Professional Responsibility OutlineSpring 2013 Prof. Iannarone

I. The Role of Lawyersa. 3 different types of lawyers:i. (1) Directive Lawyers1. Tell others what to do; inform clients of the lawii. (2) Instrumental Lawyers1. Client = master & lawyer = puppet; can create problems when lawyer merely does what client saysiii. (3) Collaborative Lawyers1. Middle ground between the 2; most often followed model b. Interested Parties i. Lawyers owe duties to (Preamble at [1]):1. Clientsa. Ex: quality representation; right to have a dependable lawyer; honoring deals; duties owed to clients2. The legal systema. Ex: Sanctity of K deals; nature of the adversarial system; respect for the right to counsel protecting an individuals right to representation3. Self (lawyer)a. Ex: reputation: making $; keeping/adding clients; own conscious & valuesii. Conflicts between these 3 interest do arise Preamble at [9]:1. Virtually all difficult ethical problems arise from conflict between a lawyers responsibilities to clients, to the legal system and to the lawyers own interest in remaining an ethical person while resolving such conflicts iii. Must always identify the 3 competing interests at play here & try to balance them 1. Use the rules to frame this balance

II. Regulation of the Professiona. Several source of law regulating professional responsibilityi. Lawyers must be licensed and admitted to practice1. Lawyers self-regulate through Bar Associationsa. Oversee admission to bar and discipline within the profession b. Bar Admission Requirements and Restrictions:i. Misconduct in the Application Process1. Rule 8.1 Bar Admission and Disciplinary Matters a. An applicant for admission to the bar may not (1) knowingly make a false statement of material fact or (2) fail to disclose a fact b. Comment [1] violation of this rule may be the basis of disciplinary action if the person is admitted i. Also explains that the rule requires a lawyer to correct any prior misstatement 2. In re do Bartolo illustrates that misrepresentations re: high school education, omitting number of residences & 200+ parking tickets is sufficient grounds for rejecting applicant as unfita. Court does say that applicant may reapply ii. Territorial Restrictions UPL1. Rule 5.5 Unauthorized Practice of Law; Multi-Jurisdictional Practice of Lawa. UPL rules prohibit practice of law expect by a duly licensed attorney > must be admitted to the bar in that state/locality b. Cannot give any legal advice when not licensed (incl. law students)c. UPL rules apply to non-lawyers trying to practice and lawyers who are not appropriately licensed in the relevant jurisdiction d. UPL laws apply to the where not the what i. Does not limit the content of advice given > can give advice in GA relating to NY law if licensed in GA e. Exceptions to UPL rules:i. (1) Pro hac vice attorney may be admitted on temporary basis to practice in specific jurisdiction for specific purpose1. Leis v. Flynt illustrates that granting pro hac vice status is solely within the discretion of the judge/court; no Constitutional protection of this right ii. (2) Katrina Laws disaster situations 2. Ranta v. McCarney -attny licensed in MN travels to ND to advise -client; dispute arises re: bill payment; seeks to avoid payment based upon fact that -attny was not licensed in ND thus was engaging in UPLa. Court defines practice of law = doing things that lawyers usually dob. Looks to public policy in finding for :i. Want to protect state citizens from non-licensed attorneys b/c:1. Make sure the attny has proper knowledge2. Keep track and regulate attnys to hold them accountable iii. Territorial Restrictions Multi-Jurisdictional Practice1. Rule 5.5(c) & (d):a. 5.5(c): Lawyers may practice in another US jurisdiction on a temporary basis if (1) legal services undertaken in association with attny who is admitted in the jurisdiction & who participates in the matter; (2) attny is authorized or reasonably expects to be authorized to appear in a proceeding in the jurisdiction; (3) same as 2, but applies in pending mediation/arbitration/ADR, (4) legal services arise out of or relate to attnys practice in jurisdiction where attny is admitted i. Comment [6] there is no single test to determine what services are temporary servicesb. 5.5(d): Permits licensed attny to provide legal services through an office or other C&S presence in the jurisdiction 2. Rittenhouse v. Delta Home Improvement - -attny, licensed in TX, moves to WI and is denied admission to WI/MI bars; -attny subsequently practices only in Bankruptcy Court in WI b/c he is admitted to federal bar; state argues -attny is engaging in UPL a. Key: lawyer must be admitted to practice before courts pursuant to the courts rulesb. Illustrates that each specific court has its own admittance requirements > even courts within the same state c. Because -attny was admitted under federal law, his practice was permissible d. JUR SPLIT not all courts agree that the federal admittance permits attny to practice in fed court within the state iv. Education, Knowledge, and Good Character1. Attnys must have graduated from law school and passed the jurisdictions bar exam to be admitted a. Must meet the character/bar fitness requirementsb. Must also pass MPRE (ethics test) and substantive law test 2. In re Lammers involving -attny who doesn't actually graduate from law school b/c he fails to complete a seminar paper; continues to practice law after passing bar exam from 19841991; Court upholds revoking s license and conditioning reinstatement on receipt of law degree & recompletion of OH bar exam a. Court focuses on s delay in taking remedial action & continued misrepresentation 3. Clark v. VA Bd of Bar Examiners finding that question on bar fitness questionnaire re: disclosure of applicants mental/emotional disorders violates -applicants rights under the ADAa. Court explains that some inquiry into mental health is appropriate, but question must be tailored so as to not have impact on students decisions to seek necessary treatment/help 4. Law Students Civil Rights Council, inc. v. Wadmond Supreme Court upholds requirement of NY character/fitness requirement that applicants to bar swear an oath of affirmatively support the Constitution of the United States and of the State of NYc. Scope of the Law Governing Lawyersi. Self-regulation of the Profession1. Preamble at [11] explains that we permit self-regulation to maintain independence from government and to avoid abuse of the profession ii. Sources of Regulation:1. Model Rules/State Rulesa. Model rules promulgated by the ABAb. Each state has adopted own Rule, most of which are based on the model rulesc. Violation of the rules can lead to discipline and might be malpractice, but that is not always the case b/c malpractice involves breach of duty of care 2. Inherent Court Authoritya. Chambers v. NASCO illustrates Court using inherent powers to discipline attny and client where client & attny did multiple bad acts to avoid fulfilling a contract for sale of radio station 3. Substantive Law a. Tort, Contract, Agency Law, Criminal, Antitrust, etc. 4. Procedural Rulesa. Local rules & rules specific to area of practice 5. Restrictions on Right to practicea. UPL, MJP, bar admission, etc. 6. Rest. of Law Governing Lawyers 7. Informala. Peer relations within legal community > need to protect reputation iii. Structure of the Rules:1. Preamble > narrative guidelines for what lawyers should doa. Aspirational in nature2. Scope > explains what it actually in the Rules3. Preamble + Scope > provide general orientation4. Rule 1.0 provides relevant definitions for terms used throughout the Rules 5. Only the text of the rules is authoritative (Scope at [21])a. Comments to the rules provide guidance for practicing in compliance with the Rules (Scope at [14])iv. Defenses and Sanctions1. Burden of proofa. When applicant is , then has the burden of proving requisite good character prior to bar admissionb. When dealing with -licensed attny, bar assoc. has the burden of proof2. Under ABA Standards for Imposing Lawyer Sanctions, factors to consider in determining sanction:a. (1) Duty violatedb. (2) Mental statec. (3) Actual/potential injuryd. (4) Aggravating/mitigating factors v. Obligation to Report Misconduct1. Rule 8.3 Reporting Professional Misconducta. Requires that an attny who has knowledge (as defined in Rule 1.0) that another attny has violated Rules that raises a substantial question as to that attnys honesty, trustworthiness or fitness as a lawyer in other respects, must inform Bar Assoc. b. NOTE: GA is not a mandatory reporting state 2. In re Himmel client comes to -attny seeking aid in getting $ owed from past attny resulting from a settlement where 1st attny had converted the clients funds; aids client in recovering $ through a settlement agreement with 1st attny, but does not disclose attny misconduct a. Court finds fault in s failure to disclose b/c of possible injury to other clients & to impending investigation

III. Lawyer Advertising & Solicitation of Clientsa. Goals of regulating:i. (1) Protection of clients1. Want to provide informationa. Not everyone knows how to find an attorney or get legal advice2. Prevent clients from being taken advantage ofii. (2) Protection of the profession1. Protect lawyers ability to practice a. Bring in new clients2. Protect the reputation of the professiona. Avoid ambulance chaser labeling iii. We want to balance these competing interestsb. Advertisements i. Rule 7.1 Communications Concerning a Lawyers Services1. Prohibits false or misleading communications about a lawyers services2. Communication = false/misleading if it:a. Contains a material misrepresentation of fact/law; orb. Omits a fact necessary to make the statement not misleading 3. Comment [2] truthful statements that are misleading are also prohibited a. Includes statement with omissions or statements that have a substantial likelihood to lead a reasonable person to make a specific conclusion about lawyer/lawyers services for which there is no factual foundation 4. When looking at ads/websites, view language from the perspective of the client ii. Rule 7.2 Advertising [Limitations on direct advertising]1. 7.2(a) may be in the form of writing, recording, or electronic mediaa. Incl.: Phonebook, TV, radio, billboard/bus/bench, Internet ads/webpages, Twitter/LinkedIn/Facebook, blogs, speaking engagements, trade shows2. 7.2(b) No $ to referrers except:a. Payment to create adsb. Fees for legal service plan or qualified lawyer referral servicec. Buying a law practiced. Refer clients to others, so long as arrangement is not exclusive and the client knows about the agreement3. 7.2(c) all ads must contain name & address of one lawyer responsible for the ada. Easy thing to tack on when discussing validity of ads iii. Rule 7.4 Communication of Fields of Practice & Specialization1. Specialization is okay & may be communicated 2. No statements of certification unless by approved organization & certifying body is also includediv. Rule 7.5 Firm Names & Letterheads1. No misleading names, but trade names are okay2. Permits using of the same name in different jurisdictions, but must note where lawyers are licensed3. Restriction on use of lawyers name when in public office > cannot use in name of law firm or in communications unless lawyer is actively involved or regularly practicing with the firm 4. Cannot imply a partnership where there is none c. Solicitation of Clientsi. Rule 7.3 Solicitation of Clients1. 7.3(a): No direct, interactive contact with potential clients unless:a. (1) They are a lawyer; b. (2) You are family, a close friend, or c. (3) Have previously worked professionally with themi. Note motive must be pecuniary gain (see cases below) 2. Cant solicit employment in any fashion if (1) the client tells you not to; or (2) the contact is coercive, under duress or harassinga. Viewed from perspective of client 3. Tangible materials must contain the phrase Advertising Material unless prospect is a lawyer or you know them4. Ads can be affiliated with a prepaid plan operated by someone else5. Comment [1] solicitation means targeted communication, directed to a specific person, offering to provide legal services ii. Why do we prohibit direct solicitation?1. Comment [2] To prevent abuse b/c client may not have ability to fully evaluate all possible options/alternatives with appropriate self-interest in the face of attnya. Situation is fraught with possibility of undue influence, intimidation & overreaching iii. Ohralik v. Ohio State Bar Assoc. attny learns of car wreck; solicits both driver & passenger in-person (one even at hospital); refuses to let girls out of binding K & forces clients to pay him proportions of their settlements/insurance $1. Court finds conduct violates Rules & rejects claim that attnys conduct protected by 1st and 14th Amendments a. Explains that in-person solicitation truthful advertising (protected by 1st Amendment) b/c in-person solicitation exerts pressure and demands an immediate response without opportunity for comparison or reflections iv. In re Primus distinguishable from Ohralik b/c situation involved attny solicitation aimed at protecting civil liberties of potential client [attny sends letter to subjects of sterilization to inform them that ACLU will provide free representation] 1. Court looks at the motive of the attny > not clients view 2. Finds that b/c attnys letter resulted from association with ACLU & desire to protect rights, discipline in this circumstance violated 1st and 14th amendments b/c the action represented political expression & association v. Florida Bar v. Went For It, Inc. Supreme Court finds FLs prohibition of personal injury attnys from sending targeted direct-mail solicitations to victims & relatives for 30 days following accident/disaster does not violate 1st and 14th Amendments 1. Illustrates Constitutional limits on regulation of commercial speech; Standard:a. (1) State must have substantial interest in regulating, b. (2) Regulation must materially & directly advance interest, & c. (3) Must be narrowly drawn to fit the interest 2. FL passed Rule in response to polls showing public opinion re: attnys & personal injury solicitation > Court finds this to be a substantial state interest

IV. Lawyers as Counselors a. Lawyers don't just give legal advice b. Rule 2.1 Advisor i. Lawyer must exercise independent professional judgment & give candid advice 1. Ex: Lawyer representing Catholic church being told to defend on basis that fetus is not a real person ii. Reflects idea that sometimes just using the law isnt the best course of actioniii. Lawyers must be able to apply the law, not just look it up c. Rule 2.3 Evaluation for use by Third-Personsi. Not really discussed, but idea is that lawyer may provide evaluations of a matter affecting a client for use by someone other than a client if the evaluation is compatible with representation of the client d. Rule 2.4 Lawyer Serving as Third Party Neutral i. Lawyers may be mediators, arbitrators & aid in other ADR proceedings ii. Must explain that lawyer is not representing either participant & explain role

V. Law Firms & Associations a. Working in a Law Firmi. Supervising lawyers 1. Rule 5.1 Responsibilities of Partners, Managers and Supervisory Lawyersa. 5.1(a) & (b): Requires supervisors to make reasonable efforts to provide measures to ensure that all attnys in the firm follow Rulesb. 5.1(c): supervisory lawyers may be responsible for subordinate attny violations if:i. (1) Lawyer orders or ratifies the conduct at issueii. (2) Lawyer could have fixed the error but didn't 2. In re Yacavino 1st year attny placed alone in remote office, falls behind on work & lies to clients/falsifies documents relating to progress of casesa. Illustration of what not to do > always be truthful to clientsb. Firm also disciplined due to lack of mechanisms for monitoring new associates c. Court says it is supervising attorneys responsibility to ensure that each lawyer in organization diligently carries out firms client contractsii. Lawyers as subordinates 1. Rule 5.2 Responsibilities of a Subordinate Lawyera. Still bound by Rules even when acting at direction of anotherb. Subordinate lawyers can rely on supervisors for resolution of arguable question of professional dutyi. Subordinate is liable for conduct that is clearly a violation ii. Comment [2] if question can be reasonably answered in only one way arguable, but if it involves a real basis for argument or interpretation, then arguable > MUST be legitimate 1. May defer to supervisors on close question & close questions only2. Daniels v. Alexander case involving TRO and custody dispute that begins in NJ and attnys now filing in CT; supervising attny lies to judge when subordinate attny clearly knows it is a lie re: reason for now filing in CT, not NJ; subordinate took no action to correct error & lied about it under oath > both attnys disciplineda. Key: subordinate attnys cannot sit by when supervisors do wrong i. Also, even an omission/failure to rectify an error may be disciplined as lie > does not matter than subordinate did not actually make the statement to the judge iii. Responsibilities for non-lawyers1. Rule 5.3 Responsibilities re: Non-Lawyer Assistancesa. Lawyers must ensure non-lawyers working with them exhibit conduct compatible with professional obligations of a lawyer or risk being on the hookb. Lawyer on the hook if he orders or ratifies misconduct or fails to take remedial action when he learns of the misconduct b. Professional Independencei. Rule 5.4 Professional Independence of a Lawyer1. Prohibits fee splitting with non-lawyersa. Does not include paying staff 2. Cannot practice law with non-lawyers or in partnership/corporation owned or directed by non-lawyers3. Non-lawyers who are not clients cannot tell lawyers what to doa. Goal of prohibition: Comment [1] to protect lawyers prof. independence of judgment4. Exception to this Rule: D.C.c. Other Limiting Situationsi. Rule 5.7 Responsibilities re: Law-Related Services 1. Key here: Rules of Prof Conduct still apply if the client might reasonably believe that the services being offered are legal services 2. Attny must clearly distinguish between law-related services and non-law related services 3. Law related services = services related to legal services but are not prohibited as UPL when performed by non-lawyers ii. Rule 5.6 Restrictions on Right to Practice 1. Lawyer shall not make or offer an agreement to restrict another attnys right to practice after termination of relationship unless benefits after retirement are concerned2. Also cannot condition rights to practice as part of any settlement 3. See also Rule 1.17 concerning sale of law practice

VI. Public Servicea. Pro Bonoi. Lawyers should undertake pro bono representations ii. Rule 6.1 Voluntary Pro Bono Publico Service1. Sets an aspirational goal of 50 hours of pro bono2. Pro bono includes: limited means clients, nonprofits devoted to individuals of limited means, reduced fee for social good, reduced fee to clients of limited means, activities for improving the legal system or profession3. Also provides for judges to provide pro bono by serving on bar committees & assisting in activities to improve/educate about the legal system 4. Can also give $ as a means of satisfying pro bono hours b. Appointments i. Rule 6.2 Accepting Appointments1. Attnys should accept appointments unless there is a good cause for rejectinga. Comment [2] Good cause = (1) violation of the Rules or law [i.e., conflict], (2) unreasonable financial burden, or (3) client/case so repugnant that attny cannot represent the client adequately 2. Goal here is to protect clients & ensure that the appointed lawyer can put adequate time/resources into the representation 3. Cannot plead not competent due to lack of subject matter expertise

VII. Fees & Handling Client $$$a. Rule 1.5 Feesi. 1.5(a) General Rule: Lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses 1. Best practices: a. Communicate everything with clientb. Get fee agreements in writingc. Be honest ii. 1.5(b) communicating the basis of the fee:1. Fee arrangement should be in writing2. Need to communicate rate of fees before or within a reasonable time after commencing representation 3. Note Comment [6] attny may require advance payment of a fee, but is obligated to return any unearned portion iii. 1.5(c) Contingency fees 1. MUST be in writing**2. Must state how fees are calculated & how deductions/expenses are handled**a. Client must sign agreement 3. Must also include a settlement statement**: after case is finished, must explain how much $ won, how much $ client will receive, and how much $ attny will get 4. NOTE Contingency fees are handled differently to protect both lawyers & clients (protect against the risks on both ends) a. Normal contingency fee is ~30% (often times are tiered > 30% of 1st million; 10% thereafter)5. No contingent fees in divorce or criminal cases [1.5(d)(1) & (2)]6. Policy behind 1.5(b) & (c): interest of transparency iv. 1.5(e) Sharing Fees 1. A division of a fee between lawyers who are not in the same firm may be made only if:a. The division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation;b. The client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing; andc. The total fee is reasonable.i. Overall, helps to ensure that client is protected from paying an attny for doing little to no work 2. Moran v. Harris Court upholds referral fee agreed upon by parties prior to beginning representation; Court explains that public policy does not preclude enforcement of the agreement a. Key: Court says that referral fees are not contrary to public policy, but the court does not encourage such fee splitting arrangements v. Key: fees must be reasonable 1. Want to avoid conflicts between clients & attorneys and to prevent problems before they arise 2. Reasonableness standard applies to ALL types of lawyers fees, incl. contingent fees vi. What is a reasonable fee?1. In re Kutner involving attny representing in criminal battery case; Court finds fee excessive and unconscionable where attny charged $5K and the case was dismissed early on without going to trial a. Illustrates need to evaluate reasonableness factors at the outset of representation to try and avoid conflicts 2. Rule 1.5(a)(1)(8) Reasonableness factors:a. (1) Time and labor required, the novelty and difficulty of the question involved and the skill requisite to perform the legal service properly; b. (2) Likelihood, if apparent to the client, that the acceptance of particular employment will preclude other employment by the lawyer;c. (3) Fee customarily charged in the locality for similar legal services;d. (4) Amount involved and the results obtained;e. (5) Time limitations imposed by the client or by the circumstances;f. (6) Nature and length of the professional relationship with the client;g. (7) Expertise, reputation, and ability of the lawyer or lawyers performing the services; andh. (8) Whether the fee is fixed or contingent3. In class hypos:a. Research question on topic you just briefed for another clienti. Discounted rate is okay, but want to remain consistent so as to be fair to your past client and future clients as well b. Billable hour bonus structurei. If falsely reporting time at end of year, attny is subject to sanctions under Rule 8.4s prohibition on misconduct c. Client wants to pay for travel; can you double up on time?i. Doing nothing is seemingly okay, but working on another case/billing on another project is not okay > bar says you cannot double bill the same hours ii. Need to look at who is getting what out of the timeiii. Often, will want to split a total amount of time between clients who are all benefitting (i.e., if attny goes to Court to wait on docket for 5 cases all in one day > split fees 5 ways)d. Attny cannot accept illegal drugs/profits for legal feesi. Lawyers must follow law tooii. You can be paid in trade, but must consider rule 1.8 and the payment, whatever it may be, must be reasonable b. Rule 1.15 Safekeeping Propertyi. Must keep client $ and lawyers $ separate1. Need trust account for client $ and operating account for lawyer $2. Must always give clients their funds immediately3. One of the easiest ways to get disbarred is by using clients $ for personal purposes or to pay other clients a. Only use client $ for allotted purpose b. See, e.g. In re Rosellini attny is disbarred for using $ from client trust account to pay personal debts/bills ii. When someone pays in advance, $ goes into trust; after attny does the work, then transfer $ info operating account iii. If being paid via retainer for general availability, $ goes directly into operating account (paid to lawyer directly)

VIII. Representing Clientsa. Beginning representation i. Rule 1.18 Duties to Prospective Client1. Prospective clients = anyone who consults with a lawyer about the possibility of forming an attny-client relationship 2. Attny owes a duty of confidentiality to prospective clients 3. Attny shall not represent a prospective client whose interests are materially adverse to another client in the same or substantially related manner 4. Attny must do certain things if he learns disqualifying info [see 1.18(d)]ii. Lawyers do NOT have to represent every client who solicits them [limited duty to accept appointments though]1. Considerations lawyers need to make:a. If client can payb. Any moral objections to case or clients characterc. Legitimacy of claim and nature of the case2. Deciding who to represent is where attnys have the most leewayiii. Togstad v. Vesely, Otto, Miller & Keefe Court upholds jury finding of attny negligence & award of damages to plaintiff based upon her belief that attny gave her a legal opinion that she and her husband did not have a med malpractice case; attny claims he told prospective client that there was nothing in her case file to suggest that his firm would be interested in taking on the case1. Illustrates need to be clear with all clients (current & prospective) 2. Key attny-client relationship formally begins when a client reasonably believes that the attny has undertaken to provide the client with legal services 3. For legal malpractice claim, must show:a. (1) Attny-client relationship existed b. (2) acted negligently or in breach of Kc. (3) Such acts were proximate cause of s injuriesd. (4) But for s acts, would have been successful in prosecuting claimiv. Engagement Letters: 1. Serve to notify client of any potential issues & to resolve any problems before representation begins; explains scope of relationship; reflects clients & attnys expectations; should explain all fee structuring; good place to notify client of any/all things required under the Rules b. When a lawyer represents a client, he is NOT endorsing the clients views i. Rule 1.2(b) representationdoes not constitute an endorsement of the clients political, economic, social or moral views 1. Comment [5] to Rule 1.2 Legal representation should not be denied to people with unpopular viewpoints or those who cannot pay > representation endorsement is a way to prevent these individuals from adequate legal aid c. Withdrawal (Firing a Client)i. Rule 1.16 Declining or Termination Representation 1. 1.16(a) attny MUST withdraw/decline representation if (1) representation will result in violation of Rules, (2) lawyers health impairs ability to represent client, or (3) lawyer is discharged 2. 1.16(b) optional withdrawal attny MAY withdraw if:a. (1) Withdrawal can be accomplished without material adverse effect on interests of client [MUST determine if prejudice will result]b. (2) Attny believes clients continued actions are criminal/fraudulentc. (3) Client has used attnys service to commit crime/fraudd. (4) Attny fundamentally disagrees with clients chosen course of action, or finds action to be repugnante. (5) Client fails to fulfill obligation to attny & has been given notice that attny will withdraw unless obligation is fulfilledf. (6) Representation will result in unreasonable financial burden on attnyg. (7) Other good cause exists 3. Comment [1] attny should not accept representation in a matter unless it can be performed competently, promptly, without improper conflict of interest and to completion (see Duties owed to Client below)ii. Maricopa County Public Defenders Office where 1. Identifies process and scope of information needed > Court explains that ordinarily a trial court should not require attny to disclose confidential information in order to determine whether attny has an ethical obligation to withdraw where attny has shown facts establishing a conflict of interest, compliance with firm/employers conflicts policy, understanding of applicable rules & cases, avowal that attny has an ethical conflict requiring withdrawal, and no reason for court to reject that avowal iii. Rosenberg v. Levin When attny is discharged by client without cause, court holds that attny is entitle to recover the reasonable value of his services, but recovery is limited to the maximum fee set forth in the K entered into for the representation 1. Comment [4] Client has the right to discharge attny at any time, with or without cause iv. Best practice for declining representation: 1. Be clear & put it in writing2. Consider possible outcomes & if something could end badly3. Be explicitly obvious [Taylor Swift Rule]4. NOTE re: statement on SOL > if you choose to give one when declining representation, you must be sure that youre correct [if wrong, can be malpractice]

IX. Duties Owed to Clients a. Rule 1.1 Competence i. A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.ii. Comment [1] To determine whether attny has requisite skill/knowledge, relevant factors = complexity & specialized nature of the matter; attnys general experience; attnys training/experience in the relevant field; attnys preparation & study of the matter; and whether attny can refer the matter/consult with attny of est. competence in the field iii. Cases & Hypos:1. Togstad attny there did not have basis/knowledge to make him qualified to say that client did not have a med mal case2. Can a recent grad handle a personal injury case?a. Yes, the Rule allows attny to teach himself how to handle a caseb. Comment [2] attny need not have special training or prior experience to handle legal problems; newly admitted attnys have skill & ability to evaluate precedent & EV and to draft legal docs 3. Even in situation where tax attny has 25 years of practice, attny still must have requisite knowledge to handle a real estate case > still must follows these rules4. Comment [8] attny should know the benefits and risks associated with relevant technology in order to maintain competence a. Includes social media 5. Where attny has huge caseload and has relevant concerns regarding having enough time to adequately prepare any additional cases > raises concerns under competence & diligence a. Comment [2] to Rule 1.3 Attnys workload must be controlled so that each matter can be handled competently6. Need to be careful in advertising experience & abilities when questionable advertisements/endorsements could cause issues under Rules 7.1 & 7.2b. Rule 1.2 Controli. Concerns the scope of representation and the allocation of authority between the client and the lawyer 1. Lawyers are fiduciaries > means that attny must stand in the shows of the client2. As a general rule: Client controls goals of representationa. Includes objectives and means through which they are achieved, whether to settleb. In criminal cases: plea, waiver of jury and testifyingc. Comment [1] client has ultimate authority to determine purposes of representation within limits imposed by law & attnys professional obligations 3. Lawyer may limit the scope of the representationa. Attny can also use special skills/knowledge to execute client goals 4. No assistance with fraud or crime, but can advise as to consequences and regarding scope of lawa. This does NOT mean recommending means by which crime/fraud might be committed with impunity > refers to attny presenting legal analysis of questionable conducti. Can ONLY advise on consequences b. Policy here: want to allow attny to provide client with info/legal implications that might prevent the client from breaking the law ii. Under Rule 1.2(a) attny MUST consult with client re: settlements and plea bargains1. In criminal case, must also discuss whether to waive jury trial & whether client will testify (see also Rule 1.4)iii. 1.2(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consentc. Rule 1.3 Diligence i. A lawyer shall act with reasonable diligence and promptness in representing a client1. Key concern: act promptly ii. Comment [1] attny must act zealously in representing clients & take whatever ethical measures required to vindicate clients issue/cause, but attny retains professional discretion in determining what actions to take 1. Although attny has discretion, attny must put clients interest first a. Discretion is limited by attnys fiduciary duties iii. Must manage work load [see Comment [2] explained above]iv. Dont procrastinate! > Comment [3]v. Must handle clients matter through to conclusion > Comment [4]d. Rule 1.4 Communicationi. Lawyers must communicate with their clients1. Need to always respond promptly 2. Must always communicate re: settlements & any type of plea bargain (see also rule 1.2)3. Comment [5] guiding principle here is that attny should fulfill reasonable client expectations for information consistent with duty to actin the clients best interests ii. This duty includes:1. Consult regarding means to achieve objectives2. Keep client informed of status3. Provide information promptly4. Discuss why a lawyer cant provide services if prohibitediii. Must provide full explanation so that the client understands and can decide how to proceed**1. Explain status of case and provide full update of case details so that client is able to understand what is going on and how best to act moving forward iv. Hypo: You and your best friend are both lawyers. You have always wanted to work together, and you finally have a case where you need outside help. Can you just call up your BFF and ask her to join you on the case?1. Brings together 1.1, 1.2 and 1.42. Rule 1.1, Comment [6] must get informed consent from client & reasonably believe the other attnys services will contribute to the competent representation of the clients interests 3. Rule 1.2, allocation of authority4. Rule 1.4, communication with cliente. Rule 1.6 Confidentialityi. Prohibits lawyer from disclosing any information relating to representation1. Information is protected indefinitely 2. This duty is owed to prospective, actual and former clients 3. When determining if something is protection info, consider the policy behind this Rule in protecting the relationship between an attny and his clienta. Want to foster and open dialogue & create mutual trust between attny & clientii. 1.6(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client1. Must take reasonable efforts to prevent disclosure of confidential infoiii. Distinguishable from Attny-Client Privilege: 1. Applies to matters communicated in confidence by the client to his attny, acting in his capacity as an attny, for the purpose of securing legal advice a. Exceptions: (1) crime-fraud, (2) waiver by client 2. On exam, note when both would apply iv. Examples:1. Clients name = confidential, but only may be privileged 2. Attnys communication to client detailing answer to whether client can return stolen propertya. Confidential and likely privileged if answer involves legal advice 3. Attnys discovery that divorce client has off-shore accountsa. Confidential, but not protected under attny-client privilegeb. Likely still protected under work product exception v. People v. Fentress where family friend contacts attny who lives out-of-town and tells him that he just killed someone and is about to take his own life; friend requests attny locate a rabbi; attny tells friend to call police; attny then calls his mother, also friend of the caller, to get her help in locating the rabbi; mother calls the friend, who tells her everything, and she then calls the police & man is arrested1. Court holds that s convo with attny = privileged because attny did give legal advice and was contacted by for the purpose of getting his advicea. BUT when agreed in decision to call the police > waived confidentiality regarding the body 2. s convo with the mother was NOT privilegeda. under no impression that mother was acting as an agent of the attny b. By making these disclosures to her and revealing what he told her son, waived privilege re: convo with son-attny i. When client, after consultation, reveals the contents of the consultation to a 3P, waiver is effectuated vi. People v. Meredith defense investigator removes wallet, incriminating EV from s trash can, attny then examines the wallet and turns it over to the police; issue: does the investigator have to reveal to the police where he found the wallet or is it protected by attny-client privilege 1. When the attny, or his agent, alters or removes the EV so that the police cannot make the same observation > attny is required to disclose his observations a. KEY: if attny prevents prosecution from finding the EV on their own, then must disclose observations/locations of the EV 2. Policy rationale here: fairnessa. Class example attny removing 1 out of 5 coins from river bank > fairness is still intact because the police could have located the other 4 coins on their own, so attny would likely not need to disclose details of where he got the coinvii. People v. Belge client tells attnys where a body is located; attny goes to confirm clients story and finds the body, but does not disturb or move it; attny is charged with violating public health laws pertaining to reporting death to authorities; attny claims he did not need to disclose the info re: the body b/c of attny-client privilege and confidential communication 1. Must balance interests of (1) protecting confidentiality and client interests with (2) fair administration of justice 2. Court finds attny was justified in not disclosing location of body b/c of confidentiality and privilege 3. Key: do not EVER have to disclose damning info UNLESS there is some substantive law that trumps viii. Exceptions to confidentiality 1. Client gives informed consent2. Disclosure is impliedly authorized to carry out representation 3. Permissive disclosures under 1.6(b):a. With ALL of these, attny can only disclose what is reasonably necessary to fit within the specific exception:i. (1) To prevent death/bodily harmii. Considerations when you suspect client fraud:1.61.134.1(b)1.2(d)1.163.3(b)(2) Prevent crime/fraud reasonably certain to result in substantial injury to finances or property (and client uses lawyers services)1. Focus on effects, not just that a crime will/has occurred iii. (3) Prevent/mitigate/rectify substantial injury to finances or property of anotheriv. (4) Lawyer securing legal advicev. (5) Defending against client or in criminal or civil case against attny1. Comment [10] do not have to wait for commencement of action/proceeding that charges complicity > attny may disclose confidential info directly to a 3P asserting attny liability in connection with client actionvi. (6) Comply with court ordervii. (7) Address conflicts if no compromising or prejudicing client b. Factors to consider re: permissive disclosures Comment [17]:i. Nature of relationship with clientii. Who might be injured by the conductiii. Attnys involvementiv. Extenuating circumstances v. Remember attnys role as an advisor c. Note even if you disclose something to proper authorities b/c of one of the above exceptions [bad act], attny-client privilege may still be in tact because privilege belongs to the client i. Also note Comment [15]ii. Always assess how serious a client is when he threatens to commit a crime ix. JUR SPLIT re: malpractice liability to 3P (example where client attacks his mother after clients mother tells you that client is dangerous) 1. Some states say yes; other, no re: duty to warn a. Only arises where interested party/potential victims do NOT know of potential harm or threat b. In case of mother, no duty because she knew of the harm (See also Rule 1.14)x. Example of client seeking reimbursement via suing other driver responsible for accident, but client had medical bills discharged in bankruptcy proceeding 1. Seemingly defrauding court2. Consider financial interests of the other driver [Rule 1.6(b)(2)]3. Consider underlying substantive law re: bankruptcy4. Consider responsibility to be candid with the court [Chapter 4 of Rules]f. Conflict-Free Representation Rules 1.71.10 i. In all cases, firms must monitor for conflicts and maintain and updated database for searching1. Use the database and memos throughout the firm to check for conflicts when new clients come in a. Must keep database updated with new clients/changes to existing clientsb. Need to include personal conflicts, concurrent and 3P personal conflicts, and former client conflicts

ii. Key Questions for evaluating COI [Comment [2] to Rule 1.7]:1. Who is the client?a. Current client?b. Former client?c. Prospective client?2. Is there a conflict, and what is its source?a. Rule implicatedi. Personal interest of attny?ii. Interest of 3p?iii. Multiple clients?b. Imputed conflicts [Rule 1.10]?3. Is the conflict consentable (can it be waived)? 4. Have you obtained informed consent to the conflict? iii. Rule 1.7 Concurrent Client Conflicts1. Informed consent is defined in Rule 1.0(e) as the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate info & explanation about the material risks of and reasonably available alternatives to a proposed course of conductKEY: attnys cannot take on new clients when (1) representation of that client will be directly adverse to another client OR (2) where there is a significant risk that representation will be materially limiteda. A potential conflict = an actual conflict for purposes of 1.7(a)(2) b. BUT these conflicts ARE waivable under 1.7(b)i. Lawyer may represent client IF1. Attny believes he can actually do the job2. Not prohibited by law3. Clients are NOT on the opposite side of the v in the same litigation or transactiona. NEVER waivable4. Each affected client gives informed consent in writing2. Types of conflicts between clients:a. Client v. Clientb. Positional conflictsi. Conflicting client positions = arguments made on behalf of clients that conflict 1. Think arguments across the v c. Multiple clients on the same sided. Aggregate settlements i. Concern over confidentiality between multiple clients because COI can easily ariseii. Think Driver & Rider hypoiv. Rule 1.8 Lawyer Personal Interests1. Personal interest conflicts include:a. Business transactions with clientsb. Using info re: representation to clients disadvantagec. Substantial giftsd. Literary right for representatione. Financial assistance to clientsf. Limiting liability and settling with clientsg. Proprietary interest in litigationh. Sex with clients 2. Prohibited actions:a. No business transactions unless requirements of (a) are meti. Client cannot be taken advantage of ii. All transactions must:1. Be fair and reasonable2. Have terms disclosed in writing, so that client can understand them3. Client is advised in writing to seek outside counsel4. Client gives informed consent b. No solicitation of gifts from client unless familyc. No negotiation of literary/media rights until after a case concludesi. Concerns attny over-dramatizing the case ii. Still must follow the rules on subsection (a) re: business transactions with clientd. No financial assistance to clients i. Except advancing court costs or paying court costs and expenses of litigation for indigent clients e. No one other than client pays attny fees unless (1) client gives informed consent, (2) no interference with lawyers judgment and attny-client relationship, and (3) info remains confidential i. Prohibits 3P interference f. No aggregate settlements/plea agreements unless informed consent in writing from all clientsg. No limitation/waiver on liability for malpractice unless client has own lawyer in agreementi. In GA > NEVER permitted h. No settlement of claim with client unless they are advised in writing that they should seek counseli. Want client to be properly advised i. No proprietary interest in litigation i. Except liens or contingencyii. Want client, not lawyer, to have interest in litigation j. No sex with clients unless prior relationship i. Meaning before becoming the clients lawyerii. This rule is NOT imputed to the entire firm k. Nearly all of these rules are imputed to an entire firm 3. To get informed consent, must:a. (1) Determine if you can disclose info before making any disclosures and attempting to get informed consent b. (2) Communicate all advantages & disadvantages of giving consentc. (3) Must get consent from all involved clientsd. (4) Must get it in writing e. NOTE clients who have given consent may revoke it AT ANY TIMEi. Must always be aware of this risk v. Rule 1.9 Duties owed to former clients1. 1.9(a) > Applies to lawyers, NOT firms a. KEY: substantial relationship test i. Lawyer cannot represent a person when the lawyer has represented a client in the same or a substantially related matter in which the persons interests are materially adverse to the former client 1. Compare the 2 situations > do not need to be identical, only substantially similar 2. Often applies in disqualification casesii. BUT this is waivable if you get informed consent in writing from the former client 2. 1.9(b) > applies where attny has worked in past firma. Lawyer cannot represent a person in the same or a substantially related matter if lawyers firm previously represented a clienti. With materially adverse interests, ANDii. Lawyer had access to confidential info or other info relating to the representation that could be used to the disadvantage of the former client 3. Oftentimes in these cases, new firm will put the infected attny in a Chinese wallvi. Intersects with Rule 1.18(b) > prohibits a lawyer from using disqualifying info 1. Attny cannot represent a prospective client if he learns disqualifying info, unless:a. (1) Lawyer gets informed consent from all affect partiesb. (2) Lawyer accessed only a limited subset of info and is timely screened from participating in the matter c. (3) Gives written notice to the prospective client 2. Disqualifying info = anything that can materially affect either client, including confidential info 3. NOTE > GA has no rule 1.18 vii. Rule 1.10 Imputed Disqualification1. Rule that says conflicts of an attorney will be imputed to a firm a. Lawyers in a firm CANNOT represent a client when any one of the attorneys in the firm could not individually represent the client because of Rules 1.7 OR 1.9 i. Note Rule 1.8 is self-imputing b. UNLESS the conflict is based on a personal interesti. Meaning a moral objectionc. OR if the conflict relates to a former client and the lawyers association with another firm and that lawyer is timely screened AND written notice is given to any affected former client AND certifications of compliance with these Rules and with the screening procedures are given to the former client periodically during the representation i. Concerned with the info that attny may have previously acquired at the former firm & client representation 1. Attny must be screened, gets no fee, must tell former client, and must disclose what firm did to screen this attny d. When lawyers move firms, their personal conflicts move with them i. When infected lawyer leaves a firm, the firm then has no continuing conflicts unless that lawyer revealed confidential/substantially related info to others at the firm 2. ANY disqualification under this rule is waivable g. Entity as a Clienti. Rule 1.13 1. 1.13(a) Corporation is the client & advice is given through its representatives2. 1.13(f) Attny must advise individuals in an organization of who the client is if the lawyer knows or reasonably should know that there may be a conflicta. Applies to ALL communications with corporate employees b. Upjohn Warnings:i. Attny must disclose (1) that attny is corporations attny, not the individuals, (2) nature of the communication, meaning why attny is talking to them, and (3) that the conversation is privileged, but that privilege belongs to the corp. NOT the individual c. Note Rule 1.0 definitions of knows and reasonably should knowi. Attny should not act based on conjecture or rumors3. KEY: if attny knows that someone within the organization is going to take action that will cause substantial injury to the corporation, the attny must (shall) proceed as reasonably necessary in the best interest of the organizationa. Attny must 1st proceed to higher authority inside organizationb. If highest up (CEO) refuses to take action, then attny MAY go outside the corporation c. In both settings, attny can ONLY reveal; what is reasonably necessary to prevent harm

X. Responsibilities to Third Parties a. Interacting with Non-client > Rules 4.1i. Rule 4.1 demands that lawyers be truthful in their statements to others1. Includes not making false statements of material fact or failing to disclose material facts when silence will assist in a frauda. What is material might be debatable b. See Comment [2] ii. Key: attny cannot flat out lie here1. Cannot say that client was not drinking if attny knows that he was, BUT can say you have no EV of my client drinking 2. EXCPETION: settlement negotiations a. We expect puffery here b. BUT cannot misrepresent insurance policy limits when such info is material and could impact negotiations b. Rule 4.2 Communication with Person Represented by Counseli. Always need to ask first if 3P is represented by counselii. Prohibits a lawyer from communicating about the subject of the representation with someone who is represented by another lawyer, without obtaining the consent of the other lawyer 1. Can be complicated with corporations because communicating with a constituent of an organization that is represented may be allowed (or may require consent of counsel) depending on the circumstances iii. Can we prohibit clients from talking to one another?1. Intersection of this rule and Rule 8.42. Under Comment [4] to 4.2 > NOa. The parties themselves may talk to each other b. If the attny prohibited clients from talking to each other, could be seen as violating the clients rights under 4.2 > thus constituting a violation under Rule 8.4(a)c. BUT attny can still advise them on what to/not to say i. You can ask clients (or corp. employees) not to discuss the matter, but you must follow the law so you cannot outright prohibit EEs from talking to anyone about a matter iv. What if the other side calls you > Comment [3] 1. Must make sure that they do not have any attny a. Must end the conversation if they do have an attny and get in touch with the attny v. With corporation entities, consider Comment [7] re: who qualifies as a represented party 1. Cannot keep mere fact witnesses away from the other side by claiming they are represented if all they did was witness an accident c. Rule 4.3 Dealing with Unrepresented Persons i. Again, ALWAYS first ask if they have an attorney of their own ii. Must make sure that they understand your role and interests 1. Who you are2. Who you represent3. Why you are talking to them iii. Do NOT give them legal advice (except to advise them to seek their own counsel) if the unrepresented person may have interests adverse to your client iv. Risks:1. Do not want the individuals to think that the attny represents their interests 2. Lawyer must be clear in explaining who he actually representsa. Upjohn warnings d. Rule 4.4 Respect for Rights of 3P i. Cannot embarrass, delay or burden 3P1. Does not mean that you cannot ask embarrassing questions2. Means that attny MUST have a legitimate purpose for doing any of these things ii. Cannot violate a 3Ps legal rightsiii. If a lawyer obtains documents or ESI that was inadvertently sent (aka, privileged or relating to representation of your client), notify sender immediately e. These rules seek to protect ______f. In most situations, first determine who is the represented partyi. Consider who you are trying to protect 1. Former employees > Neisig case (p. 371) ii. Then, determine what interests are at issue

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