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MPRE 2

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ADMISSION TO THE PRAC. OF LAW
False Statements: must not knowingly make a false statement of material fact. Failure to Disclose Info.: must not: (i) fail to disclose a fact necessary to correct a misapprehension known to have arisen in the matter, or (ii) fail to respond to a lawful demand for info.. These obligations do not apply to info. protected by the ethical duty of confidentiality.
Misconduct
: A L is subject to discipline not only for violating a disciplinary rule, but also for any of the following types of conduct: Attempting to violate a disciplinary rule; Assisting or inducing another person to violate a disciplinary rule; Engaging in criminal conduct that shows dishonesty, untrustworthiness, or unfitness to prac. law; Engaging in conduct that is prejudicial to the administration of justice; Stating or implying an ability to improperly influence a government agency or official or to achieve results by means that violate the law or legal ethics rules; or Knowingly assisting a judge in conduct that is illegal or that violates the Code of Judicial Conduct.
Duty to Report Professional Misconduct:
L subject to discipline for failing to report disciplinary violation committed by another L. ABA Model Rules limit that duty to disciplinary violations that raise a substantial quest. as to the other L’s honesty, trustworthiness, or fitness as a L. A L’s obligation to report disciplinary violations by judges is the same as that concerning violations by Ls. Duty to report does not apply to info. protected by the ethical duty of confidentiality or info. gained by a L or judge while serving as a member of an approved Ls’ assistance program designed to help Ls and judges w/ substance abuse problems..
Effect of Sanctions in Other Jxs
Under the majority view, sister states accept disciplinary action by one state as conclusive proof of a L’s misconduct, but are free to impose their own sanctions. However, each federal court makes an independent evaluation, accepting as competent evidence the L’s discipline by a state.
Permissible Types of Temporary Multi-Jx Prac.:
If L is admitted to prac. in one state, and is not disbarred or suspended from prac. in any state, she may provide legal services in a second state on a temporary basis in four situations: Association w/ Local L: L may prac. on a temporary basis in a state where she is not admitted if she associates a local L who participates in the matter. Special Permission to Prac. in Local Tribunal: If L wants to handle a matter in a jx in which she is not admitted, she may request special permission from that tribunal to appear “pro hac vice” (i.e., for purposes of this matter only). Mediation or Arbitration Arising Out of Prac. in Home State: L may engage in ADR (e.g., mediation or arbitration) in a state in which she is not admitted to prac. if her services arise out of her prac. in the state in which she is admitted. Other Prac. Arising Out of Prac. in Home State: L may temporarily prac. in a state in which she is not admitted if her out-of-state prac. is reasonably related to her home-state prac..
Permissible Types of Permanent Multi-Jxal Prac.:
L who is admitted in one jx, and is not disbarred or suspended from prac. in any jx, may open a law office and establish a prac. in a different jx only in 2 limited situations:if the L is a salaried employee of her only C (e.g., in-house corporate L) she may render legal services to her employer even though not admitted in the state (but to litigate in that state she must seek admission pro hac vice); and when the legal services are authorized by federal or local law.
“Prac. of Law”:
“Prac. of law” includes those activities: ) involving legal knowledge and skill, which constitute advice concerning binding legal rights, or ) traditionally performed by Ls (e.g. , settlement negotiations, drafting legal documents). It is not unauth. prac. for a nonL to appear before an agency that permits nonL professionals (e.g., accountants) to do so, or for a nonL to fill in the blanks on legal forms (e.g., real estate sales Ks). However, the giving of tax law advice by a nonL would probably constitute the unauth. prac. of law.
Consequences of Unauth. Prac
Non-Ls engaged in the unauth. prac. of law may be subject to injunction, contempt, and criminal prosecution. L who assists a nonL in unauth. prac. of law is subject to discipline.
Assisting a Suspended or Disbarred L
L who assists (e.g., hires) a suspended or disbarred L to do work that constitutes the prac. of law is subject to discipline.
CREATING THE L-C RELATIONSHIP
: L-C relationship arises when a person indicates an intent that the L provide legal services and the L agrees or fails to clearly inform the person that he does not wish to represent her, resulting in implied assent, or when a tribunal appoints a L to represent a C.
Court Appointments
Ls have an ethical obligation to help make legal service available to all who need it by accepting a fair share of unpopular matters and unpopular or indigent Cs. L must not seek to avoid court appointments to represent Cs except for good cause. Examples of good cause: (i) to represent the C would require the L to violate a law or disciplinary rule, (ii) representing the C would impose an unreas. financial burden on the L, or (iii) the L’s personal feelings would prevent her from representing the C effectively,
Duty to Reject Certain Cases
: L must refuse employment when: The C’s motive is to harass or maliciously injure a person; The case presents a factually or legally frivolous position (but a good faith argument that the facts are as claimed or that the law should be changed is permissible); The L is incompetent (or too busy) to handle the matter; The L’s strong personal feelings may impair his ability of effective representation; or The L’s mental or physical condition would materially impair the representation.
Duties Owed to Prospective C
: If no L-C relationship ensues from a discussion w/ a prospective C, the L must: protect the person’s confidential info., including declining representation of others in the same or a related matter; protect the prospective C’s property; and use reas. care in giving the person any legal advice, e.g., whether the claim has merit.
Discipline for Unreasonable Fees
court will not enforce a K for an unreasonably high fee or an unreasonably high amount for expenses, and the L is subject to discipline for trying to exact such a fee or expenses.
Items that L can & can't bill to a C
The attorney must disclose basis for charges and may not charge C for ordinary overhead expenses. The attorney may charge the C the actual cost of special services (e.g., computer research, secretarial overtime). Alternatively, the attorney may charge a reas. amount agreed to in advance.
Property for Services
: L may accept property in return for services, provided this does not involve a proprietary interest in the cause of action or subject of litigation, but such an arrangement is subject to scrutiny to make sure the L does not take advantage of the C.
Contingent Fees
Generally Prohibited in Criminal and Domestic Relations Cases; contingent fee must be reas. in amount and must not be used if the facts of the case make it unreas. to do so. ; and contingent fee agreement is req’d to be in a writing signed by the C. The writing must spell out how the fee is to be calculated, what litigation and other expenses are to be deducted from the recovery, whether deductions for expenses will be made before or after the fee is calculated, and what expenses the C must pay.
Fee Splitting w/ Other Ls
Ls W/in a Firm; separation or retirement agreement; Certain Splits w/ Ls Outside Firm if writing, reasonable, and proporitonal or if each L assumes joint responsibility.
Forwarding or Referral Fees
When one L simply refers a case to a second L and the first L neither works on the case nor assumes responsibility for the case, the second L must not pay the first L a forwarding or referral fee. A L may, however, set up a reciprocal referral arrangement in which the L agrees to refer Cs to another L or nonL, provided the Cs referred are informed of the arrangement.
Decisions to Be Made by C
L must abide by a C’s decisions affecting the C’s substantial legal rights, including: Whether to accept a settlement offer; What plea to enter in a criminal case; Whether to waive a jury trial in a criminal case; Whether the C will testify in a criminal case; and Whether to appeal
L may limit the scope of the representation
provided the limitation is reas. under the circumstances and the C gives informed consent. Reas. circumstances include: (i) when disagreements exist b/w the L and C about the means to be used to reach the C’s objectives, (ii) when the C insists on the L’s assistance in violating a law or legal ethics rule, and (iii) when a L discovers that a C has begun an illegal course of action and the conduct is continuing.
C Fires Attorney
C can fire the attorney at any time, w/ or w/out cause. The C is then liable to the attorney in quantum meruit for the reas. value of the work done. If the attorney and C had a K for a flat fee or maximum fee, the attorney cannot recover more than the amount Ked for. If the attorney and C had a contingent fee agreement, the attorney’s quantum meruit claim does not arise until the contingency comes to pass (typically until the C gets a favorable judgment or settlement).
Mandatory W/drawal
An attorney must w/draw from representation in two situations: (i) the attorney’s mental or physical condition would make it unreas. for him to continue representing the C; or (ii) continued representation would require the attorney to violate a law or disciplinary rule.
Permissive W/drawal
An attorney may w/draw from representation for any reason if w/drawal does not have a material adverse effect on the C’s interest or the C consents. An attorney may w/draw despite an adverse impact when the circumstances are so severe as to justify harm to the C’s interests and: The C persists in criminal or fraudulent conduct (if the conduct requires the attorney’s assistance, the attorney must w/draw). ; The C has used the attorney’s services to commit a past crime or fraud.; The C’s objective is repugnant or against the L’s beliefs.; The C breaks his promise to the attorney.; The representation imposes an unreas. financial burden on the attorney.; The C will not cooperate in the representation. ; Other good cause for w/drawal exists.
Emergency Situations
A L who is not competent in the field may assist a C in an emergency, but the assistance should not exceed what is reasonably necessary to meet the emergency.
Theories of Malprac. Liability
The plaintiff in a legal malprac. action has a choice of legal theories, including: (i) intentional tort (such as fraud, misrepresentation, malicious prosecution, abuse of process, or misuse of funds); (ii) breach of fiduciary duties (these duties include loyalty, confidentiality, and honest dealing); (iii) breach of K (either an express K or an implied promise by the L to use ordinary skill and care); and (iv) simple negligence, the most common theory in legal malprac. actions.
Duty of Due Care
An attorney owes a duty of due care not only to her C , but also to any third party who is intended to benefit from the legal services she renders to her C. The standard of care for an attorney is the competence and diligence normally exercised by attorneys in similar circumstances. If an attorney represents to a C that she has greater competence or will exercise greater diligence than that normally demonstrated by attorneys undertaking similar matters, she is held to that higher standard.
Breach of Duty of Due Care
An attorney is not liable for “mere errors of judgment” as long as the judgment was well-informed and reasonably made. An attorney is expected to do reasonably competent legal research; if the answer to a legal quest. could have been found by using standard research techniques, the attorney’s failure to find it is a breach of the duty of due care. Furthermore, if a reasonably prudent attorney would have referred a difficult matter to a legal specialist, a general practitioner’s failure to do so can be a breach of the duty of due care.
Legal Causation
A malprac. plaintiff must prove that the injury would not have happened but for the defendant’s negligence, and that it is fair under the circumstances to hold the defendant liable for unexpected injuries or for expected injuries that happen in unexpected ways.
Damages
A malprac. plaintiff must prove damages. The plaintiff can recover for direct losses and indirect but foreseeable losses.
Liability for Negligence of Others
An attorney can be held liable for injuries caused by a negligent legal secretary, law clerk, or other person acting w/in the scope of his employment (respondeat superior). Each partner in a law firm is liable for the negligence of other partners committed in the ordinary course of partnership business.
Attorney-C privilege
The attorney-C privilege prohibits a court or other governmental tribunal from compelling disclosure of confidential communications b/w an attorney and a C, or their respective agents, if the communication concerns the professional relationship.
Corporate Cs
When the C is a corporation, the privilege covers communications b/w the L and a high-ranking corporate official. It also covers communications b/w the L and another corporate employee if three conditions are met: (i) the employee communicates w/ the L at the direction of the employee’s supervisor; (ii) the employee knows that the purpose of the communication is to obtain legal advice for the corporation; and (iii) the communication concerns a subject w/in the scope of the employee’s duties to act for the corporation.
Preexisting Documents and Things
A preexisting document or thing does not become privileged simply by turning it over to an attorney; if it would be discoverable in the C’s hands, it is equally discoverable in the attorney’s hands. If an attorney comes into possession of the fruits of a crime, or an instrument used to commit a crime, the attorney may keep it long enough to obtain info. needed to represent the C, but the attorney must then turn it over to the proper authorities.
“Confidential” Defined
To be a protected “confidential” communication, the communication must have been made by a means not intended to disclose the communicated info. to outsiders. Confidentiality is not destroyed by the presence of a third party who is present to aid the attorney-C relationship, and an eavesdropper can be prevented from testifying about a privileged communication. However, the presence of a third party who is not present to further the attorney-C relationship destroys the privilege.
C Holds Privilege
The C (not the attorney) is the one who can claim or waive the privilege. Waiver will occur when there is a failure to claim the privilege when there is a chance to do so or when there is an intentional revelation of a significant part of the privileged communication. If the C has not waived the privilege, and if someone tries to obtain privileged info. when the C is not present, the attorney must claim the privilege on the C’s behalf.
ETHICAL DUTY OF CONFIDENTIALITY AND ITS EXCEPTIONS
"The ethical duty of confidentiality applies in every context in which the attorney-C privilege does not apply, and the ethical duty covers a broader range of info.. The exceptions to the ethical duty are as follows: 1. C’s Informed :
Consequences of a Conflict of Interest
If a conflict of interest is apparent before a L takes on a C’s matter, the L must not take it on. If a conflict becomes apparent after the L has taken on the C’s matter, the L must w/draw. A L’s failure to handle a conflict properly can have the following consequences: (i) disqualification as counsel in a litigated matter, (ii) professional discipline, and (iii) civil liability for legal malprac..
Imputed Conflicts of Interest
Generally, Ls who prac. together in a “firm” are treated as a single unit for conflict of interest purposes—i.e., when one L cannot handle a matter because of a conflict, the conflict is said to be “imputed” from the first L to the other Ls in the “firm.” Whether a group of Ls constitutes a “firm” depends on many factors, including whether: (i) they have a formal agreement, (ii) they hold themselves out as if they prac. as a firm, (iii) they share their revenues and responsibilities, (iv) they have physical access to each other’s C files, (v) they routinely talk among themselves about the matters they are handling, and (vi) the purpose of the particular conflict rule would be served by imputing one L’s conflict to other Ls in the group.
Concurrent Conflicts of Interest
A L must not represent a C if: (i) the representation of one C will be directly adverse to another C; or (ii) there is a significant risk that the representation of one C will be materially limited by the L’s own interest or by the L’s responsibilities to another C, a former C, or a third person.
Informed, Written Consent Can Solve Some Conflicts
Despite a concurrent conflict of interest, a L may represent a C if: (i) the L reasonably believes that he can competently and diligently represent each affected C; (ii) the representation is not prohibited by law; (iii) the representation does not involve the assertion of a claim by one C against another C represented by the L in the same litigation (or other proceeding before a tribunal); and (iv) each affected C gives informed, written consent.
Revocation of Consent
The C can almost always revoke a previously given consent to a conflict of interest.
Specific Conflict Situations Concerning “Material Limitation”
L must not represent a C if the representation of that C may be materially limited by the L’s own interests or by the L’s responsibilities to another C, a former C, or a third person, unless each affected C gives informed, written consent. The discussion in a. through h., below, provides specific illustrations of this rule. a. Representing Co-Parties in Criminal Litigation: Because the interests of criminal co-defendants are likely to diverge, a L should not try to defend two people in a criminal case. b. Representing Co-Parties in Civil Litigation: In civil litigation, a L may represent two plaintiffs or two defendants whose interests are potentially in conflict if: (i) the L concludes that she can effectively represent both Cs, and (ii) the L obtains the informed, written consent of both Cs. c. Representing Two Cs w/ Inconsistent Legal Positions in Two Unrelated Cases: Absent informed, written consent from both Cs, a L must not represent two Cs in separate, unrelated matters when they have inconsistent legal positions if there is a substantial risk that the representation of one C will be materially limited by the L’s responsibilities to the other C. d. Unnamed Members of a Class Do Not Count as Cs: In class action litigation, the unnamed members of a class ordinarily are not regarded as Cs for conflict of interest purposes. e. Representing Multiple Cs in Nonlitigation Matters: In a nonlitigation context, conflicts of interest are often hard to assess. In determining whether a conflict exists, relevant factors to consider include the length and intimacy of the L’s relationship w/ one or more of the Cs, the functions the L will perform, and the likelihood and possible effect of an actual conflict b/w the Cs’ interests. f. Handling Conflicts in Nonlitigation Matters In nonlitigation matters, a L may represent two Cs whose interests are potentially in conflict if: (i) the L concludes that she can effectively represent both Cs, and (ii) the L obtains the informed, written consent of both Cs. g. Confidentiality and Privilege Problems In litigation b/w two former joint Cs of a single L, neither C can claim the attorney-C privilege; therefore, before undertaking multiple representation, the L should explain that whatever one C discloses will be shared w/ the other C. h. Conflicts Caused by L’s Own Interests A conflict of interest may be created by a L’s own financial interest or by his relationship w/ another L or C. If a L’s own interests are likely to materially limit his ability to represent a C effectively, he must not take on the matter unless he obtains the C’s informed, written consent.
Business Transactions w/ C and Money or Property Interests Adverse to C
A L must not enter into a business transaction w/ a C or knowingly acquire an ownership, possessory, security, or money interest that is adverse to a C unless all of the following conditions are satisfied: (i) The terms of the business transaction (or the terms on which the interest is acquired) are fair to the C; (ii) The terms are fully disclosed to the C in writing, expressed in a manner that the C can reasonably understand; (iii) The C is advised in writing that he should get the advice of an independent L about the arrangement before entering into it; and (iv) The C gives informed consent, in writing that the C signs.
Soliciting Substantial Gift
A L is prohibited from soliciting a substantial gift from a C who is not the L’s relative. A L may, however, accept a small gift from a C, such as a token of appreciation or an appropriate holiday gift. A L also may accept a substantial gift from a C, although the gift may be voidable for undue influence.
Preparing Legal Instrument that Creates Substantial Gift
A L must not prepare a legal instrument in which the C gives the L or his relatives a substantial gift, except when the C is a relative.
Lucrative Appointments
A L is not prohibited from seeking to have himself or his law partner or associate named as executor of an estate or counsel to the executor or to some other fee-paying position. However, the general conflict of interest principles do prohibit such efforts if the L’s advice is tainted by the L’s self-interest.
Acquiring Literary or Media Rights Concerning a C’s Case
A L must not acquire literary or media rights to a story based in substantial part on the L’s representation of a C. However, a L may acquire such rights after the C’s legal matter is entirely completed, including appeals.
Advancing Litigation Expenses
A L may advance court costs and other litigation expenses on the C’s behalf, and repayment may be contingent on the outcome of the case.
Aggregate Settlement Agreements
A L who represents several co-parties in a matter must not participate in the making of an aggregate settlement agreement unless: (i) the Cs come to an agreement about how the aggregate sum will be shared; (ii) the L discloses all terms of the sharing agreement to each C and discloses the existence and nature of all claims that will be settled; and (iii) each C gives informed, written consent.
Settling Malprac. Claims
A L may settle a malprac. claim or potential claim made by his C, but only if the L first advises the C in writing to seek the advice of an independent L about the settlement.
Proprietary Interest in Subject of Litigation
A L must not acquire a proprietary interest in the C’s cause of action or the subject matter of the litigation. Contingent fees and attorney’s liens are exceptions to this rule, even though each gives the L a type of interest in the subject of the litigation.
Compensation from Third Person
A L must not accept compensation from a third person for representing a C unless: (i) the C gives informed, written consent, (ii) the third person does not interfere w/ the L’s judgment in representing the C, and (iii) the arrangement does not compromise the C’s confidential info..
Conflicts B/w C’s Interest and Third Person’s Interest
When the interest of a third person creates a substantial risk of materially limiting the L’s ability to represent the C effectively, the L may represent the C if: (i) the L reasonably believes that the third person’s interest will not adversely affect the representation, and (ii) the C gives informed, written consent.
DUTIES TO FORMER CS
"1. Continuing Duty of Confidentiality 2. Must not Oppose Former C if related to Confidential Info. unless the former C gives informed, written consent 3. Must not use Confidential Info. to Former C’s Disadvantage w/o informed wrtten consent of the former C. 4.Opposing Former C in Substantially Related Matter:
Disqualification of L’s New Firm
When a L switches from Firm A and joins Firm B, Firm B must not knowingly represent a person in the same or a substantially related matter in which the switching L, or Firm A, had previously represented a C whose interests are materially adverse to that person and about whom the switching L has acquired confidential info. material to the matter, unless the former C gives informed, written consent.
Disqualification of L’s Former Firm
When a L switches from Firm A and joins Firm B, Firm A is not prohibited thereafter from representing a person w/ interests materially adverse to those of a C formerly represented by the switching L, unless: (i) the matter is the same or substantially related to that in which the switching L represented the C, and (ii) any L remaining in Firm A has confidential info. relating to the matter.
Federal and State Conflict of Interest Laws
Ls who move b/w government and private jobs must comply not only w/ the legal ethics rules, but also w/ various state and federal conflict of interest statutes and regulations.
Private Work Following Government Work on Same Matter
A L who leaves government service and enters private prac. must not represent a private C in a matter in which the L participated personally and substantially while in government service, unless the government agency gives informed, written consent. “Matter” means a specific dispute involving specific facts and parties. “ Personally and substantially” means that the L worked on the matter herself and that her work was more than trifling.Imputed Disqualification: If a L is disqualified by the above rule, the other Ls in her firm are also disqualified unless: 1) The former government L is timely screened off from the case; 2) The former government L is not apportioned a part of the fee earned in the case; and 3) Written notice is given to the government agency to enable it to make sure that the above conditions are met.
Current Government Service After Private Prac.
a. Ordinary Conflict Rules Apply:The ordinary conflict rules regarding current and former Cs apply to a L who enters government service after private prac. (or other nongovernmental work). b. “Personal and Substantial” Rule Also Applies:If a L worked “personally and substantially” on a “matter” in private prac. (or other nongovernmental employment), the L must not work on that same matter when she later enters government service, whether or not the later work would be adverse to a former C. However, informed, written consent can solve the conflict. c. Negotiating for Private Employment: When a person in government service is currently working personally and substantially on a matter, she must not negotiate for private employment w/ any party or L who is involved in that matter. There is an exception to this rule for law clerks (see H.3., below).
CONFLICTS INVOLVING FORMER JUDGES, ARBITRATORS, AND THE LIKE: Switching from Judicial Service to Private Law Prac.
The conflict issues and the ethics rules about switching from judicial service to private prac. are similar to those described above. The general rule is that a L must not represent a private C in a matter in which the L previously participated personally and substantially while serving as a judge or other adjudicative officer (or as a law clerk to such person) or as an arbitrator, mediator, or other third-party neutral unless all parties to the proceeding give informed, written consent.
CONFLICTS INVOLVING FORMER JUDGES, ARBITRATORS, AND THE LIKE: Screening Can Avoid Imputed Disqualification
If a L is disqualified under this rule, the other Ls in her firm are also disqualified unless the following conditions are met: (i) the L is timely screened off from the matter; (ii) the L is not apportioned any part of the fee earned in the matter; and (iii) written notice is given to the parties and the appropriate tribunal so that they can ensure that the above conditions are met.
CONFLICTS INVOLVING PROSPECTIVE CS
. L’s Duty Concerning Confidential Info.: The attorney-C privilege protects confidential communications b/w a L and a prospective C. The ethical duty of confidentiality also applies to discussions b/w a L and prospective C. Thus, the L must not reveal or use info. learned during those discussions, unless an exception to the duty of confidentiality applies. 2. L’s Duty Concerning Conflict of Interest: A L who obtains confidential info. during preliminary discussions w/ a prospective C must not later represent a different person in the same or a substantially related matter if the confidential info. could significantly harm the prospective C. This conflict is imputed to others in the L’s firm. 3. How to Overcome a Prospective C Conflict: One way to overcome a prospective C conflict is to obtain informed, written consent from the affected C and the prospective C. A second way to overcome the conflict is to satisfy all of the following conditions: a. Demonstrate that the L took care to avoid exposure to any more confidential info. than was necessary to determine whether to represent the prospective C; b. Demonstrate that the disqualified L is timely screened from any participation in the matter and will not share the fee; and c. Give written notice to the prospective C.
Serving as Both Director and L
A L may serve as both a director and as a L for an organization, but the dual role can create conflicts of interest. For example, when a L participates in a meeting as a director, the attorney-C privilege will not apply to communications at the meeting, but some of the other directors may not realize that. If there is a substantial risk that the dual role will compromise the L’s professional judgment, the L should either resign as director or not act as the organization’s L.
Securities L’s Duties Under Sarbanes-Oxley Act
If a securities L becomes aware of credible evidence that her C is materially violating a federal or state securities law, she must report the evidence to her C’s chief legal officer (“CLO”). The same reporting duty applies to credible evidence that one of her C’s personnel has breached a fiduciary duty under federal or state law, or has committed a “similar material violation” of federal or state law. If the securities L believes that the CLO did not achieve an appropriate response from the C, the securities L must report the evidence to either the C’s board of directors, the audit committee of the board, or a committee made up of outside directors. Note that the Sarbanes-Oxley reporting rule is mandatory, unlike ABA Model Rule 1.13(b), which gives the L some discretion about how to proceed
DUTY TO NOTIFY, KEEP RECORDS, RENDER ACCOUNTINGS, AND PAY OVER PROMPTLY
A L must keep complete, accurate, and up-to-date records of money or property received on behalf of a C, must render periodic accountings to the C, must notify the C promptly when money or property has been received on the C’s behalf, and must promptly pay over money or deliver property when it is due to the C or a third party.
EVALUATION FOR USE BY THIRD PERSONS
A L may evaluate a C’s affairs for the use of a third person if the L reasonably believes that making the evaluation is compatible w/ the L’s other responsibilities to the C. If the L knows that the evaluation will materially harm the C, the L must obtain the C’s informed, written consent before making the evaluation.
L AS NEGOTIATOR
During negotiations, a L must not make a false statement of material fact. However, a L need not volunteer facts that would be detrimental to the C’s position or correct an opponent’s misapprehension regarding the strength of his C’s case. The key factor in determining whether a statement contains a material fact is whether the opponent would be reas. in relying on the statement; e.g., value estimates and what a party would accept as a settlement are not statements of material fact.
L AS THIRD-PARTY NEUTRAL
A L serves as a third-party neutral when she assists two or more nonCs resolve a dispute b/w them (e.g., arbitrator, mediator). When a L serves as a third-party neutral, she is subject not only to the ordinary rules of legal ethics, but also to various codes of conduct devised by groups such as the American Arbitration Association. The L should explain that the attorney-C privilege does not apply to communications b/w them. No conflict arises when a L who served as a partisan arbitrator for a party is later asked to become that party’s L. A L who serves as a third-party neutral in a matter must not thereafter become the L for anyone involved in the matter, unless all of the parties give their informed, written consent.
ex parte proceeding
L must inform the tribunal of all material facts known to the L that will help the tribunal make an informed decision.
Using False Evidence
A L is subject to discipline for offering evidence that the L knows is false and may refuse to offer evidence that she reasonably believes is false, except for a criminal defendant’s testimony on his own behalf. If a L has offered a piece of evidence and later discovers that it is false, she must: (i) Talk to the C confidentially and try to persuade him to rectify the situation; (ii) If that fails, seek to w/draw; and (iii) If w/drawal is not permitted or will not remedy the situation, the L must make disclosure to the court. Note that this obligation ceases at the conclusion of the proceedings, which include appeals. Beware of an exam quest. in which the C prevails in a proceeding, the opposing party does not file an appeal, and the C then tells the L in confidence that he lied. Remember that the L is under no obligation to reveal the perjury to anyone because the proceeding is over.
Other Corruption of an Adjudicative Proceeding
A L who represents a C in an adjudicative proceeding must take appropriate measures to prevent any person from committing criminal or fraudulent conduct that will corrupt the proceedings. Examples of such conduct are: (i) hiding or destroying evidence, (ii) bribing a witness, (iii) intimidating a juror, (iv) buying a judge, and (v) failing to obey a law or court order to disclose info..
Violating Court Rules and Orders
A L must not knowingly violate a rule of procedure, a rule of evidence, a rule of court, or an order made by the court, but a L may refuse to obey such a rule or order in making a good faith challenge to its validity.
Improper Ex Parte Communication
While a proceeding is pending in a tribunal, a L must not have an ex parte communication w/ a judge, court official, juror, or prospective juror except when authorized by law or court order.
Jurors and Prospective Jurors
In general, before and during the trial of a case, a L connected w/ the case must not communicate on any subject w/ a juror or prospective juror. She may, however, discreetly investigate members of a jury panel for limited reasons, e.g., background, grounds for challenge, etc. After the trial is over and the jury is discharged, a L must not communicate w/ a former jury member if: (i) local law or a court order prohibits such communication; (ii) the juror has told the L that he does not want to communicate; or (iii) the communication involves misrepresentation, coercion, or harassment.
Candidates for Judicial Office
A L who is running for judicial office must comply w/ the applicable provisions of the Code of Judicial Conduct.
TRIAL PUBLICITY
ABA Model Rule 3.6 prohibits a L connected w/ the case from making out-of-court public statements that the L reasonably should know will have a substantial likelihood of materially prejudicing the case.
Dry Facts About Case Permitted
Despite the general rule against prejudicial statements, a L connected w/ the case may publicly state certain “dry facts” about the case, including: (i) any info. already in the public record, (ii) what claim and defense are involved, (iii) the names of the people involved, (iv) the scheduling or result of any step in litigation, (v) the fact that an investigation is ongoing, (vi) a warning of danger if appropriate, and (vii) routine booking info. about a criminal defendant (name, address, arresting officers, etc.).
TRIAL COUNSEL AS WITNESS
L must not act as an advocate at a trial in which she is likely to be a necessary witness. Exceptions: A L-witness may continue as trial counsel if: 1) Her testimony will concern only an uncontested matter or a mere formality; 2) Her testimony will concern only the nature and value of the legal services rendered in the case;3) Her w/drawal as trial counsel would cause a substantial hardship on her C; or 4) Another L in her firm is likely to be called as a witness (unless to continue would constitute a conflict of interest). Conflict of Interest Rules Also Apply:In addition to complying w/ the above rule, a L who is both an advocate and a witness must also comply w/ the general conflict of interest principles regarding current and former Cs.
ADVOCATE IN LEGISLATIVE AND ADMINISTRATIVE PROCEEDINGS
1. Appearances in a Representative Capacity: When a L appears on behalf of a C before a legislative body or administrative agency, the L must disclose that he is acting in a representative capacity. 2. Duties of Candor and Respect: In such appearances, the L must generally follow the same rules of conduct as though in court. 3. Limits of These Rules: These rules do not apply: (i) when a L represents a C in bilateral negotiations w/ the government, (ii) in an application for a license or other privilege, (iii) when the government is investigating the C’s affairs, or (iv) when the government is examining the C’s compliance w/ a regular reporting requirement (such as the filing of tax returns).
Disclosure of Material Fact to Avoid C’s Crime or Fraud
A L must disclose material facts to a third person when necessary to avoid assisting the C in a crime or fraud—unless the L is forbidden to do so by the ethical duty of confidentiality, in which case the ABA Model Rules require the L to w/draw.
Communication w/ persons represented by counsel
Generally, no comm. Unless that person’s counsel consents, or unless the law or a court order authorizes the communication. Organizations: L must get the consent of the organization’s counsel before communicating w/ a present organization constituent: (i) who supervises, directs, or regularly consults w/ the organization’s L about the matter; (ii) whose conduct may be imputed to the organization under civil or criminal law; or (iii) who has authority to obligate the organization concerning the matter. 3. Communications Allowed by Rule: A L may communicate w/ a represented person when authorized by law or court order or when the communication does not concern the subject of the representation. L is not prohibited from interviewing the intended unrepresented witnesses of the opposing party.
Fee Splitting w/ NON-Ls
Subject to the exceptions stated below, a L must not share her legal fee w/ a nonL. a. Death Benefits Permitted:The Ls in a firm may agree that when one of them dies, the others will pay a death benefit over a reas. period of time to the dead L’s survivors. b. Compensation and Retirement Plans for NonL Employees: The nonL employees of a firm may be included in a compensation or retirement plan even though the plan is based on a profit-sharing arrangement. c. Sale of a Law Prac.: One L’s prac. can be sold to another L (see G., below). One who buys the prac. of a dead, disabled, or disappeared L may pay the purchase price to the estate or representatives of the L. d. Sharing Court-Awarded Fee w/ Nonprofit Organization: When a court awards attorneys’ fees to the winning L in a case, the L may share the fee w/ a nonprofit organization that hired or recommended him as counsel.
RESTRICTIONS ON RIGHT TO PRAC. PROHIBITED
A L’s right to prac. after termination of a partnership or employment relationship cannot be restricted except for an agreement concerning benefits upon retirement. Likewise, restrictions on the L’s right to prac. as part of a settlement agreement are prohibited.
Law-Related (ancillary) Services
Ls are permitted to provide law-related services (e.g., financial planning, accounting, lobbying, title insurance) to both Cs and nonCs. Even though law-related services are not legal services, a L who provides such services is subject to the Rules of Professional Conduct in two situations: 1. Nonlegal Services and Legal Services Provided Together: If a L provides nonlegal services in circumstances that are not distinct from her provision of legal services to Cs, then the Rules of Professional Conduct apply to both the legal and nonlegal services. Additionally, when a C-L relationship exists b/w the L and individual receiving the law-related services, the L must comply w/ Rule 1.8(a), which specifies the conditions a L must satisfy when she enters into a business transaction w/ her own C. Specifically, the transaction must meet the following requirements: the terms of the transaction must be fair to the C; the terms must be fully disclosed to the C in writing, and such disclosure must cover the essential terms of the transaction and the L’s role in the transaction; the C must be advised in writing that he should seek advice from an independent L regarding the arrangement; and the C must give informed consent in a writing signed by the C. 2. Nonlegal Services Provided by Entity that Is Controlled by the L:If a L provides nonlegal services through an entity that is not her law office but that she controls, the L must take reas. steps to assure that people who receive the nonlegal services understand that those services are not legal services and that the Rules of Professional Conduct do not cover those services. If the L does not take those reas. steps, then the L is subject to the Rules of Professional Conduct w/ respect to the nonlegal services.
MEMBERSHIP IN LEGAL SERVICES ORGANIZATIONS
1. General Rule—May Serve as Director, Officer, or Member: A L may serve as a director, officer, or member of a legal services organization, even though the organization serves persons whose interests are adverse to those of the L’s regular Cs. 2. Limitations on Rule: A L must not knowingly participate in a decision or action of the organization if doing so: (i) would be incompatible w/ the L’s obligations to a C under the general conflict of interest rules, or (ii) would adversely affect the representation of one of the organization’s Cs.
LAW REFORM ACTIVITIES AFFECTING C INTERESTS
1. Activities that May Harm C: A L may serve as a director, officer, or member of a law reform group, even though a reform advocated by the group may harm one of the L’s Cs. 2. Activities that May Benefit C: When a L is working on a law reform project and is asked to participate in a decision that could materially benefit one of the L’s Cs, the L must disclose that fact—but the L need not identify the C.
POLITICAL CONTRIBUTIONS TO OBTAIN GOVERNMENT EMPLOYMENT
A L or firm must not accept government legal employment or a judicial appointment if the L or firm makes a political contribution for the purpose of obtaining such employment or appointment. Exceptions: This rule does not apply to employment or appointments: (i) for uncompensated services, (ii) made on the basis of a L’s experience and following a process that is free from influence based on political contributions, or (iii) made on a rotating basis from a list compiled w/out regard to political contributions.
False and Misleading Ads and In-Person Solicitation May Be Banned
A state may prohibit all L advertising that is false or misleading and may forbid in-person solicitation for profit.
Regulation of Truthful, Nondeceptive Advertising
Regulation of commercial speech is subject to intermediate constitutional scrutiny, which means that it may be regulated only if: (i) the government asserts a substantial interest, (ii) the government demonstrates that the restriction directly and materially advances the interest, and (iii) the regulation is narrowly drawn.
Limits on Advertising
In addition to the basic rule on false or misleading statements, ABA Model Rule 7.2 imposes the following more specific rules: a. Communications about fields of law in which a L prac.s must comply w/ ABA Model Rule 7.4 (see D., infra). b. Before naming sample Cs in an ad, a L should obtain their consent. c. Every ad must include the name and office address of at least one L or law firm that is responsible for its content.
Payments for Recommending a L’s Services
Except in connection w/ the sale of a law prac., a L must not pay people for recommending him. But he may pay people for designing and running ads and may pay referral fees to approved L referral services. Also, legal aid offices and group legal service plans may advertise the services they provide.
Reciprocal Referral Arrangements
A L may set up a reciprocal referral arrangement w/ another L or w/ a nonL professional. A reciprocal arrangement must not be exclusive, the referred C must be told about the arrangement, and the arrangement must not interfere w/ the L’s professional judgment as to making referrals. Reciprocal referral arrangements should not be of indefinite duration and should be reviewed periodically to make sure that they comply w/ the ABA Model Rules.
SOLICITATION
ABA Model Rule 7.3 states the basic rule on solicitation: A L must not seek fee-paying work by initiating personal or live telephone contact, or real-time electronic contact, w/ a nonL prospect w/ whom the L has no family, close personal, or prior professional connection.
Targeted Direct-Mail Solicitations
Absent actual knowledge that the prospective C does not wish to receive communications from the L, a L is not prohibited from sending truthful, nondeceptive letters to persons known to face a specific legal problem.
Using Names of Ls Who Have Entered Public Service
A private law firm must not use the name of a L who holds public office during any substantial period in which the L is not regularly and actively practicing w/ the firm.
Federal Judges
Federal judges are appointed by the President w/ the advice and consent of the Senate. They hold office for life during good behavior. A federal judge can be removed from office by impeachment.
State Judges
In some states, judges are appointed by the governor or the state legislature, while in others they are elected by the voters. In still others, judges are initially appointed and later retained or rejected by the voters
Misuse of Judicial Prestige
A judge must not lend the prestige of judicial office to advance the private interests of the judge or others. However, as long as the judge is sensitive to abuse of the prestige of the judicial office she may: (i) act as a reference or provide a recommendation for someone; (ii) in response to a formal request, provide info. about a person to a sentencing judge, probation officer, or corrections officer; and (iii) testify as a character witness for someone if served w/ a summons. The character witness issue is an exam favorite. Often the examiners will give you the opposite rule as a possible choice. Remember: A judge should not voluntarily appear as a character witness for someone. A judge may testify as a character witness only if subpoenaed.
Relationships w/ Discriminatory Organizations
A judge can be disciplined for maintaining a relationship w/ a discriminatory organization if: (i) the judge is a member of an organization that currently prac.s invidious discrimination based on race, sex, religion, or national origin; (ii) the judge, though not a member, uses an organization that so discriminates; (iii) the judge belongs to an organization that discriminates on other grounds prohibited by local law; or (iv) the judge publicly manifests a knowing approval of invidious discrimination on any basis. When a judge learns that an organization to which she belongs prac.s discrimination, the judge must either resign promptly or work to end the discriminatory prac., and not participate in the organization until the situation is remedied.
Judges & Ex Parte Communications
A judge must not initiate, permit, or consider communications b/w the judge and a representative for one side of a matter when no representative from the other side is present, except: (i) when expressly authorized by law; (ii) w/ the consent of the parties in an attempt to settle or mediate a pending matter; or (iii) as circumstances require in emergency or administrative matters, provided no party will gain an advantage and the other party is properly notified. Other Communications: A judge may communicate w/ others (not court personnel or legal experts) about a matter outside the presence of the parties only if: (i) the circumstances so require (e.g., parties cannot be reached), (ii) the communication concerns an emergency or administrative matter, (iii) no party will gain an advantage, and (iv) the judge notifies the parties of the essence of the communication and gives them an opportunity to respond.
Disciplinary Responsibilities
When a judge receives info. that a judge or L has violated the applicable rules of ethics, the judge should take “appropriate action.” What constitutes “appropriate action” depends on the particular situation. If a judge has actual knowledge of a violation that raises a substantial quest. about the judge’s fitness for office or the L’s fitness to prac., the judge must report the violator to the appropriate disciplinary authority. A judge’s acts in this regard are privileged and cannot be the basis for a civil suit.
DISQUALIFICATION —Whenever Impartiality Might Be Questioned
A judge must disqualify himself in a proceeding in which the judge’s impartiality might reasonably be quest.ed.
Persons Making Contributions to Judge’s Election Campaign
A judge who is subject to public election must disqualify himself when he knows or learns that a party or party’s L has, w/in a certain number of years, made contributions to his election campaign that exceed a specified amount.
Remittal of Disqualification
The parties and their Ls can remit (waive) all of the foregoing grounds for disqualification, except personal bias concerning a party.
EXTRAJUDICIAL ACTIVITIES
A judge must conduct extrajudicial activities so that they do not cast doubt on his impartiality, demean the judicial office, or interfere w/ the judge’s duties. 1. Avocational Activities: A judge may speak, write, lecture, teach, and participate in nonjudicial activities involving legal or nonlegal subjects, provided that these activities are consistent w/ the judge’s duties under the Code. 2. Governmental Hearings and Consultations: A judge must not appear at a public hearing before, or otherwise consult w/, an executive or legislative body or official except on matters concerning the law, legal system, or administration of justice. 3. Governmental Committees and Commissions: A judge must not accept appointment to a governmental committee or commission or other governmental position concerned w/ issues that do not relate to the law, legal system, or administration of justice. This includes appointments to the board of any public school (other than a law school).
Judge Involved in Law-Related Organizations and Nonprofit Organizations
A judge must not serve as an officer, director, trustee, or nonlegal advisor of a law-related or nonprofit organization if it is likely that the organization will: (i) be engaged in proceedings that would ordinarily come before the judge, or (ii) frequently be engaged in adversary proceedings in the court on which the judge sits or one under its appellate jx. Furthermore, a judge may help plan such an organization’s fund-raising, but he must not personally participate in fund-raising activities except to solicit funds from other judges who are not under his authority. A judge may attend an organization’s fund-raising event, but may not be the guest of honor or a speaker at the event. A judge also may solicit members for such an organization, provided he does not use the prestige of judicial office or solicit in a manner that may be taken as coercive.
Judge's Financial and Business Dealings
A judge must not engage in financial or business dealings that might be perceived to exploit the judge’s position (e.g., using info. gained in judicial capacity for personal gain), or that involve frequent dealings w/ persons likely to come before the court on which he sits.
Gifts, Bequests, Favors, and Loans to Judge
Generally, a judge should not accept gifts, bequests, favors, or loans from anyone. Exceptions include: (i) gifts incident to public testimonials; (ii) books, tapes, etc., given by publishers for official use; (iii) invitations to law-related functions; (iv) gifts, awards, or benefits incident to the activities of a member of the judge’s household; (v) ordinary social hospitality; (vi) gifts from a relative or friend on a special occasion; (vii) gifts, bequests, favors, or loans from a relative or close friend whose appearance in a case would disqualify the judge in any event; (viii) loans from lending institutions in the ordinary course of their business on the same terms as to nonjudges; (ix) scholarships or fellowships; and (x) any other gift or favor by a person not likely to come before the judge.
JUDGES AND POLITICS
Generally, a judge must avoid politics. However, a judge may participate in those political activities: (i) designed to improve the law, (ii) specifically authorized by law, and (iii) permitted under the Code
Rules Applicable to All Judges and Judicial Candidates
a. Definition of “Judicial Candidate”: A person seeking to obtain or retain judicial office or a judge seeking nonjudicial office, either by election or appointment, is a candidate when she: (i) publicly announces her candidacy, (ii) declares or files her candidacy w/ the appropriate authority, or (iii) authorizes solicitation or acceptance of contributions. b. General Prohibitions: Except when specifically permitted by the CJC, a judge or candidate must not: 1) Act as a leader or hold office in a political organization; 2) Publicly endorse or oppose another candidate for public office; 3) Make speeches on behalf of a political organization; 4) Attend political gatherings; or 5) Financially support a political organization or candidate. c. Explanation of General Prohibitions: When false statements are publicly made about a judicial candidate, a judge or judicial candidate who knows the facts may make the facts public w/out violating the above prohibitions. Furthermore, a judge or candidate does not violate the prohibitions by privately expressing her views on candidates for public office. A public official may retain her office while running for judicial office.
Judges Who Run for Nonjudicial Office
A judge must resign when she becomes a candidate for a nonjudicial office.
Rules Applicable to Candidates for Appointed Positions
A candidate for a judgeship or other government position filled by appointment must not solicit or accept funds for her candidacy. In addition, the candidate must not engage in political activity to secure the position, except that she may communicate w/ the appointing authority, seek support from groups regularly offering such support, and provide info. about her qualifications to the appointing authority or support groups. Note that nonjudge candidates for these offices may retain an office in a political organization and attend political gatherings. Nonjudge candidates can also pay ordinary assessments and make ordinary contributions to these organizations.
Rules Applicable to Judges and Candidates Subject to Public Election
Certain exceptions to the prohibitions on political activity apply to judges who are subject to public election, judges seeking nonjudicial elected office, and candidates for elected judicial office. a. Party Politics: These judges and candidates may at any time , whether or not they are standing for election, buy tickets and attend political gatherings, identify themselves as members of a party, and contribute to a political organization. b. Election Politics: When standing for election, these people may speak at gatherings on their own behalf, appear in advertisements, distribute campaign literature, publicly endorse or oppose other candidates for the same office, and allow their names to be listed on election materials along w/ the names of candidates for other offices. c. Campaign Activities: These persons may engage in campaign activities, but they must neither personally solicit publicly stated support nor solicit or accept campaign contributions. They may, however, establish campaign committees, which may solicit support and reas. contributions, as well as put on candidate forums, publish campaign literature, and manage campaign funds. Campaign committees may solicit contributions and support no earlier than one year before an election and no later than 90 days after the last election in which the candidate participates.
Sanctions for Violating Rules on Political Activity
A successful candidate who violates the rules on political activity is subject to judicial discipline. An unsuccessful candidate who violates the rules and is a L is subject to L discipline.
APPLICATION OF THE CODE OF JUDICIAL CONDUCT
In jxs that adopt the CJC, it applies to all persons who perform judicial functions, including magistrates, court commissioners, and referees. Part-time and retired judges are exempt from many, but not all, of the provisions that restrict outside activities and political activities.
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