Model Rules

Question 1

Rule 8.1: Bar Admission and Disciplinary Matters

Answer 1

An applicant for bar admission, or a lawyer with bar admission application or 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; or
(c) Fail to respond to an admission or disciplinary body’s demand for information.

Question 2

Rule 8.4 Misconduct

Answer 2

(a) It is professional misconduct for a lawyer to:
(1) Violate or attempt to violate the Rule of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.
(2) Commit a criminal act that reflects adversely on the lawyers’ honest, trustworthiness, or fitness as a lawyer in other respects.
(3) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
(4) Engage in conduct that is prejudicial to the administration of justice.

Question 3

Rule 8.3: Reporting Professional Misconduct

Answer 3

(a) A lawyer who knows that another lawyer has committed a violation of 8.4(b) or (c) shall inform the appropriate professional authority.
(c) The rule does not require disclosure of information: (1) protected by the attorney-client privilege; or (2) information gained by a lawyer or judge while participating in an approved lawyers’ assistance program.

Question 4

Rule 8.5: Disciplinary Authority; Choice of Law

Answer 4

(b) In a disciplinary matter in Illinois, the rules of professional conduct to be applied should be as follows:
(1) For conduct in connection with a matter pending before a tribunal, the rules of the state where the tribunal sits…; 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.

Question 5

Rule 1.8(h): Conflict of Interest - Malpractice

Answer 5

(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 for malpractice with an unrepresented client or former client unless that person is advised in writing of the desirability of seeing and is given a reasonable opportunity to seek the advice of independent legal counsel.

Question 6

Rule 1.2(c): Scope of Representation and Allocation

Answer 6

A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.

Question 7

Rule 1.2; Comment 6 in regards to scope of services that a lawyer has control of:

Answer 7

“The scope of services to be provided by a lawyer may be limited by agreement with the client or by the terms under which the lawyer’s services are made available to the client… A limited representation may be appropriate because the client has limited objectives for the representation. In addition, the terms upon which representation is undertaken may exclude specific means that might otherwise be used to accomplish the client’s objectives. Such limitations may exclude actions that the client thinks are too costly or that the lawyer regards as repugnant or imprudent.”

Question 8

Rule 1.2; Comment 7 about limitations of services:

Answer 8

“Although this Rule affords the lawyer and client substantial latitude to limit the representation, the limitation must be reasonable under the circumstances… Although an agreement for a limited representation does not exempt a lawyer from the duty to provide competent representation, the limitation is a factor to be considered when determining the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”

Question 9

Rule 1.2: General Rule about what lawyer and client have control over.

Answer 9

The clients make decisions regarding the objectives of the representation while the lawyer decides the means to accomplish the objectives.

Question 10

Rule 1.5(1) & (2): Fees- General rule and factors that contribute to reasonableness of fees

Answer 10

(1) A lawyer shall not charge an unreasonable amount for fees or expenses.
(2) Factors considered in determining the reasonableness of a fee include:
a) Time and labor required, novelty and difficulty of the question, and the skill required to perform the service properly;
b) Likelihood accepting the employment will preclude other employment;
c) Fee customarily charged for similar services and location;
d) Amount involved and results obtained;
e) Time limitations imposed by client or circumstances;
f) Nature and length of the relationship with the client;
g) Experience, reputation, and ability of the lawyer;
h) Whether the fee is fixed or contingent.

Question 11

Rule 1.5(c): Contingent fees (General rule and what is required of a contingent fee)

Answer 11

(1) A fee may be contingent on the outcome of the matter except in a matter in which a contingent fee is prohibited (divorce and criminal).
(2) A contingent fee agreement shall be:
a) In a writing signed by the client;
b) State the method by which the fee is to be determined, including the percentage or percentages going to the lawyer;
c) Identify litigation and other expenses to be deducted;
d) If the client will be responsible for expenses, win or lose;
e) Whether such expenses are to be deducted before or after the contingent fee is calculated.
(3) At the conclusion of the case, the lawyer shall provide the client a written statement stating the outcome of the case and, if there is a recovery, the amount to the client and the method of its determination.

Question 12

Rule 1.15: Rules for Lawyers with their Clients Accounts

Answer 12

(1) Lawyer is responsible for the property and money of their client and it cannot co-mingle with the property or money of the attorney.
(a) A lawyer will handle more than one account:
(b) An account for the money to run the business;
(i) The client’s trust accounts and label it as such.
(ii) Do not need a separate account for each individual client, just must have a separate account from their own person account.
(3) Duty to notify the client as soon as possible whenever money or property comes in..
(4) Duty to disperse the money as soon as possible.

Question 13

Rule 1.16: Discretionary Withdraw

Answer 13

(1) Lawyer may withdraw if accomplished without material adverse effect on the client.
(2) Lawyer may withdraw even if a material adverse effect results where:
(a) The client persists in a criminal or fraudulent course of action;
(b) The lawyers services were used in the past to perpetrate a fraud or crime;
(c) The client insists on taking action that the lawyer considers repugnant or has a fundamental disagreement;
(d) Client fails to fulfill his obligations after a warning (failure to pay fees);
(e) The representation will cause the lawyer unreasonable financial burden (Smith v. R.J. Reynolds; P.94)

Question 14

Rule 1.16: Mandatory Withdrawal

Answer 14

(1) Violating a Rule of Professional Conduct or another law; or
(2) Lawyer’s physical or mental condition materially impairs the lawyers ability to represent the client; or
(3) The lawyer is discharged.

Question 15

Rule 1.6(a) : Confidentiality of Information - When lawyer CANNOT reveal information:

Answer 15

(a) Lawyer cannot reveal information relating to a client’s representation unless:
(1) Informed Consent
(2) Disclosure impliedly authorized, or
(3) Disclosure permitted by (b) or required by (c) below.

Question 16

Rule 1.6(b): When a lawyer MAY reveal confidential information :

Answer 16

(b) A lawyer may reveal information to:
(1) Prevent client from committing a crime;
(2) (Don’t focus here)Prevent client from committing a fraud reasonably certain to result in substantial injury to another’s finances or property in which the client used or is using the lawyer’s services;
(4) Obtain legal advice about compliance with the Rules;
(5) Establish a claim or defense for the lawyer in a controversy with the client, (e.g. collect fees, ARDC complaint).

Question 17

Rule 1.6(c): When a lawyer SHALL reveal information:

Answer 17

(c) A lawyer shall reveal information relating to the representation to extent reasonably necessary to prevent reasonably certain death or substantial bodily harm

Question 18

Rule 1.0(e): Informed Consent

Answer 18

“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.

Question 19

Rule 1.7(a): Concurrent Conflicts of Interest

Answer 19

(a) Lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict exists where:
(1) representation of one client will be directly adverse to another client; or
(2) There’s a significant risk that the representation of one client will be materially limited by the lawyer’s duty to another client, a former client or the lawyers personal interest…

Question 20

Rule 1.7(b): When an attorney can still represent two adverse concurrent clients:

Answer 20

(b) Notwithstanding, a lawyer may represent a client if:
(1) Lawyer believes she can provide competent representation to each client;
(2) representation is not prohibited by law;
(3) Representation does not involve a claim by one client against another client in the same litigation; and
(Note: Professor View - Divorce is one claim against another claim. So it would violate this portion.
(4) Each client gives informed consent.

Question 21

Rule 1.7; Comment 30: Common Representation privilege between two parties:

Answer 21

With regard to attorney-client privilege in common representation, the prevailing rule is that, as between them, the privilege generally does not attach. Hence, if litigation ensues, the privilege will not protect any such communications.

Question 22

Rule 1.7: Comment 31; Duty of loyalty to two concurrent, adverse clients.

Answer 22

As to the duty of confidentiality, continued common representation will almost certainly be inadequate if one client asks the lawyer not to disclose to the other client information relevant to the common representation. This is so because the lawyer has an equal duty of loyalty to each client, and each client has the right to be informed of anything bearing on the representation that might affect that client’s interests and the right to expect that the lawyer will use that information to the clients benefit.

Question 23

Rule 1.7; Comment 6: Duty of loyalty to adverse client of current client.

Answer 23

“Loyalty to a current client prohibits undertaking representation directly adverse to that client without that client’s informed consent. Thus, absent consent, a lawyer may not act as an advocate in one matter against a person the lawyer represents in some other matter, even when the matters are wholly unrelated.”

Question 24

Rule 1.8: Conflicts of Interest with a business transaction with a client

Answer 24

(a) A lawyer shall not enter into a business transaction with a client unless:
(1) The transaction is fair and reasonable;
(2) Terms are disclosed in writing and understandable language;
(3) Client informed in writing that he may seek advice of independent counsel… and given a reasonable opportunity to do so; and
(4) Client gives written, signed, informed consent to the transaction and whether the lawyer is representing the client in the transaction.
(c) A lawyer shall not:
(1) Solicit any substantial gift from a client
(i) Who is not a relative;
(ii) That includes a bequest in a will;
(2) Prepare an instrument giving the lawyer or lawyer’s relative a substantial gift unless lawyer or other donee is related to client.

Question 25

Rule 1.8(b): Using information from a client.

Answer 25

(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.

Question 26

Rule 1.8(j): Sexual relations with a client

Answer 26

A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.

Question 27

Rule 1.8; Comment 19: Sexual relations with a member of an organization whom is a client

Answer 27

When the client is an organization, paragraph (j) of this Rule prohibits a lawyer for the organization (whether inside counsel or outside counsel) from having a sexual relationship with a constituent of the organization who supervises, directs or regularly consults with that lawyer concerning the organization’s legal matters.

Question 28

Rule 1.9: Duties to Former Clients

Answer 28

(a) A lawyer who formerly represented a client in a matter shall not later represent another person in the same or a substantially related matter in which the present client’s interests are materially adverse to those of the former client unless the former client gives informed consent. (c) A lawyer who had 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 know; or (2) Reveal information relating to the representation except as these Rules would permit or require with respect to a client.

Question 29

Rule 1.9; Comment 3: When are matters substantially related?

Answer 29

Matters are “substantially related” if they involve the same dispute or transaction or if there’s a substantial risk that confidential factual information as usually would be obtained in the prior representation would materially advance the subsequent client’s position.

Question 30

Rule 1.7; Comment 6: Representation directly adverse to a current client

Answer 30

Loyalty to a current client prohibits undertaking representation directly adverse to that client without that client’s informed consent. Thus, absent consent, a lawyer may not act as an advocate in one matter against a person the lawyer represents in some other matter, even when the matters are wholly unrelated.

Question 31

What is the general rule about imputed disqualification?

Answer 31

One lawyer in the firm has a conflict and is disqualified, then all lawyers in the firm are disqualified.

Question 32

Rule 1.10: Imputed Conflicts of Interest of a lawyer within a firm:

Answer 32

(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when anyone of them practicing alone would be prohibited from doing so… unless the disqualification is based on personal interest and no significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.

Question 33

Rule 1.10(b): Imputed Conflicts of Interest of a lawyer who has left a firm:

Answer 33

(b) When a lawyer leaves a firm, the firm may represent a person with interests materially adverse to those of a client represented by the lawyer who left 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 the Rules that is material to the matter.

Question 34

Rule 1.10(e); When one lawyer creates a conflict by joining the firm:

Answer 34

When Lawyer A joins a new firm, no lawyer in the new firm shall represent a person in a case in which Lawyer A is disqualified by Rule 1.9 unless Lawyer A is screened from the case and gets none of the fee. Note: As long as the lawyer is properly screened, then no consent is necessary from the client.

Question 35

Rule 1.0; Comment 9: Screening process suggestions:

Answer 35

1. Timely screen; 2. Written undertaking by screened lawyer to avoid communication; 3. Written notice to firm employees forbidding communications; 4. Denial of access to files and other materials about the case; 5. Periodic reminders to everyone; 6. No part of fee from case to lawyer.

Question 36

Rule 1.8(f): Lawyer being paid by a third-party:

Answer 36

(f) Lawyer shall not accept compensation for representing a client from a third party unless: (1) Client gives informed consent; (2) No interference with the lawyer’s independence of professional judgment; and (3) Information relating to the representation is protected as required by Rule 1.6.

Question 37

Rule 1.11(a) & (b); Conflict of Interest for Government lawyers going from government work to private work:

Answer 37

(a)… A lawyer who has formerly served as a public officer or employee of the government: (1) Is subject to Rule 1.9(c); and (A) Rule 1.9(c): Cannot use any information learned in their practice unless the information is generally known. (2) Can’t represent a client in a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the government agency gives informed consent. (b) When a lawyer is disqualified under (a), no lawyer in that firm may undertake or continue representation in such a matter unless: (1) The disqualified lawyer is screened and gets no part of the fee; and (2) Written notice is promptly given to the government agency.

Question 38

Rule 1.11(d); Private practice attorneys going private to government Conflicts of Interests:

Answer 38

(d) A lawyer going from private practice to work for the government: (1) Is subject to rules 1.7 and 1.9; and (2) Shall not participate in a matter in which the lawyer participated personally and substantially while in private practice or non-government employment, unless the government agency gives its consent. Note: Screening not required, but is suggested.

Question 39

Rule 1.12: Conflicts of Interest for judges, law students, clerks, mediators, etc.

Answer 39

(a) A lawyer shall not represent anyone in a matter in which the lawyer participated personally and substantially as a judge, other adjudicative officer, law clerk, arbitrator, mediator, or other third-party neutral, unless all parties give informed consent. (b) Lawyer shall not negotiate for employment with a party or lawyer in a matter in which the lawyer is participating personally and substantially as a judge, adjudicative officer, or third-party neutral. (c) If a lawyer is disqualified by (a), no lawyer in the same firm may undertake or continue representation unless: (1) The disqualified lawyer is screened and receives no part of the fee; and (2) Written notice is promptly given to the parties and the tribunal.

Question 40

Rule 2.1; when a lawyer gives advice to their client:

Answer 40

(a) In representing a client, a lawyer shall exercise independent professional judgement 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 factor that may be relevant to the client’s situation. (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.

Question 41

Rule 1.14: How to handle a client with diminished capacity?

Answer 41

(a) Client with diminished capacity (mental impairment, minority, other reason) then the lawyers main goal is to maintain a normal attorney-client relationship. (b) Client at risk of substantial physical, financial, or other harm: Lawyer may consult with individuals or entities that can take action to protect the client. If necessary, lawyer may seek appointment of a guardian ad litem or guardian. (c) When taking action under (b) the lawyer is impliedly authorized under Rule 1.6(a) to reveal information necessary to protect the client.

Question 42

Rule 1.13(a): Who does an attorney represent when representing an organization?

Answer 42

(a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.

Question 43

Rule 1.13(b): What does a lawyer do when he knows that an employee or representative intends to act in an inappropriate way?

Answer 43

(b) If a lawyer for an organization knows that an officer or employee is acting, intends to act, or refuses to act in a matter related to the representation that is: (1) A violation of a legal obligation to the organization; or (2) A crime, fraud, or other violation of law; and (3) Reasonably imputed to the organization; and (4) Is likely to result in substantial injury to the organization. Then the lawyer shall proceed as reasonably necessary in the best interest of the organization. Unless the lawyer reasonably believes the organizations best interest do not require it, the lawyer shall refer the matter to higher authority in the organization, including, if warranted, to the highest authority of the organization. Note: Highest authority in a corporation is the Board of Directors.

Question 44

Rule 1.13(c): What if the organization doesn't act after the lawyer informs them of a bad act?

Answer 44

(c) If despite the lawyers efforts: (1) The highest authority fails to timely address an action or inaction that is clearly a crime or fraud, AND (2) The lawyer reasonably believes that the crime or fraud is reasonably certain to result in substantial injury to the organization, Then The lawyer may reveal the information (even if it is protected under Rule 1.6).

Question 45

Rule 4.2: Lawyers communicating with a represented person

Answer 45

(a) A lawyer shall not communicate about the subject of a representation with a person the lawyer knows is represented by another lawyer in the matter, unless the lawyer: (1) has the consent of the lawyer or (2) Is authorized by court order.

Question 46

When does Rule 4.2: Lawyers communicating with represented persons apply?

Answer 46

1) both criminal and civil cases; 2) to both represented persons and not just parties; 3) less clearly in the investigation phase of criminal cases prior to arrest/charge; 4) when the lawyer knows or should have known that the person is represented; 5) only to contacts related to the subject matter of the case; 6) even though the presented person initiates the contact; 7) until the representation of the person is terminated; 8) To contacts made by a lawyer’s investigators, not just the lawyer personally.

Question 47

Rule 4.2: Comment 7: When can a lawyer talk to the constituents of an organization?

Answer 47

Prohibits communications with a constituents of the organization who supervises, directs or regularly consults with the organization’s lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability. Note: Consent of the organizations lawyer is not required for communication with a former employee.

Question 48

Rule 4.3: A lawyer communications with unrepresented persons

Answer 48

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 that 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 interest of such person are or have a reasonable possibility of being in conflict with the interest of the client.

Question 49

Rule 4.1: Truthfulness in Statements to Others

Answer 49

(a) In the course of representing a client, a lawyer shall not knowingly make a false statement of material fact or law to a third person.

Question 50

Rule 8.4(g): Misconduct by threat

Answer 50

It is professional misconduct for a lawyer to present, participate in presenting, or threaten to present criminal or professional disciplinary charges to obtain an advantage in a civil matter.

Question 51

Rule 2.3: Evaluations for Use by Third Person

Answer 51

(a) If likely to hurt client materially must get client’s informed consent. (b) No attorney-client privilege to contents of Report. (c) Rule 1.6 still applies to the lawyer, but not to the third party.

Question 52

Rule 3.1: A lawyers duty not to bring frivolous lawsuits

Answer 52

Lawyer shall not bring or defend a case or assert or controvert an issue without a non-frivolous basis for doing so. A good-faith argument for extensions, modification or reversal of current law is not frivolous. Lawyer for a criminal defendant… may require the state to establish each element of the crime.

Question 53

Rule 137: What must be done for a motion or pleading to be valid?

Answer 53

(a) Each pleading, motion or paper of a party represented by a lawyer shall be signed by at least one lawyer in his own name and address. The signature certifies that he: 1) Read the document, 2) to the be.t of his knowledge (formed after reasonable inquiry)it’s well grounded in fact and warranted by existing law or a good-faith argument for the extension, modification, or reversal of law; 3) And it’s not intended to harass, cause unnecessary delay, or needlessly increase litigation costs. Note: A violation may result in assessment of fees and expenses against lawyer or party.

Question 54

Rule 3.2: Expediting Litigation

Answer 54

A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client. The test for this: whether or not a delay is valid is whether a competent lawyer, acting in good faith, has some substantial purpose other than to delay.

Question 55

Rule 3.4: Fairness to Opposing Party and Counsel

Answer 55

A lawyer shall not: (f) Request a person other than a client to refrain from giving information to another party unless: (1) The person is a relative or an employee or agent of a client; And then only if (2) the lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving information.

Question 56

Rule 2.1: Comment 5: Duty to inform client of dispute resolution

Answer 56

“When a matter is likely to involve litigation, it may be necessary under Rule 1.4 to inform the client of forms of dispute resolution that might constitute reasonable alternatives to litigation.”

Question 57

Rule 2.4: Lawyer serving as a third-party neutral

Answer 57

(b) A lawyer serving as a third-party neutral shall: (1) Inform unrepresented parties the lawyer is not representing them; and (2) Explain to them the difference between the lawyer’s role as a third party neutral and a lawyer’s role as one who represents a client.

Question 58

Attorney-Client Privilege Requires:

Answer 58

1) Communication between client and lawyer; 2) made between privileged persons; 3) In confidence; 4) For purpose of obtaining or providing legal assistance; 5) Cannot be used to further the commission of a crime.

Question 59

Requirements of Work Product Privilege:

Answer 59

Anything that is prepared by the lawyer in preparation or anticipation of litigation. I.e.- Taking pictures, interviewing witnesses, any work that a lawyer has done in prep for litigation.

Question 60

Differences Between ABA and IL Rules:

Answer 60

1. IL Rule 1.6(c) says “shall” and ABA rule says “may” [when a lawyer shall reveal information] 2. IL rule says you need informed consent under rule 1.7 (doesn’t say in writing) ABA rule says informed consent and needs to be CONFIRMED IN WRITING 3. 8.4(g) applies in IL Rules, but is non-existent in ABA Rules! 4. IL Rule 3.6 = serious and imminent threat; ABA = substantial likelihood of material prejudice 5. ABA says you can sell a part of your practice, but in IL you cannot. You have to sell the whole practice in IL

Question 61

Rule 3.3: Candor Toward the Tribunal

Answer 61

a) A lawyer shall not knowingly (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. Broken Down: o Lawyer knowingly o Fails to disclose o To the tribunal (and by default, opposing counsel) o Legal authority o In the jurisdiction o Directly adverse to the lawyer’s client

Question 62

General rule and exceptions to the rule about disclosing unfavorable facts and witnesses to opposing counsel:

Answer 62

General Rule: No duty to volunteer adverse witnesses or adverse facts to the other side. Exceptions: (a) Must disclose when client dies. (b) Must disclose if client lies about name, DOB, address, etc. (c) Ex Parte Proceedings: When only one side is present at a proceeding.

Question 63

Views on disclosing when the court has incorrect facts:

Answer 63

Majority: Unless the court is relying on your expertise, no duty to disclose. Minority: Lawyer is bound to speak up and correct the court when they know the facts are incorrect. Note: Professor hates the majority view.

Question 64

Rule 3.4; Comment 2: Lawyer holding evidence.

Answer 64

A lawyer can take the evidence for a reasonable time to create a defense using the item. But then it must be turned over the state for holding and testing. The lawyer must also make sure to give the item back in the same or substantially the same condition that they found it in.

Question 65

Rule 3.4; Fairness to opposing party and counsel

Answer 65

A lawyer shall not: (a) Obstruct party’s access to evidence; (b) Alter, destroy, or conceal an item with potential evidentiary value; (c) Falsify evidence or assist another to falsify evidence

Question 66

What to do when you know the client is going to lie:

Answer 66

1) REMONSTRATE: Tell the client the strategic risks of testifying falsely (perjury is a separate charge; cross-examination) and try to convince him not to lie. 2) WITHDRAW: Threaten to withdraw if the client does not agree not to lie. 3) THE FREE NARRATIVE APPROACH: Just ask the client what he wants to tell the jury and let him talk till he is done. 4) THE BUSINESS AS USUAL APPROACH: Just ask the questions as you usually would. 5) BAR THE DEFENDANT FROM TESTIFYING: The lawyer simply does not call the defendant to testify. 6) TELL THE JUDGE: tell the client that if he does not agree not to lie then he must inform the court of his plan.

Question 67

Rule 3.3(a)(3): False evidence

Answer 67

(1) A lawyer shall not knowingly offer false evidence. (2) If after the fact the lawyer learned the client or lawyer’s witness has given material false evidence, the lawyer shall take reasonable remedial steps, including, if necessary, disclosure to the tribunal. (3) Other than the testimony of a defendant in a criminal case, a lawyer may refuse to offer evidence the lawyer reasonably believes is false.

Question 68

Rule 3.5(c): Lawyer communication with a juror/jury:

Answer 68

(c) After a jury is discharged, a lawyer shall not communicate with a juror or prospective juror if the: (1) Communication is prohibited by law or court order; (2) Juror makes known to the lawyer a desire not to communicate; or (3) Communication involves misrepresentation, coercion, duress or harassment.

Question 69

Things to consider when recording people:

Answer 69

1) Is it legal? (a) Illinois Law: You cannot secretly record someone without consent of all parties when there is a reasonable expectation of privacy. 2) Is it ethical? (a) Cannot record any conversation without the consent or prior knowledge of all parties to a conversation.

Question 70

Rule 3.7: A lawyer as a witness

Answer 70

(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless the: (1) Testimony relates to an uncontested issue; or (2) Testimony relates to nature and value of legal services in the case (fees); or (3) The lawyer’s removal puts substantial hardship on the client. Note about 3: The lawyer would be removed as the lawyer, not as a witness. (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 so by Rule 1.7 and Rule 1.9.

Question 71

Rule 3.6: Trial Publicity

Answer 71

(a) A lawyer who has participated or is participating in the investigation or litigation of a case shall not make extrajudicial statements the lawyer knows or reasonably should know will be disseminated by means of public communication and pose a serious and imminent threat to the fairness of the adjudicative proceeding.

Question 72

Rule 3.8(e): Special Responsibilities of a Prosecutor in relation to calling defense counsel as a witness

Answer 72

The prosecutor in a criminal case shall: (e) Not subpoena a lawyer before the grand jury or court to give evidence about a client (past or present) unless the prosecutor reasonably believes: (1) The information is not privileged; and (2) The evidence is essential to the successful completion of an investigation or prosecution; and (3) There is no other feasible alternative to obtain the information.

Question 73

Rule about Lawyer Advertising from Bates v. Arizona

Answer 73

1) Cannot have false or misleading advertising 2) The bar must protect the public against advertising that is false, deceptive, or misleading. 3) Cannot create a blanket ban on advertising, but can place a reasonable restriction on time, place and manner.

Question 74

Rule 7.1(a): Lawyer Advertising cannot make a false or misleading statement, when is an advertisement false or misleading?

Answer 74

(a) Lawyer shall not make a false or misleading communication about the lawyer or lawyers’ serves. A communication is false or misleading if: (1) It contains a material misrepresentation of fact or law, or (2) Omits a fact necessary to make a statement as a whole not materially misleading. Note: A way to avoid a misleading statement is to use a disclaimer to clarify.

Question 75

Rule 7.1; Comment 2: When is a true statement misleading?

Answer 75

True statements prohibited if misleading. A true statement is misleading if: (a) It omits a fact necessary to make Lawyer’s communication as a whole not materially misleading, or (b) There’s a substantial likelihood it will lead a reasonable person to a specific conclusion about Lawyer or her services for which there is no reasonable factual foundation.

Question 76

Ohralik v. Ohio State Bar Association: How is in person solicitation different from advertising?

Answer 76

1) Easier to overreach and coerce 2) ads allow a person to review the ad and then choose whether or not to act on it, whereas, solicitation exerts pressure and demands an immediate response. 3) In person solicitation often forces the other party to make quick and uninformed decisions.

Question 77

In re Primus: A lawyer addressed a group of women harmed by medical care. he then sent one of them a letter stating that the ACLU would provide her legal assistance for free. Why did the court determine that this was constitutionally protected?

Answer 77

1) Solicitation was in writing, which allowed time to reflect on it. 2) Case had political character and sought redress for an injustice done to many, not just one; 3) The lawyer was working with a local non-profit, not for personal gain.

Question 78

Sharpero v. Kentucky: Lawyer wanted to send out targeted mail to people whose homes were being foreclosed. He submitted a copy of the letter to an advertising commission who stated it was not misleading, but denied it because there was a rule against direct mailing. What was the courts decision and why?

Answer 78

The court held that a total ban on targeted mailings was unconstitutional because a letter, like an ad, does not force the person to make a decision. The individual can look it over and consider it.

Question 79

Rule 7.3: Direct Contact with Prospective Clients

Answer 79

(a) Lawyer shall not in-person, live telephone, or real-time electronic means solicit a prospective client if a significant motive is pecuniary gain, unless the person contacted: (1) Is a lawyer; or (2) Has a family, close personal, or prior client relationship with the lawyer. (b) Lawyer shall not solicit clients by any means* even if not prohibited by (a), if: (1) The person made known to the lawyer a desire not to be solicited; or (2) The solicitation involves coercion, duress or harassment. (c) Written, recorded or electronic communications from a lawyer soliciting a person known to be in need of legal services shall include “Advertising Material” on the outside envelope and at the state and end of any recorded or electronic communication, unless the person fits in (a)(1) or (a)(2).

Question 80

Rule 1.1: Competence

Answer 80

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

Question 81

Rule 7.4: What can and can't a lawyer say when discussing certifications and specializations

Answer 81

(a) Lawyer can say he practices a particular field. (b) Illinois Supreme Court does not recognize certifications of specialties or expertise in any area except Patent, Trademark and Admiralty. (c) Except when identifying certificates, awards, or recognitions issued by an organization, a lawyer can’t use the terms certified, specialist, or expert to describe her qualification. If these terms are used to identify a certificate, award or recognition, the reference must: (1) Be truthful, verifiable and not misleading; (2) State the Illinois Supreme Court doesn’t recognize specialty certification and the certificate, award, or recognition isn’t required to practice law in Illinois.

Question 82

Rule 1.5(e): When may a fee be divided between lawyers who are not in the same firm?

Answer 82

A fee may be divided between lawyers, not in the same firm, only if the: (1) Division is in proportion to services performed by each lawyer; or (2) Primary service performed by one lawyer is the referral of the client to another lawyer and each lawyer assumes joint financial responsibility for the representation (This refers to liability for malpractice. As long as the referring lawyer remains liable for malpractice, they can split the fee); and (3) Client agrees to the division and share each lawyer will receive and the agreement is confirmed in writing; and (4) Total fee is reasonable.

Question 83

Can a lawyer split a fee with a non-lawyer?

Answer 83

Generally no, but an exception is when the lawyer uses a lawyer referral service.

Question 84

Rule 7.2: Advertising; When may a lawyer pay others for referrals?

Answer 84

(b) A lawyer cannot pay others for referrals except a lawyer may: (2) Pay a legal service plan or a not-for-profit lawyer referral service; (4) Refer clients to a professional (lawyer or not) pursuant to an agreement that the professional will make referrals to the lawyer, if: (a) The reciprocal referral agreement is not exclusive, and (b) The client is informed of the nature of the agreement.

Question 85

Rule 5.1: Responsibilities of Partners, Managers, and Supervisory Lawyers

Answer 85

(1) Partner or lawyer with managerial authority shall make reasonable efforts to ensure the firm has measures assuring that all lawyers obey the rules. (2)Lawyer with supervisory authority over another lawyer shall make reasonable efforts to ensure the lawyer conforms to the Rules. (3) Lawyer is responsible for another lawyer’s violation of the Rules if: (a) The lawyer orders or knowingly ratifies the conduct involved; or Note: Ratify: probably means to help another lawyer cover something up, or violate a rule. (b) The lawyer is a partner, manager, or has direct supervisory authority over a lawyer and knows of the misconduct in time to avoid or mitigate its consequence but fails to take remedial action.

Question 86

When may a lawyer, who is leaving a firm, solicit their client to leave with them?

Answer 86

“(3) Absent an agreement with the firm providing a more permissive rule, a lawyer leaving a law firm may solicit firm clients: (a) Prior to leaving the firm: (i) Only with respect to firm clients on whose matters the lawyer is actively and substantially working; and (ii) Only after the lawyer has adequately and timely informed the firm of the lawyers’ intent to contact firms clients for that purpose; and (b) After ceasing employment in the firm, to the same extent as any other non-firm lawyer.”

Question 87

Does a lawyer need to inform their clients when they are leaving the firm?

Answer 87

Yes, because it has an effect on their case.

Question 88

Define: Restrictive Covenant; Are these allowed for lawyers?

Answer 88

Restrictive Covenant: Basically a non-compete clause stating an employee cannot leave their current employer and go work for the competition. Usually not allowed in the legal field because a client should be able to have the lawyer that they want.

Question 89

Rule 5.6: Restrictions on the Right to Practice:

Answer 89

(a) A lawyer shall not participate in offering or making: (1) An employment or other agreement restricting a lawyer’s right to practice after the relationship is ended, except an agreement restricting retirement benefits.

Question 90

Rule 1.17: The Sale of a Law Practice

Answer 90

(a) Lawyer may sell or purchase, and the estate of a deceased lawyer (or guardian of disabled lawyer) may sell, a law practice, if: (1) Seller quits private practice* in the geographic area**; (*Can switch to government work, or become a judge, or work for a corporation, etc. but cannot move to a new private firm. **This is unsettled, but likely isn’t the whole state.) (2) The entire practice is sold; (Under the ABA rules, you can sell part of the practice, but in Illinois you cannot.) (3) The seller gives written notice to each client regarding: (i) The proposed sale; (ii) The clients right to retain other counsel or take his file; and (iii) Client’s consent to transfer file is presumed if client doesn’t take action or object within 90 days of receipt of the notice.

Question 91

Define: Practice of Law

Answer 91

1) Giving advice to another; 2) Drafting or creating legal documents; 3) Representing another person before a court; 4) Negotiating the legal rights of others.

Question 92

Define: Pro hac Vice

Answer 92

In general, if a litigator is not a member of the bar where the litigation is filed, she will file an appearance in court and ask to be admitted this way for this particular case. Often the lawyer must retain local counsel to assist with the case.

Question 93

Rule 5.5(c): Multi jurisdictional Practice of Law, how to practice in another state:

Answer 93

(c) Lawyer admitted in another state may provide services on a temporary basis in Illinois: (1) By associating with an Illinois lawyer who actively participates in the matter; (2) With court permission (pro hac vice); (3) If necessary to prepare a case in the lawyer’s home state, (e.g. interview witnesses, take depositions in Illinois); (4) If necessary to prepare a case in Illinois and lawyer reasonably believes she will obtain admission pro hac vice in that case; (5) ADR (mediation, arbitration, etc.) in Illinois that is “reasonably related” to lawyer’s practice in her home state; (6) Other activities “reasonably related” to the lawyer’s practice in her home state.

Question 94

Rule 5.4: Professional Independence of a Lawyer

Answer 94

(d) Lawyer cannot practice in the form of a corporation if a nonlawyer: (1) Owns any interest in the corporation…; (2) Is a corporate director or officer; or (3) Has the right to direct the lawyer’s professional judgement.

Question 95

Define: Charging Lien; Define: Retaining Lien

Answer 95

Charging Lien: A type of lien under which a lawyer acquires an interest in a judgement awarded to the client. This may mean that the lawyer can eventually claim a portion of any money paid to the client due to the judgment. Retaining Lien: When a client tries to fire you, you can hold their file until they pay your fee. They need the file to give their new lawyer, but until they pay, you don’t have to give it up.