Regulation of the legal profession

State’s Highest Court:

 Adopts ethical rules

 Enforces through disciplinary commission or bar association

How lawyers are admitted to the profession

Admission requirement:

 Must be rationally related to practice of law (graduation from law

school, etc)

Effect of criminal acts

 To result in rejection, misconduct must involve moral turpitude

(crimes involving intentional dishonesty, crimes of violence)

Misconduct

 A lawyer is subject to discipline for violating and for attempting to

violate the Rules of Professional Conduct. Also is subject to
discipline for helping or using someone to violate the rules
 Committing crimes relevant to:
 Honesty
 Trustworthiness
 Fitness
  Conduct prejudicial to administration of justice
 No harassment or discrimination in connection with law practice

Duty to report misconduct

 If you know that another lawyer has committed a violation of the

rules that raises a substantial question as to that lawyer’s honesty,
trustworthiness, or fitness to practice, you have got to report that
violation
 Reporting not mandatory if question raised was not substantial. Also,
if you are just suspecting, don’t have to
 You have to report a judge’s substantial violation of the Code

Exception to mandatory reporting

 Violation of duty of confidentiality

 Learned of violation in lawyers’ assistance program

Who discipline lawyers and who’s committed the conduct?

 Any state where lawyer is admitted may discipline a lawyer

regardless where the misconduct occurred
 Any state where services provided or offered may discipline lawyer
if you provided or even offered legal services there

Unauthorized practice of law

Practicing law without a license

 Activities that require the license:
  Appearing at judicial proceeding and depositions
 Drafting documents that has substantial effects
 Negotiating settlements
 Giving legal advice

 Activities that no require license:

 Interviewing people
 Filling in forms
 Preparing tax returns

Appearing pro se (represent yourself) is not unauthorized practice

Practicing law across jurisdictional boundaries

 Unless you don’t have a license there, you can practice law there or
even open an office
 Methods to out-of-state practice
 Associate with locally licensed attorney
 Special permission called pro hac vice (for this matter only). If
you reasonably belief that you will be admitted you can do
preliminary stuff like interview a witness, review documents,
etc.
 Mediation or arbitration
 Matter reasonably related to home state practice

 Two ways to permanent practice across jurisdictions:

 In-house counsel and government lawyer can engage in non-
litigation practice across state lines
  Some lawyers are licensed to practice in restricted branches of
law. They are authorized to practice in multi-state jurisdictions

Law firms and other associations

 Responsibilities of partners, managers, and supervisory lawyers in a

firm
 Duty to prevent ethical violations:
 Partners and managers have to reasonably ensure that
the firm has measures in place so that its lawyers will
follow the rules of professional conduct
 Supervisory lawyers have to make reasonable efforts to
ensure subordinates comply with RPC

 Vicarious responsibility:
 Ordered or ratified misconduct
 Failure to avoid or mitigate consequences of violation
(reasonable remedial action)

 Responsibilities of subordinates:
 Acting on order of another lawyer does not excuse
misconduct, unless action was a reasonable resolution of an
arguable question of professional duty (very technical
violations)

How lawyers and firms have to maintain their professional independence

 No partnership with non-lawyers if any partnership activities involve

practice of law
  No non-lawyer control or ownership interest in firm
 No fee splitting with non-lawyers. Exceptions:
 Death benefits to lawyer’s estate
 Funds to purchase practice from deceased, disabled, or
disappeared lawyer
 Bonus plans and regular salaries
 Court awarded legal fees to nonprofit organization that
employed, retained, or recommend the lawyer’s employment
in that matter

Agreements that restrict your right to practice law

 Law firm-related agreements can’t restrict right to practice when

relationship ends (except for retirement benefit agreements)
 Settlement agreements for clients cant’t restrict right to practice

Selling and buying a law practice

 Seller’s duties:
 Sell entire practice or entire area
 Written notice to all client that includes notice of:
 Sale is happening
 Right to obtain other counsel or take possession of files
 Consent to transfer file to buyer presumed after 90 days
 Once you sold your practice, you can’t keep engaging in
the private practice of law in that local area

 Buyer’s duties:
 Honor existing fee arrangements
Law related services

 Financial planning, accounting, etc

 Sometimes the rules also apply to those non-legal services:
 Not distinct from legal services (provide both sets of services
together)
 Lawyer owns or controls entity providing services. Lawyer
must take reasonable steps to ensure recipients understand:
 These are not legal services
 Protections of lawyer-client relationship don’t apply

Attorney-Client Relationship

Relationship Formation:

 Lawyer and client agree

 Implied assent and reasonable reliance (you have to decline the case
immediately).
 Court appointment

Different fees a lawyer can collect: (don’t necessary have to be money. E.g.
stocks, etc)
  Hourly fee
 Flat fee (set amount for a particular service)
 Contingency fee (fee will come of whatever your client recovers. It
has to be written)

Must communicate basis or rate of fee before or within reasonable

time of representation. Any change has to be communicated
Exception: Routine representation of regular client. (Time saber)

Fee amounts

 All fees must be legal and reasonable

 Factors considered include:
a) Time and labor required
b) Complexity
c) Nature of the relationship
d) Fixed or contingent fee (in contingent the fee can be higher)

How to collect your fees

 Any legal fees in advance it’s not your money until you do the work
 True retainer: reservation fee. Pays a fee to be sure you will represent
him when the time comes. To ensure you are available. This is your
money, does not have to be refunded if something happens
 Contingency fees: are allowed except in two kinds of cases:
a) Criminal cases
b) Domestic relation cases (if you are negotiating the alimony
amount for instance. Tricky: if you are not negotiating any
 amount related to domestic relation, like a third part of an
alimony, , there could be a contingency fee)

 Contingency fees have to be reasonable (if you know you are con to
settle in 3 hours, is not fair. Just charge your client hourly)
 How to make contingency fees:
a) Must be in writing and signed by the client, and must disclose
 Who is paying expenses
 How fee will be calculated (the percentage that the
lawyer will get if the case is settled, or if its won after
the trial, or if its won after the appeal)
 Which expenses will be deducted and when
b) Written statement at the end: When de case end, you got to
provide the client with a written statement that includes the
outcome, how much is going to the client, and how that
amount was calculated.

Fee splitting with other lawyers in your firm

 Current lawyers in your firm

 Retired members of your firm

Fee splitting with other lawyers from different firm

 Classic referral fees are not allowed (recommend another lawyer)

  To split, both lawyers need to stay involved or responsible, and they
client needs to agree it. The agreement must be confirmed in writing
 You can calculate the fee however you want, if both lawyers assume
joint responsibility
 The total fee has to be reasonable

Representation

 Client generally decides scope, but lawyer can limit (as long as it is
reasonable to do under the circumstances)
 Can’t advise or help to do something illegal of fraudulent
 Decision only in client’s power (Make the important substantive
decisions):
c) Civil cases:
 The client decides whether to settle
d) Criminal cases:
 What plea to enter (guilty, not guilty)
 Whether to waive jury trial
 Whether the client will testify
e) Any case:
 Whether to appeal

 Decisions lawyers make (strategic decisions):

f) Which court to sue, etc. But you have to consult your client
frequently because of the expenses. He or she has to be ok
with that.
When do our actions legally bind the client?

 If you had actual or apparent authority:

g) Actual authority: Communicated by client expressly or
implied
h) Apparent authority: Third party believes lawyer has authority
based on client’s action
i) Authority ends:
 when the client revokes it
 when you leave the case
 When the client dies
 You die
 Apparent authority ends when the third party has reason
to know any of that

 Client has diminished capacity (child, mental impairment)

a) Still have to maintain normal client-attorney relationship with
them
b) You can just take protective action, but not have the final
decision
c) You can consult their family for instance
d) In terms of confidentiality, you can just disclose what is
necessary to protect them

Required communication with client

 Case status updates

 Game plan
 Response to reasonable request for information
  Anything that requires informed consent
 Must promptly inform client of settlement and plea bargain offers,
unless client has expressly authorized acceptance or rejection of
certain offers

How the relationship ends:

 It ends when you complete the work

 When you are fired
 When you withdraw. Must decline or withdraw:
a) Physical or mental condition materially impairs ability to
represent client
b) Representation requires violation of Rules of Professional
Conduct
c) Fired by client
 Permissive withdraw:
a) Any reason if no material adverse effect
b) Client doing something criminal or fraudulent involving
lawyer’s services
c) Client used lawyer’s services to commit a crime or fraud
d) Client’s actions are repugnant
e) Client makes representation really difficult
f) Client has not paid and has been warned
g) Unreasonable burden on you
h) Other good causes to do so

 Sometimes you can’t only withdraw. If the law requires it, you have
to get the court’s permission
Issues when you leave the case

 When the client fires you, or you decide to withdraw. If you do

something wrong, court can say you lost the money. If you withdraw
for a good reason or fired without reasonable cause, you can have it
 You still have to protect client’s interest
 Giving them time to find a new attorney for instance
 Give back client files (sometimes you can maintain it to secure your
legal fees it it is ok by law in the jurisdiction. Otherwise, the file
needs to go back to the client)

Client confidentiality

 Client confidentiality has to be distinguished from the attorney-client

privilege
 The attorney-client privilege is an exclusionary rule of evidence law.
It prevents a court or other government tribunal from making you
disclose confidential communications with your client. The privilege
applies to communication only.
 Client confidentiality is an ethical duty:
a) Applies to all information relating to representation
b) Applies to disclosures in any setting
 c) If you don’t finally get hired, you have got to keep those
consultations private
 Attorney-client privilege covers communication with agents
(paralegals, assistants, etc)
 Privilege does not cover:
a) Communications not made for legal assistance
b) Pre-existing documents or records

When is communication confidential?

 The person making the communication has to reasonably believe that

it is going to remain private
 Attorney-client privilege belongs to the client, they decide whether
they want to claim or waive
 Waiver of privilege:
a) Attorney, agent, or client can waive privilege
b) Waived by failing to object in court
c) Waived by disclosing to third party

 Exceptions to privilege:
a) Aid in future crime or fraud (you can disclose your
conversation with them. Just apply to future.)
b) Attorney self-protection
c) Civil litigation between former joint clients
d) Competency or intend of deceased client
e) Work product in discoveries. The other party says that is the
only way to obtain it without undue hardship (except your
mental impressions or opinions, they are yours alone)
Ethical duty of confidentiality

 Provides that a lawyer must not reveal information relating to the

representation of the client. This includes prospective clients and
former clients
 Broader than attorney-client privilege
 Third party’s knowledge does not affect duty
 Information need not come from client
 You cannot disclose to anyone
 You can disclose confidential information if your client has given
you informed consent.
 May be implied if in client’s interest (things that serve the client’s
interests)
 The firm can have access as long they know to keep it confidential

Information may be disclosed to extent necessary if:

 Necessary to prevent death or substantial bodily harm

 Prevent financial injury to another if services used in furtherance of
the crime or fraud. You can disclose even past frauds if you are able
to prevent, mitigate, or rectify the financial injury. Only applies
where the client is using your services to do it.
 Defend yourself in dispute concerning own conduct.
 Obtain legal ethics advice
 Detect and resolve conflict of interest arising out of an organizational
change, or a change in employment.
 Comply with court order or other law
ALL THESE EXCEPTIONS ARE PERMISSIVE NOT MANDATORY!!!

Only cases you have to disclose confidential information

 Duty of candor to tribunal supersedes duty of confidentiality

 When you are representing an organization, sometimes you are
allowed to report serious corporate violations

Duty to safeguard confidential information

 Required to make reasonable efforts to prevent disclosure or access

Conflict of Interest

 A conflict if something that affects your duty of loyalty to your client

 Whenever it happens, you have to see wether you can proceed
despite the conflict
 Conflict are contagious: they are imputed to everybody in the firm

Exceptions to imputation

 Other lawyers in the firm can take the case if the conflict is uniquely
personal to the lawyer
 Conflict based on past work of lawyer can be cured by screening that
lawyer from the case
General conflicts with current client (concurred conflicts)

2 types:

a) Direct adversity conflicts

 You can’t represent a client if it will be directly adverse to

another current client:
1) Representing client on opposite sides of the same matter
2) Representing one client in a case and representing their
opponent in a different matter.
3) Cross-examining current client in another matter

b) Material limitation conflicts

 The representation will be materially limited by your

responsibilities to:
1) A different client
2) Former client
3) Third person
4) Lawyer’s personal interest
 Clients are entitled to your undivided attention
 Examples:
1) Multiple representation (representing co-parties in a
case):
 Must reasonably believe can represent all parties
well
 Must explain consequences
  Must get informed consent
 Must re-address conflict if potential conflict
becomes real
 Must withdraw if reasonable lawyer would advise
any client against consent
 Must get consent of dropped clients if continue to
represent co-parties
2) In one case you say the statute is constitutional, and in
other you are saying unconstitutional
3) Lawyer’s personal interest (if the client consents can
continue)
4) Representation may be limited by duties owed to former
client or third person

Specific conflicts with current clients

 Many of these conflicts can’t continue despite the reasonable belief

and the client consent
 You can’t use a client’s confidential information against him unless
gives informed consent (not need in writing)
 Transaction with client:
i. Transaction must be fair and reasonable to the client
ii. Lawyer must disclose all terms to client in writing and in a
way the client understands
iii. If the client doesn’t already have independent counsel in the
matter, you have to advise them in writing that they should get
the advice of independent counsel
iv. Client must give informed consent in a signed writing
 These rules don’t apply for regular bargains that the client
does in the market. This is because you don’t have any
advantage in that situation)

 No proprietary interest in cause of action or subject matter litigation:

i. A consent does not work here
ii. Applies only for litigation matters
iii. Exceptions:
 Reasonable contingent fees
 Lien on client’s recovery (if authorized by law)

 Gifts. A lawyer cannot:

i. Solicit substantial gift from client unless related
ii. Prepare instrument giving lawyer or relative substantial gift
unless donee related to client (if it is your mom for instance)

 Literary or media rights:

i. A lawyer cannot have interest in book, movie, or portrayal
during representation
ii. Can do it when the representation is complete

 Financial assistance to client:

i. No financial help to client in connection with pending or
contemplated litigation
ii. Cannot guarantee loan from someone else to client
iii. Exceptions:
 May advance court cost and expenses
 May pay court const and expenses for indigent client
  Aggregate Settlements:
i. You need to fully explain the claims and what everyone’s
getting
ii. Get informed consent from each client in a signed writing

 Third party if paying your client’s legal fees:

i. Client must give informed consent
ii. Third party cannot interfere with lawyer-client relationship
iii. Cannot reveal client’s confidential information

 Sexual relationship with clients

i. When you have had a pre-existing sexual relationship with
somebody (before coming a client of you), is Ok
ii. You can’t have sexual relationship that follows attorney-client
relationship
iii. In organizations, can’t have sexual relationship with anyone
iv. Is not imputed to the firm

Can’t represent a client if:

a) Representation directly adverse to another client

 b) Significant risk that representation will be materially limited by
some other loyalty or interest

You can get around them with the consent of the affected clients

Requirements for waiving conflict

 Reasonable belief can represent each client competently and

diligently
 Must get informed consent confirming in writing, from each client

Unwaivable:

 Being on opposite sides of same litigation

Former client conflicts

 Ongoing duty of confidentiality

i. Can’t use confidential information to former client’s
disadvantage without consent, unless information becomes
generally known

 Opposing former clients

ii. Cannot represent new client against former client if matter
same as or substantially related to former client’s matter,
unless former client consents.
iii. Substantially related:
 Same transaction or legal dispute
  Substantial risk confidential information would
materially advance new client’s position

 Screening lawyer with former client conflict

a) No sharing of fees
b) No access to case files
c) Notice to former client with disclosures about procedures
d) Updates to former client

 When client leaves, firm disqualified from representing other side on

substantially related matter if even one lawyer at firm has
confidential information about the case, unless former client consent.

Prospective client’s conflicts

 A prospective client is a person who consults with a lawyer about the

possibility of forming an attorney-client relationship
 What you learn about their case has to remain private
 You can’t use that information on a prospective client’s disadvantage
unless it becomes generally known.
 No adverse representation in same or substantially related matter if
confidential information would be significantly harmful to
prospective client, unless the prospective client consents. (This
conflict is imputed to others at your firm)

Conflicts cause because of government work

 Lawyer that moves from government work to private practice.

Cannot represent a client if:
  Same matter
 Lawyer worked personally and substantially on matter while
in government, unless the government agency consents

 Conflict imputed to firm but cured by screening (your colleges can

handle the matter if they walk you off)
 Can’t represent private client against one whose confidential
government information was acquired during employment

 Lawyer that moves from private practice to government work:

 Normal conflict rules

 Cannot take part in any matter personally and substantially
involved in while in private practice, unless the government
employer consents.

 Judicial role to private practice

 Cannot represent a client in matter lawyer was personally and
substantially involved in as a judicial actor or neutral, unless
all parties consent.
 Conflict imputed to firm but cured by:
 Screening
 Notice to all parties
 Notice to appropriate tribunal
Competence, legal malpractice, and other Civil Liability

 If you are not competence you shouldn’t be taking the case

 If you still want to work in that case you are not competent, you can
 A: Associate with someone competent
 L: Learn in time
 E: Emergency (in an emergency you can help someone out.
Only in the period of emergency)

 We as lawyers must act with reasonable diligence and promptness in

the work we do.
 Diligence also mean you should pursue client’s matters with zeal

Malpractice

 Legal malpractice is separate from the ethical process of lawyer

discipline (instead of facing the bar, you are facing the client as
plaintiff)
 Negligence:
 Duty of care: competence and diligence exercised by attorneys
in similar circumstances. Specialist held to higher standard.
 Breach of duty: missing deadlines, failure to send to a
specialist, bad advice
 Causation: but for malpractice client have won; but for
malpractice, client would not have had to pay a large
judgement
 Damages: loss cost of action, etc
 Duty of care owed to:
 Prospective clients given legal advice
 Those intended to benefit from legal services
 Those invited to rely on opinion or legal services

 Firm is vicariously liable for damages caused by someone at firm if:

 Action was in ordinary course of business
 Person was authorized to act

 Settling a malpractice claim. Before settling claim or potential claim

with current or former client, lawyer must:
 Advise in writing to obtain independent counsel
 Give them reasonable opportunity to do so

 Limiting malpractice liability in advance:

 Can’t limit your malpractice liability in advance
 Unless client in independently represented in making the
agreement itself
 In court the agreement might not be held, but the lawyer is not
going to be subject to discipline
Litigation and other forms of advocacy

Claims and contentions must be meritorious

Lawyer cannot (subject to discipline and sanction):

 Bring frivolous claim

 Assert frivolous defense
 Take frivolous position

Frivolous: no good faith argument under current law. No good faith

argument for changing law.

Exception:

 Represent criminal defendant or one who could be jailed. Can

make prosecutor prove every element of their case.

 Lawyer must make reasonable efforts to expedite litigation

consistent with client’s legitimate interests
 Financial benefit is son legitimate interest

Duty of candor

To tribunals:

 Honesty when advocating before an official or body that issues

binding legal judgment
  Tribunals: neutral official that issues a binding judgement (doesn’t
apply to mediation because is not binding)
 Duty of candor to tribunal supersedes duty of confidentiality (you
can tell the court what is going on. False evidence for example)

To law:

 Cannot knowingly make false statements of law

 Must correct unintentional, materially false statements
 Must disclose controlling law

To facts:

 Cannot knowingly make false statements of fact

 Must correct unintentional, materially false statements
 Does not apply to pleadings and other court documents
 No duty to say facts that harm our client’s case

False evidence

 Cannot offer any evidence lawyer knows to be false

 May refuse to offer evidence lawyer reasonably believes is false
(unless is criminal defendant)
 If presented a testimony and then you notice it was false, you have to
take remedial measures:
 Withdraw the evidence with client’s consent
  Strike false evidence or take steps to cancel its effect (duty
extends until time for appeal has expired
 If client dont want to, ask the court to get out of the case

False testimony by clients or criminal defendants. What to do:

ABA Aprroach
 You tell your client not to do it
 Consider making a motion to withdraw if the client is doing anyway
 If all that fails, tell the court what is going on
 Other states have a different approach:
 Narrative approach: testify in a narrative form (open-ended)
Duty of fairness to our opponents

 Dont hide evidence

 Tamper with evidence
 Dont falsify evidence
 You can only tell not to talk to the other party to you client or
client’s relatives or agent
 Generally you can pay expert witnesses expenses (specialists), but
not on a contingency fee base
 Can’t violate court rule or court order, but you can refuse to obey if
good faith assertion that rule or order is invalid

Fairness in trials

 Cannot allude to anything inadmissible

 Cannot assert personal knowledge of the facts of the case
  Can’t state your personal opinion about justness of cause, credibility
of witness, guilt or innocence of party. What you can do is
arguments based on evidence

Impartiality and decorum

 Cannot attempt to influence court or jurors in way prohibited by the

rules
 Cannot disrupt proceedings
 Cannot speak to judge or court officials without other side present
 Cannot talk to jurors about any subject during the case

Trial publicity

 No public statement if you should know likely to cause material

prejudice
 Things you can’t talk:
 Character or credibility
 Results of examinations
 Whether defendant will plead guilty
 Whether defendant confessed

 You can say anything that is on the public record (also applies to
colleges)
 You can make statement to protect client from prejudice cause by
another (only what is necessary)

When a lawyer can work in a trial and be witness in that trial

  Lawyer can’t act as advocate in case where lawyer likely is a
necessary witness
 Exceptions:
 When the testimony relates to uncontested matters or mere
formality
 Testimony pertains to legal services in current case
 Your disqualification would cause a substantial hardship to
client

Transactions and communications with persons other than clients

Truthfulness in statements to others

 Must not knowingly make false statement of material fact or law to

third person
 Can’t misrepresent anything important
 You have to disclose a material fact when it is necessary to avoid
helping the client commit a crime or fraud (only if it is allowed
under the confidentiality rules)

Communications with represented persons

 When you want to talk to the opposing party or any other person
who you already know has a lawyer in that same case, the general
rule is you can’t go around that lawyer. You gotta get their lawyer’s
consent to talk to them directly
  If there is an emergency, you can request permission to the court
 This rule applies even if the client’s opponent initiates the
conversation

Authorized communications

 Parties can communicate directly with each other

Talking to employees and other constituents of representative organizations

Need permission form organization’s counsel to talk to:

1) Anyone with authority to obligate organization

2) Anyone whose conduct can be imputed to organization
3) Anyone who supervises or regularly consults with organization’s
lawyer

Communicating with people who are unrepresented

 If someone is represented but you don’t know it, it counts as

unrepresented
 Lawyer can communicate with unrepresented person, but you must
not appear disinterested (you need to clear that you work for your
client, not him)
 Must not give unrepresented person legal advice if reasonably
possible their interests will conflict with client’s

Rights of third persons

  Cannot do something with no substantial purpose other that to
embarrass, delay, or burden somebody

What happens when someone sends you something by mistake

 When you receive document or electronically stored information and

you know that it was not meant for you, must promptly notify the
sender so sender can take protective measures

Different Roles of the Lawyer

Lawyers as advisors

 Be honest with someone who looks for some advice

 You are not limited to just legal advice (and you can charge them for
it)
 You can evaluate your client affairs, if doing so is compatible with
your other responsibilities to the client.
 If the evaluation poses no significant risk to the client, the lawyer is
implied authorized to give their evaluation directly to the third party
 If the evaluation is materially harmful to the client, you need the
client’s informed consent before disclosure

Lawyer as negotiator

 Don’t lie
  The lawyer doesn’t have to say volunteer harmful facts. The rule is
that no false statement of material fact in negotiations

Lawyer as third-party neutral

 Arbitrator or mediator
 Be sure any party thinks you are representing them (you are neutral)

Lawyer as prosecutor

Prosecutors must:

 Not prosecute without probable cause (good legal grounds to support

charges)
 Ensure accused is advised of a right to counsel
 Ensure accused given opportunity to get counsel
 Not attempt to get accused to waive important pretrial right
 Disclose evidence favorable to defendant
 Most promptly disclose any new, credible, and material evidence of
wrongful conviction
 Must try to remedy conviction in own jurisdiction if clear and
convincing evidence of innocence
 No public statements that heighten public condemnation of accused,
unless legitimate law enforcement purpose

In general

 Lawyers must disclose if appearing on behalf of client (but need not

identify client)
Lawyer representing an entity of other organization

 Duty of loyalty is to the organization, not to the people

 Representing both organization and person in an organization,
requires both parties to waive with informed consent
 If interests conflict, must tell person working for the organization:
 You don’t represent them
 Your communications aren’t covered by privilege
 Consider telling them to get independent counsel

 If counsel learns that someone in organization violated duty or law

that may cause substantial harm to organization:
 Counsel has duty to report inside organization
 If no action taken by the company, counsel may report to
outside party even if confidentiality applies (is discretional. If
you believe not reporting it will cause serious harm to the
organization)
 No authority to report outside if hired to investigate violation

Safekeeping funds and other property

 Apply only when you are holding property in connection with

representing a client
  It might be an advance payment of fees or settlement funds, or funds
for a real estate transaction

Safeguarding property of others

 Don’t commingle it with your own property (must keep it separate

from your own)
 If it is not money, you’re held to the standard of a fiduciary
(safeguard it)

Trust accounts

 Firm’s money is kept in office account

 Client money is kept in client trust account
 Exception: firm can put money in client account for bank charges
only (only the necessary amount)
 IOLTA account: it is a pooled trust account. Put a bunch of small
amounts of money from a bunch of clients in one account

Advance payments

 It still belongs to the client until you earn the money

 Until it happens, they go into the client trust account
 You can only withdraw what you earn

Lawyer must:

 Keep complete records of all money and property

 Preserve the records for 5 years after representation ends
  Comply if client requests accounting
 Promptly notify client when you receive any property in which client
has interest
 Notify creditor of recovery

Dispute between lawyer and client

 Suggest things that can resolve the problem quickly, like arbitration
 While the problem is solved, you must keep the disputed portion in
the client trust account (only disputed portion)

Dispute between client and third party

 Must keep disputed portion of recovery in trust account until the

dispute is resolved

Communications about legal services

 No false statements
 Don’t misled anybody
 The rule applies to all kind of communications (advertisements,
letterheads, etc)
 You can mislead by omitting facts, creating unjustified expectations
based on past results, making an unsustained claim or comparison
about your services or fees (if you can’t prove it, you are in trouble)

Advertisements
  Include information of at least one lawyer or law firm responsible
for the connect (name, contact information)

Lawyer in public office

 The firm can’t use lawyer’s name during any substantial period in
which the lawyer is not regularly and actively participating and
practicing with the firm (if the lawyer is elected to the US Senate,
the firm has to remove his name)
 A trade name is misleading if it implies a connection to any kind of
governmental agency or a charity.
 If you make the statement or implication that you are specialist in
certain field:
 Must be certified by organization accredited by ABA or
approved by state authority
 Must clearly identify the name of the certifying organization

Recommendations

 Lawyer cannot give or promise anything of value in return for a

recommendation (nominal gifts, gratuities are OK)
 The lawyer is allowed to enter into a reciprocal referral agreement
with another lawyer or with a non-lawyer professional (send clients
to each other). The agreement must not be exclusive and shouldn’t
be of indefinite duration. Each referred client must be told of the
agreement

Lawyer can pay

  Reasonable costs of advertising
 Usual charges of legal service plan
 Usual cost of participating in nonprofit referral service

Solicitation of clients

Solicitation is a communication initiated by or on behalf of lawyer (you do

it or your agent does it for you), directed to specific person know to need
legal services in particular matter

 Must not solicit employment by live person-to-person contact when

significant motive is money:
 No in-person contact
 No live telephone contact
 No real-time audio or video

 If you aren’t trying to get paid, it’s not prohibited

 Potential clients not covered by in-person solicitation ban:
 Relatives
 Close friends
 Person with prior business relationships
 Persons with prior professional relationships
 Other lawyers
 Routine business users of services

 Letters, text messages, emails, etc, falls form the in-person contact
Instances when all solicitation is banned

 When the person you’re soliciting has made it know to you that they
don’t want to be solicited by you
 Can’t solicit a person if it involves coercion, duress, or harassment
 Specific legal restrictions

Group and prepaid legal service plans

 Lawyer can reach out to organizations about adopting plan

 Lawyer cannot reach out to potential members: the plan can reach
out potential members if not know to need particular legal services in
a particular matter
 Lawyer who owns or directs the plan can’t provide legal services
through the plan

Lawyers’ duties to the public and legal system

Pro bono services

 Unpaid legal work for people who need it

 Legal system needs your help
 Lawyer must accept unless good cause not to, such as:
 Appointment would cause violation of law or RPC
 Appointment would be unreasonable financial burden on you
  Personally unable to represent client effectively
 Lack legal knowledge necessary for representation

Quick-Advice Programs

Is just a one-time thing, you need to make sure the client gets it.

Conflict of interests in these scenarios are soft.

Legal services organizations

 If you are a member, you have no client/attorney relationship with

the people the organization serves

Law reform activities

 Permitted even if reform will harm interests of client

 Must disclose to organization if client may benefit from reform

Political contributions

 Are banned the one to receive something in exchange (pay to play)

Judicial conduct

CJC applies to all who perform judicial functions at state level

Judge must uphold and promote judiciary’s:

 Independence
 Integrity
 Impartiality

Appearance of impropriety

 Conduct creates reasonable perception that judge has violated CJC

 Conduct that reflects poorly on judge’s honesty, impartiality,
temperament, or fitness

Letters of recommendation may be on official letterhead if:

 Reference is personal
 Not perceived as attempting to pressure

Judges must not

 Must not abuse prestige of office to advance personal interests or

permit others to abuse it
 Must not let outside interests influence conduct or judgement
 Must not allow impression that judge can be influenced
 Must not make comments that might affect cases’ outcome or
interfere with fair trial
 Judge may encourage settlements but must not coerce party to settle
 Must not independently investigate the facts in a case
Judge must hear and decide all matters assigned

 They have to take all cases unless disqualification is required

Judges have to avoid:

 Bias
 Prejudice
 Harassment

No Ex Parte Communication

 Communication between judge and representative from one side

when no representative from other side is present
 Except:
 When expressly authorized by law or court order
 In mediation or settlement, with consent of parties
 In an emergency if:
 Communication non-substantive
 Circumstances require communication with only one
party
 Judge still has to notify the other party
 Is OK if judge believes no one will get any sort of
advantage

Inadvertent receipt of Ex Parte Communication

  Judge must promptly notify parties and give opportunity to respond

Communication about current case

 Court personnel and other judges:

 May not discuss facts not on record

 Judge can get written advice from a legal expert:

 Advice must be in writing
 Expert must be disinterested
 Must notify parties in advance

Disqualification

Judge must disqualify self when impartiality might reasonably be

questioned

 Bias or personal knowledge

 Prior involvement in the case
 Judge or family members has economic interest in the case
 Family member is involved in proceeding
 Excessive contributions to judge’s election campaign
 Judge publicly made a statement

Parties can remit (waive) disqualification for all grounds except bias or
personal knowledge

Extrajudicial rules that apply to all judges

  Judges can: Teach, Write articles, Give speeches. Unless would
reasonably appear undermine independence, integrity, or impartiality
 Judge must publicly report amount or value of:
 Extrajudicial compensation
 Reimbursement
 Gifts, loans, bequests, and other things of value

 Judge may take part in activities sponsored by organizations

concerned with law or educational, religious, charitable, fraternal, or
civil nonprofits
 Judges cannot participate in extrajudicial activities that will:
 Lead to frequent disqualification
 Interfere with judicial duties
 Violate the CJC

 May not serve as officer, director, manager, general partner, advisor,

or employee of a business. Exceptions: managing own of family’s
investments
 Must not testify as character witness unless duly summoned
 Can be part of an organization that invidiously discriminates

Full time judges must not practice law unless:

 Appearing pro se on their own behalf

 Giving legal advice to family
 Drafting legal documents for family
Full-time judges may not act as arbitrator, mediator, or private judge unless
expressly authorized by law

Judicial candidates

 Applies the same rules

 Can speak on their own behalf, not a political organization
 May make factually accurate public response to false or misleading
statements

Judge running for a position

 Judge who becomes a candidate for a nonjudicial elective office

must resign from judicial office

Misconduct by lawyers or other lawyers

 If judge knows must report

 Judge receives information but is not certain, must make appropriate
action