PROFESSIONAL RESPONSIBILITY AND ETHICS

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Concept:
Introduction
ABA Model Rule:
Rule 1.0: Terminology
(a) "Belief" or "believes" denotes that the person involved actually supposed the fact in question to be true. A
person's belief may be inferred from circumstances.
(b) "Confirmed in writing," when used in reference to the informed consent of a person, denotes informed consent
that is given in writing by the person or a writing that a lawyer promptly transmits to the person confirming an oral
informed consent. See paragraph (e) for the definition of "informed consent." If it is not feasible to obtain or transmit
the writing at the time the person gives informed consent, then the lawyer must obtain or transmit it within a
reasonable time thereafter.
(c) "Firm" or "law firm" denotes a lawyer or lawyers in a law partnership, professional corporation, sole
proprietorship or other association authorized to practice law; or lawyers employed in a legal services organization or
the legal department of a corporation or other organization.
(d) "Fraud" or "fraudulent" denotes conduct that is fraudulent under the substantive or procedural law of the
applicable jurisdiction and has a purpose to deceive.
(e) "Informed consent" denotes the agreement by a person to a proposed course of conduct after the lawyer has
communicated adequate information and explanation about the material risks of and reasonably available alternatives
to the proposed course of conduct.
(f) "Knowingly," "known," or "knows" denotes actual knowledge of the fact in question. A person's knowledge
may be inferred from circumstances.
(g) "Partner" denotes a member of a partnership, a shareholder in a law firm organized as a professional
corporation, or a member of an association authorized to practice law.
(h) "Reasonable" or "reasonably" when used in relation to conduct by a lawyer denotes the conduct of a
reasonably prudent and competent lawyer.
(i) "Reasonable belief" or "reasonably believes" when used in reference to a lawyer denotes that the lawyer
believes the matter in question and that the circumstances are such that the belief is reasonable.
(j) "Reasonably should know" when used in reference to a lawyer denotes that a lawyer of reasonable prudence
and competence would ascertain the matter in question.
(k) "Screened" denotes the isolation of a lawyer from any participation in a matter through the timely imposition of
procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated
lawyer is obligated to protect under these Rules or other law.
(l) "Substantial" when used in reference to degree or extent denotes a material matter of clear and weighty
importance.
(m) "Tribunal" denotes a court, an arbitrator in a binding arbitration proceeding or a legislative body, administrative
agency or other body acting in an adjudicative capacity. A legislative body, administrative agency or other body acts
in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or
parties, will render a binding legal judgment directly affecting a party's interests in a particular matter.
(n) "Writing" or "written" denotes a tangible or electronic record of a communication or representation, including
handwriting, typewriting, printing, photostating (scanning??), photography, audio or videorecording, and electronic
communications. A "signed" writing includes an electronic sound, symbol or process attached to or logically
associated with a writing and executed or adopted by a person with the intent to sign the writing.
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Preamble: A Lawyer’s Responsibilities
[1] A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a
public citizen having special responsibility for the quality of justice.
[2] As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an
informed understanding of the client's legal rights and obligations and explains their practical implications. As
advocate, a lawyer zealously asserts the client's position under the rules of the adversary system. As negotiator, a
lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others. As
an evaluator, a lawyer acts by examining a client's legal affairs and reporting about them to the client or to others.
[3] In addition to these representational functions, a lawyer may serve as a third-party neutral, a nonrepresentational
role helping the parties to resolve a dispute or other matter. Some of these Rules apply directly to lawyers who are or
have served as third-party neutrals. See, e.g., Rules 1.12 and 2.4. In addition, there are Rules that apply to lawyers
who are not active in the practice of law or to practicing lawyers even when they are acting in a nonprofessional
capacity. For example, a lawyer who commits fraud in the conduct of a business is subject to discipline for engaging
in conduct involving dishonesty, fraud, deceit or misrepresentation. See Rule 8.4.
[4] In all professional functions a lawyer should be competent, prompt and diligent. A lawyer should maintain
communication with a client concerning the representation. A lawyer should keep in confidence information relating
to representation of a client except so far as disclosure is required or permitted by the Rules of Professional Conduct
or other law.
[5] A lawyer's conduct should conform to the requirements of the law, both in professional service to clients and in
the lawyer's business and personal affairs. A lawyer should use the law's procedures only for legitimate purposes and
not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve
it, including judges, other lawyers and public officials. While it is a lawyer's duty, when necessary, to challenge the
rectitude of official action, it is also a lawyer's duty to uphold legal process.
[6] As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration
of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer
should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and
work to strengthen legal education. In addition, a lawyer should further the public's understanding of and confidence
in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular
participation and support to maintain their authority. A lawyer should be mindful of deficiencies in the administration
of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal
assistance. Therefore, all lawyers should devote professional time and resources and use civic influence to ensure
equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure
adequate legal counsel. A lawyer should aid the legal profession in pursuing these objectives and should help the bar
regulate itself in the public interest.
[7] Many of a lawyer's professional responsibilities are prescribed in the Rules of Professional Conduct, as well as
substantive and procedural law. However, a lawyer is also guided by personal conscience and the approbation of
professional peers. A lawyer should strive to attain the highest level of skill, to improve the law and the legal
profession and to exemplify the legal profession's ideals of public service.
[8] A lawyer's responsibilities as a representative of clients, an officer of the legal system and a public citizen are
usually harmonious. Thus, when an opposing party is well represented, a lawyer can be a zealous advocate on behalf
of a client and at the same time assume that justice is being done. So also, a lawyer can be sure that preserving client
confidences ordinarily serves the public interest because people are more likely to seek legal advice, and thereby
heed their legal obligations, when they know their communications will be private.
[9] In the nature of law practice, however, conflicting responsibilities are encountered. Virtually all difficult ethical
problems arise from conflict between a lawyer's responsibilities to clients, to the legal system and to the lawyer's own
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interest in remaining an ethical person while earning a satisfactory living. The Rules of Professional Conduct often
prescribe terms for resolving such conflicts. Within the framework of these Rules, however, many difficult issues of
professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and
moral judgment guided by the basic principles underlying the Rules. These principles include the lawyer's obligation
zealously to protect and pursue a client's legitimate interests, within the bounds of the law, while maintaining a
professional, courteous and civil attitude toward all persons involved in the legal system.
[10] The legal profession is largely self-governing. Although other professions also have been granted powers of
self-government, the legal profession is unique in this respect because of the close relationship between the
profession and the processes of government and law enforcement. This connection is manifested in the fact that
ultimate authority over the legal profession is vested largely in the courts.
[11] To the extent that lawyers meet the obligations of their professional calling, the occasion for government
regulation is obviated. Self-regulation also helps maintain the legal profession's independence from government
domination. An independent legal profession is an important force in preserving government under law, for abuse of
legal authority is more readily challenged by a profession whose members are not dependent on government for the
right to practice.
[12] The legal profession's relative autonomy carries with it special responsibilities of self-government. The
profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance
of parochial or self-interested concerns of the bar. Every lawyer is responsible for observance of the Rules of
Professional Conduct. A lawyer should also aid in securing their observance by other lawyers. Neglect of these
responsibilities compromises the independence of the profession and the public interest which it serves.
[13] Lawyers play a vital role in the preservation of society. The fulfillment of this role requires an understanding by
lawyers of their relationship to our legal system. The Rules of Professional Conduct, when properly applied, serve to
define that relationship.

Scope
[14] The Rules of Professional Conduct are rules of reason. They should be interpreted with reference to the
purposes of legal representation and of the law itself. Some of the Rules are imperatives, cast in the terms "shall" or
"shall not." These define proper conduct for purposes of professional discipline. Others, generally cast in the term
"may," are permissive and define areas under the Rules in which the lawyer has discretion to exercise professional
judgment. No disciplinary action should be taken when the lawyer chooses not to act or acts within the bounds of
such discretion. Other Rules define the nature of relationships between the lawyer and others. The Rules are thus
partly obligatory and disciplinary and partly constitutive and descriptive in that they define a lawyer's professional
role. Many of the Comments use the term "should." Comments do not add obligations to the Rules but provide
guidance for practicing in compliance with the Rules.
[15] The Rules presuppose a larger legal context shaping the lawyer's role. That context includes court rules and
statutes relating to matters of licensure, laws defining specific obligations of lawyers and substantive and procedural
law in general. The Comments are sometimes used to alert lawyers to their responsibilities under such other law.
[16] Compliance with the Rules, as with all law in an open society, depends primarily upon understanding and
voluntary compliance, secondarily upon reinforcement by peer and public opinion and finally, when necessary, upon
enforcement through disciplinary proceedings. The Rules do not, however, exhaust the moral and ethical
considerations that should inform a lawyer, for no worthwhile human activity can be completely defined by legal
rules. The Rules simply provide a framework for the ethical practice of law.
[17] Furthermore, for purposes of determining the lawyer's authority and responsibility, principles of substantive law
external to these Rules determine whether a client-lawyer relationship exists. Most of the duties flowing from the
client-lawyer relationship attach only after the client has requested the lawyer to render legal services and the lawyer
has agreed to do so. But there are some duties, such as that of confidentiality under Rule 1.6, that attach when the
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lawyer agrees to consider whether a client-lawyer relationship shall be established. See Rule 1.18. Whether a
client-lawyer relationship exists for any specific purpose can depend on the circumstances and may be a question of
fact.
[18] Under various legal provisions, including constitutional, statutory and common law, the responsibilities of
government lawyers may include authority concerning legal matters that ordinarily reposes in the client in private
client-lawyer relationships. For example, a lawyer for a government agency may have authority on behalf of the
government to decide upon settlement or whether to appeal from an adverse judgment. Such authority in various
respects is generally vested in the attorney general and the state's attorney in state government, and their federal
counterparts, and the same may be true of other government law officers. Also, lawyers under the supervision of
these officers may be authorized to represent several government agencies in intragovernmental legal controversies
in circumstances where a private lawyer could not represent multiple private clients. These Rules do not abrogate any
such authority.
[19] Failure to comply with an obligation or prohibition imposed by a Rule is a basis for invoking the disciplinary
process. The Rules presuppose that disciplinary assessment of a lawyer's conduct will be made on the basis of the
facts and circumstances as they existed at the time of the conduct in question and in recognition of the fact that a
lawyer often has to act upon uncertain or incomplete evidence of the situation. Moreover, the Rules presuppose that
whether or not discipline should be imposed for a violation, and the severity of a sanction, depend on all the
circumstances, such as the willfulness and seriousness of the violation, extenuating factors and whether there have
been previous violations.
[20] Violation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any
presumption in such a case that a legal duty has been breached. In addition, violation of a Rule does not necessarily
warrant any other non-disciplinary remedy, such as disqualification of a lawyer in pending litigation. The Rules are
designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary
agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the Rules can be
subverted when they are invoked by opposing parties as procedural weapons. The fact that a Rule is a just basis for a
lawyer's self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not
imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the Rule.
Nevertheless, since the Rules do establish standards of conduct by lawyers, a lawyer's violation of a Rule may be
evidence of breach of the applicable standard of conduct.
[21] The Comment accompanying each Rule explains and illustrates the meaning and purpose of the Rule. The
Preamble and this note on Scope provide general orientation. The Comments are intended as guides to interpretation,
but the text of each Rule is authoritative.
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Concept:
Beginning Considerations
ABA Model Rule:
Rule 4.4: Respect for Rights of Third Persons
(b) A lawyer who receives a document or electronically stored information relating to the representation of the
lawyer's client and knows or reasonably should know that the document or electronically stored information was
inadvertently sent shall promptly notify the sender.

Rule 1.14: Client with Diminished Capacity

(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical,
financial or other harm unless action is taken and cannot adequately act in the client's own interest, the lawyer may
take reasonably necessary protective action, including consulting with individuals or entities that have the ability to
take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator
or guardian.

Rule 1.16: Declining or Terminating Representation

(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced,
shall withdraw from the representation of a client if:
(1) the representation will result in violation of the rules of professional conduct or other law;
(2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or
(3) the lawyer is discharged.
(b) A lawyer may reveal information relating to the representation of a client to the exte4nt the lawyer reasonably
believes necessary:
(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial
injury to the financial interests or property of another and in furtherance of which the client has used or is
using the lawyer’s services;
(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is
reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of
which the client has used the lawyer’s services
Case Name Material Facts Rules Relevant Notes
Rico v. Attorney received When a lawyer who receives materials Work Product Definition:
Mitsubishi privileged documents that obviously appear to be subject to A writing that reflects an
Motors through inadvertence an attorney-client privileged or attorney’s impressions,
Corporation and used them in court. otherwise clearly up here to be conclusions, opinions, or legal
(Page 19) confidential and privileged and where research or theories is not
is reasonably apparent that the discoverable under any
materials were provided or made circumstances.
available through inadvertence, the
lawyer receiving such material should The absence of prominent
refrain from examining the materials notations of confidentiality
anymore than is essential to ascertain if does not make them any less
the materials are privileged, and must privileged.
immediately notify the sender that he or
she possesses material that appears to
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be privileged. The parties may then
proceed to resolve the situation by
agreement or may resort to the court for
guidance with the benefit of protective
orders and other judicial intervention as
may be justified.

Concept:
Residency Requirements
Relevant Notes

The Supreme Court has repeatedly struck down residency requirements.

Concept:
Character and Fitness Requirements
ABA Model Rule:
An applicant for admission to the bar must show that he possesses the good moral character and general fitness
necessary for the practice of law.

Case Name Material Facts Rules Relevant Notes

In Re The sworn The elements of good moral character Rule 8.1 Comment:
DeBartolo questionnaire and remain vague, but there is general The duty imposed by this Rule
(Page 35) statement of applicant agreement that they include honesty, extends to persons seeking
admission to the bar as well as
submitted by the respect for the law and respect for the
to lawyers. Hence, if a person
petitioner in applying rights of others. makes a material false
for admission to the statement in connection with
Illinois bar contained an application for admission, it
inaccurate information may be the basis for
regarding his high subsequent disciplinary action
school education and if the person is admitted, and
in any event may be relevant in
omitted a number of his
a subsequent admission
residences. Moreover, application.
the committee was
disturbed that the
petitioner had incurred
some 200 to 400
parking tickets, as he
had indicated on his
application.
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In Re Glass Glass made himself
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To be qualified to practice law in this The burden rests upon the
(Page 38) infamous as a dishonest state, a person must be of good moral candidate for admission to
journalist by fabricating character. Good moral character prove his own moral fitness.
includes qualities of honesty, fairness,
material for more than
candor, trustworthiness, observance of The review department
40 articles for the New fiduciary responsibility, respect for an majority relied heavily on the
Republic magazine and obedience to the law, and respect for testimony of Glass’s character
other publications. He the rights of others and the judicial witnesses, but the testimony of
also carefully process. character witnesses will not
fabricated supporting suffice by itself to establish
materials to delude the rehabilitation.
New Republic’s fact
checkers.

Concept:
Admission to Practice in Other States and the Federal Courts

ABA Model Rule:

An attorney who has been admitted in one state and who wants to represent a particular client in a court of another
state may also petition that court to appear pro hac vice, “for this turn only.” Including limited admission for in-house
counsel, for members of the military, for provision of pro bono services, and even for law faculty members.

Case Name Material Facts Rules Relevant Notes

Masi v. Prior to commencement unless otherwise ordered for good Attorney was “disqualified” as
Mythical of this case attorney cause shown, no attorney may be counsel.
Entertainment made special admitted pursuant to local civil rules in
(Page 47)
appearances previously more than three unrelated cases in any
in three other unrelated 12-month period.
cases in this district in
2019. The attorney has
not shown good cause
to appear in this matter.

Sheller v. A Texas attorney Trial courts lack authority to impose Only applicable in California.
Superior Court appearing pro hac vice attorney’s fees as a sanction and also Unique to this case and the pro
(Page 49) for plaintiffs in a class lack authority to issue the formal hac vice
action center reprimand. However, trial courts do
communication to the have the authority to revoke an
prospective class attorneys pro hac vice status in certain
members which circumstances.
 PROFESSIONAL RESPONSIBILITY AND ETHICS
contained at least one
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misrepresentation.

Concept:
Discipline

ABA Model Rule:

Three types of disciples which are common: disbarment, suspension, and reprimand (either public or private).
Disbarment is the most serious.

ABA Rule 8.5 explains that under some circumstances, a lawyer may be subject to discipline by more than one
jurisdiction for the same instance of misconduct.

Rule 5.5: Unauthorized Practice of Law; Multijurisdictional Practice of Law

(a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that
jurisdiction, or assist another in doing so.
(b) A lawyer who is not admitted to practice in this jurisdiction shall not:
(1) except as authorized by these Rules or other law, establish an office or other systematic and continuous
presence in this jurisdiction for the practice of law; or
(2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.
(c) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any
jurisdiction, may provide legal services on a temporary basis in this jurisdiction that:
(1) are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who
actively participates in the matter;
(2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another
jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such
proceeding or reasonably expects to be so authorized;
(3) are in or reasonably related to a pending or potential arbitration, mediation, or other alternative resolution
proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer's
practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum
requires pro hac vice admission; or
(4) are not within paragraphs (c) (2) or (c)(3) and arise out of or are reasonably related to the lawyer's practice
in a jurisdiction in which the lawyer is admitted to practice.
(d) A lawyer admitted in another United States jurisdiction or in a foreign jurisdiction, and not disbarred or
suspended from practice in any jurisdiction or the equivalent thereof, or a person otherwise lawfully practicing as an
in-house counsel under the laws of a foreign jurisdiction, may provide legal services through an office or other
systematic and continuous presence in this jurisdiction that:
(1) are provided to the lawyer's employer or its organizational affiliates, are not services for which the forum
requires pro hac vice admission; and when performed by a foreign lawyer and requires advice on the law of
this or another U.S. jurisdiction or of the United States, such advice shall be based upon the advice of a
lawyer who is duly licensed and authorized by the jurisdiction to provide such advice; or
(2) are services that the lawyer is authorized by federal or other law or rule to provide in this jurisdiction.
(e) For purposes of paragraph (d):
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(1) the foreign lawyer must be a member in good standing of a recognized legal profession in a foreign
jurisdiction, the members of which are admitted to practice as lawyers or counselors at law or the equivalent, and
subject to effective regulation and discipline by a duly constituted professional body or a public authority; or,
(2) the person otherwise lawfully practicing as an in-house counsel under the laws of a foreign jurisdiction
must be authorized to practice under this Rule by, in the exercise of its discretion, [the highest court of this
jurisdiction].

Rule 8.1: Bar Admission and Disciplinary Matters

An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection
with a disciplinary matter, shall not:
(a) knowingly make a false statement of material fact; or
(b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the
matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary
authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6.

Rule 8.2: Judicial and Legal Officials

(a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its
truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal
officer, or of a candidate for election or appointment to judicial or legal office.
(b) A lawyer who is a candidate for judicial office shall comply with the applicable provisions of the Code of
Judicial Conduct.

Rule 8.3: Reporting Professional Misconduct

(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct
that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other
respects, shall inform the appropriate professional authority.
(b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that
raises a substantial question as to the judge's fitness for office shall inform the appropriate authority.
(c) This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information
gained by a lawyer or judge while participating in an approved lawyers assistance program.

Rule 8.4: Misconduct

It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do
so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer
in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
(e) state or imply an ability to influence improperly a government agency or official or to achieve results by
means that violate the Rules of Professional Conduct or other law;
(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial
conduct or other law; or
(g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on
the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity,
marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit
 PROFESSIONAL RESPONSIBILITY AND ETHICS
the ability
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of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This
paragraph does not preclude legitimate advice or advocacy consistent with these Rules.

Rule 8.5: Disciplinary Authority; Choice of Law

(a) Disciplinary Authority. A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of
this jurisdiction, regardless of where the lawyer's conduct occurs. A lawyer not admitted in this jurisdiction is also
subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal services
in this jurisdiction. A lawyer may be subject to the disciplinary authority of both this jurisdiction and another
jurisdiction for the same conduct.
(b) Choice of Law. In any exercise of the disciplinary authority of this jurisdiction, the rules of professional conduct
to be applied shall be as follows:
(1) for conduct in connection with a matter pending before a tribunal, the rules of the jurisdiction in which the
tribunal sits, unless the rules of the tribunal provide otherwise; and
(2) for any other conduct, the rules of the jurisdiction in which the lawyer’s conduct occurred, or, if the
predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction shall be applied to the
conduct. A lawyer shall not be subject to discipline if the lawyer’s conduct conforms to the rules of a jurisdiction
in which the lawyer reasonably believes the predominant effect of the lawyer’s conduct will occur.
Case Name Material Facts Rules Relevant Notes

Mahoning Mahoning County Bar Suspension Rauzan is hereby suspended

County bar Association, charged from the practice of law in
Association v. Rauzan with violating Ohio for six months, with the
Rauzan entire suspension stayed on the
the rules of
(Page 69) condition that he engage in no
professional conduct further misconduct. If Rauzan
based on his fails to comply with the
misdemeanor condition of the stay, the stay
convictions for will be lifted and he will serve
improperly accessing the full six months suspension.
the Ohio law
enforcement gateway
system during his
service as a police
chief.

In Re (1) Mountain Disbarred

Mountain represented the M’s and
(Page 71) at the same time
represented the second
couple in violation of
the conflict of interest
rules. (2) mountain
made a false statement
 PROFESSIONAL RESPONSIBILITY AND ETHICS
to the M’s when he told
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them that the fetus was
abnormal when in fact
he had not conferred
with the gynecologist.
(3) Mountain failed to
carry out his agreement
to represent the M’s in
the matter. (4)
mountain made false
statements to attorney
G about Mountain’s
role in the matter. (5)
Mountain served as a
procurer of a baby for
adoption, which is
morally repugnant and
in violation of the rules.
(6) Mountain collected
a clearly excessive fee
for the second couple.

In Re Holmay Attorney forged or Suspension Also not allowed:

(Page 73) procured the forgery of (1) notarizing ungenuine
his client signature on signatures; (2) having the
client authorize the attorney to
documents which he
forge the client's name on an
falsely notarized, affidavit; (3) allowing an
submitted to a court, office employee to sign the
and served on the attorney's name on various
opposing party. documents and to notarize the
signatures.
In The Matter Respondant, a licensed Disbarred Although not licensed in South
of Naderi California attorney, Carolina, respondent is subject
(Page 74) provided legal services Disciplinary action is allowed If a to discipline by this court
lawyer not admitted in this jurisdiction because he provided legal
in South Carolina to a
provides or offers to provide any legal services in South Carolina and
South Carolina resident meets the definition of lawyer.
without having been services in this jurisdiction; or anyone
admitted or authorized whose advertisements or solicitations
Respondent failed to meet any
to practice law in South are subject to regulation by this of the requirements that would
Carolina, in violation of jurisdiction. Respondent is subject to have allowed him to engage in
the disciplinary authority of the court of the temporary practice of law
 PROFESSIONAL RESPONSIBILITY AND ETHICS
the rules of
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the jurisdiction to the same extent as a in South Carolina.
professional conduct. lawyer admitted to practice law in this Respondents representation of
jurisdiction JH was (1) not undertaken in
association with an attorney to
bid to practice in South
Carolina; (2) not reasonably
related to a matter in which
respondent was reasonably
expected to be authorized to
appear because the terms of
respondents fee agreement
specifically excluded
litigation; (3) not reasonably
related to a pending or
potential arbitration,
mediation, or other alternative
dispute resolution proceeding
in South Carolina or
California; and (4) did not
arise out of Oregon relate to
respondents representation of a
client in California because JH
was a South Carolina resident
with a South Carolina legal
issue.
Concept:
Beginning and Ending the Lawyer-Client Relationship
ABA Model Rule:
All members of the bar of this court are subject to be appointed to represent a dignity litigants. This is an ethical
obligation of attorneys in fulfillment of the underlying concepts of Canon two of the code of professional
responsibility.

Rule 1.16: Declining or Terminating Representation

(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced,
shall withdraw from the representation of a client if:
(1) the representation will result in violation of the rules of professional conduct or other law;
(2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or
(3) the lawyer is discharged.
(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:
(1) withdrawal can be accomplished without material adverse effect on the interests of the client;
(2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes
is criminal or fraudulent;
(3) the client has used the lawyer's services to perpetrate a crime or fraud;
(4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a
fundamental disagreement;
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(5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has
been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;
(6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered
unreasonably difficult by the client; or
(7) other good cause for withdrawal exists.
(c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a
representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good
cause for terminating the representation.
(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a
client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel,
surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense
that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by
other law.

Rule 1.18: Duties to Prospective Client

(a) A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to
a matter is a prospective client.
(b) Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client
shall not use or reveal that information, except as Rule 1.9 would permit with respect to information of a former
client.
(c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a
prospective client in the same or a substantially related matter if the lawyer received information from the
prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d).
If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is
associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d).
(d) When the lawyer has received disqualifying information as defined in paragraph (c), representation is
permissible if:
(1) both the affected client and the prospective client have given informed consent, confirmed in writing, or:
(2) the lawyer who received the information took reasonable measures to avoid exposure to more
disqualifying information than was reasonably necessary to determine whether to represent the prospective
client; and
(i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned
no part of the fee therefrom; and
(ii) written notice is promptly given to the prospective client.

Rule 6.1: Voluntary Pro Bono Publico Service

Every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should
aspire to render at least (50) hours of pro bono publico legal services per year. In fulfilling this responsibility, the
lawyer should:
(a) provide a substantial majority of the (50) hours of legal services without fee or expectation of fee to:
(1) persons of limited means or
(2) charitable, religious, civic, community, governmental and educational organizations in matters that are
designed primarily to address the needs of persons of limited means; and
(b) provide any additional services through:
(1) delivery of legal services at no fee or substantially reduced fee to individuals, groups or organizations
seeking to secure or protect civil rights, civil liberties or public rights, or charitable, religious, civic,
 PROFESSIONAL RESPONSIBILITY AND ETHICS
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community, governmental and educational organizations in matters in furtherance of their organizational purposes,
where the payment of standard legal fees would significantly deplete the organization's economic resources or
would be otherwise inappropriate;
(2) delivery of legal services at a substantially reduced fee to persons of limited means; or
(3) participation in activities for improving the law, the legal system or the legal profession.
In addition, a lawyer should voluntarily contribute financial support to organizations that provide legal services to
persons of limited means.

Rule 6.2: Accepting Appointments

A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause, such as:
(a) representing the client is likely to result in violation of the Rules of Professional Conduct or other law;
(b) representing the client is likely to result in an unreasonable financial burden on the lawyer; or
(c) the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship
or the lawyer's ability to represent the client.

Case Name Material Facts Rules Relevant Notes

Bothwell v. Judge required In determining whether counsel should In criminal matters, public
Republic defendants to respond be appointed for an indignant plaintiff, funds are generally available to
Tobacco Co. to Bothwell’s strict the court should consider such factors provide modest compensation
(Page 88) to private lawyers who
liability and breach of as (1) the factual complexity of the
represent indignant and
implied warranty of case, (2) the ability of the plaintiff to criminal defendants. But
fitness claims and investigate the facts, (3) the existence public funds are generally not
granted his request for of conflicting testimony, (4) the available to compensate
appointment of plaintiff's ability to present his claims, private lawyers who represent
counsel. Following a (5) the complexity of the legal issues, indignant persons in civil
series of motions to and (6) is the plaintiff's ability to obtain matters.
withdraw and counsel on his own. a plaintiff, before
Discords inherent power to
appointments of seeking appointment of counsel by the compel representation of the
substitute counsel, court, must diligently seek out private indignant exists for two
Judge appointed representation. primary purposes: (1) to ensure
Metcalf as counsel. a fair and just adjudicative
The first step in the marketability process in individual cases;
analysis is to ask whether, realistically, And (2) to maintain the
there is a market of lawyers who integrity and viability of the
practice in the legal area of the judiciary and of the entire civil
plaintiffs’ claims. As a result, in many justice system.
cases, there simply is no true market to
look to win determining whether an
indignant plaintiff should be appointed
counsel. In such cases, there should be
no further inquiry into the marketability
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of a plaintiff's claims. In cases where
such a market of lawyers is found to
exist, a second question must be
addressed: does the plaintiff have
adequate access to that market? This
inquiry is necessary for two major
reasons. first, mini litigants are
physically unable to access private
counsel regardless of the merits of their
claims. This is especially true where
the litigant is incarcerated. Second,
there may be communication barriers
of language or language skills; Barriers
of physical, emotional, or mental
disabilities; Or educational or cultural
barriers that block understanding
between attorney and client. The point
is that the existence of lawyers out
there in the private market does not
establish their accessibility to a
particular plaintiff.

Ruskin v. defendant attempted to discharge his attorney during the course of

Rodgers the trial period the attorney was at that time cross examining the
(Page 101) first witness. To allow defendant to substitute attorneys at this
point would have been extremely disruptive to the trial and would
have resulted in a significant and prejudicial delay. This is
partially true where, as here, the impetus behind the discharge of
the attorney appeared to be predicated upon emotional whim
rather than upon any apparent sound reason.

Rosenberg v. Levin heired Rosenberg A lawyer discharged without cause is there are two conflicting
Levin and Pomerantz to entitled to the reasonable value of his interests involved in the
(Page 102) perform legal services services on the basis of quantum determination of the issue in
an attorney-client dispute. First
pursuant to a letter meruit, but recovery is limited to the
the need of the client to have
agreement which maximum fee set in the contract confidence in the integrity
provided for a $10,000 entered into for those services. We have ability of his attorney and,
fixed fee, plus a concluded that without this limitation, therefore, the need for the
contingent fee equal to the client would be penalized for the client to have the ability to
50% of all amounts discharge and the lawyer would receive discharge his lawyer when he
loses that necessary confidence
 PROFESSIONAL RESPONSIBILITY AND ETHICS
recovered in excess of
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more than he bargained for in his initial in the attorney. Second the
$600,000. Levin later contract. attorneys right to adequate
discharged Rosenberg compensation for the work
Traditional Contract Rule: an performed.
and Pomerantz without
cause before the legal attorney just charged without cause
may recover damages for breach of the philosophy that there is an
controversy was overriding need to allow
resolved in contract under traditional contract
clients freedom to substitute
subsequently settled the principles, usually the full contract attorneys without economic
matter for a net price. Support for the traditional penalty as a means of
recovery of $500,000. contract theory is based on: (1) the full accomplishing the rod
contract price is arguably the most objective of fostering public
Rosenberg and
rational measure of damages since it confidence in the legal
Pomerantz sued for profession.
fees based on a reflects the value that the parties placed
“quantum meruit” on the services; (2) charging the full fee
evaluation of their prevents the client from profiting from
services. his own breach of contract; and (3) the
contract rule is set to avoid the difficult
problem of setting a value on an
attorney’s partially completed legal
work.

Quantum Meruit Rule: an attorney

discharged without cause can recover
only the reasonable value of services
rendered prior to the discharge. support
for this rule is that there is an implied
condition in every attorney client
contract that the client may discharge
the attorney at any time with or without
cause.

Quantum Meruit Rule Limited by the

Contract Price: limits quantum meruit
recovery to the maximum fee set in the
contract. This limitation is believed
necessary to provide client freedom to
substitute attorneys without economic
penalty. Without such a limitation, a
client's right to discharge an attorney
may be illusory and the client it may in
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effect be penalized for exercising a
right.

Holmes v. the record contains The code of professional responsibility

Y.J.A. Realty Goldman's detailed states that an attorney's withdrawal
Corp. itemized bill for his from employment is permissible where
(Page 106)
legal services showing a client renders it unreasonably difficult
a balance due from for the lawyer to carry out his
their clients of employment effectively.
$2,275.30 after
crediting a payment on
account of $3,500.
Goldman avard that
although a demand for
payment of this bill had
been made by him upon
defendants for a period
of over five months
prior to his application
to be relieved,
defendants not only
refused to make any
payment (despite their
financial ability to do
so), but also that
defendant Abrahams
had verbally berated
and abused him by
accusations of
disloyalty and conflict
of interest.

Kriegsman v. Original agreement was When a firm accepts a retainer to Court discuss is the clients
Kriegsman $1,000 retainer and $60 conduct a legal proceeding, it implied inability to pay more money
(Page 107) court fees. During 3 1/2 Lee agrees to prosecute the matter to a and the extreme waiting
circumstances of why she
months at the Rose firm conclusion. The firm is not at liberty to
needed representation during
represented plaintiff abandon the case without justifiable or this divorce settlement.
prior to this motion reasonable cause, or the consent of its
they had numerous client.
court appearances and
 PROFESSIONAL RESPONSIBILITY AND ETHICS
had engaged in
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The lawyer should not throw up the
extensive office work unfinished task to the detriment of his
on plaintiff's behalf. client except for reasons of honor or
They unusual amount self-respect.
of work required was
necessary in part by the
fact that defendant
appeared pro say, was
completely
uncooperative and
refused to comply with
some of the orders
entered by the court.
The roast firm alleged
today spent 110 hours
on plaintiffs case, build
at least $7300, and had
incurred disbursements
of approximately $242
period since, by then,
plaintiff was on welfare
and since she
apparently did not have
sufficient funds to pay
the additional fees
incurred, The Rose firm
contended that they
were entitled to be
relieved from further
representation.

Disciplinary Disciplined by the Moral of the story: Pay all the

Counsel v. court and charged with fees required by the court
Marshall paying fees. Attorney
(MyLaw)
disobeyed the judge
and did not pay the
fees. Attorney
suspended for 2+ years.
 PROFESSIONAL RESPONSIBILITY AND ETHICS
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Concept:
Frivolous Claims
ABA Model Rule:
Rule 3.1: Meritorious Claims and Contentions
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law
and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or
reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that
could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case
be established.

Rule 3.1 prohibits an attorney from taking a frivolous legal position—that is, a position that, under the facts has no
basis in existing law and that cannot be supported by a good faith argument for extending, modifying, or reversing
the existing lot. Under Rule 1.16, An attorney must refuse employment (or must withdraw from employment) if the
employment would require the attorney to violate a disciplinary rule or other law aside from professional discipline,
what might happen to an attorney who pursues a frivolous claim on behalf of a client? One possibility is a suit
against the attorney and client by the adversary for malicious prosecution. The tort requires the adversary to prove 4
elements: (1) the initiation or continuation of the underlying action; (2) lack of probable cause; (3) malice; and (4)
favorable termination of the underlying action.

Concept:
Advertising and Solicitation
ABA Model Rule:
Rule 7.1: Communications Concerning a Lawyer’s Services
A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A
communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact
necessary to make the statement considered as a whole not materially misleading.

Rule 7.2: Communications Concerning a Lawyer’s Services—Specific Rules

(a) A lawyer may communicate information regarding the lawyer’s services through any media.
(b) A lawyer shall not compensate, give or promise anything of value to a person for recommending the lawyer’s
services except that a lawyer may:
(1) pay the reasonable costs of advertisements or communications permitted by this Rule;
(2) pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service;
(3) pay for a law practice in accordance with Rule 1.17;
(4) refer clients to another lawyer or a nonlawyer professional pursuant to an agreement not otherwise
prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, if:
(i) the reciprocal referral agreement is not exclusive; and
(ii) the client is informed of the existence and nature of the agreement; and
(5) give nominal gifts as an expression of appreciation that are neither intended nor reasonably expected to be
a form of compensation for recommending a lawyer’s services.
(c) A lawyer shall not state or imply that a lawyer is certified as a specialist in a particular field of law, unless:
(1) the lawyer has been certified as a specialist by an organization that has been approved by an appropriate
authority of the state or the District of Columbia or a U.S. Territory or that has been accredited by the
American Bar Association; and
 PROFESSIONAL RESPONSIBILITY AND ETHICS
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(2) the name of the certifying organization is clearly identified in the communication.
(d) Any communication made under this Rule must include the name and contact information of at least one lawyer
or law firm responsible for its content.

Rule 7.3: Solicitation of Clients

(a) “Solicitation” or “solicit” denotes a communication initiated by or on behalf of a lawyer or law firm that is
directed to a specific person the lawyer knows or reasonably should know needs legal services in a particular matter
and that offers to provide, or reasonably can be understood as offering to provide, legal services for that matter.
(b) A lawyer shall not solicit professional employment by live person-to-person contact when a significant motive for
the lawyer’s doing so is the lawyer’s or law firm’s pecuniary gain, unless the contact is with a:
(1) lawyer;
(2) person who has a family, close personal, or prior business or professional relationship with the lawyer or
law firm; or
(3) person who routinely uses for business purposes the type of legal services offered by the lawyer.
(c) A lawyer shall not solicit professional employment even when not otherwise prohibited by paragraph (b), if:
(1) the target of the solicitation has made known to the lawyer a desire not to be solicited by the lawyer; or
(2) the solicitation involves coercion, duress or harassment.
(d) This Rule does not prohibit communications authorized by law or ordered by a court or other tribunal.
(e) Notwithstanding the prohibitions in this Rule, a lawyer may participate with a prepaid or group legal service plan
operated by an organization not owned or directed by the lawyer that uses live person-to-person contact to enroll
members or sell subscriptions for the plan from persons who are not known to need legal services in a particular
matter covered by the plan.

Rule 7.6: Political Contributions to Obtain Legal Engagements or Appointments by Judges

A lawyer or law firm shall not accept a government legal engagement or an appointment by a judge if the lawyer or
law firm makes a political contribution or solicits political contributions for the purpose of obtaining or being
considered for that type of legal engagement or appointment.

Rule 8.4(a): Misconduct

It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do
so, or do so through the acts of another;

Case Name Material Facts Rules Relevant Notes

Bates v. State A legal clinic sought to Restrictions allowed on: (1) The First Amendment
Bar of Arizona increase their volume Advertising that is false, deceptive, or commercial speech doctrine
(Page 122) by running newspaper misleading of course is subject to protects attorney advertising
ads, the Arizona state restraint. (2) Reasonable restrictions on that is truthful and not
bar disciplined them, the time and place of advertisting misleading.
and Bates appealed to
supreme court. The
heart of the dispute is
whether lawyers also
 PROFESSIONAL RESPONSIBILITY AND ETHICS
may constitutionally
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advertise the prices at
which certain routine
services will be
performed.

The Ohralik v. Ohralik learned of two A state may adopt prophylactic rules Unlike the advertisements
Ohio State Bar 18 year old girls in an that forbid in-person solicitation of approved in Bates, the court
Association auto-accident. Ohralik fee-generating legal busi9ness under said, in-person solicitation of
(Page 130) fee-paying legal business
went to the parents to circumstances that are likely to produce
poses significant dangers for
have them agree to fraud, undue influence, or similar evils. the lay person who gets
represent them and then solicited.
went to the girl in the In-person solicitation gives no
hospital. He got them opportunity for
to sign a contingent fee counter-information by the
agreement. When they organized bar or others who
might offer calmer advice.
decided to go with
another lawyer Ohralik
sued for breach of
contract.

In Re Primus Primus was a part of Primus was not guilty of “in-person The ACLU was seeking to use
(Page 131) the ACLU. She met solicitation for pecuniary gain” but had the sterilization litigation as a
with someone women simply conveyed an offer of free legal vehicle for political expression
and association, as well as
who alleged have been help by a recognized civil rights group.
means of communicating
sterilized or threatened useful information to the
with sterilization as a public. This kind of speech is
condition of receiving more precious than the
Medicaid benefits. The commercial speech in Ohralik.
ACLU agreed to The states may not regulate it
represent them and sent without showing actual abuse;
a showing of potential abuse is
a letter to one of the
not enough.
women to inform her of
the ACLU offer. SC
reprimanded Primus.
 PROFESSIONAL RESPONSIBILITY AND ETHICS
Peel v.
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A lawyer who had been According to Rule 7.2(c) an attorney
Attorney certified as a specialist may state that she is a specialist, that
Registration & in trial advocacy, not she practices a specialty, or that she
Disciplinary
by the bar of his state, specialized in particular areas.
Com’n
(Page 133) but rather by the However, a lawyer may state he or she
National Board of Trial is “certified” as a specialist in a
Advocacy, a private particular field only when the certifying
organization that uses organization—which must be clearly
high, rigorously identified in the communication—has
enforced standards for been approved by the ABA or state
certifying trial authority.
advocates.

Zauderer v. A lawyer who placed a An attorney may not be disciplined

Office of newspaper ad that was simply for placing an ad that concerned
Disciplinary aimed at a narrow a specific legal problem and that was
Counsel of the
audience—users of the designed to lure a narrow group of
Supreme Court
of Ohio Dalkon Shield, an potential clients
(Page 134) intrauterine
contraceptive device
that allegedly injured
many women.

Shapero v. Shapero mailed A state may not ban solicitation letters Letters can be policed by
Kentucky Bar solicitation letters to outright, but it can impose reasonable requiring copies to be sent to
Ass’n people he knew were regulations on their use. the regulatory agency.
(Page 134)
facing foreclosure on
In-person solicitation creates a
their homes for failure
grave risk that the lawyer will
to pay their debts.
invade the client’s privacy,
overreach, or use undue
influence. The risk is far less
with a letter, which the
recipient can set aside for later
study, ignore, or simply throw
in the trash.
 PROFESSIONAL RESPONSIBILITY AND ETHICS
Flordia Bar v.
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Upheld Florida rule that prohibits The harm targeted by the
Went For It, lawyers from mailing solicitation letters Florida Bar cannot be
Inc. to victims and their families for 30 days eliminated by a brief journey
(Page 135) to the trash can. The purpose
following an accident.
of the 30-day targeted
Central Hudson Test: The direct-mail ban is to forestall
the outrage and irritation with
government may freely regulate
the state-licensed legal
commercial speech that concerns profession that the practice of
unlawful activity or is misleading. direct solicitation only days
Commercial speech that falls into after accidents had
neither of those categories, like the engendered. The Bar is
advertising at issue here, may be concerned not with citizens’
regulated if the government satisfies a offense in the abstract, but
with the demonstrable
three-part test. (1) the government must
detrimental effects that such
assert a substantial interest in support offense has on the profession it
of its regulation; (2) the government regulates.
must demonstrate that the restriction on
commercial speech directly and
materially advances that interest; and
(3) the regulation must be narrowly
drawn.

Social Media Lawyers may post information on Facebook, Twitter, and other social media platforms, when such
and Lawyer posting constitute “communications” about the attorney’s availability for professional employment,
Advertising they are subject to the ethical rules and standards governing attorney advertising.
(Page 140)

Concept:
Attorney Fees and Fiduciary Duties
ABA Model Rule:
Rule 1.5: Fees
(a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for
expenses. The factors to be considered in determining the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to
perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude
other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
 PROFESSIONAL RESPONSIBILITY AND ETHICS
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(8) whether the fee is fixed or contingent.
👎
(b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be
responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after
commencing the representation, except when the lawyer will charge a regularly represented client on the same basis
or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client.
(c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in
which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in a writing
signed by the client and shall state the method by which the fee is to be determined, including the percentage or
percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to
be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is
calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or
not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client
with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the
client and the method of its determination.
(d) A lawyer shall not enter into an arrangement for, charge, or collect:
(1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of
a divorce or upon the amount of alimony or support, or property settlement in lieu thereof; or
(2) a contingent fee for representing a defendant in a criminal case.
(e) A division of a fee between lawyers who are not in the same firm may be made only if:
(1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint
responsibility for the representation;
(2) the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is
confirmed in writing; and
(3) the total fee is reasonable.

Rule 1.8(e): Current Clients, Specific Rules

(e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation,
except that:
(1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent
on the outcome of the matter;
(2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the
client; and
(3) a lawyer representing an indigent client pro bono, a lawyer representing an indigent client pro bono
through a nonprofit legal services or public interest organization and a lawyer representing an indigent client pro
bono through a law school clinical or pro bono program may provide modest gifts to the client for food, rent,
transportation, medicine and other basic living expenses. The lawyer:
(i) may not promise, assure or imply the availability of such gifts prior to retention or as an
inducement to continue the client-lawyer relationship after retention;
(ii) may not seek or accept reimbursement from the client, a relative of the client or anyone affiliated
with the client; and
(iii) may not publicize or advertise a willingness to provide such gifts to prospective clients.
Financial assistance under this Rule may be provided even if the representation is eligible for fees under a
fee-shifting statute.

Rule 1.15: Safekeeping Property

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(a) A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a
representation separate from the lawyer's own property. Funds shall be kept in a separate account maintained in the
state where the lawyer's office is situated, or elsewhere with the consent of the client or third person. Other property
shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property
shall be kept by the lawyer and shall be preserved for a period of [five years] after termination of the representation.
(b) A lawyer may deposit the lawyer's own funds in a client trust account for the sole purpose of paying bank service
charges on that account, but only in an amount necessary for that purpose.
(c) A lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance, to be
withdrawn by the lawyer only as fees are earned or expenses incurred.
(d) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly
notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the
client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third
person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting
regarding such property.
(e) When in the course of representation, a lawyer is in possession of property in which two or more persons (one of
whom may be the lawyer) claim interests, the property shall be kept separate by the lawyer until the dispute is
resolved. The lawyer shall promptly distribute all portions of the property as to which the interests are not in dispute.
Relevant Notes for Rule 1.15:
A lawyer may lend the client money to cover court costs and litigation expenses.
This rule requires attorneys to keep clients’ money and property separate from their own, to maintain adequate
records, to notify clients promptly when money or property is received on their behalf, and to deliver promptly any
money or property that belongs to clients.
When a lawyer receives a large sum to be held for a long period, the lawyer should make a specific agreement with
the client about how the sum is to be handled. Absent is specific agreement, the lawyer should put the some into a
separate, interest-bearing trust account at a bank. The interest, of course, belongs to the client, not to the lawyer.
Advances for expenses is still considered the client’s property until the attorney renders those services.

Alternatives to Billable Hours:

● Fixed or flat fees
● Contingent fees
● Hybrid billing methods
o A flat fee plus an hourly rate for work in excess of a specified maximum
o An hourly fee plus a contingent fee

What Records Must the Attorney Keep?

For clients’ money, the attorney should keep a Ledger sheet for each client, a journal for each bank account, all bank
statements and canceled checks, in a monthly reconciliation of the Ledger sheets, journals, in Bing documents. For
clients’ property other than money, that turn I should keep a journal that shows that the property is for whom it is
held, when it was received, and when and to whom it was handed over. The record should be kept for a number of
years as required by local rules, usually about five years.

Case Name Material Facts Rules Relevant Notes

 PROFESSIONAL RESPONSIBILITY AND ETHICS
Robert L. During the next 10
BERGER, SPRING 2022 👎
Reasonableness of an attorney’s fee it is obvious that much of the
Wheeler, Inc. v. months, Wheeler requires the balancing of the twelve time expended was
Scott represented Scott in a factors: unnecessary by any reasonable
(Page 151) standard. Under our detailed
collection of lien and (1) Time and labor required
analysis of the
foreclosure actions (2) Novelty or difficulty of issues guidelines—particularly the
filed against Scott by (3) The skill requisite to perform excessive time spent, the
the mortgage bank. (4) Loss of opportunity for other relative simplicity of the issues
Scott was billed employment (except where they were
$85,000 for legal (5) The customary fee needlessly multiplied and
services representing (6) Whether the fee is fixed or complicated by counsel), the
very average lawyering skill
753.4 hours, averaging contingent
required, the non-preclusion of
150.6 hours per month (7) Time limitations imposed by the other employment, the entry of
which he did not pay. clients or circumstances summary judgment, the
The bank then moved (8) The amount involved and the customary fee, the absence of
for summary judgment results obtained restrictive time limitations, and
two days before the (9) Experience, reputation, and the inexperience of the lawyer
hearing on the banks ability of the attorney who did the bulk of the
work--we find that the fee
motion, the lawyer told (10) The undesirability of the
allowed by the trial court is
his client that if the case excessive.
attorney’s fees were not (11) Casual or regular
paid, he would employment
withdraw from the (12) Awards in similar cases
case. Scott did not pay,
and Wheeler did not
withdraw. Instead, a
first-year associate was
sent to oppose the
bank's motion for
summary judgment.

Blue-Chip A sister being number The ABA Ethics Committee issued an Examples: some lawyers are
Bilking: of well-respected opinion on issues relating to hourly just sloppy about keeping time
Regulation of lawyers and large billing, prohibiting padding of records. Some systematically
Billing and pad timesheets, or build one
established firms have timesheets, double billing, billing and
Expense Fraud client for work done for
by Lawyers been caught stealing new for recycled work, and charging another. Some create entirely
(Page 156) large amounts of above cost for administrative or other fictitious timesheets. Some
money from their non-legal services. record hours based on work
clients and their done by other lawyers,
partners by patting, paralegals, or secretaries,
manipulating, and representing that they did the
 PROFESSIONAL RESPONSIBILITY AND ETHICS
fabricating time sheets
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and expense vouchers. billable time being billed, or in
work being billed at a higher
rate than that of the person
who actually did the work
period some lawyers bill for
time that their clients might
not regard as legitimately
billable, for schmoozing with
other lawyers, chatting with
clients about sports or family,
for doing administrative work
that could be done by a non
lawyer, or for thinking about a
case while mowing the lawn or
watching television.
Board of This is an attorney Mitigating Factors: (1) absence of a although respondent may have
Professional discipline case that prior disciplinary record; (2) full and failed in compliance with the
Responsibility arose out of free disclosure to the board and Bar LSA terms (15min
Wyoming State increments), she failed to
respondents billing Council; (3) timely good faith effort to
Bar v. Casper ensure that her charges were
(Page 160) excessive legal fees and make restoration or to rectify reasonable.
her subsequent consequences of misconduct; and (4)
improper attempt to remorse. Key: Just say you're sorry!
collect those fees.

In The Matter We uphold the referees’ findings of fact and conclusions of law Attorneys MUST notify the
of Constant which found 8 counts of misconduct. We conclude that a client about any deposits and
(Page 175) six-month suspension of attorney Constance Wisconsin law withdraws from the client’s
trust.
license is an appropriate sanction for the misconduct at issue. We
also find it appropriate to follow our normal custom of imposing Because the attorney made full
the full costs of this disciplinary proceeding, which are $13,400 restitution to the client, the
as of December 2019 on Attorney Constant. court did not impose a
restitution award.
Concept:
Competence, Diligence, and Unauthorized Practice
 PROFESSIONAL RESPONSIBILITY AND ETHICS
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ABA Model Rule:
👎
Rule 1.1: Competence
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge,
skill, thoroughness and preparation reasonably necessary for the representation.

Rule 1.2: Scope of the Representation & Allocation of Authority Between Client & Lawyer
(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of
representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be
pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the
representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer
shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive
jury trial and whether the client will testify.
(b) A lawyer's representation of a client, including representation by appointment, does not constitute an
endorsement of the client's political, economic, social or moral views or activities.
(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the
client gives informed consent.
(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or
fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may
counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the
law.

Rule 1.3: Diligence

A lawyer shall act with reasonable diligence and promptness in representing a client.

Rule 1.4: Communications

(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect to which the client's informed
consent, as defined in Rule 1.0(e), is required by these Rules;
(2) reasonably consult with the client about the means by which the client's objectives are to be
accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and
(5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that
the client expects assistance not permitted by the Rules of Professional Conduct or other law.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions
regarding the representation.

Rule 1.8(h): Current Clients—Specific Rules

(h) A lawyer shall not:
(1) make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless the
client is independently represented in making the agreement; or
(2) settle a claim or potential claim for such liability with an unrepresented client or former client unless that
person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the
advice of independent legal counsel in connection therewith.
 PROFESSIONAL RESPONSIBILITY AND ETHICS
Rule 1.18: Duties to Prospective Client
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(a) A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to
a matter is a prospective client.
(b) Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client
shall not use or reveal that information, except as Rule 1.9 would permit with respect to information of a former
client.
(c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a
prospective client in the same or a substantially related matter if the lawyer received information from the
prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d).
If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is
associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d).
(d) When the lawyer has received disqualifying information as defined in paragraph (c), representation is
permissible if:
(1) both the affected client and the prospective client have given informed consent, confirmed in writing, or:
(2) the lawyer who received the information took reasonable measures to avoid exposure to more
disqualifying information than was reasonably necessary to determine whether to represent the prospective
client; and
(i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned
no part of the fee therefrom; and
(ii) written notice is promptly given to the prospective client.

Rule 5.3: Responsibilities Regarding Nonlawyer Assistance

With respect to a nonlawyer employed or retained by or associated with a lawyer:
(a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial
authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable
assurance that the person's conduct is compatible with the professional obligations of the lawyer;
(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the
person's conduct is compatible with the professional obligations of the lawyer; and
(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional
Conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or
(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is
employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its
consequences can be avoided or mitigated but fails to take reasonable remedial action.

Rule 5.4: Professional Independence of a Lawyer

(a) A lawyer or law firm shall not share legal fees with a nonlawyer, except that:
(1) an agreement by a lawyer with the lawyer's firm, partner, or associate may provide for the payment of
money, over a reasonable period of time after the lawyer's death, to the lawyer's estate or to one or more
specified persons;
(2) a lawyer who purchases the practice of a deceased, disabled, or disappeared lawyer may, pursuant to the
provisions of Rule 1.17, pay to the estate or other representative of that lawyer the agreed-upon purchase
price;
(3) a lawyer or law firm may include nonlawyer employees in a compensation or retirement plan, even
though the plan is based in whole or in part on a profit-sharing arrangement; and
 PROFESSIONAL RESPONSIBILITY AND ETHICS
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(4) a lawyer may share court-awarded legal fees with a nonprofit organization that employed, retained or
recommended employment of the lawyer in the matter.
(b) A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the
practice of law.
(c) A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for
another to direct or regulate the lawyer's professional judgment in rendering such legal services.
(d) A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice
law for a profit, if:
(1) a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may
hold the stock or interest of the lawyer for a reasonable time during administration;
(2) a nonlawyer is a corporate director or officer thereof or occupies the position of similar responsibility in
any form of association other than a corporation ; or
(3) a nonlawyer has the right to direct or control the professional judgment of a lawyer.

Rule 5.5: Unauthorized Practice of Law Multijurisdictional Practice of Law

(a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that
jurisdiction, or assist another in doing so.
(b) A lawyer who is not admitted to practice in this jurisdiction shall not:
(1) except as authorized by these Rules or other law, establish an office or other systematic and continuous
presence in this jurisdiction for the practice of law; or
(2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.
(c) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any
jurisdiction, may provide legal services on a temporary basis in this jurisdiction that:
(1) are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who
actively participates in the matter;
(2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another
jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such
proceeding or reasonably expects to be so authorized;
(3) are in or reasonably related to a pending or potential arbitration, mediation, or other alternative resolution
proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer's
practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum
requires pro hac vice admission; or
(4) are not within paragraphs (c) (2) or (c)(3) and arise out of or are reasonably related to the lawyer's practice
in a jurisdiction in which the lawyer is admitted to practice.
(d) A lawyer admitted in another United States jurisdiction or in a foreign jurisdiction, and not disbarred or
suspended from practice in any jurisdiction or the equivalent thereof, or a person otherwise lawfully practicing as an
in-house counsel under the laws of a foreign jurisdiction, may provide legal services through an office or other
systematic and continuous presence in this jurisdiction that:
(1) are provided to the lawyer's employer or its organizational affiliates, are not services for which the forum
requires pro hac vice admission; and when performed by a foreign lawyer and requires advice on the law of
this or another U.S. jurisdiction or of the United States, such advice shall be based upon the advice of a
lawyer who is duly licensed and authorized by the jurisdiction to provide such advice; or
(2) are services that the lawyer is authorized by federal or other law or rule to provide in this jurisdiction.
(e) For purposes of paragraph (d):
 PROFESSIONAL RESPONSIBILITY AND ETHICS
BERGER, SPRING 2022 👎
(1) the foreign lawyer must be a member in good standing of a recognized legal profession in a foreign
jurisdiction, the members of which are admitted to practice as lawyers or counselors at law or the equivalent, and
subject to effective regulation and discipline by a duly constituted professional body or a public authority; or,
(2) the person otherwise lawfully practicing as an in-house counsel under the laws of a foreign jurisdiction
must be authorized to practice under this Rule by, in the exercise of its discretion, [the highest court of this
jurisdiction].

Notes
Malpractice:
A lawyer can be sued for an intentional tort (misuse of funds, or abuse of the process, or misrepresentation); for
breach of fiduciary duties (including: keeping the clients confidences, safeguarding the client’s money and property,
avoiding conflicts of interest, being honest with the client, adequately informing the client, and following the client’s
instructions); and for unintentional torts—ordinary negligence (duty of care, standard of care, breach of the duty of
care, actual cause, proximate cause, and damages).

Defenses:
The attorney reasonably believed that the action was required by a law or a legal ethics rule
Jurisdictions that have comparative or contributory negligence apply in this circumstance

Statute of Limitations:

Vicarious Liability:
A firm is civil liable for injuries caused by an employee or principal of the firm who was acting in the ordinary
course of the firm’s business, or with actual or apparent authority.

Malpractice Insurance:
Attorneys are not required to carry malpractice insurance
Some jurisdictions require the attorney to tell potential clients if they carry it or not. Other jurisdictions require it if
the attorney wants to be on an approval lawyer referral list
ABA requires private practitioners, but not government lawyers or in-house lawyers, to report annually if they carry
malpractice insurance

Second Rate Legal Services:

It is permitted that a lawyer and client to agree to limit a duty that the lawyer would otherwise owe to the client,
provided that the limit is reasonable in the circumstances and that the client is adequately informed and consents to
the limit.

Multi-jurisdictional Practice:
Unauthorized practice is prohibited
Lawyers not licensed in that jurisdiction are barred by practicing there or assisting another

Pro Hac Vice [for this turn only]:

Authorizes courts or administrative agencies to permit out-of-state attorneys to represent a client in a particular
matter
Rule 5.5 allows a lawyer licensed and in good standing in one jurisdiction to practice, temporarily, in another
jurisdiction when the lawyer (1) works in association with a lawyer licensed in the host state; (2) represents clients
 PROFESSIONAL RESPONSIBILITY AND ETHICS
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in, or in participating in, and arbitration, mediation, or other alternatives dispute resolution proceedings; (3) performs
non litigation work that arises out of, or is reasonably related to, the lawyers home state practice; or (4) provide
litigation related services in a state where the lawyer expects to be admitted.

Multi-disciplinary Practice:
Lawyers may not share legal fees with non lawyers
Lawyers may not create a partnership between a lawyer and a non lawyer if the partnership will engage in practice of
law
the rule reminds lawyers that they are subject to the rules of professional responsibility when providing law related
services unless the client understands that they are not legal services and do not enjoy the protection of the lawyer
client relationship
Case Name Material Facts Rules Relevant Notes

Unauthorized Casulls had a living State bars may investigate nonlawyers Stock was required to pay
Practice of trust created in 2007. who engage in the unauthorized Voyles back for all expenses,
Law Comm. of Voyles amended the practice of law and require them to pay Stock was fines, and Stock had
Wyoming State to pay the Wyoming State Bar
trust twice. Stock fines, restitution, and costs.
Bar v. Stock for all expenses associated
(Page 204) convicted Casulls to with this case.
create a complex
irrevocable trust. Stock
convinced them to sign
new powers of
attorneys. Voyles
believes Stock was
preying on elderly
people. Stock is not
licensed to practice law.

Concept:
Confidential Information

ABA Model Rule:

Rule 1.2(d) Scope of Representation & Allocation of Authority Between Client & Lawyer
(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or
fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may
counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the
law.

Rule 1.6: Confidentiality of Information

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed
consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted
by paragraph (b).
 PROFESSIONAL RESPONSIBILITY AND ETHICS
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(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably
believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial
injury to the financial interests or property of another and in furtherance of which the client has used or is
using the lawyer's services;
(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is
reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of
which the client has used the lawyer's services;
(4) to secure legal advice about the lawyer's compliance with these Rules;
(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client,
to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the
client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of
the client;
(6) to comply with other law or a court order; or
(7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from
changes in the composition or ownership of a firm, but only if the revealed information would not compromise
the attorney-client privilege or otherwise prejudice the client.
(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized
access to, information relating to the representation of a client.

Rule 1.8(b): Current Clients: Specific Rules

(b) A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless
the client gives informed consent, except as permitted or required by these Rules.

Rule 1.9: Duties to Former Clients

(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the
same or a substantially related matter in which that person's interests are materially adverse to the interests of the
former client unless the former client gives informed consent, confirmed in writing.
(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with
which the lawyer formerly was associated had previously represented a client
(1) whose interests are materially adverse to that person; and
(2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the
matter; unless the former client gives informed consent, confirmed in writing.
(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly
represented a client in a matter shall not thereafter:
(1) use information relating to the representation to the disadvantage of the former client except as these
Rules would permit or require with respect to a client, or when the information has become generally known; or
(2) reveal information relating to the representation except as these Rules would permit or require with
respect to a client.
 PROFESSIONAL RESPONSIBILITY AND ETHICS
Rule 3.3: Candor Toward the Tribunal
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(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law
previously made to the tribunal by the lawyer;
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be
directly adverse to the position of the client and not disclosed by opposing counsel; or
(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the
lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take
reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer
evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is
false.
(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is
engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial
measures, including, if necessary, disclosure to the tribunal.
(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if
compliance requires disclosure of information otherwise protected by Rule 1.6.
(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will
enable the tribunal to make an informed decision, whether or not the facts are adverse.

Rule 3.4(a): Fairness to Opposing Party & Counsel

(a) unlawfully obstruct another party' s access to evidence or unlawfully alter, destroy or conceal a document or other
material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act;

Rule 4.1: Truthfulness in Statements to Others

In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; or
(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal
or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

Notes:
Client Consent
Rule 1.6(a)—allows a lawyer to reveal a client confidential information if the client has given informed consent, or if
the nature of the representation impliedly authorizes the lawyer to reveal the confidential information
Ex: suppose the client hires you to prepare and file an environmental impact report for the client's proposed
construction project period to do that, you will have to tell the government and the public many of the confidential
details of the proposed project, and your client realizes that fact.

Prevent Future Harm (Rule 1.6)

A majority of the jurisdictions allow lawyers to reveal the client's confidential information under limited
circumstances: (1) to prevent the client from committing a crime that would cause imminent death or substantial
bodily injury; (2) To prevent the client from committing a crime or fraud that would cause substantial financial
injury; and (3) to rectify the consequences of a client's crime or fraud in furtherance of which the lawyer's services
had been used.
 PROFESSIONAL RESPONSIBILITY AND ETHICS
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However, the ABA rules only allows for the first reason. The ABA rules apply even if: (1) no crime is involved; and
(2) even if the death or bodily injury is not imminent but is merely reasonably certain, and (3) even if the death or
bodily injury is caused by someone or something other than the lawyers client.

Self-Defense
ABA Rule 1.6(b)(4) allow a lawyer to reveal a client confidential information in self defense. The rules allow a
lawyer to reveal a client's confidential information in order to get legal advice about complying with the rules of
legal ethics.

Court Order or Other Law

Rule 1.6(b)(6) Allows a lawyer to disclose a client confidential information where that is necessary to comply with a
court order or with some other law.

Conflicts Due to Lawyer Mobility

Rule 1.6(b)(7) Allows for when a lawyer joins a firm or agency, in order to avoid potential conflicts of interest the
lawyer must be able to reveal the identities of his or her previous clients, as well as some limited information about
the matters the lawyer handled on behalf of those clients.
Case Name Material Facts Rules Relevant Notes

Washington v. in 1962 a coroner's To be protected as a privileged

Orwell inquest was held for the communication, information or objects
(Page 221) purpose of acquired by an attorney must have been
investigating the communicated or delivered to him by
circumstances the client, and not merely obtained by
surrounding the death the attorney while acting in that
of a Warren. The capacity for the client.
appellant was served
with a subpoena which Communications concerning an alleged
in part stated bring with crime or fraud, which are made by the
you all knives in your client to the attorney after the crime or
possession and under the fraudulent transaction has been
your control relating to completed, or within the attorney client
Gray, Pugh, or Warren. privilege, as long as the relationship of
The attorney declined the attorney and client has been
to surrender any of his established.
clients possessions, if However the attorney should not be a
any, because of the depository for the suspicion of such
confidential criminal evidence, such as a knife,
relationship of the other weapons, stolen property, etc.
attorney and the client.
 PROFESSIONAL RESPONSIBILITY AND ETHICS
People v. Meredith conviction of
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An observation by defense counsel or In this case the defense
Meredith first-degree murder in as investigator, which is the product of frustrated the possibility that
(Page 226) first degree robbery a privileged communication, may not the police might later discover
the wallet in the trash can thus
rests on eyewitness be admitted unless the defense by
the location of the wallet can
testimony that he shot altering or removing physical evidence be entered into evidence.
and killed Wade. has precluded the prosecution from
Additionally other making the same observation. To extend the attorney client
people are alleged to privilege to a case in which the
have been conspiring to defense removed evidence
kill Wade and rob him. might encourage defense
counsel to race the police to
following the robbery
seize critical evidence.
and killing of wade
they took his wallet
divided the money and
burned it in a trash can.
The while it was
properly turned into
evidence however the
conversations between
Meredith and his
Coconspirators was not
properly put into
evidence. the question
before the court is the
conversation and
observation of the
location of the wallet is
privileged
communication under
client attorney
privileges.

Concept:
Candor
ABA Model Rule:
Rule 1.6: Confidentiality of Information
(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed
consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted
by paragraph (b).
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably
believes necessary:
 PROFESSIONAL RESPONSIBILITY AND ETHICS
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(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial
injury to the financial interests or property of another and in furtherance of which the client has used or is
using the lawyer's services;
(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is
reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of
which the client has used the lawyer's services;
(4) to secure legal advice about the lawyer's compliance with these Rules;
(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client,
to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the
client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of
the client;
(6) to comply with other law or a court order; or
(7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from
changes in the composition or ownership of a firm, but only if the revealed information would not compromise
the attorney-client privilege or otherwise prejudice the client.
(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized
access to, information relating to the representation of a client.

Rule 3.3: Candor Toward the Tribunal

(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law
previously made to the tribunal by the lawyer;
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be
directly adverse to the position of the client and not disclosed by opposing counsel; or
(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the
lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take
reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer
evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is
false.
(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is
engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial
measures, including, if necessary, disclosure to the tribunal.
(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if
compliance requires disclosure of information otherwise protected by Rule 1.6.
(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will
enable the tribunal to make an informed decision, whether or not the facts are adverse.

Note:
This rule forbids a lawyer from knowingly offering evidence that the lawyer knows is false. Rule 1.0 defines
“knows” to mean having actual knowledge of the fact in question, but it goes on to say that a person’s knowledge
may be inferred from the circumstances.

Rule 4.1: Truthfulness in Statements to Others

In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; or
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(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal
or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

Rule 8.1: Bar Admission & Disciplinary Matters

An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection
with a disciplinary matter, shall not:
(a) knowingly make a false statement of material fact; or
(b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the
matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary
authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6.

Rule 8.4: Misconduct

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(e) state or imply an ability to influence improperly a government agency or official or to achieve results by means
that violate the Rules of Professional Conduct or other law;

Notes:
Candor in Negotiations:
While it is clear a negotiator may not intentionally misrepresent material facts, it is not always apparent which facts
are material. It is within the law for negotiators to misrepresent the value their client places on an item. No violation
occurs in such a case, provided the statement conveys the negotiator's and/or his client's belief and does not falsely
claim to be the opinion of an outside expert. A negotiator may also misrepresent a client's settlement intentions. A
negotiator may claim that outstanding offer is unacceptable, even an while knowing the proposed terms would be
acceptable if no additional concessions were forthcoming.
Negotiators may not, however, deliberately misrepresent material facts. Although they may use evasive tactics to
avoid answering, if they do respond they must do so honestly. Moreover, they must avoid giving partially correct
statements they know will be misinterpreted.

Case Name Material Facts Rules Relevant Notes

In Re Brain petitioner was admitted The rules governing admission to the

(Page 244) for practice in the state practice of law in the state of North
of New York and in the Carolina require comity applicants to
District of Columbia. In prove to the satisfaction of the board
1996 the petitioner that the applicant is duly licensed to
applied for admission practice law in another state, or
to the North Carolina territory of the United states, or the
bar by comity. Carolina District of Columbia having comity
denied her application. with North Carolina, and that while so
the years following her licensed there and, the applicant has
application to North been for at least four out of the six
Carolina State bar the years immediately preceding the filing
petitioner owned a cafe of this application been actively and
 PROFESSIONAL RESPONSIBILITY AND ETHICS
and did legal work for
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substantially engaged in the practice of
the cafe but was not law in that jurisdiction.
paid for the legal work
because she owned the
cafe. The applicant was
not paid in kind or did
not charge for her
various legal fees. She
did not maintain a legal
office. She did not
advise about legal
services. She did not
pertain professional
malpractice insurance
she did not keep
records of her billable
hours. She did not
attend formal
continuing education.

Iowa Supreme Jones was charged with A lawyer shall not counsel or assist Jones new the venture was
Court Board of several violations of the client in conduct that lawyer knows to risky. He should have
Professional Iowa code of be illegal or fraudulent. conveyed this information to
Ethics and Delbert, and obviously
professional
Conduct v. unsophisticated elderly
Jones responsibility. The gentleman. He should have
(Page 247) alleged violation Lawyer shall not engage in conduct explained that the American
stemmed from Jones involving misrepresentation banks had refused money for
conduct in persuading a the insurance premium
former client to loan because of the instability of the
$5000 to Jones current Nigerian government and
lawyer shall not engage in conduct fraudulent transactions coming
client. The grievance
reflecting adversely on fitness to out of the country. He should
Commission have told Delbert about the
practice law.
recommended a other individuals who were not
reprimand. On our interested in making the loan.
review, we find the And Joan should have told
violation serious Delbert about the promise of a
enough to warrant $2 million annuity if Jones
were successful in securing a
suspension. The
loan payment
Commission found
Jones actions and
 PROFESSIONAL RESPONSIBILITY AND ETHICS
omissions in obtaining
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the $5000 loan
constituted a
misrepresentation.

Nix v. An ineffective assistance claim requires While a client may falsely

Whiteside (a) serious injury by the lawyer, and (b) testify which is his
(Page 257) prejudice to the defendant. constitutional right. If he does
falsely testify he must bear to
the consequences. Part of the
consequences may be
A defense attorney must be loyal to the withdrawal of counsel or
client, but only within the bounds of revelation of the perjury by
lawful conduct. The constitution does counsel.
not guarantee the right to have
counsel's help in presenting perjury.

Concept:
Fairness in Litigation
ABA Model Rule:
Rule 3.1: Meritorious Claims & Contentions
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in
law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification
or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding
that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the
case be established.

Rule 3.2: Expediting Litigation

A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.

Rule 3.3: Candor Toward the Tribunal

(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material
fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to
be directly adverse to the position of the client and not disclosed by opposing counsel; or
(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness
called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer
shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer
may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the
lawyer reasonably believes is false.
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(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to
engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take
reasonable remedial measures, including, if necessary, disclosure to the tribunal.
(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if
compliance requires disclosure of information otherwise protected by Rule 1.6.
(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that
will enable the tribunal to make an informed decision, whether or not the facts are adverse.

Rule 3.4: Fairness to Opposing Party & Counsel

A lawyer shall not:
(a) unlawfully obstruct another party' s access to evidence or unlawfully alter, destroy or conceal a document
or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do
any such act;
(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is
prohibited by law;
(c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an
assertion that no valid obligation exists;
(d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to
comply with a legally proper discovery request by an opposing party;
(e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be
supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a
witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a
civil litigant or the guilt or innocence of an accused; or
(f) request a person other than a client to refrain from voluntarily giving relevant information to another party
unless:
(1) the person is a relative or an employee or other agent of a client; and
(2) the lawyer reasonably believes that the person's interests will not be adversely affected by
refraining from giving such information.

Rule 3.5: Impartiality & Decorum of the Tribunal

A lawyer shall not:
(a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law;
(b) communicate ex parte with such a person during the proceeding unless authorized to do so by law or court
order;
(c) communicate with a juror or prospective juror after discharge of the jury if:
(1) the communication is prohibited by law or court order;
(2) the juror has made known to the lawyer a desire not to communicate; or
(3) the communication involves misrepresentation, coercion, duress or harassment; or
(d) engage in conduct intended to disrupt a tribunal.

Rule 3.6: Trial Publicity

(a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an
extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public
communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the
matter.
(b) Notwithstanding paragraph (a), a lawyer may state:
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(1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons
involved;
(2) information contained in a public record;
(3) that an investigation of a matter is in progress;
(4) the scheduling or result of any step in litigation;
(5) a request for assistance in obtaining evidence and information necessary thereto;
(6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that
there exists the likelihood of substantial harm to an individual or to the public interest; and
(7) in a criminal case, in addition to subparagraphs (1) through (6):
(i) the identity, residence, occupation and family status of the accused;
(ii) if the accused has not been apprehended, information necessary to aid in apprehension of that
person;
(iii) the fact, time and place of arrest; and
(iv) the identity of investigating and arresting officers or agencies and the length of the investigation.
(c) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required
to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the
lawyer's client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to
mitigate the recent adverse publicity.
(d) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a
statement prohibited by paragraph (a).

Rule 3.7: Lawyer as Witness

(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship on the client.
(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a
witness unless precluded from doing so by Rule 1.7 or Rule 1.9.

Rule 3.8: Special Responsibilities of a Prosecutor

The prosecutor in a criminal case shall:
(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;
(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for
obtaining, counsel and has been given reasonable opportunity to obtain counsel;
(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to
a preliminary hearing;
(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to
negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the
defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the
prosecutor is relieved of this responsibility by a protective order of the tribunal;
(e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or
present client unless the prosecutor reasonably believes:
(1) the information sought is not protected from disclosure by any applicable privilege;
(2) the evidence sought is essential to the successful completion of an ongoing investigation or
prosecution; and
(3) there is no other feasible alternative to obtain the information;
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(f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor's
action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that
have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care
to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with t
he prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be
prohibited from making under Rule 3.6 or this Rule.
▪ Note: Imposes an additional responsibility on criminal prosecutors to refrain from making
extrajudicial comments that have a substantial likelihood of heightening public condemnation of
the accused
(g) When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a
convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall:
(1) promptly disclose that evidence to an appropriate court or authority, and
(2) if the conviction was obtained in the prosecutor’s jurisdiction,
(i) promptly disclose that evidence to the defendant unless a court authorizes delay, and
(ii) undertake further investigation, or make reasonable efforts to cause an investigation, to
determine whether the defendant was convicted of an offense that the defendant did not
commit.
(h) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the
prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek
to remedy the conviction.

Rule 3.9: Advocate in Nonadjudicative Proceedings

A lawyer representing a client before a legislative body or administrative agency in a nonadjudicative proceeding
shall disclose that the appearance is in a representative capacity and shall conform to the provisions of Rules 3.3(a)
through (c), 3.4(a) through (c), and 3.5.

Rule 4.2: Communication with Person Represented by Counsel

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the
lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer
or is authorized to do so by law or a court order.

Rule 4.3: Dealing with Unrepresented Person

In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that
the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person
misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the
misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure
counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable
possibility of being in conflict with the interests of the client.

Rule 4.4: Respect for Rights of Third Persons

(a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass,
delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.
(b) A lawyer who receives a document or electronically stored information relating to the representation of the
lawyer's client and knows or reasonably should know that the document or electronically stored information was
inadvertently sent shall promptly notify the sender.
 PROFESSIONAL RESPONSIBILITY AND ETHICS
Rule 8.3: Reporting Professional Misconduct
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(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that
raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall
inform the appropriate professional authority.
(b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a
substantial question as to the judge's fitness for office shall inform the appropriate authority.
(c) This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a
lawyer or judge while participating in an approved lawyers assistance program.

Witness Coaching
▪ A lawyer may discuss the case with the witnesses before they testify.
▪ A lawyer has a legal and ethical duty to investigate the facts of the case, which usually requires a lawyer to
interview witnesses
▪ The Lawyers duty is to extract the facts from the witness, not to pour them into him; to learn what the witness
does know, not to teach him what he ought to know
▪ A lawyer can be disciplined by the bar for counseling or assisting a witness to testify falsely or for knowingly
offering testimony that a lawyer knows is false

A lawyer typically does these things:

▪ Insert list!! Page 269

Methods for conducting a non-suggestive witness interview to minimize the dangers of improper witness suggestion,
which includes (1) using recall first, and then recognition; (2) using neutral questions; and (3) ordering questions
based on the pattern the witness is likely to have used when originally storing the information

Public Comments about Pending Litigation

▪ Although the idea of public and media access to rails is firmly rooted in American jurisprudence—indeed, the
right to a public trial is part of the 6th amendment protection for the criminally accused—excessive publicity
may also interfere with the equally important right to a fair trial
▪ The 1st amendment has required a showing of “actual prejudice or a substantial and imminent threat to fair
trial in order to restrict press coverage during a criminal trial, but has allowed trial courts to refrain lawyer’
speech before during trial on a significantly lower showing

Prosecutor Special Duties

▪ A prosecutor has the responsibility of a minister of justice and no simply that of an advocate
o Must protect the rights of the innocent and the guilty
▪ Special ethical responsibilities of the prosecutor include
o Restraint in prosecuting charges without probably cause
o Protecting the accused’s right to counsel and other important pretrial rights
o Disclosing evidence that negates guilt or mitigates the offenses or sentence
o Exercising restraint in litigation tactics and out of court statements

Due Process Standard

▪ INSERT respects! Page 282
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Impairment
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▪ Lawyer
o When a lawyer or her client is impaired, whether temporarily or permanently, and whether due to
injury, physical illness, mental illness, or death, such impairment implicates fairness concerns
o Rule 1.16 requires a lawyer to decline a presentation, or to withdraw if representation has already
been undertake, if the lawyer’s physical or mental condition materially impairs the lawyer’s ability to
represent the client
o Comment 5 to Rule 1.3
▪ To prevent neglect of client matters in the event of a sole practitioner's death or disability, the
duty of diligence may require that each sole practitioner prepare a plan, in conformity with
applicable rules, that designates another competent lawyer to review client files, notify each
client of the lawyer's death or disability, and determine whether there is a need for immediate
protective action. Cf. Rule 28 of the American Bar Association Model Rules for Lawyer
Disciplinary Enforcement (providing for court appointment of a lawyer to inventory files and
take other protective action in absence of a plan providing for another lawyer to protect the
interests of the clients of a deceased or disabled lawyer).
▪ Client
o When a client’s capacity to make adequately considered decision in connection with a representation
is diminished, whether because of minority, mental impairment, or for some other reason, the lawyer
shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client
o Comment 6 of Rule 1.14
▪ In determining the extent of the client's diminished capacity, the lawyer should consider and
balance such factors as: the client's ability to articulate reasoning leading to a decision,
variability of state of mind and ability to appreciate consequences of a decision; the
substantive fairness of a decision; and the consistency of a decision with the known long-term
commitments and values of the client. In appropriate circumstances, the lawyer may seek
guidance from an appropriate diagnostician.
o Senior Clients
▪ Potential concerns
● Stereotyping, client autonomy and paternalism, and diminished capacity
Colorado Bar If an attorney disclosed to the jury evidence that had been suppressed, there is a risk that where a
Association post-trial inquiry is made, and the jurors subsequently are required to testify pursuant to Rule
Opinion 70 606(b), the jurors’ recollections will be tainted by the subsequently received, inadmissible
(Page 272) information

Rule: After a verdict has been returned, it is improper for an attorney who has participated in the
trail to tell the jury about information that was not presented at trial, if such information is
disclosed to the jury with the intention of or in the spirit of criticizing the jury’s decision,
influencing the actions of jurors in future jury service, harassing the jury, or otherwise behaving
improperly toward jurors in any manner prohibited by the CoPR. This rule applies whether the
information not presented was suppressed or inadmissible pursuant to a ruling by the judge in the
case
Concept:
Bias In (and Out of) the Courtroom
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ABA Model Rule:
👎
Rule 1.8: Current Clients: Specific Rules
(j) A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between
them when the client-lawyer relationship commenced.

Rule 3.4: Fairness to Opposing Party & Counsel

A lawyer shall not:
(a) unlawfully obstruct another party' s access to evidence or unlawfully alter, destroy or conceal a document or other
material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act;
(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited
by law;
(c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that
no valid obligation exists;
(d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with
a legally proper discovery request by an opposing party;
(e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported
by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a
personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt
or innocence of an accused; or
(f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless:
(1) the person is a relative or an employee or other agent of a client; and
(2) the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from
giving such information.

Rule 3.5: Impartiality & Decorum of the Tribunal

A lawyer shall not:
(a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law;
(b) communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order;
(c) communicate with a juror or prospective juror after discharge of the jury if:
(1) the communication is prohibited by law or court order;
(2) the juror has made known to the lawyer a desire not to communicate; or
(3) the communication involves misrepresentation, coercion, duress or harassment; or
(d) engage in conduct intended to disrupt a tribunal.

Rule 4.4: Respect for Rights of Third Persons

(a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass,
delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.
(b) A lawyer who receives a document or electronically stored information relating to the representation of the
lawyer's client and knows or reasonably should know that the document or electronically stored information was
inadvertently sent shall promptly notify the sender.

Rule 8.4: Misconduct

It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do
so through the acts of another;
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(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in
other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
(e) state or imply an ability to influence improperly a government agency or official or to achieve results by means
that violate the Rules of Professional Conduct or other law;
(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or
other law; or
(g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis
of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or
socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to
accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude
legitimate advice or advocacy consistent with these Rules.

Notes:
Statistics, law is one of the least racially diverse occupations in the country. Minorities constitute "ewer than 7
percent of law firm partners and 9 percent of general counsels of large corporations. In major law firms, only 3
percent of associates and less than 2 percent of partners are African Americans.

“bias” definition: a mental leaning or inclination; partiality; bent to cause

to have a bias; influence; prejudice.

The potential for pies extends to layperson witnesses, whose identification of perpetrators or characterization of
events may be tainted by bias. 'The potential for bias extends to attorneys, who may favor one client over another,
adopt assumptions, or assert peremptory challenges due to biased stereotypes or expectations. The potential for bias
extends to jurors, who may approach legal proceedings with biases or prejudices that impact their perceptions and
their decision-making in evaluating the participants in those proceedings. And the potential for bias extends to
judges, who may be biased in favor of (or against) particular claims, particular litigants, or particular lawyers.

Explicit attitudes are those that operate consciously, whereas implicit attitudes operate unconsciously.

In the Matter The respondent was publicly censured for his race-based abuse of opposing counsel. Based on the
of Monaghan evidence adduced, the Special Referee found the respondent's "crude and offensive conduct and
(Page 295) language to be substantially more likely to have been gender-related rather than race-related.

Rule: Code of Professional Responsibility DRs 1-102(a)(6) (engaging in conduct prejudicial to the
administration of justice) and 1-102(a) (6) (unlawfully discriminating in the practice of law on the
basis of age, race, creed, color, national origin, sex disability, marital status, or sexual orientation).
In Matter of Respondent shall continue psychological counseling for two (2) years; his counselor shall file
Hammer quarterly reports addressing his progress with the Commission on Lawyer Conduct
(Page 297) (Commission); and, an Investigative Panel of the Commission may extend the counseling
requirement at the conclusion of the two (2) year period if it deems it necessary.

Respondent admits he asked a number of improper questions of Witness A. In particular, he asked

Witness A about his sexual orientation and whether he had been tested for HIV. He also asked
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Witness A whether he had Alzheimer’s Disease when the witness’ recollection was incomplete.
Respondent admits the question should not have been asked in this fashion.
In Re The Judicial Council unanimously adopts the Special Committee's conclusions that Judge
Complaint Murguia committed judicial misconduct by sexually harassing Judiciary employees
Under the
Judicial Rule: This type of behavior violates several provisions of the Code of Conduct for United States
Conduct and Judges. See Code of Conduct for U.S. Judges, Canon BB4) (providing that "al judge should not
Disability Act engage in any form of harassment of court personnel'); Canon 3 cmt. to 3A(3) (advising that "It]he
(Page 299) duty to be respectful includes the responsibility to avoid comment or behavior that could
reasonably be interpreted as harassment"); Canon 3 cmt. to 3B(4) (advising that harassment
encompasses a range of conduct having no legitimate role in the workplace"). Further, the Rules
include "abusive or harassing behavior" in the definition of misconduct, which, in turn. Includes
"engaging in unwanted, offensive, or abusive sexual conduct, including sexual harassment."

The most severe sanction, available to the Council in this matter is a public reprimand. Although
we appreciate the public reprimand may cause embarrassment to the judiciary, misconduct that
rises to this level calls for transparency and a powerful disincentive

Miller-El v. Batson v. Kentucky, the Court adopted a burden-shifting rule designed to ferret out the
Dretke unconstitutional use of race in jury selection. The only way to end the racial discrimination that
(Page 306) peremptories inject into the jury-selection process, he concluded, was to eliminate peremptory
challenges entirely.

Batson seeks to square this circle by (1) requiring defendants to establish a prima
facie case of discrimination. (2) asking prosecutors then to offer a race-neutral explanation for their
use of the peremptory, and then (3) requiring defendants to prove that the neutral reason offered is
pretextual.

If race stereotypes are the price, for acceptance of a jury panel as fair. the price is too high to meet
the Standard of the Constitution

City of Seattle The purpose of Batson is to ensure that jury selection proceedings are free from racial
v. Erickson discrimination.
(Page 309)
Batson is concerned with whether a juror was struck because of his or her race, not. the level of
diversity remaining on the jury.

Batson appears to have created a crippling burden, making it very difficult for defendants to prove
discrimination even where it almost certainly exists. We hold that the peremptory strike of a juror
who is the only member of a cognizable racial group on a jury panel constitutes a prima facie
showing of racial motivation.
Concept:
Conflicts of Interest—Lawyers, Clients, and Third Parties
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ABA Model Rule:
👎
Rule 1.2: Scope of Representation & Allocation of Authority Between Client & Lawyer
(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of
representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be
pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the
representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer
shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive
jury trial and whether the client will testify.
(b) A lawyer's representation of a client, including representation by appointment, does not constitute an
endorsement of the client's political, economic, social or moral views or activities.
(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the
client gives informed consent.
(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or
fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may
counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the
law.

Rule 1.7: Conflict of Interest: Current Clients

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a
concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the
lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the
lawyer.
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a
client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent
representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client represented
by the lawyer in the same litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.

Rule 1.8: Current Clients: Specific Rules

(a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory,
security or other pecuniary interest adverse to a client unless:
(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client
and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;
(2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek
the advice of independent legal counsel on the transaction; and
(3) the client gives informed consent, in a writing signed by the client, to the essential terms of the
transaction and the lawyer's role in the transaction, including whether the lawyer is representing the client in the
transaction.
(b) A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless
the client gives informed consent, except as permitted or required by these Rules.
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(c) A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of
a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or
other recipient of the gift is related to the client. For purposes of this paragraph, related persons include a spouse,
child, grandchild, parent, grandparent or other relative or individual with whom the lawyer or the client maintains a
close, familial relationship.
(d) Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the
lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the
representation.
(e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation,
except that:
(1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent
on the outcome of the matter;
(2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the
client; and
(3) a lawyer representing an indigent client pro bono, a lawyer representing an indigent client pro bono
through a nonprofit legal services or public interest organization and a lawyer representing an indigent client pro
bono through a law school clinical or pro bono program may provide modest gifts to the client for food, rent,
transportation, medicine and other basic living expenses. The lawyer:
(i) may not promise, assure or imply the availability of such gifts prior to retention or as an
inducement to continue the client-lawyer relationship after retention;
(ii) may not seek or accept reimbursement from the client, a relative of the client or anyone affiliated
with the client; and
(iii) may not publicize or advertise a willingness to provide such gifts to prospective clients.
Financial assistance under this Rule may be provided even if the representation is eligible for fees
under a fee-shifting statute.
(f) A lawyer shall not accept compensation for representing a client from one other than the client unless:
(1) the client gives informed consent;
(2) there is no interference with the lawyer's independence of professional judgment or with the client-lawyer
relationship; and
(3) information relating to representation of a client is protected as required by Rule 1.6.
(g) A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the
claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas,
unless each client gives informed consent, in a writing signed by the client. The lawyer's disclosure shall include the
existence and nature of all the claims or pleas involved and of the participation of each person in the settlement.
(h) A lawyer shall not:
(1) make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless the
client is independently represented in making the agreement; or
(2) settle a claim or potential claim for such liability with an unrepresented client or former client unless that
person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the
advice of independent legal counsel in connection therewith.
(i) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is
conducting for a client, except that the lawyer may:
(1) acquire a lien authorized by law to secure the lawyer's fee or expenses; and
(2) contract with a client for a reasonable contingent fee in a civil case.
(j) A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between
them when the client-lawyer relationship commenced.
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(k) While lawyers are associated in a firm, a prohibition in the foregoing paragraphs (a) through (i) that applies to
any one of them shall apply to all of them.

Rule 1.10: Imputation of Conflicts of Interest: General Rule

(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them
practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless
(1) the prohibition is based on a personal interest of the disqualified lawyer and does not present a significant
risk of materially limiting the representation of the client by the remaining lawyers in the firm; or
(2) the prohibition is based upon Rule 1.9(a) or (b) and arises out of the disqualified lawyer’s association with
a prior firm, and
(i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned
no part of the fee therefrom;
(ii) written notice is promptly given to any affected former client to enable the former client to
ascertain compliance with the provisions of this Rule, which shall include a description of the
screening procedures employed; a statement of the firm's and of the screened lawyer's compliance
with these Rules; a statement that review may be available before a tribunal; and an agreement by the
firm to respond promptly to any written inquiries or objections by the former client about the
screening procedures; and
(iii) certifications of compliance with these Rules and with the screening procedures are provided to
the former client by the screened lawyer and by a partner of the firm, at reasonable intervals upon the
former client's written request and upon termination of the screening procedures.
(b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a
person with interests materially adverse to those of a client represented by the formerly associated lawyer and not
currently represented by the firm, unless:
(1) the matter is the same or substantially related to that in which the formerly associated lawyer represented
the client; and
(2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the
matter.
(c) A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in Rule
1.7.
(d) The disqualification of lawyers associated in a firm with former or current government lawyers is governed by
Rule 1.11.

Rule 1.13: Organization as Client

(a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized
constituents.
(b) If a lawyer for an organization knows that an officer, employee or other person associated with the organization is
engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal
obligation to the organization, or a violation of law that reasonably might be imputed to the organization, and that is
likely to result in substantial injury to the organization, then the lawyer shall proceed as is reasonably necessary in
the best interest of the organization. Unless the lawyer reasonably believes that it is not necessary in the best interest
of the organization to do so, the lawyer shall refer the matter to higher authority in the organization, including, if
warranted by the circumstances to the highest authority that can act on behalf of the organization as determined by
applicable law.
(c) Except as provided in paragraph (d), if
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(1) despite the lawyer's efforts in accordance with paragraph (b) the highest authority that can act on behalf of
the organization insists upon or fails to address in a timely and appropriate manner an action, or a refusal to
act, that is clearly a violation of law, and
(2) the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the
organization, then the lawyer may reveal information relating to the representation whether or not Rule 1.6
permits such disclosure, but only if and to the extent the lawyer reasonably believes necessary to prevent
substantial injury to the organization.
(d) Paragraph (c) shall not apply with respect to information relating to a lawyer's representation of an organization
to investigate an alleged violation of law, or to defend the organization or an officer, employee or other constituent
associated with the organization against a claim arising out of an alleged violation of law.
(e) A lawyer who reasonably believes that he or she has been discharged because of the lawyer's actions taken
pursuant to paragraphs (b) or (c), or who withdraws under circumstances that require or permit the lawyer to take
action under either of those paragraphs, shall proceed as the lawyer reasonably believes necessary to assure that the
organization's highest authority is informed of the lawyer's discharge or withdrawal.
(f) In dealing with an organization's directors, officers, employees, members, shareholders or other constituents, a
lawyer shall explain the identity of the client when the lawyer knows or reasonably should know that the
organization's interests are adverse to those of the constituents with whom the lawyer is dealing.
(g) A lawyer representing an organization may also represent any of its directors, officers, employees, members,
shareholders or other constituents, subject to the provisions of Rule 1.7. If the organization's consent to the dual
representation is required by Rule 1.7, the consent shall be given by an appropriate official of the organization other
than the individual who is to be represented, or by the shareholders.

Rule 1.14: Client with Diminished Capacity

(a) When a client's capacity to make adequately considered decisions in connection with a representation is
diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as
reasonably possible, maintain a normal client-lawyer relationship with the client.
(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical,
financial or other harm unless action is taken and cannot adequately act in the client's own interest, the lawyer may
take reasonably necessary protective action, including consulting with individuals or entities that have the ability to
take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator
or guardian.
(c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When
taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal
information about the client, but only to the extent reasonably necessary to protect the client's interests.

Rule 1.18: Duties to Prospective Client

(a) A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to
a matter is a prospective client.
(b) Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client
shall not use or reveal that information, except as Rule 1.9 would permit with respect to information of a former
client.
(c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a
prospective client in the same or a substantially related matter if the lawyer received information from the
prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d).
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If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is
associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d).
(d) When the lawyer has received disqualifying information as defined in paragraph (c), representation is
permissible if:
(1) both the affected client and the prospective client have given informed consent, confirmed in writing, or:
(2) the lawyer who received the information took reasonable measures to avoid exposure to more
disqualifying information than was reasonably necessary to determine whether to represent the prospective
client; and
(i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned
no part of the fee therefrom; and
(ii) written notice is promptly given to the prospective client.

Rule 2.1: Advisor

In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In
rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and
political factors, that may be relevant to the client's situation.

Rule 3.7: Lawyer as Witness

(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship on the client.
(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a
witness unless precluded from doing so by Rule 1.7 or Rule 1.9.

Rule 5.4: Professional Independence of a Lawyer

(c) A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for
another to direct or regulate the lawyer's professional judgment in rendering such legal services.

Case Name Material Facts Rules Relevant Notes

Beckwith 13 months after the suit If an insurer assumes the insurance In conclusion, we find that: 1)
Machinery Co. was filed travelers defense without sending the insured a the Trumbull complaint stated
v. Travelers suddenly notified reservation of rights letter or bringing a claims that were potentially
Indem. Co. covered by the insurance
Beckwith that it was declaratory relief action, the insurer
(Page 322) policy issued by Travelers
denying coverage of all will later be precluded from denying to Beckwith; 2) Travelers
claims and was coverage. breached its duty to defend
withdrawing its Beckwith in the underlying
defense. Beckwith Trumbull case; 3) Travelers
Sought separate failed to reserve its rights to
counsel who took over contest indemnity regarding
the compensatory damage
the entire defense and
claims raised in the Trumbull
case; and 4) Travelers is
estopped from denying
 PROFESSIONAL RESPONSIBILITY AND ETHICS
ultimately was able to
BERGER, SPRING 2022 👎 coverage because Beckwith
settle the case. detrimentally relied on
Travelers’ policy for
indemnification.
Phillips v. Plaintiff Thelma DR 5-104(A) Limiting Business Summary judgment entered by
Carson Phillips sued attorney Relations with a Client: “a lawyer the trial court in favor of
(Page 328) David Carson and his shall not enter into a business Phillips and against Carson is
affirmed.
law firm for legal transaction with a client if they have
malpractice in differing interests therein and if the
connection with client expects the lawyer to exercise his
personal loans Carson professional judgment therein for the
obtained from Phillips. protection of the client, unless the
BIG YIKES client has consented after Full
disclosure.”

State v. White The issue is whether An actual conflict of interest includes The court concluded that
(Page 332) the court of criminal any circumstance in which an attorney councils dual rules as
appeals erred in cannot exercise his or her independent prosecutor and defense council
created an actual conflict of
concluding that defense professional judgment free of
interest that require
counsel's dual roles as compromising interests and loyalties. disqualification period
part time assistant
District Attorney and
defense counsel in this
case created a conflict
of interest requiring
removal of counsel.

Akron Bar in November 2018, Akron Bar Association, alleged that Fortado Based on the unique facts of
Association v. violated Professional Conduct rule 1.8(j) prohibiting a lawyer this case--including the
Fortado from soliciting or engaging in sexual activity with a client absence of any evidence of
(Page 339) coercion, Fortado’s acceptance
unless a consensual sexual relationship existed prior to the
of responsibility for his
client lawyer relationship, by Fortado commencing an intimate wrongdoing, his full
sexual relationship with a client during his legal representation. cooperation in these
proceedings, and his strong
character and reputation
evidence--and having carefully
considered the sanctions we
have imposed in other cases
involving similar misconduct,
we sustain Fortado’s objection
to the boards recommended
sanction. Moreover, we agreed
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year suspension is the
appropriate sanction for the
misconduct.
Concept:
Conflicts of Interest—Conflicts Between Two Clients
ABA Model Rule:

Rule 1.7: Conflict of Interest: Current Clients

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a
concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the
lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the
lawyer.
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a
client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent
representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client represented
by the lawyer in the same litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.

Rule 1.8: Current Clients: Specific Rules

(b) A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless
the client gives informed consent, except as permitted or required by these Rules.
(g) A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the
claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas,
unless each client gives informed consent, in a writing signed by the client. The lawyer's disclosure shall include the
existence and nature of all the claims or pleas involved and of the participation of each person in the settlement.
(i) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the
lawyer is conducting for a client, except that the lawyer may:
(1) acquire a lien authorized by law to secure the lawyer's fee or expenses; and
(2) contract with a client for a reasonable contingent fee in a civil case.

Rule 1.9: Duties to Former Clients

(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the
same or a substantially related matter in which that person's interests are materially adverse to the interests of the
former client unless the former client gives informed consent, confirmed in writing.
(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with
which the lawyer formerly was associated had previously represented a client
(1) whose interests are materially adverse to that person; and
(2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the
matter; unless the former client gives informed consent, confirmed in writing.
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(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly
represented a client in a matter shall not thereafter:
(1) use information relating to the representation to the disadvantage of the former client except as these
Rules would permit or require with respect to a client, or when the information has become generally known; or
(2) reveal information relating to the representation except as these Rules would permit or require with
respect to a client.

Rule 1.10: Imputation of Conflicts of Interest: General Rule

(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them
practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless
(1) the prohibition is based on a personal interest of the disqualified lawyer and does not present a significant
risk of materially limiting the representation of the client by the remaining lawyers in the firm; or
(2) the prohibition is based upon Rule 1.9(a) or (b) and arises out of the disqualified lawyer’s association with
a prior firm, and
(i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned
no part of the fee therefrom;
(ii) written notice is promptly given to any affected former client to enable the former client to
ascertain compliance with the provisions of this Rule, which shall include a description of the
screening procedures employed; a statement of the firm's and of the screened lawyer's compliance
with these Rules; a statement that review may be available before a tribunal; and an agreement by the
firm to respond promptly to any written inquiries or objections by the former client about the
screening procedures; and
(iii) certifications of compliance with these Rules and with the screening procedures are provided to
the former client by the screened lawyer and by a partner of the firm, at reasonable intervals upon the
former client's written request and upon termination of the screening procedures.
(b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a
person with interests materially adverse to those of a client represented by the formerly associated lawyer and not
currently represented by the firm, unless:
(1) the matter is the same or substantially related to that in which the formerly associated lawyer represented
the client; and
(2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the
matter.
(c) A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in Rule
1.7.
(d) The disqualification of lawyers associated in a firm with former or current government lawyers is governed by
Rule 1.11.

Rule 1.11: Special Conflicts of Interest for Former & Current Government Officers & Employees
(a) Except as law may otherwise expressly permit, a lawyer who has formerly served as a public officer or employee
of the government:
(1) is subject to Rule 1.9(c); and
(2) shall not otherwise represent a client in connection with a matter in which the lawyer participated
personally and substantially as a public officer or employee, unless the appropriate government agency gives its
informed consent, confirmed in writing, to the representation.
(b) When a lawyer is disqualified from representation under paragraph (a), no lawyer in a firm with which that
lawyer is associated may knowingly undertake or continue representation in such a matter unless:
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(1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part
of the fee therefrom; and
(2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance
with the provisions of this rule.
(c) Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential
government information about a person acquired when the lawyer was a public officer or employee, may not
represent a private client whose interests are adverse to that person in a matter in which the information could be
used to the material disadvantage of that person. As used in this Rule, the term "confidential government
information" means information that has been obtained under governmental authority and which, at the time this
Rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to
disclose and which is not otherwise available to the public. A firm with which that lawyer is associated may
undertake or continue representation in the matter only if the disqualified lawyer is timely screened from any
participation in the matter and is apportioned no part of the fee therefrom.
(d) Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or employee:
(1) is subject to Rules 1.7 and 1.9; and
(2) shall not:
(i) participate in a matter in which the lawyer participated personally and substantially while in private
practice or nongovernmental employment, unless the appropriate government agency gives its
informed consent, confirmed in writing; or
(ii) negotiate for private employment with any person who is involved as a party or as lawyer for a
party in a matter in which the lawyer is participating personally and substantially, except that a lawyer
serving as a law clerk to a judge, other adjudicative officer or arbitrator may negotiate for private
employment as permitted by Rule 1.12(b) and subject to the conditions stated in Rule 1.12(b).
(e) As used in this Rule, the term "matter" includes:
(1) any judicial or other proceeding, application, request for a ruling or other determination, contract, claim,
controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or
parties, and
(2) any other matter covered by the conflict of interest rules of the appropriate government agency.

Rule 1.12: Former Judge, Arbitrator, Mediator or Other Third-Party Neutral

(a) Except as stated in paragraph (d), a lawyer shall not represent anyone in connection with a matter in which the
lawyer participated personally and substantially as a judge or other adjudicative officer or law clerk to such a person
or as an arbitrator, mediator or other third-party neutral, unless all parties to the proceeding give informed consent,
confirmed in writing.
(b) A lawyer shall not negotiate for employment with any person who is involved as a party or as lawyer for a party
in a matter in which the lawyer is participating personally and substantially as a judge or other adjudicative officer or
as an arbitrator, mediator or other third-party neutral. A lawyer serving as a law clerk to a judge or other adjudicative
officer 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 lawyer has notified the judge or other adjudicative officer.
(c) If a lawyer is disqualified by paragraph (a), no lawyer in a firm with which that lawyer is associated may
knowingly undertake or continue representation in the matter unless:
(1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part
of the fee therefrom; and
(2) written notice is promptly given to the parties and any appropriate tribunal to enable them to ascertain
compliance with the provisions of this Rule.
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(d) An arbitrator selected as a partisan of a party in a multimember arbitration panel is not prohibited from
subsequently representing that party.

Rule 1.18: Duties to Prospective Client

(a) A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to
a matter is a prospective client.
(b) Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client
shall not use or reveal that information, except as Rule 1.9 would permit with respect to information of a former
client.
(c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a
prospective client in the same or a substantially related matter if the lawyer received information from the
prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d).
If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is
associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d).
(d) When the lawyer has received disqualifying information as defined in paragraph (c), representation is
permissible if:
(1) both the affected client and the prospective client have given informed consent, confirmed in writing, or:
(2) the lawyer who received the information took reasonable measures to avoid exposure to more
disqualifying information than was reasonably necessary to determine whether to represent the prospective
client; and
(i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned
no part of the fee therefrom; and
(ii) written notice is promptly given to the prospective client.

Rule 6.3: Membership in Legal Services Organization

A lawyer may serve as a director, officer or member of a legal services organization, apart from the law firm in
which the lawyer practices, notwithstanding that the organization serves persons having interests adverse to a client
of the lawyer. The lawyer shall not knowingly participate in a decision or action of the organization:
(a) if participating in the decision or action would be incompatible with the lawyer's obligations to a client under
Rule 1.7; or
(b) where the decision or action could have a material adverse effect on the representation of a client of the
organization whose interests are adverse to a client of the lawyer.

Notes:
The allocation of decision making authority between client and attorney is a difficult problem period it involves
practical, ethical, and philosophical considerations.

When no substantial right is implicated, and attorney must be free to act independently. It is essential to the efficient
conduct of the client’s case and the accomplishment of the client’s ultimate goal that an attorney have the authority to
make independent decisions in the day today management of a civil litigation. This authority allows the lawyer
professional to apply his technical expertise.

When the Client is an Organization:

▪ Model Rule 1.13 states that when a lawyer is employed or retained by an organization, the lawyer “represents
the organization acting through its duly authorized constituents.” Comment 1 explains that “an organizational
client is a legal entity, but it cannot act except through its officers, directors, employees, shareholders, and
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other constituents. Officers, directors, employees, and shareholders are the constituents of the corporate
organizational client.”
▪ Rule 1.13(b) explains the process that a lawyer should follow when faced with a constituent who is “engaged
in action, intends to act, or refuses to act in a matter related to the representation that is a violation of a legal
obligation to the organization, or a violation of law that reasonably might be imputed to the organization, and
that is likely to result in substantial injury to the organization.”
o Under such circumstances, the lawyer is instructed to proceed in the organization's best interests,
including referring the matter to higher authority in the organization.

Notes:
(1) All lawyers in a law firm are usually treated as a single unit
(2) If one client interests potentially conflict with the interest of another client, a lawyer must decide whether her
loyalty to one client might adversely affect her representation of the other. Unless the lawyer reasonably concludes
that there will be no adverse effect, she must decline the employment
(3) If the lawyer reasonably concludes that there will be no adverse effect on her representation of either client, she
must consult with each client and obtain the written consent of each.

Legal ethics rules and case law begin with the assumption that lawyers working together in a single firm share each
other’s, and their clients’, secrets and confidences.

The proposed favored solution from the bar is to protect the new firm by screening off the tainted lawyer. Such
devices are commonly referred to today as “ethical walls.”

Model Rule 1.10 was amended to authorize screening when an attorney moves from one private firm to another,
subject to specified conditions, including that the screened lawyer receives no part of the fee generated from the
representation, and the provision of written notice regarding the screening to the former client.

Court should consider, on a case-by-case basis, whether the ethical screening imposed by the firm is effective to
prevent the transmission of confidential information from the tainted attorney. Moreover, the court should consider
all of the policy interests implicated by the disqualification motion, in determining how to exercise its discretion.

Joint Representation:
The ABA Model Rules do not prohibit lawyers from representing two or more clients in a particular matter, subject
to the Rules' provisions regarding conflicts of interest.

Three basic policy considerations underlie the conflict of interest rules dealing with joint representation: (1) the
interests of clients in certain objectives that are available through joint representation; (2) the need to protect clients
from the dangers of joint representation; and (3) the desire to preserve lawyers’ reputations by avoiding apparent
impropriety.

Joint representation reduces the protection available under the attorney-client privilege. Joint representation also
compromises confidentiality due to the lawyer's duty to inform all co-clients of all information relevant to the
representation.

The attorney is not permitted to prioritize clients by, for example, treating the corporate employer as the
“primary” or “secondary” “real” client and the employee as an expendable client.
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The current rules require the attorney to ascertain whether the conflict between two clients is consentable, and if so,
to obtain informed written consent from both clients.

Conflicts of Interest and Pro Bono Projects

If the attorney is providing pro bono services “under the auspices of a program sponsored by a nonprofit organization
or court,” the lawyer will fall within the more generous provisions of Model Rule 6.5, which limits a lawyer's
exposure to conflicts of interest only to representations where the lawyer knows that the representation involves a
conflict of interest. The rule similarly limits imputed conflicts to those situations where "the lawyer knows that
another lawyer associated with the lawyer in a law firm is disqualified.

State Farm Wilkerson was driving A lawyer shall not reveal information relating to representation of a
Mutual with his family and was client unless the client consents after disclosure to the client.
Automobile in a car accident. The The duty of confidentiality continues after termination of the
Insurance Co. attorney-client relationship.
family sued the other
v. K.A.W.
(Page 349) driver. Then over the A lawyer who has formerly represented a client in a matter shall not
court of the litigation thereafter:
the wife and husband (a) Represent another person in the same or a substantially
got a divorce. Is it related matter in which that person's interests are materially
proper for the attorney adverse to the interests of the former client unless the former
to represent both client consents after consultation; or
(b) Use information relating to the representation to the
husband and wife in the
disadvantage of the former client except as rule 4-1.6 would
litigation? permit with respect to a client or when the information has
become generally known.

We disagree with the court below that actual proof of prejudice is a

prerequisite to disqualification under these circumstances. The
Schlesinger firm represented Mr. Wilkerson in the personal injury action
for more than two years, and the existence of this relationship raised the
irrefutable presumption that confidences were disclosed.
Kirk v. First When an attorney We therefore consider three factors which lead us to conclude ethical
American Title obtains confidential walls should be recognized in California: (1) changing realities in the
Insurance Co. information from a practice of law which undermine the rationale for an automatic rule of
(Page 355)
client, that attorney is vicarious disqualification; (2) California's favorable experience with
prohibited from ethical walls in other circumstances; and (3) an understanding of policy
accepting a considerations which supports the recognition of ethical walls in the
representation adverse proper cases.
to the client in a matter
to which the The burden then shifts to the challenged law firm to establish "that the
confidential practical effect of formal screening has been achieved. The showing
must satisfy the trial court that the [tainted attorney] has not had and will
not have any involvement with the litigation, or any communication with
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information would be
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attorneys or employees concerning the litigation, that would support a
material. reasonable inference that the information has been used or disclosed.

Two elements are necessary: First, the screen must be timely imposed; a
firm must impose screening measures when the conflict first arises. It is
not sufficient to wait until the trial court imposes screening measures as
part of its order on the disqualification motion. Second, it is not sufficient
to simply produce declarations stating that confidential information was
not conveyed or that the disqualified attorney did not work on the case;
an effective wall involves the imposition of preventive measures to
guarantee that information will not be conveyed.

The typical elements of an ethical wall are: (1) physical, geographic,

and departmental separation of attorneys; (2) prohibitions against and
sanctions for discussing confidential matters; (3) established rules and
procedures preventing access to confidential information and files; (4)
procedures preventing a disqualified attorney from sharing in the profits
from the representation; and (5) continuing education in professional
responsibility.

Holding: we have concluded that, when a tainted attorney moves from

one private law firm to another, the law gives rise to a rebuttable
presumption of imputed knowledge to the law firm, which may be
rebutted by evidence of effective ethical screening. However, if the
tainted attorney was actually involved in the representation of the first
client, and switches sides in the same case, no amount of screening will
be sufficient, and the presumption of imputed knowledge is conclusive.
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Concept:
Lawyers in Law Firms and Specialized Practice Areas
ABA Model Rule:
Rule 1.0: Terminology
(c) "Firm" or "law firm" denotes a lawyer or lawyers in a law partnership, professional corporation, sole
proprietorship or other association authorized to practice law; or lawyers employed in a legal services organization or
the legal department of a corporation or other organization.

Rule 1.10: Imputation of Conflicts of Interest: General Rule

(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them
practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless
(1) the prohibition is based on a personal interest of the disqualified lawyer and does not present a significant
risk of materially limiting the representation of the client by the remaining lawyers in the firm; or
(2) the prohibition is based upon Rule 1.9(a) or (b) and arises out of the disqualified lawyer’s association with
a prior firm, and
(i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned
no part of the fee therefrom;
(ii) written notice is promptly given to any affected former client to enable the former client to
ascertain compliance with the provisions of this Rule, which shall include a description of the
screening procedures employed; a statement of the firm's and of the screened lawyer's compliance
with these Rules; a statement that review may be available before a tribunal; and an agreement by the
firm to respond promptly to any written inquiries or objections by the former client about the
screening procedures; and
(iii) certifications of compliance with these Rules and with the screening procedures are provided to
the former client by the screened lawyer and by a partner of the firm, at reasonable intervals upon the
former client's written request and upon termination of the screening procedures.
(b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a
person with interests materially adverse to those of a client represented by the formerly associated lawyer and not
currently represented by the firm, unless:
(1) the matter is the same or substantially related to that in which the formerly associated lawyer represented
the client; and
(2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the
matter.
(c) A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in Rule
1.7.
(d) The disqualification of lawyers associated in a firm with former or current government lawyers is governed by
Rule 1.11.

Rule 1.17: Sale of Law Practice

A lawyer or a law firm may sell or purchase a law practice, or an area of law practice, including good will, if the
following conditions are satisfied:
(a) The seller ceases to engage in the private practice of law, or in the area of practice that has been sold, [in the
geographic area] [in the jurisdiction] (a jurisdiction may elect either version) in which the practice has been
conducted;
(b) The entire practice, or the entire area of practice, is sold to one or more lawyers or law firms;
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(c) The seller gives written notice to each of the seller's clients regarding:
(1) the proposed sale;
(2) the client's right to retain other counsel or to take possession of the file; and
(3) the fact that the client's consent to the transfer of the client's files will be presumed if the client does not
take any action or does not otherwise object within ninety (90) days of receipt of the notice.
If a client cannot be given notice, the representation of that client may be transferred to the purchaser only
upon entry of an order so authorizing by a court having jurisdiction. The seller may disclose to the court in camera
information relating to the representation only to the extent necessary to obtain an order authorizing the
transfer of a file.
(d) The fees charged clients shall not be increased by reason of the sale.

Rule 2.1: Advisor

In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In
rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and
political factors, that may be relevant to the client's situation.

Rule 2.3: Evaluation for Use by Third Persons

(a) A lawyer may provide an evaluation of a matter affecting a client for the use of someone other than the client if
the lawyer reasonably believes that making the evaluation is compatible with other aspects of the lawyer's
relationship with the client.
(b) When the lawyer knows or reasonably should know that the evaluation is likely to affect the client's interests
materially and adversely, the lawyer shall not provide the evaluation unless the client gives informed consent.
(c) Except as disclosure is authorized in connection with a report of an evaluation, information relating to the
evaluation is otherwise protected by Rule 1.6.

Rule 2.4: Lawyer Serving as Third-Party Neutral

(a) A lawyer serves as a third-party neutral when the lawyer assists two or more persons who are not clients of the
lawyer to reach a resolution of a dispute or other matter that has arisen between them. Service as a third-party neutral
may include service as an arbitrator, a mediator or in such other capacity as will enable the lawyer to assist the parties
to resolve the matter.
(b) A lawyer serving as a third-party neutral shall inform unrepresented parties that the lawyer is not representing
them. When the lawyer knows or reasonably should know that a party does not understand the lawyer's role in the
matter, the lawyer shall explain the difference between the lawyer's role as a third-party neutral and a lawyer's role as
one who represents a client.

Rule 5.1: Responsibilities of a Partner or Supervisory Lawyer

(a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable
managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving
reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.
(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the
other lawyer conforms to the Rules of Professional Conduct.
(c) A lawyer shall be responsible for another lawyer's violation of the Rules of Professional Conduct if:
(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or
(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer
practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when
its consequences can be avoided or mitigated but fails to take reasonable remedial action.
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Rule 5.2: Responsibilities of a Subordinate Lawyer
(a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of
another person.
(b) A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a
supervisory lawyer's reasonable resolution of an arguable question of professional duty.

Rule 5.3: Responsibilities Regarding Nonlawyer Assistance

With respect to a nonlawyer employed or retained by or associated with a lawyer:
(a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial
authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable
assurance that the person's conduct is compatible with the professional obligations of the lawyer;
(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the
person's conduct is compatible with the professional obligations of the lawyer; and
(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional
Conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or
(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is
employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its
consequences can be avoided or mitigated but fails to take reasonable remedial action.

Rule 5.4: Professional Independence of a Lawyer

(a) A lawyer or law firm shall not share legal fees with a nonlawyer, except that:
(1) an agreement by a lawyer with the lawyer's firm, partner, or associate may provide for the payment of
money, over a reasonable period of time after the lawyer's death, to the lawyer's estate or to one or more
specified persons;
(2) a lawyer who purchases the practice of a deceased, disabled, or disappeared lawyer may, pursuant to the
provisions of Rule 1.17, pay to the estate or other representative of that lawyer the agreed-upon purchase
price;
(3) a lawyer or law firm may include nonlawyer employees in a compensation or retirement plan, even
though the plan is based in whole or in part on a profit-sharing arrangement; and
(4) a lawyer may share court-awarded legal fees with a nonprofit organization that employed, retained or
recommended employment of the lawyer in the matter.
(b) A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the
practice of law.
(c) A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for
another to direct or regulate the lawyer's professional judgment in rendering such legal services.
(d) A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice
law for a profit, if:
(1) a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may
hold the stock or interest of the lawyer for a reasonable time during administration;
(2) a nonlawyer is a corporate director or officer thereof or occupies the position of similar responsibility in
any form of association other than a corporation ; or
(3) a nonlawyer has the right to direct or control the professional judgment of a lawyer.

Rule 5.5: Unauthorized Practice of Law; Multijurisdictional Practice of Law

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(a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that
jurisdiction, or assist another in doing so.
(b) A lawyer who is not admitted to practice in this jurisdiction shall not:
(1) except as authorized by these Rules or other law, establish an office or other systematic and continuous
presence in this jurisdiction for the practice of law; or
(2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.
(c) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any
jurisdiction, may provide legal services on a temporary basis in this jurisdiction that:
(1) are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who
actively participates in the matter;
(2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another
jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such
proceeding or reasonably expects to be so authorized;
(3) are in or reasonably related to a pending or potential arbitration, mediation, or other alternative resolution
proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer's
practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum
requires pro hac vice admission; or
(4) are not within paragraphs (c) (2) or (c)(3) and arise out of or are reasonably related to the lawyer's practice
in a jurisdiction in which the lawyer is admitted to practice.
(d) A lawyer admitted in another United States jurisdiction or in a foreign jurisdiction, and not disbarred or
suspended from practice in any jurisdiction or the equivalent thereof, or a person otherwise lawfully practicing as an
in-house counsel under the laws of a foreign jurisdiction, may provide legal services through an office or other
systematic and continuous presence in this jurisdiction that:
(1) are provided to the lawyer's employer or its organizational affiliates, are not services for which the forum
requires pro hac vice admission; and when performed by a foreign lawyer and requires advice on the law of
this or another U.S. jurisdiction or of the United States, such advice shall be based upon the advice of a
lawyer who is duly licensed and authorized by the jurisdiction to provide such advice; or
(2) are services that the lawyer is authorized by federal or other law or rule to provide in this jurisdiction.
(e) For purposes of paragraph (d):
(1) the foreign lawyer must be a member in good standing of a recognized legal profession in a foreign
jurisdiction, the members of which are admitted to practice as lawyers or counselors at law or the equivalent, and
subject to effective regulation and discipline by a duly constituted professional body or a public authority; or,
(2) the person otherwise lawfully practicing as an in-house counsel under the laws of a foreign jurisdiction
must be authorized to practice under this Rule by, in the exercise of its discretion, [the highest court of this
jurisdiction].

Rule 5.6: Restrictions on Rights to Practice

A lawyer shall not participate in offering or making:
(a) a partnership, shareholders, operating, employment, or other similar type of agreement that restricts the right of a
lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement; or
(b) an agreement in which a restriction on the lawyer's right to practice is part of the settlement of a client
controversy.

Rule 5.7: Responsibilities Regarding Law-related Services

(a) A lawyer shall be subject to the Rules of Professional Conduct with respect to the provision of law-related
services, as defined in paragraph (b), if the law-related services are provided:
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(1) by the lawyer in circumstances that are not distinct from the lawyer's provision of legal services to clients;
or
(2) in other circumstances by an entity controlled by the lawyer individually or with others if the lawyer fails
to take reasonable measures to assure that a person obtaining the law-related services knows that the services
are not legal services and that the protections of the client-lawyer relationship do not exist.
(b) The term "law-related services" denotes services that might reasonably be performed in conjunction with and in
substance are related to the provision of legal services, and that are not prohibited as unauthorized practice of law
when provided by a nonlawyer.

Notes:
Business Entities:
ABA Model Rules allow lawyers to form professional corporations as long as all the shareholders, officers, and
directors are lawyers.
The corporate form of business has generally not provided lawyer-shareholders a shield against malpractice liability
as a result of the acts of other lawyer-shareholders in the professional corporation.

ABA Formal Op. 08_451—requiring outsourcing lawyers to provide appropriate disclosures to the client, to avoid
assisting the unauthorized practice of law, and to make reasonable efforts to ensure that the outsourced service
providers, over whom the outsourcing lawyer acts as a supervisor, act compatibly with the lawyer's professional
obligations pursuant to ABA Model Rules 5.1 and 5.3

Law Firm Breakups:

A lawyer's impending departure requires notice to the lawyer's current clients under Rule 1.4. The notice can be in
writing or in person or by telephone without violating Rule 7.3. Joint notice by the departing lawyer and the firm is
preferred although not always possible.
Firms generally cannot prohibit their lawyers from leaving and letting clients know of their impending move, so they
have tried other economic disincentives to at least limit the grabbing off of their best clients when lawyers move.
Model Rule 5.6 appears to limit, if not prohibit, the use of noncompetition clauses in partnership agreements, and to
restrict the use of payments to the departing partners as a means of limiting competition.

Law Firm Discipline:

It is apparent that law firm culture has a significant effect on the individual members of the firm. particularly those
newly admitted to practice who are developing habits of practice, often by modeling their behavior on those lawyers
they observe practicing on a day-to-day basis he partners and more senior associates of the firm that has hired them.
Entire law firms have been found liable as firms for malpractice, and for violations of regulatory regimes by
administrative agencies vigorously exercising their supervisory function.

Federal Rule of Civil Procedure 11, allows sanctioning a law firm.

The Association of the Bar of the City of New York identified these reasons for extending discipline to law firms:
(1) to improve the practice environment for lawyers within the firm that will discourage ethical violations by its
members;
(2) to enhance self-policing of conduct by firms;
(3) to bring the rules into line with the group character of modern practice and its supervisory structure;
(4) to enhance the ethical supervision of non-lawyer employees of firms;
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(5) to overcome the difficulty of assessing blame on individual lawyers;
👎
(6) to provide counter incentives to a climate that encourages cutting corners; and
(7) to address organizational problems that may be the cause of ethical violations, such as conflicts checking, billing
procedures, and oversight of client funds.
Firms cannot be disbarred, and even a total firm suspension seems inappropriate.
No state bar has adopted a rule that disciplines firms. However, in some circumstances, a firm’s unethical behavior
may result in an inability to collect attorneys’ fees for the work performed.

The lawyer as problem solver and third-party neutral:

Collaborative lawyers attempt to solve problems as peacefully as possible, with maximum client input, and agree in
advance not to pursue litigation with each other.

Perhaps the most radical departure from the lawyer's traditional role is the current practice of lawyer as third-party
neutral, as mediator, arbitrator, facilitator, early neutral evaluator, conciliator, fact-finder, or consensus-builder. In
such roles, lawyers do not represent anyone and, thus, are not strictly speaking governed by the Model Rules of
Professional Conduct where there is no professional representational relationship.

Mediators who seek to solve problems- either by merely facilitating negotiation sessions between represented or
unrepresented parties, in both public and private settings, or by taking a more active role in the more recent use of
"evaluative" mediation (rendering advice, legal predictions, or offering substantive solutions in some cases)- do not
represent anyone, but serve an invaluable function in resolving disputes or facilitating the making of transactions.
Case Name Material Facts Rules Relevant Notes

In the Matter Respondent employed Ind. Professional Conduct Rules: Discipline: The parties propose
of Lisher nonlawyer Heather 1.15(a): Failing to maintain and the appropriate discipline is a
(Page 377) Brant. Over the course preserve complete records of client 60-day suspension with
automatic reinstatement.
of several months in trust account funds. 5.3(b): Failing to
2018, Brant stole make reasonable efforts to ensure that
several thousand the conduct of a nonlawyer employee
dollars from the firm’s over whom the lawyer has direct
operating account, over supervisory authority is compatible
drafted the firm's trust with the professional obligations of the
account, and lawyer.
fraudulently created
several purported court Ind. Admission and Discipline Rules:
orders and other legal 23(29) (a) (3): Failing to keep records
documents. Brant's or ledgers detailing the nominal amount
improper actions were of attorney funds held in a trust
enabled in significant account, showing the amount and dates
part by Respondent's of attorney funds disbursed or
failure to appropriately deposited, and a running balance of the
supervise her.
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amount of attorney funds held in the
trust account.

23(29) (a)(7): Failing to keep

reconciliation reports for a trust
account.

23(29)(c)(7): Failing to reconcile

internal trust account records with
periodic bank account statements.

People v. After being assigned Rule 5.2. Responsibilities of a The Terminology section of
Casey the case by the senior Subordinate Lawyer the Rules of Professional
(Page 379) partner, the Respondent Conduct states, “Knowingly”
(a) A lawyer is bound by the Rules of “Known” or “knows” denotes
wrote to the Colorado
Professional Conduct notwithstanding actual knowledge of the fact in
Springs City Attorney's question. A person’s
Office, and advised the that the lawyer acted at the direction of
knowledge may be inferred
City Attorney, falsely, another person.
from circumstances.
that he represented S.J., (b) A subordinate lawver does not Respondent engaged
when he actually in a course of knowing
violate the Rules of Professional
represented S.R. He conduct over an appreciable
Conduct if that lawyer acts in period of time, resulting in
requested and obtained accordance with a supervisory lawyer's false and material information
discovery using S.J's reasonable resolution of an arguable being submitted to the court.
name. He also notified question of professional duty.
the court clerk of his
entry of appearance in Colo. PC 1.6 provides in part:
the S.J. case.
(a) A lawyer shall not reveal
information relating to representation
of a client unless the client consents
after consultation, except for
disclosures that are impliedly
authorized in order to carry out the
representation, and except as stated in
paragraphs (b) and (c).

(b) A lawyer may reveal the intention

of the lawyer's client to commit a crime
and the information necessary to
prevent the crime.
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Rule 3.3 Candor Toward the
👎
Tribunal

(a) A lawyer shall not knowingly: (1)

make a false statement of material fact
or law to a tribunal; (2) fail to disclose
a material fact to a tribunal when
disclosure is necessary to avoid
assisting a criminal or fraudulent act by
the client.

(b) The duties stated in paragraph (a)

continue to the conclusion of the
proceeding and apply even if
compliance requires disclosure of
information otherwise protected by
Rule 1.6.

Birbrower, No person shall No one may recover compensation for Our definition does not
Montalbano, practice law in services as an attorney at law in this necessarily depend on or
Condon, & California unless the state unless the person was at the time require the unlicensed lawyer's
Frank, P.C. v. physical presence in the state.
person is an active the services were performed a member
Superior Court Physical presence here is one
(Page 386) member of the State of The State Bar. factor we may consider in
Bar. deciding whether the
unlicensed lawyer has violated
section 6125, but it is by no
means exclusive.

We decline to provide a
comprehensive list of what
activities constitute sufficient
contact with the state, we do
reject the notion that a person
automatically practices
Law "in California"
whenever that person practices
California law anywhere, or
"virtually' enters the state by
telephone, fax, e-mail, or
satellite. We must decide each
case on its individual facts.
 PROFESSIONAL RESPONSIBILITY AND ETHICS
BERGER, SPRING 2022 👎 Exceptions to section 6125 do
exist, but are generally limited
to allowing out-of-state
attorneys to make brief
appearances before a state
court or tribunal. They are
narrowly drawn and strictly
interpreted. By consent of a
trial judge...

Many states have substantially

similar statutes that serve to
protect their citizens from
unlicensed attorneys who
engage in unauthorized legal
practice. Whether an attorney
is duly admitted in another
state and is, in fact, competent
to practice in California is
irrelevant in the face of section
6125's language and purpose.
Concept:
Judicial Conduct
ABA Model Rule:
PREAMBLE
[1] An independent, fair and impartial judiciary is indispensable to our system of justice. The United States legal
system is based upon the principle that an independent, impartial, and competent judiciary, composed of men and
women of integrity, will interpret and apply the law that governs our society. Thus, the judiciary plays a central role
in preserving the principles of justice and the rule of law. Inherent in all the Rules contained in this Code are the
precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and
strive to maintain and enhance confidence in the legal system.
[2] Judges should maintain the dignity of judicial office at all times, and avoid both impropriety and the appearance
of impropriety in their professional and personal lives. They should aspire at all times to conduct that ensures the
greatest possible public confidence in their independence, impartiality, integrity, and competence.
[3] The Model Code of Judicial Conduct establishes standards for the ethical conduct of judges and judicial
candidates. It is not intended as an exhaustive guide for the conduct of judges and judicial candidates, who are
governed in their judicial and personal conduct by general ethical standards as well as by the Code. The Code is
intended, however, to provide guidance and assist judges in maintaining the highest standards of judicial and
personal conduct, and to provide a basis for regulating their conduct through disciplinary agencies.

SCOPE
[1] The Model Code of Judicial Conduct consists of four Canons, numbered Rules under each Canon, and Comments
that generally follow and explain each Rule. Scope and Terminology sections provide additional guidance in
interpreting and applying the Code. An Application section establishes when the various Rules apply to a judge or
judicial candidate.
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[2] The Canons state overarching principles of judicial ethics that all judges must observe. Although a judge may be
disciplined only for violating a Rule, the Canons provide important guidance in interpreting the Rules. Where a Rule
contains a permissive term, such as “may” or “should,” the conduct being addressed is committed to the personal and
professional discretion of the judge or candidate in question, and no disciplinary action should be taken for action or
inaction within the bounds of such discretion.
[3] The Comments that accompany the Rules serve two functions. First, they provide guidance regarding the
purpose, meaning, and proper application of the Rules. They contain explanatory material and, in some instances,
provide examples of permitted or prohibited conduct. Comments neither add to nor subtract from the binding
obligations set forth in the Rules. Therefore, when a Comment contains the term “must,” it does not mean that the
Comment itself is binding or enforceable; it signifies that the Rule in question, properly understood, is obligatory as
to the conduct at issue.
[4] Second, the Comments identify aspirational goals for judges. To implement fully the principles of this Code as
articulated in the Canons, judges should strive to exceed the standards of conduct established by the Rules, holding
themselves to the highest ethical standards and seeking to achieve those aspirational goals, thereby enhancing the
dignity of the judicial office.
[5] The Rules of the Model Code of Judicial Conduct are rules of reason that should be applied consistent with
constitutional requirements, statutes, other court rules, and decisional law, and with due regard for all relevant
circumstances. The Rules should not be interpreted to impinge upon the essential independence of judges in making
judicial decisions.
[6] Although the black letter of the Rules is binding and enforceable, it is not contemplated that every transgression
will result in the imposition of discipline. Whether discipline should be imposed should be determined through a
reasonable and reasoned application of the Rules, and should depend upon factors such as the seriousness of the
transgression, the facts and circumstances that existed at the time of the transgression, the extent of any pattern of
improper activity, whether there have been previous violations, and the effect of the improper activity upon the
judicial system or others.
[7] The Code is not designed or intended as a basis for civil or criminal liability. Neither is it intended to be the basis
for litigants to seek collateral remedies against each other or to obtain tactical advantages in proceedings before a
court.

TERMINOLOGY

“Aggregate,” in relation to contributions for a candidate, means not only contributions in cash or in kind made
directly to a candidate’s campaign committee, but also all contributions made indirectly with the understanding that
they will be used to support the election of a candidate or to oppose the election of the candidate’s opponent. See
Rules 2.11 and 4.4.

“Appropriate authority” means the authority having responsibility for initiation of disciplinary process in
connection with the violation to be reported. See Rules 2.14 and 2.15.

“Contribution” means both financial and in-kind contributions, such as goods, professional or volunteer services,
advertising, and other types of assistance, which, if obtained by the recipient otherwise, would require a financial
expenditure. See Rules 2.11, 2.13, 3.7, 4.1, and 4.4.

“De minimis,” in the context of interests pertaining to disqualification of a judge, means an insignificant interest that
could not raise a reasonable question regarding the judge’s impartiality. See Rule 2.11.
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“Domestic partner” means a person with whom another person maintains a household and an intimate relationship,
other than a person to whom he or she is legally married. See Rules 2.11, 2.13, 3.13, and 3.14.

“Economic interest” means ownership of more than a de minimis legal or equitable interest. Except for situations in
which the judge participates in the management of such a legal or equitable interest, or the interest could be
substantially affected by the outcome of a proceeding before a judge, it does not include:
1. (1) an interest in the individual holdings within a mutual or common investment fund;
2. (2) an interest in securities held by an educational, religious, charitable, fraternal, or civic organization in
which the judge or the judge’s spouse, domestic partner, parent, or child serves as a director, an officer, an
advisor, or other participant;
3. (3) a deposit in a financial institution or deposits or proprietary interests the judge may maintain as a member
of a mutual savings association or credit union, or similar proprietary interests; or
4. (4) an interest in the issuer of government securities held by the judge.

“Fiduciary” includes relationships such as executor, administrator, trustee, or guardian. See Rules 2.11, 3.2, and 3.8.

“Impartial,” “impartiality,” and “impartially” mean absence of bias or prejudice in favor of, or against, particular
parties or classes of parties, as well as maintenance of an open mind in considering issues that may come before a
judge.

“Impending matter” is a matter that is imminent or expected to occur in the near future. See Rules 2.9, 2.10, 3.13,
and 4.1.

“Impropriety” includes conduct that violates the law, court rules, or provisions of this Code, and conduct that
undermines a judge’s independence, integrity, or impartiality. See Canon 1 and Rule 1.2.

“Independence” means a judge’s freedom from influence or controls other than those established by law. See
Canons 1 and 4, and Rules 1.2, 3.1, 3.12, 3.13, and 4.2.

“Integrity” means probity, fairness, honesty, uprightness, and soundness of character. See Canons 1 and 4, and Rules
1.2, 3.1, 3.12, 3.13, and 4.2.

“Judicial candidate” means any person, including a sitting judge, who is seeking selection for or retention in
judicial office by election or appointment. A person becomes a candidate for judicial office as soon as he or she
makes a public announcement of candidacy, declares or files as a candidate with the election or appointment
authority, authorizes or, where permitted, engages in solicitation or acceptance of contributions or support, or is
nominated for election or appointment to office. See Rules 2.11, 4.1, 4.2, and 4.4.

“Knowingly,” “knowledge,” “known,” and “knows” mean actual knowledge of the fact in question. A person’s
knowledge may be inferred from circumstances. See Rules 2.11, 2.13, 2.15, 2.16, 3.6, and 4.1.

“Law” encompasses court rules as well as statutes, constitutional provisions, and decisional law. See Rules 1.1, 2.1,
2.2, 2.6, 2.7, 2.9, 3.1, 3.4, 3.9, 3.12, 3.13, 3.14, 3.15, 4.1, 4.2, 4.4, and 4.5.

“Member of the candidate’s family” means a spouse, domestic partner, child, grandchild, parent, grandparent, or
other relative or person with whom the candidate maintains a close familial relationship.
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“Member of the judge’s family” means a spouse, domestic partner, child, grandchild, parent, grandparent, or other
relative or person with whom the judge maintains a close familial relationship. See Rules 3.7, 3.8, 3.10, and 3.11.

“Member of a judge’s family residing in the judge’s household” means any relative of a judge by blood or
marriage, or a person treated by a judge as a member of the judge’s family, who resides in the judge’s household. See
Rules 2.11 and 3.13.

“Nonpublic information” means information that is not available to the public. Nonpublic information may include,
but is not limited to, information that is sealed by statute or court order or impounded or communicated in camera,
and information offered in grand jury proceedings, presentencing reports, dependency cases, or psychiatric reports.
See Rule 3.5.

“Pending matter” is a matter that has commenced. A matter continues to be pending through any appellate process
until final disposition. See Rules 2.9, 2.10, 3.13, and 4.1.

“Personally solicit” means a direct request made by a judge or a judicial candidate for financial support or in-kind
services, whether made by letter, telephone, or any other means of communication. See Rule 4.1.

“Political organization” means a political party or other group sponsored by or affiliated with a political party or
candidate, the principal purpose of which is to further the election or appointment of candidates for political office.
For purposes of this Code, the term does not include a judicial candidate’s campaign committee created as authorized
by Rule 4.4. See Rules 4.1 and 4.2.

“Public election” includes primary and general elections, partisan elections, nonpartisan elections, and retention
elections. See Rules 4.2 and 4.4.

“Third degree of relationship” includes the following persons: great-grandparent, grandparent, parent, uncle, aunt,
brother, sister, child, grandchild, great-grandchild, nephew, and niece. See Rule 2.11.

APPLICATION
The Application section establishes when the various Rules apply to a judge or judicial candidate.

I. APPLICABILITY OF THIS CODE

(A) The provisions of the Code apply to all full-time judges. Parts II through V of this section identify
provisions that apply to four categories of part-time judges only while they are serving as judges, and provisions
that do not apply to part-time judges at any time. All other Rules are therefore applicable to part- time judges at all
times. The four categories of judicial service in other than a full-time capacity are necessarily defined in general
terms because of the widely varying forms of judicial service. Canon 4 applies to judicial candidates.
(B) A judge, within the meaning of this Code, is anyone who is authorized to perform judicial functions,
including an officer such as a justice of the peace, magistrate, court commissioner, special master, referee, or
member of the administrative law judiciary.1

COMMENT
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[1] The Rules in this Code have been formulated to address the ethical obligations of any person who serves a
judicial function, and are premised upon the supposition that a uniform system of ethical principles should apply to
all those authorized to perform judicial functions.
[2] The determination of which category and, accordingly, which specific Rules apply to an individual judicial
officer, depends upon the facts of the particular judicial service.
[3] In recent years many jurisdictions have created what are often called “problem solving” courts, in which judges
are authorized by court rules to act in nontraditional ways. For example, judges presiding in drug courts and
monitoring the progress of participants in those courts’ programs may be authorized and even encouraged to
communicate directly with social workers, probation officers, and others outside the context of their usual judicial
role as independent decision makers on issues of fact and law. When local rules specifically authorize conduct not
otherwise permitted under these Rules, they take precedence over the provisions set forth in the Code. Nevertheless,
judges serving on “problem solving” courts shall comply with this Code except to the extent local rules provide and
permit otherwise.
II. RETIRED JUDGE SUBJECT TO RECALL
A retired judge subject to recall for service, who by law is not permitted to practice law, is not required to comply:
(A) with Rule 3.9 (Service as Arbitrator or Mediator), except while serving as a judge.
(B) at any time with Rule 3.8(A) (Appointments to Fiduciary Positions).

COMMENT
[1] For the purposes of this section, as long as a retired judge is subject to being recalled for service, the judge is
considered to “perform judicial functions.”

III. CONTINUING PART-TIME JUDGE

A judge who serves repeatedly on a part-time basis by election or under a continuing appointment, including a retired
judge subject to recall who is permitted to practice law (“continuing part-time judge”),
(A) is not required to comply:
(1) with Rule 4.1 (Political and Campaign Activities of Judges and Judicial Candidates in General) (A)(1)
through (7), except while serving as a judge; or
(2) at any time with Rules 3.4 (Appointments to Governmental Positions), 3.8(A) (Appointments to Fiduciary
Positions), 3.9 (Service as Arbitrator or Mediator), 3.10 (Practice of Law), and 3.11(B) (Financial, Business,
or Remunerative Activities); and
(B) shall not practice law in the court on which the judge serves or in any court subject to the appellate jurisdiction of
the court on which the judge serves, and shall not act as a lawyer in a proceeding in which the judge has
served as a judge or in any other proceeding related thereto.

COMMENT
[1] When a person who has been a continuing part-time judge is no longer a continuing part-time judge, including a
retired judge no longer subject to recall, that person may act as a lawyer in a proceeding in which he or she has
served as a judge or in any other proceeding related thereto only with the informed consent of all parties, and
pursuant to any applicable Model Rules of Professional Conduct. An adopting jurisdiction should substitute a
reference to its applicable rule.

IV. PERIODIC PART-TIME JUDGE

A periodic part-time judge who serves or expects to serve repeatedly on a part-time basis, but under a separate
appointment for each limited period of service or for each matter,
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(A) is not required to comply:
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(1) with Rule 4.1 (Political and Campaign Activities of Judges and Judicial Candidates in General) (A)(1)
through (7), except while serving as a judge; or
(2) at any time with Rules 3.4 (Appointments to Governmental Positions), 3.8(A) (Appointments to Fiduciary
Positions), 3.9 (Service as Arbitrator or Mediator), 3.10 (Practice of Law), and 3.11(B) (Financial, Business,
or Remunerative Activities); and
(B) shall not practice law in the court on which the judge serves or in any court subject to the appellate jurisdiction of
the court on which the judge serves, and shall not act as a lawyer in a proceeding in which the judge has served as a
judge or in any other proceeding related thereto.

V. PRO TEMPORE PART-TIME JUDGE

A pro tempore part-time judge who serves or expects to serve once or only sporadically on a part-time basis under a
separate appointment for each period of service or for each case heard is not required to comply:
(A) except while serving as a judge, with Rules 2.4 (External Influences on Judicial Conduct), 3.2
(Appearances before Governmental Bodies and Consultation with Government Officials), and 4.1 (Political and
Campaign Activities of Judges and Judicial Candidates in General) (A)(1) through (7); or
(B) at any time with Rules 3.4 (Appointments to Governmental Positions), 3.8(A) (Appointments to
Fiduciary Positions), 3.9 (Service as Arbitrator or Mediator), 3.10 (Practice of Law), and 3.11(B) (Financial,
Business, or Remunerative Activities).

VI. TIME FOR COMPLIANCE

A person to whom this Code becomes applicable shall comply immediately with its provisions, except that those
judges to whom Rules 3.8 (Appointments to Fiduciary Positions) and 3.11 (Financial, Business, or Remunerative
Activities) apply shall comply with those Rules as soon as reasonably possible, but in no event later than one year
after the Code becomes applicable to the judge.

COMMENT
[1] If serving as a fiduciary when selected as judge, a new judge may, notwithstanding the prohibitions in Rule 3.8,
continue to serve as fiduciary, but only for that period of time necessary to avoid serious adverse consequences to the
beneficiaries of the fiduciary relationship and in no event longer than one year. Similarly, if engaged at the time of
judicial selection in a business activity, a new judge may, notwithstanding the prohibitions in Rule 3.11, continue in
that activity for a reasonable period but in no event longer than one year.

CANONS
(Most important 2.8, 2.11, 2.9, & 2.12)

CANON 1
A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid
impropriety and the appearance of impropriety.

Rule 1.1
Compliance with the Law
A judge shall comply with the law,* including the Code of Judicial Conduct.
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Rule 1.2
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Promoting Confidence in the Judiciary
A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and
impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.

Rule 1.3
Avoiding Abuse of the Prestige of Judicial Office
A judge shall not abuse the prestige of judicial office to advance the personal or economic interests* of the judge or
others, or allow others to do so.

CANON 2
A judge shall perform the duties of judicial office impartially, competently, and diligently.

Rule 2.1
Giving Precedence to the Duties of Judicial Office
The duties of judicial office, as prescribed by law, shall take precedence over all of a judge’s personal and
extrajudicial activities.

Rule 2.2
Impartiality and Fairness
A judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially.*

Rule 2.3
Bias, Prejudice, and Harassment
(A) A judge shall perform the duties of judicial office, including administrative duties, without bias or
prejudice.
(B) A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice,
or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex,
gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic
status, or political affiliation, and shall not permit court staff, court officials, or others subject to the judge’s
direction and control to do so.
(C) A judge shall require lawyers in proceedings before the court to refrain from manifesting bias or
prejudice, or engaging in harassment, based upon attributes including but not limited to race, sex, gender,
religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or
political affiliation, against parties, witnesses, lawyers, or others.
(D) The restrictions of paragraphs (B) and (C) do not preclude judges or lawyers from making legitimate
reference to the listed factors, or similar factors, when they are relevant to an issue in a proceeding.

Rule 2.4
External Influences on Judicial Conduct
(A) A judge shall not be swayed by public clamor or fear of criticism.
(B) A judge shall not permit family, social, political, financial, or other interests or relationships to influence
the judge’s judicial conduct or judgment.
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(C) A judge shall not convey or permit others to convey the impression that any person or organization is in a
position to influence the judge.

Rule 2.5
Competence, Diligence, and Cooperation
(A) A judge shall perform judicial and administrative duties, competently and diligently.
(B) A judge shall cooperate with other judges and court officials in the administration of court business.
Rule 2.6
Ensuring the Right to Be Heard
(A) A judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the
right to be heard according to law.
(B) A judge may encourage parties to a proceeding and their lawyers to settle matters in dispute but shall not
act in a manner that coerces any party into settlement.

Rule 2.7
Responsibility to Decide
A judge shall hear and decide matters assigned to the judge, except when disqualification is required by Rule 2.11 or
other law.

Rule 2.8
Decorum, Demeanor, and Communication with Jurors
(A) A judge shall require order and decorum in proceedings before the court.
(B) A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, court staff, court
officials, and others with whom the judge deals in an official capacity, and shall require similar conduct of l
awyers, court staff, court officials, and others subject to the judge’s direction and control.
(C) A judge shall not commend or criticize jurors for their verdict other than in a court order or opinion in a
proceeding.

Rule 2.9
Ex Parte Communications
(A) A judge shall not initiate, permit, or consider ex parte communications, or consider other communications
made to the judge outside the presence of the parties or their lawyers, concerning a pending or impending
matter,except as follows:
(1) When circumstances require it, ex parte communication for scheduling, administrative, or
emergency purposes, which does not address substantive matters, is permitted, provided:
(a) the judge reasonably believes that no party will gain a procedural, substantive, or tactical
advantage as a result of the ex parte communication; and
(b) the judge makes provision promptly to notify all other parties of the substance of the ex
parte communication, and gives the parties an opportunity to respond.
(2) A judge may obtain the written advice of a disinterested expert on the law applicable to a
proceeding before the judge, if the judge gives advance notice to the parties of the person to be
consulted and the subject matter of the advice to be solicited, and affords the parties a reasonable
opportunity to object and respond to the notice and to the advice received.
(3) A judge may consult with court staff and court officials whose functions are to aid the judge in
carrying out the judge’s adjudicative responsibilities, or with other judges, provided the judge makes
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reasonable efforts to avoid receiving factual information that is not part of the record, and does not
abrogate the responsibility personally to decide the matter.
(4) A judge may, with the consent of the parties, confer separately with the parties and their lawyers in
an effort to settle matters pending before the judge.
(5) A judge may initiate, permit, or consider any ex parte communication when expressly authorized
by law to do so.
(B) If a judge inadvertently receives an unauthorized ex parte communication bearing upon the substance of a
matter, the judge shall make provision promptly to notify the parties of the substance of the communication
and provide the parties with an opportunity to respond.
(C) A judge shall not investigate facts in a matter independently, and shall consider only the evidence
presented and any facts that may properly be judicially noticed.
(D) A judge shall make reasonable efforts, including providing appropriate supervision, to ensure that this
Rule is not violated by court staff, court officials, and others subject to the judge’s direction and control.

Rule 2.10
Judicial Statements on Pending and Impending Cases
(A) A judge shall not make any public statement that might reasonably be expected to affect the outcome or
impair the fairness of a matter pending or impending in any court, or make any nonpublic statement that
might substantially interfere with a fair trial or hearing.
(B) A judge shall not, in connection with cases, controversies, or issues that are likely to come before the
court, make pledges, promises, or commitments that are inconsistent with the impartial* performance of the
adjudicative duties of judicial office.
(C) A judge shall require court staff, court officials, and others subject to the judge’s direction and control to
refrain from making statements that the judge would be prohibited from making by paragraphs (A) and (B).
(D) Notwithstanding the restrictions in paragraph (A), a judge may make public statements in the course of
official duties, may explain court procedures, and may comment on any proceeding in which the judge is a
litigant in a personal capacity.
(E) Subject to the requirements of paragraph (A), a judge may respond directly or through a third party to
allegations in the media or elsewhere concerning the judge’s conduct in a matter.

Rule 2.11
Disqualification
(A) A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality* might
reasonably be questioned, including but not limited to the following circumstances:
(1) The judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal
knowledge of facts that are in dispute in the proceeding.
(2) The judge knows that the judge, the judge’s spouse or domestic partner, or a person within the
third degree of relationship to either of them, or the spouse or domestic partner of such a person is:
(a) a party to the proceeding, or an officer, director, general partner, managing member, or
trustee of a party;
(b) acting as a lawyer in the proceeding;
(c) a person who has more than a de minimis interest that could be substantially affected by
the proceeding; or
(d) likely to be a material witness in the proceeding.
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(3) The judge knows that he or she, individually or as a fiduciary, or the judge’s spouse, domestic
partner, parent, or child, or any other member of the judge’s family residing in the judge’s household,
has an economic interest in the subject matter in controversy or in a party to the proceeding.
(4) The judge knows or learns by means of a timely motion that a party, a party’s lawyer, or the law
firm of a party’s lawyer has within the previous [insert number] year[s] made aggregate contributions
to the judge’s campaign in an amount that [is greater than $[insert amount] for an individual or
$[insert amount] for an entity] [is reasonable and appropriate for an individual or an entity].
(5) The judge, while a judge or a judicial candidate, has made a public statement, other than in a court
proceeding, judicial decision, or opinion, that commits or appears to commit the judge to reach a
particular result or rule in a particular way in the proceeding or controversy.
(6) The judge:
(a) served as a lawyer in the matter in controversy, or was associated with a lawyer who
participated substantially as a lawyer in the matter during such association;
(b) served in governmental employment, and in such capacity participated personally and
substantially as a lawyer or public official concerning the proceeding, or has publicly
expressed in such capacity an opinion concerning the merits of the particular matter in
controversy;
(c) was a material witness concerning the matter; or
(d) previously presided as a judge over the matter in another court.
(B) A judge shall keep informed about the judge’s personal and fiduciary economic interests, and make a
reasonable effort to keep informed about the personal economic interests of the judge’s spouse or domestic
partner and minor children residing in the judge’s household.
(C) A judge subject to disqualification under this Rule, other than for bias or prejudice under paragraph
(A)(1), may disclose on the record the basis of the judge’s disqualification and may ask the parties and their
lawyers to consider, outside the presence of the judge and court personnel, whether to waive disqualification. If,
following the disclosure, the parties and lawyers agree, without participation by the judge or court personnel,
that the judge should not be disqualified, the judge may participate in the proceeding. The agreement shall be
incorporated into the record of the proceeding.

Rule 2.12
Supervisory Duties
(A) A judge shall require court staff, court officials, and others subject to the judge’s direction and control to
act in a manner consistent with the judge’s obligations under this Code.
(B) A judge with supervisory authority for the performance of other judges shall take reasonable measures to
ensure that those judges properly discharge their judicial responsibilities, including the prompt disposition of
matters before them.

Rule 2.13
Administrative Appointments
(A) In making administrative appointments, a judge:
(1) shall exercise the power of appointment impartially and on the basis of merit; and
(2) shall avoid nepotism, favoritism, and unnecessary appointments.
(B) A judge shall not appoint a lawyer to a position if the judge either knows that the lawyer, or the lawyer’s
spouse or domestic partner, has contributed more than $[insert amount] within the prior [insert number]
year[s] to the judge’s election campaign, or learns of such a contribution by means of a timely motion by a party
or other person properly interested in the matter, unless:
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(1) the position is substantially uncompensated;
👎
(2) the lawyer has been selected in rotation from a list of qualified and available lawyers compiled
without regard to their having made political contributions; or
(3) the judge or another presiding or administrative judge affirmatively finds that no other lawyer is
willing, competent, and able to accept the position.
(C) A judge shall not approve compensation of appointees beyond the fair value of services rendered.

Rule 2.14
Disability and Impairment
A judge having a reasonable belief that the performance of a lawyer or another judge is impaired by drugs or
alcohol, or by a mental, emotional, or physical condition, shall take appropriate action, which may include a
confidential referral to a lawyer or judicial assistance program.

Rule 2.15
Responding to Judicial and Lawyer Misconduct
(A) A judge having knowledge that another judge has committed a violation of this Code that raises a
substantial question regarding the judge’s honesty, trustworthiness, or fitness as a judge in other respects shall
inform the appropriate authority.
(B) A judge having knowledge that a lawyer has committed a violation of the Rules of Professional Conduct
that raises a substantial question regarding the lawyer’s honesty, trustworthiness, or fitness as a lawyer in
other respects shall inform the appropriate authority.
(C) A judge who receives information indicating a substantial likelihood that another judge has committed a
violation of this Code shall take appropriate action.
(D) A judge who receives information indicating a substantial likelihood that a lawyer has committed a
violation of the Rules of Professional Conduct shall take appropriate action.

Rule 2.16
Cooperation with Disciplinary Authorities
(A) A judge shall cooperate and be candid and honest with judicial and lawyer disciplinary agencies.
(B) A judge shall not retaliate, directly or indirectly, against a person known* or suspected to have assisted or
cooperated with an investigation of a judge or a lawyer.

CANON 3
A judge shall conduct the judge’s personal and extrajudicial activities to minimize the risk of conflict with the
obligations of judicial office.

Rule 3.1
Extrajudicial Activities in General
A judge may engage in extrajudicial activities, except as prohibited by law or this Code. However, when engaging in
extrajudicial activities, a judge shall not:
(A) participate in activities that will interfere with the proper performance of the judge’s judicial duties;
(B) participate in activities that will lead to frequent disqualification of the judge;
(C) participate in activities that would appear to a reasonable person to undermine the judge’s independence,
integrity, or impartiality;
(D) engage in conduct that would appear to a reasonable person to be coercive; or
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(E) make use of court premises, staff, stationery, equipment, or other resources, except for incidental use for
activities that concern the law, the legal system, or the administration of justice, or unless such additional use
is permitted by law.

Rule 3.2
Appearances before Governmental Bodies and Consultation with Government Officials
A judge shall not appear voluntarily at a public hearing before, or otherwise consult with, an executive or a
legislative body or official, except:
(A) in connection with matters concerning the law, the legal system, or the administration of justice;
(B) in connection with matters about which the judge acquired knowledge or expertise in the course of the
judge’s judicial duties; or
(C) when the judge is acting pro se in a matter involving the judge’s legal or economic interests, or when the
judge is acting in a fiduciary capacity.

Rule 3.3
Testifying as a Character Witness
A judge shall not testify as a character witness in a judicial, administrative, or other adjudicatory proceeding
or otherwise vouch for the character of a person in a legal proceeding, except when duly summoned.

Rule 3.4
Appointments to Governmental Positions
A judge shall not accept appointment to a governmental committee, board, commission, or other
governmental position, unless it is one that concerns the law, the legal system, or the administration of justice.

Rule 3.5
Use of Nonpublic Information
A judge shall not intentionally disclose or use nonpublic information acquired in a judicial capacity for any
purpose unrelated to the judge’s judicial duties.

Rule 3.6
Affiliation with Discriminatory Organizations
(A) A judge shall not hold membership in any organization that practices invidious discrimination on the
basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation.
(B) A judge shall not use the benefits or facilities of an organization if the judge knows or should know that
the organization practices invidious discrimination on one or more of the bases identified in paragraph (A). A
judge’s attendance at an event in a facility of an organization that the judge is not permitted to join is not a
violation of this Rule when the judge’s attendance is an isolated event that could not reasonably be perceived
as an endorsement of the organization’s practices.

Rule 3.7
Participation in Educational, Religious, Charitable, Fraternal, or Civic Organizations and Activities
(A) Subject to the requirements of Rule 3.1, a judge may participate in activities sponsored by organizations
or governmental entities concerned with the law, the legal system, or the administration of justice, and those
sponsored by or on behalf of educational, religious, charitable, fraternal, or civic organizations not conducted
for profit, including but not limited to the following activities:
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(1) assisting such an organization or entity in planning related to fund-raising, and participating in the
management and investment of the organization’s or entity’s funds;
(2) soliciting contributions for such an organization or entity, but only from members of the judge’s
family, or from judges over whom the judge does not exercise supervisory or appellate authority;
(3) soliciting membership for such an organization or entity, even though the membership dues or fees
generated may be used to support the objectives of the organization or entity, but only if the
organization or entity is concerned with the law, the legal system, or the administration of justice;
(4) appearing or speaking at, receiving an award or other recognition at, being featured on the
program of, and permitting his or her title to be used in connection with an event of such an
organization or entity, but if the event serves a fund-raising purpose, the judge may participate only if
the event concerns the law, the legal system, or the administration of justice;
(5) making recommendations to such a public or private fund-granting organization or entity in
connection with its programs and activities, but only if the organization or entity is concerned with the
law, the legal system, or the administration of justice; and
(6) serving as an officer, director, trustee, or nonlegal advisor of such an organization or entity, unless
it is likely that the organization or entity:
(a) will be engaged in proceedings that would ordinarily come before the judge; or
(b) will frequently be engaged in adversary proceedings in the court of which the judge is a
member, or in any court subject to the appellate jurisdiction of the court of which the judge is
a member.
(B) A judge may encourage lawyers to provide pro bono publico legal services.

Rule 3.8
Appointments to Fiduciary Positions
(A) A judge shall not accept appointment to serve in a fiduciary position, such as executor, administrator,
trustee, guardian, attorney in fact, or other personal representative, except for the estate, trust, or person of a
member of the judge’s family, and then only if such service will not interfere with the proper performance
of judicial duties.
(B) A judge shall not serve in a fiduciary position if the judge as fiduciary will likely be engaged in
proceedings that would ordinarily come before the judge, or if the estate, trust, or ward becomes involved in
adversary proceedings in the court on which the judge serves, or one under its appellate jurisdiction.
(C) A judge acting in a fiduciary capacity shall be subject to the same restrictions on engaging in financial
activities that apply to a judge personally.
(D) If a person who is serving in a fiduciary position becomes a judge, he or she must comply with this Rule
as soon as reasonably practicable, but in no event later than [one year] after becoming a judge.

Rule 3.9
Service as Arbitrator or Mediator
A judge shall not act as an arbitrator or a mediator or perform other judicial functions apart from the judge’s official
duties unless expressly authorized by law.

Rule 3.10
Practice of Law
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A judge shall not practice law. A judge may act pro se and may, without compensation, give legal advice to and draft
or review documents for a member of the judge’s family, but is prohibited from serving as the family member’s
lawyer in any forum.

Rule 3.11
Financial, Business, or Remunerative Activities
(A) A judge may hold and manage investments of the judge and members of the judge’s family.
(B) A judge shall not serve as an officer, director, manager, general partner, advisor, or employee of any
business entity except that a judge may manage or participate in:
(1) a business closely held by the judge or members of the judge’s family; or
(2) a business entity primarily engaged in investment of the financial resources of the judge or
members of the judge’s family.
(C) A judge shall not engage in financial activities permitted under paragraphs (A) and
(B) if they will:
(1) interfere with the proper performance of judicial duties;
(2) lead to frequent disqualification of the judge;
(3) involve the judge in frequent transactions or continuing business relationships with lawyers or
other persons likely to come before the court on which the judge serves; or
(4) result in violation of other provisions of this Code.

Rule 3.12
Compensation for Extrajudicial Activities
A judge may accept reasonable compensation for extrajudicial activities permitted by this Code or other law unless
such acceptance would appear to a reasonable person to undermine the judge’s independence, integrity, or
impartiality.

Rule 3.13
Acceptance and Reporting of Gifts, Loans, Bequests, Benefits, or Other Things of Value
(A) A judge shall not accept any gifts, loans, bequests, benefits, or other things of value, if acceptance is
prohibited by law or would appear to a reasonable person to undermine the judge’s independence,* integrity, or
impartiality.
(B) Unless otherwise prohibited by law, or by paragraph (A), a judge may accept the following without
publicly reporting such acceptance:
(1) items with little intrinsic value, such as plaques, certificates, trophies, and greeting cards;
(2) gifts, loans, bequests, benefits, or other things of value from friends, relatives, or other persons,
including lawyers, whose appearance or interest in a proceeding pending* or impending* before the
judge would in any event require disqualification of the judge under Rule 2.11;
(3) ordinary social hospitality;
(4) commercial or financial opportunities and benefits, including special pricing and discounts, and
loans from lending institutions in their regular course of business, if the same opportunities and
benefits or loans are made available on the same terms to similarly situated persons who are not
judges;
(5) rewards and prizes given to competitors or participants in random drawings, contests, or other
events that are open to persons who are not judges;
(6) scholarships, fellowships, and similar benefits or awards, if they are available to similarly situated
persons who are not judges, based upon the same terms and criteria;
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(7) books, magazines, journals, audiovisual materials, and other resource materials supplied by
publishers on a complimentary basis for official use; or
(8) gifts, awards, or benefits associated with the business, profession, or other separate activity of a
spouse, a domestic partner,* or other family member of a judge residing in the judge’s household,*
but that incidentally benefit the judge.
(C) Unless otherwise prohibited by law or by paragraph (A), a judge may accept the following items, and
must report such acceptance to the extent required by Rule 3.15:
(1) gifts incident to a public testimonial;
(2) invitations to the judge and the judge’s spouse, domestic partner, or guest to attend without charge:
(a) an event associated with a bar-related function or other activity relating to the law, the legal
system, or the administration of justice; or
(b) an event associated with any of the judge’s educational, religious, charitable, fraternal or
civic activities permitted by this Code, if the same invitation is offered to nonjudges who are
engaged in similar ways in the activity as is the judge; and
(3) gifts, loans, bequests, benefits, or other things of value, if the source is a party or other person,
including a lawyer, who has come or is likely to come before the judge, or whose interests have come
or are likely to come before the judge.

Rule 3.14
Reimbursement of Expenses and Waivers of Fees or Charges
(A) Unless otherwise prohibited by Rules 3.1 and 3.13(A) or other law,* a judge may accept
reimbursement of necessary and reasonable expenses for travel, food, lodging, or other incidental expenses, or a
waiver or partial waiver of fees or charges for registration, tuition, and similar items, from sources other than the
judge’s employing entity, if the expenses or charges are associated with the judge’s participation in extrajudicial
activities permitted by this Code.
(B) Reimbursement of expenses for necessary travel, food, lodging, or other incidental expenses shall be
limited to the actual costs reasonably incurred by the judge and, when appropriate to the occasion, by the
judge’s spouse, domestic partner,* or guest.
(C) A judge who accepts reimbursement of expenses or waivers or partial waivers of fees or charges on
behalf of the judge or the judge’s spouse, domestic partner, or guest shall publicly report such acceptance as
required by Rule 3.15.

Rule 3.15
Reporting Requirements
(A) A judge shall publicly report the amount or value of:
(1) compensation received for extrajudicial activities as permitted by Rule 3.12;
(2) gifts and other things of value as permitted by Rule 3.13(C), unless the value of such items, alone
or in the aggregate with other items received from the same source in the same calendar year, does not
exceed $[insert amount]; and
(3) reimbursement of expenses and waiver of fees or charges permitted by Rule 3.14(A), unless the
amount of reimbursement or waiver, alone or in the aggregate with other reimbursements or waivers
received from the same source in the same calendar year, does not exceed $[insert amount].
(B) When public reporting is required by paragraph (A), a judge shall report the date, place, and nature of the
activity for which the judge received any compensation; the description of any gift, loan, bequest, benefit, or
other thing of value accepted; and the source of reimbursement of expenses or waiver or partial waiver of fees
or charges.
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(C) The public report required by paragraph (A) shall be made at least annually, except that for
reimbursement of expenses and waiver or partial waiver of fees or charges, the report shall be made within
thirty days following the conclusion of the event or program.
(D) Reports made in compliance with this Rule shall be filed as public documents in the office of the clerk of
the court on which the judge serves or other office designated by law,* and, when technically feasible, posted
by the court or office personnel on the court’s website.

CANON 4
A judge or candidate for judicial office shall not engage in political or campaign activity that is inconsistent with the
independence, integrity, or impartiality of the judiciary.

Rule 4.1
Political and Campaign Activities of Judges and Judicial Candidates in General
(A) Except as permitted by law, or by Rules 4.2, 4.3, and 4.4, a judge or a judicial candidate shall not:
(1) act as a leader in, or hold an office in, a political organization;
(2) make speeches on behalf of a political organization;
(3) publicly endorse or oppose a candidate for any public office;
(4) solicit funds for, pay an assessment to, or make a contribution to a political organization or a candidate
for public office;
(5) attend or purchase tickets for dinners or other events sponsored by a political
organization or a candidate for public office;
(6) publicly identify himself or herself as a candidate of a political organization;
(7) seek, accept, or use endorsements from a political organization;
(8) personally solicit or accept campaign contributions other than through a campaign committee authorized
by Rule 4.4;
(9) use or permit the use of campaign contributions for the private benefit of the judge, the candidate, or
others;
(10) use court staff, facilities, or other court resources in a campaign for judicial office;
(11) knowingly, or with reckless disregard for the truth, make any false or misleading statement;
(12) make any statement that would reasonably be expected to affect the outcome or impair the fairness of a
matter pending or impending in any court; or
(13) in connection with cases, controversies, or issues that are likely to come before the court, make pledges,
promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of
judicial office.
(B) A judge or judicial candidate shall take reasonable measures to ensure that other persons do not undertake, on
behalf of the judge or judicial candidate, any activities prohibited under paragraph (A).

Rule 4.2
Political and Campaign Activities of Judicial Candidates in Public Elections
(A) A judicial candidate in a partisan, nonpartisan, or retention public election shall:
(1) act at all times in a manner consistent with the independence, integrity, and impartiality of the
judiciary;
(2) comply with all applicable election, election campaign, and election campaign fund-raising laws and
regulations of this jurisdiction;
(3) review and approve the content of all campaign statements and materials produced by the candidate or his
or her campaign committee, as authorized by Rule 4.4, before their dissemination; and
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(4) take reasonable measures to ensure that other persons do not undertake on behalf of the candidate
activities, other than those described in Rule 4.4, that the candidate is prohibited from doing by Rule 4.1.
(B) A candidate for elective judicial office may, unless prohibited by law, and not earlier than [insert amount of time]
before the first applicable primary election, caucus, or general or retention election:
(1) establish a campaign committee pursuant to the provisions of Rule 4.4;
(2) speak on behalf of his or her candidacy through any medium, including but not limited to advertisements,
websites, or other campaign literature;
(3) publicly endorse or oppose candidates for the same judicial office for which he or she is running;
(4) attend or purchase tickets for dinners or other events sponsored by a political
organization or a candidate for public office;
(5) seek, accept, or use endorsements from any person or organization other than a partisan political
organization; and
(6) contribute to a political organization or candidate for public office, but not more than $[insert amount] to
any one organization or candidate.
(C) A judicial candidate in a partisan public election may, unless prohibited by law, and not earlier than [insert
amount of time] before the first applicable primary election, caucus, or general election:
(1) identify himself or herself as a candidate of a political organization; and
(2) seek, accept, and use endorsements of a political organization.

Rule 4.3
Activities of Candidates for Appointive Judicial Office
A candidate for appointment to judicial office may:
(A) communicate with the appointing or confirming authority, including any selection, screening, or
nominating commission or similar agency; and
(B) seek endorsements for the appointment from any person or
organization other than a partisan political organization.

Rule 4.4
Campaign Committees
(A) A judicial candidate subject to public election may establish a campaign committee to manage and conduct a
campaign for the candidate, subject to the provisions of this Code. The candidate is responsible for ensuring that his
or her campaign committee complies with applicable provisions of this Code and other applicable law.
(B) A judicial candidate subject to public election shall direct his or her campaign committee:
(1) to solicit and accept only such campaign contributions*as are reasonable, in any event not to exceed, in
the aggregate, $[insert amount] from any individual or $[insert amount] from any entity or organization;
(2) not to solicit or accept contributions for a candidate’s current campaign more than [insert amount of time]
before the applicable primary election, caucus, or general or retention election, nor more than [insert number]
days after the last election in which the candidate participated; and
(3) to comply with all applicable statutory requirements for disclosure and divestiture of campaign
contributions, and to file with [name of appropriate regulatory authority] a report stating the name, address,
occupation, and employer of each person who has made campaign contributions to the committee in an aggregate
value exceeding $[insert amount]. The report must be filed within [insert number] days following an election,
or within such other period as is provided by law.

Rule 4.5
Activities of Judges Who Become Candidates for Nonjudicial Office
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(A) Upon becoming a candidate for a nonjudicial elective office, a judge shall resign from judicial office, unless
permitted by law* to continue to hold judicial office.
(B) Upon becoming a candidate for a nonjudicial appointive office, a judge is not required to resign from judicial
office, provided that the judge complies with the other provisions of this Code.=

Rule 1.12: Former Judge, Arbitrator, Mediator or Other Third-Party Neutral

(a) Except as stated in paragraph (d), a lawyer shall not represent anyone in connection with a matter in which the
lawyer participated personally and substantially as a judge or other adjudicative officer or law clerk to such a person
or as an arbitrator, mediator or other third-party neutral, unless all parties to the proceeding give informed consent,
confirmed in writing.
(b) A lawyer shall not negotiate for employment with any person who is involved as a party or as lawyer for a party
in a matter in which the lawyer is participating personally and substantially as a judge or other adjudicative officer or
as an arbitrator, mediator or other third-party neutral. A lawyer serving as a law clerk to a judge or other adjudicative
officer 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 lawyer has notified the judge or other adjudicative officer.
(c) If a lawyer is disqualified by paragraph (a), no lawyer in a firm with which that lawyer is associated may
knowingly undertake or continue representation in the matter unless:
(1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part
of the fee therefrom; and
(2) written notice is promptly given to the parties and any appropriate tribunal to enable them to ascertain
compliance with the provisions of this Rule.
(d) An arbitrator selected as a partisan of a party in a multimember arbitration panel is not prohibited from
subsequently representing that party.

Rule 3.5: Impartiality & Decorum of the Tribunal

A lawyer shall not:
(a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law;
(b) communicate ex parte with such a person during the proceeding unless authorized to do so by law or court
order;
(c) communicate with a juror or prospective juror after discharge of the jury if:
(1) the communication is prohibited by law or court order;
(2) the juror has made known to the lawyer a desire not to communicate; or
(3) the communication involves misrepresentation, coercion, duress or harassment; or
(d) engage in conduct intended to disrupt a tribunal.

Rule 8.3: Reporting Professional Misconduct

(b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a
substantial question as to the judge's fitness for office shall inform the appropriate authority.

Rule 8.4: Misconduct

(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or
other law;

Notes:
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Judges cannot be held liable for tort claims for actions done in their regular course of their job
A judge’s judicial duties must take precedent over her personal responsibilities

Federal judges in Article III courts hold office for life "during good behavior." They can be removed from office only
by impeachment.

In 1980, Congress established a less drastic procedure that allows a panel of federal judges to discipline an Article Ill
judge by censure and other sanctions short of removal from office.

Elected Judges:
In some of the states that use pure popular vote to select judges, the elections are nonpartisan, meaning that the
candidates are not identified with a political party. Other states have partisan elections in which judicial candidates
have opponents, and party affiliation, and the other trappings of ordinary politics.

If a state decides to select judges by contested popular elections, it assumes the risk that its judges will lack
impartiality. Such a state should not be allowed to restrict the speech of judicial candidates in order to protect
impartiality.

Judges, Politics, and Free Speech:

Rule 2.10(B), which prohibits a judge from making a pledge, promise, or commitment that is inconsistent with the
impartial performance of the adjudicative duties of judicial office.

Every judge necessarily brings to the bench a personal and community background from his or her experiences living
in the world. Accordingly, we expect judges to bring their life experiences and common sense to the bench; we
expect judges to have participated in projects and activities within their communities and within the bar, and we
know that the process through which individuals are selected for judgeships is highly politicized. Yet despite this, we
demand that those experiences not impugn on the "absolute neutrality" that we expect from our judges once they
reach the bench. Given the adversarial positions of the parties and of the lawyers retained by those parties, attaining a
fair trial in a fair tribunal lies squarely with the judge. In our judicial system, it is the judge who bears the brunt of the
burden of ensuring that judicial proceedings are fair and impartial.

Recusal of US Supreme Court Justices:

The recusal of federal judges including the Justices of the U.S. Supreme Court—is governed by a federal statute, 28
U.S.C. § 455 (2000). The statute begins with a broad catch-all provision, which says that a federal magistrate, judge,
or justice “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” In
this context, ‘shall’ means ‘must.’ Thus, recusal is mandatory if a reasonable person might have a reasonable doubt
about the impartiality of the magistrate, judge, or justice,

“Extrajudicial source rule,” which requires that the alleged judicial bias must arise from an out-of-court source, and
must not derive from evidence, conduct, or information obtained during the course of judicial proceedings.

Recusal is mandatory, not permissive. Its "self- enforcing," meaning that the judicial officer must take the initiative
and recuse herself, not lie in the weeds waiting to see if a party will move to disqualify her.

The majority opinion in Massey Coal makes clear that due process does not require judges to recuse themselves
whenever a campaign donor appears in a case as either litigant or lawyer.
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The Supreme Court's procedural rules don’t explain how disqualification motions are handled, but the lore is that the
target justice decides it by him or herself- sometimes with, and sometimes without, talking it over with other Justices.
Sometimes, but not often, the target Justice writes a memorandum opinion to explain his or her decision on the
recusal motion.

Cheney v. US The Sierra Club and many citizens suspected that oil industry
District Court lobbyists and executives were meeting with the task force as de
(Page 426) facto members. If that were true, it would defeat the exemption,
thus allowing the public to find out who was formulating the
nation's energy policy. Vice-President Cheney refused to reveal
who was attending the task force meetings, so the Sierra Club
sued him and other task force members. The federal district court
allowed the Sierra Club to conduct discovery, but Vice-President
Cheney filed an interlocutory appeal and requested a writ of
mandamus to prevent discovery. The D.C. Circuit Court of
Appeals dismissed the Cheney appeal and denied the writ of
mandamus. The Vice-President then petitioned the Supreme
Court for certiorari, and on December 15, 2003, the Court granted
the writ. Three weeks later, Justice Scalia went on a duck hunting
trip to Louisiana with Vice-President Cheney. The trip caused a
uproar in the media. Editorial writers were aghast, and political
cartoons showed the two men whispering while hunkered down
together in a duck blind. The Sierra Club moved to disqualify
Justice Scalia.

Justice Scalia wrote such a memorandum opinion in the Cheney

case. The Sierra Club had used the news editorials to argue that
the hunting trip could cause reasonable people to doubt the
Justice’s impartiality.

Justice Scalia cites numerous historical examples of close

personal friendships between Supreme Court justices and
high-ranking officials in the executive branch including William
O. Douglas’s regular attendance at Franklin Roosevelt's poker
parties, and Byron White's well-publicized Colorado ski trip with
Attorney General Robert Kennedy.
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COMMON ATTORNEY PROFESSIONAL CONDUCT
ISSUES & THE APPLICABLE RULES

ATTORNEY ADVERTISING

Rule 7.1: Communications Concerning a Lawyer’s Services

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's
services. A communication is false or misleading if it contains a material misrepresentation of
fact or law, or omits a fact necessary to make the statement considered as a whole not materially
misleading.

Rule 7.2: Communications Concerning a Lawyer’s Services—Specific Rules

(a) A lawyer may communicate information regarding the lawyer’s services through any media.
(b) A lawyer shall not compensate, give or promise anything of value to a person for
recommending the lawyer’s services except that a lawyer may:
(1) pay the reasonable costs of advertisements or communications permitted by this Rule;
(2) pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer
referral service;
(3) pay for a law practice in accordance with Rule 1.17;
(4) refer clients to another lawyer or a nonlawyer professional pursuant to an agreement
not otherwise prohibited under these Rules that provides for the other person to refer
clients or customers to the lawyer, if:
(i) the reciprocal referral agreement is not exclusive; and
(ii) the client is informed of the existence and nature of the agreement; and
(5) give nominal gifts as an expression of appreciation that are neither intended nor
reasonably expected to be a form of compensation for recommending a lawyer’s
services.
(c) A lawyer shall not state or imply that a lawyer is certified as a specialist in a particular field
of law, unless:
(1) the lawyer has been certified as a specialist by an organization that has been approved
by an appropriate authority of the state or the District of Columbia or a U.S. Territory
or that has been accredited by the American Bar Association; and
(2) the name of the certifying organization is clearly identified in the communication.
(d) Any communication made under this Rule must include the name and contact information of
at least one lawyer or law firm responsible for its content.

ALLOCATION OF AUTHORITY BETWEEN ATTORNEY AND CLIENT

Rule 1.2: Scope of the Representation & Allocation of Authority Between Client & Lawyer
(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the
objectives of representation and, as required by Rule 1.4, shall consult with the client as to the
means by which they are to be pursued. A lawyer may take such action on behalf of the client as
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is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision
whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after
consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether
the client will testify.
(b) A lawyer's representation of a client, including representation by appointment, does not
constitute an endorsement of the client's political, economic, social or moral views or activities.
(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the
circumstances and the client gives informed consent.
(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer
knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any
proposed course of conduct with a client and may counsel or assist a client to make a good faith
effort to determine the validity, scope, meaning or application of the law.

BAR ADMISSION

Rule 8.1: Bar Admission & Disciplinary Matters

An applicant for admission to the bar, or a lawyer in connection with a bar admission application
or in connection with a disciplinary matter, shall not:
(a) knowingly make a false statement of material fact; or
(b) fail to disclose a fact necessary to correct a misapprehension known by the person to
have arisen in the matter, or knowingly fail to respond to a lawful demand for
information from an admissions or disciplinary authority, except that this rule does not
require disclosure of information otherwise protected by Rule 1.6.

OBLIGATION FOR CANDOR WITH COURT AND THE DUTY TO CORRECT

Rule 3.3: Candor Toward the Tribunal

(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of
material fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to
the lawyer to be directly adverse to the position of the client and not disclosed by
opposing counsel; or
(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a
witness called by the lawyer, has offered material evidence and the lawyer comes to
know of its falsity, the lawyer shall take reasonable remedial measures, including, if
necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than
the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is
false.
(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person
intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the
proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the
tribunal.
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(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and
apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.
(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the
lawyer that will enable the tribunal to make an informed decision, whether or not the facts are
adverse.

Rule 3.4: Fairness to Opposing Party & Counsel

A lawyer shall not:
(a) unlawfully obstruct another party' s access to evidence or unlawfully alter, destroy or
conceal a document or other material having potential evidentiary value. A lawyer shall
not counsel or assist another person to do any such act;
(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement
to a witness that is prohibited by law;
(c) knowingly disobey an obligation under the rules of a tribunal except for an open
refusal based on an assertion that no valid obligation exists;
(d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably
diligent effort to comply with a legally proper discovery request by an opposing party;
(e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or
that will not be supported by admissible evidence, assert personal knowledge of facts in
issue except when testifying as a witness, or state a personal opinion as to the justness of
a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or
innocence of an accused; or
(f) request a person other than a client to refrain from voluntarily giving relevant
information to another party unless:
(1) the person is a relative or an employee or other agent of a client; and
(2) the lawyer reasonably believes that the person's interests will not be adversely
affected by refraining from giving such information.

Rule 4.1: Truthfulness in Statements to Others

In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; or
(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid
assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule
1.6.

Rule 5.1: Responsibilities of a Partner or Supervisory Lawyer

(a) A partner in a law firm, and a lawyer who individually or together with other lawyers
possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure
that the firm has in effect measures giving reasonable assurance that all lawyers in the firm
conform to the Rules of Professional Conduct.
(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable
efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.
(c) A lawyer shall be responsible for another lawyer's violation of the Rules of Professional
Conduct if:
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(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct
involved; or
(2) the lawyer is a partner or has comparable managerial authority in the law firm in
which the other lawyer practices, or has direct supervisory authority over the other
lawyer, and knows of the conduct at a time when its consequences can be avoided or
mitigated but fails to take reasonable remedial action.

Rule 5.3: Responsibilities Regarding Nonlawyer Assistance

With respect to a nonlawyer employed or retained by or associated with a lawyer:
(a) a partner, and a lawyer who individually or together with other lawyers possesses comparable
managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in
effect measures giving reasonable assurance that the person's conduct is compatible with the
professional obligations of the lawyer;
(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts
to ensure that the person's conduct is compatible with the professional obligations of the lawyer;
and
(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the
Rules of Professional Conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct
involved; or
(2) the lawyer is a partner or has comparable managerial authority in the law firm in
which the person is employed, or has direct supervisory authority over the person, and
knows of the conduct at a time when its consequences can be avoided or mitigated
but fails to take reasonable remedial action.

Rule 8.4: Misconduct

(c) a lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation

Rule 1.1: Competence

A lawyer shall provide competent representation to a client. Competent representation requires
the legal knowledge, skill, thoroughness and preparation reasonably necessary for the
representation.

Rule 1.3: Diligence

A lawyer shall act with reasonable diligence and promptness in representing a client.

Rule 1.4: Communications

(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect to which the
client's informed consent, as defined in Rule 1.0(e), is required by these Rules;
(2) reasonably consult with the client about the means by which the client's objectives are
to be accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and
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(5) consult with the client about any relevant limitation on the lawyer's conduct when the
lawyer knows that the client expects assistance not permitted by the Rules of
Professional Conduct or other law.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to
make informed decisions regarding the representation.

Rule 1.6: Confidentiality of Information

(a) A lawyer shall not reveal information relating to the representation of a client unless the
client gives informed consent, the disclosure is impliedly authorized in order to carry out the
representation or the disclosure is permitted by paragraph (b).
(b) A lawyer may reveal information relating to the representation of a client to the extent the
lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime or fraud that is reasonably certain to
result in substantial injury to the financial interests or property of another and in
furtherance of which the client has used or is using the lawyer's services;
(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of
another that is reasonably certain to result or has resulted from the client's commission of
a crime or fraud in furtherance of which the client has used the lawyer's services;
(4) to secure legal advice about the lawyer's compliance with these Rules;
(5) to establish a claim or defense on behalf of the lawyer in a controversy between the
lawyer and the client, to establish a defense to a criminal charge or civil claim against the
lawyer based upon conduct in which the client was involved, or to respond to
allegations in any proceeding concerning the lawyer's representation of the client;
(6) to comply with other law or a court order; or
(7) to detect and resolve conflicts of interest arising from the lawyer’s change of
employment or from changes in the composition or ownership of a firm, but only if the
revealed information would not compromise the attorney-client privilege or
otherwise prejudice the client.
(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure
of, or unauthorized access to, information relating to the representation of a client.

Rule 1.16: Declining or Terminating Representation

(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation
has commenced, shall withdraw from the representation of a client if:
(1) the representation will result in violation of the rules of professional conduct or other
law;
(2) the lawyer's physical or mental condition materially impairs the lawyer's ability to
represent the client; or
(3) the lawyer is discharged.
(b) A lawyer may reveal information relating to the representation of a client to the exte4nt the
lawyer reasonably believes necessary:
(2) to prevent the client from committing a crime or fraud that is reasonably certain to
result in substantial injury to the financial interests or property of another and in
furtherance of which the client has used or is using the lawyer’s services;
(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of
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another that is reasonably certain to result or has resulted from the client’s commission of
a crime or fraud in furtherance of which the client has used the lawyer’s services

Rule 1.18: Duties to Prospective Client

(a) A person who consults with a lawyer about the possibility of forming a client-lawyer
relationship with respect to a matter is a prospective client.
(b) Even when no client-lawyer relationship ensues, a lawyer who has learned information from
a prospective client shall not use or reveal that information, except as Rule 1.9 would permit with
respect to information of a former client.
(c) A lawyer subject to paragraph (b) shall not represent a client with interests materially
adverse to those of a prospective client in the same or a substantially related matter if the lawyer
received information from the prospective client that could be significantly harmful to that
person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from
representation under this paragraph, no lawyer in a firm with which that lawyer is associated may
knowingly undertake or continue representation in such a matter, except as provided in
paragraph (d).
(d) When the lawyer has received disqualifying information as defined in paragraph (c),
representation is permissible if:
(1) both the affected client and the prospective client have given informed consent,
confirmed in writing, or:
(2) the lawyer who received the information took reasonable measures to avoid
exposure to more disqualifying information than was reasonably necessary to determine
whether to represent the prospective client; and
(i) the disqualified lawyer is timely screened from any participation in the
matter and is apportioned no part of the fee therefrom; and
(ii) written notice is promptly given to the prospective client.

DUTY TO PROTECT AND NOT REVEAL CONFIDENTIAL CLIENT INFORMATION

Rule 1.6: Confidentiality of Information

(a) A lawyer shall not reveal information relating to the representation of a client unless the
client gives informed consent, the disclosure is impliedly authorized in order to carry out the
representation or the disclosure is permitted by paragraph (b).
(b) A lawyer may reveal information relating to the representation of a client to the extent the
lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime or fraud that is reasonably certain to
result in substantial injury to the financial interests or property of another and in
furtherance of which the client has used or is using the lawyer's services;
(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of
another that is reasonably certain to result or has resulted from the client's commission of
a crime or fraud in furtherance of which the client has used the lawyer's services;
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(4) to secure legal advice about the lawyer's compliance with these Rules;
(5) to establish a claim or defense on behalf of the lawyer in a controversy between the
lawyer and the client, to establish a defense to a criminal charge or civil claim against the
lawyer based upon conduct in which the client was involved, or to respond to
allegations in any proceeding concerning the lawyer's representation of the client;
(6) to comply with other law or a court order; or
(7) to detect and resolve conflicts of interest arising from the lawyer’s change of
employment or from changes in the composition or ownership of a firm, but only if the
revealed information would not compromise the attorney-client privilege or otherwise
prejudice the client.
(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure
of, or unauthorized access to, information relating to the representation of a client.

Rule 1.8(b): Current Clients: Specific Rules

(b) A lawyer shall not use information relating to representation of a client to the disadvantage
of the client unless the client gives informed consent, except as permitted or required by these
Rules.

Rule 1.9: Duties to Former Clients

(c) A lawyer who has formerly represented a client in a matter or whose present or former firm
has formerly represented a client in a matter shall not thereafter:
(1) use information relating to the representation to the disadvantage of the former client
except as these Rules would permit or require with respect to a client, or when the
information has become generally known; or
(2) reveal information relating to the representation except as these Rules would permit
or require with respect to a client.

Rule 1.18: Duties to Prospective Client

(b) Even when no client-lawyer relationship ensues, a lawyer who has learned information from
a prospective client shall not use or reveal that information, except as Rule 1.9 would permit with
respect to information of a former client.

CONFLICTS OF INTEREST

Rule 1.11: Special Conflicts of Interest for Former & Current Government Officers &
Employees
(a) Except as law may otherwise expressly permit, a lawyer who has formerly served as a public
officer or employee of the government:
(1) is subject to Rule 1.9(c); and
(2) shall not otherwise represent a client in connection with a matter in which the lawyer
participated personally and substantially as a public officer or employee, unless the
appropriate government agency gives its informed consent, confirmed in writing,
to the representation.
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(b) When a lawyer is disqualified from representation under paragraph (a), no lawyer in a firm
with which that lawyer is associated may knowingly undertake or continue representation in such
a matter unless:
(1) the disqualified lawyer is timely screened from any participation in the matter and is
apportioned no part of the fee therefrom; and
(2) written notice is promptly given to the appropriate government agency to enable it to
ascertain compliance with the provisions of this rule.
(c) Except as law may otherwise expressly permit, a lawyer having information that the lawyer
knows is confidential government information about a person acquired when the lawyer was a
public officer or employee, may not represent a private client whose interests are adverse to that
person in a matter in which the information could be used to the material disadvantage of that
person. As used in this Rule, the term "confidential government information" means information
that has been obtained under governmental authority and which, at the time this Rule is applied,
the government is prohibited by law from disclosing to the public or has a legal privilege not to
disclose and which is not otherwise available to the public. A firm with which that lawyer is
associated may undertake or continue representation in the matter only if the disqualified lawyer
is timely screened from any participation in the matter and is apportioned no part of the fee
therefrom.
(d) Except as law may otherwise expressly permit, a lawyer currently serving as a public officer
or employee:
(1) is subject to Rules 1.7 and 1.9; and
(2) shall not:
(i) participate in a matter in which the lawyer participated personally and
substantially while in private practice or nongovernmental employment, unless
the appropriate government agency gives its informed consent, confirmed in
writing; or
(ii) negotiate for private employment with any person who is involved as a party
or as lawyer for a party in a matter in which the lawyer is participating personally
and substantially, except that a lawyer serving as a law clerk to a
judge, other adjudicative officer or arbitrator may negotiate for private
employment as permitted by Rule 1.12(b) and subject to the conditions stated in
Rule 1.12(b).
(e) As used in this Rule, the term "matter" includes:
(1) any judicial or other proceeding, application, request for a ruling or other
determination, contract, claim, controversy, investigation, charge, accusation, arrest
or other particular matter involving a specific party or parties, and
(2) any other matter covered by the conflict of interest rules of the appropriate
government agency.

Rule 1.9: Duties to Former Clients

(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent
another person in the same or a substantially related matter in which that person's interests are
materially adverse to the interests of the former client unless the former client gives informed
consent, confirmed in writing.
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(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter
in which a firm with which the lawyer formerly was associated had previously represented a
client
(1) whose interests are materially adverse to that person; and
(2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c)
that is material to the matter; unless the former client gives informed consent, confirmed
in writing.
(c) A lawyer who has formerly represented a client in a matter or whose present or former firm
has formerly represented a client in a matter shall not thereafter:
(1) use information relating to the representation to the disadvantage of the former client
except as these Rules would permit or require with respect to a client, or when the
information has become generally known; or
(2) reveal information relating to the representation except as these Rules would permit
or require with respect to a client.

Rule 1.7: Conflict of Interest: Current Clients

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation
involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be
materially limited by the lawyer's responsibilities to another client, a former client or a third
person or by a personal interest of the lawyer.
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a
lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and
diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against
another client represented by the lawyer in the same litigation or other proceeding before
a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.

Rule 1.8: Current Clients: Specific Rules

(a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an
ownership, possessory, security or other pecuniary interest adverse to a client unless:
(1) the transaction and terms on which the lawyer acquires the interest are fair and
reasonable to the client and are fully disclosed and transmitted in writing in a manner that
can be reasonably understood by the client;
(2) the client is advised in writing of the desirability of seeking and is given a reasonable
opportunity to seek the advice of independent legal counsel on the transaction; and
(3) the client gives informed consent, in a writing signed by the client, to the essential
terms of the transaction and the lawyer's role in the transaction, including whether the
lawyer is representing the client in the transaction.
(b) A lawyer shall not use information relating to representation of a client to the disadvantage
of the client unless the client gives informed consent, except as permitted or required by these
Rules.
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(c) A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or
prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer
any substantial gift unless the lawyer or other recipient of the gift is related to the client. For
purposes of this paragraph, related persons include a spouse, child, grandchild, parent,
grandparent or other relative or individual with whom the lawyer or the client maintains a close,
familial relationship.
(d) Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an
agreement giving the lawyer literary or media rights to a portrayal or account based in substantial
part on information relating to the representation.
(e) A lawyer shall not provide financial assistance to a client in connection with pending or
contemplated litigation, except that:
(1) a lawyer may advance court costs and expenses of litigation, the repayment of which
may be contingent on the outcome of the matter;
(2) a lawyer representing an indigent client may pay court costs and expenses of
litigation on behalf of the client; and
(3) a lawyer representing an indigent client pro bono, a lawyer representing an indigent
client pro bono through a nonprofit legal services or public interest organization and a
lawyer representing an indigent client pro bono through a law school clinical or
pro bono program may provide modest gifts to the client for food, rent, transportation,
medicine and other basic living expenses. The lawyer:
(i) may not promise, assure or imply the availability of such gifts prior to
retention or as an inducement to continue the client-lawyer relationship after
retention;
(ii) may not seek or accept reimbursement from the client, a relative of the client
or anyone affiliated with the client; and
(iii) may not publicize or advertise a willingness to provide such gifts to
prospective clients. Financial assistance under this Rule may be provided even if
the representation is eligible for fees under a fee-shifting statute.
(f) A lawyer shall not accept compensation for representing a client from one other than the
client unless:
(1) the client gives informed consent;
(2) there is no interference with the lawyer's independence of professional judgment or
with the client-lawyer relationship; and
(3) information relating to representation of a client is protected as required by Rule 1.6.
(g) A lawyer who represents two or more clients shall not participate in making an aggregate
settlement of the claims of or against the clients, or in a criminal case an aggregated agreement
as to guilty or nolo contendere pleas, unless each client gives informed consent, in a writing
signed by the client. The lawyer's disclosure shall include the existence and nature of all the
claims or pleas involved and of the participation of each person in the settlement.
(h) A lawyer shall not:
(1) make an agreement prospectively limiting the lawyer's liability to a client for
malpractice unless the client is independently represented in making the agreement; or
(2) settle a claim or potential claim for such liability with an unrepresented client or
former client unless that person is advised in writing of the desirability of seeking and is
given a reasonable opportunity to seek the advice of independent legal counsel in
connection therewith.
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(i) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of
litigation the lawyer is conducting for a client, except that the lawyer may:
(1) acquire a lien authorized by law to secure the lawyer's fee or expenses; and
(2) contract with a client for a reasonable contingent fee in a civil case.
(j) A lawyer shall not have sexual relations with a client unless a consensual sexual relationship
existed between them when the client-lawyer relationship commenced.
(k) While lawyers are associated in a firm, a prohibition in the foregoing paragraphs (a) through
(i) that applies to any one of them shall apply to all of them.

Rule 1.10: Imputation of Conflicts of Interest: General Rule

(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when
any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless
(1) the prohibition is based on a personal interest of the disqualified lawyer and does not
present a significant risk of materially limiting the representation of the client by the
remaining lawyers in the firm; or
(2) the prohibition is based upon Rule 1.9(a) or (b) and arises out of the disqualified
lawyer’s association with a prior firm, and
(i) the disqualified lawyer is timely screened from any participation in the matter
and is apportioned no part of the fee therefrom;
(ii) written notice is promptly given to any affected former client to enable the
former client to ascertain compliance with the provisions of this Rule, which shall
include a description of the screening procedures employed; a statement of the
firm's and of the screened lawyer's compliance with these Rules; a statement that
review may be available before a tribunal; and an agreement by the firm to
respond promptly to any written inquiries or objections by the former client about
the screening procedures; and
(iii) certifications of compliance with these Rules and with the screening
procedures are provided to the former client by the screened lawyer and by a
partner of the firm, at reasonable intervals upon the former client's written
request and upon termination of the screening procedures.
(b) When a lawyer has terminated an association with a firm, the firm is not prohibited from
thereafter representing a person with interests materially adverse to those of a client represented
by the formerly associated lawyer and not currently represented by the firm, unless:
(1) the matter is the same or substantially related to that in which the formerly associated
lawyer represented the client; and
(2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c)
that is material to the matter.
(c) A disqualification prescribed by this rule may be waived by the affected client under the
conditions stated in Rule 1.7.
(d) The disqualification of lawyers associated in a firm with former or current government
lawyers is governed by Rule 1.11.

Rule 1.12: Former Judge, Arbitrator, Mediator or Other Third-Party Neutral

(a) Except as stated in paragraph (d), a lawyer shall not represent anyone in connection with a
matter in which the lawyer participated personally and substantially as a judge or other
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adjudicative officer or law clerk to such a person or as an arbitrator, mediator or other third-party
neutral, unless all parties to the proceeding give informed consent, confirmed in writing.
(b) A lawyer shall not negotiate for employment with any person who is involved as a party or as
lawyer for a party in a matter in which the lawyer is participating personally and substantially as
a judge or other adjudicative officer or as an arbitrator, mediator or other third-party neutral. A
lawyer serving as a law clerk to a judge or other adjudicative officer 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 lawyer has notified the judge or other adjudicative
officer.
(c) If a lawyer is disqualified by paragraph (a), no lawyer in a firm with which that lawyer is
associated may knowingly undertake or continue representation in the matter unless:
(1) the disqualified lawyer is timely screened from any participation in the matter and is
apportioned no part of the fee therefrom; and
(2) written notice is promptly given to the parties and any appropriate tribunal to enable
them to ascertain compliance with the provisions of this Rule.
(d) An arbitrator selected as a partisan of a party in a multimember arbitration panel is not
prohibited from subsequently representing that party.

Rule 1.16: Declining or Terminating Representation

(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation
has commenced, shall withdraw from the representation of a client if:
(1) the representation will result in violation of the rules of professional conduct or other
law;
(2) the lawyer's physical or mental condition materially impairs the lawyer's ability to
represent the client; or
(3) the lawyer is discharged.
(b) A lawyer may reveal information relating to the representation of a client to the exte4nt the
lawyer reasonably believes necessary:
(2) to prevent the client from committing a crime or fraud that is reasonably certain to
result in substantial injury to the financial interests or property of another and in
furtherance of which the client has used or is using the lawyer’s services;
(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of
another that is reasonably certain to result or has resulted from the client’s commission of
a crime or fraud in furtherance of which the client has used the lawyer’s services

DEFINITIONS OF TERMS IN THE RULES

Model Rule 1.0: Terminology

(a) "Belief" or "believes" denotes that the person involved actually supposed the fact in question
to be true. A person's belief may be inferred from circumstances.
(b) "Confirmed in writing," when used in reference to the informed consent of a person, denotes
informed consent that is given in writing by the person or a writing that a lawyer promptly
transmits to the person confirming an oral informed consent. See paragraph (e) for the definition
of "informed consent." If it is not feasible to obtain or transmit the writing at the time the person
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gives informed consent, then the lawyer must obtain or transmit it within a reasonable time
thereafter.
(c) "Firm" or "law firm" denotes a lawyer or lawyers in a law partnership, professional
corporation, sole proprietorship or other association authorized to practice law; or lawyers
employed in a legal services organization or the legal department of a corporation or other
organization.
(d) "Fraud" or "fraudulent" denotes conduct that is fraudulent under the substantive or procedural
law of the applicable jurisdiction and has a purpose to deceive.
(e) "Informed consent" denotes the agreement by a person to a proposed course of conduct after
the lawyer has communicated adequate information and explanation about the material risks of
and reasonably available alternatives to the proposed course of conduct.
(f) "Knowingly," "known," or "knows" denotes actual knowledge of the fact in question. A
person's knowledge may be inferred from circumstances.
(g) "Partner" denotes a member of a partnership, a shareholder in a law firm organized as a
professional corporation, or a member of an association authorized to practice law.
(h) "Reasonable" or "reasonably" when used in relation to conduct by a lawyer denotes the
conduct of a reasonably prudent and competent lawyer.
(i) "Reasonable belief" or "reasonably believes" when used in reference to a lawyer denotes that
the lawyer believes the matter in question and that the circumstances are such that the belief is
reasonable.
(j) "Reasonably should know" when used in reference to a lawyer denotes that a lawyer of
reasonable prudence and competence would ascertain the matter in question.
(k) "Screened" denotes the isolation of a lawyer from any participation in a matter through the
timely imposition of procedures within a firm that are reasonably adequate under the
circumstances to protect information that the isolated lawyer is obligated to protect under these
Rules or other law.
(l) "Substantial" when used in reference to degree or extent denotes a material matter of clear
and weighty importance.
(m) "Tribunal" denotes a court, an arbitrator in a binding arbitration proceeding or a legislative
body, administrative agency or other body acting in an adjudicative capacity. A legislative body,
administrative agency or other body acts in an adjudicative capacity when a neutral official, after
the presentation of evidence or legal argument by a party or parties, will render a binding legal
judgment directly affecting a party's interests in a particular matter.
(n) "Writing" or "written" denotes a tangible or electronic record of a communication or
representation, including handwriting, typewriting, printing, photostating, photography, audio or
videorecording, and electronic communications. A "signed" writing includes an electronic sound,
symbol or process attached to or logically associated with a writing and executed or adopted by a
person with the intent to sign the writing.
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CLIENT WITH DIMINISHED CAPACITY
👎
Rule 1.14: Client with Diminished Capacity
(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of
substantial physical, financial or other harm unless action is taken and cannot adequately act in
the client's own interest, the lawyer may take reasonably necessary protective action, including
consulting with individuals or entities that have the ability to take action to protect the client and,
in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.

EX PARTE CONTACT WITH COURT OR JUROR

Rule 3.3: Candor Toward the Tribunal

(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the
lawyer that will enable the tribunal to make an informed decision, whether or not the facts are
adverse.

Rule 3.5: Impartiality & Decorum of the Tribunal

A lawyer shall not:
(a) seek to influence a judge, juror, prospective juror or other official by means prohibited
by law;
(b) communicate ex parte with such a person during the proceeding unless authorized to
do so by law or court order;
(c) communicate with a juror or prospective juror after discharge of the jury if:
(1) the communication is prohibited by law or court order;
(2) the juror has made known to the lawyer a desire not to communicate; or
(3) the communication involves misrepresentation, coercion, duress or
harassment; or
(d) engage in conduct intended to disrupt a tribunal.

EX PARTE CONTACT WITH A REPRESENTED PERSON

Rule 4.2: Communication with Person Represented by Counsel

In representing a client, a lawyer shall not communicate about the subject of the representation
with a person the lawyer knows to be represented by another lawyer in the matter, unless the
lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.

Rule 4.4: Respect for Rights of Third Persons

(a) In representing a client, a lawyer shall not use means that have no substantial purpose other
than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that
violate the legal rights of such a person.

Rule 5.3: Responsibilities Regarding Nonlawyer Assistance

With respect to a nonlawyer employed or retained by or associated with a lawyer:
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(a) a partner, and a lawyer who individually or together with other lawyers possesses comparable
managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in
effect measures giving reasonable assurance that the person's conduct is compatible with the
professional obligations of the lawyer;
(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts
to ensure that the person's conduct is compatible with the professional obligations of the lawyer;
and
(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the
Rules of Professional Conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct
involved; or
(2) the lawyer is a partner or has comparable managerial authority in the law firm in
which the person is employed, or has direct supervisory authority over the person, and
knows of the conduct at a time when its consequences can be avoided or mitigated
but fails to take reasonable remedial action.

ATTORNEY FEES AND CLIENT PROPERTY

Rule 1.5: Fees

(a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an
unreasonable amount for expenses. The factors to be considered in determining the
reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions involved, and
the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular
employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the
services; and
(8) whether the fee is fixed or contingent.
(b) The scope of the representation and the basis or rate of the fee and expenses for which the
client will be responsible shall be communicated to the client, preferably in writing, before or
within a reasonable time after commencing the representation, except when the lawyer will
charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of
the fee or expenses shall also be communicated to the client.
(c) A fee may be contingent on the outcome of the matter for which the service is rendered,
except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A
contingent fee agreement shall be in a writing signed by the client and shall state the method by
which the fee is to be determined, including the percentage or percentages that shall accrue to the
lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted
from the recovery; and whether such expenses are to be deducted before or after the contingent
fee is calculated. The agreement must clearly notify the client of any expenses for which the
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client will be liable whether or not the client is the prevailing party. Upon conclusion of a
contingent fee matter, the lawyer shall provide the client with a written statement stating the
outcome of the matter and, if there is a recovery, showing the remittance to the client and the
method of its determination.
(d) A lawyer shall not enter into an arrangement for, charge, or collect:
(1) any fee in a domestic relations matter, the payment or amount of which is contingent
upon the securing of a divorce or upon the amount of alimony or support, or property
settlement in lieu thereof; or
(2) a contingent fee for representing a defendant in a criminal case.
(e) A division of a fee between lawyers who are not in the same firm may be made only if:
(1) the division is in proportion to the services performed by each lawyer or each lawyer
assumes joint responsibility for the representation;
(2) the client agrees to the arrangement, including the share each lawyer will receive, and
the agreement is confirmed in writing; and
(3) the total fee is reasonable.

Rule 1.15: Safekeeping Property

(a) A lawyer shall hold property of clients or third persons that is in a lawyer's possession in
connection with a representation separate from the lawyer's own property. Funds shall be kept in
a separate account maintained in the state where the lawyer's office is situated, or elsewhere with
the consent of the client or third person. Other property shall be identified as such and
appropriately safeguarded. Complete records of such account funds and other property shall be
kept by the lawyer and shall be preserved for a period of [five years] after termination of the
representation.
(b) A lawyer may deposit the lawyer's own funds in a client trust account for the sole purpose of
paying bank service charges on that account, but only in an amount necessary for that purpose.
(c) A lawyer shall deposit into a client trust account legal fees and expenses that have been paid
in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred.
(d) Upon receiving funds or other property in which a client or third person has an interest, a
lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise
permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or
third person any funds or other property that the client or third person is entitled to receive and,
upon request by the client or third person, shall promptly render a full accounting regarding such
property.
(e) When in the course of representation, a lawyer is in possession of property in which two or
more persons (one of whom may be the lawyer) claim interests, the property shall be kept
separate by the lawyer until the dispute is resolved. The lawyer shall promptly distribute all
portions of the property as to which the interests are not in dispute.
Relevant Notes for Rule 1.15:
A lawyer may lend the client money to cover court costs and litigation expenses.
This rule requires attorneys to keep clients’ money and property separate from their own, to
maintain adequate records, to notify clients promptly when money or property is received on
their behalf, and to deliver promptly any money or property that belongs to clients.
When a lawyer receives a large sum to be held for a long period, the lawyer should make a
specific agreement with the client about how the sum is to be handled. Absent is specific
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agreement, the lawyer should put the some into a separate, interest-bearing trust account at a
bank. The interest, of course, belongs to the client, not to the lawyer.
Advances for expenses is still considered the client’s property until the attorney renders those
services.

FRIVOLOUS CONDUCT
Rule 3.1: Meritorious Claims & Contentions
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless
there is a basis in law and fact for doing so that is not frivolous, which includes a good faith
argument for an extension, modification or reversal of existing law. A lawyer for the defendant in
a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may
nevertheless so defend the proceeding as to require that every element of the case be established.

Rule 3.4: Fairness to Opposing Party & Counsel

(d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent
effort to comply with a legally proper discovery request by an opposing party;

Rule 3.8: Special Responsibilities of a Prosecutor

The prosecutor in a criminal case shall:
(a) refrain from prosecuting a charge that the prosecutor knows is not supported by
probable cause;

OBLIGATION FOR HONESTY AND THE DUTY TO CORRECT

Rule 3.3: Candor Toward the Tribunal

(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of
material fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to
the lawyer to be directly adverse to the position of the client and not disclosed by
opposing counsel; or
(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a
witness called by the lawyer, has offered material evidence and the lawyer comes to
know of its falsity, the lawyer shall take reasonable remedial measures, including, if
necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than
the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is
false.
(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person
intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the
proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the
tribunal.
(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and
apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.
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(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the
lawyer that will enable the tribunal to make an informed decision, whether or not the facts are
adverse.

Rule 3.4: Fairness to Opposing Party & Counsel

A lawyer shall not:
(a) unlawfully obstruct another party' s access to evidence or unlawfully alter, destroy or
conceal a document or other material having potential evidentiary value. A lawyer shall
not counsel or assist another person to do any such act;
(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement
to a witness that is prohibited by law;
(c) knowingly disobey an obligation under the rules of a tribunal except for an open
refusal based on an assertion that no valid obligation exists;
(d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably
diligent effort to comply with a legally proper discovery request by an opposing party;
(e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or
that will not be supported by admissible evidence, assert personal knowledge of facts in
issue except when testifying as a witness, or state a personal opinion as to the
justness of a cause, the credibility of a witness, the culpability of a civil litigant or the
guilt or innocence of an accused; or
(f) request a person other than a client to refrain from voluntarily giving relevant
information to another party unless:
(1) the person is a relative or an employee or other agent of a client; and
(2) the lawyer reasonably believes that the person's interests will not be adversely
affected by refraining from giving such information.

Rule 4.1: Truthfulness in Statements to Others

In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; or
(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid
assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule
1.6.

Rule 5.1: Responsibilities of a Partner or Supervisory Lawyer

(a) A partner in a law firm, and a lawyer who individually or together with other lawyers
possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure
that the firm has in effect measures giving reasonable assurance that all lawyers in the firm
conform to the Rules of Professional Conduct.
(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable
efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.
(c) A lawyer shall be responsible for another lawyer's violation of the Rules of Professional
Conduct if:
(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct
involved; or
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(2) the lawyer is a partner or has comparable managerial authority in the law firm in
which the other lawyer practices, or has direct supervisory authority over the other
lawyer, and knows of the conduct at a time when its consequences can be avoided or
mitigated but fails to take reasonable remedial action.

Rule 5.3: Responsibilities Regarding Nonlawyer Assistance

With respect to a nonlawyer employed or retained by or associated with a lawyer:
(a) a partner, and a lawyer who individually or together with other lawyers possesses comparable
managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in
effect measures giving reasonable assurance that the person's conduct is compatible with the
professional obligations of the lawyer;
(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts
to ensure that the person's conduct is compatible with the professional obligations of the lawyer;
and
(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the
Rules of Professional Conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct
involved; or
(2) the lawyer is a partner or has comparable managerial authority in the law firm in
which the person is employed, or has direct supervisory authority over the person, and
knows of the conduct at a time when its consequences can be avoided or mitigated
but fails to take reasonable remedial action.

Rule 8.4: Misconduct

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

INADVERTENT RECEIPT OF POTENTIALLY PRIVILEGED OR LEGALLY

PROTECTED INFORMATION

Rule 4.4: Respect for Rights of Third Persons

(a) In representing a client, a lawyer shall not use means that have no substantial purpose other
than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that
violate the legal rights of such a person.
(b) A lawyer who receives a document or electronically stored information relating to the
representation of the lawyer's client and knows or reasonably should know that the document or
electronically stored information was inadvertently sent shall promptly notify the sender.

ISSUES INVOLVING A JUDGE

Rule 3.5: Impartiality & Decorum of the Tribunal

A lawyer shall not:
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(a) seek to influence a judge, juror, prospective juror or other official by means prohibited
by law;
(b) communicate ex parte with such a person during the proceeding unless authorized to
do so by law or court order;
(c) communicate with a juror or prospective juror after discharge of the jury if:
(1) the communication is prohibited by law or court order;
(2) the juror has made known to the lawyer a desire not to communicate; or
(3) the communication involves misrepresentation, coercion, duress or
harassment; or
(d) engage in conduct intended to disrupt a tribunal.

Rule 8.2: Judicial and Legal Officials

(a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless
disregard as to its truth or falsity concerning the qualifications or integrity of a judge,
adjudicatory officer or public legal officer, or of a candidate for election or appointment
to judicial or legal office.
(b) A lawyer who is a candidate for judicial office shall comply with the applicable
provisions of the Code of Judicial Conduct.

Rule 8.3: Reporting Professional Misconduct

(b) A lawyer who knows that a judge has committed a violation of applicable rules of
judicial conduct that raises a substantial question as to the judge's fitness for office shall
inform the appropriate authority.

Rule 8.4: Misconduct

(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of
judicial conduct or other law; or

RESPONSIBILITIES OF MANAGERIAL AND SUPERVISORY ATTORNEYS

Rule 5.1: Responsibilities of a Partner or Supervisory Lawyer

(a) A partner in a law firm, and a lawyer who individually or together with other lawyers
possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure
that the firm has in effect measures giving reasonable assurance that all lawyers in the firm
conform to the Rules of Professional Conduct.
(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable
efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.
(c) A lawyer shall be responsible for another lawyer's violation of the Rules of Professional
Conduct if:
(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct
involved; or
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(2) the lawyer is a partner or has comparable managerial authority in the law firm in
which the other lawyer practices, or has direct supervisory authority over the other
lawyer, and knows of the conduct at a time when its consequences can be avoided or
mitigated but fails to take reasonable remedial action.

MULTIJURISDICTIONAL PRACTICE OF LAW

Rule 5.5: Unauthorized Practice of Law; Multijurisdictional Practice of Law

(a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal
profession in that jurisdiction, or assist another in doing so.
(b) A lawyer who is not admitted to practice in this jurisdiction shall not:
(1) except as authorized by these Rules or other law, establish an office or other
systematic and continuous presence in this jurisdiction for the practice of law; or
(2) hold out to the public or otherwise represent that the lawyer is admitted to practice
law in this jurisdiction.
(c) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from
practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction
that:
(1) are undertaken in association with a lawyer who is admitted to practice in this
jurisdiction and who actively participates in the matter;
(2) are in or reasonably related to a pending or potential proceeding before a tribunal in
this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized
by law or order to appear in such proceeding or reasonably expects to be so authorized;
(3) are in or reasonably related to a pending or potential arbitration, mediation, or other
alternative resolution proceeding in this or another jurisdiction, if the services arise out
of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is
admitted to practice and are not services for which the forum requires pro hac vice
admission; or
(4) are not within paragraphs (c) (2) or (c)(3) and arise out of or are reasonably related to
the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice.
(d) A lawyer admitted in another United States jurisdiction or in a foreign jurisdiction, and not
disbarred or suspended from practice in any jurisdiction or the equivalent thereof, or a person
otherwise lawfully practicing as an in-house counsel under the laws of a foreign jurisdiction,
may provide legal services through an office or other systematic and continuous presence in this
jurisdiction that:
(1) are provided to the lawyer's employer or its organizational affiliates, are not services
for which the forum requires pro hac vice admission; and when performed by a foreign
lawyer and requires advice on the law of this or another U.S. jurisdiction or of the United
States, such advice shall be based upon the advice of a lawyer who is duly licensed and
authorized by the jurisdiction to provide such advice; or
(2) are services that the lawyer is authorized by federal or other law or rule to provide in
this jurisdiction.
(e) For purposes of paragraph (d):
(1) the foreign lawyer must be a member in good standing of a recognized legal
profession in a foreign jurisdiction, the members of which are admitted to practice as
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lawyers or counselors at law or the equivalent, and subject to effective regulation and
discipline by a duly constituted professional body or a public authority; or,
(2) the person otherwise lawfully practicing as an in-house counsel under the laws of a
foreign jurisdiction must be authorized to practice under this Rule by, in the exercise of
its discretion, [the highest court of this jurisdiction].

NONLAWYER ISSUES

Rule 1.6: Confidentiality of Information

(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure
of, or unauthorized access to, information relating to the representation of a client.

Rule 4.2: Communication with Person Represented by Counsel

In representing a client, a lawyer shall not communicate about the subject of the representation
with a person the lawyer knows to be represented by another lawyer in the matter, unless the
lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.

Rule 4.4: Respect for Rights of Third Persons

(a) In representing a client, a lawyer shall not use means that have no substantial purpose other
than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that
violate the legal rights of such a person.

Rule 5.3: Responsibilities Regarding Nonlawyer Assistance

With respect to a nonlawyer employed or retained by or associated with a lawyer:
(a) a partner, and a lawyer who individually or together with other lawyers possesses comparable
managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in
effect measures giving reasonable assurance that the person's conduct is compatible with the
professional obligations of the lawyer;
(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts
to ensure that the person's conduct is compatible with the professional obligations of the lawyer;
and
(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the
Rules of Professional Conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct
involved; or
(2) the lawyer is a partner or has comparable managerial authority in the law firm in
which the person is employed, or has direct supervisory authority over the person, and
knows of the conduct at a time when its consequences can be avoided or mitigated but
fails to take reasonable remedial action.

Rule 5.4: Professional Independence of a Lawyer

(a) A lawyer or law firm shall not share legal fees with a nonlawyer, except that:
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(1) an agreement by a lawyer with the lawyer's firm, partner, or associate may provide for
the payment of money, over a reasonable period of time after the lawyer's death, to the
lawyer's estate or to one or more specified persons;
(2) a lawyer who purchases the practice of a deceased, disabled, or disappeared lawyer
may, pursuant to the provisions of Rule 1.17, pay to the estate or other representative of
that lawyer the agreed-upon purchase price;
(3) a lawyer or law firm may include nonlawyer employees in a compensation or
retirement plan, even though the plan is based in whole or in part on a profit-sharing
arrangement; and
(4) a lawyer may share court-awarded legal fees with a nonprofit organization that
employed, retained or recommended employment of the lawyer in the matter.
(b) A lawyer shall not form a partnership with a nonlawyer if any of the activities of the
partnership consist of the practice of law.
(c) A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render
legal services for another to direct or regulate the lawyer's professional judgment in rendering
such legal services.
(d) A lawyer shall not practice with or in the form of a professional corporation or association
authorized to practice law for a profit, if:
(1) a nonlawyer owns any interest therein, except that a fiduciary representative of the
estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time
during administration;
(2) a nonlawyer is a corporate director or officer thereof or occupies the position of
similar responsibility in any form of association other than a corporation ; or
(3) a nonlawyer has the right to direct or control the professional judgment of a lawyer.

ORGANIZATION AS CLIENT

Rule 1.13: Organization as Client

(a) A lawyer employed or retained by an organization represents the organization acting through
its duly authorized constituents.
(b) If a lawyer for an organization knows that an officer, employee or other person associated
with the organization is engaged in action, intends to act or refuses to act in a matter related to
the representation that is a violation of a legal obligation to the organization, or a violation of law
that reasonably might be imputed to the organization, and that is likely to result in substantial
injury to the organization, then the lawyer shall proceed as is reasonably necessary in the best
interest of the organization. Unless the lawyer reasonably believes that it is not necessary in the
best interest of the organization to do so, the lawyer shall refer the matter to higher authority in
the organization, including, if warranted by the circumstances to the highest authority that can
act on behalf of the organization as determined by applicable law.
(c) Except as provided in paragraph (d), if
(1) despite the lawyer's efforts in accordance with paragraph (b) the highest authority that
can act on behalf of the organization insists upon or fails to address in a timely and
appropriate manner an action, or a refusal to act, that is clearly a violation of law, and
(2) the lawyer reasonably believes that the violation is reasonably certain to result in
substantial injury to the organization, then the lawyer may reveal information
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relating to the representation whether or not Rule 1.6
👎 permits such disclosure, but
only if and to the extent the lawyer reasonably believes necessary to prevent substantial
injury to the organization.
(d) Paragraph (c) shall not apply with respect to information relating to a lawyer's representation
of an organization to investigate an alleged violation of law, or to defend the organization or an
officer, employee or other constituent associated with the organization against a claim arising out
of an alleged violation of law.
(e) A lawyer who reasonably believes that he or she has been discharged because of the lawyer's
actions taken pursuant to paragraphs (b) or (c), or who withdraws under circumstances that
require or permit the lawyer to take action under either of those paragraphs, shall proceed as the
lawyer reasonably believes necessary to assure that the organization's highest authority is
informed of the lawyer's discharge or withdrawal.
(f) In dealing with an organization's directors, officers, employees, members, shareholders or
other constituents, a lawyer shall explain the identity of the client when the lawyer knows or
reasonably should know that the organization's interests are adverse to those of the constituents
with whom the lawyer is dealing.
(g) A lawyer representing an organization may also represent any of its directors, officers,
employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7. If
the organization's consent to the dual representation is required by Rule 1.7, the consent shall be
given by an appropriate official of the organization other than the individual who is to be
represented, or by the shareholders.

ATTORNEY-CLIENT PRIVILEGE

Rule 1.6: Confidentiality of Information

(a) A lawyer shall not reveal information relating to the representation of a client unless the
client gives informed consent, the disclosure is impliedly authorized in order to carry out the
representation or the disclosure is permitted by paragraph (b).
(b) A lawyer may reveal information relating to the representation of a client to the extent the
lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime or fraud that is reasonably certain to
result in substantial injury to the financial interests or property of another and in
furtherance of which the client has used or is using the lawyer's services;
(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of
another that is reasonably certain to result or has resulted from the client's commission of
a crime or fraud in furtherance of which the client has used the lawyer's services;
(4) to secure legal advice about the lawyer's compliance with these Rules;
(5) to establish a claim or defense on behalf of the lawyer in a controversy between the
lawyer and the client, to establish a defense to a criminal charge or civil claim against the
lawyer based upon conduct in which the client was involved, or to respond to allegations
in any proceeding concerning the lawyer's representation of the client;
(6) to comply with other law or a court order; or
(7) to detect and resolve conflicts of interest arising from the lawyer’s change of
employment or from changes in the composition or ownership of a firm, but only if the
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revealed information would not compromise the attorney-client privilege or otherwise
prejudice the client.
(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure
of, or unauthorized access to, information relating to the representation of a client.

OBTAINING POTENTIALLY PRIVILEGED OR LEGALLY PROTECTED

INFORMATION

Rule 4.4: Respect for Rights of Third Persons

(a) In representing a client, a lawyer shall not use means that have no substantial purpose other
than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that
violate the legal rights of such a person.
(b) A lawyer who receives a document or electronically stored information relating to the
representation of the lawyer's client and knows or reasonably should know that the document or
electronically stored information was inadvertently sent shall promptly notify the sender.

CLIENT PROPERTY

Rule 1.15: Safekeeping Property

(a) A lawyer shall hold property of clients or third persons that is in a lawyer's possession in
connection with a representation separate from the lawyer's own property. Funds shall be kept in
a separate account maintained in the state where the lawyer's office is situated, or elsewhere with
the consent of the client or third person. Other property shall be identified as such and
appropriately safeguarded. Complete records of such account funds and other property shall be
kept by the lawyer and shall be preserved for a period of [five years] after termination of the
representation.
(b) A lawyer may deposit the lawyer's own funds in a client trust account for the sole purpose of
paying bank service charges on that account, but only in an amount necessary for that purpose.
(c) A lawyer shall deposit into a client trust account legal fees and expenses that have been paid
in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred.
(d) Upon receiving funds or other property in which a client or third person has an interest, a
lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise
permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or
third person any funds or other property that the client or third person is entitled to receive and,
upon request by the client or third person, shall promptly render a full accounting regarding such
property.
(e) When in the course of representation, a lawyer is in possession of property in which two or
more persons (one of whom may be the lawyer) claim interests, the property shall be kept
separate by the lawyer until the dispute is resolved. The lawyer shall promptly distribute all
portions of the property as to which the interests are not in dispute.

Relevant Notes for Rule 1.15:

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A lawyer may lend the client money to cover court costs and litigation expenses.
This rule requires attorneys to keep clients’ money and property separate from their own, to
maintain adequate records, to notify clients promptly when money or property is received on
their behalf, and to deliver promptly any money or property that belongs to clients.
When a lawyer receives a large sum to be held for a long period, the lawyer should make a
specific agreement with the client about how the sum is to be handled. Absent is specific
agreement, the lawyer should put the some into a separate, interest-bearing trust account at a
bank. The interest, of course, belongs to the client, not to the lawyer.
Advances for expenses is still considered the client’s property until the attorney renders those
services.

CRIMINAL PROSECUTORS

Rule 3.8: Special Responsibilities of a Prosecutor

The prosecutor in a criminal case shall:
(a) refrain from prosecuting a charge that the prosecutor knows is not supported by
probable cause;
(b) make reasonable efforts to assure that the accused has been advised of the right to,
and the procedure for obtaining, counsel and has been given reasonable opportunity to
obtain counsel;
(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights,
such as the right to a preliminary hearing;
(d) make timely disclosure to the defense of all evidence or information known to the
prosecutor that tends to negate the guilt of the accused or mitigates the offense, and,
in connection with sentencing, disclose to the defense and to the tribunal all
unprivileged mitigating information known to the prosecutor, except when the prosecutor
is relieved of this responsibility by a protective order of the tribunal;
(e) not subpoena a lawyer in a grand jury or other criminal proceeding to present
evidence about a past or present client unless the prosecutor reasonably believes:
(1) the information sought is not protected from disclosure by any applicable
privilege;
(2) the evidence sought is essential to the successful completion of an ongoing
investigation or prosecution; and
(3) there is no other feasible alternative to obtain the information;
(f) except for statements that are necessary to inform the public of the nature and extent
of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain
from making extrajudicial comments that have a substantial likelihood of heightening
public condemnation of the accused and exercise reasonable care to prevent investigators,
law enforcement personnel, employees or other persons assisting or associated with the
prosecutor in a criminal case from making an extrajudicial statement that the prosecutor
would be prohibited from making under Rule 3.6 or this Rule.
▪ Note: Imposes an additional responsibility on criminal prosecutors to refrain
from making extrajudicial comments that have a substantial likelihood of
heightening public condemnation of the accused
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(g) When a prosecutor knows of new, credible and material evidence creating a
reasonable likelihood that a convicted defendant did not commit an offense of which
the defendant was convicted, the prosecutor shall:
(1) promptly disclose that evidence to an appropriate court or authority, and
(2) if the conviction was obtained in the prosecutor’s jurisdiction,
(i) promptly disclose that evidence to the defendant unless a court
authorizes delay, and
(ii) undertake further investigation, or make reasonable efforts to cause an
investigation, to determine whether the defendant was convicted of an
offense that the defendant did not commit.
(h) When a prosecutor knows of clear and convincing evidence establishing that a
defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant
did not commit, the prosecutor shall seek to remedy the conviction.

PUBLIC SERVICE

Rule 6.1: Voluntary Pro Bono Publico Service

Every lawyer has a professional responsibility to provide legal services to those unable to pay. A
lawyer should aspire to render at least (50) hours of pro bono publico legal services per year. In
fulfilling this responsibility, the lawyer should:
(a) provide a substantial majority of the (50) hours of legal services without fee or expectation of
fee to:
(1) persons of limited means or
(2) charitable, religious, civic, community, governmental and educational organizations in
matters that are designed primarily to address the needs of persons of limited means; and
(b) provide any additional services through:
(1) delivery of legal services at no fee or substantially reduced fee to individuals, groups
or organizations seeking to secure or protect civil rights, civil liberties or public rights, or
charitable, religious, civic, community, governmental and educational organizations in
matters in furtherance of their organizational purposes, where the payment of standard
legal fees would significantly deplete the organization's economic resources or would
be otherwise inappropriate;
(2) delivery of legal services at a substantially reduced fee to persons of limited means; or
(3) participation in activities for improving the law, the legal system or the legal
profession.
In addition, a lawyer should voluntarily contribute financial support to organizations that provide
legal services to persons of limited means.

Rule 6.2: Accepting Appointments

A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good
cause, such as:
(a) representing the client is likely to result in violation of the Rules of Professional
Conduct or other law;
(b) representing the client is likely to result in an unreasonable financial burden on the
lawyer; or
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(c) the client or the cause is so repugnant to the lawyer as to be likely to impair the
client-lawyer relationship or the lawyer's ability to represent the client.

Rule 6.3: Membership in Legal Services Organization

A lawyer may serve as a director, officer or member of a legal services organization, apart from
the law firm in which the lawyer practices, notwithstanding that the organization serves persons
having interests adverse to a client of the lawyer. The lawyer shall not knowingly participate in a
decision or action of the organization:
(a) if participating in the decision or action would be incompatible with the lawyer's obligations
to a client under Rule 1.7; or
(b) where the decision or action could have a material adverse effect on the representation of a
client of the organization whose interests are adverse to a client of the lawyer.

Rule 6.4: Law Reform Activities Affecting Client Interests

A lawyer may serve as a director, officer or member of an organization involved in reform of the
law or its administration notwithstanding that the reform may affect the interests of a client of the
lawyer. When the lawyer knows that the interests of a client may be materially benefitted by a
decision in which the lawyer participates, the lawyer shall disclose that fact but need not identify
the client.

Rule 6.5: Nonprofit & Court-Annexed Limited Legal Services Programs

(a) A lawyer who, under the auspices of a program sponsored by a nonprofit organization or
court, provides short-term limited legal services to a client without expectation by either the
lawyer or the client that the lawyer will provide continuing representation in the matter:
(1) is subject to Rules 1.7 and 1.9(a) only if the lawyer knows that the representation of the client
involves a conflict of interest; and
(2) is subject to Rule 1.10 only if the lawyer knows that another lawyer associated with the
lawyer in a law firm is disqualified by Rule 1.7 or 1.9(a) with respect to the matter.
(b) Except as provided in paragraph (a)(2), Rule 1.10 is inapplicable to a representation governed
by this Rule.

DUTY TO REPORT ATTORNEY OR JUDICIAL MISCONDUCT

Rule 8.3: Reporting Professional Misconduct

(a) A lawyer who knows that another lawyer has committed a violation of the Rules of
Professional Conduct that raises a substantial question as to that lawyer's honesty,
trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate
professional authority.
(b) A lawyer who knows that a judge has committed a violation of applicable rules of
judicial conduct that raises a substantial question as to the judge's fitness for office shall
inform the appropriate authority.
(c) This Rule does not require disclosure of information otherwise protected by Rule 1.6
or information gained by a lawyer or judge while participating in an approved lawyers
assistance program.
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RESTRICTIONS ON PRACTICE

Rule 5.6: Restrictions on Rights to Practice

A lawyer shall not participate in offering or making:
(a) a partnership, shareholders, operating, employment, or other similar type of agreement that
restricts the right of a lawyer to practice after termination of the relationship, except an
agreement concerning benefits upon retirement; or
(b) an agreement in which a restriction on the lawyer's right to practice is part of the settlement
of a client controversy.

Rule 5.7: Responsibilities Regarding Law-related Services

(a) A lawyer shall be subject to the Rules of Professional Conduct with respect to the provision
of law-related services, as defined in paragraph (b), if the law-related services are provided:
(1) by the lawyer in circumstances that are not distinct from the lawyer's provision of
legal services to clients; or
(2) in other circumstances by an entity controlled by the lawyer individually or with
others if the lawyer fails to take reasonable measures to assure that a person obtaining the
law-related services knows that the services are not legal services and that the protections
of the client-lawyer relationship do not exist.
(b) The term "law-related services" denotes services that might reasonably be performed in
conjunction with and in substance are related to the provision of legal services, and that are not
prohibited as unauthorized practice of law when provided by a nonlawyer.

RUDE, OBNOXIOUS AND/OR IMPROPER ATTORNEY BEHAVIOR

Rule 3.4: Fairness to Opposing Party & Counsel

A lawyer shall not:
(a) unlawfully obstruct another party' s access to evidence or unlawfully alter, destroy or
conceal a document or other material having potential evidentiary value. A lawyer shall
not counsel or assist another person to do any such act;
(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement
to a witness that is prohibited by law;
(c) knowingly disobey an obligation under the rules of a tribunal except for an open
refusal based on an assertion that no valid obligation exists;
(d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably
diligent effort to comply with a legally proper discovery request by an opposing party;
(e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or
that will not be supported by admissible evidence, assert personal knowledge of facts in
issue except when testifying as a witness, or state a personal opinion as to the justness of
a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or
innocence of an accused; or
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(f) request a person other than a client to refrain from voluntarily giving relevant
information to another party unless:
(1) the person is a relative or an employee or other agent of a client; and
(2) the lawyer reasonably believes that the person's interests will not be adversely
affected by refraining from giving such information.

Rule 4.4: Respect for Rights of Third Persons

(a) In representing a client, a lawyer shall not use means that have no substantial purpose other
than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that
violate the legal rights of such a person.

Rule 8.4: Misconduct

It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce
another to do so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or
fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
(e) state or imply an ability to influence improperly a government agency or official or to achieve
results by means that violate the Rules of Professional Conduct or other law;
(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of
judicial conduct or other law; or
(g) engage in conduct that the lawyer knows or reasonably should know is harassment or
discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual
orientation, gender identity, marital status or socioeconomic status in conduct related to the
practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or
withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude
legitimate advice or advocacy consistent with these Rules.

DETERMINING WHICH RULES OF PROFESSIONAL CONDUCT APPLY

Rule 8.5: Disciplinary Authority; Choice of Law

(a) Disciplinary Authority. A lawyer admitted to practice in this jurisdiction is subject to the
disciplinary authority of this jurisdiction, regardless of where the lawyer's conduct occurs. A
lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this
jurisdiction if the lawyer provides or offers to provide any legal services in this jurisdiction. A
lawyer may be subject to the disciplinary authority of both this jurisdiction and another
jurisdiction for the same conduct.
(b) Choice of Law. In any exercise of the disciplinary authority of this jurisdiction, the rules of
professional conduct to be applied shall be as follows:
(1) for conduct in connection with a matter pending before a tribunal, the rules of the
jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise;
and
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(2) for any other conduct, the rules of the jurisdiction in which the lawyer’s conduct
occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the
rules of that jurisdiction shall be applied to the conduct. A lawyer shall not be subject to
discipline if the lawyer’s conduct conforms to the rules of a jurisdiction in which the
lawyer reasonably believes the predominant effect of the lawyer’s conduct will occur.

SALE OF LAW PRACTICE

Rule 1.17: Sale of Law Practice

A lawyer or a law firm may sell or purchase a law practice, or an area of law practice, including
good will, if the following conditions are satisfied:
(a) The seller ceases to engage in the private practice of law, or in the area of practice that has
been sold, [in the geographic area] [in the jurisdiction] (a jurisdiction may elect either version) in
which the practice has been conducted;
(b) The entire practice, or the entire area of practice, is sold to one or more lawyers or law firms;
(c) The seller gives written notice to each of the seller's clients regarding:
(1) the proposed sale;
(2) the client's right to retain other counsel or to take possession of the file; and
(3) the fact that the client's consent to the transfer of the client's files will be presumed if
the client does not take any action or does not otherwise object within ninety (90) days of
receipt of the notice.
If a client cannot be given notice, the representation of that client may be transferred to
the purchaser only upon entry of an order so authorizing by a court having
jurisdiction. The seller may disclose to the court in camera information relating to the
representation only to the extent necessary to obtain an order authorizing the transfer of a
file.
(d) The fees charged clients shall not be increased by reason of the sale.

SOLICITATION OF CLIENTS

Rule 7.3: Solicitation of Clients

(a) “Solicitation” or “solicit” denotes a communication initiated by or on behalf of a lawyer or
law firm that is directed to a specific person the lawyer knows or reasonably should know needs
legal services in a particular matter and that offers to provide, or reasonably can be understood as
offering to provide, legal services for that matter.
(b) A lawyer shall not solicit professional employment by live person-to-person contact when a
significant motive for the lawyer’s doing so is the lawyer’s or law firm’s pecuniary gain, unless
the contact is with a:
(1) lawyer;
(2) person who has a family, close personal, or prior business or professional relationship
with the lawyer or law firm; or
(3) person who routinely uses for business purposes the type of legal services offered by
the lawyer.
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(c) A lawyer shall not solicit professional employment even when not otherwise prohibited by
paragraph (b), if:
(1) the target of the solicitation has made known to the lawyer a desire not to be solicited
by the lawyer; or
(2) the solicitation involves coercion, duress or harassment.
(d) This Rule does not prohibit communications authorized by law or ordered by a court or other
tribunal.
(e) Notwithstanding the prohibitions in this Rule, a lawyer may participate with a prepaid or
group legal service plan operated by an organization not owned or directed by the lawyer that
uses live person-to-person contact to enroll members or sell subscriptions for the plan from
persons who are not known to need legal services in a particular matter covered by the plan.

SAFE HARBOR FOR SUBORDINATE LAWYER FOLLOWING SUPERVISOR’S

ORDERS

Rule 5.2: Responsibilities of a Subordinate Lawyer

(a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer
acted at the direction of another person.
(b) A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in
accordance with a supervisory lawyer's reasonable resolution of an arguable question of
professional duty.

TERMINATING REPRESENTATION

Rule 1.16: Declining or Terminating Representation

(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation
has commenced, shall withdraw from the representation of a client if:
(1) the representation will result in violation of the rules of professional conduct or other
law;
(2) the lawyer's physical or mental condition materially impairs the lawyer's ability to
represent the client; or
(3) the lawyer is discharged.
(b) A lawyer may reveal information relating to the representation of a client to the exte4nt the
lawyer reasonably believes necessary:
(2) to prevent the client from committing a crime or fraud that is reasonably certain to
result in substantial injury to the financial interests or property of another and in
furtherance of which the client has used or is using the lawyer’s services;
(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of
another that is reasonably certain to result or has resulted from the client’s commission of
a crime or fraud in furtherance of which the client has used the lawyer’s services

TRIAL PUBLICITY
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(a) A lawyer who is participating or has participated in the investigation or litigation of a matter
shall not make an extrajudicial statement that the lawyer knows or reasonably should know will
be disseminated by means of public communication and will have a substantial likelihood of
materially prejudicing an adjudicative proceeding in the matter.
(b) Notwithstanding paragraph (a), a lawyer may state:
(1) the claim, offense or defense involved and, except when prohibited by law, the
identity of the persons involved;
(2) information contained in a public record;
(3) that an investigation of a matter is in progress;
(4) the scheduling or result of any step in litigation;
(5) a request for assistance in obtaining evidence and information necessary thereto;
(6) a warning of danger concerning the behavior of a person involved, when there is
reason to believe that there exists the likelihood of substantial harm to an individual or
to the public interest; and
(7) in a criminal case, in addition to subparagraphs (1) through (6):
(i) the identity, residence, occupation and family status of the accused;
(ii) if the accused has not been apprehended, information necessary to aid in
apprehension of that person;
(iii) the fact, time and place of arrest; and
(iv) the identity of investigating and arresting officers or agencies and the length
of the investigation.
(c) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer
would believe is required to protect a client from the substantial undue prejudicial effect of
recent publicity not initiated by the lawyer or the lawyer's client. A statement made pursuant to
this paragraph shall be limited to such information as is necessary to mitigate the recent adverse
publicity.
(d) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a)
shall make a statement prohibited by paragraph (a).

Rule 3.8: Special Responsibilities of a Prosecutor

The prosecutor in a criminal case shall:
(a) refrain from prosecuting a charge that the prosecutor knows is not supported by
probable cause;
(b) make reasonable efforts to assure that the accused has been advised of the right to,
and the procedure for obtaining, counsel and has been given reasonable opportunity to
obtain counsel;
(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights,
such as the right to a preliminary hearing;
(d) make timely disclosure to the defense of all evidence or information known to the
prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in
connection with sentencing, disclose to the defense and to the tribunal all unprivileged
mitigating information known to the prosecutor, except when the prosecutor is relieved of this
responsibility by a protective order of the tribunal;
(e) not subpoena a lawyer in a grand jury or other criminal proceeding to present
evidence about a past or present client unless the prosecutor reasonably believes:
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(1) the information sought is not protected from disclosure by any applicable
privilege;
(2) the evidence sought is essential to the successful completion of an ongoing
investigation or prosecution; and
(3) there is no other feasible alternative to obtain the information;
(f) except for statements that are necessary to inform the public of the nature and extent
of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain
from making extrajudicial comments that have a substantial likelihood of heightening
public condemnation of the accused and exercise reasonable care to prevent
investigators, law enforcement personnel, employees or other persons assisting or
associated with t he prosecutor in a criminal case from making an extrajudicial
statement that the prosecutor would be prohibited from making under Rule 3.6 or this
Rule.
▪ Note: Imposes an additional responsibility on criminal prosecutors to refrain
from making extrajudicial comments that have a substantial likelihood of
heightening public condemnation of the accused
(g) When a prosecutor knows of new, credible and material evidence creating a
reasonable likelihood that a convicted defendant did not commit an offense of which
the defendant was convicted, the prosecutor shall:
(1) promptly disclose that evidence to an appropriate court or authority, and
(2) if the conviction was obtained in the prosecutor’s jurisdiction,
(i) promptly disclose that evidence to the defendant unless a court
authorizes delay, and
(ii) undertake further investigation, or make reasonable efforts to cause an
investigation, to determine whether the defendant was convicted of an
offense that the defendant did not commit.
(h) When a prosecutor knows of clear and convincing evidence establishing that a
defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant
did not commit, the prosecutor shall seek to remedy the conviction.

UNAUTHORIZED PRACTICE OF LAW

Rule 5.5: Unauthorized Practice of Law; Multijurisdictional Practice of Law

(a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal
profession in that jurisdiction, or assist another in doing so.
(b) A lawyer who is not admitted to practice in this jurisdiction shall not:
(1) except as authorized by these Rules or other law, establish an office or other
systematic and continuous presence in this jurisdiction for the practice of law; or
(2) hold out to the public or otherwise represent that the lawyer is admitted to practice
law in this jurisdiction.
(c) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from
practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction
that:
(1) are undertaken in association with a lawyer who is admitted to practice in this
jurisdiction and who actively participates in the matter;
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(2) are in or reasonably related to a pending or potential proceeding before a tribunal in
this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized
by law or order to appear in such proceeding or reasonably expects to be so authorized;
(3) are in or reasonably related to a pending or potential arbitration, mediation, or other
alternative resolution proceeding in this or another jurisdiction, if the services arise out
of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer
is admitted to practice and are not services for which the forum requires pro hac vice
admission; or
(4) are not within paragraphs (c) (2) or (c)(3) and arise out of or are reasonably related to
the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice.
(d) A lawyer admitted in another United States jurisdiction or in a foreign jurisdiction, and not
disbarred or suspended from practice in any jurisdiction or the equivalent thereof, or a person
otherwise lawfully practicing as an in-house counsel under the laws of a foreign jurisdiction,
may provide legal services through an office or other systematic and continuous presence in this
jurisdiction that:
(1) are provided to the lawyer's employer or its organizational affiliates, are not services
for which the forum requires pro hac vice admission; and when performed by a foreign
lawyer and requires advice on the law of this or another U.S. jurisdiction or of the
United States, such advice shall be based upon the advice of a lawyer who is duly
licensed and authorized by the jurisdiction to provide such advice; or
(2) are services that the lawyer is authorized by federal or other law or rule to provide in
this jurisdiction.
(e) For purposes of paragraph (d):
(1) the foreign lawyer must be a member in good standing of a recognized legal
profession in a foreign jurisdiction, the members of which are admitted to practice
as lawyers or counselors at law or the equivalent, and subject to effective regulation
and discipline by a duly constituted professional body or a public authority; or,
(2) the person otherwise lawfully practicing as an in-house counsel under the laws of a
foreign jurisdiction must be authorized to practice under this Rule by, in the exercise of
its discretion, [the highest court of this jurisdiction].

COMMUNICATING WITH AN UNREPRESENTED PERSON

Rule 4.3: Dealing with Unrepresented Person

In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall
not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should
know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer
shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal
advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows
or reasonably should know that the interests of such a person are or have a reasonable possibility
of being in conflict with the interests of the client.

LAWYER AS A WITNESS

Rule 3.7: Lawyer as Witness

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(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary
witness unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship on the client.
(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely
to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.

COMMON JUDICIAL CONDUCT ISSUES & THE

APPLICABLE RULES

(Most important 2.8, 2.9, 2.11, & 2.12)

CANON 1
A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary,
and shall avoid impropriety and the appearance of impropriety.

Rule 1.1
Compliance with the Law
A judge shall comply with the law, including the Code of Judicial Conduct.

Rule 1.2
Promoting Confidence in the Judiciary
A judge shall act at all times in a manner that promotes public confidence in the independence,
integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of
impropriety.

Rule 1.3
Avoiding Abuse of the Prestige of Judicial Office
A judge shall not abuse the prestige of judicial office to advance the personal or economic
interests* of the judge or others, or allow others to do so.

CANON 2
A judge shall perform the duties of judicial office impartially, competently, and diligently.

Rule 2.1
Giving Precedence to the Duties of Judicial Office
The duties of judicial office, as prescribed by law, shall take precedence over all of a judge’s
personal and extrajudicial activities.
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Rule 2.2
Impartiality and Fairness
A judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and
impartially.*

Rule 2.3
Bias, Prejudice, and Harassment
(A) A judge shall perform the duties of judicial office, including administrative duties,
without bias or prejudice.
(B) A judge shall not, in the performance of judicial duties, by words or conduct manifest
bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or
harassment based upon race, sex, gender, religion, national origin, ethnicity, disability,
age, sexual orientation, marital status, socioeconomic status, or political affiliation,
and shall not permit court staff, court officials, or others subject to the judge’s direction
and control to do so.
(C) A judge shall require lawyers in proceedings before the court to refrain from
manifesting bias or prejudice, or engaging in harassment, based upon attributes including
but not limited to race, sex, gender, religion, national origin, ethnicity, disability, age,
sexual orientation, marital status, socioeconomic status, or political affiliation, against
parties, witnesses, lawyers, or others.
(D) The restrictions of paragraphs (B) and (C) do not preclude judges or lawyers from
making legitimate reference to the listed factors, or similar factors, when they are
relevant to an issue in a proceeding.

Rule 2.4
External Influences on Judicial Conduct
(A) A judge shall not be swayed by public clamor or fear of criticism.
(B) A judge shall not permit family, social, political, financial, or other interests or
relationships to influence the judge’s judicial conduct or judgment.
(C) A judge shall not convey or permit others to convey the impression that any person or
organization is in a position to influence the judge.

Rule 2.5
Competence, Diligence, and Cooperation
(A) A judge shall perform judicial and administrative duties, competently and diligently.
(B) A judge shall cooperate with other judges and court officials in the administration of
court business.

Rule 2.6
Ensuring the Right to Be Heard
(A) A judge shall accord to every person who has a legal interest in a proceeding, or that
person’s lawyer, the right to be heard according to law.
(B) A judge may encourage parties to a proceeding and their lawyers to settle matters in
dispute but shall not act in a manner that coerces any party into settlement.
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Rule 2.7
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Responsibility to Decide
A judge shall hear and decide matters assigned to the judge, except when disqualification is
required by Rule 2.11 or other law.

Rule 2.8
Decorum, Demeanor, and Communication with Jurors
(A) A judge shall require order and decorum in proceedings before the court.
(B) A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses,
lawyers, court staff, court officials, and others with whom the judge deals in an
official capacity, and shall require similar conduct of lawyers, court staff, court officials,
and others subject to the judge’s direction and control.
(C) A judge shall not commend or criticize jurors for their verdict other than in a court
order or opinion in a proceeding.

Rule 2.9
Ex Parte Communications
(A) A judge shall not initiate, permit, or consider ex parte communications, or consider
other communications made to the judge outside the presence of the parties or their
lawyers, concerning a pending or impending matter,except as follows:
(1) When circumstances require it, ex parte communication for scheduling,
administrative, or emergency purposes, which does not address substantive
matters, is permitted, provided:
(a) the judge reasonably believes that no party will gain a procedural,
substantive, or tactical advantage as a result of the ex parte
communication; and
(b) the judge makes provision promptly to notify all other parties of the
substance of the ex parte communication and gives the parties an
opportunity to respond.
(2) A judge may obtain the written advice of a disinterested expert on the law
applicable to a proceeding before the judge, if the judge gives advance notice to
the parties of the person to be consulted and the subject matter of the advice to be
solicited, and affords the parties a reasonable opportunity to object and respond to
the notice and to the advice received.
(3) A judge may consult with court staff and court officials whose functions are to
aid the judge in carrying out the judge’s adjudicative responsibilities, or with
other judges, provided the judge makes reasonable efforts to avoid receiving
factual information that is not part of the record, and does not abrogate the
responsibility personally to decide the matter.
(4) A judge may, with the consent of the parties, confer separately with the parties
and their lawyers in an effort to settle matters pending before the judge.
(5) A judge may initiate, permit, or consider any ex parte communication when
expressly authorized by law to do so.
(B) If a judge inadvertently receives an unauthorized ex parte communication bearing
upon the substance of a matter, the judge shall make provision promptly to notify the
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parties of the substance of the communication
👎
and provide the parties with an
opportunity to respond.
(C) A judge shall not investigate facts in a matter independently, and shall consider only
the evidence presented and any facts that may properly be judicially noticed.
(D) A judge shall make reasonable efforts, including providing appropriate supervision,
to ensure that this Rule is not violated by court staff, court officials, and others subject to
the judge’s direction and control.

Rule 2.10
Judicial Statements on Pending and Impending Cases
(A) A judge shall not make any public statement that might reasonably be expected to
affect the outcome or impair the fairness of a matter pending or impending in any court,
or make any nonpublic statement that might substantially interfere with a fair trial or
hearing.
(B) A judge shall not, in connection with cases, controversies, or issues that are likely to
come before the court, make pledges, promises, or commitments that are inconsistent
with the impartial* performance of the adjudicative duties of judicial office.
(C) A judge shall require court staff, court officials, and others subject to the judge’s
direction and control to refrain from making statements that the judge would be
prohibited from making by paragraphs (A) and (B).
(D) Notwithstanding the restrictions in paragraph (A), a judge may make public
statements in the course of official duties, may explain court procedures, and may
comment on any proceeding in which the judge is a litigant in a personal capacity.
(E) Subject to the requirements of paragraph (A), a judge may respond directly or
through a third party to allegations in the media or elsewhere concerning the judge’s
conduct in a matter.

Rule 2.11
Disqualification
(A) A judge shall disqualify himself or herself in any proceeding in which the judge’s
impartiality might reasonably be questioned, including but not limited to the following
circumstances:
(1) The judge has a personal bias or prejudice concerning a party or a party’s
lawyer, or personal knowledge of facts that are in dispute in the proceeding.
(2) The judge knows that the judge, the judge’s spouse or domestic partner, or a
person within the third degree of relationship to either of them, or the spouse or
domestic partner of such a person is:
(a) a party to the proceeding, or an officer, director, general
partner, managing member, or trustee of a party;
(b) acting as a lawyer in the proceeding;
(c) a person who has more than a de minimis interest that
could be substantially affected by the proceeding; or
(d) likely to be a material witness in the proceeding.
(3) The judge knows that he or she, individually or as a fiduciary, or the judge’s
spouse, domestic partner, parent, or child, or any other member of the judge’s
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family residing in the judge’s household, has an economic interest in the subject
matter in controversy or in a party to the proceeding.
(4) The judge knows or learns by means of a timely motion that a party, a party’s
lawyer, or the law firm of a party’s lawyer has within the previous [insert number]
year[s] made aggregate contributions to the judge’s campaign in an amount that
[is greater than $[insert amount] for an individual or $[insert
amount] for an entity] [is reasonable and appropriate for an individual or an
entity].
(5) The judge, while a judge or a judicial candidate, has made a public statement,
other than in a court proceeding, judicial decision, or opinion, that commits or
appears to commit the judge to reach a particular result or rule in a particular way
in the proceeding or controversy.
(6) The judge:
(a) served as a lawyer in the matter in controversy, or was associated with a
lawyer who participated substantially as a lawyer in the matter during such
association;
(b) served in governmental employment, and in such capacity participated
personally and substantially as a lawyer or public official concerning the
proceeding, or has publicly expressed in such capacity an opinion concerning the
merits of the particular matter in controversy;
(c) was a material witness concerning the matter; or
(d) previously presided as a judge over the matter in another court.
(B) A judge shall keep informed about the judge’s personal and fiduciary economic
interests, and make a reasonable effort to keep informed about the personal economic
interests of the judge’s spouse or domestic partner and minor children residing in the
judge’s household.
(C) A judge subject to disqualification under this Rule, other than for bias or prejudice
under paragraph (A)(1), may disclose on the record the basis of the judge’s
disqualification and may ask the parties and their lawyers to consider, outside the
presence of the judge and court personnel, whether to waive disqualification. If,
following the disclosure, the parties and lawyers agree, without participation by the judge
or court personnel, that the judge should not be disqualified, the judge may participate in
the proceeding. The agreement shall be incorporated into the record of the proceeding.

Rule 2.12
Supervisory Duties
(A) A judge shall require court staff, court officials, and others subject to the judge’s
direction and control to act in a manner consistent with the judge’s obligations under this
Code.
(B) A judge with supervisory authority for the performance of other judges shall take
reasonable measures to ensure that those judges properly discharge their judicial
responsibilities, including the prompt disposition of matters before them.

Rule 2.13
Administrative Appointments
(A) In making administrative appointments, a judge:
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(1) shall exercise the power of appointment impartially and on the basis of merit;
and
(2) shall avoid nepotism, favoritism, and unnecessary appointments.
(B) A judge shall not appoint a lawyer to a position if the judge either knows that the
lawyer, or the lawyer’s spouse or domestic partner, has contributed more than $[insert
amount] within the prior [insert number] year[s] to the judge’s election campaign, or
learns of such a contribution by means of a timely motion by a party or other person
properly interested in the matter, unless:
(1) the position is substantially uncompensated;
(2) the lawyer has been selected in rotation from a list of qualified and available
lawyers compiled without regard to their having made political contributions; or
(3) the judge or another presiding or administrative judge affirmatively finds that
no other lawyer is willing, competent, and able to accept the position.
(C) A judge shall not approve compensation of appointees beyond the fair value of
services rendered.

Rule 2.14
Disability and Impairment
A judge having a reasonable belief that the performance of a lawyer or another judge is
impaired by drugs or alcohol, or by a mental, emotional, or physical condition, shall take
appropriate action, which may include a confidential referral to a lawyer or judicial
assistance program.

Rule 2.15
Responding to Judicial and Lawyer Misconduct
(A) A judge having knowledge that another judge has committed a violation of this Code
that raises a substantial question regarding the judge’s honesty, trustworthiness, or fitness
as a judge in other respects shall inform the appropriate authority.
(B) A judge having knowledge that a lawyer has committed a violation of the Rules of
Professional Conduct that raises a substantial question regarding the lawyer’s honesty,
trustworthiness, or fitness as a lawyer in other respects shall inform the appropriate
authority.
(C) A judge who receives information indicating a substantial likelihood that another
judge has committed a violation of this Code shall take appropriate action.
(D) A judge who receives information indicating a substantial likelihood that a lawyer
has committed a violation of the Rules of Professional Conduct shall take appropriate
action.

Rule 2.16
Cooperation with Disciplinary Authorities
(A) A judge shall cooperate and be candid and honest with judicial and lawyer
disciplinary agencies.
(B) A judge shall not retaliate, directly or indirectly, against a person known* or
suspected to have assisted or cooperated with an investigation of a judge or a lawyer.
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A judge shall conduct the judge’s personal and extrajudicial activities to minimize the risk of
conflict with the obligations of judicial office.

Rule 3.1
Extrajudicial Activities in General
A judge may engage in extrajudicial activities, except as prohibited by law or this Code.
However, when engaging in extrajudicial activities, a judge shall not:
(A) participate in activities that will interfere with the proper performance of the judge’s
judicial duties;
(B) participate in activities that will lead to frequent disqualification of the judge;
(C) participate in activities that would appear to a reasonable person to undermine the
judge’s independence, integrity, or impartiality;
(D) engage in conduct that would appear to a reasonable person to be coercive; or
(E) make use of court premises, staff, stationery, equipment, or other resources, except
for incidental use for activities that concern the law, the legal system, or the
administration of justice, or unless such additional use is permitted by law.

Rule 3.2
Appearances before Governmental Bodies and Consultation with Government Officials
A judge shall not appear voluntarily at a public hearing before, or otherwise consult with, an
executive or a legislative body or official, except:
(A) in connection with matters concerning the law, the legal system, or the administration
of justice;
(B) in connection with matters about which the judge acquired knowledge or expertise in
the course of the judge’s judicial duties; or
(C) when the judge is acting pro se in a matter involving the judge’s legal or economic
interests, or when the judge is acting in a fiduciary capacity.

Rule 3.3
Testifying as a Character Witness
A judge shall not testify as a character witness in a judicial, administrative, or other adjudicatory
proceeding or otherwise vouch for the character of a person in a legal proceeding, except when
duly summoned.

Rule 3.4
Appointments to Governmental Positions
A judge shall not accept appointment to a governmental committee, board, commission, or other
governmental position, unless it is one that concerns the law, the legal system, or the
administration of justice.

Rule 3.5
Use of Nonpublic Information
A judge shall not intentionally disclose or use nonpublic information acquired in a judicial
capacity for any purpose unrelated to the judge’s judicial duties.
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Rule 3.6
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Affiliation with Discriminatory Organizations
(A) A judge shall not hold membership in any organization that practices invidious
discrimination on the basis of race, sex, gender, religion, national origin, ethnicity, or
sexual orientation.
(B) A judge shall not use the benefits or facilities of an organization if the judge knows or
should know that the organization practices invidious discrimination on one or more of
the bases identified in paragraph (A). A judge’s attendance at an event in a facility of an
organization that the judge is not permitted to join is not a violation of this Rule when the
judge’s attendance is an isolated event that could not reasonably be perceived as an
endorsement of the organization’s practices.

Rule 3.7
Participation in Educational, Religious, Charitable, Fraternal, or Civic Organizations and
Activities
(A) Subject to the requirements of Rule 3.1, a judge may participate in activities
sponsored by organizations or governmental entities concerned with the law, the legal
system, or the administration of justice, and those sponsored by or on behalf of
educational, religious, charitable, fraternal, or civic organizations not conducted for
profit, including but not limited to the following activities:
(1) assisting such an organization or entity in planning related to fund-raising, and
participating in the management and investment of the organization’s or entity’s
funds;
(2) soliciting contributions for such an organization or entity, but only from
members of the judge’s family, or from judges over whom the judge does not
exercise supervisory or appellate authority;
(3) soliciting membership for such an organization or entity, even though the
membership dues or fees generated may be used to support the objectives of the
organization or entity, but only if the organization or entity is concerned with the
law, the legal system, or the administration of justice;
(4) appearing or speaking at, receiving an award or other recognition at, being
featured on the program of, and permitting his or her title to be used in connection
with an event of such an organization or entity, but if the event serves a
fund-raising purpose, the judge may participate only if the event concerns the law,
the legal system, or the administration of justice;
(5) making recommendations to such a public or private fund-granting
organization or entity in connection with its programs and activities, but only if
the organization or entity is concerned with the law, the legal system, or the
administration of justice; and
(6) serving as an officer, director, trustee, or nonlegal advisor of such an
organization or entity, unless it is likely that the organization or entity:
(a) will be engaged in proceedings that would ordinarily come before the
judge; or
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(b) will frequently be engaged in adversary proceedings in the court of
which the judge is a member, or in any court subject to the appellate
jurisdiction of the court of which the judge is a member.
(B) A judge may encourage lawyers to provide pro bono publico legal services.

Rule 3.8
Appointments to Fiduciary Positions
(A) A judge shall not accept appointment to serve in a fiduciary position, such as
executor, administrator, trustee, guardian, attorney in fact, or other personal
representative, except for the estate, trust, or person of a member of the judge’s family,
and then only if such service will not interfere with the proper performance of judicial
duties.
(B) A judge shall not serve in a fiduciary position if the judge as fiduciary will likely be
engaged in proceedings that would ordinarily come before the judge, or if the estate,
trust, or ward becomes involved in adversary proceedings in the court on which the judge
serves, or one under its appellate jurisdiction.
(C) A judge acting in a fiduciary capacity shall be subject to the same restrictions on
engaging in financial activities that apply to a judge personally.
(D) If a person who is serving in a fiduciary position becomes a judge, he or she must
comply with this Rule as soon as reasonably practicable, but in no event later than [one
year] after becoming a judge.

Rule 3.9
Service as Arbitrator or Mediator
A judge shall not act as an arbitrator or a mediator or perform other judicial functions apart from
the judge’s official duties unless expressly authorized by law.

Rule 3.10
Practice of Law
A judge shall not practice law. A judge may act pro se and may, without compensation, give
legal advice to and draft or review documents for a member of the judge’s family, but is
prohibited from serving as the family member’s lawyer in any forum.

Rule 3.11
Financial, Business, or Remunerative Activities
(A) A judge may hold and manage investments of the judge and members of the judge’s
family.
(B) A judge shall not serve as an officer, director, manager, general partner, advisor, or
employee of any business entity except that a judge may manage or participate in:
(1) a business closely held by the judge or members of the judge’s family; or
(2) a business entity primarily engaged in investment of the financial resources of
the judge or members of the judge’s family.
(C) A judge shall not engage in financial activities permitted under paragraphs (A) and
(B) if they will:
(1) interfere with the proper performance of judicial duties;
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(2) lead to frequent disqualification of the judge;
(3) involve the judge in frequent transactions or continuing business relationships
with lawyers or other persons likely to come before the court on which the judge
serves; or
(4) result in violation of other provisions of this Code.

Rule 3.12
Compensation for Extrajudicial Activities
A judge may accept reasonable compensation for extrajudicial activities permitted by this Code
or other law unless such acceptance would appear to a reasonable person to undermine the
judge’s independence, integrity, or impartiality.

Rule 3.13
Acceptance and Reporting of Gifts, Loans, Bequests, Benefits, or Other Things of Value
(A) A judge shall not accept any gifts, loans, bequests, benefits, or other things of value,
if acceptance is prohibited by law or would appear to a reasonable person to undermine
the judge’s independence, integrity, or impartiality.
(B) Unless otherwise prohibited by law, or by paragraph (A), a judge may accept the
following without publicly reporting such acceptance:
(1) items with little intrinsic value, such as plaques, certificates, trophies, and
greeting cards;
(2) gifts, loans, bequests, benefits, or other things of value from friends, relatives,
or other persons, including lawyers, whose appearance or interest in a proceeding
pending or impending before the judge would in any event require
disqualification of the judge under Rule 2.11;
(3) ordinary social hospitality;
(4) commercial or financial opportunities and benefits, including special pricing
and discounts, and loans from lending institutions in their regular course of
business, if the same opportunities and benefits or loans are made available on the
same terms to similarly situated persons who are not judges;
(5) rewards and prizes given to competitors or participants in random drawings,
contests, or other events that are open to persons who are not judges;
(6) scholarships, fellowships, and similar benefits or awards, if they are available
to similarly situated persons who are not judges, based upon the same terms and
criteria;
(7) books, magazines, journals, audiovisual materials, and other resource
materials supplied by publishers on a complimentary basis for official use; or
(8) gifts, awards, or benefits associated with the business, profession, or other
separate activity of a spouse, a domestic partner, or other family member of a
judge residing in the judge’s household, but that incidentally benefit the judge.
(C) Unless otherwise prohibited by law or by paragraph (A), a judge may accept the
following items, and must report such acceptance to the extent required by Rule 3.15:
(1) gifts incident to a public testimonial;
(2) invitations to the judge and the judge’s spouse, domestic partner, or guest to
attend without charge:
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(a) an event associated with a bar-related function or other activity relating
to the law, the legal system, or the administration of justice; or
(b) an event associated with any of the judge’s educational, religious,
charitable, fraternal or civic activities permitted by this Code, if the same
invitation is offered to nonjudges who are engaged in similar ways in the
activity as is the judge; and
(3) gifts, loans, bequests, benefits, or other things of value, if the source is a party
or other person, including a lawyer, who has come or is likely to come before the
judge, or whose interests have come or are likely to come before the judge.

Rule 3.14
Reimbursement of Expenses and Waivers of Fees or Charges
(A) Unless otherwise prohibited by Rules 3.1 and 3.13(A) or other law,* a judge may
accept reimbursement of necessary and reasonable expenses for travel, food, lodging, or
other incidental expenses, or a waiver or partial waiver of fees or charges for
registration, tuition, and similar items, from sources other than the judge’s employing
entity, if the expenses or charges are associated with the judge’s participation in
extrajudicial activities permitted by this Code.
(B) Reimbursement of expenses for necessary travel, food, lodging, or other incidental
expenses shall be limited to the actual costs reasonably incurred by the judge and, when
appropriate to the occasion, by the judge’s spouse, domestic partner,* or guest.
(C) A judge who accepts reimbursement of expenses or waivers or partial waivers of fees
or charges on behalf of the judge or the judge’s spouse, domestic partner, or guest shall
publicly report such acceptance as required by Rule 3.15.

Rule 3.15
Reporting Requirements
(A) A judge shall publicly report the amount or value of:
(1) compensation received for extrajudicial activities as permitted by Rule 3.12;
(2) gifts and other things of value as permitted by Rule 3.13(C), unless the value
of such items, alone or in the aggregate with other items received from the same
source in the same calendar year, does not exceed $[insert amount]; and
(3) reimbursement of expenses and waiver of fees or charges permitted by Rule
3.14(A), unless the amount of reimbursement or waiver, alone or in the aggregate
with other reimbursements or waivers received from the same source in the same
calendar year, does not exceed $[insert amount].
(B) When public reporting is required by paragraph (A), a judge shall report the date,
place, and nature of the activity for which the judge received any compensation; the
description of any gift, loan, bequest, benefit, or other thing of value accepted; and
the source of reimbursement of expenses or waiver or partial waiver of fees or
charges.
(C) The public report required by paragraph (A) shall be made at least annually, except
that for reimbursement of expenses and waiver or partial waiver of fees or charges, the
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report shall be made within thirty days following the conclusion of the event or
program.
(D) Reports made in compliance with this Rule shall be filed as public documents in the
office of the clerk of the court on which the judge serves or other office designated by
law, and, when technically feasible, posted by the court or office personnel on the
court’s website.

CANON 4
A judge or candidate for judicial office shall not engage in political or campaign activity that is
inconsistent with the independence, integrity, or impartiality of the judiciary.

Rule 4.1
Political and Campaign Activities of Judges and Judicial Candidates in General
(A) Except as permitted by law, or by Rules 4.2, 4.3, and 4.4, a judge or a judicial candidate shall
not:
(1) act as a leader in, or hold an office in, a political organization;
(2) make speeches on behalf of a political organization;
(3) publicly endorse or oppose a candidate for any public office;
(4) solicit funds for, pay an assessment to, or make a contribution to a political
organization or a candidate for public office;
(5) attend or purchase tickets for dinners or other events sponsored by a political
organization or a candidate for public office;
(6) publicly identify himself or herself as a candidate of a political organization;
(7) seek, accept, or use endorsements from a political organization;
(8) personally solicit or accept campaign contributions other than through a campaign
committee authorized by Rule 4.4;
(9) use or permit the use of campaign contributions for the private benefit of the judge,
the candidate, or others;
(10) use court staff, facilities, or other court resources in a campaign for judicial office;
(11) knowingly, or with reckless disregard for the truth, make any false or misleading
statement;
(12) make any statement that would reasonably be expected to affect the outcome or
impair the fairness of a matter pending or impending in any court; or
(13) in connection with cases, controversies, or issues that are likely to come before the
court, make pledges, promises, or commitments that are inconsistent with the impartial
performance of the adjudicative duties of judicial office.
(B) A judge or judicial candidate shall take reasonable measures to ensure that other
persons do not undertake, on behalf of the judge or judicial candidate, any activities
prohibited under paragraph (A).

Rule 4.2
Political and Campaign Activities of Judicial Candidates in Public Elections
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(A) A judicial candidate in a partisan, nonpartisan, or retention public election shall:
(1) act at all times in a manner consistent with the independence, integrity, and
impartiality of the judiciary;
(2) comply with all applicable election, election campaign, and election campaign
fund-raising laws and regulations of this jurisdiction;
(3) review and approve the content of all campaign statements and materials produced by
the candidate or his or her campaign committee, as authorized by Rule 4.4, before their
dissemination; and
(4) take reasonable measures to ensure that other persons do not undertake on behalf of
the candidate activities, other than those described in Rule 4.4, that the candidate is
prohibited from doing by Rule 4.1.
(B) A candidate for elective judicial office may, unless prohibited by law, and not earlier than
[insert amount of time] before the first applicable primary election, caucus, or general or
retention election:
(1) establish a campaign committee pursuant to the provisions of Rule 4.4;
(2) speak on behalf of his or her candidacy through any medium, including but not
limited to advertisements, websites, or other campaign literature;
(3) publicly endorse or oppose candidates for the same judicial office for which he or she
is running;
(4) attend or purchase tickets for dinners or other events sponsored by a political
organization or a candidate for public office;
(5) seek, accept, or use endorsements from any person or organization other than a
partisan political organization; and
(6) contribute to a political organization or candidate for public office, but not more than
$[insert amount] to any one organization or candidate.
(C) A judicial candidate in a partisan public election may, unless prohibited by law, and not
earlier than [insert amount of time] before the first applicable primary election, caucus, or
general election:
(1) identify himself or herself as a candidate of a political organization; and
(2) seek, accept, and use endorsements of a political organization.

Rule 4.3
Activities of Candidates for Appointive Judicial Office
A candidate for appointment to judicial office may:
(A) communicate with the appointing or confirming authority, including any selection,
screening, or nominating commission or similar agency; and
(B) seek endorsements for the appointment from any person or
organization other than a partisan political organization.

Rule 4.4
Campaign Committees
(A) A judicial candidate subject to public election may establish a campaign committee to
manage and conduct a campaign for the candidate, subject to the provisions of this Code. The
candidate is responsible for ensuring that his or her campaign committee complies with
applicable provisions of this Code and other applicable law.
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(B) A judicial candidate subject to public election shall direct his or her campaign
committee:
(1) to solicit and accept only such campaign contributions*as are reasonable, in any event
not to exceed, in the aggregate, $[insert amount] from any individual or $[insert amount]
from any entity or organization;
(2) not to solicit or accept contributions for a candidate’s current campaign more than
[insert amount of time] before the applicable primary election, caucus, or general or
retention election, nor more than [insert number] days after the last election in which the
candidate participated; and
(3) to comply with all applicable statutory requirements for disclosure and divestiture of
campaign contributions, and to file with [name of appropriate regulatory authority] a
report stating the name, address, occupation, and employer of each person who has made
campaign contributions to the committee in an aggregate value exceeding $[insert
amount]. The report must be filed within [insert number] days following an election, or
within such other period as is provided by law.

Rule 4.5
Activities of Judges Who Become Candidates for Nonjudicial Office
(A) Upon becoming a candidate for a nonjudicial elective office, a judge shall resign from
judicial office, unless permitted by law* to continue to hold judicial office.
(B) Upon becoming a candidate for a nonjudicial appointive office, a judge is not required to
resign from judicial office, provided that the judge complies with the other provisions of this
Code.

GOODLUCK 🍀🤞