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Professional Responsibility
I. Introduction
A. Sources of Authority for Regulation of Lawyers
1. Model Rules (ABA)
a) previously the Model Code
2. FRCP Rule 11 - duty of candor
3. State Statutes
4. State Supreme Court Rules
a) since lawyers are officers of the court, the state supreme court often holds that the ultimate authority to regulate them.
b) limited only by the state’s constitution
II. ARTICLE 1 - Client-Lawyer Relationship
A. Lawyer’s Duty of Competence Rule 1.1 - A lawyer shall provide competent representation to a client with the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
1. Legal Knowledge and Skill
a) determination of the proper level of knowledge and skill is a factual matter based on:
(1) complexity and specialized nature of the matter
(2) the lawyer’s general experience
(3) whether it is feasible to refer the matter or associate with a specialist.
b) lawyer need not have special training or experience to handle unfamiliar legal problems, however he must have the basic skills:
(1) to analyze precedent;
(2) evaluate evidence and draft legal materials;
(3) spotting the legal issues
c) a lawyer can provide adequate representation in a wholly novel field through necessary study or the association of a lawyer of established competence
d) in an emergency, where consultation with another lawyer is impractical, a lawyer may give advice or assistance in a matter where he does not have the ordinary skill required, but the advice must be limited to that reasonably necessary under the circumstances.
2. Thoroughness and Preparation
a) competence requires adequate research of the law and facts and adequate preparation
b) the required attention and preparation are determined in part by what is at stake:
(1) major litigation and complex transactions require more preparation than matters of less consequence.
3. Maintaining Competence - a lawyer should engage in continuing education to maintain his knowledge and skill.
4. Malpractice
a) The rules are not a basis for civil liability for malpractice, but may be used as evidence of the standard of care required of a competent attorney
b) ex: in Togstad, a lawyer, after refusing to take a case, failed to inform the "client" about the statute of limitations. The court held that the injured party was a client because she reasonably understood the lawyer’s refusal of the case as a "professional opinion". The lawyer was liable for the damages that the client could have received had the case been successfully litigated.
(1) however, the court stated in Flatt that no such duty to advise the "client" existed if such advice would be adverse to an existing client.
c) ex: in Simpson v. James, a law firm was held liable for malpractice of a departed lawyer, long after the lawyer left.
B. Scope of Representation - Rule 1.2 -
1. a lawyer shall abide by the client’s decisions concerning the objectives of representation, including whether to accept a settlement, or whether to enter a plea or testify in a criminal action.
a) the lawyer should assume responsibility for determining the means to achieve the client’s objectives, including the legal and tactical issues.
b) the client may not be asked to agree to representation so limited that in scope that it:
(1) violates Rule 1.1;
(2) surrenders the right to terminate the lawyer’s services; or
(3) surrenders the right to settle litigation that the lawyer might wish to continue
c) ex: In Gordon, if the client seller will finance but wants a 1st mortgage position, then the lawyer violates this rule if he closes the transaction with the seller financing in the 2nd mortgage position. No expert testimony as to the rules is required for civil liability if there is a direct disobedience of the client’s instructions.
2. lawyer’s representation of a client does not constitute an endorsement of their views
a) legal representation should not be denied to unpopular or controversial people
3. lawyer may not counsel a client, or assist a client, in conduct that the lawyer knows is criminal or fraudulent,
a) however, the lawyer may counsel the client in a good faith effort to determine the validity and scope of a law.
b) there is a critical distinction between presenting an analysis of legal aspects of questionable conduct, and recommending the means by which a crime may be committed with impunity
c) the lawyer is not permitted to reveal the client’s wrongdoing (see Rule 1.6), but he may not suggest how it may be concealed or furthered
d) A lawyer may be required to withdraw from representation when he discovers that the client’s actions are criminal or fraudulent (see Rule 1.16)
e) determining the validity or interpretation of a statute or regulation may require a course of action involving disobedience or the statute.
C. Duty of Diligence - Rule 1.3 - a lawyer shale act with reasonable diligence and promptness in representing a client
1. A lawyer is not bound to press for every advantage, but may exercise some professional discretion in determining the means by which a matter should be pursued.
a) ex: client is vindictive, and does not want the lawyer to allow his opponent to apply for a 10 day extension. The lawyer may ignore his client’s wishes in his professional discretion and allow the opponent the courtesy of an extension.
2. A lawyer’s workload should be controlled sot that each matter can be handled adequately.
3. Even when the client’s interests are not affected in substance, procrastination can cause needless anxiety and undermine the client’s confidence in the lawyer.
4. A lawyer should carry through to conclusion all matters undertaken for a client
a) doubt about whether the attorney is still representing a client should be clarified by the lawyer in writing so that the client will not mistakenly suppose that the lawyer is looking after the client’s affairs.
D. Duty of Communication - Rule 1.4 A lawyer shall keep a client reasonably informed about the status of a matter, and explain the matter to the extent reasonably necessary to permit the client to make an informed decision.
1. A lawyer who receives a settlement offer or a plea bargain from opposing counsel should promptly inform the client of its substance unless prior discussions with the client make it clear that the proposal would be unacceptable.
a) ex: client may have previously told lawyer that he would not even consider settling for less than $30K. Lawyer may not be required to convey a settlement offer of $20K.
2. A lawyer is not ordinarily required to describe legal tactics and strategies in detail, but should fulfill reasonable client expectations for information.
3. A lawyer must comply with reasonable requests for information.
a) ex: if the client is calling 8 times a day for updates, that may be unreasonable.
4. It may not be possible to fully inform a client who is a child or incompetent.
5. In a case of practical exigency, a lawyer may act in the client’s best interests without prior consultation.
6. A lawyer may be justified in delaying information that would be likely to cause the client to react imprudently, but the lawyer may not delay or withhold information based on the lawyer’s own interest or convenience.
E. Duty to Charge a Reasonable Fee Rule 1.5
1. A lawyer’s fee shall be reasonable, considering the following factors:
a) time and labor required;
b) whether the particular employment will preclude other employment (availability retainer)
c) fee customarily charged
d) amount involved and the results obtained
e) time limitations
f) nature and length of the professional relationship
g) experience, reputation and ability of the lawyer
h) and whether the fee is fixed or contingent.
(1) ex: in Telex, the court held that a $1 million contingent fee was reasonable even though the case was settled before cert. because the client was a sophisticated corporation with independent representation, and they deliberately sought out the "best" supreme court attorney they could find.
2. This rule implicitly prohibits padding of hours.
3. For new clients, the lawyer is required to disclose his fee to the client before or within a reasonable time after commencing the representation, preferably in writing.
4. Contingent Fees
a) must be in writing
b) may not be used in:
(1) domestic relations matters where the fee is contingent on obtaining a divorce or the amount of the settlement
(2) criminal defense
5. Lawyers not in the same firm may split fees (referral kickbacks) only to the extent that:
a) the split is in proportion to the services performed by each
b) the client consents after disclosure;
(1) the lawyer is not required to reveal the proportion of the division, only that it is being divided
c) both lawyers must share joint responsibility for the entire representation; and
d) the total fee is reasonable.
6. When developments occur during the course of a representation that substantially affect the fee, the lawyer should provide an updated estimate to the client.
7. A lawyer may require an advance payment of a fee, but is obliged to return any unearned portion (see Rule 1.16(d)).
a) ex: in Bushman, the court held that a $5,000 non-refundable fee was unconscionable in a simple domestic relations matter because there only about $300 worth of work done.
b) ex: in Cooperman, the court held a non-refundable retainer to be applied against services against public policy because it compromised the right of the client to fire the attorney.
8. A lawyer may accept property in payment for services so long as it does not give the lawyer an interest in the cause of action or subject of litigation (see Rule 1.8(j)).
9. A lawyer may not enter into a fee agreement where services are to be provided only to a certain amount because this would require the client to bargain for further assistance when he is in the middle of a proceeding.
10. In the case of a dispute, the lawyer should consider submitting to arbitration or mediation procedures established by the bar.
F. Duty of Confidentiality Rule 1.6
1. A lawyer may not reveal information relating to the representation of a client, unless:
a) the client consents after full disclosure; or
b) the disclosure is impliedly authorized; or
(1) ex: a lawyer may stipulate to facts not reasonably in dispute
c) to prevent the client from committing a future criminal act which is likely to result in death or substantial bodily harm (not prior criminal acts)
d) the disclosure is necessary to establish a defense of the lawyer to protect the lawyer from civil or criminal prosecution based on the lawyer’s conduct in the representation.
(1) still may only disclose those facts reasonably necessary to establish the defense, and disclosure should be limited to those persons with a need to know.
(2) ex: a lawyer may disclose confidential information in response to a charge that he acted in concert with the client to defraud a third party.
2. Policy
a) facilitates full development of the facts essential to proper representation
b) encourages people to seek legal assistance at an early stage
c) almost all clients follow the advice given, and thus the law is upheld.
3. Lawyers in the same firm may share confidential information about their clients unless the client has instructed them not to do so.
4. Although a lawyer is required to refrain from disclosing confidential information upon withdrawal (see Rule 1.16(d)), he may still make a "noisy" withdrawal by disaffirming any opinion, document, or previous statement and notifying the public that he is withdrawing.
5. Examples:
a) criminal defendant admits guilt to the defense attorney. The defense attorney is required to keep that information confidential and continue to represent the defendant according to his wishes, but may recommend a guilty plea.
b) Client confesses that he is guilty of a past murder for which someone else has been convicted. Lawyer is not allowed to reveal this information, even though an innocent man is in prison.
c) Client tells lawyer that he intends to kill someone when he gets out of jail. Lawyer may reveal the information, but is not required to do so.
6. Enforcement of Confidentiality
a) in trial or discovery, the client invokes the attorney client privilege to prevent lawyer from disclosing
b) if the lawyer does disclose, the client may sue for malpractice, or at least register a grievance with the state bar
G. Conflicts of Interest
1. Rule 1.7 - General Rule for Present Clients
a) A lawyer shall not represent a client if the representation would be directly adverse to another client; unless
(1) the lawyer reasonably believes that there will be no adverse affect (unlikely); and
(2) both clients consent after consultation.
(3) ex: opposing parties in a transaction or litigation
b) A lawyer shall not represent a client if the representation may develop a potential conflict with another client, unless
(1) the lawyer reasonably believes that there will be no adverse affect; and
(2) the client consents after consultation
(3) ex: in Fiandaca v. Cunningham, a legal assistance association could not properly represent a class of female prisoners in an overcrowding action and a class of students at a school in an unrelated matter because the students were opposed to allowing the female prisoners to be housed at their school, and the school was a potential overflow location for the prisoners.
c) When representing multiple clients in a single matter, the lawyer must consult with each to explain the risks involved in common representation (i.e. waiver of privilege among parties, possibility of future conflicts, etc.)
(1) a lawyer may represent multiple parties only if their interests are generally aligned, even if there is some difference of interest among them
(2) a lawyer probably should never represent co-defendants in a criminal case.
(3) ex: a defendant motorist and defendant insurance company have potentially conflicting interests because the motorist might be willing to settle more readily than the insurance company.
d) Lawyers must adopt conflict check procedures, appropriate for the nature of the firm, to determine whether there are actual or potential conflicts among clients.
e) If a conflict arises after representation has begun, the lawyer should withdraw (see Rule 1.16).
(1) if the lawyer is representing multiple parties in the same matter, whether he may continue to represent any of them is determined by Rule 1.9
f) Clients whose interests are only generally adverse, such as competing economic businesses, may both be represented by the same lawyer without requiring consent.
g) A lawyer may not properly ask for consent if:
(1) a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances; or
(2) when the existing client refuses to allow the lawyer to disclose sufficient information (see Rule 1.6) for the new client to make an informed decision whether to consent.
h) It is generally not proper for a lawyer to take a case against a client which he already represents in an unrelated matter.
i) A lawyer may represent different parties in unrelated litigations where the parties each argue the opposite side of a legal proposition, but not if they are pending before the same court at the same time.
j) A lawyer who is counsel for a corporation should not serve on its board of directors because it may later have to advise the corporation, as an entity, about improprieties by the board itself.
k) A lawyer may not represent a client whose interests are directly adverse to another client represented by a member of the lawyer’s family (see Rule 1.8(I)).
(1) this disqualification for family relations is personal and not imputed to members of firms with whom the lawyers are associated
2. Rule 1.8 - Prohibited Transactions
a) A lawyer shall not enter into a business transaction or take pecuniary interest adverse to a client unless:
(1) the transaction is fair and reasonable;
(2) there is full disclosure in writing to the client or the adversity;
(3) the client consents in writing after a reasonable opportunity to seek independent counsel
(4) this section does not apply to normal commercial transactions such as banking, medical services, etc. that are normally offered to the public.
(5) ex: in Mirabito, a lawyer was held liable for his clients losses for failure to disclose his economic interest in investments in which he advised the client to invest - breach of fiduciary duty of loyalty.
b) A lawyer shall not use confidential information against the client unless the client consents after consultation
(1) ex: a lawyer who has learned that the client is investing in specific real estate may not, without the clients consent, seek to acquire nearby property.
c) A lawyer shall not prepare a gift document (such as a will) in which he or his immediate family is a beneficiary, unless the client is related.
(1) however, the lawyer may accept a simple gift such as a present given at a holiday or as a token of appreciation.
d) A lawyer shall not provide financial assistance to a client, unless it is an advance of court costs and litigation expenses, which also may be contingent fees, or for an indigent client.
(1) this prevents lawyers from fishing for clients by offering to pay their expenses (i.e. buying business).
e) If a lawyer shall not accept payment from a third party for representing the client, unless:
(1) the client consents after consultation; and
(2) there is no interference with the lawyer’s independence, judgment, or confidentiality.
f) If a lawyer makes a aggregate settlement, he must disclose to each client the share received by all other clients.
g) Malpractice
(1) A lawyer may not make an agreement prospectively limiting his liability for malpractice, unless the client is independently represented in making the agreement
(2) a lawyer may not settle a malpractice claim with an unrepresented client without first advising the client in writing to seek independent representation.
h) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of the litigation, including literary or media rights to the story of the litigation.
3. Rule 1.9 Conflict of Interest with Former Client
a) A lawyer shall not represent a new client whose interests are adverse to a former client in the same or substantially related matter, unless the former client consents after consultation.
(1) ex: a lawyer may not properly seek to rescind a contract on behalf of a new client if that contract was drafted on behalf of a former client.
b) Lawyer from old-firm gets hired by new-firm: A lawyer shall not knowingly represent a new client whose interests are adverse to a former client of the lawyer’s old firm if the lawyer actually acquired confidential information from the former client which is material to the representation of the new client, unless the former client consents after consultation.
(1) the rule tries to balance the confidences and interests of the former client with the need for lawyers to be able to move from one practice to another.
(2) if a lawyer is was "screened" from the former client (thus acquiring no confidential information) or from the new client (thus, not being able to reveal confidential information of the former client), then the rule is satisfied.
(a) ex: in Cromley, the new-firm was allowed to continue to represent a defendant even after they hired the plaintiff’s lawyer because the new-firm instituted timely screening procedures.
c) A lawyer may not reveal confidential information of a former client, or use that confidential information to the client’s disadvantage. (See also Rule 1.16)
4. Rule 1.10 Imputed Disqualification - General Rule:
a) The disqualification of a lawyer due to conflict of interest with present or former clients is imputed to the rest of the lawyer’s law firm.
b) Old-firm may represent client whose interests are adverse to a departed lawyer’s client that the lawyer took with him, unless:
(1) it is in the same or a substantially related matter; AND
(2) a remaining lawyer actually has confidential information of the former client.
(3) ex: Lawyer was the only attorney representing hospital for regulatory compliance matters while he is at old-firm. Upon leaving old-firm, lawyer takes hospital with him. Old-firm may then properly represent clients for malpractice actions against hospital.
c) For the purposes of this rule, a "firm" includes:
(1) the law department of a corporation; and
(2) lawyers in the same unit of a legal aid organization
d) For the purposes of this rule a "firm" does not include:
(1) two practitioners who share office space and occasionally consult or assist each other; and
(2) lawyers in different units of a legal aid organization.
5. Rule 1.11 - Successive Government and Private Employment
a) An ex-government lawyer shall not represent a client in connection with any matter (whether or not adverse) in which the lawyer participated personally and substantially while in government service, unless the government consents.
(1) this rule balances the government’s rights to confidentiality against the mobility of lawyers.
b) The law firm of an ex-government lawyer may not represent a client in such a matter, unless:
(1) the ex-government lawyer is screened;
(2) the ex-government lawyer does not share in the fee; and
(3) the government is given written notice.
c) a law clerk may not seek employment with a firm who is practicing in a case in front of the law clerk’s judge without first telling the judge.
6. Rule 1.12 - Former judge or Arbitrator
a) A former judge or arbitrator may not represent anyone in a matter in which the former judge or arbitrator participated personally and substantially, unless all parties consent after consultation.
(1) this disqualification is imputed to the judges’ law clerk.
H. Organization as the Client Rule 1.13
1. A lawyer retained by an organization represents the organization acting through its duly authorized constituents.
2. If the lawyer knows that a person associated with the organization is about to act in an unlawful manner damaging to the organization, the lawyer shall take reasonable steps to prevent the harm, including:
a) asking for reconsideration;
b) advising that the person seek separate counsel; and
c) referring the matter to a higher authority in the organization.
3. The lawyer may resign if the highest authority in the organization refuses to take proper action to prevent the harm.
4. A lawyer may only represent a constituent of the organization if:
a) there is no potential conflict under Rule 1.7, or
(1) ex: in Murphy & Demory, the lawyer violated the rule by representing the corporation and simultaneously representing a constituent who sought either to gain control of the corporation or to found a competing corporation and take clients with him.
(2) ex: in Analytica, a lawyer represented a constituent as well as the corporation. The lawyer continued to represent the constituent after he left the corporation, and then brought an action to sue the corporation. This is a violation of Rule 1.9 successive client conflicts.
b) with the consent of a disinterested authority in the organization, or the shareholders.
5. When one of the constituents of the organization communicates with the lawyer in his official capacity, the communication is company confidential and protected under Rule 1.6
a) ex: if an officer of the company approaches the lawyer with information about unlawful acts of the directors, the information is confidential to the company.
b) the lawyer may not reveal company confidential information to other constituents who do not have a need to know.
6. This rule applies to lawyers for the government as well.
7. The lawyer should advise any constituent whose interests become adverse to that of the organization to seek independent counsel.
8. Jesse v. Danforth The entity rule applies retroactively to prevent automatic disqualification of a lawyer for an entity in representing one of its constituents if:
a) the constituents come to the lawyer for the purpose of organizing an entity; and
b) the entity is thereafter organized.
I. Clients under a Disability - Rule 1.14
1. A lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with a client under a disability or who is a child
2. The lawyer may only seek the appointment of a guardian for a disabled client when he reasonably believes that the client can not adequately act in the client’s own interest.
J. Safekeeping of Property Rule 1.15
1. A lawyer must keep clients’ property separate from his own.
a) lawyer has a fiduciary duty to protect the client’s property
2. A lawyer must keep accounting records for five years after termination of the representation
3. A lawyer shall promptly notify the client of the receipt any property in which the client has an interest, and deliver it to the client if he is entitled to receive it.
4. In case of a dispute over property between the lawyer and the client, the lawyer is to keep the property separate from his own until the dispute is resolved.
a) The undisputed portions of the funds or property should be promptly distributed to the client.
5. These rules also apply to property in which a third party has an interest or in which there is a dispute between the lawyer and the third party or the third party and the client.
K. Declining or Terminating Representation - Rule 1.16
1. A lawyer must not represent (or must withdraw) if:
a) the representation will result in a violation of the rules or of the law;
(1) the lawyer does not need to withdraw if the client merely suggests the unlawful conduct
(2) ex: after the beginning of representation, the lawyer learns of a conflict with another client which violates Rule 1.7 - the lawyer must withdraw.
b) the lawyer’s physical or mental condition materially impairs his ability to represent the client; or
c) the lawyer is discharged
(1) lawyer still is entitled to fees already earned.
(2) an employer does not have an absolute right to fire an in-house lawyer without cause if it violates the reasonable expectations of the employee lawyer, or is in retaliation for refusing to violate a professional rule of conduct, but the lawyer must prove his case without revealing confidential information. - General Dynamics
2. Unless the court orders the lawyer to continue, a lawyer may withdraw if he can do so without a material adverse effect on the interests of the client.
3. Unless the court orders the lawyer to continue, a lawyer may withdraw without regard to the adverse effect on the client if:
a) the client persists in an illegal, imprudent or repugnant course of action; or
b) the client has used the lawyer to commit a crime or fraud; or
c) the client fails substantially to fulfill an obligation to the lawyer after having been warned; or
d) the representation will result in an unreasonable financial burden on the lawyer; or
e) the client has rendered the representation unreasonably difficult; or
f) for other good cause.
4. The court may order the lawyer to continue the representation, regardless of whether the client or the lawyer desires.
5. Upon termination of the representation, the lawyer must take reasonable steps to protect the client’s interests, including:
a) giving reasonable notice to enable the hiring of another lawyer;
b) surrendering papers and property; and
c) returning any unearned fees.
III. ARTICLE 2 - Lawyer as Counselor
A. Duty as Advisor Rule 2.1
1. A lawyer must exercise independent judgment and render candid advice.
2. A lawyer may refer to moral, economic, social, and political factors when giving advice.
3. If a legally trained client asks for purely technical legal advice, the lawyer may take such an inquiry on face value.
4. However, if a non-legally trained client asks for purely technical legal advice, then the lawyer should advise the client that there may be more than mere legal technicalities involved.
5. A lawyer is generally not required to render advice unless asked, but the lawyer may offer unsolicited advice if:
a) the lawyer knows that a client is about to take a course of action that has substantial adverse legal consequences; or
b) the advice appears to be in the client’s best interests.
B. Evaluation for Use By Third Persons - Rule 2.3
1. A lawyer may prepare an opinion for use by a third party only if the lawyer reasonably believes that it is compatible with his representation of the client, and the client consents after consultation.
2. A duty may arise to a third party in preparation of an opinion letter if he knows or should know that it will be relied upon by third parties.
a) ex: in Kline, the lawyer was negligent in preparing an opinion letter without even minimal investigation of the truth or falsity of the facts provided by the client. Lawyer must have a genuine belief of the factual basis for the opinion.
IV. ARTICLE 3 - Lawyer as Advocate
A. Duty Not To Assert Frivolous Claims or Defenses Rule 3.1
1. A lawyer may not assert a claim or defense that has a frivolous basis.
a) an action is frivolous if the client desires to have the action taken primarily for the purpose of harassment, and the lawyer is unable to make a good faith argument in its support.
b) a claim is not frivolous merely because the facts have not been fully substantiated or because the lawyer expects to develop vital evidence only through discovery.
2. However, a lawyer may argue in good faith for an extension, modification, or reversal of existing law.
3. A criminal defense attorney may deny everything, requiring the prosecutor to prove every element of the case.
B. Expediting Litigation Rule 3.2
1. A lawyer must make reasonable efforts to expedite litigation consistent with the interests of the client.
2. The question is whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay.
3. Realizing a pecuniary benefit by delay of litigation is not a legitimate interest of the client.
C. Duty of Candor - Rule 3.3
1. A lawyer may not knowingly lie to the court in any of the following ways:
a) make a false statement of law or fact;
b) fail to disclose (hide) a material fact in such a way as to amount to a crime or fraud;
c) fail to disclose (hide) known adverse legal authority not disclosed by the opposing counsel;
(1) ex: lawyer does not have to volunteer all adverse law in his first brief, but if the opponent does not cite it in his reply brief, the lawyer must then disclose it in a supplemental brief.
d) offer false evidence.
2. If a lawyer later learns that he has offered false evidence, he must take reasonable remedial measures
a) the lawyer should first seek to persuade the client to correct the situation, if that is unavailing, he should withdraw, if he can not withdraw, the lawyer should reveal the truth to the court.
b) ex: put the witness back on the stand and correct his testimony, tell the judge, or resign noisily under Rule 1.6.
3. This rule trumps the confidentiality requirement of Rule 1.6 (i.e. once the client lies, the lawyer is not precluded by Rule 1.6 from correcting the situation if he has to reveal confidential truths).
a) the alternative is that the client could effectively coerce the lawyer into cooperating in fraud on the court
b) the shield of confidentiality is a defensive measure that may not be used as an affirmative tool to commit perjury.
4. A lawyer may refuse to offer evidence he reasonably believes is false.
a) in a criminal case, the defendant may take the stand and testify himself as a matter of constitutional right, but that does not include the right to perjure himself.
5. In an ex-parte proceeding, a lawyer must disclose all material information of which he is aware, particularly if it is adverse.
D. Fairness to Opposing Counsel Rule 3.4
1. Because it interferes with the adversary system’s effectiveness, a lawyer must not:
a) hide or destroy evidence or counsel anyone to do so;
(1) ex: in Meredith, the court held that the attorney-client privilege does not extend to situations where the defense counsel learned of the existence of evidence only by confidential communications with the defendant if the defense counsel thereafter alters or disturbs the evidence or removes it from its original location.
b) falsify evidence or counsel anyone to do so;
c) offer an illegal fee to a witness;
(1) it is proper to pay travel expenses for a witness, but not to pay a fee that is contingent on the success of the case.
d) knowingly disobey a rule of the court unless a good faith basis exists for its invalidity
e) make a frivolous discovery request;
f) fail to make reasonably diligent efforts to respond to valid discovery requests
g) allude to an irrelevant matter or one that is not supported by evidence; or
(1) ex: if the judge makes an evidence ruling against you, you can not allude to that excluded evidence in your closing argument.
(2) ex: in Kojayan, the prosecutor was not allowed to make a misleading statement to the jury that a key witness could not be called because
h) state a personal opinion as to the merits of the action
(1) ex: lawyer can not personally vouch for the credibility of a witness, or say that he believes a witness is lying.
E. Impartiality and Decorum of the Tribunal - Rule 3.5
1. A lawyer must not:
a) seek to exert illegal influence on a judge, juror, prospective juror or other official;
b) communicate ex-parte with a judge, juror, prospective juror or other official of the court;
c) intentionally disrupt a tribunal.
F. Trial Publicity - Rule 3.6
1. A lawyer who is a participant in a proceeding shall not make an extrajudicial statement that he should know has a substantially likelihood of prejudicing the case.
a) These include, but are not limited to:
(1) the character, record or reputation of a party;
(2) the possibility of a plea;
(3) the contents of a statement made by a party
(4) the results of an examination;
(5) the expected testimony of a party or witness
(6) an opinion as to guilt or innocence;
(7) inadmissible evidence
2. However, a lawyer may state any matter of public record, identity or scheduling facts.
3. A lawyer may also make a defensive response to a public statement if a reasonable lawyer would conclude that such a statement is necessary to mitigate the prejudicial effect of a statement by a person other than his client.
G. Lawyer as a Witness - Rule 3.7
1. A lawyer may not testify in a trial where he is representing a client; unless:
a) it is to an uncontested matter;
b) it relates to the nature and value of legal services rendered by him;
c) the lawyer’s disqualification would work substantial hardship on the client.
2. A lawyer may act as an advocate in a trial where another lawyer in his law firm is a witness (subject, of course, to the rules of conflict of interest).
3. Policy
a) it may not be clear to a fact finder whether the lawyer is testifying from personal knowledge or merely analyzing the law and facts.
H. Special Role of the Prosecutor Rule 3.8 (not merely an advocate)
1. A prosecutor in a criminal case must not bring an action that the prosecutor knows is not supported by probable cause.
2. A prosecutor must make reasonable efforts to assure the accused is represented
3. Prosecutor must not seek to obtain a waiver of any right from an unrepresented defendant
4. Prosecutor must disclose all adverse or mitigating evidence to the defense
I. Advocate in Nonadjudicative Proceedings - Rule 3.9
1. A lawyer representing a client before a legislative or administrative tribunal in a non-adjudicative proceeding shall disclose that the appearance is in a representative capacity (i.e. that he is a paid advocate).
a) However, this does not mean that the lawyer must disclose the identity of his client.
b) The lawyer is also required to conform to the rules concerning duty of candor to the tribunal, fairness to the opposing counsel, and impartiality.
V. ARTICLE 4 - Transactions With Persons Other Than Clients
A. Truthfulness In Statements To Others Rule 4.1
1. In the course of representation, the lawyer must no knowingly:
a) make a false statement of material fact or law to a third person;
(1) mere puffing during negotiations is not a false statement of material fact
b) fail to disclose a material fact to a third person if necessary to avoid assisting a client in a crime or fraud, unless it would require disclosure of confidential information under Rule 1.6.
B. Communication With Person Represented By Counsel Rule 4.2
1. a lawyer must not knowingly communicate about the subject of the representation with a represented person, without that person’s lawyer’s permission.
a) the word "person" is used rather than "party" because the rule applies to all communications regarding a matter for which the person has counsel, not just in litigation.
b) the lawyer must have actual (or constructive) knowledge that the other is represented by counsel.
c) ex: if the opposing client calls you directly, you should tell them that you need his lawyer’s permission to speak with him.
d) ex: you should not send copies of correspondence to the opposing party without his lawyer’s permission.
2. this rule does not prohibit communication concerning matters outside of the representation.
3. the persons themselves may communicate directly with each other at any time without their lawyers’ permission.
C. Communications with Unrepresented Persons - Rule 4.3
1. when dealing with an unrepresented person, the lawyer shall not state or imply that he is disinterested.
2. If the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer must take reasonable steps to correct the misunderstanding.
3. when representing a client, the lawyer should not give advice to an unrepresented person other than the advice to obtain counsel.
D. Respect for Rights of Third Persons Rule 4.3
1. A lawyer must not use tactics that have no substantial purpose other than to embarrass, delay, or burden a third party.
2. essentially, the lawyer may not disregard the rights of third persons in his zealous advocacy of his client.
VI. ARTICLE 5 - Law Firms and Associations
A. Responsibilities of a Partner or Supervisory Lawyer Rule 5.1
1. Partners - must make reasonable efforts to ensure that the law firm has reasonable measures in place to prevent violation of the rules.
a) the specific measures required depend on the nature and size of the law firm, but may include:
(1) establishment of an internal ethics lawyer or committee for confidential referral of ethics problem; and
(2) continuing legal education.
2. Direct Supervisors - must make reasonable efforts to ensure that their subordinate lawyer does not violate the rules.
a) a supervision lawyer is not entitled to assume that the subordinate will always conform to the rules.
3. Both partners and direct supervisors are responsible for the subordinate lawyer’s violation if:
a) they ordered it;
b) they knowingly ratified it; or
c) they knew of the conduct in time to avoid or mitigate it, but failed to take reasonable remedial action.
(1) ex: if a supervisor knows that a subordinate lawyer made a misrepresentation to opposing counsel, the supervisor as well as the subordinate has a duty to correct the resulting misapprehension.
d) ex: if a junior associate asks a partner to backdate a notarization, not only must they refuse to do so, but they must take action to ensure that the junior associate doesn’t merely go ask someone else.
4. whether a lawyer may be civilly or criminally liable for the conduct of another lawyer is beyond the scope of these rules, which only address professional discipline.
B. Responsibilities of a Subordinate Lawyer - Rule 5.2
1. a subordinate lawyer is not relieved of responsibility for his violation merely because his supervisor ordered him to commit the violation (can’t hide behind the partner).
a) however, the fact that the conduct was ordered by the supervisor may mean that the subordinate did not knowingly violate a rule
(1) ex: a subordinate who files a frivolous pleading on the order of his supervisor is not guilty of a violation if he did not know that it was frivolous.
2. a subordinate is relieved of responsibility for his violation if he reasonably relied on his supervisor’s resolution of an arguable ethical question.
a) but if the violation is clear, there is no relief from liability
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