MPRE Flashcards
1
Q
WHAT CONSTITUTES PROFESSIONAL MISCONDUCT?
A
- Violating the RPC
- Attempting to violate the RPC
- Helping someone else violate the RPC
- Using someone else to violate the RPC
2
Q
When does a Lawyer have a mandatory duty to report a violation?
A
When the violation raises a substantial question as to the lawyer’s honesty, trustworthiness, or fitness to practice.
3
Q
When is a lawyers duty to report not mandatory?
A
- Question raised was not substantial
- Suspect violation, but don’t know
4
Q
Exceptions to Mandatory Reporting
A
- Violation of duty of confidentiality to a client
- Learned of violation in lawyer’s assistance program
5
Q
Methods of temporary Out-of-State Practice
A
- Associate with locally licensed attorney
- Admission pro hac vice
- Mediation or arbitration
- Matter reasonably related to home state practice
6
Q
Permanent Out-of-State Practice
A
- In-house counsel and government lawyer can en- gage in non-litigation practice across state lines
- Lawyers in certain restricted fields are specifically authorized by law to practice in other states
7
Q
RESPONSIBILITY OF PARTNERS, MANAGERS, AND SUPERVISORY LAWYERS
A
Duty to Prevent Ethical Violations
* Partners and managers must take reasonable measures to ensure compliance with RPC
* Supervisory lawyers have same duty with respect to subordinates
Vicarious Responsibility
* Ordered or ratified misconduct
* Failed to avoid or mitigate consequences of viola-
tion
Partners, managers, and supervisors have the same duties as above with respect to nonlawyers working on client matters (both inside and outside the firm).
8
Q
WHAT ARE THE RESPONSIBILITIES OF A SUBORDINATE
LAWYER
A
Acting on orders of another lawyer does not excuse misconduct unless it was a reasonable resolution of an arguable question of professional duty.
9
Q
What are the rules on professional independence?
A
- No partnerships with nonlawyers if any partnership activities involve practice of law
- No nonlawyer control or ownership interest in firm
- No fee splitting with nonlawyers (with limited ex- ceptions below)
10
Q
When is fee splitting with a non lawyer permitted?
A
- Death benefits to lawyer’s estate
- Funds to purchase practice from deceased, dis- abled, or disappeared lawyer
- Bonus plans and regular salaries
- Court-awarded legal fees to nonprofit that retained or recommended lawyer
11
Q
What are the RESTRICTIONS ON RIGHT TO PRACTICE
LAW?
A
- Law firm-related agreements can’t restrict right to practice when relationship ends, except for retire- ment benefit agreements
- Settlement agreements for clients can’t restrict right to practice
12
Q
What are the Sellers Duties When Selling a Law Practice?
A
- Sell entire practice or practice area
- Written notice to clients that includes notice of sale, right to obtain other counsel or take pos- session of their files, and the fact that consent to transfer is presumed after 90 days
- Generally cannot continue private practice in local area
13
Q
What Are Buyer’s Duties When Buying a Law Practice?
A
Must honor existing fee arrangements.
14
Q
Can Lawyers provide law related services alongside law-related services?
A
Yes
15
Q
When does RPC apply to law-relate services?
A
- When services are not distinct from legal services
- When lawyer owns or controls entity providing services and does not take reasonable steps to ensure recipients understand that protections of attorney-client relationship don’t apply
16
Q
How is a lawyer-client relationship formed?
A
- Lawyer and client agreement
- Implied assent and reasonable reliance
- Court appointment
17
Q
Is a written fee agreement required for contingent fees?
A
Yes.
18
Q
Is a written fee agreement required for all fees that aren’t contingent?
A
No, it it is preferred.
19
Q
Must all fess be reasonable?
A
Yes. Factors to consider:
* Time and labor
* Complexity
* Nature of relationship
* Fixed or contingent fee
20
Q
When are continent fees not allowed?
A
- Criminal cases
- Domestic relations cases (but allowed in collec- tions cases)
21
Q
Formalities for Contingent Fee Agreements
A
Must be in writing and signed by the client, and must disclose:
* Who is paying expenses
* How fee will be calculated
* Which expenses will be deducted and when
Must also provide written statement at case conclu- sion.
22
Q
Is fee splitting with lawyers within a firm allowed?
A
Yes. Lawyer can share fees with current lawyers in their firm, retired members of their firm, and former firm members with pending cases.
23
Q
What are the requirements for fee splitting with lawyers from different firms?
A
- Both lawyers must be involved or responsible
Option 1: Split proportionate to services performed
by each
Option 2: Each assumes joint responsibility and split the fee any way they like - Client consent to arrangement and shares, con- firmed in writing
- Total fee must be reasonable
24
Q
What decisions are up to the client?
A
- Civil Cases: Whether to settle
- Criminal Cases: What plea to enter, whether to
waive a jury trial, whether client will testify - All Cases: Whether to appeal
25
What decisions are up to the lawyer?
Lawyer generally makes strategic decisions, but must consult with client about how the work is done.
26
When will a lawyers actions bind client?
Lawyer’s actions will bind client when lawyer has actu- al or apparent authority.
Actual authority: Communicated by client to lawyer expressly or impliedly.
Apparent authority: Third party believes lawyer has authority based on client’s actions.
27
Lawyers role whir vulnerable clients
* Maintain normal relationship to the extent possible
* If client at risk of substantial harm, can take protec-
tive action
* When taking protective action, lawyer impliedly authorized to disclose client’s confidential infor- mation to the extent necessary to protect client’s interests
28
Required communication with client
* Case status updates
* Game plan
* Response to reasonable requests for info
* Anything that requires informed consent
29
Lawyers duty to client re Settlement and Plea Offers
Must promptly inform client of settlement and plea bargain offers unless client has expressly authorized acceptance or rejection of certain offers.
30
Lawyer must decline or withdraw when:
* Physical or mental condition materially impairs abil- ity to represent client
* Representation requires violation of RPC
* Fired by client
31
Lawyer may withdrawal when:
* Any reason if no material adverse effect
* Reasonable belief client doing something criminal or fraudulent involving lawyer’s services
* Client used lawyer’s services in past crime or fraud
* Client’s actions repugnant
* Client makes representation unreasonably difficult
* Client hasn’t paid and has been warned
* Unreasonable financial burden
* Other good cause
32
post-termination duties
* Reasonable notice to client
* Refund advance payments if not earned
* Return client’s file unless permitted by law to retain
33
Attorney-Client Privilege applies to:
* Communications only
* Applies only to disclosures in proceedings
34
Duty of confidentiality applies to:
* All information relating to representation
* Applies to disclosures in any setting
35
What communication does attorney-client privilege cover?
Information passed between lawyer and client for the purpose of obtaining legal assis- tance for the client.
* Does NOT cover communications not made for legal assistance
* Does NOT cover pre-existing documents or re- cords
36
Who holds attorney-client privilege?
Client holds the privilege and decides to claim or waive it, but lawyer must claim on client’s behalf in client’s absence.
37
When is attorney-client privilege waived?
Attorney, agent, or client can waive privilege by failing to object, or disclosing to third party.
38
Major exceptions to attorney-client privilege
* Aid in future crime or fraud
* Self-protection
* Litigation between former joint clients
* Competency or intent of deceased client
39
Summary of work-product doctrine
Anything made in anticipation of litigation generally isn’t discoverable UNLESS opponent shows substan- tial need and undue hardship (but even in that case, mental impressions or opinions don’t need to be dis- closed).
40
Duty of confidentiality
* Broader than privilege
* Third party’s knowledge does not affect duty
* Information need not come from client
* Cannot disclose to anyone
41
Informed Consent and Implied Authority as it related to Duty of Confidentiality
* Can disclose with client consent
* Authority to disclose may be implied if disclosure is in client’s interests
42
EXCEPTIONS TO DUTY OF CONFIDENTIALITY
* Prevent death or substantial bodily harm
* Prevent/rectify substantial financial injury to anoth- er if services used in furtherance
* Defend self in dispute concerning lawyer’s conduct
* Obtain legal ethics advice
* Detect and resolve conflicts of interest due to change of employment, merger, or sale of practice
* Comply with court order or law
Note: Duty of candor to tribunal > duty of confidential- ity.
43
What does it mean to Act COMPETENTLY TO PRESERVE CONFIDENTIALITY
Must safeguard confidential information by making reasonable efforts to prevent disclosure or access.
44
Who are conflicts imputed to?
Conflicts are imputed to everyone at firm, except:
* Conflict uniquely personal to lawyer
* Certain conflicts based on past work of lawyer screened from case
45
General Conflicts with Current Clients Rule
Can’t represent client if:
* Representation will be directly adverse to another client, or
* Significant risk that representation will be materi- ally limited by another interest
46
Requirements for Waiving General Conflicts
* Reasonable belief can represent each competent- ly and diligently
* Informed consent, confirmed in writing from each affected client
Note: Being on opposite sides of the same litigation → unwaivable.
47
Examples of Directly Adverse, in the context of conflicts of interest (cannot represent client if directly adverse to another client):
* Clients on opposite sides of same matter
* Representing client’s opponent in another matter
* Cross-examining current client in another matter
48
What is a material limitation, in the context of conflicts of interest (can't represent client if significant risk that representation will be materially limited by another interest)
When representation will be materially limited by:
* Lawyer’s responsibilities to different client, former client, or third person
* Lawyer’s personal interests
49
Representing co-parties in a criminal case
the risk of conflict is high and joint representation isn’t advisable.
50
Representing co-parties in a civil case
the conflict can usually be addressed:
* Must reasonably believe can represent all par-
ties well
* Must explain consequences
* Must get informed consent
* Must re-address conflict if potential conflict becomes real
* Must withdraw if reasonable lawyer would ad- vise any client against consent
* Must get consent of dropped clients if continu- ing to represent any co-parties
51
Conflicts related to lawyer's personal interests
* Representation may continue with client con- sent
* Uniquely personal conflict (e.g., family member is opposing counsel) is not imputed to firm
52
Lawyer's duties to former clients and third parties
Representation may be limited:
* Where lawyer owes a duty of confidentiality to a former client
* Where lawyer is corporate director
* When lawyer acts as fiduciary
53
Misuse of Client's Confidential Information
Must not use client’s information against them without informed consent.
54
Business Transactions with Clients
* Transaction must be fair and reasonable to client
* Lawyer must disclose all terms to client in writing,
in a way the client understands
* Lawyer must advise client in writing to get inde-
pendent counsel
* Client must give informed consent in a signed writing
55
Acquiring an Interest in the Subject Matter of Litigation
No proprietary interest in cause of action or subject matter of litigation, except:
* Contingent fees
* Lien on client’s recovery (if authorized by law)
56
Gifts from Clients
A lawyer cannot:
* Solicit substantial gift from client unless relative
* Prepare instrument giving lawyer or relative sub- stantial gift unless donee related to client
57
Literary or Media Rights
* Cannot have interest in book, movie, or other por- trayal during representation
* Lawyer can have interest in media rights when case is completely over
58
Financial Assistance to Client in Litigation
* No financial help to client in connection with pend- ing or contemplated litigation
* Cannot guarantee loan from someone else to client
59
Exceptions to the prohibition on financial assistance to client in litigation
* May advance court costs and expenses
* May pay court costs and expenses for indigent client
* When representing indigent client pro bono, may give client modest gifts for basic living expenses
60
Aggregate Settlement Agreements
* Fully explain the claims and what everyone’s get- ting
* Get informed consent from each client in a signed writing
61
Third Party Paying for Representation
* Client must give informed consent
* Third party cannot interfere with relationship
* Cannot reveal client’s confidential information
62
Sexual Relations with Clients
* Preexisting sexual relationship generally OK
* Subject to discipline if sexual relationship follows attorney-client relationship
* Conflict not imputed to the firm
63
Duty of Confidentiality to former Clients
Ongoing Duty of Confidentiality
Can’t reveal confidential information or use it to former client’s disadvantage without consent, unless informa- tion has become generally known.
64
Opposing Former Clients
Cannot represent new client against former client if matter is same or substantially related to former client’s matter, unless former client consents.
Meaning of “Substantially Related”
* Same transaction/legal dispute, OR
* Substantial risk confidential information would materially advance new client’s position
65
Conflicts with Former Firm’s Client
Cannot work on opposite side if actually acquired con- fidential information about the matter while at former firm.
66
Former Client Conflicts—Disqualification of Lawyer’s New Firm
If incoming lawyer has conflict, firm can screen the disqualified lawyer:
* No sharing of fees
* No access to case files
* Notice to former client with disclosures about pro- cedures
* Updates to former client
67
Former Client Conflicts—Disqualification of Lawyer’s Old Firm
When client leaves, firm disqualified from represent- ing other side in same or substantially related matter if even one lawyer remaining at firm has confidential information about the case, unless former client con- sents.
68
PROSPECTIVE CLIENT CONFLICTS
* No adverse representation in same or substantial- ly related matter if confidential information would be significantly harmful to prospective client
* Conflict imputed to firm but can be cured with screening
69
Conflicts: moving from employment w/Government to Private Practice
Cannot represent private client without government agency’s consent if:
* Same “matter” (must involve specific facts and parties)
* Lawyer worked personally and substantially on matter while in government
* Conflict imputed to firm but cured with screening
Confidential Government Information
If lawyer acquired confidential government information about a person during government employment, can’t represent private client against them later.
70
Conflicts: Moving from deployment in private practice to government
Normal conflict rules, plus:
* Cannot take part in any matter personally and substantially involved in while in private practice, unless government agency consents
71
Conflict-Former judge or third-party neutral
* Cannot represent client in matter lawyer was per- sonally and substantially involved in as a judicial actor or third-party neutral, or as a law clerk, unless all parties to the proceeding consent
* Conflict imputed to firm but cured by screening, notice to all parties, and notice to the affected tribunal
72
GOVERNMENT EMPLOYEE, JUDGE, OR THIRD-PARTY NEUTRAL NEGOTIATING FOR EMPLOYMENT
* Government employee, judge, or third-party neu- tral cannot negotiate for private employment with any party in a matter they are personally or sub- stantially involved with
* Exception for law clerks who give advance notice to judge
73
DUTY OF COMPETENCE
Must act with the knowledge, skill, thoroughness, and preparation necessary to do the work.
74
Avoiding a Competence Problem
* Associate
* Learn it in time
* Emergency
75
DUTY OF DILIGENCE
Must act with reasonable diligence and promptness.
76
CIVIL LIABILITY TO CLIENT
Negligence:
* Duty of care:
- Competence and diligence exercised by attor- neys in similar circumstances
- Specialist held to higher standard
* Breach of duty
- Missing deadlines
- Failure to send to specialist
- Bad advice
* Causation
- But for malpractice, client would have won
- But for malpractice, client would not have had to pay a large judgment
* Damages
77
CIVIL LIABILITY TO NON-CLIENTS
Duty of care owed to:
* Prospective clients given legal advice
* Those intended to benefit from legal services
* Those invited to rely on opinion or legal services
78
LAW FIRM’S VICARIOUS LIABILITY
Firm is vicariously liable for damages caused by some- one at firm if:
* Action was in ordinary course of business, or
* Person was authorized to act
In a general partnership, all partners are jointly and severally liable for firm obligations.
79
SETTLING MALPRACTICE CLAIMS
Before settling claim or potential claim with current or unrepresented former client, lawyer must:
* Advise them in writing to obtain independent counsel
* Give them reasonable opportunity to do so
80
PROSPECTIVELY LIMITING MALPRACTICE LIABILITY
Cannot make agreement with client saying:
* They can’t sue the lawyer
* Lawyer has no responsibility for work
* Lawyer is liable only to certain amount UNLESS client is independently represented.
NOTES
81
MERITORIOUS CLAIMS AND CONTENTIONS- what can a lawyer NOT do
Lawyer cannot:
* Bring frivolous claim
* Assert frivolous defense
* Take frivolous position
82
Meaning of Frivolous
* No good faith argument under current law, AND
* No good faith argument for changing law
Exception:
When representing criminal defendant or one who could be jailed, can make prosecutor prove every element.
83
CANDOR TO THE TRIBUNAL
Honesty when advocating before an official or body that issues binding legal judgment.
84
Candor Regarding Law
* Cannot knowingly make false statements of law
* Must correct unintentional, material false state- ments
* Must disclose adverse controlling law if opponent fails to
85
Candor Regarding Facts
* Cannot knowingly make false statements of fact
* Must correct unintentional, material false state-
ments
* No duty to volunteer facts (except in ex parte pro- ceedings)
86
False Evidence
* Cannot offer evidence lawyer knows to be false
* May refuse to offer evidence lawyer reasonably believes is false (except testimony of a criminal defendant)
* If false evidence offered, must take reasonable remedial measures (supersedes confidentiality)
* Duty to rectify continues until proceeding is com- pletely over, appeals and all
87
False Testimony by Criminal Defendant Client
* Try to persuade otherwise
* Consider withdrawal
* If all else fails, disclose situation to judge
Note: Some jurisdictions allow narrative testimony, but that is not the ABA approach.
NOTES
88
FAIRNESS TO OPPOSING PARTY AND COUNSEL-Lawyer Cannot:
* Hide, tamper with, or falsify evidence
* Make frivolous discovery requests
* Advise a person not to talk to the other side, UN- LESS the person is the client, the client’s relative, or the client’s agent
* Make unlawful payments to witnesses
* Violate a court rule or order (but can openly refuse to obey on the basis that it is not valid)
89
Fairness in Trials
* Cannot allude to anything inadmissible
* Cannot assert personal knowledge
* Cannot state personal opinion about justness of cause, credibility of witness, or guilt or innocence of party
90
IMPARTIALITY AND DECORUM OF THE
TRIBUNAL
* Cannot attempt to influence court or jurors in way prohibited by RPC
* Cannot disrupt proceedings
* Cannot speak to judge or court officials without other side present
* Cannot talk to jurors about ANY subject during case
* Post-discharge interviews of jurors allowed unless juror does not want to talk, or it involves misrepre- sentation, coercion, or harassment
91
TRIAL PUBLICITY
No public statement if lawyer should know it is likely to cause material prejudice, including:
* Character or credibility
* Results of examinations
* Whether defendant will plead guilty
* Whether defendant confessed
* Anything inadmissible at trial
92
Trial Publicity-Permitted Statements
* Dry facts of case
* “They started it”—can make statement to protect client from prejudice caused by another
93
ADVOCATE AS WITNESS
Lawyer can’t act as advocate in case where lawyer is likely to be a necessary witness.
If disqualified under this rule, disqualification not imputed to firm but generally need client consent, confirmed in writing, if another lawyer at the firm takes over.
94
Exceptions to disqualify a lawyer who will appear as a witness
* Testimony concerns uncontested matters or for- mality
* Testimony concerns the nature and value of legal services in the case
* Withdrawal would cause substantial hardship to client
95
TRUTHFULNESS IN STATEMENTS TO
OTHERS
* Must not knowingly make false statement of mate- rial fact or law to third person
* Must disclose material fact necessary to avoid helping client commit crime or fraud (BUT must stay within confidentiality rules)
96
COMMUNICATIONS WITH REPRESENTED
PERSONS
* When representing a client in a matter, must get counsel’s consent before talking to represented person about the matter
* Parties can communicate directly with each other
97
Communications with Organizations
Need permission from organization’s counsel to talk to:
* Anyone with authority to obligate organization
* Anyone whose conduct can be imputed to organi- zation
* Anyone who supervises or regularly consults with organization’s lawyer
NOTES
98
COMMUNICATIONS WITH
UNREPRESENTED PERSONS
* Can communicate with unrepresented person, but
must not act disinterested
* Must not give unrepresented person legal advice if reasonably possible their interests will conflict with client’s
99
HEAVY-HANDED TACTICS
Cannot do something with no substantial purpose other than to embarrass, delay, or burden someone.
100
RECEIVING DOCUMENTS SENT INADVERTENTLY
Must promptly notify sender so sender can take pro- tective measures.
101
EVALUATING CLIENT’S AFFAIRS FOR
THIRD PARTY
Can evaluate client’s affairs if doing so is compatible with other responsibilities to client.
* No significant risk to client → impliedly authorized to disclose to third party
* Materially harmful to client → client’s informed consent required before disclosure
102
LAWYER AS NEGOTIATOR
No false statements of material fact in negotiations, but can “puff” (e.g., on estimates of price or value, or acceptable settlement limits).
103
LAWYER AS THIRD-PARTY NEUTRAL
When lawyer acts as mediator, arbitrator, etc., must make sure unrepresented parties understand that law- yer is not representing them.
104
LAWYER AS PROSECUTOR
Prosecutors must:
* Have probable cause
* Ensure accused advised of right to counsel, how to get counsel
* Ensure accused given opportunity to get counsel
* Not attempt to get accused to waive important pretrial rights
* Disclose evidence favorable to defendant
* Promptly disclose any new, credible, and material evidence of wrongful conviction
* Try to remedy conviction if clear and convincing evidence of innocence, and conviction in own juris- diction
* Not subpoena other lawyers to give evidence about clients unless evidence is essential, not privi- leged, and cannot be obtained in another way
105
LAWYER APPEARING IN NON-
ADJUDICATIVE PROCEEDING
Must disclose if appearing on behalf of client (but need not identify client).
106
LAWYER REPRESENTING ORGANIZATION-Relationship with Constituents
* Duty of loyalty to organization, not people
* Representing both organization and person in organization requires both to waive with informed consent
* If interests conflict, lawyer must tell person work- ing for organization they don’t represent them and communications aren’t covered by privilege
107
LAWYER REPRESENTING ORGANIZATION-Violations
If counsel learns that someone in organization violated duty or law that may cause substantial harm to organi- zation:
* Counsel normally has duty to report inside organi- zation
* If no action taken, counsel MAY report to outside authority even if confidentiality applies
108
COMMINGLING AND TRUST ACCOUNTS- Safeguarding Property of Others
* No commingling with own property
* Held to standard of fiduciary
109
COMMINGLING AND TRUST ACCOUNTS-
Trust Accounts
* Firm’s money in office account
* Client money in trust account, including advance payments (firm can put own money in client trust account for bank services charges only)
110
RECORDKEEPING, NOTIFICATION, AND DELIVERY
Lawyer must:
* Keep complete records of all money and property
* Preserve records for five years after representation
* Comply if client requests accounting
* Promptly notify client or third party upon receipt of property in which they have interest
* Promptly deliver property
111
Dispute Between Lawyer and Client
Must keep disputed portion in client trust account until dispute resolved.
112
Dispute Between Client and Third Party
If third party has a valid claim (e.g., creditor with lien), must keep disputed portion of recovery in client trust account until dispute resolved.
113
communications about legal services must not be false or misleading which is:
Must not make false or misleading statements.
- Omitted facts: Misleading if leaves out fact necessary to make communication as a whole not materially misleading.
- Unfounded conclusions: Misleading if substantial likelihood reasonable person will formulate specific conclusion without reasonable factual foundation.
- Unjustified expectation based on past results: Mis- leading if reasonable person could think that lawyer could do as well in a similar case, without regard to facts and law in that case.
- Unsubstantiated comparisons: Misleading if reason- able person would think comparison can be substanti- ated.
114
Communications about legal services-REQUIRED INFORMATION
All communications about lawyer or legal services must include:
* Name of at least one lawyer or firm responsible for content
* Contact information (can be phone number, physi- cal office location, email address, or website ad- dress)
115
Communications about legal services-FIRM NAMES, LETTERHEADS, OR OTHER DESIGNATIONS
* Generally can include names of deceased or re- tired partners
* If named partner is in public office, cannot use name during any substantial period when lawyer is not regularly and actively practicing with firm
* Trade name misleading if it implies that lawyers are practicing in a firm when they are not (e.g., solo practitioner includes “and Associates” in firm name)
* Trade name misleading if it implies a connection with a government agency or charity; geographi- cal names may require a disclaimer
116
Communications about legal services-FIELDS OF PRACTICE AND
SPECIALIZATION
Lawyer can state that they practice in certain fields, or “specialize in” or “concentrate in” or are a “specialist” in certain fields if statement is based on their expe- rience, specialized training, or education, and is not false or misleading.
117
Communications about legal services-Certified Specialist
If lawyer states or implies that they are a certified specialist:
* Must be certified by organization accredited by ABA or approved by state authority
* Must clearly identify certifying organization
NOTES
118
Communications about legal services-RECOMMENDATIONS
Generally cannot give or promise anything of value in return for recommendation.
119
Nominal Gifts
Permitted if token of appreciation, but not if lawyer already promised it in exchange for the recommen- dation or if there is an expectation of more gifts in the future.
120
Paying for Advertising and Other Services
Lawyer can pay:
* Reasonable costs of advertising
* Usual charges of legal service plan
* Cost of participating in nonprofit referral service
121
Reciprocal Referral Agreements
Lawyer may agree with lawyer or nonlawyer profes- sional to send clients to each other, but:
* Must not be exclusive
* Shouldn’t be of indefinite duration
* Referred client must be told of agreement
122
SOLICITATION definition
Definition: Communication initiated by or on behalf of lawyer and directed to a specific person known to need legal services in a particular matter.
123
Solicitation rule re on Live Person-to-Person Contacts
Must not solicit employment by live person-to-person contact when significant motive is money:
* No in-person contact
* No live telephone contact
* No real-time audio or video
Ban applies ONLY when solicitation is motivated by pecuniary gain.
Texts, emails, letters, and recorded messages are all generally permitted because there is no live per- son-to-person contact.
124
Are potential Clients covered by the ban on live person-to-person solicitation?
No. Potential clients are not covered by this ban.
Can use live person-to-person contacts when solicit- ing:
* Relatives
* Close friends
* Persons with prior business relationships
* Persons with prior professional relationships
* Other lawyers
* Routine business users of services
125
When All Solicitation Prohibited
Regardless of method or identity of potential client, all solicitation is banned in the following circumstances:
* Person has made known to lawyer that they do not want the solicitation
* Solicitation amounts to coercion, duress, or harass- ment
* Specific legal restrictions (civil or criminal penalties)
126
GROUP AND PREPAID SERVICE PLANS
* Lawyer can reach out to organizations about adopting plan
* Lawyer cannot reach out to potential members
* Plan can reach out to potential members if not known to need particular legal services
* Lawyer who owns or directs plan cannot provide legal services through the plan
127
ACCEPTING APPOINTMENTS (pro-bono)
Must accept unless good cause not to, such as:
* Appointment would cause violation of law or RPC
* Appointment would be unreasonable financial burden
* Personally unable to represent client effectively
128
How does RPC applies to QUICK-ADVICE PROGRAMS?
RPC apply to limited legal service programs (e.g., quick advice hotline), except the conflicts rules are relaxed because there is no time to run a conflicts check. Lawyer only subject to discipline if there was a known conflict problem.
129
MEMBERSHIP IN LEGAL SERVICES
ORGANIZATIONS
When serving as a member, director, or officer, lawyer does not have attorney-client relationship with per- sons served by organization, but must not participate in actions that would harm lawyer’s regular clients or persons served by the organization.
130
LAW REFORM ACTIVITIES
* Permitted even if reform will harm interests of cli- ent
* Must disclose to organization if client may benefit from reform
131
STATEMENTS ABOUT JUDGES AND
PUBLIC LEGAL OFFICIALS
Cannot make statements about the qualifications or integrity of judges or public legal officials, or candi- dates for these positions, if such statements are false or made with reckless disregard as to truth or falsity.
132
ABILITY TO INFLUENCE GOVERNMENT
OFFICIALS
Cannot state or imply ability to influence government agency or official, or to achieve results in an illegal or unethical way.
133
POLITICAL CONTRIBUTIONS
Cannot make a “pay to play” contribution to obtain a government position (rule does not apply to unpaid positions). Whether there is a violation depends on the purpose of the contribution.
134
WHAT GOVERNS JUDICIAL CONDUCT
CJC applies to all who perform judicial functions at state level.
135
Judicial Conduct-MAINTAINING INDEPENDENCE AND
IMPARTIALITY
Must uphold and promote judiciary’s independence, integrity, and impartiality.
* Must avoid impropriety or even the appearance of impropriety: conduct that creates reasonable perception that judge has violated CJC, or conduct that reflects poorly on judge’s honesty, impartiality, temperament, or fitness
* Letters of recommendation may be on official let- terhead if reference is personal, and not perceived as attempting to exert pressure; otherwise, must not use judicial letterhead for personal business
* Must not abuse prestige of office to advance per- sonal interests, or permit others to abuse it
136
Judicial Conduct-PERFORMING DUTIES IMPARTIALLY,
COMPETENTLY, AND DILIGENTLY
* Must hear and decide all matters assigned, unless disqualification is required
* Must not let outside interests influence conduct or judgment
* Must not allow impression that judge can be influ- enced
* No bias, prejudice, or harassment
* May encourage settlement, but must not coerce
137
Judicial Conduct-EX PARTE COMMUNICATIONS
Definition: Communication between judge and repre- sentative from one side when no representative from other side is present. Usually prohibited.
When Allowed
* Expressly authorized by law or court order
* In mediation or settlement, with consent of parties
* Emergencies (when non-substantive and won’t give one side an advantage)
138
Judicial conduct-Inadvertent Receipt of Ex Parte Communication
Judge must promptly notify parties and give opportu- nity to respond.
139
COMMUNICATIONS ABOUT PENDING CASES-Court Personnel and Other Judges
Can discuss cases with court personnel and other judges, but must not discuss facts not on the record.
140
COMMUNICATIONS ABOUT PENDING CASES-
Legal Experts
* Advice must be in writing
* Expert must be disinterested
* Must notify parties in advance
141
Judicial Conduct-Interfering with Case
Judge must not make comments about any case, in any court, that might affect case’s outcome or inter- fere with fair trial.
142
Judicial Conduct-Jurors
No commending or admonishing jurors for the sub- stance of their verdict.
143
Judicial Conduct-INDEPENDENT INVESTIGATION
* Must not independently investigate the facts in a case
* Must consider only the evidence presented
144
Judicial Conduct-DISQUALIFICATION
Judge must disqualify self when impartiality might rea- sonably be questioned.
145
Judicial Conduct-Grounds for Disqualification
* Bias or personal knowledge
* Prior involvement in the case
* Judge or family member has economic interest
* Family member is involved in proceeding
* Excessive contributions to judge’s election cam- paign
* Judge publicly committed to a position or result
146
Judicial Conduct-Remitting Disqualification
Parties can remit (waive) disqualification for all grounds, EXCEPT personal bias against a party or party’s lawyer
147
EXTRAJUDICIAL ACTIVITIES-Teaching, Speaking, Writing, Etc.
Judge may be reasonably compensated unless it would reasonably appear to undermine indepen- dence, integrity, or impartiality.
148
EXTRAJUDICIAL ACTIVITIES-
Reporting Requirements
Judge must publicly report amount or value of:
* Extrajudicial compensation
* Reimbursement
* Certain gifts, loans, bequests, and other things of value
149
EXTRAJUDICIAL ACTIVITIES--Participating in Organizations
Judge may take part in activities sponsored by:
* Organizations concerned with law or administra- tion of justice
* Educational, religious, charitable, fraternal, or civic nonprofits
150
EXTRAJUDICIAL ACTIVITIES-Prohibited Activities
* Cannot participate in activities that would lead to
frequent disqualification
* Cannot accept appointment to governmental po- sition or voluntarily testify at a government hear- ing unless it relates to law or the administration of justice
* Cannot serve as officer, director, manager, general partner, advisor, or employee of a business (excep- tion for personal/family investments and business- es)
* Cannot testify as character witness, except when duly summoned
* Cannot be affiliated with organization that practic- es invidious discrimination
* Cannot serve as executor, administrator, guardian, or other fiduciary (except for family members)
151
Can a full-time judge practice law?
Full-time judge must not practice law, unless:
* Appearing pro se
* Giving legal advice to family
* Drafting legal documents for family
152
Can a judge act as a third-party neutral?
Full-time judge must not act as arbitrator, mediator, or private judge unless expressly authorized by law.
153
Judicial Conduct-POLITICAL AND CAMPAIGN ACTIVITIES
* Can speak on behalf of own candidacy, but must keep independent from political organizations
* Cannot make pledges or promises inconsistent with impartial performance of duties
* Cannot personally solicit campaign contributions
* Cannot publicly endorse or oppose other candi- dates
* Can make factually accurate public response to false or misleading statements
* Judge who becomes candidate for nonjudicial elective office must resign from judicial office
154
Misconduct by Lawyers or Other Judges
* Judge knows -> Must report
* Judge receives information but isn’t certain ->
Must take appropriate action
155
Disability or Impairment of Lawyers or Other
Judges
Must take appropriate action if judge reasonably believes that lawyer’s or other judge’s performance is impaired by drugs, alcohol, or their mental, physical, or emotional condition.
