PR Rules Flashcards

Question

Exceptions to the Duty to Protect Confidences:

Answer 1

Client can consent and waive the rule, but only to the extent that the lawyer has given the client full information about the risks 2. Revelation of past criminal conduct a. If the crime is over, the lawyer cannot prevent harm by revealing it b. Society relies on the fair administration of justice and clients having unobstructed access to counsel c. Lawyer should protect most information about past criminal activity by clients

Answer 2

(a) … Unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b) (b) Disclosure authorized by 1.6(b) (1) To prevent reasonably certain death or substantial bodily harm; • Big distinction between past crimes and future crimes (6) To comply w/other law or a court order: • Failure to render aide • Prosecutor argued – Violation of a health law to report the location of dead bodies w/in a certain time frame ** BIG POINTS IN CLASS --> See the additional exceptions (2-5)

Answer 3

1. Confidential Client Information: Information relating to the representation of a client, other than information that is generally known. 2. Adverse Effects: Include frustrations of the client’s objectives in the representation; material misfortune, disadvantage, or other prejudice to the client; financial or physical harm to the client, or personal embarrassment to the client 3. Reasonable Prospect of Harm: Whether a lawyer of reasonable caution, considering only the client’s objectives, would regard use or disclosure in the circumstances as creating an unreasonable risk of adverse effect either to those objectives or to other interests of the client.

Answer 4

A lawyer may reveal confidential information (7) when the lawyer has reason to believe it is necessary to do so in order to prevent the client from committing a criminal or fraudulent act. • Key: Disclosure is not mandatory, it is permissive • You are not subject o discipline because reporting future crimes not involving SBI or death is discretionary.

Answer 5

Deliberate deception; conduct that is fraudulent under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive. a. Not limited to criminal conduct b. Intended to guide a lawyer’s conduct as an officer of the court as a prophylactic measure to protect against client perjury contaminating the judicial process

Answer 6

a. Did not know but prepared a fraudulent document b. Did not verify client information c. Did not exercise prevailing care to discern client fraud i. Liable for negligence to those injured by the fraudulent act d. Could be subject to discipline or criminal charges for advising a client on how to evade detection or prosecution e. Omissions or half-truths can also constitute fraud

Answer 7

Scope of confidentiality: MRPC 1.6 and TDRPC 1.05(a) make approximately the same information confidential – all information related to the representation Exceptions for potential future client acts resulting in bodily harm or death: o MRPC 1.6(b)(1) allows disclosure of confidential information to prevent SBI or death, whether or not client commits crime or fraud o TDRPC 1.05(e) requires disclosure of confidential information where it is reasonably certain that doing so will prevent client crime or fraud

Answer 8

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. *** NOTE SAME AS 1.02(c)

Answer 9

A lawyer may reveal information relating to the representation of a client to the extent the lawyer believes reasonably necessary: (1) to prevent reasonably certain death or SBH (Comment 6: Such harm is reasonably certain to occur if it will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails..) (2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of when the client has used or is using the lawyers services (3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services; (4) to secure legal advice about the lawyer’s compliance w/these rules (5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client; (6) to comply with other law or a court order (7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition of ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client a. New exception to check for conflicts of interest b. When you move law firms you carry your conflicts w/you. If you represented a client in the old firm, who is adverse to a client in the new firm, you could have a conflict of interest – to determine whether you have the conflicts, you have to tell them what the subject of the matter as c. Might see conflicts of interest problem & someone is trying to resolve that in a new firm – are they sub. to discipline because they revealed confidential info while trying to make this determination? No.

Answer 10

Lawyer has a duty to take reasonable measures to safeguard client info. a. i.e.: Don’t create a password for the cloud that is “password” b. Comment 18: Facts to help you determine c. Reasonable measures to store documents, change password if your account has been hacked, etc. d. Not just storing but sharing also

Answer 11

(b) Except as permitted by p (c) and (d) or as required be (e) and (f), a lawyer shall not knowingly: (1) Reveal confidential information of a client or a former client to: (i) a person that the client has instructed is not to receive the information or; (ii) anyone else, other than the client, the client’s representatives, or the members, associates, or employees of the lawyer’s law firm (2) Use confidential information of a client to the disadvantage of the client unless the client consents after consultations (3) Use confidential information of a former client to the disadvantage of the former client after the representation is concluded unless the former client consents after consultation or the confidential information has become generally known (4) Use privileged information of a client for the advantage of the lawyer or of a third person, unless the client consents after consultation

Answer 12

(c) A lawyer may reveal confidential information: (1) When the lawyer has been expressly authorized to do so in order to carry out the representation (2) When the client consents after consultation (3) To the client, the client’s reps, or the members, associates, and employees of the lawyers firm, except when otherwise instructed by the client (4) When the lawyer has to believe it necessary to do so in order to comply with a court order, a TDRPC, or other law (5) To the extent reasonably necessary to enforce a claim or establish a defense on behalf of the lawyer in a lawyer/client controversy (6) To establish a defense in a criminal charge, civil claim or disciplinary compliant against the lawyer or the lawyer’s associates based upon conduct involving the client tor the representation of the client (7) When the lawyer has reason to believe it is necessary to do so in order to prevent the client from committing a criminal or fraudulent act (8) To the extent revelation reasonably appears necessary to rectify the consequences of a client’s criminal or fraudulent act in the commission of which the lawyer’s services has been used

Answer 13

A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, as permitted or required by these rules

Answer 14

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

Answer 15

a. Tort Law – Legal malpractice, negligence standard b. The disciplinary rules – MRPC 1.1 or TDRPC 1.01(a) c. The Constitution – 6th Amendment or Strickland

Answer 16

1. Unsatisfied clients seek recourse against lawyers in various ways a. Refuse to pay fees b. File malpractice suits c. File appeals because their lawyer was incompetent i. Must prove only that the assistance of counsel was unusually poor but also that better representation would have made a different (i.e. “but for” the bad representation) 2. Sixth Amendment right to “effective assistance of counsel”

Answer 17

(1) Serious error; and (2) Prejudice (Serious error of lawyer, lead to the bad result) (1) D must show counsel’s performance was deficient. a. Counsel made errors so serious that counsel was not functioning as guaranteed by the 6th Amendment b. (i.e. serious error) c. Not going to look over attorney’s shoulder w/regard to every tactical decision they make (2) D must show that the deficient performance prejudiced the defense a. Requires showing that the counsel’s errors were so serious as to deprive the D of a fair trial, a trial whose result is reliable. b. (i.e. An error by counsel to set aside judgment, even if professionally unreasonable, does not warrant setting aside a judgment of a criminal proceeding if the error has no effect on the judgment)

Answer 18

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. • Requisite Ability: Legal knowledge, skill • Adequate Conduct in the Representation: Thoroughness and preparation Comment 2: A lawyer need not have special training or special experience to handle legal problems of a type which the lawyer is unfamiliar. Can be skilled as much as an experienced... (LOOK at the damages involved) Comment 3: In an emergency a lawyer may give advice (when really would have referred or consulted but that's impractical) but the assistance should be limited to that reasonably necessary in the circumstances for bad advice could jeopardize the client's interest.

Answer 19

(a) A lawyer shall not accept or continue employment in a legal matter which the lawyer knows or should know is beyond the lawyers competence, unless: (1) another lawyer who is competent to handle the matter is, w/the prior informed…

Answer 20

TDRPC 1.01(a): Similar to MRPC1.1, the TDRPC defines competence as reasonable knowledge, skill or training, but does not include “prep or thoroughness” like MRPC 1.1 • Also includes two exceptions (emergency and competence through associating other counsel) that are either in comments or implied in 101., cmt. 3 • Focus is more being competent to take the case vs. being competent during the case. Biggest = Prep/thoroughness

Answer 21

1. Ask: Is there an intent to deceive? 2. Ethical rules specifically direct lawyers to not lie to tribunals or to persons other than clients 3. Client may sue the lawyer in tort or in fraud (no limited to discipline through the rules) 4. Fiduciary Duty/Lawyer/Client Relationship: One of most abundant good faith requiring absolute and perfect candor, openness and honesty, and the absence of any concealment or deception. 5. Most lawyers see a lie & misrepresentation as the same thing – unless it’s a situation where you evade the question a. Misrepresentation – Intent to deceive

Answer 22

1. Return phone calls and e-mails by the end of the day 2. Send status letters at least once a month (more frequently if the case demands so) 3. Don’t make significant decisions in the litigation w/o consulting your client a. Legal research, moving dates, etc. (No need to ask) b. Venues, settling, things related to choices * Need to ask*

Answer 23

A lawyer shall act with reasonable diligence and promptness in representing a client. NOTE: 1.01(b) Distinction: A lawyer shall not (1) neglect a legal matter entrusted to him; or (2) FREQUENTLY FAIL to carry out the obligations that the lawyer owes a client (Comment 7: A lawyer who acts in good faith is not subject to discipline)

Answer 24

It is professional misconduct for a lawyer to: (a) violate or attempt to violate the MRPC, knowingly assist or induce another to do so, or do so through the acts of another (b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects (c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation (d) engage in conduct that is prejudicial to the administration of justice (e) state or imply an ability to influence … (f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law..

Answer 25

A lawyer shall (1) promptly inform the client of any decision or circumstance w/respect to which the cleint’s informed consent, as defined in 1.0(e) is required (2) Reasonably consult with the client about the means by which the client’s objective is to be accomplished; (3) Keep the client reasonably informed about the status of the matter; (4) Promptly comply with reasonably requests for information; and (5) Consult with the client about relevant limitation on the lawyer’s conduct when the lawyer knowns that the client expects assistance not permitted by the MRPC (b) The lawyer shall explain the matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation

Answer 26

A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. • When read together the two rules function the same way (i.e. 1.03/1.4)

Answer 27

In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to the law but to other consideration such as moral, economic, social and political factors, that may be relevant to the client’s situation. • Mandatory: You shall render candid advice • You may include – don’t have t include o Refer to all moral/political factors (in the case of the memo) Comment 1: A client is entitled to straightforward advice expressing the lawyer’s honest assessment. Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront. In presenting advice, a lawyer endeavors to sustain the client’s morale and may put advice in as acceptable a form as honesty permits. However, a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client. • This often comes into play because client’s come to you looking for a CYA (example: Client wants you to tell them they may fire an employee and be safe from discrimination claims), they then have the ability to turn around and sue you if they received “bad” advice.

Answer 28

1. The two rules are substantially similar. 2. Section sentence of 2.1 (re: non-legal advice) is omitted from the text of TDRPC 2.01 but included in Comment 2 of the rule.

Answer 29

a. Cannot modify the scope so severely that representation would not be competent under MRPC 1.1 (See. 1.2 reasonable modification) i. Example: File lawsuit but agree to conduct no discovery and not show up at trial b. Cannot surrender the right to fire the lawyer i. Lawyers never want to be fired from a contingency fee situation (you have a case even if client fires you but it gets ugly) c. Cannot surrender the right to settle or otherwise stop litigation i. Client cannot agree to let the lawyer decide on his/her own

Answer 30

A lawyer may limit the scope of representation if the limitation is reasonable under the circumstances and the client gives informed consent. Sub. to the three rules that cannot be modified.

Answer 31

Substantially similar and functionally identical.

Answer 32

1. The lawyer must keep the client “reasonably” informed about the “status” of the matter, to permit the client to make informed decisions regarding representation. (MRPC 1.4) 2. Once consulted and advised, the client has the right to make decisions concerning the “objectives” of the representation and the explicit right to make four critical decisions: a. Civil: - - To settle or refuse to settle b. Criminal: - -To decide on the plea to be entered - - Whether to waive jury trial - - Whether to testify

Answer 33

Except for decisions reserved for clients and in the absence of an agreement on these matters, a lawyer may take “any lawful measure w/in the scope of representation that is reasonably calculated to advance a client’s objective” a. To move to dismiss a complaint and what discovery to pursue or resist, to accommodate reasonable requests of opposing counsel b. To object or waive objection to questions during hearings, or c. To decide what questions to ask a witness * In general, the client decides the objectives, the lawyer decides the means to accomplish those objectives.

Answer 34

Civil clients decide whether to settle i. Client can give you permission to settle between a range, that’s okay. Cannot completely aggregate the decision to the lawyer Criminal clients decide whether i. To take or refuse a plea ii. To testify, or iii. To waive a jury trial If they don’t fit here, then refer back to the general rule All of these things you must consult and get their approval

Answer 35

1. Substantially similar 2. 1.02(a): Includes langue about lawyer’s abiding by client’s decisions on “general methods of representation” but Comment 1 clarifies that the lawyer has control of the “means.”

Answer 36

1. In an attorney/client relationship there is a decision making guide set out in MRPC 1.2. A client may have trouble making these decisions that are in his best interest. 2. Diminished Capacity = Children 3. Elements to MRPC 1.14(b): a. Reasonably believe the client has diminished capacity b. Is at risk of substantial physical, financial, or other harm unless action is taken c. Cannot adequately act in the client’s own interest d. The normal client/lawyer relationship cannot be maintained provided (a)

Answer 37

When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client's own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian. Persuade the client to agree to a psych eval by lying to client Comment: The lawyer MAY request a GAL (THINK: children)

Answer 38

A lawyer shall take reasonable action to secure the appointment of a guardian or other legal representative for, or seek other protective orders with respect to, a client whenever the lawyer reasonably believes he client lacks legal competence and that such action should be taken to protect the client.

Answer 39

1. Legal Competency and Diminished Capacity: a. Slightly different 2. TDRPC: Lawyer does not have a choice to requires a psych evaluation a. “Lawyer shall” b. Mandatory rule (even against the wishes of the client)

Answer 40

a. Representation that will result in a violation of ethics rules or other law b. Lawyer is impaired in the representation, mentally of psychical; or c. Client fires the lawyer i. Okay in almost all situations (except on the eve of trial) d. The Texas rule is substantially similar (TDRPC 1.15(b))

Answer 41

a. If the withdraw won’t materially adverse the client i. THINK: They paid you a lot of money to start their case b. The client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent c. The client has used the lawyer’s services to perpetrate a crime or fraud; d. The client insists upon a course of action which you fundamentally disagree i. Example: Client insists on testifying and if he does you’ll lose - - Under the rule you can probably withdraw but the court probably won’t let you e. Client fails to fulfill obligation to lawyer (fees, meetings, providing document, etc.) and the lawyer has given a warning i. Example: Lawyer has appeared on the record but has not been paid two weeks in advance. - - Court probably won’t allow because you’ve already appeared and it will delay the case f. Matter creates a financial hardship for the attorney g. Client is unreasonably difficult h. “Other” good cause (i.e. a catchall) * **Keep in mind, if you have appeared in litigation, the law requires court approval for you to withdraw. - - Be mindful of where and who you appear for (friend in Fort Worth, pay you in drinks..)

Answer 42

A lawyer may refuse to the client certain law-firm docs reasonably intended for internal review, such as memorandum discussing which lawyers in the firm should be assigned to a case (lists additional examples – but this one is not

Answer 43

(2) On request, a lawyer must allow a client or former client to inspect and copy any document possessed by the lawyer relating to the representation, unless substantial grounds exist to refuse (sounds like a broad standard) (3) Unless a client or former client consents to non-delivery or substantial grounds exist for refusing to make delivery, a lawyer must deliver to the client or former client, at an appropriate time and in any even promptly after the representation ends

Answer 44

* Be careful what you put in writing * Ask if you could send the file to their attorney * Create something that is clearly an internal memo

Answer 45

1. The rules are largely the same. 2. But TDRPC 1.15(d) makes it more difficult or attorneys to retain client files to enforce a lien. * Be very careful if you do this

Answer 46

1. Generally: A lawyer must not allow personal interests of another client, or the interests of a third person to interfere w/loyalty to a client. 2. Consequences of a Conflict of Interest: a. Before: Lawyer must not take on a client’s matter if he is aware of a COI b. After: Lawyer must withdraw c. Failure to handle properly: i. Disqualification 1. THINK: Opposing counsel will file, the client will lose money getting a new attorney up to speed & fees already paid to you 2. TDRPC 8.03: Duty to report promptly (people often wait so fees are higher) ii. Professional Discipline Under MRPC – Come after your license iii. Malpractice

Answer 47

When one lawyer cannot handle a matter because of a COI, the conflict extends to other lawyers in the firm (Firm = One single unit for COI purposes) a. Exception: When the conflict is personal to the disqualified lawyer or involves duties owned to former clients and b. The disqualified lawyer is timely screened from participation in the matter and c. Takes no part in the fee from the matter

Answer 48

1. Identify actual or potential conflicts 2. If a conflict does exist determine whether the client may consent to the conflict 3. If the client is consentable, did the clients give informed consent?

Answer 49

1. MRPC 1.7(a)(1): Direct Adversity: (1) You represent one client against another current client in different matters a. Example: You represent Client A against Client B, then Client C (also your client) is divorcing Client A. b. Assuming you reasonably believe your ability to represent the client, this matter is consentable 2. (2) You represent one client against another client in the same lawsuit a. Example: Your Client A, sues Client B (Both sides of the “v”) b. MRPC 1.7(b)(3): This is not consentable 3. (3) You are required to cross examine your own client (not consentable) (Comment 6) MRPC 1.7(a)(2): Material Limitation: All other situations where there is a significant risk that your responsibilities to another client, former client, third party or your NOTE: Comment 6 1.7: Absent consent, a lawyer may not act as an advocate in one matter against the per on in another matter (SEE TX DISTINCTION)

Answer 50

a. Despite a concurrent COI, a lawyer may represent a client if: i. The lawyer reasonably believes that he can competently and diligently represent each affected client; ii. The representation is not prohibited by law iii. The representation does not involve the assertion of one claim against another client represented by the lawyer in the same litigation and iv. Each affected client gives informed, written consent b. Informed Consent: Each client must understand how the conflict can cause harm i. Can almost always be revoked

Answer 51

(a) a lawyer shall not represent opposing parties to the same litigation (b) in other situations and except to the extent permitted by P (c), a lawyer shall not represent a person if the representation of that person: (1) Involves a substantially related matter in which that person’s interests are materially and directly adverse to the interests of another client of the lawyer or the lawyer’s firm or (2) Reasonably appears to be or become adversely limited by the lawyers or law firm’s responsibilities to another client or to a third person or by the lawyers or law firm’s own interest (c) A lawyer may represent a client in (b) if: (1) The lawyer reasonably believes the representation of each client will not be materially affected; and (2) Each affected or potentially affected client consents to such representation after full disclosure of the existence, nature, implications, and possible adverse consequences of the common representation and the advantages involved, if any (d) A lawyer who has represented multiple parties in a matter shall not thereafter represent any of such parties in a dispute among the parties arising out of the matter, unless prior consent is obtained from all such parties to the dispute (e) If lawyer has accepted in violation of this rule, or if multiple representation becomes improper under this rule, the lawyer shall promptly withdraw from one or more representations to the extent necessary for any remaining representation to be in violation of this rule (f) Extends to members of the lawyer’s firm

Answer 52

1. In Texas, attorneys may be directly adverse to their own client, where the matters are not substantially related. TDRPC 1.06(b)(1). 2. And so long as it reasonably appears that the lawyer/the law firm’s responsibilities or interests to another client or third party becomes adversely limited. TDRPC 1.06(b)(2).

Answer 53

Because the interest of criminal co-defendants are likely to diverge, a lawyer should not try to defend two people in a criminal case THINK: Police Brutality Hypo - Someone has to be guilty

Answer 54

1. A lawyer may represent two plaintiff’s or two defendants whose interests are potentially in conflict if: a. The lawyer concludes he can effectively represent both clients and b. The lawyer obtains the informed, written consent of both clients

Answer 55

1) A common goal 2) If there could be a conflict, the lawyer must provide the clients w/information about the possible downsides of the joint representation and obtain their consent i. If you say, “there’s something I can’t tell you” then you’ve broken 1.6 ii. You simply just say “A conflict has come up, I have to withdraw” – Clearly he’s probably going to get it Best practice – Just stay out of it!!!

Answer 56

a. Ask: Actual or potential conflict that is “reasonably apparent” to the lawyer? b. Harmonious – No consent c. Divergent interests or goals or tension – Consent d. NOTE: Even forming an LLC, you’re representing two clients & probably should get informed consent.

Answer 57

No. Cannot be a “mere scrivener” who is simply recording their preferences.

Answer 58

a. A lawyer owes both clients a duty of loyalty, which might be compromised if the lawyer keeps secrets from either one of them. b. No attorney-client privilege shielding information from either of the clients when they are jointly represented (unless the clients have agreed otherwise), but the ethical duty to protect confidences is less clear cut. Rule 1.7: Suggests that a lawyer usually should not keep confidences received from one joint client from the other (p. 427)

Answer 59

a. A lawyer may not continue to represent both (or all) of the clients because that would involve the lawyer in suing one client on behalf of another in an adversarial situation. b. THINK: If the lawyer withdraws from one client, the other becomes a former client. In this case, the lawyer cannot represent one client in a lawsuit against a former client because the suit would be “the same or a substantially related matter” (Rule 1.9) and its initiation would be materially adverse to the interests of the former client. i. In such situation, representation is allowed only w/the consent of the former client. ii. KEY: As part of the informed consent process, the lawyer should work out w/the client what would happen if litigation develops and whether they would consent to the lawyer representing one (or fewer than all) of them against the other.

Answer 60

1. A lawyer must not represent two clients in separate, unrelated matters when they have inconsistent legal positions if there is a substantial risk that the representation of one client will be materially limited by the lawyer’s responsibilities to the other client. a. This is consentable, although it would be unlikely a client would consent

Answer 61

a. Where cases are pending: Favor no conflict b. Where the issues is substantial or procedural i. Substantial – Favor withdrawal (See hypo below) 1. When issues are substantial, you have an impact on your client’s out of court behavior ii. Procedural – May or may not be adverse 1. Affects court actions c. Temporal relationship between the matters i. ASK: Will the legal issues affect the clients now/today? 1. If yes, (in the news, etc.) then probably ii. IF there is a lot of time between the issues, probably not d. Significance of the issue to the interests of clients i. If the position (see below) is on the basic theory of liability in both cases – Probably in favor of conflict (i.e. it threatens your business as a whole) e. Client’s reasonable expectations i. Why is it reasonable for the clients to expect that the law firm wouldn’t take multiple position for clients all over the world? Shouldn’t the client feel like that’s normal? ii. Benham is torn here 1. When you hire a big law firm, it becomes less reasonable for them to never advocate against you 2. At the same time, expect not to be bankrupted

Answer 62

a. Situation where there is no representation of one client against another client (not positional, just a client) b. But one client’s legal position could adversely affect another client because you are setting a precedent w/your case c. Even though there is no client overlap

Answer 63

Ordinarily a lawyer may take inconsistent legal positions in different tribunals at different times on behalf of different clients. ... The mere fact that advocating a legal position on behalf of one client might create precedent adverse to the interests of a client represented by the lawyer in an unrelated matter does not create a conflict of interest. A conflict of interest exists, however, if there is a significant risk that a lawyer's action on behalf of one client will materially limit the lawyer's effectiveness in representing another client in a different case; for example, when a decision favoring one client will create a precedent likely to seriously weaken the position taken on behalf of the other client. Factors relevant in determining whether the clients need to be advised of the risk include: where the cases are pending, whether the issue is substantive or procedural, the temporal relationship between the matters, the significance of the issue to the immediate and long-term interests of the clients involved and the clients' reasonable expectations in retaining the lawyer. If there is significant risk of material limitation, then absent informed consent of the affected clients, the lawyer must refuse one

Answer 64

• The insured is always your client. The insurer is sometimes your client too. Depends on the jurisdiction and the retainer agreement.

Answer 65

A lawyer shall not accept compensation for representing a client from one other than the client unless: • (1) The client gives informed consent • (2) There is no interference w/the lawyer’s independence of professional judgment or with the client-lawyer relationship; and • (3) Information relating to representing of a client protected under Rule 1.6 o 1.7: You’ll need to evaluate under this

Answer 66

Normally, the insurance company pays for the lawyer’s fee for representing an insured, normally the insured has consented to the arrangement by the terms of the insurance K. COMPARE: 1.8(f) A lawyer shall not accept compensation for reprinting a client from one other than the client unless... the client gives informed consent.

Answer 67

1. An attorney has a continuing duty to preserve information gained in confidence during the representation, even after representation ends. 2. Even if there is a clear statement by the lawyer or the client in the K between them confirming that the relationship is over, Restatement says the representation authority can also end “because the lawyer has completed the contemplated services.” But whether the relationship is over depends on examination of the course of dealing between the parties. The Restatement explains that “BC ks w/ a client are to be construed from the client’s viewpoint, the client’s reasonable understanding of the of rep.” p. 477

Answer 68

TEST: Three matters are substantially related for purposes of this rule if they involve the same transition or legal dispute or if there is otherwise a substantial risk that the confidential factual information has been obtained. a. ASK: What confidential information would the lawyer “normally” have learned? i. You do not what to have to divulge to the court and opposing side that you were trying to keep a secret b. ASK: Would that confidential information help the current client? i. If the answer is yes, there is a substantial relationship

Answer 69

A lawyer who has confidential information from a former client must not oppose that former client in any matter to which the confidential information would be relevant and must not use that information to the former client’s disadvantage. a. Consentable b. This rule is inapplicable to commonly known information or information the lawyer would be permitted to reveal under an exception to the duty of confidentiality (MRPC 1.6) c. Also applicable to a lawyer’s firm unless i. The lawyer is properly screened, and (Doesn’t work the case, doesn’t discuss it with those who do, or have access to the files) ii. Does not share fees, and iii. The former client is given notice d. A lawyer’s former firm is prohibited from representing a person w/ interests materially adverse to those of a client of the formerly associated lawyer if: i. The matter is the same or substantially related to that in which the formerly associated lawyer represented the client and ii. A lawyer remaining in the firm has information protected under MRPC 1.6/1.9 1. 1.9: Less protective to former than 1.7 is to future 2. Primary concern is with confidentiality under 1.6 * A lawyer must not represent a client whose interests are materially adverse to those of the former client in a matter that is substantially related to a matter in which the lawyer represents the former client. a. Consentable

Answer 70

Same - Recall in TX you may sue your current client if the matter is not substantially related

Answer 71

a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or substantiallyr elated matter in which that person’s interest are materially adverse to the interests of the former client unless the former client gives informed consent – in writing. (b) Applies to the firm .. (Can get consent) ©(1) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: (1) Use or reveal confidential information to the disadvantage of the former client except as theses .. except as permitted by MPRC 1.6,, or when they generally become known (2) Reveal information relating to the rep. except as these rule ss would permit or require w/respect to a client

Answer 72

Not common sense. Comment 3: They involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained (not actually obtained) that would materially advance the second client’s position? Ask: Would the information from the former client help the current client? Comment 3: Information acquired in prior representation may be rendered obsolete by the passage of time, a circumstance that may be relevant in determining whether matters are sub. related (think 6 mo - 1 yr)

Answer 73

1. Confidential Information: a. The ethical duty of confidentiality applies to consultations between a lawyer and a prospective client. b. The lawyer must not reveal or use information learned during those consultations, unless an exception to the duty of confidentiality applies. 2. A lawyer who obtains confidential information during a consultation w/ a prospective client must not later represent a different person in the same or substantially similar matter if the confidential information could significantly harm the prospective client. (Under MRPC 1.9) a. Also imputed to others in the firm

Answer 74

a. Obtain informed, written consent from the affected client & the prospective client b. Or: i. Demonstrate that the lawyer took care to avoid exposure to any more confidential information that was necessary to determine whether or not to represent the prospective client; ii. Demonstrate that the disqualified lawyer is timely screened from any participation in the matter and will not share the fee; and iii. Give written notice to the prospective client

Answer 75

a person who consults w/ a lawyer about the possibility of forming a client-lawyer relationship w/respect to a matter is a prospective client.

Answer 76

Lawyer who received information took reasonable measures to avoid exposure to more disqualifying information that was reasonably necessary to determine whether to represent he prospective client; and 1. (i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and e. (2) written notice is promptly NOTE: You cannot be screened off if you are a sole practitioner.

Answer 77

A person becomes a prospective client by consulting with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter. Whether communications, including written, oral, or electronic communications, constitute a consultation depends on the circumstances. For example, a consultation is likely to have occurred if a lawyer, either in person or through the lawyer’s advertising in any medium, specifically requests or invites the submission of information about a potential representation without clear and reasonably understandable warnings and cautionary statements that limit the lawyer’s obligations, and a person provides information in response. See also Comment [4]. In contrast, a consultation does not occur if a person provides information to a lawyer in response to advertising that merely describes the lawyer’s education, experience, areas of practice, and contact information, or provides legal information of general interest. Such a person communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship, and is thus not a "prospective client." Moreover, a person who communicates with a lawyer for the purpose of disqualifying the lawyer is not a “prospective client.”

Answer 78

Comment (2) … Moreover, a person who communicated w/ a lawyer for the purpose of disqualifying the lawyer is not a “prospective client” (Tony Soprano). • Information given by Tony Soprano, then you can use that information to your client (because they aren’t a prospective client) How do you prove this? o Kind of an empty rule because it’ll be difficult o Probably will find out because the spouse who hired you will know / the other spouse will brag about it

Answer 79

1. A lawyer owes a duty of loyalty to the organization, not to the people who are its constituents a. When the interests collide, the lawyer for the organization should caution the person in question that he represents the organization not the person. b. Rule 1.13(a): A lawyer employed or retained by an organization represents the organization 2. Protecting the Organization’s Interest: a. When a person associated w/an organization advocates an action that may cause it substantial injury, a lawyer must protect the interests of the organization. i. The lawyer must ordinarily report the action to a higher authority in the organization, and if necessary to the highest authority. 1. If the highest authority fails to take action, lawyer may report outside of the organization 2. Can only do so to the extent the lawyer reasonably believes is necessary to prevent substantial injury to the org. a. The lawyer cannot do this if the lawyer is hired by the org. to investigate these types of issues (must keep it w/in the org.)

Answer 80

a. A lawyer may do both if ordinary COI rules are satisfied b. Restatement 131: A lawyer may not represent both an organization and a director, officer, employee, shareholder, owner, partner, member or other individual or organization if there is substantial risk that the lawyer’s representation of either would be materially and adversely affected by the lawyer’s duties to the other. c. If consent is required, a designated corporate official can give consent, so long as that person is not the one to be represented by the lawyer. d. In general, a lawyer who is an employee of the corp. cannot undertake representation of the shareholder of a corp. e. Serving as If an employee of a corp. discloses information to the corporation’s lawyer in confidence, does the lawyer have an obligation to the employee to protect the confidence? i. It depends. 1. If the lawyer only represents the organization and no employees = no duty to the employee a. If the lawyer’s duty is to protect information belonging to the organization from others outside the organization 2. If the lawyer sees a potential conflict of interest w/the employees revelation, the lawyer has a duty to reveal and needs to notify the employee of the duty to do so and advise the employee that he obtain independent representation.

Answer 81

a. A lawyer may serve as both but the dual role can create conflicts b. Lawyers are not forbidden to do so. c. In many instances = no conflicts between the two roles, but if there is potential or actual conflict the lawyer must take remedial action. d. If conflict arises that would present a “substantial risk that the laywer’s representation of the client would be materially and adversely affected” by the lawyer’s obligation as a director, the lawyer should cease to represent the corp. on that matter unless the org. waives the conflict. (Or he could resign). e. If a lawyer is also a director of an organ. Communication w/him may not be protected by lawyer/client privilege.

Answer 82

1. A lawyer’s duties may extend not only to the clients she represented personally, but also to the clients of the lawyer’s former firm. a. A lawyer whose former firm represented a client and obtained confidential info. (under 1.6) or information pertaining to the representation (1.9(c)) may not thereafter represent another person in: i. The same or a substantially related matter if that person’s interests are: 1. Materially adverse to those of a former client unless 2. That client gives informed written consent. (1.9(a)

Answer 83

1. If a lawyer who is DQ from representing a client under the rule above, joins a new firm, the new firm may be DQd as well unless a. The lawyer is properly screened i. The DQd lawyer does not work on the case, discuss it with those who do, or have access to the case files b. And does not share fees from the matter i. This doesn’t affect salary or partnership share – only that the compensation cannot be directly related to the matter in which the lawyer is DQ c. And the former client is given notice

Answer 84

If no longer associated w/ the firm go to (b)). A lawyer shall not knowingly represent a person in the same or a sub. related matter in which a firm with which the lawyer formerly was associated had previously represented a client (1) Whose interests are materially adverse to that person; and (2) About whom the lawyer had acquired information protected by 1.6 and 1.9© that is material to the matter. • (2) = Actual knowledge standard. (NOT what you ordinarily would have learned) • (2) = Doesn’t mention substantial information = Any information o Coffee room scenario, would then have a conflict • LOOK FOR: Knows nothing about ..

Answer 85

1.09(a): Same 1.09(b): - No 1.9(b) In Texas – No conflict because in Texas the rules only prohibit representation adverse to former clients you or someone at your current firm personally represented (1.09(a)). • Your imputed conflicts to former clients of lawyers in your firm end when you leave. • You still have confidentiality duties under 1.05 and that can create problems where you know former firm’s client’s confidential information.

Answer 86

W/o prior consent a lawyer who personally represented a client in a matter shall not thereafter represent another person in a matter adverse to the former client. (1) In which such other person questions the validity of the lawyer’s services or work product for the former client (2) If he representation in reasonably probability will violate 1.05 or (3) If it is the same or substantially related matter (b) : Except to the extent authorized by 1.10, when lawyers are or have become members of or associated w/ a firm, none of them shall knowingly represent a client if any one of them practicing alone would be prohibited from doing so. (c) : When the assoc. of a lawyer w/ a firm has terminated, the lawyers who were then associated with that lawyer shall not knowingly represent a client if the lawyer whose association with that firm has terminated would be prohibited from doing so under (a)(1) or if the representation would violate 1.05

Answer 87

(a) While lawyers are associated w/ a firm none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by 1.7 or 1.9. (1) The prohibition is based on personal interest of the DQ lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm; or (2) The prohibition is based on 1.9(a) or (b) and arises out of the DQd lawyer’s association w/ a prior firm, and .. (i) : The DQd lawyer is timely screened from participation/fee… (ii) Written notice is promptly given to former client (Include screen procedures, statement of firm’s screened lawyer’s compliance, and an agreement to respond to any written inquires) (iii) Cert. of compliance w/these rules and w/screening procedures are provided to the former client by the screened lawyer and by a partner of the firm at reasonable intervals upon the former client’s written request and upon termination of screening procedures (b) …

Answer 88

1. The conflict must be a former client conflict per 1.9 2. Conflict must have arisen out of your association w/a prior law firm a. Representation needed to end when you left the old firm 3. You must be timely screened from participating against your old client

Answer 89

“Screened” denotes the isolation of a lawyer from any participation in a matter through the timely imposition of procedures w/in a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these Rules or other law. i. Isolated from the firm ii. Isolated from contact w/the client relating to the matter, and any witness for/against the client iii. The firm and the PDL have been precluded from discussing the matter w/each other iv. The former client of the PDL or his former firm receives notice + affidavit of the PDL and the firm describing the procedures being used to effectively screen the PDL and attest that the PD will not participate in the matter and will not discuss the matter or the rep. w/any other lawyer or ee of his or her current firm, no material info was transmitted by the PDL before implementation of the screen/notice and during the period of the lawyer’s personal DQ those lawyers or ees who do not participate in the matter will be apprised of the screen v. The PDL and the firm reasonably believe that the steps taking will be effective Comment 9: i. Notice to all lawyer not to share information about the matter ii. Acknowledgement by the screened (conflicted) lawyer that he or she won’t participate in the matter (attorney’s usually have to sign affidavit) iii. Mechanisms to prevent contact w/ client files and info (paper and electronic) (THINK: No access to files, physically move office – don’t talk in front of doors) iv. Need to be reminders (THINK: Matters can drag on for years) v. Must give notice to former client (MRPC 1.10(a)(2): Written notice is promptly given to any affected to enable .. ) vi. Periodic updates w/regard to the screen (MRPC 1.10(a)(2))( If client requests, you need to comply

Answer 90

No. i. The KEY to using this is that the former client would not likely give consent (They hold the power) ii. Here, the key is that whether or not the former client objects, you can follow this screening method and not get consent 1. THINK: If you had consent – you wouldn’t need this process (Unless he gave partial consent, disallowing the specific attorney) 2. If the former client doesn’t like this, they can take it to a judge and try to get disqualified but no consent necessary and you just must show you complied with the lateral screen If former client consents – No need to screen, client can waive! You can always waive a former client conflict.

Answer 91

Refrain from Prosecuting a charge that the prosecutor knows is not supported by PC

Answer 92

Close to the rule re: Managers and Partners responsibilities but explains that the lawyers who supervise non-lawyers are responsible for ensuring that the employees comply with the MRPC and a lawyer may be subject to discipline if he does not comply.

Answer 93

A lawyer MAY reveal confidential information (4) When the lawyer has reason to believe it is necessary to do so in order to comply with a court order (3) When a lawyer has confidential information est. the client is likely to commit a crime or fraud that is likely to result in death or sub. bodily harm to the person the lawyer SHALL reveal CI to the extent ... ** Under TX you do not have the discretion to w/hold like MRPC and the Texas rule covers former client sw/ in the rule, not just the comment

Answer 94

1. Confidential Client Information: Information relating to the representation of a client, other than information that is generally known. 2. Adverse Effects: Include frustrations of the client’s objectives in the representation; material misfortune, disadvantage, or other prejudice to the client; financial or physical harm to the client, or personal embarrassment to the client 3. Reasonable Prospect of Harm: Whether a lawyer of reasonable caution, considering only the client’s objectives, would regard use or disclosure in the circumstances as creating an unreasonable risk of adverse effect either to those objectives or to other interests of the client

Answer 95

A lawyer may reveal confidential information (7) when the lawyer has reason to believe it is necessary to do so in order to prevent the client from committing a criminal or fraudulent act. • Key: Disclosure is not mandatory, it is permissive • You are not subject o discipline because reporting future crimes not involving SBI or death is discretionary.

Answer 96

Deliberate deception; conduct that is fraudulent under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive. a. Not limited to criminal conduct b. Intended to guide a lawyer’s conduct as an officer of the court as a prophylactic measure to protect against client perjury contaminating the judicial process

Answer 97

Except to the extent authorized by Rule 1.10, when lawyers are of have become members of or associated w/ a firm, none of them shall knowingly represent a client if any one of them practicing alone would be prohibited from doing so by P(a).

Answer 98

* In Texas, former client conflicts imputed to alter lawyer’s new firm * No lateral screening exception in TDRC * Disqualifying lawyers don’t follow these rules, just make their own

Answer 99

THINK: How to get paid and how to keep the money Lawyer-Client Fee Contracts: a. When a client hires a lawyer to represent him, the client and lawyer enter into a K i. May involve a written agreement (but doesn't have to) ii. Regardless – Creates a K that is subject to all the usual rules of K law 1. If the client fails to pay, lawyer can sue for breah of K iii. Also governed by ethics code

Answer 100

a. Hourly / Time Spent i. Notify of hourly rate (Rate * Hours = Fee) 1. Some charge for lawyer time 2. Some also add in time of paralegals/secretaries b. Contingent Fees (Percentage of Damages) i. Client receives no recovery, if lawyer gives nothing c. Some use flat fees for standard service e. Fee Schedules f. Blended Fee g. Task Billing

Answer 101

A lawyer shall not make an agreement for, charge, or collect an unreasonable fee for an unreasonable amount or expense. The factors: i. Time, skill, novelty ii. Opportunity cost iii. Local Custom iv. Amounts at Stake v. Exigency (Emergency Basis – Stack it up with a lot of attorneys) vi. Course of dealing vii. Qualifications viii. Fixed or contingent

Answer 102

o Must notify of basis or rate of fees and expenses • Good idea to give a total estimate, but you don’t have to o Must notify scope of transaction • Here, handle the transaction o No need to provide in writing – Unless it’s contingent fee • Preferably in writing but not required – if there’s not one in writing, if they challenge later, it’s he said vs. she said o Timing – Didn’t tell the client immediately the information – called back later – as long as you notify them w/in a reasonable time after beginning representation • Argument – Gave before we began representation but even if you wait a little while, that’s okay

Answer 103

1) Must Include: a. Method of calculating fee i. Percentages by litigation stage 1. Such as expert witness fees ($800k example) ii. Expenses (lawyer or client responsibility?) iii. Expenses deducted before or after fee is calculated 2) P. 569: Take the fee of the top or off the bottom? a. Top: Fee off the total recovery before expenses b. Bottom: Fee of the total recovery after expenses c. Higher the expenses, bigger the difference d. NOTE: Most clients don’t get this (even if you explain) unless you have a really smart client e. Will argue unconscionable K if they don’t like the fee 3) 1.5(a): Reasonable fee – 45/50% is a lot for settlement but probably okay for appeal etc. (Probably slicing in more attorneys/very time consuming)

Answer 104

A lawyer shall not enter into an arrangement … (no absolute prohibition on contingent fees in divorce cases) But Comment 9- says they are rarely acceptable. Comment 9: Targeted toward the absence of domestic relation issue – the contingent fee may be inconsistent w/the lawyer’s obligation to encourage reconciliation. Such fee agreements also may tend to create a COI between he lawyer NOTE: MRPC prohibits a contingency fee in a divorce. Texas does not explicitly prohibit in Texas but does discourage. After the divorce, you can get a contingency fee for past due alimony and child support. Etc. (The distinction for the purpose of the rule is asking whether the client is still married??)

Answer 105

No contingent fees to defend criminal cases - 1.04(e) – Both MR and TDRPC prohibit CF for representing criminal defendants NOTE: MRPC prohibits a contingency fee in a divorce. Texas does does discourage. After the divorce, you can get a contingency fee for past due alimony and child support. Etc. (The distinction for the purpose of the rule is asking whether the client is still married??)

Answer 106

A lawyer shall not provide FA to a client in connection w/pending or contemplated litigation or admin proceedings except: (1) A lawyer may advance or guarantee court costs, expenses of litigation or admin proceedings, and reasonably necessary medical and living expenses, the repayment of which may be contingent on the outcome of the matter; and (2) A lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client

Answer 107

A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that: (1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and (2) A lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client Comment 10: Lawyers may not subsidize lawsuits or admin proceedings brought on behalf of their clients, including making or guaranteeing loans to their clients for living expenses, because to do so would encourage clients to pursue lawsuits that might not otherwise be brought and bc such assistance gives lawyers too great of financial stake in litigation. • These dangers do not warrant a prohibition on a lawyer lending a client court costs and litigation expenses of medical examination and the costs of obtaining and presenting evidence, because these advances are virtually indistinguishable from contingency fees and help ensure access to court • An exception allowing lawyers representing indigent clients to pay court costs and litigation expenses regardless of whether these funds will be repaid is warranted.

Answer 108

* MRPC does not permit lawyer to pay client living and medical expenses * TDRPC permits lawyer to pay reasonable living and medical expenses

Answer 109

A division of a fee between lawyers who are not in the same firm may be made only if: (1) The division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation (Joint liability = If your co-counsel files motions late and is guilty of MP, so are you) (2) The client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing; and (3) The fee is reasonable

Answer 110

Explicitly requires the client to agree in writing before the referral • Punishment- Get fee disgorged • A lot of attorney’s violate this

Answer 111

A lawyer or law firm may not share legal fees w/a non-lawyer except that:. • A finders fee would likely be considered sharing a fee w/ a non-lawyer • Problem in non-lawyer – kickback for non–lawyer = potential problem

Answer 112

A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection w/a representation separate from the lawyer’s own property. Funds shall be kept in a separate account maintained in the state where the lawyer’s office is situated, or elsewhere w/the consent of he client or third person. Other property shall be identified as such and appropriately safe guarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of 5 years.

Answer 113

• Must keep clients money in a separate account (must be a client trust account) o Money/Client Funds = • Unearned retainers; • Settlement proceeds (Can only take what you’re entitled to under the agreement after properly accounting to the client) • Expense prepayments (Clients financing experts, etc. cannot be used for anything other than that) • Any other money belonging to the client • Must keep records in an out of that account for 5 years after representation; (after the end of the representation) • May put lawyer’s own money in account only to pay bank fees (1.15(b)); and • Absolutely NO borrowing unearned client money

Answer 114

Business transactions with clients are prohibited unless you jump through some disclosure and consent hoops. a) A lawyer shall not enter into a business transaction w/ a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to clients unless: (1) The transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client (2) The client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek advice of independent legal counsel on the transaction and (3) The client gives informed consent, in a writing, signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction It’s a bad idea. i. Lawyers have an unfair advantage w/ your clients ii. Can do business, just have to go through consent rules

Answer 115

Substantial, solicited gifts from clients, including gifts in a client’s will are generally prohibited (unless attorney is related to client). A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client. i. Related = Spouse, child, grandchild, parent, grandparent, or other relative or individual with whom the lawyer or client maintains a close familial relationship

Answer 116

Sex with clients is prohibited unless, the relationship is consensual and began before representation. A lawyer shall not have sexual relations with a client unless a consensual relationship existed between them when the client-lawyer relationship commenced TRDC1.08: Sex with clients is not prohibited. i. Could affect your working on the case, not doing things in the way you should be

Answer 117

1. Sometimes it is ethical to represent only the client’s interests 2. Unethical, in some circumstances, to represent only the client’s interests

Answer 118

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the D in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be establish. Comment 2: • Filing is not frivolous merely because the facts have not first been developed or because the lawyer expects to develop vital evidence only by discovery • What is required is that they inform themselves about the facts of their clients’ cases and applicable law and determine that they can make a good faith argument in support of their clients’ positions. o Such actions are not frivolous even if the lawyer believes the action will not ultimately prevail. • The action is frivolous if the lawyer is unable to make a good faith argument on the merits of the action taken or to support the action taken by good faith argument for an extension, modification, or reversal of an existing law TDRPC 3.01: Non-Frivolous Claims: Substantially similar, complete w/Texas comments – practice is virtually identical.

Answer 119

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