Professional Responsibility

Question 1

Duties to clients

Answer 1

(MR 1.1-1.18)

Question 2

Duties to courts/the legal system

Answer 2

(MR 3.1-3.9)

Question 3

Duties to third parties

Answer 3

(MR 4.1-4.4)

Question 4

Law Firm/Practice Issues

Answer 4

(MR 5.1-5.7)

Question 5

Public Service

Answer 5

(MR 6.1-6.5)

Question 6

Advertising & Solicitation Rules

Answer 6

(MR 7.1-7.6)

Question 7

Integrity of the Profession

Answer 7

(MR 8.1-8.5)

Question 8

Misconduct (4 grounds for discipline)

Answer 8

MR and CR 8.4

1. Violating the rules
2. Criminal acts that reflect adversely on your honesty, trustworthiness, etc
3. Engage in conduct involving dishonesty, fraud, deceit or reckless or intentional misrepresentation
4. Engage in conduct that is prejudicial to the administration of justice

Question 9

Liability for actions of subordinate lawyers

Answer 9

MR 5.1

Lawyers running firm have a duty for subordinates

Question 10

Liability of subordinate lawyers

Answer 10

5.2

Even subordinate lawyers can be at fault for breaking rules

Question 11

Liability for actions of non-lawyers

Answer 11

5.3

Must do best to ensure nonlawyers also follow the rules

Question 12

Malpractice (elements)

Answer 12

1. Lawyer owed a duty to the plaintiff
2. Lawyer failed to exercise the competence and diligence normally exercised by lawyers in similar circumstances
3. The breach of duty harmed the plaintiff

Question 13

Confidentiality of Information

Answer 13

1.6
Lawyer may not reveal information relating to the representation of a client unless the client gives informed consent except:
1. substantial bodily harm
2. prevent financial harm or mitigate it
3. legal advice to comply with rules
4. defense when sued if necessary
5. comply with law
6. detect conflicts but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.

Question 14

Tackling Confidentiality Questions

Answer 14

First ask: is there confidential client information?
Second ask: is there an exception under 1.6(a)?
Has the client given informed consent to the disclosure?
Is disclosure impliedly authorized as part of the representation?
Third ask: Is there an exception under 1.6(b)?

Question 15

California Confidentiality Exception

Answer 15

Lawyer reasonably believes the disclosure is necessary to prevent a criminal act that the lawyer reasonably believes is likely to result in death of, or substantial bodily harm to, an individual,

Question 16

Reporting Misconduct

Answer 16

8.3 NO CALIFORNIA VERSION
If you know that another attorney has violated the rules in a way that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, you are required to report them.

Question 17

When are you PERMITTED to disclose

confidential information?

Answer 17

Informed consent
Impliedly authorized
Prevent death or serious bodily harm
Prevent future crime/fraud causing substantial financial injury – committed with lawyer’s services
Mitigate past crime/fraud causing substantial financial
injury – committed with lawyer’s services
Secure legal advice about rule compliance
Defend against claims involving the lawyer
Comply with other law/court order
Detect conflicts

Question 18

When are you REQUIRED to disclose confidential information?

Answer 18

When disclosure is “necessary to avoid assisting a criminal
or fraudulent act by a client, unless disclosure is prohibited
by Rule 1.6” (MR 4.1; CR 4.1; MR 1.2(d); CR 1.2.1).

If you may, then you must, if necessary to avoid assisting.
NOTE: You may be able to avoid assisting by withdrawing.

Question 19

You MUST withdraw:

Answer 19

If continuing to represent the client would require YOU, the
lawyer, to violate the rules or a law.
Rule 1.16: “[A] lawyer shall not represent a client or, where
representation has commenced, shall withdraw from the
representation of a client if . . . the representation will result in
violation of the rules of professional conduct or other law.”
Comment 2: “A lawyer ordinarily must decline or withdraw from
representation if the client demands that the lawyer engage in
conduct that is illegal or violates the Rules of Professional
Conduct or other law.”

Question 20

You MAY withdraw:

Answer 20

 If the client is using or has used your services to commit a crime or fraud
Rule 1.16(b)
NOTE: Just because the client has used your services doesn’t
mean you have knowingly assisted in violation of MR 1.2(d).
Relationship to Rule 4.1: 4.1 might require you to disclose, even
if you’re not required to withdraw.

Question 21

Restatement: “[T]he attorney-client privilege may be invoked . . . with respect to:

Answer 21

(1) a communication
(2) made between privileged persons
(3) in confidence
(4) for the purpose of obtaining or providing legal
assistance for the client.”

Question 22

Restatement, sec. 69: “Communication”

Answer 22

“A communication is any expression through which a
privileged person . . . undertakes to convey information
to another privileged person and any document or other
record revealing such an expression.”
BUT: The privilege does not protect the underlying facts
conveyed, only the communication itself.

Question 23

Conduct Prejudicial to the Administration

of Justice

Answer 23

8.4(d)
EXAMPLES:
 A lawyer tipping off the subject of a law enforcement raid
 A lawyer failing to pay a judgment to a client who sued him
 A law school dean who submitted inflated LSAT scores and GPA’s to US News
 A lawyer sexually harassing legal secretary applicants
 President Clinton giving evasive answers in a deposition