PR Rules Covered by Rothman S'06

1

ABA Model Rules pp. 4-971ABA Model Rules pp. 4-97

1Preamble & Scope p.4

31.X Client Lawyer Relationship p.7

72.X Counsellor p.55

73.X Advocate p.58

94.X Transactions with Non-Client Persons p.69

105.X Law Firms & Associations p.72

117.X Info About Legal Services p.86

138.X Maintaining the Integrity of the Profession p.93

14Index p.98

Preamble & Scope p.4PREAMBLE:

1. RPCs define lawyers relationship to legal system[13]

2. Responsibility = Reps clients [1];

a. Advisor of legal rights & obligations & practical implications[2]b. Advocate[2]c. Negotiator[2]d. Evaluator of legal affairs[2]e. Or 3rd party neutral [3], i.e., non-representational; 1.12, 2.4

f. Inside or outside legal profession[3], subject to discipline for dishonesty, fraud, deceit, or misrep. 8.4

3. Responsibility = Officer of legal system [1]; anda. Under the law.[5] No harassment or intimidation. Respect for the legal system.

4. Responsibility = Public citizen[1].

a. Seek to improve law, access to legal system, admin of justice, quality of service.[6]

b. Learned profession[6]

c. Further publics understanding & confidence in rule of law & justice system[6]d. Mindful of relatively lacking access to legal system by the poor[6]

e. All lawyers should devote time & effort to ensure equal access to system of justice [6]

f. Help the bar regulate itself in the public interest[6]

5. In all functions [4] competent, prompt & diligent. Keep confidences.

6. Guided by personal conscience[7]. Strive[7]

7. The three responsibilities usually harmonize [8]. But sometimes conflict [9]. Lawyers own interest in remaining ethical & earning a living[9]. Professional discretion even with RPCs[9]:a. Obligation zealously to protect & pursue clients legit interests w/in law[9]

b. While maintaining professional, courteous & civil attitude[9]

8. Self-governing profession & ultimate authority vested in the courts[10]a. Self-regulation helps maintain the legal professions independence from govt domination. Preserves govt under the law because lawyers are not dependent on govt for the right to practice.[11]

b. Autonomy carries special responsibilities[12]:

i. Regulations in the public interest & not parochial[12]

ii. Every lawyer under RPC[12]

iii. Should aid in securing RPC observance by other lawyers[12]; neglect compromises the independence of the profession[12]

iv. Vital role in preserving society[13]

v. RPCs define lawyers relationship to legal system[13]

SCOPE:

1. RPCs are rules of reason[14] ( to be interpreted w reference to purposes of legal representation & of the law itself.[14]

a. Imperative, obligatory & disciplinary = shall or shall not

b. Permissive; discretionary; not disciplinary

c. Comments are aspirational & do not add obligations to the Rules

d. Comments explain & illustrate [21], but Rules text is authoritative.

2. RPCs operate in context of court rules, statutes, & case law[15]3. RPC compliance[16]

a. Voluntary

b. Peer & public pressure

c. Disciplinary

4. RPCs provide framework for ethical practice of law[16]

5. Substantive law determines whether atty-client relationship exists[17]. Most duties attach after client request & atty agreement (i.e., relationship formed) [17] But some duties attach prior, 1.6 & 1.18. Whether a duty exists may be a Q of fact. [17]6. Govt lawyers have some legal authority that reposes in clients in private rels, e.g., whether to settle or appeal. [18] May also represent several govt agencies in intra-govtal controversies where a private lawyer could not represent such clients RPCs do not abrogate such authority.[18]7. Failure to comply w obligation or prohibition ( disciplinary process[19]. Lawyer often has to act upon uncertain or incomplete evidence of the situation. Discipline is meted out based on such circumstances, plus willfulness, seriousness, extenuating factors & previous record. [19]a. RPCs are not basis for civil liability[20]. They provide guidance & framework.

b. Rule violation should not give rise to cause of action or presume legal duty was breached, or presume disqualification[20].c. Opposing parties subvert Rules purpose when they invoke them as procedural weapons[20].d. Rule violation may be evidence of breach[20].

1.X Client Lawyer Relationship p.7RPC 1.0 Terminology, incl.

(e) informed consent ( [6],[7] IC before continuing or accepting representation[6] 1.2(c), 1.6(a), 1.7(b)

IC usually requires affirmative response[7] not silence 1.7(b), 1.9(a), 1.8(a), 1.8(g) (d) fraud & fraudulent ([5]

Under substantive law of jurisdiction w purpose to deceive[5]

Negligent failure to inform or negligent misrepresentation not enuf [5]

Not necessary to have caused damage, injury or relied[5] (h)(i)(j) reasonableness

(k) screened ( [8],[9],[10]

1.11, 1.12, 1.18

RPC 1.1 Competence = legal knowledge, skill, thoroughness, preparation. May accept rep where lawyer must prep to be competent.[5] Rule 6.2 Lawyers should keep abreast.[6]

RPC 1.2 Scope of Rep &

Allocation of Authority between Lawyer & Client Client has ultimate authority [1] See 1.4(a)(1)

Client-lawyer disagreements [2] See 1.16(b)(4) or 1.16(a)(3) Limit on lawyer conduct [13] See 1.4(a)(5)

Diminished-capacity client [4]( 1.14

Limited scope of rep [6],[7],[8]

Agreements [8] see 1.1, 1.8, 5.6 Clients behaving illegally 1.2(d), [9]-[12] Withdraw [10] 1.16(a)

Disaffirm [10] 4.1

RPC 1.3 Diligence & Promptness (reasonable) Carry to conclusion [4] unless relationship terminated per 1.16

If relationship in doubt, lawyer should clarify in writing [4]

Appeals [4]

Sole practitioners should have a back-up plan [5]

RPC 1.4 Communication

RPC 1.5 Fees & expenses must be reasonable (d) Prohibited contingent fees ( [6]

Securing a divorce or amount of alimony or property Representing a criminal defendant

Advance payments ok, but must return unearned portions [4] see 1.16(d)

RPC 1.6 Atty-Client Privilege; Duty of Confidentiality relating to current representation (a) shall not reveal w/o IC [2] Info given by client and other info whatever its source[3], incl. info that could reasonably lead to discovery by others [4]

(a) impliedly authorized to carry out rep

(a) or permitted under (b)

(b) MAY (or MUST in some jurisdictions) reveal

(1) To prevent death or serious bodily injury

(2) To prevent client crime or fraud ( keeps the lawyer from the taint of having participated in a crime or fraud

(3) to prevent/mitigate/rectify financial injury (after crime has been consummated[8]) (4) to secure legal advice for lawyer ( to the extent reasonably necessary & always using a hypothetical [9] (5) to establish lawyers claim or defense (6) to comply w any other law or court order ( see gloss [13] Disclosure may be required by other Rules [15]:

if permitted by (b) here by 1.2(d); 4.1(b); 8.1; 8.3.

REGARDLESS of (b) here: 3.3(c) Candor Toward Tribunal Former client confidentiality ( see 1.9(c)(2)

Atty-client privilege does not attach as between commonly represented clients (1.7 [30]

RPC 1.7 Conflict of Interest: Current Clients (b) Despite concurrent COI, lawyer MAY represent if all four (1)-(4) are met 1.7(b)(4) IC by each client ( see [18], [19], [20]

Note that as between commonly represented clients atty-client privilege does not attach, so they must be so advised.[30][31]

Revoking consent [21]

Consent to future conflict [22]

May withdraw, sometimes with courts approval [5]

Prohibitions [14]-[17]

Some rep is non-consentable [14], [16], [17]

Reping competitors in unrelated matters is not ordinarily COI [6]

Personal interest conflicts [10], [11], [12]

Lawyer has independent duty to client even when 3rd party pays [13]

Organizational clients [34], [35]

Do not include affiliates or constituent or subsidiaries or parents [34]; treated as separate entities. Could a lawyer on the Bd of Directors have conflict w/ representing the Org? Reflect & review ( withdraw from one or the other role as needed. Some matters discussed by Bd of Dir when Dir lawyer is present may not be protected by atty-client privilege. Lawyer should advise & withdraw accordingly. [35]

RPC 1.8 COI: Current Clients: Specific Rules Champerty prohibited (i) and [16]

RPC 1.9 Former Clients & Firms (a) Cannot represent when materially adverse to former clients w/o IC

(b) Disqualifies the lawyer ONLY WHEN s/he has actual knowledge of info protected by 1.6 & 1.9(c). [5], [6] (c) Prohibits using info related to rep to the disadvantage of former client (except as Rules require or permit),

or if info became generally known,

or revealing info related to rep (except as Rules require or permit).

See [8]

IC applies to (a) & (b) ( [9]

RPC 1.10 Imputation of COI: General Rule Rep is not prohibited if lawyer has knowledge from work done prior to being a lawyer; s/he must be screened from any personal involvement in case. [4] Former govt lawyers covered by 1.11

RPC 1.11 COI for Govt officers & Employees Former govt lawyers are disqualified ONLY FROM particular matters in which s/he participated personally & substantially. [4] (d) current govt lawyers are subject to 1.7 & 1.9 except as law otherwise permits

(a)(2) & (d)(2) protect former clients & prevent lawyers from exploiting public office for the advantage of another client. [3]

RPC 1.13 Organization as Client duly authorized constituents (b) reasonably necessary in the best interests of the Org. ( see [3]

Referral to a higher authority w/in the Org? [4] If timely response needed, lawyer MUST refer to higher authority [5]

Remember the entity is the client, not its duly authorized persons. Bd of Directors typically acts as the Org.[5] If Org uses lawyer to further a crime or fraud ( 1.6(b)(2), 1.6(b)(3) may permit disclosure of confidential info [6]

(d) lawyer has authority to disclose info as necessary to investigate or defend Org or officer or employee as hired by the Org. [7] Hard to define govt Org. [9]

(g) recognizes that a lawyer may rep Org AND an officer or major shareholder.[12]

Derivative lawsuits may give rise to a conflict between lawyers duty to the Org & his/her duty to the Board being sued [14] ( Rule 1.7 governs.

RPC 1.15 Safekeeping Property Always separate from lawyers own property.

RPC 1.16 Declining or Terminating Representation Mandatory withdrawal [2], [3] Discharge [4]-[6]

Optional Withdrawal [7]-[8]

Assist client even if wrongfully discharged [9] but allowed to retain papers as security for fee as permitted by law [9]

RPC 1.18 Prospective Clients Initial consultation, no matter how brief, establishes duty [3], ( except as permitted by 1.9

Lawyer may condition initial consultation on IC that no info revealed during consult will prohibit lawyer from reping a different client in the matter. [5]

2.X Counselor p.55RPC 2.1 Advisor - of law and other considerations Consider clients morale in presenting the info [1]

Overly narrow legal terms may fail to inform client[2]

Proper to include ethical & moral considerations [2]

Lawyer has responsibility to explain that more than just strictly legal considerations may be involved [3]

Lawyer should recommend consulting non-lawyer professionals when appropriate[4] or may advise in the face of conflicting recommendations of experts [4]

RPC 2.3 Evaluation for Use by 3rd Persons Ensure it does not conflict w duty to client [3]

Eval at client direction or implied to carry out rep [1]

Distinguish evaluation from an investigation of a person w/o atty-client relationship to lawyer. [2] E.g., investigating a vendors title to property.

RPC 2.4 Lawyer Serving as 3rd Party Neutral (non-representational role) Lawyer does not represent

ADR [1]

Court rules, or Ethics rules may apply [2]

3.X Advocate p.58RPC 3.1 Meritorious Claims Rule of limitation; punishable

Basis in law or fact required, else frivolous Requires good faith argument for extension, mod or reversal of existing law

Defense of crime or possible incarceration offense may defend so as to require that every element of the case be established.

Trumped by State or Fed Constitutions that entitle D to present defense otherwise disallowed here [3]

RPC 3.2 Expediting Litigation Rule of aspiration

Violated when lawyer uses procedure to delay or harass

Dilatory practices bring admin of justice into disrepute [1]

Lawyers convenience generally subordinate to this Rule [1]

RPC 3.3 Candor Towards the Tribunal Knowingly is key here. (a)(2) Clearly applicable authority, i.e., citations, must be disclosed.

Assertions by clients lawyer does not testify unless personally knows facts [3]

(a)(3) requires that lawyer refuse to offer evidence lawyer KNOWS TO BE FALSE, regardless of clients wishes premised on obligation as officer of the court to prevent trier of fact from being misled by false evidence. [5], [8]. Lawyers reasonable belief that the evidence is false permits its presentation [8]. However, lawyers knowledge of falsity can be inferred from the circumstances! [8] On the other hand, when a lawyer reasonably believes the evidence to be false s/he may refuse to offer it.[9] (c) If lawyer discovers later that false evidence was presented, follow remedial course of action [10]. May even have to reveal info otherwise protected by 1.6. Preserve the integrity of the adjudicative process [12] Duration of obligation extends to when final judgment was affirmed on appeal or time for appeal has passed. [13]

Ex Parte Proceedings allowed [14] Withdrawal is not required if disclosure will adversely affect client. However, under 1.16(a) the lawyer may be required to seek the courts permission to withdraw [15]. If lawyer cannot persuade client to withhold false info, lawyer should attempt to withdraw.

RPC 3.4 Fairness to Opposing Counsel (e) lawyer shall not in good faith allude to matters irrelevant or unsupported by admissible evidence (b) it is not improper to pay expenses of witness (except to an occurrence witness) or expert (except a contingency fee).

RPC 3.5 Impartiality & Decorum of Tribunal Lawyer shall not

(a) seek influence

(b) communicate ex parte except as permitted by law

(c) communicate with a (prospective) juror

(d) disrupt tribunal

Some improper conduct is criminal [1]

Communicating w (prospective) jurors after jury has been discharged is generally permitted, unless a court order or law prohibits it.

RPC 3.6 Trial Publicity (a) May not materially prejudice an adjudicative proceeding through extrajudicial statements. But balanced by free speech [1][3]. Materially prejudicing items listed in [5], [6] (c) May mitigate adverse publicity initiated elsewhere.[7] Special confidentially rules apply to juvenile, domestic relations, mental disability cases. 3.4(c) requires compliance. [2]

RPC 3.7 Lawyer as Witness (a) Generally not done in same trial where lawyer advocates, with narrow exceptions (a)(1)-(3) ( see [3], [4] Lawyers can say what evidence they will present, but not present the evidence per se

(b) Permitted: Testimony by another lawyer in the firm [5]

Issue of confusing or prejudicing the jury Balancing interest of tribunal against those of client, because disqualifying the lawyer may disadvantage the client [4]

Rules 1.7 or 1.9 COI may preclude lawyer from being a witness as permitted in (a).[6]

RPC 3.8 Special Responsibilities of Prosecutors (Criminal) (a) refrain from prosecutions unsupported by probable cause

(b) assure that accused has been advised of rights

(c) shall not seek to obtain from unrepresented Ds waivers of important rights Except when accused appears pro se with approval of tribunal[2] (d) shall timely disclose to defense negating evidence

Except when it could harm the public interest or an individual w protective order from the tribunal [3]

(e) Shall not subpoena a lawyer to demand protected, privileged info, or unessential info, or could have reasonably obtained the info in other ways (e)(1)-(3) (f) refrain from extrajudicial statements that heighten public condemnation of accused, or assist prosecutors associates from doing so. [6] Supplements rule 3.6 [5] Prosecutor is a minister of justice, not simply an advocate[1] Systematic abuse of prosecutorial power could violate 8.4. Prosecutors are subject to 5.1 & 5.3 like other lawyers [6]

4.X Transactions with Non-Client Persons p.69RPC 4.1 Truthfulness in Statements to Others Rule refers to statements of fact [2]

Shall not knowingly

(a) Make false statements, e.g., an alibi lawyers knows is false

(b) fail to disclose a material fact [material to whom?] when disclosure is necessary to avoid a crime or fraud by client UNLESS 1.6 prohibits disclosure

Sales puffery is not material fact when it is an opinion

Lawyer must be truthful on clients behalf [1] BUT has no affirmative duty to inform opponent of relevant facts. If lawyer can avoid assisting in a crime or fraud only by disclosing, then under (b) the lawyer must do so, unless prohibited by 1.6 [3]

RPC 4.2 Communication with Person Repd by Another Counsel Protects people who have selected counsel from over-reaching by other lawyers[1] Communication outside the matter is permitted [4]

Communications authorized by law [5] When in doubt, seek a court order [6]

Other counsels consent may be required

Lawyer must have actual knowledge of the other counsel reping, but knowledge can be inferred. [8]

In the case of a repd Org, this rule prohibits comms w a constituent of the Org who supervises, directs, or consults w the Orgs lawyer [7] Communication is not prohibited w Orgs former constituent. [7]

If current constituent has own counsel, that counsels consent suffices [7]

RPC 4.3 Dealing with an Unrepd Person Shall not state or imply to such person that lawyer is disinterested, and person appears to misunderstand, lawyer shall clarify lawyers role in the matter.

When lawyer thinks unrepd persons interests may be adverse to lawyers client, lawyer shall not give legal advice, except to suggest they get counsel. [2] Rule distinguishes between persons whose interests are adverse to lawyers client and those whose interests are not adverse. [2]

Rule does not prohibit lawyers from negotiating terms of a transaction or settling disputes w an unrepd person [2]

RPC 4.4 Respect for the Rights of 3rd Persons (a) Shall not embarrass, delay, or burden a 3rd person. Or use methods to obtain evidence violating 3rd persons legal rights. (b) Lawyer receiving a legal document in error must promptly notify the sender.

5.X Law Firms & Associations p.72RPC 5.1 Responsibilities of partners, managers, supervisors (a) Measures must be in place to ensure all conform to RPCs; refers to managers [1] [2] (b) Supervisors must take reasonable effort to ensure juniors conform to RPCs

(c) One lawyer may be responsible for anothers violations, if s/he orders or ratifies such conduct, or a partner/manager knows of conduct but fails to avoid, prevent, or mitigate. See also 8.4(a). A junior associate could violate RPCs in violation of (b) poor procedures but not necessarily in violation of (c), when there is no direction, ratification or knowledge [6]

RPC 5.2 Responsibilities of Subordinate Lawyers (a) Bound by RPCs notwithstanding direction of seniors. But not if s/he does not know of the impropriety, e.g., a frivolous pleading. [1] (b) Does not violate RPCs if acting in accordance w supervisors reasonable resolution of an arguable Q of professional duty. [2]

RPC 5.3 Responsibilities Regarding Nonlawyer Assistants

RPC 5.4 Professional Independence of Lawyers

RPC 5.5 Unauthorized Practice; Multijurisdictional Practice

RPC 5.6 Restrictions on Right to Practice = Non-Compete

7.X Info About Legal Services p.86RPC 7.1 No false or misleading communications about the lawyer or the lawyers services, incl. omissions, material misrep of fact or law. Need disclaimers or qualifiers in advertisements. Cannot mislead as to lead a reasonable person to form a conclusion on which there are no facts [2]; or to expect similar results.[3]

RPC 7.2 Advertising (subject to 7.1 & 7.3) Permitted in written, recorded, electronic, public media [5] Must include name & office address of at least one lawyer responsible for it

TV & Internet permitted[3]

Cannot pay others to recommend, but may pay for reasonable costs of media, lawyer referral service (if approved by authorities), law practice 1.17, non-exclusive and disclosed referrals to other lawyers. Expenses for media permitted, but paying others for hawking, impermissible [5] Hiring publicists, public-relations, business-development permitted [5] Their conduct covered in 5.3

Active quest for clients permitted contrary to tradition[1]

Permits public dissemination of services undertaken, basis for fees, foreign language abilities, names of references, and (with consent) names of represented clients, etc. Effectiveness and taste are subjective[3]

Referral services may be non-profit or regulated [6]

Participation in legal services plans must conform with lawyers professional obligations. 5.3 governs how such plans advertise & communicate w clients.[7] May mutually refer to other lawyers, as long as not exclusive & disclosed to client.

RPC 7.3 Direct contact w prospective clients No live in-person soliciting for pecuniary gain, Ohralik, except when contacting another lawyer, family, personal or prior professional relationship, e.g., former client [4]

Potential for abuse silver tongue [1] Permitted to engage in: constitutionally protected activities, charitable legal services, orgs that provide legal services to members. [4] In re Primus (permitted to express political belief and advance civil liberties objectives of ACLU; letter to client protected as 1st Am freedom of association; counsel fees awarded by court for vindication of civil rights not the same as pecuniary gain) Permitted to solicit organizations seeking representation [6]

BUT no false or misleading under 7.1

No soliciting employment from prospective clients in any way if pc made known desire not to be solicited or if solicitation harasses, coerces, places under duress.

Fla. prohibits personal injury lawyers from sending targeted direct-mail to victims & relatives for 30 days after an accident/disaster. Upheld in Went For It.

Advertising Material must appear on outside of envelope for all solicitations, but not for other communications of general interest or responses [7] Participation permitted in group legal plans that do solicit, as long as not owned/directed by the lawyer, i.e., cannot work around the solicitation rule.

RPC 7.4 Fields of Practice & Specialization Ares practiced or not practiced may be stated

Specialists only if patent attorney, admiralty

Other certifications in a given field of law permitted if by regulated body or provisionally regulated body (so disclosed) Or may mention a certification when jurisdiction lacks one, w disclosure When saying specialist lawyer subjects to false & misleading standard in 7.1

RPC 7.5 Firm Names & Letterheads May not imply connection to govt, charitable or public legal services

Firm name may be used in every locational jurisd, but lawyers names must be attached

Name of lawyer holding public office will not be used in firm name or in firm communications

Name of deceased partner permitted as a trade name, but names of former partners impermissible Lawyers who share offices but are not associated may not use a name that so implies

RPC 7.6 Political Contributions for purposes of securing Govt or Judge appointed engagements, preclude accepting such appointments. May fully participate in the political process

Political contributions in initiative and referendum elections are not banned Referee, commissioner, special master, guardian are examples of judge-appointed engagements.

Analysis explained [5]

Rule 8.4 implicated

8.X Maintaining the Integrity of the Profession p.93RPC 8.1 Bar Admission & Disciplinary Matters knowingly false statements or omissions Duty attaches to bar applicants as well as lawyers

RPC 8.2 Judicial & Legal Officials knowingly/recklessly false statements regarding qualifications or integrity of others in judicial system Continue traditional practice of defending judges and courts unjustly criticized

RPC 8.3 Reporting Professional Misconduct Inform the appropriate professional authority

Does not require disclosure of:

Info protected by 1.6

Encourage client to consent to disclose

or

Info gathered while on a disciplinary committee or lawyer assist program to the extent it would be atty-client privileged, as well when retained by another attorney to represent [4] Unenforceable to require reporting every violation use judgment

RPC 8.4 Misconduct Only refers to conduct pertaining to practice of law, incl:

Violence, dishonesty, breach of trust, interference w admin of justice, pattern of minor offenses [1]

Bias/prejudice based on race, sex, religion, national origin, disability, age, socioeconomic status, sexual orientation ( when prejudicial to admin of justice [2]

Lawyer may refuse to comply w an obligation he believes is absent; includes challenges to law under 1.2(d) [3] Lawyers in public office have responsibilities beyond other citizens [4]

RPC 8.5 Disciplinary Authority & Choice of Law Discipline meted out in admitted jurisd regardless of where misconduct occurred

But if conduct clearly has predominant effect in another jurisd, only rules of that jurisd apply [4]

But lawyer may be subject to discipline in >1 jurisd [2] Subject to RPCs of each court lawyer practices in [4]

Some comity & consistency when multiple jurisds are applying rules to conduct [5] This rule does not apply transnationally

Index p.98

Paltin

Professional ResponsibilityPage 1 of 1411/29/2006