Disclaimer: This outline does not contain every issue in the class.

The rules and application are from my understanding. If

the rules or the application is inconsistent with your professor or your notes, use your professor’s application of the law.

Professional Responsibility Mentor Outline

LAWYER’S DUTIES TO CLIENT

Duty of Competence
A lawyer must act with legal knowledge, skill, thoroughness and preparation that are reasonably necessary for
representation. Legal knowledge and skills are determined by the complexity and specialized nature of the matter,
lawyer’s experience and training, and whether feasible to refer or consult with other lawyer’s competence in the field.

A lawyer may accept representation despite lacking competence, if competence can be achieved by reasonable
preparation. A lawyer may also act without competence in emergency situations.

In California, the duty of competence extends to supervise the work of subordinate lawyers and non-lawyer employees.

Duty of Diligence
A lawyer must act with reasonable diligence and promptness in representing and must zealously pursue the client’s
case to completion. A lawyer must see the matter through completion, unless fired or withdraws.

Duty to Communicate
A lawyer must keep client reasonably informed so client can make informed decisions and inform client when consent is
required. (Note - A lawyer may delay information if client would react imprudently to immediate communication.)

Settlement Offers
A lawyer must communicate all settlement offers to client.
California: In non-criminal cases, lawyer must communicate all written or significant offers.

Candid Advice
A lawyer must exercise independent judgement and render candid advice even when facts are harsh and
unattractive.

Volunteering Advice
A lawyer may give advice beyond law such as seeking professional advice (i.e. seek doctor or counselor). A
lawyer has no duty to volunteer advice, however, if lawyer knows client’s action will have substantial adverse legal
consequences, the lawyer may volunteer advice. He must volunteer where course of action is related to
representation.

Duty of Confidentiality
A lawyer has a duty not to reveal information related to the representation, whenever derived. It attaches before or after
the relationship is formed (even if never formed) and continues after representation or death. Applies to prospective
clients, current clients, and former clients. A lawyer may however disclose information is specific circumstances:

Consent
A lawyer may disclose confidential information where client gives informed consent. California recognizes –
consent must be in writing.

Implied Authorization
A lawyer may disclose confidential information where disclosure is necessary to carry out the representation
unless client gives specific instructions to the contrary. (i.e. lawyer can give confidential information to secretary to
research)

Death or Harm
A lawyer may disclose confidential information if necessary to prevent reasonably certain death or substantial
bodily harm. The death or harm need not be imminent, only reasonable. California recognizes.

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Disclaimer: This outline does not contain every issue in the class. The rules and application are from my understanding. If
the rules or the application is inconsistent with your professor or your notes, use your professor’s application of the law.

Ethical Legal Advice

A lawyer may disclose confidential information, as much confidential information necessary, to seek legal advice
regarding lawyer’s compliance with rules of ethics.

Crime/ Fraud
A lawyer may disclose confidential information to prevent crime or fraud by client.

Financial Harm
A lawyer may disclose confidential information to prevent substantial financial harm that is reasonably certain
to occur from client committing crime or fraud, if the client is using or has used the lawyer’s services in that matter.
A lawyer may also disclose where client has already acted and lawyer’s disclosure can prevent, mitigate or rectify
the financial harm.

Establish Defense
A lawyer may disclose confidential information to establish a defense/protect against a claim of malpractice or
disciplinary violation. Lawyer must reveal: (i) what is necessary; (ii) limit to those who need to know; (iii) obtain
protective orders or take other steps to minimize unnecessary harm to client. California recognizes.

Court Order or Required by Law

A lawyer is permitted to disclose confidential information to the extent he is ordered by a court or law. California
recognizes.

Disclosure to Detect/ Resolve Conflict of Interest

Where lawyer changes firms, or firm purchased, lawyers may disclose information to resolve any conflicts, subject
to four conditions: (i) disclose after substantive discussion regarding new relationship; (ii) limited to minimum
necessary; (iii) must not comprise attorney-client privilege or harm client; (iv) only to extent necessary to detect or
resolve conflict. California recognizes.

Note – Difference between Attorney-Client Privilege (evidence) versus Duty of Confidentiality (ethics)
 Attorney-client privilege allows client to refuse to testify and prevent lawyer from testifying. The privilege applies to
communication made during the course of the relationship.
 Duty of confidentiality protects ANY disclose of ALL information related to representation, whenever derived.
 Presence of third party may destroy privilege, however, it does not destroy duty of confidentiality.
 Example: Client and Lawyer discuss information at a party. The privilege does not apply because of no
reasonable expectation of privacy, however, the duty of confidentiality protects information – “whenever derived”
means even if no reasonable expectation of privacy existed.

Malpractice Liability
A lawyer must not make an agreement limiting (or waving) the lawyer’s liability to a client for malpractice unless client is
independently represented in making the agreement.

A lawyer must not settle a pending or potential malpractice claim with an unrepresented client (or former) without
advising, in writing, for that client to seek an independent lawyer and allow client time to seek advice.

A lawyer who has breached duty to his client with monetary effect cannot escape discipline by reimbursing client.

Note – Torts crossover with intentional torts, negligence, breach of contract

Duty of Loyalty – Conflict of Interest

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Disclaimer: This outline does not contain every issue in the class. The rules and application are from my understanding. If
the rules or the application is inconsistent with your professor or your notes, use your professor’s application of the law.

A lawyer has a duty of loyalty which requires lawyer to act in the client’s best interest. A lawyer must not represent a client
where (1) his representation will be directly adverse to another client, or (2) where there is significant risk that lawyer will
be materially limited by his own or by his responsibility to another client, former client, or third person.

A lawyer must not take a case that he has an actual conflict. A lawyer may represent a client with potential conflict, if: (1)
lawyer reasonably believes client will not be adversely affected; (2) full disclosure to both clients; and (3) both clients
consent. California requires consent in writing.

Conflicts: Between Client and Lawyer

Gifts
A lawyer may accept a gift that meets general standards of fairness. A lawyer must not solicit any substantial gift
from client unless lawyer is a relative to client.

Business Transactions
A lawyer must not enter into a business transaction with client that is adverse to the client unless: (1) terms are
fair and reasonable at the onset of the agreement; (2) terms fully disclosed in writing; (3) advised in writing to
seek independent advice; and (4) informed consent in writing singed by client.

Acquiring Literary or Media Rights

A lawyer must not acquire literary or media rights to a story based in substantial part on information relating to
lawyer’s representation of a client. However, a lawyer may acquire such rights after the client’s legal matter is
entirely completed, including appeal.

Loans and Advances in Litigation

A lawyer may advance court costs and other litigation expenses for client and repayment may contingent.
California requires the loan to be in writing. Lawyers are not permitted to give loans to clients outside litigation
expenses.

Example: Power plant blows up and destroys local farms. Lawyer puts ad in paper offering to represent
farmers on contingency, advance cost and expenses, and lend money to restore their farms -
everything is permitted for lawyer to do except lend money to restore farm.

Proprietary Interest in Subject Litigation

A lawyer must not acquire proprietary interest in the cause of action of subject matter. (i.e. lawyer represents
client in patent case – he cannot represent in exchange for ownership in patent)

Lawyer Testifying as Witness

A lawyer must not serve as trial counsel in which lawyer is likely to be a necessary witness. However, lawyer may
testify if: (1) testimony is on uncontested issue; (2) testimony is related to lawyer fees; (3) there would be
substantial hardship on client.
California: Lawyer can testify in any bench trial; and in jury trial, if (i) testimony concerns uncontested issue; (ii)
testimony relates to legal fees; (iii) client consents.

Lawyer Related to Other Lawyer

A conflict of interest may be created where a lawyer is related to another lawyer that represent a person with
interest directly adverse to lawyer’s client. This conflict is personal and ordinary not imputed to lawyers in firm if
there is adequate screening.

California extends to: (1) lawyer is client of the other lawyer; (2) lawyers live together; (3) intimate relationship with
lawyers. California requires disclosure and consent in writing.

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Disclaimer: This outline does not contain every issue in the class. The rules and application are from my understanding. If
the rules or the application is inconsistent with your professor or your notes, use your professor’s application of the law.

Sexual Relationship with Client

Under ABA, lawyer must not have sexual relationship with client after the lawyer-client relationship has been
formed unless that sexual relationship predated the lawyer-client relationship. Under California, a sexual
relationship with client is allowed if the lawyer reasonably believes the client will not be adversely affected.

Conflicts: Between Client and Third Party

Former Client
A lawyer must not represent a client with interest materially adverse to those of a former client in the same or
substantially related matter unless former client gives informed consent. Conflict is imputed to firm unless
properly screened.
(Note – substantially related depends on facts)

Prospective Client
A lawyer must not represent a client with interest materially adverse to those of a prospective client in the
same or substantially related matter unless one of the following occurs: (1) both parties give consent in writing;
or (2) satisfy the following: (i) avoid exposure to more confidential information that is reasonably necessary; (ii)
timely screened; (iii) written notice to prospective client. Conflict is imputed to firm unless properly screened.

Former Government Lawyer in Private Practice

A lawyer who worked personally and substantially on a matter while working for the government must not
represent client in matter in a private practice unless government agency gives informed consent, in writing.

Conflict may be imputed to firm unless: (1) former government lawyer is screened; (2) not share any fees; and (3)
notify government of possible conflict.

(Note – “Personally and substantially” does not include mere supervisory role. “Matter” does not mean general
topics – must be specific facts.)

Multiple Clients
A lawyer must not represent multiple clients on same matter unless (1) lawyer reasonably believes no client will
be adversely affected; (2) full disclosure; and (3) clients consent in writing. California requires both clients must
agree in writing.

Aggregate Settlement Offer

Where a lawyer represents multiple clients, if an aggregate settlement officer is made to multiple clients,
lawyer cannot accept offer unless (i) lawyer discloses all terms of agreement; (ii) all clients agree how to
divide; and (iii) informed consent in writing.

Third Party Payment

A lawyer must not accept payment from a third party for representing a client unless: (1) client gives consent; (2)
third person does not interfere with lawyer’s independent personal judgment; and (3) arrangement does not
compromise the client’s confidential information. California requires client consent in writing.

Conflicts Former Judge & Arbitrators

A lawyer must not represent a private client in a matter which the lawyer participated personally and substantially
while serving as a judge or adjudicative officer (i.e. referee, arbitrator) unless all parties consent in writing.

Conflict Imputed to Lawyers in Firm

Where one lawyer has a conflict of interest, that conflict is imputed to all lawyers in firm disqualifying them from
representation unless: (1) conflicted lawyer timely screened; (2) no apportionment of fee to conflicted lawyer; and

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Disclaimer: This outline does not contain every issue in the class. The rules and application are from my understanding. If
the rules or the application is inconsistent with your professor or your notes, use your professor’s application of the law.

(3) written notice to all parties and appropriate tribunal. Personal interest conflicts (i.e. sexual relationships or
familial relationship) will not be imputed to other lawyers so long as no significant risk of materially limiting other
lawyers.

Organization (Corp) as Client

A lawyer who represents an organization owes duty of loyalty to the entity (i.e. corporation), not the people who are its
constitutes (i.e. employees or high officers). Where interest in the organization diverges, a lawyer should remind that
employee that he represents the corporation, not the employee, and that communication between them may not be
privileged.

Protecting Organization’s Interest – Duty to Report

If a lawyer learns that a person associated with organization has acted, or is about to act, in a way that may cause
substantial injury to corporation, the lawyer must protect the interest of the organization. A lawyer has a duty to
report to organization’s highest authority (i.e. CEO). If the highest authority fails to take action the lawyer may
report to appropriate person outside the organization only if he reasonably believes that reporting is
necessary to prevent substantial injury to the organization.

California – does not require “report to higher authority” and prohibits “report outside organization” unless
necessary to prevent death or substantial bodily harm. However, a lawyer may withdraw from representation.

Note – this rule does not apply to lawyer hired by organization to investigate an alleged violation or defend the
organization against a claimed violation.

Serving as Director and Lawyer

A lawyer may serve as both lawyer and director of an organization in a company, however, where a substantial
risk of conflict of interest arises, lawyer should resign as director or not serve as lawyer.

Representing Both Organization and Associated Person

A lawyer may represent both the organization and an associated person(s) with the organization (i.e. director) so
long as ordinary conflict of interest rules are satisfied (see above - Conflict between Clients)

Securities Lawyer (Crossover with Bus Org) - see master outline

Duty of Financial Integrity

Attorney Fees
Fees must be reasonable. Reasonable is determined by several facts: skill required; what lawyers in the
community charge; lawyer’s experience; amount at stake and results obtained; time limitations; lawyer’s
reputation; and whether contingent or fixed. Under California, fees to be “conscionable” at time the agreement
was entered.

Non-Contingent Fee Agreement

Under ABA, fee agreements must include how fee is calculated, what services are covered, and lawyer’s and
client’s duties and should in writing. Under California, the fee agreement must be in writing unless: (1) under
$1,000; (2) regular client; (3) corporate client; or (4) emergency or impractical.

Contingent Fee Agreement

A contingent fee must be in (1) writing, (2) signed by client and (3) explain: (i) how fee is calculated; (ii) what
litigation expenses are to be deducted from recovery; and (iii) whether deductions will be made before or after fee
is calculated. Under California, the agreement must include what expenses the client must pay and that the
contingent fees are negotiable.

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Disclaimer: This outline does not contain every issue in the class. The rules and application are from my understanding. If
the rules or the application is inconsistent with your professor or your notes, use your professor’s application of the law.

Contingent fees are not allowed in criminal cases or domestic relationships (i.e. divorce, child support). In
California, contingent fees are allowed in domestic relationships so long as they do not promote or
encourage dissolution of marriage of savable marriage.

Fee Splitting

Splitting Fees with Lawyers in Firm

Permitted

Splitting Fees with Lawyers outside Firm

Permitted only if: (1) fee is reasonable (Ca – conscionable); (2) proportionate for work done; (3) written
disclosure of each share lawyer will receive; and (4) client consent in writing. California has same
requirements but adds that fee cannot be increased because of sharing.

Splitting Fees with Non-Lawyers

Permitted only if: (1) for salaries to non-lawyers (i.e. paralegal); (2) death benefit paid to deceased
lawyer’s family for work he did; (3) sharing with non-profit that employed or recommend lawyer.

Partnership with Non-Lawyers

A lawyer must not form partnership with a non-lawyer if any of the partnership activities consist of legal service.
(i.e. lawyer and marriage counselor form partnership – one gives legal service, the other counsels)

Referral Fees & Arrangements

A lawyer may refer a client to another lawyer so long as the client consents and the referral is not exclusive.
Under the ABA, referral fees are not allowed. Under California, referral fees are allowed so long as client consents
and referral fee does not increase the total fee.

Duty to Safeguard Client’s Property

A lawyer has a duty to safeguard client’s property. A lawyer must hold property of clients (or third person) separate from
lawyer’s own property. A lawyer must keep client’s funds in a separate trust account (in same state his office is located).
Lawyer may only put his own money into that separate trust to pay bank service fees.

Duty to Notify / Account / Pay

A lawyer must also: (i) notify client promptly when third party turns money over; (ii) keep records of fund for 5
years after representation or termination; (iii) render appropriate accounting; (iv) promptly deliver funds to client or
third person.

Money Disputes
If lawyer is in possession of funds or property which lawyer or third person has claim and the client disputes the
claim, lawyer must keep disputed property separate until dispute is resolved and distribute all portions not in
dispute.

Interest on Client’s Funds

Large sums of money – kept in interest bearing account – interest belongs to client. Small sums of money – kept
in pooled account – interest can be sent to state bar or charitable legal programs.

Terminating the Relationship

A lawyer-client relationship ends prematurely by (1) client firing lawyer, (2) situations where lawyer must withdraw, and
(3) situations where lawyer may withdraw.

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Disclaimer: This outline does not contain every issue in the class. The rules and application are from my understanding. If
the rules or the application is inconsistent with your professor or your notes, use your professor’s application of the law.

Client Fires Lawyer

A client may fire lawyer anytime, even with no good reason, and will not be held in breach of contract. A lawyer is
still allowed to recover for the reasonable work done.

Mandatory Withdrawal
A lawyer must withdraw where (1) he is fired, (2) mental impairments affect his ability to represent client, and (3)
continued representation will result in violation of ethics or law.

Permissive Withdrawal
A lawyer may withdraw:

Crime / Fraud
A lawyer may withdraw if he reasonably believes client’s actions are criminal or to commit fraud. A lawyer
must withdraw if the crime or fraud involves his assistance.

Past Crime / Fraud

A lawyer may withdraw if client has used lawyer to commit past crime or fraud. The lawyer must urge
client to rectify situation if he refuses to withdraw. A lawyer may inform the defrauded party (“noisy
withdrawal”). California does not allow informing defrauded party – violates confidentially.

Repugnant
A lawyer may withdraw if client’s action are repugnant or fundamental disagreement with lawyer’s beliefs.

Fails to Fulfill Obligation

A lawyer may withdraw if client breaks promise or fails to fulfill obligation (i.e. fails to pay or not show up
to hearing).

Financial Hardship
A lawyer may withdraw if continuing will cause a financial hardship on lawyer. California does not allow.

Client Will Not Cooperate

A lawyer may withdraw if client has made the lawyer’s work unreasonably difficult (i.e. refusing to
cooperate in discovery proceedings)

Good Cause
A lawyer may withdraw if there is good cause for withdrawal.

Upon termination, lawyer must take reasonable steps to protect client’s interest:
 Reasonable notice of withdraw
 Provide client time to obtain new attorney
 Refund fees not earned and return all papers and property.

Scope of Representation
During representation, the scope of the client is to make substantive decisions while the lawyer’s scope is to have
authority over legal strategies. A lawyer may also take actions that are impliedly authorized to carry out representation.
 Substantive decisions – i.e. whether to settle, take plea, waive jury trial, appeal.
 Legal strategies – i.e. what witness to call and order of witness

LAWYER’S DUTY OWED TO OTHERS

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Disclaimer: This outline does not contain every issue in the class. The rules and application are from my understanding. If
the rules or the application is inconsistent with your professor or your notes, use your professor’s application of the law.

Truthfulness to Third Person

When dealing on behalf of client with a third person, lawyer must not knowing: (1) make false statement of material fact
or law or (2) fail to disclose material facts when necessary to avoid criminal or fraudulent acts by client unless
disclosure prohibited by duty of confidentially. Where the duty of confidentiality prevents disclosure of material fact or
assists in crime or fraud, lawyer must withdraw.

Respect Rights of Third Person

A lawyer must not embarrass, delay or burden a third person or violate legal rights of third person to obtain evidence.

Evaluation Used by Third Person

A lawyer may provide evaluation of a matter affecting a client for the use of a third person if the lawyer reasonably
believes making the evaluation is compatible with lawyer’s other responsibilities to the at client. If lawyer knows or
should now that evaluation will materially harm client, lawyer must obtain informed consent by client.

Misrepresentation - tort cross over – see main outline

Securities cases – bus org cross over – see main outline

Communication with Person Represented by Counsel

A lawyer must not communicate about a matter with third person who he knows is represented by counsel, unless (1)
party’s counsel consents or (2) law or court order authorizes.

Employee of Organization
Where the person represented is an organization, a lawyer must not communicate with current employees who
(1) regularly consult with lawyer about matter at hand, (2) whose conduct may be imputed to organization for
the purpose of criminal or civil liability, or (3) who has authority to bind the organization concerning the matter
unless (i) counsel consents or (ii) law or court order.

Consent is not needed for former employee of organization, however, lawyer must not violate the organization’s
legal rights such as attorney client privilege.

Example: Lawyer represents P in defamation case against LA Times. Without consent, Lawyer interviews a former
editor for LA Times to reveal privileged information that former editor had with LA Times' counsel had regarding the
case. Lawyer acted improperly.
 
Note: The rule does not prohibit: (1) a lawyer from communicating with a represented person when the communication
does not concern the subject of the representation; (2) represented persons from communicating directly with each other;
and (3) a lawyer from interviewing an unrepresented person who will be called as a witness by some other party.

Communication with Person Unrepresented by Counsel

A lawyer who communicates on behalf of a client to a person unrepresented must state he is representing his client and
has interest in the matter. If the lawyer knows or should know the unrepresented person misunderstood the lawyer’s role,
he must correct the misunderstanding. This rule does not prohibit to settle a client’s disputed with unrepresented person.

Documents Sent Accidently

If a lawyer receives a document relating to representation of a client, and knows or should of known it was sent by
mistake, he must not examine (only to extent necessary to identify who to return it to) the document and notify the sender
immediately. A lawyer must not use content to his advantage.

Lawyer as Third Party Neutral

A lawyer may serve as a third party neutral (i.e. mediator or arbitrator) to resolve dispute between two parties that are not
clients. Lawyer has duty to warn parties he is not representing them and no privilege exists.

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Disclaimer: This outline does not contain every issue in the class. The rules and application are from my understanding. If
the rules or the application is inconsistent with your professor or your notes, use your professor’s application of the law.

A lawyer cannot represent one side involved after resolution unless informed consent in writing by both parties.

Advocating in Non-Judicial Proceedings

A lawyer may represent client in non-judicial (i.e. city council, regulatory boards) but must disclose he is acting in
representative capacity. The lawyer must follow same rules as in court - i.e. not make false statements, obstruct access to
evidence, knowingly violate rules.

Law Reform Activities Affecting Client’s Interest

A lawyer may serve as a director, officer, or member of a law reform group, even though a reformed advocate by the
group may harm client’s interest. If decision could materially benefit his client, lawyer must disclose the fact, but not
clients identify.

LAWYER’S DUTY OF CANDOR TO THE COURT

False Statement of Law / Omit Material Fact

A lawyer must not make false statement of law or omit material fact to the court. The lawyer must know it is false, a
reasonable belief is not enough.

Harmful Facts – Ex Parte Exception

A lawyer has no obligation to disclose harmful facts about client. However, in an ex parte proceeding, a lawyer
must inform the court of all material facts since only on side is present and other side cannot over facts.

Example: DUI case – the court says, “Since it is Client’s first DUI, he will get probation. Lawyer knows it is his
client’s second DUI. Lawyer does not have to disclose since he didn’t cause the court’s mistake. However, if
Client caused the mistake and lawyer knew, he would have to disclose.

Legal Authority in Controlling Jurisdiction

A lawyer must not fail to disclose legal authority in the controlling jurisdiction that is directly adverse to client’s
position and that has not been disclosed by opposing counsel.

Example: Lawyer represents Client in a diversity of citizenship case in US District Court in Nevada. Nevada law
governs issue on substance. In the case at hand, Nevada's choice of law rules make the controlling law that of the
state of NY. Lawyer's adversary fails to call the court's attention to a NY Court of Appeal case that is directly
contrary to the position taken by Lawyer's client. Lawyer must cite the case to the court.

False Evidence
A lawyer must not use evidence he knows to be false. “Know” means actual knowledge but actual knowledge can be
interest from circumstances. A lawyer may refuse evidence he reasonably believes is false except for criminal defendant
testifying. A lawyer must correct any false evidence that was presented.

When a lawyer realizes client has offered false evidence, lawyer must take remedial measures by: (1) persuade client to
correct; (2) ask for withdrawal; (3) if not withdrawal is given – disclose to judge even if disclosure is of confidential
information.

Witness Perjury
A lawyer must refuse to call witness if he knows that witness will perjure himself. If lawyer learns witness perjured
himself, lawyer must take remedial measures by: (1) persuade client to correct; (2) ask for withdrawal; (3) if not
withdrawal is given – disclose to judge even if disclosure is of confidential information.

Criminal Defendant
A criminal defendant has a constitutional right to testify and lawyer cannot refuse to have him testify. Where a
lawyer knows the criminal defendant will perjure himself, the lawyer must: (1) persuade client to correct; (2) ask
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Disclaimer: This outline does not contain every issue in the class. The rules and application are from my understanding. If
the rules or the application is inconsistent with your professor or your notes, use your professor’s application of the law.

for withdrawal; (3) if not withdrawal is given: Under ABA, lawyer may disclose to judge. Under California, lawyer
not permitted to disclose and allow defendant to testify in the “narrative form.” The lawyer must not further the
deception and must not make reference of testimony in the trial (i.e. closing arguments)

Frivolous Lawsuits/ Position

A lawyer must not take a frivolous position on an issue. Frivolous position is one that is not supported by a good faith
argument under existing law or good faith argument to change existing law.

Note - It is not frivolous to assert a position: (i) without sustaining all the facts; (ii) knowing vital evidence can be
found through discovery; (iii) lawyer believes will not prevail. In criminal case, it is not frivolous if lawyer knows client
is guilty but still makes prosecution prove case.
 
Chicanery (Trickery) at Trial
A lawyer must not engage in certain type of chicanery during trial, such as:

Referring to Inadmissible Material

A lawyer must not make reference to matters that he does not reasonably believe is relevant or that will not be
supported by admissible evidence.
 
Example: During opening statements, lawyer states that P offered a settlement before trial. Lawyer would be
disciplined because he knew this would not be admissible in trial.
 
Personal Knowledge
A lawyer must not assert person knowledge of contested facts (facts in issue).
 
Example: In a dog bite case, D states he was not the owner of the dog. In closing arguments, lawyer says he lives
down the street from D and sees him walking his dog every night.
 
Personal Opinions
During trial, a lawyer must not assert person opinions about (i) the justness of a cause, (ii) the credibility of witness,
(iii) the culpability of a civil litigant, or (iv) the guilt or innocence of an accused.

Threats in Civil Cases – Duty to Report Violation

A lawyer may bring or threaten to bring criminal charges against his adversary in order to gain advantage in a civil case.
However, a lawyer must not threatened to report a disciplinary violation to gain advantage in a case. The lawyer has a
duty to report the violation.

Counseling Witness
A lawyer must not advise a witness to be unavailable. The lawyer must not advise a person not to testify unless: (1) that
person is a client, or relative or employee of client; and (2) lawyer reasonably believes that the person’s interest will not be
harmed by not volunteering information.

Lawyer must take appropriate measures to prevent any person from destroying evidence, bribing witness, intimidating
witness or failing to obey court orders.

Paying Witnesses
A lawyer must not pay a witness to testify unless it is for the witness’s reasonable expenses (i.e. travel, meals) or
reasonable fees of an expert witness.

Trial Publicity
A lawyer who is connected with a case must not interfere with defendant’s right to a fair trial and must not make out of
court statements that would have substantial likelihood of materially prejudicing the case.

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Disclaimer: This outline does not contain every issue in the class. The rules and application are from my understanding. If
the rules or the application is inconsistent with your professor or your notes, use your professor’s application of the law.

A lawyer may state:

1. Claim, offense, or defense
2. Identify person involved (except when prohibited)
3. Information that is public record
4. Scheduling or results in litigation
5. Request for help getting information or warning of danger (if appropriate)
6. Criminal cases – routine booking information about defendant – name, address, occupation, family status, pace
of arrest, names of investing agencies.

Statements that materially prejudice a case:

1. Criminal history of defendant
2. Identity of witness
3. Defendant’s confession or refusal to make statement
4. Opinion of guilt or innocence

Right of Reply
A lawyer may make "a statement that a reasonable lawyer believes is required to protect a client from the
substantial undue prejudicial effect of recent publicity not initiated by lawyer or client." (i.e. Newspaper publishes
incorrect facts about client – lawyer has right to reply to protect client)

Prosecutor Special Responsibilities

1. Prosecutor must not prosecute a charge he knows is not supported by probable cause.

2. Prosecutor must make reasonable efforts to advise the accused of his rights and give reasonable time to
obtain counsel.

3. Prosecutor must not obtain a waiver from an unrepresented accused of important pretrial rights such as
preliminary hearing.

4. Prosecutor must disclose all evidence or information that will help defense, mitigate punishment or remedy a
conviction where accused is innocent.

5. Prosecutor must not subpoena a lawyer to give evidence about a client unless the information is (1) not
privileged, (3) essential to investigation, and (3) cannot be obtained another way.

6. Prosecutor must not make extrajudicial comments that have “substantial likelihood of heightening public
condemnation of the accused” except for statements necessary to inform public of and extent of prosecutor’s
action and sever a legitimate law performance purpose.

Right of Reply
A lawyer may make a “statement that a reasonable lawyer believes is required to protect a client from the
substantial undue prejudicial effect of recent publicity not initiated by lawyer or client.”

Note – right of reply basically means that where a prosecutor makes such extrajudicial comments,
defense counsel as a right of reply and may make statements to help cure the prosecutor's remarks, even
though normally he wouldn’t be able to make such comments.

Duty to Preserve Impartiality of Tribunal

Influence Judge

Daryoush Zolfaghari
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Disclaimer: This outline does not contain every issue in the class. The rules and application are from my understanding. If
the rules or the application is inconsistent with your professor or your notes, use your professor’s application of the law.

A lawyer must not influence a judge or any official by means prohibited by law. A lawyer must not make
statements about qualification of integrity of judge that he knows to be false.

Ex Parte
A lawyer must not communicate ex parte with judge or juror except when authorized by court. Lawyer must
disclose relevant information, even facts adverse to client.

Influence and Communication with Jurors

A lawyer must not influence juror or prospective juror by any means prohibited by law. Before and after a jury trial,
lawyer must not communicate (outside official proceedings) with juror. After discharge of jury, lawyer must not
communicate with jury if (1) it is prohibited by court; (2) juror has made it known not be contacted; (3)
communication involves misrepresentation, coercion or harassment; or (4) intended to disrupt a tribunal.

Duty to Expedite Litigation

A lawyer has a duty to make reasonable efforts to expedite litigation. Delays are acceptable when necessary, however,
not for financial or other benefit.

Court Orders
A lawyer must not knowing violate a rule or procedure, rule of evidence or court order. A lawyer may, however, opening
refuse to obey for the purpose of making a good faith challenge to the validity of the rule.

LAWYER’S DUTY OF INTEGRITY TO THE PROFESSION

Solicitation
A lawyer must not initiate direct contact, whether in person, by telephone or real time electronics, with a prospective client
when the motive is for financial gain unless the recipient is (1) another lawyer, (2) prior client, or (3) has familial or
professional relationship with lawyer. California permits real time electronics. California prohibits solicitation at hospital.

Communication is not solicitation if (1) directed to general public (that would be advertisement); (2) responds to request
for information; (3) offers pro bono services.

Agents (“runners” or “cappers”)

A lawyer must not use agents to solicit. However, a lawyer is permitted to participate in a prepaid legal service
plan who make personal and live telephone contact with prospective subscribers that are not known to need legal
services.

Advertisement
A lawyer may advertise services through written, recorded or electronically if advertisement include the name and address
of at least one lawyer, states the field of law lawyer practices, and the words “Advertising Material” must be on the outside
of the envelope and first page of advertisement unless recipient is either (1) another lawyer, (2) prior client, or (3) has
familial or professional relationship with lawyer.

California further requires:

1. Advertisement not make any guarantees or predictions.
2. Not advertise quick settlements
3. If contingent fee advertisement, it must state whether client will be liable for cost.
4. Mailed advertisement must be kept for 2 years.

Certified Specialist
A lawyer may advertise that he is a specialist in an area if (1) he is certified by an organization recognized by the state
bar or ABA, and (2) the organization is named and clearly identified when communicating. Patent and Admiralty
lawyers may use designation, “Patent Attorney” or “Proctor in Admiralty.”
Daryoush Zolfaghari
Revised 2019 12
Disclaimer: This outline does not contain every issue in the class. The rules and application are from my understanding. If
the rules or the application is inconsistent with your professor or your notes, use your professor’s application of the law.

Payment for Recommending Lawyer

A lawyer must not pay a person for recommending the lawyer except for reasonable cost of advertisement (i.e.
website designer) or usual charges of a legal service plan referral service.

Law Firm Name

Multiple Names
 Name of multiple partners permitted
 When one lawyer dies or retires – may still use his name
 If lawyer leaves to hold office – must take his name off until he returns
 Law firms that have multiple offices in more than on jurisdictions may use same name but must indicate the
jurisdiction each lawyer is licensed to practice (i.e. Joe Smith - admitted in CA only)

Partners
Lawyers must not imply that they practice in a partnership or associated with each other unless they really are.
Example: Lawyer A and B share office space, secretarial services, and common library. The sign on the office says
"Office of A and B, Attorney at Law. This sign is not proper.

Associated and Affiliated Firms

Two law firms may hold themselves out to public as being associated or affiliated if they have close, regular, on-going
relationship and if designation is not misleading. However, both law firms would be treated as single unit for conflict of
interest purposes.

Responsibility of Partners and Supervisory Lawyers

Duty to Educate Firm

A supervising lawyer of a firm must make reasonable effort to assure that lawyers and non-lawyers adhere to rules of
professional responsibility. Supervisory lawyers are subject to discipline of both lawyers and non-lawyers if (1) he orders
another lawyer’s misconduct or (2) knows of the misconduct and fails to correct.

Subordinate Lawyers
A subordinate lawyer must follow rules of ethics even acting under direction of supervisor. However, a subordinate lawyer
does not violate ethic rules if he’s acting in accordance with supervisor’s reasonable resolution of an arguable question
of professional duty – meaning too close to call but someone (supervisor) has to make decision.

Sale of Law Practice

A sale of law practice is permitted where: (1) seller ceases to engage on private practice of law or sold field of practice in
area practice was conducted; (2) entire practice sold; (3) written notice to clients – must include notice to pick up files if
client wants to seek other counsel, and that if no action is taken by client after 90 days, consent to transfer files is
presumed. The seller must exercise competence in finding a qualified buyer. California – do not have to stop
practicing in area but sell whole practice.

Restrictions on Right to Practice

A lawyer must not make or offer a partnership, employment or agreement that restricts a lawyer’s right to practice after
termination of relationship except concerning benefits upon retirement. In addition, a lawyer must not make or offer an
agreement in a settlement that would restrict lawyer’s right to practice.

Example:
Lawyer A hires lawyer B to work at A's Los Angeles Firm. They agree that after leaving A's firm, B cannot practice in
the Los Angeles. This is improper.

Daryoush Zolfaghari
Revised 2019 13
Disclaimer: This outline does not contain every issue in the class. The rules and application are from my understanding. If
the rules or the application is inconsistent with your professor or your notes, use your professor’s application of the law.

A, experienced lawyer, and B, young lawyer, enter into a partnership. They agree that after A retires, the
partnership would pay A's retirement of $5,000 a month so long as A didn’t practice law. This is proper.

Unauthorized Practice of Law

A lawyer is not permitted to practice where his license is suspended, revoked, disbarred or in jurisdiction he is not
licensed. A lawyer must not assist someone, including a person who is suspended or disbarred, in unauthorized practice
of law. Exception: “Pro Hac Vice” (asking court permission to work on case in unlicensed area); temporary practice (i.e.
taking depositions).

Misleading Communication Lawyer’s Services

A lawyer must not make false or misleading communications about his services even if the communication is true. This
includes creating unjustified expectations (i.e. same results in previous cases). This applies to ads, personal
communications, office signs, etc. (i.e. graduating from UWLA, taking a law seminar at Yale in 2005 – putting “Yale
School of Law 2015” in advertisement.

Responsibilities Regarding Law Related Services

A lawyer will be subject to rules of professional responsibility with lawyer’s “law related” services if (1) lawyer fails to
distinguish the non-legal from the legal, and (2) fails to ensure person receiving non-related service know that they are not
legal service and no lawyer-client relationship exists.

Membership in Legal Service Organizations

A lawyer may serve as a member of a legal service organization (apart from regular employment) even if organization
serves person whose interest are adverse to lawyer’s client. However, lawyer must not knowingly participate in a decision
or action of organization if doing so: (1) creates conflict of interest, or (2) adversely affects the representation of one of the
organization’s clients whose interest are adverse to client of lawyer.

Political Contributions for Government Employment

A lawyer or firm must not accept a government legal engagement of appointment if lawyer makes or solicits political
contributions for purpose of obtaining such appointment.

Nonprofit and Quick-Advice Programs

Programs where lawyer offer quick advice, without further assistance (i.e. legal hotlines, clinics) establish a lawyer-client
relationship but neither person expects the relationship to continue past the quick-advice stage. Conflict of interest rules
are “relaxed.”

Pro Bono
A lawyer should spend 50 hours of pro bono services of pro bono work. A lawyer can pay someone else to do his hours.

Daryoush Zolfaghari
Revised 2019 14
Disclaimer: This outline does not contain every issue in the class. The rules and application are from my understanding. If
the rules or the application is inconsistent with your professor or your notes, use your professor’s application of the law.

Daryoush Zolfaghari
Revised 2019 15