PR Rules

1.0 TERMINOLOGY
(a) Belief actually supposed the fact in question to be true; may be inferred
(b) Confirmed in writing informed consent given in writing
(c) Firm/law firm
1.1COMPETENCE
• Legal knowledge, skill, preparation reasonably necessary for representation
• Relevant factors: o Compelexity and specialized nature of the matter o General experience of lawyere o Lawyer’s training and expeience in the field in question o Preparation and stude o Consult with lawyer of established competence
• No special training needed o Newly admitted atty can be competent
• Emergency situation o Assistance should be limited if atty does not have the skill ordinarily required o Limit to that reasonably necessary
• Reasonable preparation
• Inquiry into the analysis of the factual and legal components of the problem required
• Attention and preparation determined by what is at stake o See 1.2(c) to limit scope of representation
• If reaching out to other atty’s for assistance o Obtain informed consent of client- must reasonably believe the other atty’s skills will contribute to the competent/ethical representation o See 1.2, 1.4, 1.5(e), 1.6, 5.5 o Consult with client about scope of representation and allocation of responsibility
• Keep aware of changes in the law and its practice
1.2 SCOPE OF REPRESNETATION AND ALLOCATION OF AUTHORITY BETWEEN CLIENT AND LAWYER
• Abide by clients decisions concerning objectives o Client has ultimate authority
• Consult with client as to means (see 1.4) which are to be pursued o Clients normally defer to the knowledge/skill of atty
• May take action which is impliedly authorized to carry out representation o May rely on advanced authorization
• Abide by client’s decisions whether to settle a matter o Informed consent
• Criminal case – abide by client’s decision at to plea, waive jury trial, whether client will testify (after consulaiton)
• Representation does not constitute endorsement of client’s views/activites
• Scope of representation may be limited by atty o Must give informed consent
• Shall not counsel client on conduct that is criminal or fraudulent o If action has already began, atty must avoid assisting client o Withdrawal may be insufficient at times (see 4.1) o If atty knows/reasonably should know the client expects assistance, atty should consult with client about limitation according to the Rules
1.3 DILLIGENCE
• Reasonable diligence and promptness
• Act with commitment and dedication
• Procrastination o Unreasonable delay o Reasonable request for a postponement (must not prejudice client)
• Carry out through conclusion of all matters (unless terminated, see 1.16)
• Consult with client about possibility of appeal before relinquishing responsibility of the matter (1.4(a)(2)) o Depends on scope of representation agreed upon (see 1.2)
1.4 COMMUNICAITON
• SHALL o Promptly inform in which informed consent is required (1.0(e)) o Reasonably consult about means by which client’s objectives are to be accomplished
♣ Circumstances will determine whether consultation must be made before action or after (i.e. exigency circumstance) o Keep client reasonably informed about status o Promptly comply with requests for info o Consult with client about relevant limitations of atty’s conduct o Explain a matter to extent reasonably necessary to allow client to make informed decisions
• Necessary for client to effectively participate o Client should have sufficient information to participate regarding objectives o Atty should explain general strategy o May be difficult if client is child or diminished capacity (see 1.14) or when client is org/group (see 1.13)
• Ideal to maintain regular communication with client
• Justified delay if client would likely act imprudently o Not to serve lawyer’s own interests
1.5 FEE
• SHALL not make an agreement for or collect an unreasonable fee or amount for expenses o Factors to consider
♣ Time/labor required
♣ Novelty/difficultly of question involved
♣ Skill requisite to perform
♣ Likelihood representation will preclude other represention
♣ Fee customarily charged
♣ Time limitations imposed by client
♣ Nature/length of professional relationship with client
♣ Experience, reputation, ability of atty
♣ Whether fee is fixed/contingent
• Scope of representation and basis for fee/expenses should be communicated to the client (preferably in writing) before or witin reasonable time after commencing the rep
• Fee may be contingent on the outcome of the matter o Shall be in writing, signed by the client
• SHALL not enter agreement/charge for o Contingent fees in Domestic relations or criminal matters
• Division of fees o Must be proportionate to services performed o Client must agree to arrangement, confirmed in writing o Total fee must be reasonable
1.6 CONFIDENTIALITY OF INFORMATION
• Atty SHALL not reveal info relating to representation UNLESS o May reveal if reasonably necessary to
♣ Prevent certain death/substantial bodily harm
♣ Prevent client from commiting crime/fraud that is reasonably certain to result in substantial injury to the financial interests/property of another and used atty’s services in furtherance
♣ To prevent/mitigate/rectify substantial injury to the financial interests/property of antother that is reasonably certain to result(ed) from the crime/fraud in which client used atty’s services
♣ Secure leagal advice about atty’s compliance with Rules
♣ To establish claim/defense in suit v. client (i.e. malpractice)
♣ To comply with other law/court order
♣ Due to change in employement (i.e. new firm)
• SHALL make reasonable efforts to prevent the inadvertent or unauthorized disclosure of info
• Relates to representation DURING representation
• Important because trust is a hallmark of the atty-client relationship o Want to encourage client to communicate fully and frankly
• Applies to all aspects of the representation, not just information communicated by client
• Act reasonably to prevent the discovery of such info by TP
• May use a hypothetical in seeking guidance as long as not possible to ascertain identity
• Implied authorization to make disclosures o Surrounding circumstances
• Limited exceptions o Overriding values of life and physical integrity o Present and substantial risk o Reasonably certain to occur
• Atty does not have to disclose info relating to crime/fraud which client is seeking representation
• Consider other laws and whether they require disclosure, will trump Rules
• When discussing case with other atty’s only disclose info that is reasonably necessary and consider whether informed consent is necessary before proceeding o May be used to detect/resolve conflicts of interest
• Always consider informed consent or persuade the client to take action to obviate the need for disclosure
• Act competently to safeguard information o See 1.1, 5.1, 5.3 o Reasonable efforts to prevent o To determine reasonableness
♣ Sensitivity of info
♣ Extent privacy is protected by law/confidentiality agreement
• Duty continues AFTER relationship has terminated o See 1.9
TN 1.6 CONFIDENTIALITY OF INFORMATION
• SHALL not reveal UNLESS o Informed consent o Impliedly authorized o OR
♣ Crime (client or another person)/fraud reasonably certain to result in substantial injury to person or financial interests (unless restricted by 3.3)
♣ Prevent/mitigate/rectify substantial injury to financial interests
♣ Secure legal advice
♣ v. client
• Reasonably believes disclosure is necessary o Prevent reasonably certain death or substantial bodily injury o Comply with court order o To comply with 3.3, 4.1 or other law
• Applies to government lawyers who may disagree with the policy goals of the representation
• Can disclose for purposes of education, if not to detriment of client
1.7 CONFLICT OF INTERESTS: CURRENT CLIENTS
• SHALL not represent if there is a concurrent conflict of interests o Representation of one client will be directly adverse to another client o Significant risk that the representation will be matteraily limited by responisbilities to another
• MAY represent a client if o Reasonably believes that he will be able to provide competent/diligent representation to each affected client o Representation is not prohibited by law o Rep does not inovolve client v. client o Each client gives informed consent in writing
• Resolution of a conflict o Clearly identify client(s) o Determine whether conflict of interest exists o Decide whether the representation may be undertaken despite the existence of a conflict o If so, consult with the clients affected and obtain informed consent in writing
• If conflict of interests exists before representation is undertaken, must decline o Adopt reasonable procedures to determine (i.e. conflict check system) o Ignorance of conflict is not an excuse
• If conflict arises AFTER o Ordinarily atty must withdraw, unless obtained informed consent o If unforeseeable developments- may withdraw and must take steps o minimize harm to clients
• How likely is it that a difference in interests will eventuate and if it does, whether it will materially interefere with the laywer’s independent professional judgment in considering alternatives.
• Informed consent required that each client be aware of the relevant circumstances and of the material and reasonably foreseeable ways that the conflict could have an adverse effect on the interests of the client
• Commonly represented clients o Atty-client privilege does not attached o Equal duty of loyalty to each client o Obtain informed consent at outset and explain
• Representing Corps/Groups o Atty does not represent any constitutent of afflilated organization (i.e. parent or subsidiary)
• Prohibited from engaging in sexual relations with clients unless relationship predates the represesntaion
TN 1.7 CONFLICT OF INTEREST: CURRENT CLIENTS
• SHALL not represent one or more clients in the same criminal or juvenile delinquent matter UNLESS o Demonstrates good cause that no conflict of interest exists or is likely to exist o Affect clients give informed consent
• Sexual realtions are not prohibteed, but tread lightly
• Absent other law, a client may waive conflict of interests
• Multiple representation is appropriate where the objective of the various clients predominate over any inconsistent interests
1.8 CONFLICT OF INTEREST: CURENT CLIENTS: SPECIFIC RULES
• Business transactions with clients o Terms must be fair and reasonable o Fully disclosed in writing, reasonably understood by client o Advised in writing of seeking independent legal counsel o Client gives informed consent in writing and signed to the terms of transaction and the atty’s role
• Prior to conclusion of representation, atty cannot secure literary or media rights to the representation
• SHALL not provide financial assistance to a client EXCEPT o Advance court costs and expenses, and repayment is contingent on the outcome o Indigent client rep- may pay court costs and expenses
• SHALL not accept compensation for representation from someone other than the client UNLESS o Client gives informed consent o No interference with the atty’s independence of profession judgment of relationship with client o TP could have interests that differ from client
• If representing two or more cleints- atty shall not participate in making an aggregate settlement UNLESS each client gives informed consent in writing o Disclosure shall include the existence and nature of all the claims or pleases involveds and the participation of each person in the settlement o Atty must inform each client of all material terms of the settlement
• SHALL not o Make agreement limiting limiting liability unless client is independently represented in the agreement (i.e. agreement for malpractice) o Settle a malpractice claim without client being indep rep’s UNELSS that clien is advised in writing to seek counsel and given time for find counsel
• SHALL not acquire proprietay interests in the subject matte, EXCEPT atty may o Acquire a lien authorized by law to secure fees/expenses o Contract with client for reasonable contingent fee in civil case
• MAY accept gifts, if the transaction meets general standards of fairness o Cannot accept gifts that require preparing legal instruments (i.e. will) UNLESS atty is a relative of client
1.10 IMPUTATION OF CONFLICTS OF INTEREST: GENERAL RULE
• When in a firm, no atty shall knowingly rep a client when any one atty would be prohibited from represnetaion UNLESS o Prohibition is based on personal intersts of the atty and no significant risk of materially limiting the representation o Prohibition is based on a former client and arises out of the atty’s association with a prior firm
♣ Atty must be timely screened from participation
♣ Written notice given to affected former client
♣ Certifications of compliance with Rules and screening provided to former client upon former client’s request
TN 1.10 IMPUTATION OF CONFLICTS OF INTEREST: GENERAL RULE
•
1.13 ORGANIZATION AS CLIENT
• Represents the org acting through its duly authorized constituents
1.14 CLIENT WITH DIMINISHED CAPACITY
• SHALL as far as reasonably possible, maintain normal client-lawyer relationship
• Lawyer MAY take reasonably necessary protective action if reasonably believes o The client has diminished capacity o At risk of substantial physical, financial, or other harm o Cannot adequately act in own interests unless action is taken
• Information is protected by 1.6 o When taking protective action, impliedly authorized to reveal info reasonably necessary to protect cleint’s interest
• Relationship is based on assumption that client, when properly advised/assisted, is capable of making decisions about important matters
• Diminished capacity does no diminish that atty’s obligation to the client – attention and respect
• Non-exhuastive list of protective measures: o Consult with family o Power of attorney o Support groups o Professional services
• Still guided by the client’s objectives
• Balancing factors in determining diminished capacity o Cleint’s ability to articulate reasoning leading to a decision o Variability of state of mind o Ability to appreciate consquences of a decision o Substantive fairness of a decision o Consistence of a decision o Known long-term commitment and values of the client
• Advocate for the least restrictive action o i.e. guardian/conservator might not be the best solution in most cases
• Disclosure of client’s diminished capacity o Could adversely affect client’s interests o Unless authorized, may not disclosed o If necessary to disclose, consider whether TP will act adverslty to the client’s interets
1.16 DECLINING OR TERMINATING REPRESENTATION
• SHALL not represent a client and SHALL withdraw IF o Will result in a Rule violation o Lawyer’s ability to represent is impaired o Atty is discharged
• MAY witdraw if o Can do so without material adverse effect on client o Reasonably believes conduct is criminal/fraudulent o Atty’s services have been used to perpetrate a crime/fraud o Fundamental disagreement o Client fails to fulfill obligation o Unreasonable finiacial burden to atty o Other good cause
• MUST comply with applicable law when terminating the relationship
• SHALL take steps to protect clients interests when terminating
• Avoid need to withdraw from beginning – ensure no conflicts of interests
• If appointed, withdraw may require approval by appointing authority
5.1 RESPONSIBILITES OF PARTNERS, MANAGERS, AND SUPERVISORY ATTORNEYS
• SHALL o Make reasonable efforts to ensure atty’s conform to rules of conduct
• Direct Supervisory o Reasonable efforsts to ensure conformity to rules
• Responsible for another’s violation if: o Order or ratifies conduct o Partner/managerial authority and knows of the conduct at the time when it could be avoided/mitigated and fails to do so
• See 1.0(c)
• Reasonable efforts to establish internal policies and procedures o Measures may depend on structure and nature of firm practice
• See 8.4(c)
• Supervisors are required to intervene to prevent avoidable consequences of misconduct if knows the misconduct occurred
• Does not alter the personal duties of each lawyer
5.2 RESPONSIBILITES OF A SUBORDINATE LAWYER
• Subordinate atty does not violate rules if acts in accordance with supervisor’s reasonable resolution o Must determine whether reasonable or not o Did the subordinate KNOW of the violation, if not know violation
5.3 RESPONSIBILITES REGARDING NONLAWYER ASSISTANCE
• Firm shall make reasonable efforts to ensure that the person’s conduct is compatible with professional obligation
• Atty is responsible for the conduct of such person if o Atty orders or knows of the conduct and ratifies o Fails to make remedial action
7.1 INFORMATION ABOUT LEGAL SERVICES
• Atty should not make false/misleading communication about services
• Communication is false/misleading if it contains a material representation of fact or law or omits a fact necessary
• Governs adversitisements
• Truthful statements that a misleading are also prohibited
• Can’t use past victories to mislead clients to assume same results
8.1 BAR ADMISSION AND DISCIPLINARY MATTERS
• Applicant of lawyer in connection
• SHALL NOT o Knowingly make false statement of material fact o Fail to disclose a fact necessary or correct misapprehension
• Rule is subject to 5th amendment o Rely on such provision openly
• See rules 1.6 and 3.3
8.3 REPORTING PROFESSIONAL MISCONDUCT
• Atty who KNOWS another atty has violated rules and raises substantial question to that atty’s honesty, trustworthiness, fitness as a atty in other respects SHALL inform the appropriate authority
• Atty who KNOWS a judge vilated the judicial conduct rules and raises substantial question as the judge’s fitness for office SHALL inform authority
• Does not require disclosure of info otherwise protected by 1.6 or info obtained through lawyers assistance program
• An apparent isoloated violation may indicate a pattern of mmisconduct
• Substantial refers to seriousness of the possible offense NOT the quantum of evidence
• Does not apply to atty who is retained by an atty to represent
8.4 MISCONDUCT
• Misconduct o Violate/attempt to violate rules
♣ Knowingly assist or induce another to o Commit criminal acts that reflect adversely on honesty, trustworthiness, or fitness o Engage in dishonesty, fraud, deceit, or misrepresentation o Conduct that is prejudicial to the administration of justice
• Does not prohibit a lawyer from advising a client concerning action the client is legally entitled to take
• Characteristics relevant to the law practice
Restatement §59 DEFINITION OF CONFIDENTIAL INFORMAITON
• Duty of loyalty is the predicate of the duty of condfidentiality
• Covers all info relating to representation, regardless of how communicated or acquired
• Info that becomes known by others, but NOT generally known o Generally known depends on circumstances relevant in obtaining info
Restatement §60 DUTY TO SAFEGUARD CONFIDENTIAL INFORMATION
• Applies DURING the representation
• May not disclose if reasonable prospect that doing so will adversely affect material interest or client has instructed atty as such o Material interest depends on circumstances o • Must take reasonable steps to protect from impermissible use or disclosure
• If info used for own self gain, must report profits to client
• Duty of confidentiality is defined in terms of risk of harm
Restatement §63 DISCLOSING INFO WHEN REQUIRED BY LAW
• May disclose if required by law AFTER atty takes reasonable steps to assert that info is privileged or otherwise protected by disclosure
Restatement §64 DISCLOSING INFO IN LAWYER’S SELF DEFENSE
• Reasonably believes reasonably necessary to defend against claim from client (i.e malpractice)
Restatement §66 DISCLOSING INFO TO PREVENT DEATH OR SERIOUS BODILY HARM
• Reasonably believes necessary to prevent reasonably certain death or serious bodily harm
• First MUST make good faith effort to dissuade client not to act o If already acted, advise client to warn victim to prevent and to inform client of option of disclosure and consequences thereof
• Atty not required to take action under this section