Ethics

The person involved actually supposed the fact in question to be true

May be inferred from circumstances

informed consent that is given in writing by the person or a writing that a L promptly transmits to the person confirming an oral informed consent

obtained or transmitted either at the time of the informed consent or w/in a reasonable time thereafter

L(s) in a law partnership, prof corporation, sole proprietorship, or other association authorized to practice law

Ls employed in a legal services organization or the legal dept of a corp or other organization

conduct that is fraudulent under the substantive or procedural law of the applicable jurisdiction and has a purpose to decieve

agreement by a person to a proposed course of conduct after the L has communicated adequate info and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct

actual knowledge of the fact in question

knowledge may be inferred from circumstances

member of a partnership, a shareholder in a law firm organized as a prof corp, or a member of an association authorized to practice law

conduct of reasonably prudent and competent L

L believes the matter in question and that the circumstances are such that the belief is reasonable

L of reasonable prudence and competence would ascertain the matter in question

isolation of a L from any participation in a matter thru the timely imposition of procedures w/in a firm that are reasonably adquate under the circumstances to protect info that the isolated L is obligated to protect under RPC or other law

material matter of clear and weighty importance

court, an arbitrator in a binding arbitration proceeding or legislative body, admin agency or other body acting in an adjudicative capacity

a neutral official, after the presentation of evidence or legal argument by a party(s), will render a binding legal judgment directly affecting a party's interests in a particular matter

tangible or electronic record of a communication or rep, including handwriting, typewriting, printing, photostating, photography, audio or vidorecording and email

includes an electronic sound, symbol, or process attached to or logically associated with a writing and executed or adopted by a person with the intent to sign the writing

• 1. education
• 2. testing
• 3. character and fitness

• 1. citizenship
• 2. residency
• 3. political beliefs
• 4. protections afforded under American's with Disabilities Act

1. applicant doesn't swear allegiance to C and to uphold US laws

2. applicant is an active participant in assoc known to be engaged in illegal activity and evidence of applicant's specific intent to further those activities

• 1. illegal use of drugs
• 2. criminal conduct
• 3. civil judgments
• 4. debt & fiscal irresponsibility
• 5. plagarism
• 6. mental health

8.1 - Bar Admission and Disciplinary Matters

• 8.3 - Reporting Prof misconduct
• 8.4 - misconduct
• 5.1 - responsibilities of partner or supervisory L
• 5.2 - responsibilities of subordinate L
• 5.3 - responsibilities regarding nonL assistant

• 1.6 - confidentiality of information
• 1.2 - scope of rep & allocation of authority b/t C and L
• 4.1 - truthfulness in statements of others
• 3.3 - candor toward the tribunal
• 1.8 - CoI: current C; specific rules
• 1.16 - declining or terminating rep

• 1.1 - competence
• 1.2 - scope of rep & allocation of authority b/t C and L
• 1.3 - diligence
• 1.4 - communication
• 1.14 - C with diminished capacity
• 1.16 - declining or terminating rep
• 1.18 - duties to prosepective C
• 2.1 - advisor
• 3.3 - candor toward tribunal
• 4.1 - truthfulness of statements of others
• 5.4 - prof independence of L
• 6.1 - voluntary pro bono publico service
• 6.2 - accepting appointments
• 8.4 - misconduct

• 3.1 - meritorious claims and contentions
• 3.3 - candor toward tribunal
• 3.4 - fairness to opposing party and counsel
• 3.5 - impartiality and decorum of the tribunal
• 3.6 - trial publicity
• 3.7 - L as W
• 3.9 - advocate in nonadjudicative proceedings
• 4.1 - truthfulness in statements of others
• 8.4 - misconduct

• 1.6 - confidentiality of info
• 4.1 - truthfulness in statements of others
• 4.2 - communication with person rep by counsel
• 4.3 - dealing with unrepresented person
• 4.4 - respect for rights of third persons
• 8.4 - misconduct

• 1.7 - current clients
• 1.8 - current C specific rules
• 1.9 - former C
• 1.10 - imputation of CoI; General rule
• 1.13 - organization as C
• 1.16 - declining or terminating rep
• 1.18 - prospective C

• 1.5 - fees
• 1.7 - current C
• 1.8 - current C, specific rules
• 1.10 - imputation of CoI general rule
• 1.15 - safekeeping property
• 5.4 - prof independence of L
• 7.1 - communication concerning L services
• 7.2 - advertising

• 1.7 - current C
• 1.8 - current C, specific rules
• 1.10 - general rule

1.13- organization as C

• 1.9 - duties to former C
• 1.10 - general rule

• 1.11 - special CoI for former and current gov officers and EEs
• 3.8 - special responsibilities of a prosecutor

• 1.12 - former J, arbitrator, mediator, or other 3p neutral
• 7.6 - political contributions to obtain legal engagements or appointments by J
• 8.2 - judicial and legal officials

• 5.4 - prof independence of L
• 5.7 - responsibilities regarding law-related services
• 7.1 - communication concerning a L's services
• 7.2 - advertising
• 7.3 - direct contact with prospective C
• 7.4 - communication of fields of practice and specialization
• 7.5 - firm names and letterhead

• 1. admonition
• 2. reprimand
• 3. censure
• 4. suspension
• 5. disbarrment

written form discipline involved where L committed minor violation of RPC

written form; caused harm or potential harm to C, admin of justice, profession, or members of public

neglect

written form; significant harm resulting from violating 1 or more RPC

intentional, gross negligence, fraud

period no longer than 5 yrs

may be stayed upon reasonable conditions to which L consents

take away law license

may ask to be readmitted after 5 yrs

those violations which raise a substantial question as to that L's honesty, trustworthiness, or fitness as a L in other respects

objective standard; mroe than mere suspicion

holding an entire law firm responsible for L misconduct, even when an indvl culprit can be identified

• 1. accept the directions from superior
• 2. argue with superior
• 3. discuss prob with diff superior
• 4. do more research/investigation to clarify prob
• 5. ask to be relieved from work on the matter
• 6. resign

• 1. L owed duty to P
• 2. L failed to exercise reasonable competence and diligence normally exercised by L in similar circums; and
• 3. breach of duty caused harm to P

• 1. ignores CoI
• 2. sue FC for unpaid fee
• 3. accept any C and any matter that comes along
• 4. "do business" with your C
• 5. practice outside your area of expertise
• 6. go overboard in opening branch offices and making lateral hires
• 7. leave partner peer review to other firms
• 8. ignore a potential claim and rep yourself in a prof liability dispute
• 9. settle matter w/o written authorization from C
• 10. fail to communicate with C

• 1. safeguarding C confidences and property
• 2. avoiding impermissible CoI
• 3. adequately informing C
• 4. following instructions of the C
• 5. not employing adversley to the C powers arising from the C/L relationship

• 1. intentional acts
• 2. orders of restitution of legal fees, fines, or penalties
• 3. orders to pay punitive damages
• 4. conduct of L in other roles
• 5. conduct of L who rep businesses of which they are also part owner
• 6. intra-firm disputes

• 1. informed consent
• 2. impliedly authorized
• 3. disclosure permitted by 1.6(b)

• 1. all info relating to matter on which L is rep C except info that is generally known
• 2. personal info relating to the C that the C wouldn't want disclosed
• 3. info learned from C and learned from interviews, docs, photos, observations, or other sources
• 4. infor acquired before rep begins and after rep ends
• 5. notes/memos that L creates relating to the matter

to facilitate open communication b/t L and C

• 1. to prevent reasonably certain death or substantial bodily harm
• 2. to prevent a crime or faud involving the use of L services
• 3. to prevent, mitigate, or rectify substantial injury to $ interests or property of 3P using L services
• 4. to secure legal advice
• 5. to establish a claim or defense
• 6. to comply with law or court order

• 1. there is reasonable certainty that C conduct will result in substantial $ or property injury of another person;
• 2. C is using or has used L services in committing the act; AND
• 3. purpose for revealing CI is to prevent the criminal or fraudulent act or to prevent, mitigate, or rectify the harm resulting from the act

• 1. representative
• 2. officer of legal system
• 3. public citizen with special responsibility

• 1. A/C relationship existed at time of communication
• 2. comm made in confidence
• 3. comm relates to matter about which L is being prof consulted
• 4. comm made in course of giving/seeking legal advice for proper purpose (although litigation need not be contemplated)
• 5. C hasn't waived privilege

• 1. dead C
• 2. comm regarding 3P
• 3. no exposure to: (1) civil/criminal liability or (2) harm to reputation/harm to surviving family

• 1. comm must be made b/t privileged persons
• 2. in confidence
• 3. for purpose of seeking/obtaining legal advice

• 1. relative complexity and specialized nature of the matter
• 2. L general experience
• 3. L training and experience in the field in question
• 4. preparation and study the L is able to give the matter
• 5. feasibility of referring matter to L with established competence in the field in quesiton

Courts claim that they have the inherent authority to regulate the conduct of lawyers as a matter of CL b/c the courts need the authority to govern the conduct of those who appear b4 them

no lying, no half-truths, and open your mail and respond

• 1. ordered the conduct; or
• 2. knew about conduct and did nothing

• 1. whether C or other person is experienced in legal matters generally
• 2. whether C or other person is experienced in making the type of decisions involved
• 3. whether C or other person is indpt rep by other L in giving informed consent

• 1. whether to testify
• 2. whether to settle or refuse to settle
• 3. whether to waive jury trial
• 4. whether to plea

• 1. C demands L engage in illegal or unethical conduct
• 2. L physical/mental condition materially impairs L ability to rep C
• 3. L is discharged

• 2. Matters in litigation with permission of the court
• 3. C stops paying fees and L has warned C that nonpayment will lead to w/drawl
• 4. Case imposes an unreasonable $ burden on L
• 5. C won’t cooperate
• 6. C has misused L services in the past
• 7. C insists on taking action that L considers repugnant or with which the L has fundamental disagreement
• 8. C assents to termination
• 9. C wants to pursue bad faith claim
• 10. Any other good cause

• ·To establish a claim against a C for unpaid fees
• ·To defend against a claim of malpractice or other claim of civil liability against the L
• ·To defend against a disciplinary proceeding
• To defend against a criminal charge

• 1. Existence of L/C relationship
• 2. ∆ acted negligently or in breach of K
• 3. Such acts were the proximate cause of the π’s damages
• 4. But for the ∆’s conduct the π would have been successful in the prosecution of their case

• 1. deficiency
• 2. prejudice

• C ability to articulate reasoning leading to a decision
• Variability of state of mind and ability to appreciate consequences of a decision
• Substantive fairness of a decision
• Consistency of a decision with the known long-term commitments and values of the C

• Guardianship is legitimate in extreme cases
• Reliance on family may be appropriate
• Unilateral usurpation of C autonomy is never appropriate except in emergencies
• Noncoercive persuasion is justified in less extreme cases

L who pursues every possible tactic on behalf of C

L who believe that their duties as officers of the court are as impt as their duties to their C…other values should override their C goals

• 1. duty to prevent abuse of the system
• 2. duty of candor to tribunals

• 1. no frivilous lawsuits (3.1)
• 2. expedite litigation (3.2)
• 3. no improper influence on J and no conduct intended to disrepute the tribunal (3.5)

• 1. Conduct violates crim obstruction of justice statute
• 2. Conduct violates court order
• 3. Failure to comply with discovery rules
• 4. Conduct would constitute a tort

• 1. Seeks to avoid the situation that could prejudice the tribunal and the opposing party
• 2. Seeks to avoid a CoI b/t the L and C b/c a L who has unprivileged, PK of a case might give testimony that is adverse to C

• Undisputed facts
• Relates to nature/value of legal services
• Disqualification would result in substantial hardship

• (1) that the ∆ is accorded procedural justice,
• (2) that guilt is decided upon the basis of sufficient evidence, and
• (3) that special precautions are taken to prevent and to rectify the conviction of innocent persons

• 1. Exercise indpt legal judgment (rule 5.4)
• 2. Be loyal to their C
• 3. Be competent and diligent

• 1. directly adverse
• 2. material limitation

• 1. L conveys info sufficient for C to understand
• 2. L explains alternatives
• 3. in writing (for some types)

• 1. C must consent; and
• 2. rep can't be interferred with by paying party

• 1. L reasonably believes he can provide competent & diligent rep;
• 2. Not prohibited by law;
• 3. No assertion of claim by one C against another C in the same litigation or some other proceeding before tribunal; AND
• 4. Informed consent

• Seriousness of the violation and its consequences
• Responsibility in the org and apparent motivation of the person involved
• Polices of the org concerning such matters
• Any other relevant considerations

• Flat fee
• Hourly billing (# hrs x rate)
• Proportional fee
• Contingent fee (if this then that)
• Project pricing (more like a la carte)
• Retainers

no present legal probs but seek to retain L for x months in case there are legal probs

billed off of and goes into trust account b/c haven’t earned it yet

• Must be in writing
• Contingency included
• % and any contingency caps
• Whether expenses will be deducted b4 or after L cut

• Likelihood that contingency will occur
• Likely recovery if contingency occurs
• Whether contingency will occur quickly
• Amount of work involved to achieve recovery

• J has personal knowledge of disputed evidentiary facts
• J served as a L or J in the matter
• J has financial interest in the case (includes family)
• J or family member is
• o A party to the case
• o L in the case
• o Has more than a de minimus interest in the caseIs likely to be a material W

• 1. J shall comply with all constitutional, statutory, and procedural law
• 2. J shall require order and decorum in court proceedings
• 3. J shall be patient, dignified, and courteous
• 4. J shall perform judicial duties w/o bias or prejudice
• 5. No ex parte communications
• 6. J shall avoid and shall require L to avoid expressing bias based on EPC categories
• 7. J shall dispose of all judicial matters promptly, efficiently, and fairly
• 8. A J shall not commend or criticize jurors for their verdict, except in a court order or opinion
• 9. A J shall not disclose or use any nonpublic info gained in a judicial capacity
• 10. J shall not make comments about any pending proceeding that can be reasonably expected to affect its outcome
• 11. J shall not conduct an indpt investigation of the facts

• 1. J shall not engage in practice of law
• 2. J shall not serve as fiduciaries unless
• o Immediate family; and
• o Not a matter likely to come before judge’s own court
• 3. J may serve in a charitable or civic organization, as long as it doesn’t reflect adversely on J impartiality
• 4. J shall not hold membership in any org that practices invidious discrimination
• 5. J shall not appear as a CW unless subpoenaed
• 6. J shall not engage in financial X that risk a CoI
• 7. J shall not accept or urge family members to accept gifts from those likely to appear before the J
• 8. J may receive compensation for their non-judicial conduct, where permittedJ shall comply with the law in all of their activities

• No false or misleading statements (7.1)
• L may advertise his practice areas (7.2)
• L may advertise as a board certified specialist provided are actually board certified in that area (7.4)

• No in person solicitation for profit allowed (7.3(a))
• May send letters to prospective C
• May solicit in person for free services
• In person solicitation for profit OK if person contacted is another L, family member or close friend, or someone with whom you have a prior professional relationship (7.3)
• If the person tells L to leave him alone then must respect that
• Every solicitation must say "Advertising Material" on envelope at beginning of communication and at end of communication