiff might insist that it will not agree to resolve a dispute for less than $200, when, in reality, it is willing to accept as little as $150 to put an end to the matter.” Such comments do not violate Rule 4.1(a) because they are really “posturing” or “puffing.” Parties to a negotiation ordinarily would not justifiably rely on them. They “must be distinguished from false statements of material fact.” An example of a material misstatement of fact [which Rule 4.1(a) forbids] is if a lawyer representing an employer in labor negotiations stated to union lawyers that a proposed employee benefit “will cost the company an additional $100 per employee, when the lawyer knows that it actually will cost only $20 per employee.”
- Rule 4.1 applies to negotiations and mediations. Typically, in mediation, all participants in the mediation hear whatever a party communicates to the mediator or its counsel. “In contrast, the mediator in a caucused mediation meets privately with the parties, either individually or in aligned groups. These caucuses are confidential,” and the mediator controls “the flow of information among the parties
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Rule 8.1: Bar Admission and Disciplinary Matters 7 results (showing 5 best matches)
- In general, the Model Rules do not govern nonlawyers. However, an important exception concerns the case of a nonlawyer who seeks to become a lawyer and who intentionally makes a materially false statement in her bar application. That misstatement constitutes “dishonesty” or a “fraud,” and thus is disciplinable, even if the person was not a lawyer at the time, because Rule 8.1 extends to persons seeking admission to the bar as well as to lawyers. If the applicant has not yet become a member of any bar, she would become subject to discipline if she were subsequently admitted. In addition, Rule 8.1(a) may form the basis of discipline if the applicant is already a member of the bar in one jurisdiction and is seeking admission elsewhere
- , she was arrested 15 years earlier, but that juvenile arrest was expunged from her record), or challenge the legal authority of the bar authorities to ask about expunged records.
- knowingly makes a material false statement, but later comes to know of its falsity. Can she now take advantage of the misinformation because she did not act with a fact necessary to correct a misapprehension known by the person to have arisen in the matter….” Consequently, she must disclose her earlier false statement even though she did not know it was false when she originally made it. The Rules impose on the applicant an affirmative duty to clarify “any misunderstanding on the part of the admissions or disciplinary authority of which the person involved becomes aware.” Comment 1.
- , 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957). However, the bar may lawfully discipline a lawyer (or refuse to admit an applicant) who unlawfully obstructs the investigation. The state may also refuse to admit a person if that person, with , was a member in an organization advocating the unlawful overthrow of the Government, and had the “
- The duty to correct a misapprehension or to respond to a lawful demand for information does not require the applicant or lawyer to disclose information that Rule 1.6 protects. Rule 8.1(b) and Comment 2 make clear that the lawyer or applicant may assert a evidentiary or constitutional privilege. However, the person relying on a privilege must do so openly.
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- The lawyer may not state or imply that she is “certified as a specialist” in a particular field of law unless the appropriate state authority or the ABA has approved the organization. The lawyer must also clearly identify the name of the certifying organization in her communication.
- The Rules now place only a few regulations on a lawyer’s communication of fields of practice. A lawyer may communicate through advertising that the lawyer’s practice does (or does not) include particular fields of law. Prior to February 1989, a Comment to Rule 7 prohibited lawyers from stating that their practice “is limited to” or is “concentrated in” a particular area. Now, there is no such restriction. In light of modern lawyer-advertising cases, the pre–1989 version would be unconstitutional, unless the state could meet the difficult burden of demonstrating that the use of language such as “is limited to” is misleading (while “is not limited to” is not misleading).
- The current Rule 7.4, after the 2002 revisions, recognizes that many of the battles of the past have ended with the ABA’s long-standing position as the loser. In light of free speech interests, Rule 7.4 imposes only three basic rules governing communication of a field of practice and specialization. First, the lawyer may communicate that she does or does not practice in particular fields of law. Second, if she is admitted to practice before the U.S. Patent and Trademark Office, she may use the designation of “Patent Attorney” or similar designation. Third, she may use the designation of “Admiralty” or “Proctor in Admiralty” if she engages in Admiralty practice.
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Rule 3.2: Expediting Litigation 6 results (showing 5 best matches)
- “The question is whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose delay in litigation is not a legitimate interest of the client.” Rule 3.2, Comment 1.
- The first sentence quoted above may mean that, in determining whether to take a position in litigation, or file a motion, and so forth, a lawyer may not consider the benefits of delay that flow from the action. However, the second sentence points in the opposite direction. It announces that when the lawyer considers the legitimate interests of the client, he may not consider the benefits of delay
- The former Model Code imposed ethical restraints on dilatory practices in litigation. The Model Rules maintain those restrictions but in a more positive manner, by requiring the lawyer to make “reasonable efforts to expedite litigation,” but those efforts must be “consistent with the interests of the client.”
- If it is in the client’s best interest to expedite litigation, it is easy to comply with Rule 3.2. However, prompt litigation is not always in the client’s best interest. Some well-known lawyers have boasted about their ability to delay a case for years.
- Cases in which judges have relied on Rule 3.2 to sanction lawyers tend not to be cases where the lawyer has filed a non-frivolous motion or taken other non-frivolous action that results is motivated by the desire for delay. Instead, courts more typically sanction lawyers under Rule 3.2 for misconduct that involved doing nothing after taking fees from their clients.
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Rule 2.2: Intermediary 1 result
- Before the 2002 ABA Model Rule revisions, Rule 2.2 dealt with the lawyer as intermediary. The Model Rules now deal with that concept in the Comments 28–33 to Rule 1.7. The drafters of the 2002 revisions concluded that the old Rule 2.2 caused confusion, so now the Comments in Rule 1.7 cover this issue. These Comments prefer the term “common representation” instead of “intermediation.”
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- Publication Date: November 19th, 2012
- ISBN: 9780314282248
- 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 and the Model Code. 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.
