MPRE

Essentials
LAWYER’S MISCONDUCT

A A lawyer shall not:

B 1. Violate or attempt to violate the Model Rules or the law either personally or through
the acts of another. E.g., a lawyer can’t directly contact a prospective juror, and can’t
hire a private investigator to do it for her. Rule 3.5(c) and 8.4(a).

C It is not a defense that the lawyer was told to do something unethical by a managing
attorney (i.e. just following orders), unless the attorney’s conduct was a “reasonable
resolution” of an arguably ethical issue, (i.e. it was “a close call” and was not “clearly
unethical”).

D 2. Commit a criminal act that adversely reflects on the lawyer’s honesty, trustworthiness,
or fitness as a lawyer. E.g., theft, violence, or a willful (not negligent) failure to file an
income tax return, even if it turned out no taxes were owed.

E Note that adultery is not an ethical violation because it has no specific connection with
the fitness to practice law. Rule 8.4, Comment [2].

F A pattern of repeated minor offenses may indicate an “indifference to legal obligations”

amounting to unfitness. Rule 8.4, Comment [2].

G 3. A lawyer shall not “knowingly” counsel or assist a client in criminal or fraudulent

conduct. Rule 1.2(d).

H 4. Imply an ability to influence or to receive favorable treatment from a judge or other

public official. Rule 8.4(e).

I 5. Assist a judge in conduct that violates the Code of Judicial Conduct. Rule 8.4(f).

J 6. Knowingly disobey a court rule or court order, or advise a client to do so, except an
attorney’s open refusal to comply with a court order, because the court lacked the
authority to impose the order.

K 7. As of 2016, a lawyer is subject to discipline for engaging in speech or conduct that the
lawyer knows or should know is harassment or discrimination based on gender, age,
religion, sexual orientation, socioeconomic status, ethnicity, or disability but while

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 engaged in the “practice of law” includes law firm social events or professional
conferences which are an extension of the workplace. Rule 804(g).

REPORTING ATTORNEY MISCONDUCT

A A lawyer or judge has a duty to inform the disciplinary authority if the lawyer possesses
“unprivileged knowledge” (more than mere suspicion) that another practicing or non-practicing
lawyer or judge has committed misconduct that raises a “substantial” question as to that lawyer’s
honesty or fitness as a lawyer. The complaint may not be made anonymously, and the reporting
attorney is not required to withdraw from the client’s matter after making the report. This
reporting requirement is a quid pro quo for the bar's privilege of self-regulation. Rule 8.3; CJC
§3D (1) and (2).

B It is not unethical for a lawyer or judge to get drunk in public, and there is no duty for others to
report it. However, intoxication that materially impairs the lawyer’s ability to practice law gives
rise to a duty for other lawyers to report it. For example, where an attorney or judge is convicted
of D.W.I., this raises a “substantial” question as to the lawyer’s fitness giving rise to a duty to
report.

C A lawyer shall not threaten opposing counsel with an ethics complaint to gain an advantage in a
pending matter. The threatening lawyer is ethically obligated to report such misconduct. Rule
8.3.

D In a civil case, however, an attorney may threaten criminal prosecution unless the civil matter is
settled, provided the criminal and civil matters are related and the lawyer has a well-founded
belief that the criminal charges are warranted. (to report drug activity unless a paternity matter is
favorably settled is improper while threatening). (For example, to file a criminal battery charge
with the D.A. if a civil battery claim is not settled is permissible).

E There is no duty to report if the lawyer learned of another’s ethical violations:

F Through the representation of a client acquired from any source. Here, the client’s
consent to disclose must first be obtained because client confidentiality trumps the
obligation to report. A lawyer should encourage a client to consent if disclosure would
not prejudice the client’s interests.

G While representing that unethical lawyer as a client, because such information is

protected by the attorney-client privilege.

H While serving as a member of or participating in an approved drug or alcohol assistance

program, e.g., Alcoholics Anonymous. Rule 8.3(c).

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A Where the lawyer only has suspicion (rather than actual “knowledge”) of unethical conduct.
CONDUCT PREJUDICIAL TO THE ADMINISTRATION OF JUSTICE

B Conduct is prejudicial to the administration of justice involves a lawyer’s conduct that impedes
the process of resolving disputes. Rule 8.4(d).

EXAMPLES:

C As part of settling a civil lawsuit, it is unethical for Attorney Alpha to ask opposing counsel to
refrain from reporting Alpha’s ethical violations. This would be “prejudicial to the
administration of justice.” Rule 8.4(d)

D Hiring co-counsel who is a judge’s close relative or friend, solely to force the judge to remove
herself from the case; or

E Alpha advising C, client, to visit Bravo as a strategy to disqualify attorney Bravo from later
representing someone else in the same case. This does not disqualify Bravo who may even use
this information to the C’s detriment since the C never had a “good faith” “reasonable
expectation” of forming an attorney-client relationship with Bravo.

LAWYER’S MISREPRESENTATIONS (NO LIES)

F A lawyer shall not knowingly make a false statement:

G of “material” fact or law to a third person while representing a client. Rule 4.1. Evidence is
“material” if it could change the results in a case, or

H of any fact or law to a tribunal, and, upon learning that her earlier statement was false, she shall
not knowingly fail to correct a false statement of “material” fact. (There is no need to correct an
immaterial misstatement to the court). Rule 3.3(a)(1).

I to anyone outside the practice of law by engaging in moral turpitude, dishonesty, fraud, or
misrepresentation. Rule 8.4(c).

J The prohibition against making a “false statement” does not apply to statements during
negotiations on the amount needed to settle a lawsuit or estimates of value or price when
negotiating a purchase or a sale on a client’s behalf, because they are not statements on which the
other party should reasonably rely. Rule 4.1.

A lawyer’s communication is “misleading” if it:

Misrepresents a material statement of law or fact;

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A Omits a fact necessary to make the statement non-misleading. Rule 4.1(b).

B Is likely to create an unjustified expectation about the results a lawyer can achieve for a client.
Rule 7.1(b). (E.g., a lawyer implying similar awards can be achieved in other cases. An
appropriate disclaimer (e.g., “not all personal injuries warrant $1 million verdicts” or “past
results do not guarantee future results” may preclude a finding that a statement is likely to create
unjustified expectations. Rule 7.1, Comment [3].

C An attorney, who writes a letter of recommendation, may not engage in deceit, falsity, or a
misrepresentation.

D A lawyer appearing before a body, such as legislative or administrative rule making hearing that
is not functioning as a tribunal, shall not silently mislead that body regarding the fact that the
lawyer is representing a client’s interest. Thus, the lawyer must advise that body that she is
speaking as a paid advocate rather than a private citizen, but the lawyer need not disclose who
she represents.

E A lawyer shall not use a firm name, domain name, letterhead, or other designation that is false or
misleading. Rule 7.5(a).

F Law firms can expand into other states and continue to use the same firm name in both
jurisdictions.

G A trade name may be used (“Litigators.com”) or (“Lawyer's Legal Clinic”) provided it does not
mislead or imply any connection with a charitable or governmental organization. When a trade
name includes a geographical name (“Springfield Legal Clinic”), a disclaimer may be necessary
to avoid misleading the public from thinking it is government-related organization.

H It is misleading for an attorney in public office (a mayor, governor or ambassador) to permit her
name to remain on the law firm during any significant period in which she does not "RAP" #1
the Law (regularly and actively practicing law). Rule 7.1,Comment (8)(2018).

I The Model Rules do not govern nonlawyers except for a law student’s false statements for bar
admission.

CLIENT’S MISREPRESENTATIONS

A lawyer shall not knowingly allow a tribunal to be misled by a client’s false material statement
of law or fact. A lawyer must correct a false statement of material fact or law previously made to
the court by her client or a witness. When a lawyer "knows" that the client has lied to the court
(perjury at an EBT, at an arraignment, at the trial, or at sentencing) and the client won’t correct
it, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure of the

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 truth to the tribunal. The lawyer’s duty of complete candor to a tribunal outweighs the duty of
client confidentiality. Withdrawal alone is no longer an option in a perjury situation. Rule 3.3,
Comment [10]. This duty to the tribunal continues until a legal matter is completed, e.g., a
criminal defendant is acquitted or convicted, and all possible appeals have ended, or the time to
appeal has expired. Rule 3.3. Note that, a number of jurisdictions have declined to adopt this
rule and simply allow the lawyer to withdraw without disclosure.

A A lawyer SHALL not offer evidence to the court that the lawyer "knows" is false, Rule 3.3(a)(3).

B The lawyer MAY refuse to offer evidence (other than the testimony of a criminal defendant), if
the lawyer only "reasonably believes" (i.e., he is not sure) the testimony or evidence is false.
Rule 3.3(a)(3). E.g., a lawyer may refuse to offer a letter or document that the lawyer
“reasonably believes” is forged or recently fabricated.

C This rule is different for a criminal defendant who has a constitutional right to testify, thus the
lawyer may not prevent the client from taking the stand and testifying falsely even though the
lawyer doesn’t believe the client as long as the lawyer does not “know” the client’s testimony is
false. Rule 3.3(a). The lawyer then plays a limited role by letting the criminal defendant testify
in the narrative (no questioning by the lawyer), thus, the lawyer does not assist the client in
perpetuating a fraud on the court. The lawyer cannot refer to the defendant’s false testimony in
closing arguments to the jury.

D When a client lies to others (not to the court), the lawyer cannot disclose (it’s confidential) but
must seek to withdraw from the case to avoid knowingly aiding the client in fraudulent or illegal
conduct. Rule 1.2 (d), Comment [10] (cf 1.16(b)(2) and (3)). The lawyer must make a “noisy
withdrawal” if the lawyer “reasonably believes” the client intends to continue the fraud or
criminal conduct which the lawyer has unwittingly facilitated (the crime of facilitation). ABA
Formal Opinion 92-366 (1992).

UNAUTHORIZED PRACTICE OF LAW

E The Rules forbid a lawyer from regularly practicing law within a jurisdiction in which the lawyer
is not licensed and a lawyer shall not knowingly assist another in the unauthorized practice of
law.

F A nonlawyer (e.g., a law student) is permitted to represent herself pro se, but cannot represent a
relative, friend, or an entity (an estate, corporation, or trust).
G A lawyer who gives legal advice to a pro se party is not aiding in the unauthorized practice of
law.

H A full-time judge cannot practice law except pro se, but she can, without compensation, give
legal advice, or draft and review documents but only for family members or someone with whom

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 she maintains a close family-type relationship (e.g., domestic partner) – but not for a neighbor or
friend. Also, she cannot serve as that close person’s attorney. CJC Rule 3.10.

MULTIJURISDICTIONAL PRACTICE (M.J.P)

A A lawyer currently admitted in State Y (not disbarred or suspended) may now offer legal
services on a temporary or occasional basis in another jurisdiction where she is not admitted, (“in
state X”) if it is “related to” or “arising out of” the lawyer’s legal work in her home state Y).
However, she may not maintain a law office or hold herself out as practicing law in state X
where she is not admitted.

B She may practice law in State X where she is not admitted:

C 1. Under the supervision of a lawyer admitted in “State X” who actively participates in that
matter, or

D 2. Where the litigation services performed in State X (depositions, document review,

interviewing witnesses, or meeting with clients) are “reasonably related” to pending or
anticipated litigation in (i) the lawyer’s home State, Y or (ii) expects to be admitted
temporarily by motion, pro hac vice (for this one time); or

E 3. Services that do not require pro hac vice admission and are reasonably related to the
lawyer’s home state practice involving alternate dispute resolution or mediation
proceedings. Rule 5.5(c)(3). She may come into “State X” where she is not admitted and
participate in an arbitration proceeding if it is connected with her home State Y’s
practice; or

F 4. Transactional matters that are not related to # 2 above (litigation) or #3 above (alternate
dispute resolutions) but are reasonably related to the lawyer’s home state Y’s practice.

G Paragraphs 5 & 6 below are not limited to practicing on a temporary basis:

H 5. The client is the attorney’s employer, (in-house corporate counsel or a government

lawyer) and the legal work does not require court appearances). Here, legal services are
not rendered to individuals, but only to the entity. Restatement §3, Comment f; Rule
5.5(d); or

I To accommodate the preferences of international clients who desire a foreign trained

lawyer as their U.S. in-house counsel, foreign attorneys who otherwise could lawfully
practice law as in-house counsel under the laws of the foreign country, can practice as in-
house counsel in the U.S. without being admitted, but when advice on American law is

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 required, then to protect the client, the foreign trained lawyer’s advice must be based on
speaking with a lawyer who is authorized by that state to provide legal advice.

A This Rule 5.5 also permits foreign lawyers to:

a) be admitted pro hac vice if supervised by a U.S. lawyer, or

b) provide legal services when authorized by Federal law.

B Although the foreign lawyers do not have to be admitted to a state’s bar, they must register with
the state bar, pay any mandatory bar dues, comply with CLE requirements and, if required,
contribute to the client protection fund.

C 6. An attorney practicing federal law can be admitted in any U.S. state. The U.S. Supreme
Court has held that based on the Constitution’s Supremacy Clause, and federal
preemption, individual states may not regulate the practice of law before federal courts or
federal agencies which are governed by federal law. Rule 5.5(d).

SALE OF LAW PRACTICE

D When a lawyer (usually a sole practitioner) dies, disappears, moves away, retires, becomes a
judge, goes into public service, or just ceases to practice in an area of the law, she can sell her
law practice or a part of it provided:

E The lawyer sells either the entire practice or an entire area of practice to one or more
lawyers.

F The selling lawyer ceases to practice law within the geographic area where the practice
was conducted, (however, a return to private practice as a result of an “unanticipated
charge in circumstances” occurs (the lawyer sells her practice to accept a judicial
appointment but resumes after being defeated in an election. Such a resumption does not
violate the requirement that the selling lawyer ceases to practice law within the
geographic area).

G The lawyer provides written notice to the client of the client's right to retain other counsel
and to take possession of the client’s file.

H The client consents (consent is presumed if client does not object to the purchasing
attorney within 90 days).

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A Existing fee arrangements between the selling lawyer and the client are honored by the
purchasing lawyer (i.e., the purchasing lawyer cannot increase fees pay for the purchased
practice).

RESTRICTING THE RIGHT TO PRACTICE LAW

B Lawyers shall not “contract away” the ability to freely practice law in:

1. a client’s agreement to settle a claim,

2. an employment contract with a law firm, or

3. a partnership agreement.

C Lawyers can participate in a “collaborative arrangement” in which all the lawyers and clients
agree to work together to negotiate a settlement without court intervention. If negotiations break
down and either client pursues litigation, both lawyers agree to withdraw from any further
representation. This is merely a type of limited representation permitted under Rule 1.2. ABA
Op. 07-446

D A lawyer may covenant not to compete with her firm as a condition to receiving firm retirement
benefits. Thus, a law firm may condition the payment of retirement benefits on the lawyer
retiring and not competing with the firm.

PRO BONO SERVICES

E Every lawyer “should” aspire to provide 50 hours per year of pro bono legal service (civil or
criminal) to those “unable to pay” but a lawyer who fails to so, is not subject to discipline (that’s
less than an hour a week). Rule 6.1

F “A substantial majority” of the legal services should be performed free to clients of "limited
means," or by providing legal services to organizations assisting such people (e.g., “legal
services” to shelters for battered women, to the homeless, or to food pantries serving those of
limited means).

G The balance of the 50 hours of legal service may be satisfied by free or substantially
reduced fees to:

H individuals,

I organizations seeking to protect the civil rights of poor people,

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A charitable, religious, civic, or educational organizations to address the needs of poor
persons (NAACP, YMCA, Boy Scouts, a church, mosque, or synagogue to address the
needs of the poor), or

B Bar Association activities to improve the law, such as teaching CLE classes, or acting as
an arbitrator for client fee disputes or lobbying the legislature for changes in the law.

C This pro bono requirement may also be satisfied either by:

D the “buy out” option, i.e. by donating money to organizations that provide free legal
services, or

E designating the law firm’s aggregate pro bono responsibility to other lawyers within the
firm. Rule 6.1 [Comment 9].

DECLINING LEGAL EMPLOYMENT

F A lawyer shall not accept a client’s matter unless it can be performed competently, promptly, and
without a conflict of interest.

G There is no ethical duty for a lawyer to accept a legal matter unless the request is from a court. A
lawyer shall not decline a court appointment for representation except where the representation:

H is likely to result in a violation of the Model Rules, e.g., where there is a conflict of
interest (an opposing party is represented by attorney’s law firm), or where the lawyer
cannot handle the matter competently,

I would impose an unreasonable financial burden on the lawyer, or

J the client’s case is so repugnant to the lawyer that it impairs her ability to effectively
represent the client (intense feelings). Rule 6.2.

K A lawyer who declines a potential client owes a duty to advise that client on an
immediate (a couple of days) expiration of the Statute of Limitations.

L A lawyer who negligently tells a prospective client that the client has no claim is subject to
malpractice liability if the client had a valid claim. Restatement of Lawyering § 15, Reporter’s
notes.

M A lawyer shall not accept employment or shall withdraw from the representation of a C²RAP
client. Rule 1.6.

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 C - COMPETENCY is lacking

C - CONFLICT of interest

R - The legal representation would violate the Model RULES, e.g., the lawyer must decline
representation because she “knows” the client’s intended conduct is fraudulent or criminal in
violation of Rule 1.2 (d). The lawyer must decline representation.
A lawyer who “knows” a client expects assistance from a lawyer that is not permitted under
Rules, must advise the client of the limitations of the lawyer’s representation.
For example, in a matrimonial action the lawyer cannot harass or hide assets from the other
spouse. Rule 1.4 (a)(5); Rule 1.2 Comment [13].

If the lawyer has been appointed by a court or the matter is in pending litigation, court
approval is required, for a lawyer to withdraw and the lawyer still owes a duty of
confidentiality to the client. Thus, when the court asks for the reason, why counsel is
withdrawing, the lawyer's response is that “PROFESSIONAL CONSIDERATIONS
REQUIRE TERMINATION OF THE REPRESENTATION” which ordinarily is accepted by
the court as sufficient. Rule 1.16 Comment [3].

A - The client is ADVANCING a frivolous claim or defense,

P - The PHYSICAL or emotional condition of the attorney prevents adequate representation.

LAWYER’S COMPETENCE

A A lawyer does not necessarily have to be experienced in a particular matter in order to

competently handle it. A lawyer can provide adequate representation in a wholly new area of
law through study, as long as it does not cause the client unreasonable expense or delay.
Lawyers may not charge clients a fee for time necessitated by their own inexperience.

B An Attorney who is not competent to handle a client’s matter can provide competent
representation by associating with a competent lawyer, but only with the informed consent of the
client.

LAWYERS SUPERVISION

C Lawyers, including managing and supervising prosecutors and public defenders, are ethically
required to ensure that the lawyers under their supervision comply with ethical standards,
including:

avoiding conflicts of interest,

meeting deadlines,

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 monthly accounting of escrow funds, and

supervising billing procedures.

LIMITED REPRESENTATION

A With a client's informed consent, a lawyer is permitted to limit the scope of representation to a
specifically defined narrow purpose. The lawyer must fully inform the client, preferably in
writing, of any significant problems such limitations may cause and also define the tasks the
lawyer will perform and will not perform. Rule 1.2(c). Limited representation (“unbundled
legal services”) puts the client in a better position than if the client had no legal representation.

FRIVOLOUS CONDUCT

B A lawyer shall not advance a claim or defense that is not supported by existing law, or supported
by a “good faith” argument for reversal or modification of existing law. Rules 1.16 & 3.1.

C If the lawyer pursues a frivolous claim, defense, or motion, the attorney is subject to discipline
and “litigation sanctions” by the court.

D In federal courts, if within 21 days of receiving notice of a motion for sanctions, the lawyer
withdraws the frivolous pleading or motion, then the motion for sanctions may not be filed with
federal court. Here, F.R.C.P. § Rule 11(c)(1)(a) provides a "safe harbor" against litigation
sanctions.

E In a criminal case, or in a civil case that could result in incarceration, even though defense
counsel knows that the accused has no effective defense, it is not frivolous for defense counsel
force the D.A. to prove every element of the crime based on the accused’s constitutional right to
the effective assistance of counsel. Rule 3.1

WITHDRAWING FROM LEGAL REPRESENTATION

F A client is free to discharge an attorney at any time, either for good cause or without cause. The
lawyer may not deny that right in the retainer agreement or subject this right to nonbinding
mediation or arbitration because this would restrict the client’s right to immediately terminate the
lawyer’s services.

G A retainer agreement may provide that any fee dispute or a claim for legal malpractice be
submitted to binding arbitration provided the client first gives informed consent after the risks
and benefits of arbitration are fully explained to the client in writing.

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A If the lawyer is discharged “for cause”, the attorney forfeits the right to collect a legal fee.

B If the client discharges the attorney without cause, then the attorney may treat the retainer
agreement as rescinded and assert a claim in quasi contract (to recover for the fair value of the
legal services rendered). Rule 1. 16(a)(3).

C The grounds for mandatory withdrawal of a matter are the same as for declining employment
(C2RAP).In addition to C2RAP, an attorney must withdraw from conducting a trial if it is
“likely” the attorney will be called to testify as a “necessary witness” on a contested issue and
that evidence is not available from another source. Rule 3.7. The client cannot waive this Rule.

D A testifying lawyer is disqualified because the function of an advocate is to explain evidence

given by others, as well as to argue and advance the client’s case, whereas the function of a
witness is to state facts objectively. Mixing these roles may confuse the fact finder. If the
advocate is allowed to testify, he or she would be susceptible to impeachment as a biased
witness, thus, weakening the evidentiary value of that testimony.

E This disqualification rule applies only to the trial. It does not prevent an attorney from
participating in pretrial discovery, pretrial motions, or a post-trial appeal. Another lawyer in the
lawyer’s firm is not vicariously disqualified from trying the case.

F This “advocate-witness” prohibition does not apply to an attorney who is a representing herself
pro se in litigation.

Under Rule 3.7, a testifying attorney is not disqualified from litigating, if U-SUCH:

U - the lawyer is UNLIKELY to be called

S - the testimony is related to LEGAL SERVICES
U - the testimony involves UNCONTESTED issues
C - the testimony will be CUMULATIVE, i.e., other witnesses can give the same testimony
H – disqualification of the lawyer would result in substantial HARDSHIP to the client

If mandatory C²RAP grounds for withdrawal are not present, then an attorney “may” ethically
withdraw from legal representation (i.e., discretionary withdrawal):

for no reason, if the withdrawal can be done without a “material adverse effect” on the
client’s interests, or

even if it would cause material adverse effect to a client, if 4Fs:

F - The lawyer “reasonably believes” (but does not “know”) FRAUD or Illegality is being
pursued by client (even if the lawyer does not further it). Rule 1.16 Comment [7].

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 E.g., the client may be involved in money laundering. A lawyer “shall” withdraw if
she “knows” that the representation will violate the Model Rules, but she “may”
withdraw when a client persists in conduct the lawyer “reasonably believes” may be
criminal or fraudulent. Rules 1.16 (a) and 1.16 (b).

F - The client and lawyer have a “FUNDAMENTAL DISAGREEMENT” on how to

conduct proceedings.

F - The FINANCIAL BURDEN on the lawyer is too great.

F - The FEE arrangement is “deliberately” breached by the client.

A If the client’s matter is in court, then a motion to the court to withdraw is always required to
withdraw. Rule 1.16(c). In making this motion the lawyer shall minimize the use of the client’s
confidential information in the motion papers. E.g., the lawyer should make the motion in
chambers, under seal or use the phrase suggested by Model Rules that “professional
considerations require withdrawal.”

B An attorney shall continue to represent a client in a litigation matter when ordered to do so by

tribunal even where grounds for mandatory or permissive withdrawal exist.

C Whenever a lawyer withdraws, a lawyer shall take SOUND steps to protect the client’s interests:
Rule 1.16(d):
S- Cooperate with the SUBSEQUENT Counsel
O- Recommend OTHER Counsel
U- UNEARNED money returned to client
N- NOTICE of withdrawal given to the client
D- DELIVER papers to which the client is entitled. Here, the majority approach is to return
only the “end product.” The lawyer’s retainer agreement should explain who is
responsible for the cost of the copying.

ATTORNEY'S FEES
D Lawyers shall not charge fees or expenses that are unreasonable, i.e., excessive. Rule 1.5.

E In determining the reasonableness of the fee, courts consider RENT A SERF:

R - RELATIONSHIP with the client (nature and length)

E - EMPLOYMENT from others that will have to be turned down
N - NOVELTY of the issue involved
T - TIME involved

A - AMOUNT customarily charged in that locality

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 S - SKILL required for the legal services
E - EXPERTISE of the lawyer
R - RESULTS achieved and the amount involved
F - FIXED or contingent fee

A The scope of the representation, the fee to be charged, and who is to pay expenses shall be
communicated to the client “preferably” in writing, either before or within a reasonable of time
after commencing the representation, except for a regularly represented client who will be
charged the same fee that was previously charged. Rule 1.5(b).

B Once the contingent fee or hourly rate is fixed, it cannot be altered, absent an unanticipated
change in “special circumstances,” E.g., raising the contingency fee from 25% to 30% because
the lawyer had to add more defendants to the case, or has to expend more money to fund the
case. A lawyer’s unilateral modification of a fee agreement is presumptively improper and
unenforceable, especially when done on the eve of trial. The client’s informed consent is
required, and the client must be advised that the client does not have to agree to the fee increases
in order to have the lawyer continue to represent the client (No threats by lawyers).

C Once a potential malpractice claim or a “material error” that falls short of malpractice but may
cause the client to terminate the lawyer’s service arises, the lawyer must promptly, notify the
client and can enter a settlement agreement with a client, but to avoid the lawyer taking unfair
advantage of the client, the lawyer must first advise the client in writing of the “desirability” of
seeking the advice of an independent attorney, and giving the client reasonable time to do so.
Rule 1.8(h)(2).

D The retainer agreement may not:

E allow the attorney to approve or disapprove any settlement of the client’s claim, or

F attempt to prospectively limit malpractice liability to a client unless the client is

independently represented by counsel. However, counsel can limit her liability when
drafting an opinion letter addressed to a non-client. Rule 1.8(h).

G charge a nonrefundable FEE because this limits the client’s right to fire the lawyer. Rule
1.6 and 1.5

H The lawyer may hold client property (a diamond ring, negotiable note, a mortgage or other lien)
as security for payment of the legal fee, but such security arrangements are considered "business
transactions". Thus, a written informed consent must be signed by the client that would cause the
client harm, or even if no harm, would cause the client to consider terminating the lawyer’s
employment. (“A.B.C." and “WAIF” (Mnemonic 9 and 10)).

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A A lawyer shall not (even with the client’s consent) acquire an interest in the client’s litigation
(the lawyer can’t take an assignment of all or part of the client’s claim). This would
impermissibly allow the lawyer to veto any settlement offer and make it difficult for the client to
discharge the lawyer. Rule 1.8(i).

B However, a lawyer may acquire shares of stock in its corporate client as a fee for legal services
performed. Such an arraignment is treated as a business dealing with a client which must
comply with the client’s signed writing rule. "ABC" & "WAIF" (Mnemonic 9 & 10); Rule 1.8.

CONTINGENT FEES

C Contingent fees permit an attorney to receive a “reasonable fee,” contingent on the attorney's
success.

D The reasonableness and appropriateness of a contingency fee arrangement is judged at the time it
was entered. Restatement § 34Comment C.

E A contingent fee agreement “shall” be in writing signed by the client, and it shall state the
method by which the fee is to be calculated including:

F the percentage or percentages that accrue to the lawyer in the event of a settlement, trial, or an
appeal,

G whether litigation expenses are to be deducted before or after the contingency fee is calculated
($90,000 recovery); ($15,000 in cost and expenses); 1/3 of $90,000 is $30,000; 1/3 of $75,000 is
$25,000. (I.e., if there is any ambiguity in the writing, it is decided in the client’s favor.

H regardless of win or loss, who pays for the litigation expenses. Rule 1.5(c). A lawyer’s
advertisement on a contingency fee is “misleading” unless it states who is to pay such expenses.
Rule 7.1. A lawyer’s advertisement of a contingency fee is misleading unless it states who is to
pay such expenses. Rule7.1.

I Contingent fees are prohibited:

J When contingent upon the amount of alimony, child support, or a marital property recovered in
the divorce.

K In a criminal matter because they could discourage attorneys from seeking plea bargain
agreements or asserting a mitigating defense that could result in conviction of a lesser included
offense.

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 SHARING FEES WITH OTHER LAWYERS

A The Rules do not restrict how legal fees are shared within the same law firm (partners, associates
or "of counsel"), and clients need not be advised of the firm’s fee arrangement.

B Sharing legal fees with lawyers outside the firm is often done when the fee is contingent and the
fee is shared between the referring lawyer and a trial lawyer. It is ethical if:

the fee is reasonable (not excessive);

the fee paid to the referring lawyer is either:

in proportion to the work she performed, or

C both lawyers assume joint and several liability for any legal malpractice as if the lawyers
were associated in a partnership, and thus, the referring attorney is undertaking
representation of that client. This gives the referring attorney an incentive to pick a
competent lawyer for the client's matter; and

D the client gives informed consent, to (1) and (2) above which is confirmed in writing
before or within a reasonable amount of time after the start of the representation. Rule
1.5(e).

E Merely referring a client, without anything more, does not entitle the referring attorney to
ethically share in the fee. The referring the lawyer must assume responsibility or perform some
services; otherwise it is not “proper” to send or to accept a referral fee. Rule 1.5 (e).

PAYMENTS TO THIRD PARTIES FOR REFERING LEGAL BUSINESS

F A lawyer shall not give anything of value to a nonlawyer for referring clients to the lawyer.
Rules 5.4(a) and 7.2(b).

G Sharing legal fees with a nonlawyer is permitted under the following circumstances:

1. Payment to a nonlawyer for the purchase of the law practice of a deceased, disabled, or
missing solo practitioner. Rules 5.4(a)(1) and Rule 1.17.

2. Fee payments to a law firm’s compensation or retirement plan, even though nonlawyer-
employees (secretaries or office administrator) also participate in the plan. Lay employees
may share in the law firm’s year-end bonus or retirement plan as long as compensation
relates to the firm’s net profits, and not as a reward for employees bringing legal business
into the firm. Rule 5.4(a)(3).

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 3. Fair value payments to a disbarred or suspended lawyer for that lawyer’s legal work
performed before disbarment.

4. A nominal gift (bottle of wine or a floral arrangement) as an expression of appreciation

provided it is not intended nor reasonably expected to be compensation for the
recommendation. Rule 7.2(b)(5).

5. Court awarded attorney fees may be assigned to a non-profit organization (of non-
lawyers) that sponsored or referred the case to a pro bono lawyer, but the money must be
used for the group’s future legal expenses (e.g., A.C.L.U., N.A.A.C.P., or the Sierra Club).
The lawyer may agree beforehand to such a fee arrangement, but it must be disclosed to
the client (e.g., representing civil rights, the poor, or an environmental or charitable
organization). Rule § 5.4(a)(4).

6. Lawyers together with nonlawyers may form a separate business to provide clients with
“law-related services.” E.g., services for accounting, financial planning, investing, tax
advice, or title insurance. Rule 5.7.

The lawyer must advise the client in writing of the attorney’s interest in the business and
that the law related services are not legal services. Thus, the attorney-client privilege does
not apply to these services. The Rules treat this referral as a “business transaction”
requiring WAIF and ABC be satisfied by obtaining the client’s consent in a writing signed
by the client. Rule 5.7 Comment [5].

A Lawyers may enter a reciprocal, referral agreement with another lawyer or other “professional”
(accountant, social workers, psychiatrist, but not a financial planner, insurance broker, bail
bondsman, or real estate broker) to reciprocally refer clients, provided;

1. The client is informed,

2. The lawyer does not pay anything “solely for the referral,” Rule 7.2(b)(4) Comment [8],
and
3. The agreement is not exclusive and has a definite duration (e.g., “For the next year let’s
try it”). Rule 7.2 Comment [8].

B A lawyer may pay the usual fee to participate in a non-profit or bar association lawyer referral
service provided the fee earned by the lawyer is not shared with the referral service. Rule 7.2(b).

C A lawyer may compensate third parties for generating client leads (e.g., internet “pay per click”
for each lead) as long as the third party does not recommend the lawyer or communicate with the
potential client. Rule 7.2 Comment [5].

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 CONFIDENTIALITY

A The attorney-client privilege arises from a client’s confidential communications made for the
purpose of the client obtaining legal assistance. Restatement § 68.

B If a known third person is present during the conversation, the privilege is waved. The privilege
is not waived where the lawyer represents two clients, but if a subsequent dispute arises between
the two clients (i.e., they become adversaries), the privilege is waived, the lawyer must withdraw
from representing either client, and the lawyer must testify if either former client subpoenas the
lawyer about the joint conversations.

C There is no waiver of the privilege if a third person is present to facilitate the communication.
(E.g., an accountant, paralegal, or an interpreter).

D If the client seeks the lawyer’s legal advice to facilitate an ongoing or future crime or fraud, and
not for protection for prior wrongdoings, the privilege is unavailable under the “crime-fraud”
exception.

E The Model Rules combine the attorney-client privilege with attorney confidentiality into a broad
standard of an attorney’s nondisclosure of any information "relating to the representation"
acquired from any source, before, during, or after the attorney-client relationship is formed.
Rule 1.6(b), Comment 3.

F The Model Rules of nondisclosure apply not only to matters communicated in confidence by the
client, but it applies to all information relating to the client’s representation, obtained by an
attorney from any source and nondisclosure applies the same to current and former clients.
Rule 1.6 Comment [3].

G Absent client consent, an attorney shall not “use” confidential information to the disadvantage of
a present or former client. Rule 1.8(b). Even where it might disadvantage a former client,
however, the information may be used without client consent if it has become “generally
known” in the geographic area, or in the former client’s trade, profession, or business. It does
not become “generally known” simply because it was disclosed in pleadings, deposition, or in a
court opinion. Rule 1.9(c).

PROSPECTIVE CLIENTS

The Model Rules extend client confidentiality to a “prospective client” who in good faith
communicates with a lawyer about the possibility of forming a client-lawyer relationship, even
though a client-lawyer relationship is not formed. Rule 1.18(b).

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A If a “prospective client” reveals confidential information, the “law firm,” may nevertheless,
thereafter represent another client, adverse to the interests of the prospective client, if:

1. the interviewing lawyer took reasonable measures to avoid being exposed to any more
confidential information than necessary, to determine if the firm could represent the
prospective client) e.g., the lawyer warned the prospective client not to reveal confidential
information until the firm does a conflicts check and it accepts the prospective client’s
matter), and

2. the law firm screens (isolates) the interviewing lawyer from participating in and receiving
fees from the matter, gives written notice to the prospective client. Rule 1.18(d)(2).

CONFIDENTIALITY EXCEPTION

B A lawyer is prohibited from revealing information relating to the representation of a client

unless:

1. Where disclosure is expressly or impliedly consented to by the client, or is implied by law

in order to carry out the representation, e.g.,

a. disclosures of undisputed facts (facts that cannot be reasonably disputed);

b. disclosures made in settlement negotiations, (Fed. R. Ev. 408);

c. disclosures to protect the interests of a client with a diminished capacity, (for example,
an infant or mentally impaired client. Similarly where a lawyer reasonably believes
that a client is abusing medication rendering the client unable to effectively
communicate or to reach an informed decision, the lawyer who reasonably believes
such a client is at risk of substantial physical, financial, or other harm may consult
with a client’s family members, professional services, adult protection agency, or may
seek to have a guardian appointed for the client. Rule 1.14, Comment 5.

d. disclosures to partners or associates within the lawyer's firm, unless the client
prohibits such disclosure. Rule 1.14.

e. a lawyer may seek ethical advice from someone outside the firm, or with in-house
ethics counsel without client consent, but the lawyer must use hypotheticals so that
the listener is not able to ascertain the client's identity or identify the situation
involved. Rule 1.6 (b)(4), Comment [4].

2. Court ordered disclosure (e.g., a subpoena) or disclosure to comply with the law (lawyer
receives more than $10,000 in cash). When subpoenaed, the attorney should seek a
protective order, but is not ethically required to appeal that order unless the client is

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 willing to pay for the appeal (e.g., a grand jury subpoenas the lawyer regarding the legal
fee, who paid it, and how much). The lawyer should invoke the attorney-client privilege
and have the prosecutor seek an order to compel.

3. Disclosures necessary for a lawyer to collect a legal fee;

4. To establish a claim or defense in a controversy between the lawyer and the client. For
example, for the lawyer’s self-defense, i.e., to defend allegations of wrongdoing asserted
by a client (legal malpractice) or by a third person. Rule 1.6(b)(5) as well as to establish a
claim.

5. To prevent death or substantial bodily harm either to the client (suicide) or to others, the
lawyer may (but is not required to) reveal confidential information necessary to prevent
the harm. Where life is at risk, confidentiality takes a back seat. Rule 1.6(b)(1). (New
Jersey and only three other states mandate disclosure).

A Only two states (Massachusetts and Alaska) allow disclosure of confidential information
to prevent another’s wrongful conviction of a crime the lawyer knows was committed by
the attorney’s present or former client. However, the moment a wrongfully convicted
defendant is sentenced to death Rule 1.6 allows an attorney to disclose client confidential
information “to prevent reasonably certain death.” 78.2 Albany L. Rev 692 (2014) (2015).

6. The lawyer may reveal information to prevent, mitigate, or rectify a client’s crime or fraud
that has already caused, or is “reasonably certain” to result in substantial financial injury,
where the client has used or is using the lawyer's services to further the crime or fraud.
Rule 1.6(b).

7. Where a lawyer represents an organization (a corporation) and knows its employees are
violating the law that is likely to result in substantial injury to the organization (Enron,
Wells Fargo, Volkswagen emissions or the G.M. ignition switch scandal), then the lawyer
"shall" climb the corporate ladder, i.e., there is a mandatory ethical duty to take measures
within the organization to correct the wrong. Rule 1.13(b) (CEO or board of directors). If
the internal reporting is insufficient to protect the shareholders from substantial harm, the
lawyer may disclose the wrongdoing to persons outside the corporation. Rule 1.13 (c).

8. When a law firm is considering merging with another law firm, or hiring an attorney from
another firm, then a conflict of interest check is essential. Thus, basic client confidential
information can be exchanged with the new firm to discover potential conflicts of interest
(for example the identity of the persons and entities involved in the matter, a brief
summary of the issues involved, and whether the matter has terminated), usually basic
client lists and the basic issue involved are disclosed. Rule 1.6(b)(7), Comment [13].

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A 7 Cs MNEMONIC - Revealing Secrets and Confidences
C1 - CLIENT CONSENTS (express or implied)
C2- COURT ORDERED disclosure
C3 - COLLECT a fee or “self-defense” against a suit
C4 - CRIMINAL or fraudulent conduct by client
C5 - CORRECT PERJURY Rule 3.3
C6 - CONFLICT CHECKS for lawyers changing firms. Rule 1.6(b)[7].
C7 - CONFLICT CHECKS for merger of firm

B An attorney is not required to disclose a client's past crimes (a murder) or the whereabouts of
evidence (dead body).

C An attorney may not take possession of the fruits of a crime and shall not expressly or impliedly
suggest that evidence be destroyed. This would constitute the crime of obstructing justice and
the attorney would be "subject to criminal liability."

D “Competence” now requires a lawyer to stay abreast of the benefits and risks, related to
electronically stored information (ESI), including data preservation, production, and review and
protection from cyber theft. Rule 1.1 (6)(c), comment [8]. A lawyer must take “reasonable
efforts” to prevent the inadvertent disclosure of, and unauthorized access to confidential
information. Rules 1.6, 1.0 and 1.18(b). (Data breaches, i.e. preventing cyber-theft).

E Lawyers owe clients a duty to promptly reveal data breaches. Rule 1.4(b). For, example, a
lawyer must promptly notify a client if her non-password protected laptop or smartphone is
stolen.

F One-third of data breaches occur as a result of theft or loss of electronic storage devices.
Lawyers cannot guarantee security, but the firm’s data security measures must be reasonable.

G If the method of communication used by the lawyer affords a "reasonable expectation of

privacy" then this satisfies the lawyer's ethical duty. Thus, in most cases the use of unencrypted
emails satisfies the lawyer's duty, and the attorney-client privilege would not be waived if an
email was intercepted.

The lawyer must understand the client’s technology and, as soon as legal proceedings are
anticipated, the lawyer has an ethical duty to implement a hold on the client’s ESI. E.g., a letter
to the client threatening a suit or the client’s receipt of a subpoena or a summons. Under Fed.
Rule 16 Civ. Pro. [b](3)(B)(iii) scheduling conference includes identifying who are the
custodians, and where relevant ESI may be stored (e.g., back-up tapes, emails, server archives,
retired computers, or cloud-based servers).

At least 21 days before an initial scheduling conference with the federal court, the parties must

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 confer and cooperate regarding disclosure and discovery of ESI, including the form (PDF or
original format) in which it is to be produced. Fed. Rule 26(f) and Rule 34.

A Rule 4.4(b) requires a lawyer who receives ESI that the lawyer knows or reasonably should
know was inadvertently sent to promptly notify the sender (not notify the judge).

B Lawyers owe a duty to warn clients not to use computers that are accessible by third parties
(employers or family members) and the lawyer should refrain from sending confidential e-mails
to such computers.

C If parties take “reasonable steps” to prevent disclosure of confidential information but such
information is mistakenly disclosed during pretrial discovery, the receiving attorney has an
ethical duty to promptly notify the attorney who sent it and may not keep this mistake secret if
she knows or reasonably should know it was inadvertently sent. Rule 4.4(b).

CONFIDENTIALITY AGREEMENTS

D To reduce the huge cost of pretrial discovery, FRE 502 permits parties to enter confidentiality
agreements to limit the harm from an accidental inadvertent (unintentional) disclosure of
privileged documents to opposing counsel. Such agreements allow the releasing party to
promptly “claw back” the confidential privileged material, (which retains its confidential status
despite the inadvertent disclosure) and require the opposing party to return it. If the attorneys
enter a 502-confidentiality agreement that is then entered by court order, the inadvertently
disclosed confidential material cannot be disclosed in any other state or federal action.

A LAWYER SAFEKEEPING PROPERTY & FUNDS BELONGING TO OTHERS

E A lawyer is required to hold any funds belonging to either a client or a third person in connection
with a representation of a client in an escrow account in that state separate from the lawyer’s
own funds.

F The attorney shall not deposit any of the attorney's own money into an escrow account, except:

1. to pay bank monthly service charges;

2. where a retainer fee is initially paid by the client, then it can be withdrawn as it is earned;
or

3. where joint funds are paid to the client and the attorney (e.g., a settlement from a liability
insurance company), the attorney must promptly pay the client her share and also
withdraw the attorney’s fee from the escrow account unless that fee is disputed (by the
client or where a third person claims an interest in or has a lien on the client’s recovery) in

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 which event the disputed amount may not be released. E.g., the lawyer receives a check
for $90,000 with $15,000 in litigation expenses. The lawyer wants $30,000 but the client
wants to pay only $25,000. Lawyer immediately gets $25,000; client immediately gets
$45,000; pay $30,000 in expenses and $5,000 held in escrow.

A When holding property or money belonging to others (a client or third person), a lawyer must
promptly (within days, not a week) check the DEAN’S list:

D - DELIVER money to the person entitled to it, or deposit it into the lawyer’s escrow account
(not in a safe deposit box) maintained within the state (unless the client consents to an out-of-
state escrow account) and promptly pay out undisputed amounts.

E - maintain ESCROW records and retain them for five years. Rule 1.15 records include:

1. client ledger statements;

2. monthly bank escrow statements;

3. receipt and disbursement statements; and

4. records identifying the source of all funds in the escrow account.

A - render an ACCOUNTING if requested, and

N - give prompt NOTICE OF RECEIPT to those entitled to receive the property or money
(within days is “prompt,” not a week).

S - appropriately SAFEGUARD tangible property. E.g., shares of stock and other property
should be deposited into a safe or safe deposit box except when some other form of
safekeeping is warranted by special circumstances.

B If the lawyer settles the client’s claim or recovers a money judgment, and the lawyer “knows” of
a third party's lien on the client's recovery arising from a (1) contract (2) court order, or (3) by
law (a tax lien, or Worker’s Compensation or Medicaid lien, (but not just a creditor’s money
judgment against the client) then the lawyer must escrow these funds until the dispute is settled
between the client and third party. Rule 1.15. The attorney should not attempt to unilaterally
arbitrate this dispute because of the lawyer’s duty of undivided loyalty to the client.

A lawyer is “subject to civil liability” if the lawyer knows of, and does not hold the lien amount
in escrow.

ATTORNEY’S CONFLICTS OF INTEREST

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A A lawyer shall not represent a client if there is a "significant risk" that the representation may be
limited by the lawyer's responsibilities or loyalty to a present or former client, a third person, or
because of the lawyer's own self-interest. Rule 1.7(b).

B Most Conflict of Interest rules are not per se, so the client may waive the attorney's conflict
provided:

1. the lawyer reasonably believes that the conflict will not adversely affect her duty of
undivided loyalty to the client, i.e., she can provide competent and diligent representation
notwithstanding the conflict.

2. a reasonable lawyer would also agree; (i.e., another lawyer would conclude) that there is
no risk that the lawyer’s professional judgment will be adversely affected by the conflict,
and

3. the client gives INFORMED consent, confirmed in writing, after full disclosure of the
possible adverse effects (it does not have to be signed by the client). Rule 1.7(a) and (b).

C If the lawyer can’t take the case due to a conflict of interest, she may not share the fee for
referring the case to another lawyer without the client’s informed consent. Rule 1.5(e).

D There are five non-consentable conflicts, where the lawyer cannot even ask the client to consent:

1. The representation is prohibited by law.

2. A lawyer, or lawyers from the same firm, cannot simultaneously represent opposing
clients in the same litigation. Rule 1.7(b)(3); Restatement §122(2)(b).

EXAMPLE:

E Lawyer represents Flower Shop Corp., owned by X and Y. While using a shop vehicle, X is in
an accident with O. O sues X and Flower Shop and they asserted cross-claims against each
other. While representing the Flower Shop, Lawyer could not refer X to another lawyer and
share a referral fee, because a lawyer shall not represent clients asserting claims against each
other in the same litigation. A client cannot consent to this non-waivable conflict.

3. Drafting a document giving the lawyer or a member of the lawyer's immediate family a
"substantial gift" from a client. Rule 1.8(c). Here, all lawyers in that lawyer’s firm are
vicariously disqualified, except:

a. A lawyer who is related to the client or maintains a close relationship with the client
(close friend or domestic partner, family-type relationship) or

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 b. A lawyer, who drafts a will or trust instrument may suggest that the client name the
lawyer as executor or trustee but should advise the client of the lawyer’s financial
interest in being named, and that nonlawyers may act in that same capacity. Rule 1.8
Comment [8].

4. Until a case is completed, neither a lawyer nor a lawyer in the law firm can enter a
contract or even negotiate with the client for the literary or media rights with a publisher
based on information relating to that legal representation.

5. Sex with a current client, unless sexual relationship existed prior to forming the attorney-
client relationship. Rule 1.8(j). Dating a client without sex is not prohibited by the Rules.

A If the client is an organization (a corporation) then the lawyer cannot have sex with
someone who manages or supervises in-house or outside counsel. This sexual conflict
does not vicariously disqualify other lawyers in the lawyer’s firm from representing that
client.

CONFLICT WITH A CURRENT CLIENT

B Conflicts with current clients arise when a lawyer’s representation of one client will be directly
adverse to another current client.

C When a client retains a lawyer, the client is entitled to believe that until that matter is concluded,
the client has the undivided loyalty of the lawyer.

EXAMPLE:

D A conflict exists if a lawyer will be required to cross examine a current client as a witness in an
unrelated matter. The examination is considered adverse to the client and the lawyer cannot do
so without the informed consent of each client.

EXAMPLE:

Attorney Alpha represents wife in her personal injury suit. Wife’s husband cannot retain
Attorney Alpha to sue Wife for divorce.

A lawyer may represent multiple clients on the same side of a matter, provided it is obvious that
the clients’ interests are not so adverse, that the lawyer can adequately represent the interests of
each client, and each consents to the representation after full disclosure of the possible adverse
effect of the dual representation.

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A In this dual representation, if one co-client asks the lawyer not to disclose relevant information to
the other client then the representation cannot continue because of the duty of undivided loyalty
owed to the other client is now restricted.
B
CONFLICTS WITH FORMER CLIENTS

C Once the attorney-client relationship has ended, the duty of loyalty ceases, but the lawyer’s duty
of confidentiality continues (even after that client’s death). Thus, absent informed consent of the
former client, a lawyer or members of the lawyer’s firm shall not accept new employment if:

1. the new matter is the same, or it “substantially relates” to the prior representation, and the
new client’s interests are “materially adverse” to the former client’s interest. Here, the
lawyer is precluded from “switching sides. Rule 1.9 (a).

EXAMPLE:

D A lawyer who as a government attorney prosecuted X, could not, after going into private
practice, represent X in a civil action suing the government on the same matter.

EXAMPLE:

E Alpha represented clients X and Y after both were named as defendants in a lawsuit. During
pretrial discovery, differing interests arose between X and Y. X revoked her consent to have
Alpha represent X. Can Alpha continue to represent Y? No, since X is now a former client,
Alpha is prohibited from accepting employment (from Y) that is substantially related to Alpha’s
former representation of X, and Alpha’s client’s interest (Y’s) are materially adverse to former
client (X).

EXAMPLE:

F Alpha represented X and Y in forming an autoparts corporation, when X and Y’s relationship
deteriorated. Alpha could not represent X against Y in dissolving their business, or Rule 1.9.

2. the new matter is totally unrelated to the former representation, but the lawyer, possesses
confidential information from the former representation that could be used to the
disadvantage a former client or to advance of the lawyer’s current client, unless that
information has become generally known.

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 EXAMPLE:

A Attorney Alpha formerly represented H, husband, in financial matters, learning extensive private
financial information about H. Alpha may not now represent the H’s wife in a divorce since
Alpha can use H’s confidential information to the advantage of W and the disadvantage of H.

B Alpha’s conflict is imputed to her entire law firm. A law firm is essentially one lawyer for
purposes of the duty of confidentially owed to a former client. Rule 1.10, Comment [2].

C Advance informed consent can be obtained from a sophisticated client, to waive future conflicts
of interest on unrelated matters. J.C. Penney retained Jones Day for trade mark infringement
dispute in Asia, agreeing to waive conflicts in which Jones Day represented J.C. Penney’s
competitors against J.C. Penney in unrelated matters. “We cannot represent you, J.C. Penny
unless you waive a conflict in which we represent your competitors against you or an unrelated
matter.”

D Under Rule 6.5(a), when a lawyer participates in a program sponsored by a non-profit

organization or court program providing “short-term limited legal services to clients” without an
expectation of ongoing representation (such as a legal advice hotline, or an advice-only pro se
clinic), then the lawyer is not bound by the conflict rules for present (Rule 1.7), or former clients
unless the lawyer knows specifically that a conflict exists with herself or another lawyer in her
firm, since a conflicts check is not feasible in such circumstances. However, the lawyer first
must obtain the limited client’s informed consent.

E When Attorney Alfa changes law firms, and Alfa’s new firm is an adversary of Alfa’s old firm,
the new law firm is not vicariously disqualified if either 1, 2, or 3:

1. Alpha acquired no confidential information and did not work directly on the matter at the
old firm. ABA Opinion 96-400 p.2. Rule 1.10 ABA Inf. Op. 88-1526. Rule 1.9 (b)
Com. [8]; or
2. the former client [at Alpha’s old firm’s] gives informed consent; or

3. Alpha did acquire confidential information at the old firm, but a screening procedure
(isolate Alpha) is established at the new firm.

FORMER GOVERNMENT LAWYERS

A government lawyer who goes into private practice shall not:

1. represent a private client on a matter in which the lawyer previously participated

"personally and substantially" as a government employee (e.g., heavy involvement and not

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 merely perfunctory or only administrative involvement). Rule 1.11(a); or

2. Use “confidential government information” that is not available to the public. Rule
1.11(c).

A If a former government lawyer is disqualified, then her new firm is not vicariously disqualified
provided a screening procedure is established. Rule 1.11. No screen is required for a
government lawyer’s interagency job transfers.

B If a former government lawyer is disqualified, then her new firm is not vicariously disqualified
provided a screening procedure is established. Rule 1.11.

C A full or part time judge, judge’s clerk, mediator, or neutral arbitrator acting in a judicial
capacity, may not subsequently represent anyone in a matter in which that lawyer was personally
and substantially involved unless all parties in that matter give informed consent. (Watch out! It
is not enough that there is no objection). Rules 1.12(a), 1.13, and 2.2(c).

D However, a “partisan” arbitrator is one who is selected by a party (as an advocate) for one of the
parties in multimember arbitration panel and is expected to be partial. Thus, a partisan arbitrator
is not prohibited from subsequently representing that party. Rule 1.12(d).

E When a government lawyer works on drafting, interpreting, or enforcing a statute, procedure,

regulation, or government policy (not specifically applicable to a particular person), she is not
disqualified from subsequent private employment involving the same regulation, procedure, or
law. Rule 1.11(e); Restatement of the Laws Governing Lawyers §214, Comment [e] and
illustration 4 and 5 p. 736.

AGGREGATE SETTLEMENTS

F In making an aggregate settlement, a.k.a. a non-class action group settlement, (for example, in
mass-tort claims, where multiple clients who are represented by the same attorney and the lawyer
is to apportion the defendant’s total payment among the lawyer’s clients), the lawyer must
disclose to all clients the existence and nature of each client’s claims and injuries, what each
client will receive, and all clients (100%) must consent in a writing signed by the client. (ABC
Rule). Rules 1.8(g).

G The lawyer shall not attempt to (1) acquire advance consent from clients, or (2) require only a
majority vote for the clients to approve the settlement.

ADVANCING MONEY TO CLIENTS

Attorneys are forbidden from giving a client financial assistance in connection with pending or

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 contemplated litigation (e.g., a lawyer cannot make a mortgage payment, loan money, or
guarantee a loan for a client even though the client is in severe financial circumstances). Rule
1.8(e).

A An attorney may advance “or guarantee” litigation expenses but not living expenses.

B Permissible advances include costs associated with filing court papers, depositions, or expert
witness fees, e.g., medical examinations.

C Repayment of these litigation advances may be made contingent on the outcome of the litigation.
Rule 1.8(e).

D A lawyer may pay (not just advance) litigation expenses on behalf of an indigent client. Rule
1.8(e)(2).

THIRD PERSON'S INVOLVEMENT IN THE CLIENT’S CASE

E Frequently, lawyers are asked to represent a client where a third person will pay all or part of the
lawyer's fee (a relative, friend, employer, or liability insurance company).

F Lawyers can’t accept third party payments unless 3 Is:

I - INFORMED consent of the client;

I - No third-party INTERFERENCE; and
I - All INFORMATION remains confidential.

ATTORNEY’S OWN CONFLICTING INTERESTS

G Two lawyers, related by blood or marriage (spouses, siblings, parent and child) or two cohabiting
lawyers cannot represent adverse parties, in a matter unless both clients give informed consent.
Their law firms, however, are not vicariously disqualified. Rule 1.7 Comment [11].

H An attorney shall refrain from having business dealings with a client that could result in gains to
the attorney at the client’s expense, unless the arrangement is fair, full disclosure is made in
writing, the client is advised to seek the advice of independent counsel, the client is given time to
reflect, and the client then consents in a signed writing. Rule 1.8(a).

I A lawyer shall refrain from having business dealings with a client unless the lawyer can prove
WAIF:

W- WRITING signed by the client;

A- ADVISE the client to seek independent counsel;

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 I - INFORMED consent after full disclosure and time to
reflect;
F- Transaction must be FAIR and reasonable.

To determine when a client's signature is required is as easy as "A.B.C.":

A client’s signature is required for:
A- AGGREGATE claim settlements
B- BUSINESS transactions with a client
C- CONTINGENT fee agreements

A Unless the client is related to the lawyer, a lawyer cannot solicit from a client a “substantial gift”
for the attorney or for someone related to the lawyer (up to grandparents or down to
grandchildren), but the client can make a substantial gift on her own initiative as long as it is fair.
Rule 1.8 (c). The client must come up with the gift idea on her own.

B A lawyer (or a judge) may not negotiate for new employment with an adversary’s firm while
simultaneously, “personally and substantially” participating in a client’s matter. Rule 1.11
(c)(2). Get the client’s informed consent, withdraw from further representation, or don’t
negotiate for employment until the representation is over.

C A judge’s law clerk may negotiate for employment with a party or lawyer involved in a matter in
which the clerk is participating personally and substantially, but only after the clerk first has told
the judge. Rule 1.12(b).

D A lawyer’s representation of a client does not constitute an endorsement of the client’s views or
activities. The obligation of loyalty applies only to the lawyer's professional capacity and it does
not impose any obligation to adopt a personal viewpoint favorable to the client.

E A lawyer may participate in a law reform activity (e.g. bar association), even though it:

1. is adverse to the interests of a client, or

2. may materially benefit a client, which requires the lawyer to disclose this benefit to the
law reform organization (bar association), but the lawyer does not identify the client. Rule
6.4.

IMPUTED DISQUALIFICATION TO THE LAWYER’S FIRM

F Generally, if a lawyer is disqualified from representing a client due to a conflict, then absent
rules for a screening exception, no one in the firm can represent that client except where the
lawyer is a necessary witness at trial or the conflict is based on the lawyer’s “personal interest.”
Rule §1.7 Such conflicts are not vicariously imputed to other lawyers in the firm due to the

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 minimal risk of materially limiting the firm’s loyalty to the client. For example:

1. a lawyer having sex with client does not disqualify the entire firm;

2. intense feelings of a lawyer does not disqualify the entire firm;

3. a family relationship with an adverse party, an adversary, or a judge does not disqualify
the entire firm; or

4. where the resulting judgment could affect the financial holdings of a lawyer’s family
member, as long as the affected lawyer is isolated from the case (screened).

LAWYER ADVOCACY RULES

A In pre-trial discovery, a lawyer shall neither make a frivolous discovery request nor fail to make
a diligent effort to comply with a valid discovery request. Rule 3.4(d); Fed. R. Civ. Pro. 26(g).

B A lawyer cannot obstruct another party’s access to documents or witnesses. An attorney cannot
induce or assist a witness in evading or ignoring a subpoena.

C Don’t Read A POEM at Trial

A - ARGUE facts not in the record;

P - PASSION appeals to the jury (prejudice or sympathy);

O - Personal OPINIONS; The “I” rule: “I know”; “I believe” vs. “The evidence will show.”
E - EMBARRASS a witness or burden a third person, e.g., scheduling deposition when an
adversary has scheduled a vacation; or
M - MISSTATE evidence or knowingly present false evidence.

D A lawyer shall abide by a client’s decision concerning the objectives of the representation, but it
is the lawyer who decides the tactics and means to achieve those objectives (Rule 1.2). The
lawyer shall keep the client reasonably informed which includes the duty to disclose any
settlement offers unless previously the client made very clear that the offer would be either
acceptable or unacceptable. Rule 1.4(a)(3).

E Reasonable requests from the client for information shall be promptly complied with or if a
prompt response is not possible, the lawyer or a member of the lawyer’s staff shall acknowledge
the request and advise the client when a response may be expected. Rule 1.4(a)(4). A lawyer
shall consult with the client on the means by which the client’s objectives are to be
accomplished. Rule 1.4.

In a matter that may involve litigation, a lawyer shall inform the client of the availability of

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 alternate dispute resolutions. Rule 1.4(b).

A Seven states require lawyers to inform clients if they do not carry malpractice insurance (Alaska,
Pennsylvania, Ohio, and South Dakota). Another eighteen (18) require this disclosure on the
state’s attorney registration statements (California, New Hampshire, New Mexico). Only
Oregon requires lawyers to maintain professional liability insurance.

B An attorney owes a duty to abide by the client’s decisions affecting 5th SLAP rights. Rule 1.4
and 1.2(a).

5th - Whether to take the stand or invoke the 5th Amendment;

S - SETTLE a civil case and the terms-the lawyer must consent to the client’s decision on
whether to settle;
L - LITIGATE before a judge or jury;
A - ASSERT AFFIRMATIVE defenses, e.g. E.E.D. or insanity in a criminal case;
P - PLEA bargain in criminal case.

C Although a lawyer “may” withdraw when a client insists on a course of action on which the
“lawyer has a fundamental disagreement” regarding achieving the objective or the means of
achieving the objective, (4 Fs), a client’s disagreement with lawyer on 5th SLAP issues is not
ground for permissive withdrawal. Rule 1.16 (b)(4).

D Note that you will not be responsible for the specific Rule numbers and sections referenced
herein. We include them should you decide to review any of the Rules themselves or their
comments, available at
https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_pr
ofessional_conduct/model_rules_of_professional_conduct_table_of_contents/

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