Legal Ethics in a Nutshell
Author:
Rotunda, Ronald D
Edition:
5th
Copyright Date:
2018
61 chapters
have results for legal ethics
Preface 7 results (showing 5 best matches)
- Times have changed. The emphasis on legal ethics began in 1974 as part of what Vice President Spiro Agnew then referred to as our “post-Watergate morality.” I started teaching legal ethics because the Dean knew I was the new boy on the block, and had been a lawyer for the Senate Watergate Committee.
- In addition to the state law derived from the ABA Model Rules, there is case law, the commentators, and influential advisory ethics opinions of various bar associations and the ABA Ethics Committee. The American Law Institute’s Restatement of the Law Governing Lawyers, Third (Official Draft, 2000), is also an important and helpful tool. I will refer to all of these sources but, given the limited nature of a Nutshell, I am limited in discussing them in detail. For that, one should turn to other secondary sources such as (please forgive the shameless self-promotion): Rotunda & Dzienkowski, Legal Ethics: The Lawyer’s Deskbook on Professional Responsibility (ABA & Thomson Reuters, 2018 ed., updated yearly) (a treatise on legal ethics, published jointly by the ABA & Thomson Reuters Publishing) or Rotunda, Professional Responsibility (Thomson West, 9th ed., 2011) (Black Letter series). Finally, do not forget that ethical lawyering goes well beyond the four corners of the ABA rules: the...
- 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, . . . 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 are not known through some sort of innate awareness nor are they automatically infused into ordinary human beings once they are admitted to the bar.
- Some people think that ethics can be taught only at mother’s knee. It’s a little more complicated than that. Lawyers who think of ethics as intuition are often the same people whom courts routinely disqualify because they do not appreciate the complexities of the rules of conflicts of interest. Many lawyers today are ignorant of recent developments regarding trust fund accounts, lawyer-contact with unrepresented persons, conflicts of interest and attorney disqualification. Several years ago, one of my former academic colleagues, who also practiced law, said she did not buy malpractice insurance because her contract with her clients required them to waive their malpractice claims. Her listeners nodded knowingly, oblivious to the fact that her standard waiver agreement violated state ethics rules, was not enforceable, and could cause her to lose her license.
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Introduction The Preamble, Scope, and Rule 1.0 28 results (showing 5 best matches)
- Since Ethics 2000, the ABA has adopted other revisions to the Model Rules, in particular several changes proposed by Ethics 20/20, another ABA Commission that proposed 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 hoped to complete its work.)
- 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:
- 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...
- 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.
- Indeed, lawyers in other countries are studying American Legal Ethics and the ABA Model Rules.
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Rule 1.1 Competence 5 results
- It is no accident that Model Rule 1.1 requires competence, because the drafters of the Model Rules believed that the first rule of legal ethics is competence. Not only the law of malpractice but also the law of ethics requires lawyers to be competent.
- Clients can waive many rights, but the ethics rules do not permit the client to waive, prospectively, the lawyer’s duty of competence. If a client has suffered harm due to her lawyer’s incompetence, we can expect that a suit for legal malpractice, as well as disciplinary action, may follow.
- The lawyer need not 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 lawyer (in a different law firm) who is already competent. Before the lawyer’ associates with someone in
- 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.”
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Rule 1.6 Confidentiality of Information 31 results (showing 5 best matches)
- Another type of consulting with a lawyer in a different firm does not involve the explicit prior consent of the client. Consider the case when Lawyer #1 seeks legal advice from lawyer #2, when that second lawyer has a special expertise, or a more detached judgment on the ethics issue he is in a different law firm. Sometimes, for example, Lawyer #1 may consult Lawyer #2 on an ethics question to determine if a special action is required. Rule 1.6(b)(4) now specifically allows a lawyer to secure legal advice about the lawyer’s compliance with the ethics rules.
- 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.
- Sometimes law firms have their own in-house ethics counsel or general counsel, and firm lawyers may seek that counsel’s advice on ethics matters. advises that normally Rule 1.4 does not require the lawyer to tell the client about the consultation with this ethics counsel. However, “a law firm’s failure to disclose its own malpractice to a client may expose the firm to civil liability.” Rule 1.13 may require the ethics counsel or the firm itself to report misconduct to a client if the lawyer does not. Ordinarily, Rule 8.3 makes the duty of ethics counsel to disclose firm members’ misconduct no greater than the duty an outside lawyer for the law firm would have.
- That example illustrates an important issue: if a method of communication is useful, common, and usually secure, should the ethics rules nonetheless prohibit it? Most ethics authorities respond “no.”
- In short, the lawyer may challenge the court order or obey it; the ethics rules offer her no protection if , the more general duty of confidentiality, a duty that is broader than the evidentiary privilege. This is because “secrets” are a concept of the law of ethics; the law of evidence does not protect them as an evidentiary privilege. Thus, if the law of ethics protects information but the evidentiary privilege does not, then the lawyer may not volunteer the information but would have to reveal it in a deposition or other compelled testimony.
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- Unlike the American taxicab driver, there is no ethics rule that requires an American lawyer to respond to the first hail. The law does not normally obligate a lawyer to accept any individual client. George Sharswood, in
- While ethics rules do not require a lawyer to take a case (except when appointed), they sometimes require a lawyer to decline a case. For example, a lawyer may not accept a case if doing so will violate a rule of professional responsibility or other law, or if the lawyer cannot perform reasonably prompt and competent service.
- , follow the Restatement, and allow a lawyer to sue a client for wrongful damages if the client fired the lawyer for reasons against “public policy” (if, say, sex or race discrimination is involved, or if the client fired the lawyer for doing her duty under ethics rules). Thus,
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Rule 7.2 Advertising 4 results
- , North Carolina State Bar Ethics Committee, Formal Opinion, 2011–10 (2011). A few jurisdictions are troubled, arguing, , that the lawyer is really sharing fees for channeling clients, in violation of Rule 7.2. Indiana State Bar Association Legal Ethics Committee, Opinion 1 (2012).
- , “Groupon” or “daily deals”), they must deposit the funds into the lawyer’s trust account if the money is a fee for legal services. However, if the purchase of a coupon “merely establishes the discount applicable to the cost of future legal services,” then “the funds that a marketing organization collects and forwards from the sale of coupon deals are not legal fees.” In that case, the lawyer may deposit the money “into the lawyer’s general account.” ABA Formal Ethics Opinion 465 (October 21, 2013).
- , 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. These...
- 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.
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Rule 1.2 Scope of Representation and Allocation of Authority 9 results (showing 5 best matches)
- In general, the ethics rules provide no litmus test for such cases. We know that the lawyer may present an analysis of the legal aspects of questionable conduct but may not recommend “the means by which a crime or fraud might be committed with impunity.” Rule 1.2, Comment 9. The lawyer may not suggest, for example, how the client might conceal his illegal purpose. Comment 10.
- , the power) to grant reasonable requests of opposing counsel that do not prejudice the client’s rights. The ethics rules authorize lawyers to grant a “reasonable request for a postponement that will not prejudice the lawyer’s client.” Rule 1.3, Comment 3.
- even if the client seeks to terminate the lawyer for a less than noble reason. Rule 1.16(a)(3) & Comment 4. For example, if a client decides to fire the lawyer because the lawyer has just hired an African-American associate, the lawyer has no right to prevent the client from terminating the representation. The client is obviously acting for a racist reason, but the ethics rules compel the lawyer to withdraw. Other law, such as civil rights laws, may impose sanctions on the client, but the rules of ethics require the lawyer to cease representing the client who has fired him.
- The ethics rules therefore attempt to lay out basic guidelines to distinguish between those matters where the lawyer must let the client make the decision and those where prior client consent is unnecessary. As a general principle, the lawyer is entitled to make decisions in matters that do not affect the merits of the cause or substantially prejudice the client’s rights. However, even in these cases, there may be situations where it would be prudent for the lawyer to confer with the client. In other situations, the client has the exclusive
- For example, assume that the defendant’s attorney, while preparing an Answer to the Complaint, needs more time to complete some research, so he asks the plaintiff’s attorney for a one-week extension in the time allowed to file the Answer. The extension will not prejudice the client’s case. The ethics rules do not give the plaintiff a right to forbid his attorney from granting this specific request. The plaintiff may hate the defendant and try to order his lawyer to grant no extensions (no matter how reasonable the extension is), but the lawyer is acting ethically if he ignores this particular order. The plaintiff may always fire his lawyer for his refusal to obey instructions, but plaintiff may not
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Title Page 1 result
Outline 16 results (showing 5 best matches)
Center Title 1 result
Rule 1.7 Conflicts of Interest—Current Clients 22 results (showing 5 best matches)
- 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
- 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.
- The ethics rules do not provide for implied waivers of conflicts by a client. They set out a procedure for a waiver, and that procedure is explicit. The client should be able to rely on the lawyer, on whom the Rules place the obligation to secure informed consent.
- Because the ethics rules impute many conflicts, it becomes very important to determine which lawyers have conflicts because they can infect all the other lawyers in their firm, just as a computer virus infects an entire network.
- In estate administration, there may also be an ethics issue in determining exactly who the client is
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Rule 1.13 The Organization as a Client 17 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.
- Rule 1.13 applies to all organizations, such as corporations, partnerships, trade associations, unions, and so forth. For purposes of the law governing ethics, Rule 1.13 treats all these organizations as entities. The substantive law governing partnerships may treat a partnership as an “aggregate” or an “entity.” Nevertheless, for purposes of ethics, the lawyer represents the partnership as an entity (whether or not it is an aggregate in the law of partnerships). Rule 1.13, Comments 1 to 5 (“The Entity as the Client”).
- The ethics issues involved in the corporate family situation are somewhat analogous to the case where a lawyer, in a private law firm, represents—as one of its clients—the government or a government agency. To that issue we now turn.
- The ethics rules also treat trade associations as “entities.” A lawyer who represents a trade association (
- Assuming that there is no relevant statute that mandates a different result or procedure, and that Rule 1.11 does not command a different result, then one must turn to the other ethics rules. If there is a simultaneous representation of adverse interests, then Rule 1.7 applies, and the law firm is in a conflict. Who is the governmental client? Is the
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- 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
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Rule 1.5 Fees 24 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 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 a 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 1.1...
- Because the lawyer is a fiduciary of the client, the lawyer is subject to discipline if the fees are not “reasonable.” The Model Code used the term “clearly excessive,” but that phrase really meant “unreasonable.” It did not mean that the fee could be excessive as long as it was not “clearly” so. Both the Model Code and the Model Rules list the same factors relevant to determine reasonableness. The ethics rules do not limit the determination of reasonableness to these factors, but they represent typical components that the lawyer may consider in setting a reasonable fee:
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Rule 5.5 Unauthorized Practice of Law ; Multijurisdictional Practice of Law 19 results (showing 5 best matches)
- 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.
- What of the paper and electronic publishing markets? Sometimes, Unauthorized Practice Committees raise eyebrows when publishers market their legal “how to” books to lay audiences. Yet, publishers market their legal casebooks to lay people (called law students). Moreover, the layperson can represent himself (even if it is foolish to do so), and a lawyer may counsel nonlawyers who wish to represent themselves,
- A lawyer admitted in State #1 may provide legal services in State #2 if they are State #1. Rule 5.5(c)(4). Hence, the lawyer may represent a multinational corporation seeking the lawyer’s legal advice regarding potential business sites in various states. Comment 14. Or, the lawyer may have previously represented the client in State #1, or the client, in State #2 may have substantial contacts with State #1, where the lawyer is admitted.
- If Lawyer (admitted in State #1) does not open an office in State #2 (“systematic and continuous presence”), Lawyer can still provide legal services on a temporary basis if the legal services arise out of or are reasonably related to the lawyer’s practice in State #1. Assume that some of this Lawyer’s clients are residents of State #2, where Lawyer is not admitted. If the legal services “are reasonably related” to State #1, Lawyer may represent these residents of State #2. Rule 5.5(c)(4), Comments 13, 14. However, she may not open a law office in State #2 for the general practice of law in that state unless she is first admitted there. Rule 5.4(d).
- The practice of law is not limited to litigation. Cases hold that lawyers who give transactional advice and engage in similar non-court representation of clients are practicing law. On the other hand, some jurisdictions say “a nonlawyer officer of a corporation may permissibly draft legal documents, negotiate complex transactions, and perform other tasks for the employing organization, even if the task is typically performed by lawyers for organizations.” (ALI 2000). A party “to a legal document may select, prepare or draft that document without fear of liability for unauthorized practice.”
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Rule 6.2 Accepting Appointments 2 results
- 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.
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Rule 4.4 Respect for Rights of Third Persons 7 results (showing 5 best matches)
- There are several reasons for this about-face. First, the Model Rules, like the former Model Code, have no specific provision prohibiting lawyers from engaging in surreptitious tape recording of their conversations with witnesses, opposing parties, or clients if these recordings are otherwise legal. In addition, most state ethics opinions rejected the ABA’s opinion and allowed such secret tape recordings. In addition, federal law and many states allow secret tape-recording if one party consents to the taping (but the other party remains unaware).
- . Once the receiving lawyer (RL) notifies the sending lawyer (SL), then SL will presumably seek court protection. However, the court may rule that the SL’s mistake caused the loss of the attorney-client privilege. The law of evidence, not the law of legal ethics, answers the question whether sending the material loses the evidentiary privilege.
- 1974, the ABA Ethics Committee issued 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.”
- that document (the age of the paper; the signature that can be examined for forgery; the age of the writing on the document—the longer ink is on a paper, the further it penetrates that paper, etc.). So, how can a competent lawyer intentionally email a document and unintentionally include the metadata? An incompetent lawyer may not even know what metadata is, but the ethics rules do not require the competent lawyer to help the incompetent adversary.
- . Hence, the lawyer who made such a threat in these circumstances would violate Rule 4.4. On the other hand, assume that the lawyer tells the opposing litigant, “You took my client’s car without authorization. Unless you return it promptly, she will file charges with the police.” That would not violate the ethics rules, because that is not extortion: the client has a claim of right in the car.
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- Rule 5.7(a) motivates the lawyer to make sure these law-related services are distinct from her legal business in order to avoid the more demanding and stringent requirements of the rest of the Model Rules. If the law-related services are distinct from her legal services to clients, and the lawyer makes clear that the protections of the lawyer-client relationship do not apply, then with respect to those law-related services, she is not subject to those Rules that govern lawyers only when acting as lawyers. For example, if the lawyer makes clear that the law-related services are distinct, then, the ethics rules regarding the advertising restrictions, conflicts of interests, and the protection of confidential information do not apply. The lawyer still would be subject to those other portions of the Model Rules that apply to lawyers whether or not they are acting in their capacity as lawyers (
- First, the lawyer provides them in circumstances that are indistinct from her provision of legal services to clients. Or,
- 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 (
- using these law-related services understood that these services are not legal services. Rule 5.7, Comment 7.
- “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.
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- When the ABA initially adopted the Model Rules in 1983, Rule 6.1 was a vague call urging lawyers to engage in pro bono work for people of limited means or for public service or charitable groups. In February 1993, the ABA House of Delegates approved a much more specific Rule, although it remains aspirational. The Ethics 2000 reforms specified even more clearly, “ 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 pro bono publico 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), 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.
- 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.
- Brown v. Legal Foundation of Washington, 538 U.S. 216, 123 S.Ct. 1406, 155 L.Ed.2d 376 (2003)
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Rule 1.15 Safekeeping Property 6 results (showing 5 best matches)
- In response to IOLTA, the ABA Ethics Committee announced that ethics rules do not stand in the way of such programs. Even without prior client consent or notice, the “interest earned on bank accounts in which are deposited client’s funds, nominal in amount or to be held for short periods of time, under state-authorized programs providing for the interest to be paid to tax-exempt organizations,” is not treated as funds of the client within the meaning of the ethics rules.
- 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.
- . There is no policy justification offered to support this exception, and thus the Rules do not continue it. Such funds are now subject to the trust fund requirement. Rule 1.15(c) requires the lawyer to “deposit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred.” This provision responds to the sad fact that the single largest class of claims made on client protection funds is for taking unearned fees.
- Phillips v. Washington Legal Foundation, 524 U.S. 156, 118 S.Ct. 1925, 141 L.Ed.2d 174 (1998)
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Rule 1.3 Diligence 4 results
- Oregon Ethics Opinion, Op. 2005–162, 2005 WL 5679588 (2005)
- Most ethics rules are for the protection of clients, who can usually waive them if they choose. However, some rules are not subject to waiver. Even a client’s refusal to pay her lawyer’s fee does not waive the rule prohibiting the lawyer from neglecting the client’s case. If the client deliberately ignores his obligation to pay his attorney, the lawyer may withdraw from representation only after taking reasonable steps to protect her client’s interests. If the matter is before a tribunal, the lawyer may not withdraw unless the tribunal permits it. Until the lawyer withdraws in accordance with the requirements in the ethics rules, the lawyer must act, “to the extent reasonably practicable,” to protect the client’s interest. Rule 1.16(d).
- The lawyer’s heavy workload does not excuse her neglect of legal matters committed to her. She must control her workload so that she can handle each
- Rule 1.3 requires a lawyer to “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. Clients resent “procrastination.” Rule 1.3, Comment 3.
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Rule 1.8 Conflict of Interest—Current Clients: Specific Rules 21 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, , if a statute or regulation or provision other than the ethics rules permits the lawyer to limit his imputed liability.
- The insurance carrier has legitimate interests to know how the defense is going, to evaluate if a particular defense expense is cost-effective, to sue for malpractice if the lawyer for the insured is incompetent, and so forth. The ethics rules do not have to call the insurer a “client” for the insurer to have these rights.
- 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
- 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.
- Originally, the ethics rules placed several important limitations on financial advances. The Model Code had a specific requirement (DR 5–103(B)) that the client must remain “ultimately liable” for these expenses, but also advised (inconsistently) that the lawyer should not normally sue to collect his advances except to prevent fraud or
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Rule 1.10 Imputation of Conflicts of Interest 7 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.
- THE ETHICS RULES IMPLICATED
- 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.
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Rule 3.4 Fairness to the Opposing Party and Counsel 8 results (showing 5 best matches)
- Legal Ethics: The Lawyer’s Deskbook on Professional Conduct
- 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
- excluded all evidence tainted by a violation of the ethics rules. In that case, the insurer with knowledge of its counsel, paid $120,000 to fact witnesses to testify at depositions. The court found
- , imposed a 60-day suspension on a lawyer who attempted to dissuade his friend from giving expert testimony, thus “breaching a vital canon” of ethics, Rule 3.4(f).
- directly adverse legal authority. Let us assume that an affirmative duty of candor to the judge, as discussed in Rule 3.3(a)(2). The lawyer may neither explicitly misrepresent the state of the law nor mislead the court, for example, by not disclosing the recent tolling case. The lawyer must disclose this adverse legal authority in open court. That means that the opponent will learn what is going on, but that is what Rule 3.3(a)(2) requires.
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Rule 5.4 Professional Independence of a Lawyer 10 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
- does not suggest that this arrangement violates any ethics rule. If this arrangement is proper, then why not the other way around, where the lawyer passes on the fee award to the client? If the court gives the fee award to the client, the lawyer can always waive the fee. The ethics rules do not require lawyers to charge for their services. If lawyers can pass on the entire fee award (by declining to charge for their services), should they not be able to pass on part of the fee award?
- In 2012, ABA Commission 20/20 considered proposing changing the ethics rules to allow nonlawyers to be partners of law firms, much like the D.C. Rule. However, there was substantial opposition, and the Commission withdrew its proposal.
- , it is now clear that the lawyer may share legal fees with (or donate the legal fees to) a nonprofit client, such as the ACLU or the NAACP, who recommended the lawyer or employer for the matter in question. Rule 5.4(a)(4).
- the corporation is a non-profit. Why should the ethics rule change just because the employer is a not-for-profit corporation? The Rules do not say.
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- Commentators and courts have questioned whether it is proper for the ABA to use ethics rules to try to change the substantive law or the rules of procedure or of evidence. , noting that the ethics rules should not “delineate rules of evidence,” but should only set forth “strictures on attorney conduct.”
- Legal Ethics The Lawyer’s Deskbook On Professional Responsibility
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Rule 1.9 Duties to Former Clients 3 results
- disqualification. If the rules disqualify one lawyer in a law firm, they may automatically impute that disqualification on others associated with the affected. The ethics rules impute some disqualifications but not others. Rule 1.10 lays out the basic rule regarding imputation.
- On the other hand, a party does not waive a conflict simply because it did not initially grasp the significance of relevant facts. The burden is on lawyers to provide promptly to the client all information needed to make a valid waiver. We do not expect clients to know the ethics rules governing their lawyers; clients tend to presume that they can trust their lawyers and former lawyers.
- “if they involve the same transaction or legal dispute
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Rule 7.1 Communications Concerning a Lawyer’s Services 10 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
- 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
- THE ORIGINS OF THE RESTRICTIONS ON LEGAL ADVERTISING
- invalidated state limitations on attorney advertising and held that the right of free speech protects truthful advertising about the availability and fees for routine legal services. However, the Court allowed the states to subject legal advertising to reasonable restrictions on time, place and manner, and to prohibit false or misleading advertising.
- 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 non-deceptive illustrations and legal advice.
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Rule 1.11 Special Conflicts of Interest for Former and Current Government Officers and Employees 4 results
- INTRODUCTION TO THE ETHICS RULES GOVERNING “THE REVOLVING DOOR” BETWEEN THE LAWYER MOVING
- There was no general provision of the former Model Code dealing with this issue. Instead, case law and ethics opinions derived rules from more general provisions in the Model Code. Rule 1.11 both builds on, and helps codify the prior law. It also adds several additional, distinct requirements.
- Model Rule 1.11 deals with what commentators often call the “revolving door” of lawyers who move between private practice and government service. The goal of the ethics rules in this area is to limit potential abuses—
- In addition, the reward structure in the government is different from the reward structure of private firms. For example, consider the case of the government lawyer formerly in private practice who knows confidences and secrets of her former client. This lawyer, now working for the government, obviously cannot ethically reveal her former client’s secrets to her new colleagues because of Rule 1.6. However, the Rules do not impute her knowledge of these secrets to her new colleagues because there is less financial incentive for her to violate her ethics duties, even though the government does not impose a formal screen. A salaried government lawyer does not have the financial interest in the success of the government’s representation that is inherent in private practice. So, the Rules do not require a screen, but it “ordinarily” will be “prudent” for the government to “screen such lawyers.” Rule 1.10, Comment 3.
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Rule 3.1 Meritorious Claims and Contentions 6 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
- It does not take much to make a position “nonfrivolous.” The mere fact that a legal argument is “creative” or contrary to existing law does not mean that the position is frivolous. Existing law is replete with ambiguities and, even if clear, is always subject to change if the lawyer makes a convincing argument. A permissible, non-frivolous position includes any good faith argument for extension, modification, or even
- 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.
- 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
- 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.
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Rule 8.5 Disciplinary Authority: Choice of Law 7 results (showing 5 best matches)
- For all other conduct, the ethics law applied should be the law of the jurisdiction in which the lawyer’s conduct occurred, unless the “predominant effect of the conduct” is in a different jurisdiction, in which case that jurisdiction’s rules should apply. Rule 8.5(b)(2).
- conduct of a lawyer should be subject to only one set of rules. Both jurisdictions should be using the same substantive rules against which they measure the conduct. Disciplinary authorities should avoid proceeding against a lawyer based on two inconsistent rules. The choice of law issue is: which jurisdiction’s ethics rules should apply to a lawyer admitted in more than one jurisdiction?
- ) should apply the ethics rules of State
- The rationale for the extraterritorial application of ethics rules is easy to understand. The purpose of lawyer discipline is not to punish (although discipline may deprive the lawyer of her livelihood). Instead, its purpose is to seek to determine the fitness of the lawyer to continue in that capacity. Given this rationale, if the lawyer engages in improper conduct—even if she engages in that conduct while not acting as a lawyer (
- ). Choice of law problems are inevitable because there is no uniform rule governing ethics. Each jurisdiction adopts its own rules. Typically, the jurisdiction follows the ABA Model Rules with its own non-uniform provisions. The ABA Rules are, after all, only a model. If a lawyer practices in two jurisdictions, it is quite plausible that conduct
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- A lawyer cannot escape responsibility for ethical misconduct merely by claiming that she followed orders. The law of ethics has no “good soldier” defense for lawyers who clearly breach an ethical obligation.
- In recent years, attorneys have brought wrongful discharge suits against their clients or their law firms who have fired them, allegedly for refusing to engage in unethical activity. These lawyers sue even though they are employees at will. Typically, the plaintiff-lawyer asserts that the client or law firm fired them for not following the direction of a supervisory lawyer when that direction violated the ethics rules. Consequently, the discharged lawyers complain that the termination was wrongful.
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- The judge’s law clerk may, as we have seen, negotiate for employment with a party or attorney involved in a matter—even though the clerk is participating personally and substantially on that matter—so long as the clerk notifies the judge beforehand. The ethics rules treat law clerks seeking private employment differently than other former government lawyers. Rule 1.12(b).
- 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. The lawyer-third-party neutral should not suggest that he represents any participant. 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.
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Rule 1.18 Duties to Prospective Clients 4 results
- 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.
- 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.”
- , 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.”
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- Lawyer-neutrals may also be subject to various codes of ethics, depending on their precise role. The ABA and the American Arbitration Association (AAA) jointly prepared the
- 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.
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Index 7 results (showing 5 best matches)
Rule 7.5 Firm Names and Letterheads 1 result
- 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, “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. That Comment also says that the use of any geographic name (“Springfield Legal Clinic”) may require a disclaimer that it is not a public legal aid agency. The Comment does not explain why.
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Rule 7.3 Direct Contact with Prospective Clients 10 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.
- 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.”
- SOLICITATION AND LEGAL
- 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 (
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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.
- 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.
- 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 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.
- 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
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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
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Rule 4.2 Communication with a Person Represented by Counsel 8 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 nonparties (such as a witness) whom counsel represents in that particular matter. This extension of the requirement to all “persons” is quite consistent with the rationale of preventing counsel from overreaching.
- Prosecutors have tools of criminal investigation that go beyond the grand jury, and the exercise of these other tools has provoked controversy with the defense bar. Often, the prosecutor may wish to secure evidence from a suspect covertly (by wiring an undercover agent or informant) without seeking permission from the suspect’s counsel. Defense attorneys have argued that such investigative techniques violate various ethics rules, and that courts should enforce these rules by suppressing any evidence acquired by their violation. The U.S. Attorney General has disagreed and argued that prosecutors are authorized “by law” to make such contacts directly or through agents.
- Attorney General Janet Reno, continuing a policy of her predecessor, Richard Thornburg, emphasized that the Department of Justice “has long maintained, and continues to maintain, that it has authority to exempt its attorneys from the application of Model Rule 4.2 and their state counterparts.” 59 Fed. Register 39910, 39911 (Aug. 4, 1994). Attorney General Reno enacted detailed regulations outlining when federal prosecutors could initiate direct contact. State supreme courts and state disciplinary authorities do not take kindly to claims that the U.S. Attorney General has the power to exempt federal prosecutors from state rules of ethics.
- N.Y. Ethics Opinion 812 (May 3, 2007), 2007 WL 5025457
- The Attorney General’s periodic effort to override the ethics rules has not yet succeeded. The leading case is,
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Rule 1.4 Communication 1 result
- Sometimes when clients complain that the lawyer has “neglected” their case, they really mean that the lawyer has failed to communicate with them. If the lawyer had kept them informed, they would have known that there had been no neglect of their case. Nonetheless, when lawyers keep their clients in the dark and unaware, without good reason, they are also violating the ethics rule requiring lawyers to communicate with their clients. A common complaint to the disciplinary authorities is that the lawyer ignores the client’s request for information.
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Copyright Page 1 result
- 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.
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Rule 7.6 Political Contributions to Obtain Government Legal Engagements or Appointments by Judges 4 results
- “a government legal engagement or an appointment by a judge” after having made or solicited the prohibited contribution “for the purpose” of securing the legal engagement or appointment.
- 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.
- First, Rule 7.6 requires special intent: it only applies when 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.” Rule 7.6, Comment 5. This Rule forbids less than one might think.
- Fourth, Rule 7.6 only applies to cash contributions. Rule 7.3 defines “political contributions,” to exclude all nonmonetary political contributions, such as offering free legal advice on campaign finance laws. It forbids any “gift, subscription, loan, advance, or deposit of anything of value made directly or indirectly to” a candidate, judicial incumbent, etc. Comment 2 specifically announces (without any
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Rule 3.3 Candor Toward the Tribunal 8 results (showing 5 best matches)
- , Monroe Freedman, Understanding Lawyer’s Ethics (1990). Comment 7 to Rule 3.3 acknowledges that some jurisdictions require (in a criminal case) that the lawyer present the accused as a witness to give his testimony “as a narrative statement if the accused so desires, even if counsel knows the testimony or statement will be false.” If that is the court rule, the lawyer must follow the requirement of that jurisdiction. Otherwise, the lawyer must follow Rule 3.3.
- the ABA Ethics Committee issued
- DISCLOSURE OF ADVERSE LEGAL AUTHORITY: RULE 3.3(
- 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.
- Rule 3.3(c) makes clear that the lawyer’s duty to disclose adverse legal authority extends until the proceedings are concluded, “even if compliance requires disclosure of information otherwise protected by Rule 1.6.”
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- California’s ethics rules, like the ABA Model Rules, prohibit lawyers “from entering into agreements that ‘restrict’ their right to practice law after leaving a firm.” The “majority, contrary to the unambiguous language of the rule, holds that this rule does not bar law firms from entering into noncompetition agreements with their attorneys if such agreements are ‘reasonable.’ ” So, the California courts will enforce a restrictive covenant that the court’s own rules prohibit!
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Rule 8.4 Misconduct 7 results (showing 5 best matches)
- 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.
- 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.”
- It is misconduct to assist or induce another to violate a Disciplinary Rule. For example, a lawyer cannot solicit a prospective client in a hospital room in a face-to-face encounter in an effort to secure legal
- 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.
- litigant will not have secured an unfair advantage.” Hence, the information about the ghostwriting is “immaterial and need not be disclosed.” The lawyer is simply providing “unbundled” legal services, which Rule 1.2(c) authorizes.
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Rule 2.1 The Lawyer as Advisor 4 results
- 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 judgment as to what effects are morally just as well as legally permissible. The lawyer who couches her advice too narrowly ill serves her client. However, the client, not the lawyer, ultimately must
- 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.
- 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
- , 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.
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- 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
- 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.
- 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.
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Rule 3.6 Trial Publicity 1 result
- . The problem becomes more acute with the growth of electronic media. The issue is the extent to which the disciplinary rules may insulate a courtroom from the intrusion of outside prejudice caused by publicity surrounding the case. The primary ethics rule is Rule 3.6. It attempts to balance the right of free speech with the right to a fair trial.
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- 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 only explaining what his client’s view of the matter is.
- 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.
- may be giving legal advice (“sign here, if you want to enter into 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.
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Table of Cases 2 results
Rule 3.7 Lawyer as Witness 1 result
- 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.
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Rule 8.2 Judicial and Legal Officials 2 results
- 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 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 should allow inflamed opinions. Thus, Rule 8.2 would
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Rule 1.17 Sale of Law Practice 2 results
- Rule 1.17 imposes various restrictions. FIRST, 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.
- apply to the transfer of legal representation between lawyers when unrelated to the sale of a practice.
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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
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- Publication Date: April 11th, 2018
- ISBN: 9781640205970
- Subject: Professional Responsibility/Ethics
- Series: Nutshells
- Type: Overviews
- Description: Many law professors aim to probe deep ethical issues in class. But they also need to cover the material that the Multistate Professional Responsibility Examination requires. The Rotunda Nutshell fulfils that need as it digests the Model Rules in an engaging, analytical, and often critical way. In a surprisingly pithy manner, this book places the Rules in an historic context that lets the student understand problems with prior versions of the Rules, which led to the present version. The Nutshell also analyzes the American Law Institute's Restatement of the Law Governing Lawyers, Third. This approach frees up precious class time for important normative issues. And, this Nutshell helps your students come up with better answers to your Socratic questions than you anticipated. This book has proved so popular as an explanation of the basic principles of legal ethics that it has been translated into Japanese and used there to teach American legal ethics.
