Flashcards in Rule Bullet Points Deck (58)
Rule 1.1 Competence
* Legal Knowledge & Skill
*Preparation reasonably necessary for representation
Rule 1.2 Scope of Representation & Allocation of Authority Between Client & Lawyer
*Client decides Objectives of Representation
*Lawyer's representation of a client does not constitute an endorsement of the client's political/social/economic/moral views
*Lawyer may limit scope of representation if reasonable
*Lawyer cannot help a client commit a crime or fraud
*Lawyer may discuss legal consequences of proposed course of conduct
Rule 1.3 Diligence
A lawyer shall act with Diligence & Promptness in representing a client
Rule 1.4 Communication
A) A Lawyer Shall:
1) Promptly inform client of decisions/circumstances where client's informed consent is required
2)reasonably consult with client about how to accomplish the client's objectives
3) Reasonably inform client about status of matter
4) Promptly comply with reasonable requests for information
5) Consult with client about limitations on lawyer's conduct
B) Lawyer shall explain matter to the extent necessary to permit the client to make informed decisions
Rule 1.5 Fees
* No unreasonable fees or expenses
Factors to determine reasonableness:
-time & labor required
-likelihood that acceptance of employment will preclude the lawyer from other employment
-fee for similar service
-amount involved & results obtained
-time limitations imposed by clients or circumstances
-nature/length of relationship between lawyer and client
-experience/reputation/ability of lawyer
-fixed or contingent fee
*Scope of Representation and the basis of rate/fee will be communicated to the client, preferably in writing.
*Any changes in rate shall be communicated to the client
*Contingent fee agreement should be in writing & signed by the client
*Contingent fees not allowed for domestic relations matters or criminal defense
*Fees may be divided between lawyers who are not at the same firm if:
-division proportional to services performed by each lawyer
-client agrees to arrangement, confirmed in writing
-total fee is reasonable
Rule 1.6 Confidentiality of Information
*Lawyer shall not reveal info relating to representation of a client unless there is informed consent
*Lawyer may reveal info relating to representation of client to the extent the lawyer reasonably believes necessary:
-to prevent reasonably certain death or substantial bodily harm
-to prevent serious crime or fraud
-to prevent/mitigate/rectify substantially injury to the financial interests or property of another (reasonably certain)
-to secure legal advice about lawyer's compliance with rules
-for lawyer to defend themself
-to comply with other laws or court orders
-to detect/resolve conflicts of interest arising from the lawyer's change of employment
*Lawyer shall make a reasonable effort to prevent disclosure of information relating to the representation of a client
Rule 1.7 Conflict of Interest: Current Clients
Conflict of Interest exists if:
-Representation of one client directly adverse to another client or
-Significant risk representation of 1 or more clients will be materially limited by the lawyer's responsibility to another
A lawyer may represent a client if:
-Lawyer reasonably believes that they will be able to provide competent & diligent representation to each affected client
-representation is not prohibited by law
-does not involve assertion of a claim by one client against another client
-each affected client gives informed consent in writing
Rule 1.8 Conflict of Interest: Current Clients: Specific Rules
*Lawyer shall not enter into business transaction with client or acquire ownership adverse to a client unless:
-Transaction terms are fair and reasonable to the client and are fully disclosed in writing in a manner that can be reasonably understood by the client
-client is advised in writing of opportunity to seek independent legal counsel
-client gives informed consent signed & in writing
*Lawyer shall not use info relating to representation of client to disadvantage the client unless client gives informed consent
*Lawyer shall not solicit any substantial gift from a client (exception for related persons)
*Lawyer cannot negotiate and agreement giving lawyer media rights to portray account based on information related to representation
*Lawyer may not financially assist a client except advancing court costs, court costs for indigent clients
*Lawyer shall not accept compensation for representing a client from someone else unless
-client gives informed consent
-there is no interference with lawyer's independence of professional judgement
-information is protected by rule 1.6
*Lawyer shall not represent two clients and initiate settlement unless each gives informed consent in writing and signed
*Lawyer shall not
-make agreement limiting lawyer's ability to client for malpractice unless the client is independently represented in making the agreement
*Lawyer shall not acquire ownership interests except for lien for lawyer fees/expenses and contracts for reasonable contingent fees
Rule 1.9 Duties to Former Clients
*A lawyer who formerly represented a client in a matter shall not represent another person in the same or a substantially related matter in which the interests are materially adverse
*same if the lawyer's old firm previously represented a client
-whose interests are materially adverse to that person, and
-about whom the lawyer acquired info protected by rules 1.6 and 1.9(c)
*Lawyer who formerly represented a client or whose firm/former firm represented a client shall not
-Use information related to representation to disadvantage the former client
-reveal info relating to representation
Rule 1.10 Imputation of Conflicts of Interest: General Rule
Lawyers in a firm shall not KNOWINGLY represent a client that any of them would be prohibited from representing alone UNLESS:
-Prohibition based on personal interest of the disqualified lawyer and does not present a significant risk of materially limiting representation OR
-Prohibition arises out of the disqualified lawyer's association with a prior firm and
> the disqualified lawyer is screened for participation
>Written notice given to any affected former client
If lawyer leaves a firm, firm is not prohibited from representing a client materially adverse to the former lawyer's former clients UNLESS
-matter is the same or substantially related
-Any lawyer remaining at the firm has information protected by the rules
Rule 1.11 Special Conflicts of Interest for Former & Current Government Officers & Employees
Lawyers who were formerly public officers cannot represent clients in connection with a matter the lawyer participated in personally and substantially as a public officer unless govt. agency gives informed consent.
Firm can screen lawyer out.
Rule 1.12 Former Judge, Arbitrator, Mediator or Other 3rd Party Neutral
Lawyer shall not represent anyone in connection with a matter the lawyer participated in as a judge/law clerk/mediator/etc. unless all parties to the proceeding give informed consent in writing.
Rule 1.13 Organization as Client
*If lawyer is retained by an Organization the Organization is the client.
*If lawyer knows employee or other person associated with the organization intends to act in a matter related to representation that is a violation to the legal obligation to the organization/is likely to injure the organization...lawyer shall act in the best interest of the organization.
*Lawyer who believes he has been fired because of these actions can proceed so that the organization's highest authority knows reason for firing.
*Lawyer representing an organization may represent officers/directors/employees if the organization consents to dual representation
Rule 1.14 Client with Diminished Capacity
*Lawyer should do their best to maintain normal client-lawyer relationship
*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.
Rule 1.15 Safekeeping Property
*Lawyer shall hold property of clients/3rd parties separate from the lawyer's own property.
*Funds shall be kept in a separate account
*Records of accounts shall be preserved for 5 years after termination of representation
*Lawyer deposits legal fees/expenses paid in advance in trust account and withdrawals once earned
*Lawyer must notify client or 3rd person when receiving funds they have an interest in. Promptly deliver funds, and promptly render full accounting.
*If dispute over funds property shall be kept separate by lawyer until dispute is resolved.
*Lawyer shall promptly distribute any portion of funds not in dispute.
Rule 1.16 Declining or Terminating Representation
A lawyer shall not represent a client or shall withdrawal representation if:
*the representation will result in violation of the rules of professional conduct
*lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client
*the lawyer is discharged
A lawyer may withdraw from representing a client if:
*Withdrawal can be accomplished without material adverse effect on the interests of the client
*Client persists in course of action involving lawyer's legal services that the lawyer reasonably believes is criminal or fraudulent
*Client has used lawyer's services to perpetuate a crime/fraud
*Client insists on taking action the lawyer considers repugnant or fundamentally disagrees with
*Client fails to fulfill obligations to the lawyer regarding the lawyer's services and has been given reasonable warning by the lawyer
*representation=unreasonable financial burden on the lawyer OR Unreasonably difficult
*Other good cause for withdrawal exists
Lawyer must give notice to tribunal or ask permission from the tribunal to withdrawal if the law requires.
When ordered to do so lawyer shall continue representation.
After terminating representation a lawyer still shall take steps reasonably practicable to protect the client's interests.
Rule 1.17: Sale of Law Practice
Lawyer/Law Firm may sell or purchase a law practice (or area of a law practice) if:
a) Seller ceases to practice law or that area of law
b) The entire practice, or entire area of practice is sold to one or more lawyers or law firms
c) Seller gives written notice to clients regarding the proposed sale/client's right to retain other counsel/Client consent to transfer presumed if client does not take action
d) Fees charged clients shall not be increased by reason of the sale
Rule 1.18: Duties to Prospective Clients
a) Person who consults with a lawyer = Prospective Client
b) Even when no client-lawyer relationship exists, a lawyer who has learned information from a prospective client shall NOT use or reveal that info
c) If lawyer receives info from prospective client than the lawyer may not represent someone materially adverse to the prospective client
d) If disqualified, no lawyer in the firm may undertake or continue representation unless:
*both the affected client and the prospective client give Informed Consent, confirmed in Writing; or
*the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and
-the disqualified lawyer is screened
-written notice is promptly given to the prospective client
Rule 2.1 Advisor
Representing a client a lawyer shall exercise:
*and render candid advice.
Lawyer may refer not only to law but to:
that may be relevant to the client's situation.
Rule 2.3 Evaluation for Use by Third Parties
a) Lawyer MAY provide evaluation of matters affecting a client for the use of someone other than the client if the lawyer reasonably believes making the evaluation is compatible with other aspects of the lawyer's relationship with the client
b) If the lawyer knows or SHOULD KNOW evaluation is likely to affect the client's interests MATERIALLY and ADVERSELY =Lawyer shall NOT provide the evaluation UNLESS client gives informed consent
Rule 2.4: Lawyer Serving as a 3rd-Party Neutral
a) AKA service as an arbitrator/mediator/other capacity that enables the lawyer to assist parties to resolve the matter
b) Lawyer serving as 3rd party neutral shall inform parties that lawyer is NOT representing them. Shall explain if needed the difference between a lawyer's role and the third-party neutral role.
Rule 3.1: Meritorious Claims and Contentions
Lawyer shall not bring frivolous lawsuits.
A lawyer for D of criminal proceeding MAY defend the proceeding as to require that EVERY element of the case be established.
Rule 3.2 Expediting Litigation
A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.
Rule 3.3: Candor Toward the Tribunal
A lawyer shall not knowingly:
*make a false statement of fact or law to a tribunal
*or fail to correct false statements of material fact or law made by the lawyer
*fail to disclose directly adverse controlling legal authority
*offer evidence the lawyer KNOWS to be FALSE
-Lawyer may REFUSE to offer evidence (other than testimony of D in criminal matter) that a lawyer reasonably believes to be FALSE
A lawyer who represents a client in an adjudicative proceeding and knows that person intends to engage in/is engaging in/has engaged in Crim/fraudulent conduct related to the proceeding SHALL take reasonable remedial measures, INCLUDING IF NECESSARY disclosure to the tribunal.
In an Ex Parte proceeding shall inform the tribunal of material facts known to the lawyer that enable tribunal to make an informed decision (facts may be adverse)
Rule 3.4: Fairness to Opposing Party & Counsel
A Lawyer shall not:
*Unlawfully obstruct another party's access to evidence (also includes altering/destroying/concealing). Shall not counsel another person to do any such act.
* Falsify evidence
*Counsel a witness to testify falsely
*Knowingly disobey an obligation under rule of tribunal
*Make a Frivolous discovery request
*In trial: assert personal knowledge of facts/state personal opinion as to justness of cause/credibility of witness/guilt or innocence of the accused
*Request a person (other than client) refrain from voluntarily giving information to another party unless:
-the person is a relative or an employee or other agent of the client
-the lawyer reasonably believes there person's interests will not be adversely affected by refraining from giving such information.
Rule 3.5: Impartiality and Decorum of the Tribunal
A Lawyer Shall Not:
*Seek to Influence Judge/Juror/other Official by means prohibited by law
*Communicate with Judge/Juror/other Official ex party during the proceeding
*Communicate with Juror after discharge of jury if:
-communication is prohibited by law
-juror has made known to lawyer does not desire to communicate
-communication involves misrepresentation/coercion/duress/harassment
*Engage in conduct intended to disrupt the tribunal
Rule 3.6: Trial Publicity
*Lawyer shall not make extrajudicial statements that may be disseminated publicly and have a SUBSTANTIAL LIKELIHOOD of materially prejudicing the proceeding in the matter.
*Lawyer MAY make a statement that a reasonable lawyer would believe required to PROTECT A CLIENT from undue prejudicial effect of recent publicity not initiated by lawyer or client.
Rule 3.7: Lawyer as Witness
Lawyer shall not be witness/advocate in the same trial unless:
-Testimony relates to an uncontested issue
-testimony relates to nature and value of legal services rendered in the case
-disqualification of the lawyer would work substantial hardship on the client
Lawyer can be advocate even if another lawyer in his firm is likely to be called as witness.
Rule 3.8: Special Responsibilities of a Prosecutor
*Do NOT make charges not supported by probable cause
*Make sure the accused knows he has the right to obtain counsel And is given opportunity to obtain counsel
*Not seek to obtain from an unrepresented accused a waiver of important pretrial rights
*Make timely disclosure of all evidence that tends to negate the guilt of the accused (to the defense)
*Refrain from making extrajudicial comments that have a SUBSTANTIAL LIKELIHOOD of heightening public condemnation of the accused
*When he knows of NEW/CREDIBLE/MATERIAL EVIDENCE creating a reasonable likelihood that a convicted D did NOT commit an offense, the prosecutor shall:
-Disclose evidence to appropriate court/authority
-Investigate or cause an investigation to determine whether the D was falsely convicted
*Prosecutor shall seek to remedy false convictions based on knowledge of CLEAR & CONVINCING evidence