Model Rules of Professional Conduct Outline PDF

**MODEL RULES OF PROFESSIONAL CONDUCT** **Rule 1 Series: *Client-Lawyer Relationship*** **1.0** Terminology 1.0(a): "Belief" or "Believes" 1.0(b): "Confirmed in Writing" 1.0(c): "Firm" or "Law Firm" 1.0(d): "Fraud" or "Fraudulent" 1.0(e): "Informed Consent" 1.0(f): "Knowingly," "known," or "...

**MODEL RULES OF PROFESSIONAL CONDUCT** **Rule 1 Series: *Client-Lawyer Relationship*** **1.0** Terminology 1.0(a): "Belief" or "Believes" 1.0(b): "Confirmed in Writing" 1.0(c): "Firm" or "Law Firm" 1.0(d): "Fraud" or "Fraudulent" 1.0(e): "Informed Consent" 1.0(f): "Knowingly," "known," or "knows" 1.0(g): "Partner" 1.0(h): "Reasonable" or "reasonably" 1.0(i): "Reasonable belief" or "reasonably believes" 1.0(j): "Reasonably should know" 1.0(k): "Screened" 1.0(l): "Substantial" 1.0(m): "Tribunal" 1.0(n): "Writing" or "written" **1.1** Competence **1.2** Scope of Rep. & Allocation of Authority B/w Client & Lawyer **1.3** Diligence **1.4** Communication **1.5** Fees **1.6** Confidentiality **1.7** Conflict of Interest: Current Clients **1.8** Conflict of Interest: Current Client, Specific rules 1.8(a): Business Transactions with Clients 1.8(c): Gifts (Lawyer's Personal Interest or Duties) 1.8(d): Rights to Publication/Media Rights 1.8(e): Financial Assistance 1.8(f): Third Party Payer 1.8(h): Limiting Lawyer Liability 1.8(i): Proprietary Interest In the Cause of Action 1.8(j): Sexual Relations (Lawyer's Personal Interest or Duties) 1.8(k): Imputation **1.9** Duties to Former Clients **1.10** Imputation of Conflicts of Interest: General Rules **1.11** Special Conflicts of Interest for Former & Current Gov. Officers & Employees **1.12** Former Judge, Arbitrator, Mediator or Other Third-Party Neutral **1.13** Organization as Client **1.14** Client with Diminished Capacity **1.15** Safekeeping Property **1.16** Declining or Terminating Representation ~~**1.17** Sale of Law Practice~~ **1.18** Duties to Prospective Client **Rule 2 Series: *Counselor*** **2.1** Advisor ~~**2.3** Evaluation for Use by Third Persons~~ **2.4** Lawyer Serving as Third-Party Neutral **Rule 3 Series: *Advocate*** **3.1** Meritorious Claims and Contentions **3.2** Expediting Litigation **3.3** Candor Towards the Tribunal **3.4** Fairness to Opposing Party & Counsel **3.5** Impartiality and Decorum of the Tribunal **3.6** Trial Publicity ~~**3.7** Lawyer as Witness~~ **3.8** Special Responsibilities of Prosecutor ~~**3.9** Advocate in Nonadjudicative Proceedings~~ **Rule 4 Series: *Transactions w/ Persons other than Clients*** **4.1** Truthfulness in Statements to Others **4.2** Communication with Person Represented by Counsel **4.3** Dealing with Unrepresented Person ~~**4.4** Respect for Rights of Third Persons~~ **Rule 5 Series: *Law Firms and Associations*** **5.1** Responsibilities of Partners, Managers, and Supervisory Lawyers **5.2** Responsibilities of a Subordinate Lawyer **5.3** Responsibilities Regarding Nonlawyer Assistance **5.4** Professional Independence of Lawyer **5.5** Unauthorized Practice of Law; Multijurisdictional Practice of Law ~~**5.6** Restrictions on Right to Practice~~ ~~**5.7** Responsibilities Regarding Law-Related Services~~ **~~Rule 6 Series: *Public Service*~~** ~~**6.1** Voluntary Pro Bono Publico Service~~ ~~**6.2** Accepting Appointments~~ ~~**6.3** Membership in Legal Services Organization~~ ~~**6.4** Law Reform Activities Affecting Client Interests~~ ~~**6.5** Nonprofit and Court-Annexed Limited Legal Services Programs~~ **Rule 7 Series: *Information About Legal Services*** **7.1** Communications Concerning a Lawyer's Services **7.2** Advertising **7.3** Solicitation of Clients **7.4** Communication of Fields of Practice & Specialization ~~**7.5** Firm Names & Letterheads~~ ~~**7.6** Political Contributions to Obtain Gov. Legal Engagements/Appts. by Judges~~ **Rule 8 Series: *Maintaining the Integrity of the Profession*** **8.1** Bar Admission & Disciplinary Matters **8.2** Judicial & Legal Officials **8.3** Reporting Professional Misconduct **8.4** Misconduct **8.5** Disciplinary Authority; Choice of Law **Rule 1.0 Terminology** +-----------------------------------+-----------------------------------+ | **Belief** | \(a) \"Belief\" or \"believes\" | | | denotes that the person | | | involved actually supposed the | | | fact in question to be true. A | | | person\'s belief may be | | | inferred from circumstances. | +===================================+===================================+ | **Confirmed in writing** | \(b) \"Confirmed in writing,\" | | | when used in reference to the | | | informed consent of a person, | | | **denotes informed consent that | | | is given in writing by the | | | person or a writing that a | | | lawyer promptly transmits to | | | the person confirming an oral | | | informed consent**. | | | | | | See paragraph (e) for the | | | definition of \"informed | | | consent.\" | +-----------------------------------+-----------------------------------+ | | - Cmt 1:  **If it is not | | | feasible to obtain or | | | transmit a written | | | confirmation at the time the | | | client gives informed | | | consent,** then the lawyer | | | must obtain or transmit it | | | within a reasonable time | | | thereafter. If a lawyer has | | | obtained a client\'s informed | | | consent, the lawyer may act | | | in reliance on that consent | | | so long as it is confirmed in | | | writing within a reasonable | | | time thereafter. | +-----------------------------------+-----------------------------------+ | **Law Firm** | \(c) \"Firm\" or \"law firm\" | | | denotes a lawyer or lawyers in | | | a law partnership, professional | | | corporation, sole | | | proprietorship or other | | | association authorized to | | | practice law; or lawyers | | | employed in a legal services | | | organization or the legal | | | department of a corporation or | | | other organization. | +-----------------------------------+-----------------------------------+ | | - **Who is a firm? Cmt 2:** | | | Whether two or more lawyers | | | constitute a firm \[\] **can | | | depend on the specific | | | facts**. For example, two | | | practitioners who share | | | office space and occasionally | | | consult or assist each other | | | ordinarily would not be | | | regarded as constituting a | | | firm. However, if they | | | present themselves to the | | | public in a way that suggests | | | that they are a firm or | | | conduct themselves as a firm, | | | they should be regarded as a | | | firm for purposes of the | | | Rules. The terms of any | | | formal agreement between | | | associated lawyers are | | | relevant in determining | | | whether they are a firm, as | | | is the fact that they have | | | mutual access to information | | | concerning the clients they | | | serve. Furthermore, it is | | | relevant in doubtful cases to | | | consider the underlying | | | purpose of the Rule that is | | | involved. A group of lawyers | | | could be regarded as a firm | | | for purposes of the Rule that | | | the same lawyer should not | | | represent opposing parties in | | | litigation, while it might | | | not be so regarded for | | | purposes of the Rule that | | | information acquired by one | | | lawyer is attributed to | | | another. | | | | | | - **Organizations/Gov, Cmt 3:** | | | With respect to the law | | | department of an | | | organization, including the | | | government, there is | | | ordinarily no question that | | | the members of the department | | | constitute a firm within the | | | meaning of the Rules of | | | Professional Conduct. There | | | can be uncertainty, however, | | | as to the identity of the | | | client. For example, it may | | | not be clear whether the law | | | department of a corporation | | | represents a subsidiary or an | | | affiliated corporation, as | | | well as the corporation by | | | which the members of the | | | department are directly | | | employed. A similar question | | | can arise concerning an | | | unincorporated association | | | and its local affiliates. | | | | | | - **Legal Aid/Legal Servs Cmt | | | 4:** Similar questions can | | | also arise with respect to | | | lawyers in legal aid and | | | legal services organizations. | | | Depending upon the structure | | | of the organization, the | | | entire organization or | | | different components of it | | | may constitute a firm or | | | firms for purposes of these | | | Rules. | +-----------------------------------+-----------------------------------+ | **Fraud** | \(d) \"Fraud\" or \"fraudulent\" | | | denotes conduct that is | | | fraudulent under the | | | substantive or procedural law | | | of the *applicable | | | jurisdiction* and has a purpose | | | to deceive. | +-----------------------------------+-----------------------------------+ | | - Cmt 5: When used in these | | | Rules, the terms \"fraud\" or | | | \"fraudulent\" refer to | | | conduct that is characterized | | | as such under the substantive | | | or procedural law of the | | | applicable jurisdiction and | | | has a purpose to deceive. | | | This does not include merely | | | negligent misrepresentation | | | or negligent failure to | | | apprise another of relevant | | | information. For purposes of | | | these Rules, it is not | | | necessary that anyone has | | | suffered damages or relied on | | | the misrepresentation or | | | failure to inform. | +-----------------------------------+-----------------------------------+ | **Informed Consent** | \(e) \"Informed consent\" | | | **denotes the agreement by a | | | person to a proposed course of | | | conduct after the lawyer has | | | communicated adequate | | | information and explanation | | | about the material risks of and | | | reasonably available | | | alternatives to the proposed | | | course of conduct**. | +-----------------------------------+-----------------------------------+ | | - **Cmt 6:** Many of the Rules | | | of Professional Conduct | | | require the lawyer to obtain | | | the informed consent of a | | | client or other person (e.g., | | | a former client or, under | | | certain circumstances, a | | | prospective client) before | | | accepting or continuing | | | representation or pursuing a | | | course of conduct. See, e.g., | | | Rules 1.2(c), 1.6(a) and | | | 1.7(b). The communication | | | necessary to obtain such | | | consent will vary according | | | to the Rule involved and the | | | circumstances giving rise to | | | the need to obtain informed | | | consent. The lawyer must make | | | reasonable efforts to ensure | | | that the client or other | | | person possesses information | | | reasonably adequate to make | | | an informed decision. | | | Ordinarily, this will require | | | communication that includes a | | | disclosure of the facts and | | | circumstances giving rise to | | | the situation, any | | | explanation reasonably | | | necessary to inform the | | | client or other person of the | | | material advantages and | | | disadvantages of the proposed | | | course of conduct and a | | | discussion of the client\'s | | | or other person\'s options | | | and alternatives. In some | | | circumstances it may be | | | appropriate for a lawyer to | | | advise a client or other | | | person to seek the advice of | | | other counsel. A lawyer need | | | not inform a client or other | | | person of facts or | | | implications already known to | | | the client or other person; | | | nevertheless, a lawyer who | | | does not personally inform | | | the client or other person | | | assumes the risk that the | | | client or other person is | | | inadequately informed and the | | | consent is invalid. In | | | determining whether the | | | information and explanation | | | provided are reasonably | | | adequate, relevant factors | | | include whether the client or | | | other person is experienced | | | in legal matters generally | | | and in making decisions of | | | the type involved, and | | | whether the client or other | | | person is independently | | | represented by other counsel | | | in giving the consent. | | | Normally, such persons need | | | less information and | | | explanation than others, and | | | generally a client or other | | | person who is independently | | | represented by other counsel | | | in giving the consent should | | | be assumed to have given | | | informed consent. | | | | | | - **Cmt 7:** Obtaining informed | | | consent will usually require | | | an affirmative response by | | | the client or other person. | | | In general, a lawyer may not | | | assume consent from a | | | client\'s or other person\'s | | | silence. Consent may be | | | inferred, however, from the | | | conduct of a client or other | | | person who has reasonably | | | adequate information about | | | the matter. A number of Rules | | | require that a person\'s | | | consent be confirmed in | | | writing. See Rules 1.7(b) and | | | 1.9(a). For a definition of | | | \"writing\" and \"confirmed | | | in writing,\" see | | | paragraphs (n) and | | | (b).** **Other Rules require | | | that a client\'s consent be | | | obtained in a writing signed | | | by the client. See, e.g., | | | Rules 1.8(a) and (g). For a | | | definition of \"signed,\" see | | | paragraph (n). | | | | | | - **Generally:** | | | | | | - **[No consent permitted | | | (non-waivable | | | duties)]**: | | | doesn't matter if you get | | | consent, it's void. | | | | | | - Triggered by: some | | | concurrent conflicts | | | under Rule 1.7(b), | | | preparation of an | | | instrument that | | | conveys a substantial | | | gift to the atty Rule | | | 1.8(c), acquiring | | | media rights in the | | | subject of rep Rule | | | 1.8(d), providing | | | financial assistance | | | to client/acquiring | | | an interest in | | | subject matter of | | | litigation Rule | | | 1.8(e) and (i), | | | sexual relationships | | | with clients Rule | | | 1.8(j), and judge | | | negotiating for | | | employment with a | | | party or atty | | | involved in a matter | | | in which the judge is | | | participating | | | personally and | | | substantially Rule | | | 1.12(a). | | | | | | - **[Written | | | consent]**: | | | agreement must be | | | written + signed by the | | | client. | | | | | | - Triggered by: terms | | | of contingency fee | | | agreement Rule | | | 1.5(c), BT w/ clients | | | Rule 1.8(a). | | | | | | - **[Consent confirmed in | | | writing]**: | | | may start out as oral | | | consent but must be | | | subsequently set in | | | writing + transmitted to | | | the person giving | | | consent. | | | | | | - Triggered by: | | | concurrent and | | | successive conflicts | | | of interest, Rule | | | 1.7(b)(4), Rule | | | 1.9(a), and Rule | | | 1.11(a)(2). | | | | | | - **[Informed consent, not | | | specified]**: | | | oral consent likely okay, | | | but best practice is to | | | still have one of the | | | above. | | | | | | - Triggered by: | | | limiting scope of rep | | | Rule 1.2(c), | | | disclosure/adverse | | | use of confidential | | | info Rule 1.6(a) and | | | Rule 1.8(b), | | | accepting | | | compensation from 3P | | | Rule 1.8(f), keeping | | | client funds in a | | | state where the | | | atty's office is | | | located Rule 1.15(a). | | | | | | - **[Notice]**: | | | no consent required. | | | | | | - Triggered by: | | | screening to protect | | | confidential info of | | | a former client in | | | moving-lawyer | | | conflicts Rule | | | 1.10(a)(2)(ii), | | | screen for former gov | | | lawyer conflicts Rule | | | 1.11(b)(2), law clerk | | | negotiating for | | | employment w/ party | | | or atty Rule 1.12(b) | | | (only notice to judge | | | required). | +-----------------------------------+-----------------------------------+ | **Knowingly** | \(f) \"Knowingly,\" \"known,\" | | | or \"knows\" denotes **actual | | | knowledge** of the fact in | | | question. A person\'s knowledge | | | **may be inferred from | | | circumstances**. | +-----------------------------------+-----------------------------------+ | **Partner** | \(g) \"Partner\" denotes a | | | **member of a partnership**, a | | | **shareholder in a law firm** | | | organized as a professional | | | corporation, or a **member of | | | an association authorized to | | | practice law**. | +-----------------------------------+-----------------------------------+ | **Reasonable** | \(h) \"Reasonable\" or | | | \"reasonably\" when used in | | | relation to conduct by a lawyer | | | **denotes the conduct of a | | | reasonably prudent and | | | competent lawyer**. | +-----------------------------------+-----------------------------------+ | **Reasonable Belief** | \(i) \"Reasonable belief\" or | | | \"reasonably believes\" when | | | **used in reference to a lawyer | | | denotes that the lawyer | | | believes the matter in question | | | and that the circumstances are | | | such that the belief is | | | reasonable**. | +-----------------------------------+-----------------------------------+ | **Reasonably should know** | \(j) \"Reasonably should know\" | | | when **used in reference to a | | | lawyer denotes that a lawyer of | | | reasonable prudence and | | | competence would ascertain the | | | matter in question**. | +-----------------------------------+-----------------------------------+ | **Screened** | \(k) \"Screened\" **denotes the | | | isolation of a lawyer from any | | | participation in a matter | | | through the timely imposition | | | of procedures within 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**. | +-----------------------------------+-----------------------------------+ | | - **Cmt 8:** This definition | | | applies to situations where | | | **screening of a personally | | | disqualified lawyer is | | | [permitted to remove | | | imputation of a conflict of | | | interest] under | | | Rules 1.10 (imputation), 1.11 | | | (government lawyers), 1.12 | | | (Former Judge, Arbitrator, or | | | 3P Neutral) or 1.18 | | | (prospective clients).** | | | | | | - **Cmt 9:** **The purpose of | | | screening is to assure the | | | affected parties that | | | confidential information | | | known by the personally | | | disqualified lawyer remains | | | protected**. The personally | | | disqualified lawyer should | | | acknowledge the obligation | | | not to communicate with any | | | of the other lawyers in the | | | firm with respect to the | | | matter. Similarly, other | | | lawyers in the firm who are | | | working on the matter should | | | be informed that the | | | screening is in place and | | | that they may not communicate | | | with the personally | | | disqualified lawyer with | | | respect to the matter. | | | Additional screening measures | | | that are appropriate for the | | | particular matter will depend | | | on the circumstances. To | | | implement, reinforce and | | | remind all affected lawyers | | | of the presence of the | | | screening, it may be | | | appropriate for the firm to | | | undertake such procedures as | | | a written undertaking by the | | | screened lawyer to avoid any | | | communication with other firm | | | personnel and any contact | | | with any firm files or other | | | information, including | | | information in electronic | | | form, relating to the matter, | | | written notice and | | | instructions to all other | | | firm personnel forbidding any | | | communication with the | | | screened lawyer relating to | | | the matter, denial of access | | | by the screened lawyer to | | | firm files or other | | | information, including | | | information in electronic | | | form, relating to the matter | | | and periodic reminders of the | | | screen to the screened lawyer | | | and all other firm personnel. | | | | | | - **Cmt 10:** In order to be | | | **effective**, screening | | | measures must be | | | **implemented** **as soon as | | | practical** after a lawyer or | | | law firm knows or reasonably | | | should know that there is a | | | need for screening. | +-----------------------------------+-----------------------------------+ | **Substantial** | \(l) \"Substantial\" **when used | | | in reference to degree or | | | extent denotes a material | | | matter of clear and weighty | | | importance**. | +-----------------------------------+-----------------------------------+ | **Tribunal** | \(m) \"Tribunal\" **denotes a | | | court, an arbitrator in a | | | binding arbitration proceeding | | | or a legislative body, | | | administrative agency or other | | | body acting in an adjudicative | | | capacity**. A *legislative | | | body, administrative agency or | | | other body acts in an | | | adjudicative capacity when* a | | | neutral official, after the | | | presentation of evidence or | | | legal argument by a party or | | | parties, will render a binding | | | legal judgment directly | | | affecting a party\'s interests | | | in a particular matter. | +-----------------------------------+-----------------------------------+ | **Writing** | \(n) \"Writing\" or \"written\" | | | **denotes a tangible or | | | electronic record of a | | | communication or | | | representation**, including | | | handwriting, typewriting, | | | printing, photostating, | | | photography, audio or | | | videorecording, and electronic | | | communications. A \"**signed\" | | | writing includes** an | | | electronic sound, symbol or | | | process attached to or | | | logically associated with a | | | writing and executed or adopted | | | by a person with the intent to | | | sign the writing. | +-----------------------------------+-----------------------------------+ **Client-Lawyer Relationship** - Three primary ways relationship may be **formed** Restatement Section 14 1. Client intentionally wants atty to provide legal services + atty agrees to provide those legal services 2. Client intentionally wants atty to provide legal services + atty is not clear in declining representation OR atty knew or should have known that the client is reasonably relying on them to provide her with those legal services 3. Judge appoints atty to represent a client - NOTE: under Rule 6.2, Accepting Appointments, an atty may or must decline the court-appointment - An atty **must refuse** to create an atty-client relationship when... - Rule 4.4(a): client's motive = to harass another person - Rule 3.1: atty is asked to take a position that is factually or legally frivolous - Rule 1.1: atty is too busy or inexperienced to be competent in the representation - Rule 1.16(a)(2): atty's mental or physical state impairs atty's ability to represent a client - ALL DUTIES/OBLIGATIONS BECOME IMPLICATED AT THE BEGINNING OF THE RELATIONSHIP - [The beginning of the relationship is not when the A/C contract is signed]; that is irrelevant to the analysis of whether you are obligated to give professional responsibility obligations to a regular client - See **Rule 1.18** (duties to prospective clients) - Basic duties to clients are [competence, diligence, communication, and honesty] - **Competence** Rule 1.1 Duty to provide knowledgeable, skillful, thorough, and effective representation. - **Communication** Rule 1.4 Duty to inform the client of all facts she needs to know to make an informed decision about the matter. - Rule 2.1 may be the duty of "candor" see language in rule "*a lawyer shall exercise independent professional judgment and render candor advice.* - **Confidentiality** Rule 1.6 Duty to keeping all info absolutely secret that the lawyer learned in the course of representing the client and not using the info in any way that could have an adverse effect on the client. - **Conflicts** Rules 1.7, 1.8 Duty to refrain from representing other clients in the present time or future whose interests are opposed in certain ways to your current client, and refraining from self-dealing. Also called the duty of loyal **[Rule 1.1](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_1_competence/)   Competence** [COMPETENCE = LEGAL KNOWLEDGE, SKILL, THOROUGHNESS, AND PREPARATION] [Legal Knowledge & Skill] - **Cmt 1- factors for determining whether a lawyer has the requisite knowledge/skill in a particular matter: C**omplexity and specialized nature of the matter, the lawyer's general experience, the lawyer's training and experience in the field in question, the preparation and study they can give to the matter and whether it's possible to refer the matter to consult with another lawyer who is competent in the field - Required proficiency is typically just of a general practitioner, but expertise in a certain field can be required in certain circumstances - This comment encourages younger/less-experienced attorneys to refer matters out if they don't have the necessary skills or reach out for advice or assistance if they feel like they're in over their heads - If working with other lawyers to ensure competence: - **Cmt 6:** informed consent and reasonableness of need - **Cmt 7: work w/ client to determine scope of rep for each attorney** - **Cmt 2- prior experience isn't necessary for competence;** lawyer doesn't necessarily need to have special training or prior experience to handle unfamiliar legal problems - New lawyer can be as competent as a lawyer with lots of experience; there's a first day for everything - Key legal skills: **analysis of precedent, evaluation of evidence and legal drafting, determining what kinds of legal problems a situation may involve (most important)** - **Competence can established by working with a lawyer who is established in the field** - **Cmt 3- Emergency Situations;** in an emergency a lawyer may give advice or assistance even if they don't have the skill ordinarily required if it would be impractical to refer the matter or consult - Assistance should be limited to what is reasonably necessary in the circumstances - **Cmt 4- Preparation is key;** a lawyer can represent a client when he can achieve the requisite level of competence through reasonable preparation - Applies to lawyers who are appointed, see **Rule 6.2** [Thoroughness and Preparation (Cmt 5)] - **Competence for a particular matter requires:** - Inquiry into and analysis of the factual and legal elements of the problem - Use of methods and procedures that meet the standards of other competence practitioners - Adequate preparation - Required attention and prep are determined by what's a stake - Ex: major litigation and complex transactions will require more effort - Client and lawyer can agree to limit the scope of the matters for which the lawyer is responsible - *atty expected to educate self (include legal skills like identify legal problems, know the law and procedure, ability to investigate facts)* [Working with Other Lawyers (Outside Firm)] - **Cmt 6- before a lawyer retains or contracts w/ lawyers [outside their firm] for assistance with a matter the lawyer should:** - **(1) obtain informed consent from the client and** - **(2) must reasonably believe that the other lawyer's services will contribute to the competent and ethical representation of the client** - Reasonableness of the decision depends on circumstances like the education, experience, and reputation of the outside lawyers; the nature of the services assigned to the outside lawyers, and the legal protections, professional conduct rules, and ethical environments of the jxs where the services will be performed - Other implicated rules: - 1.2: allocation of authority - 1.4: communication w/ client - 1.5(e): fee sharing - 1.6: confidentiality - 5.5(a): unauthorized practice of the law - **Cmt 7- when lawyers from diff firms work together for one client on a particular matter, they should consult with each other and the client about the scope of their respective representations and the allocation of responsibilities** [Maintaining Competence (Cmt 8):] Must be aware of changes in the law and its practice, - Have to stay aware of the benefits and risks of new, relevant technology - Lawyers must be technologically competent if using tech in their practice; ex: being able to use Zoom - Must continue to study, educate, and comply with all legal education requirements (CLEs) [Competence = thoroughness, preparation, and continuation] (ABA/IL comments) - Keys of competence: - Inquiry and analysis into the factual and legal elements of the problem - Lawyer should conduct research to get the requisite knowledge of the subject matter to give an effective opinion - Watch out for complicated areas of practice (patents, immigration) - Use the methods and procedures used by other competent practitioners in that field - Adequate preparation in order to fully represent the client's interests **[Other Implicated Rules: ]** - Rule 1.4(b) An atty cannot **mislead about their competency** - Rule 1.4(b), Communication, puts an obligation on attys to communicate with their client about their lack of competency - If you do not communicate prior to accepting representation about lack of competency and do so afterwards will likely not be disciplined, but your client will be upset - Rule 1.5 Time you bill to come up to speed to be competent the client must know and understand why they are taking on by hiring you - Rule 1.5, Fees, concerns - Rule 1.2 Discuss the SCOPE of your representation (see below, Rule 1.2), if limited -\>1.2(c) **[Competence in Criminal Cases: Effective Assistance of Counsel]** **6^th^ Amendment: guarantees all criminal defendants the right to have the assistance of counsel for his defense** - **Attaches directly to the fidelity and competence of defense counsel's services regardless of whether counsel is appointed or retained** - **Issues arise when attorney's strategy doesn't align with the client's stated goals** - **To be competence, criminal defense lawyers must avoid conflicts of interest, advocate the defendant's cause, consult with the defendant on important decisions, and keep the defendant informed of important developments in the case (*Strickland*)** ***Strickland* Test: whether a lawyer's error violates the 6^th^ Amendment** 1. **[Ineffective assistance:] the lawyer's errors were so serious that the lawyer was not functioning as the counsel guaranteed by the 6^th^ amendment** - **Deficient performance** - **Was the lawyer's assistance so fundamentally defective as to require a reversal of a conviction or sentence** 2. **[Causation:] Defendant must show that there is a reasonable probability that, but for the unprofessional errors, the result of the proceeding would have been difference** - **Is there a reasonable probability that the result would have been different?** - **If a client admitted to guilt, go straight to this step. No way for the result to have been different, so likely no 6^th^ amendment violation** **Cases:** - ***Strickland:* Defendant was not denied ineffective assistance of counsel, no 6^th^ amendment violation** - **Defendant confessed to murders, so the goal was to avoid the death penalty. Attorney was experienced and thought the judge would be fair because defendant expressed remorse, confessed, testified against his co-defendant, and had no serious criminal record. Decided not to request a pre-sentencing report because it would have included his criminal history and potentially undermined claim of no serious record.** - **Application of test:** - **Not deficient performance; conduct was reasonable** - **No causation; defendant failed to show that a more intense effort by the attorney would've changed the outcome** - ***Padilla*: Defendant was not denied ineffective assistance of counsel** - **Padilla was a permanent resident of the US and was arrested for drug charges. His lawyer advised to take a plea deal and told him that his immigration status didn't matter. Lawyer didn't realize that, under the current immigration laws, any conviction would lead to deportation.** - **Criminal defense attorneys must inform non-citizen criminal defendants about the risk of deportation based on a conviction when they are deciding whether to plead guilty** - **Under first prong of *Strickland* test: failing to advise on known immigration consequences constitute ineffective assistance** - **When a defendant has been charged with a *clear, deportable offense*, attorney must advise the defendant of the deportation risk. When the deportation consequences of a plea are unclear, all attorney has to do is advise the defendant that criminal charges may carry adverse immigration consequences** - **Padilla's attorney could have easily determined the clear deportation risks of Padilla's charges. Failure to do so and then advise Padilla on them constituted ineffective assistance** - **Best practice: regardless of whether something is a clear deportable offense, tell client about possible consequences relating to immigration before they take a plea or have them consult with an immigration attorney** **[Other ABA Criminal practice standards (Post-Strickland)]** - Keep client informed of developments - Inform accused of rights ASAP - Raise client competency issues - can be evidenced by psychiatrist report (*Blakeney v. United States*) - Conduct prompt investigation of circumstances and penalty in event of conviction - (Non-citizens) MUST provide accurate advice about immigration consequences of possible conviction (*Padilla v. Ky*, 2010). **[Rule 1.2](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_2_scope_of_representation_allocation_of_authority_between_client_lawyer/)   Scope of Representation and Allocation of Authority Between Client and Lawyer** ***[1.2(a):]** the client has the power to determine the purposes of the representation; the lawyer can decide the strategy, but must consult with the client (**Rule 1.4(a)(2)**) and can only act as impliedly authorized to carry out the representation* - ***Non-delegable client decisions: decision rests solely with the client/defendant*** - *[Civil:] decision to settle* - *[Criminal:] decision to plea, waive a jury trial, testify, forgo an appeal* - *Going beyond the scope of representation in a criminal matter can constitute ineffective assistance of counsel under the 6^th^ amendment* - *McCoy v. Louisiana (SC): **the declaration of guilt or innocence rests solely with the criminal defendant*** - *McCoy's 6^th^ amendment rights were violated because, even though he insisted he was innocent and objected to pleading guilty, the trial court allowed his attorney to tell the jury that he was guilty. Attorney violated 6^th^ amendment by admitting his client's guilty over his client's objection to the admission.* - [ABA guidance:] regardless of whether a decision is non-delegable, the attorney should still abide by the client's decisions and goals and consult with the client about the best strategy - *Examples of actions that are impliedly authorized: filing complaints, showing up to court hearings* - At the beginning of representation, client can authorize the lawyer to take specific actions on their behalf without further consultation (cmt 3) - Lawyer can rely on advance authorization unless there is a material change in circumstances - Client can revoke authority at any time - See **Rule 1.4** - *If the client and lawyer disagree over the scope of representation and the disagreement can't be resolved:* - ***Rule 1.16(b)(4):** lawyer can withdraw from representation* - ***Rule 1.16(a)(3):** client can discharge the lawyer* - For civil matters, if a client doesn't like an attorney's strategy, can terminate the relationship. For criminal cases, attorney needs court's approval to withdrawal. If a client disagrees with the lawyer's strategy for a non-delegable decision, the lawyer must move to withdraw from the case. - If a client appears to suffer diminished capacity, see **Rule 1.14** for the lawyer's duties to abide by their decisions **[1.2(b):] *A lawyer\'s representation of a client, including representation by appointment, does not constitute an endorsement of the client\'s political, economic, social or moral views or activities.*** - [Cmt 5:] legal representation SHOULD NOT be denied to people who can't afford legal services or whose cause is controversial/popularly disapproved - Ex: lawyer can represent the KKK - Representing a client doesn't mean the lawyer approves the client's views or activities - Gives lawyers ethical and moral cover for representing someone with different views/morals **[1.2(c):] Limiting the Scope** - **Rule: *A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances AND the client gives informed consent.*** - **"unbundling":** limited tasks for a limited fee - Ex: instead of representing someone in the entire purchase of company, will just negotiate the price of the purchase - **Cmt 6: can limit scope of representation thru an agreement** - Ex: if a lawyer was retained to represent someone with insurance, the representation can be limited to matters only related to insurance coverage - Appropriate when the client has limited objectives for representation - Agreements can exclude specific means that the lawyer may otherwise use; limits can be anything the client thinks are too expensive or anything the lawyer thinks is repugnant/imprudent - ***Cmt 7: any limit to the scope of representation must be reasonable under the circumstances*** - *Ex: if a client's goal is limited to securing general info about the law to handle a common and uncomplicated problem, lawyer and client can agree that the representation will be limited to a brief phone consult, but this limitation wouldn't be reasonable if the time allotted for the call wasn't enough to give the client adequate information to solve their problem* - *Regardless of any limited scope agreements, lawyer must provide competent representation **(Rule 1.1)*** - *Limitation of scope can be considered when determining what knowledge, skill, thoroughness, and preparation is necessary for competent representation* - NOT allowed in all jurisdictions - In IL YES - **Cmt 8:** [ ] Even if allowed in jurisdiction STILL MUST HAVE - Informed consent in writing Rule 1.0e - Must conform to other rules Rules 1.1, 18, 5.6 - Nearly impossible to do in the criminal context **[1.2(d):] Crime and Fraud** - **Rule:** ***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.*** - CANNOT help client to further crime/fraud, but CAN explain consequences of the actions/determine whether the conduct is a crime/fraud (cmt 9) - Lawyer can give an honest opinion about actual consequences that appear likely to result from the client's conduct; if the client uses that opinion in the course of criminal/fraudulent activity, doesn't make the lawyer party to the conduct - What to do when the client's course of action has begun and is continuing (cmt 10): - Lawyer must avoid assisting the client; cannot draft or deliver documents the lawyer knows are fraudulent or suggest how to conceal the conduct - Cannot continue assisting a client in conduct that the lawyer originally supposed was legally proper but then discovers is criminal or fraudulent - **Rule 1.16a** The lawyer must withdraw from the representation of the client in the matter. - In some cases, withdrawal alone might be insufficient and lawyer might have to give notice of the fact of withdrawal and disaffirm any opinion, document, or affirmation (**Rule 4.1** - **Cmt 13:** if lawyer knows or reasonably should know that a client expects assistance that would violate the Rules or other law OR if the lawyer intends to act contrary to the client's instruction, lawyer must consult with the client regarding the limits on the lawyer's conduct (**Rule 1.4(a)(5)**) - [**\***COMMON TO BE DISCPLINED HERE] **Rule 1.2 and Rule 3.3 charge come together** - **Cannabis conflict example: since weed is legal in some states/jurisdictions, but is still illegal at the federal level, lawyers face problems for advising clients in the marijuana industry** - **These clients need legal advice, but lawyers don't want to violate 1.2(d)** - **ABA guidance: until federal law changes, representing clients in the legal marijuana market might not be worth the risk** - **Safe harbor provision: telling client the legal risks under federal law of putting their money in a federally insured institution wouldn't be a violation because the attorney wouldn't be assisting them commit fraud, would just be discussing legal impact of a proposed course of conduct** **[Other rules implicated: ]** - Rule 1.16 If you can't come to an agreement with client then: - you MUST WITHDRAW under Rule 1.16 b4 OR - client can discharge you under Rule 1.16 b3 - Rule 1.2(d) can't help client with a crime or fraud but can explain consequences of actions and determine whether conduct is a crime/fraud - BUT if atty tempted to violate rules then Rule 1.16 terminate representation - Rule 1.4a1 communicate with client - Rule 1.14 for clients with diminished capacity - Under 18 minority, mental impairment, "some other reason" **[Rule 1.3](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_3_diligence/)   Diligence** **Rule: A lawyer shall act with reasonable diligence and promptness in representing a client.** - This rules comes into play A LOT; usually charged as neglecting client matters - NO brightline test here Two options for a solution - Get help! OR Get out! - **Reasonable Diligence (cmt 1):** A lawyer should pursue a matter on the clients behalf **despite opposition, obstacles, and personal inconvenience,** and may take whatever lawful and ethical measures required to vindicate the clients' rights - Lawyer must act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf - Lawyer is not bound to pursue every advantage that may be possible for client; has authority to exercise professional discretion in determining the means for accomplishing objectives (**Rule 1.2**) - Does not require the use of offensive tactics; lawyers should still treat everyone involved with courtesy and respect - Being diligent doesn't mean being an asshole - lawyer's workload must be controlled; don't take on more than you can handle (cmt 2) - **Reasonable Promptness (cmt 3): avoid procrastination at all costs** - **"**No professional shortcoming is more widely resented than procrastination" - Unreasonable delays can adversely affect the clients interest (ex: SOL runs out, no more case), can cause needless anxiety, and can undermine client's confidence in the lawyer's trustworthiness - Lawyer can agree to a reasonable request for postponement, as long as it doesn't prejudice the client - **[Duration (cmt 4):] lawyer must finish all matters for the client unless the relationship has been terminated by Rule 1.16 or the relationship has been specifically limited** - **If the representation was limited to a specific matter, it ends when that matter is resolved** - **Lawyer should always clarify whether an A/C relationship still exists, preferably in writing, so the client doesn't mistakenly assume the lawyer is looking out for them even if the lawyer is no longer working for them** - **If a lawyer has served the client for a long time on a variety of matters, client might assume that the lawyer will continue working for them unless the lawyer gives notice of withdrawal** - **Ex: if a case ended with a result the client didn't want, but the lawyer and client haven't agreed on whether the lawyer will handle the issue on appeal, the lawyer should consult with the client about the possibility of appeal before withdrawing from the matter (Rule 1.4(a)(2)** - **Whether the lawyer is responsible for prosecuting the appeal depends on the scope of the representation the lawyer agreed to provide (Rule 1.2)** - **Succession Plans (cmt 5)** - **For solo practitioners, diligence may require developing a succession plan to prevent the neglect of client matters if the attorney dies or becomes disabled** - **Succession plans designate another competent lawyer to review client files, notify each client of the lawyer's death or disability, and determine whether there is need for immediate protective action** - **Not mandatory in all jxs, including not in IL** **[Rule 1.4](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_4_communications/)    Communications ** ***[1.4(a)]*** - ***A lawyer shall:*** - ***(1) promptly inform the client of any decision or circumstance with respect to which the client\'s informed consent, as defined in Rule 1.0(e), is required by these Rules;*** - *if a non-delegable decision must be made by the client, the lawyer must promptly consult w/ and obtain the client's consent before taking that action* - *Exception: lawyer and client previously discussed what action the client would want the lawyer to take in the particular scenario* - *Ex: a lawyer who received a settlement offer has to promptly inform the client of its substance unless the client previously told the lawyer that the proposal would be acceptable/unacceptable or authorized the lawyer to accept/reject the offer* - *See **Rule 1.2(a)*** - ***(2) reasonably consult with the client about the means by which the client\'s objectives are to be accomplished*** - ***(3) keep the client reasonably informed about the status of the matter (cmt 3)*** - *Can require consultation prior to taking action depending on the importance of the action and feasibility of doing so* - *Lawyer can act without prior consultation in some situations requiring immediate decisions, like during a trial* - *Still must act reasonably to inform the client of what the lawyer has done on their behalf* - ***(4) promptly comply with reasonable requests for information (cmt 4); and*** - - - - - ***(5) consult with the client about any relevant limitation on the lawyer\'s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.*** ***[1.4(b):] A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.*** - Cmt 5: client needs sufficient information to participate intelligently in decisions concerning the objective of representation and the means by which they are being pursued, to the extent the client is willing and able to receive this information - [Guiding principal:] lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client's best interests and with the client's overall requirements for the character of representation; doesn't need to go into too much detail if there isn't time - Examples: - Before accepting an offer made during negotiations, lawyer should review all key provisions of the agreement - During litigation, lawyer should explain the general strategy and prospects of success and consult with the client on tactics that could be expensive or injure others - Cmt 6: provide information that is appropriate who a client who is a comprehending and responsible adult - Exceptions: - client is a child or suffers from diminished capacity (**Rule 1.14**) - client is an organization or group; it would be impossible to inform every member, so lawyer should communicate with the appropriate officials (**Rule 1.13**) **[Rule 1.5](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_5_fees/)   Fees ** **Triggers for fee issues**: client is unhappy with size or manner of fee; attorney comes before court suing client to recover fee; client sues to recover fee paid; judicial approval needed for settlement **Generally:** if a client has a free and informed choice before entering into the agreement, and the fee is within the range customarily charged by lawyers in similar representations, it is almost certainly reasonable. **[1.5(a): Reasonable Fees]** - **Rule: A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses.** - **[Factors for determining the reasonableness of the fee]: go through all, but not all will apply** - **(1) Time and labor required, the novelty and difficult of the questions involved, and the skill requisite to perform the legal service properly** - **Test: what would be reasonable for a competent practitioner in that field** - **Don't get to charge extra because something is new to you** - **Ex: high hourly rate + more time spent for a complex case could be reasonable, but the same amount would not be reasonable for the routine closing on a house** - **Would need expert testimony** - **(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer** - **Opportunity costs: will the lawyer lose future business because of their time and resources spent on the case?** - **Can charge a premium if you'll have to forgo other work** - **(3) The fee customarily charged in the locality for legal services** - **Local custom** - **Can collect affidavits from other attorneys or get expert testimony to prove** - **Ex: charging \$15k for a DUI when it's customary to charge \$3k-\$10k** - **(4) The amount involved and the results obtained** - **Stakes for the client** - **Examples: overturning a landmark decision, establishing new precedent, obtaining large settlement in class action** - **(5) The time limitations imposed by the client or the circumstances** - **Client emergencies, something needs to be filed the next day, TRO that requires all lawyers on deck -\> can charge a premium** - **(6) The nature and length of the professional relationship with the client** - **One-shot vs. repeat players: shouldn't charge as high of a few if you've handled a similar matter for the same client before, but can charge more if it's the first time** - **(7): The experience, reputation, and ability of the lawyer or lawyers performing the services** - **You get what you pay for; a new attorney coming out school handling a PI case at a small firm can't charge the amount as a partner at Kirkland and Ellis** - **(8): Whether the fee is fixed or contingent** - **If contingent, may be able to charge a risk premium** - **See 1.5(b)** - **Lawyers can seek reimbursement for in-house services (copying, phone charges), but they must be reasonable charges that the client agreed to advance or are reasonable based on the costs incurred (cmt 1)** - **[Terms of Payment (cmt 5):]** - **Advanced payments: lawyers can require advance payments of fees, but has to return any unearned portion (Rule 1.16(d))** - **Lawyer can accept property/ownership interests in a business for services, but will be subject to:** - **1.8(j): can't acquire a proprietary interest in the COA or subject matter of the litigation** - **1.8(a): can't be a business transaction** - **1.8(c): can't be a substantial gift** - **[Examples of unreasonable fees:]** - **Lawyer charges a higher than usual rate b/c of unfamiliarity with the law of the case and charges her assistant as if it were her own time** - **Lawyer requires his client to have sex with him as a portion of his fee** - **Also violations of 1.8 and 8.4** - **Creating falsified billing or expenses, billing for time not worked, billing nonlawyers at lawyer rates** - **Billing for personal expenses** - **Doing unnecessary work to bill more hours** **[1.5(b): Basis or Rate of the Fee]** - **Rule: The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing representation, EXCEPT when the lawyer will charge a regularly represented client on the same basis/rate. Any changes in the basis/rate of the fee must be communicated to the client.** - **Fees and expenses must be communicated with the client** - **ALWAYS for new clients, for existing clients if there are changes (cmt 2)** - **New clients: need to promptly establish an understanding about fees and expenses; give the client a memo of the lawyer's customary fee arrangement to reduce the possibility of misunderstanding** - **Connected to 1.4 Communication** **[1.5(c): Contingent Fees]** - **Contingent fee: a fee that is contingent on the outcome of the matter** - **Rule: Contingent fees, other than those prohibited by (d), are allowed if:** - **It is in writing, signed by the client, and states the method of calculation and the expenses to be charged** - **Method of calculation: what % of the amount collected will go to the attorney, what % will go to any expenses the attorney pays the basis for the attorney's rate, whether the % the attorney gets depends on how far the case goes** - **Failing to state expenses will get you into trouble; explain what expenses client will have to pay even if they don't win** - **It is reasonable in accordance with 1.5(a)** - **The client is provided with a written detailed statement after representation concludes regarding what fees and expenses were charged and how they were calculated** **[1.5(d): Prohibited Contingent Fees]** - **Rule: no contingent fees for domestic relations or criminal matters** - **A lawyer cannot:** - **(1) charge a fee in any domestic relations matter, the payment of which is contingent on securing a divorce on the amount of alimony or support** - **Lawyer can contract for a contingent fee for legal representation in connection w/ the recovery of post-judgment balances due under support/alimony (cmt 6)** - **(2) charge a contingent fee for representing a defendant in a criminal case** **[1.5(e): Fee Sharing]** - **Rule: a lawyer can split a fee with a lawyer in a different firm if** - **(1) the division is in proportion to the services performed by each lawyer (services) OR each lawyer assumes joint responsibility for the representation (referrals)** - **Lawyers are working together: division will be proportionate to services performed** - **Referral fee: each lawyer will have joint responsibility for the representation** - **(2) the client agrees the arrangement in writing; must know i the share each lawyer will receive** - **If it's a contingent fee, the agreement must also comply with 1.5(c)** - **(3) the total fee is reasonable under 1.5(a)** **[Rule 1.6](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_6_confidentiality_of_information/)       Confidentiality of Information (IMPORTANT)** **[\*\*]ONLY APPLIES TO THE DISCLOSURE OF INFORMATION DURING THE LAWYER'S REPRESENTATION OF THE CLIENT** - **Information from a prospective client -\> Rule 1.18** - **Duty not to reveal info relating to former client -\> Rule 1.9(c)(2)** - **Use of information to the disadvantage of clients and former clients -\> Rules 1.8(b) and 1.9(c)(1)** **[Default Rule (1.6a):] lawyer cannot reveal information relating to the representation of the client without the client's informed consent** - **Start with the presumption that everything is confidential** - **Very broad; anything related to representation is confidential** - Photos, witness stories, things generated b/c of representation, etc - [Applies to disclosures by lawyers that don't reveal protected information, but could reasonably lead to the discovery of protected info by a third party (Cmt 4)] - [Test]**:** is there a reasonable likelihood that the listener will be able to ascertain the identity of the client - The use of a hypothetical to discuss issues relating to the representation is allowed if it passes this test - *In re Kristine Ann Peshek:* while serving as a public defender, Peshek discussed clients and their cases on a public blog; didn't name the clients but enough info to figure out who they were - **Do you have informed consent?** best practice in writing - **The first way to get out of a confidentiality problem is to get informed consent** - **Do you have implied authorization?** - A lawyer is impliedly authorized to make disclosures about a client when appropriate in carrying out the representation ([cmt 5]) - Ex: a lawyer may be impliedly authorized to admit a fact that can't be properly be disputed or make a disclosure that facilitates a satisfactory conclusion to a matter; [lawyers in a firm can disclose to each other info relating to a client of the firm unless the client instructed particular info to be limited to specific lawyers ] - Normal course of business and what other similarly situated attorneys would disclose but grey areas, err on the side of caution. - Rule 1.2(a) + agency law = May have *implied authority* to act on behalf of your client - so long as you are pursuing your client's ends as they define them. - so can likely make disclosures if they are to further the client's ends. Rstmt § 61. - Rule 1.4(a)(2) PLUS, not *every* decision req explicit auth rmr only req to reasonably consult - Can speak with attys within your own firm but client can restrict - If you need advice from an atty outside of your firm to get advice on the clients case get express consent from your client OR if it is for advice re an ethical standard, see below. - **Offers of settlement** covered in Rule 1.2, you have a duty to convey to the client, may have received specific consent from the client ahead of time - **Public record** doesn't meant that you have the authorization, implied or otherwise, to reveal it - **Is there an exception that applies? Go to 1.6(b)** - **[Cmt 16:] the disclosure exceptions are only permissible to the extent the lawyer reasonably believes necessary** - **Before making a permissive disclosure, the lawyer should try to persuade the client to take actions to obviate the need for disclosure** - **When making a permissive disclosure, lawyer should only provide the minimum amount of information necessary to accomplish the purpose and should limit the amount of people/entities who have access to the information** - **1.6 obligations are important, even in whistleblower cases where disclosing information could be good for society** - ***In the Matter of Matthew M. Diaz*: head of Guantanamo Bay legal office and send an anonymous letter to an organization who was involved in a law suit to get the names of prisoners. The letter contained names of detainees. Violation of 1.6.** [**1.6(b) EXCEPTIONS TO CONFIDENTIALITY:**] a lawyer may reveal information relating to the representation of a client to the extent the lawyer believes reasonably necessary; all exceptions are limited by "reasonably necessary" requirement \*\*All exceptions are permissive disclosure, not mandatory; lawyer makes the ultimate decision ([Cmt 17)] 1. **To prevent reasonably certain death or substantial bodily harm** - Only applies to FUTURE crimes - [Reasonably certain = imminent, or if there is a present threat that a person will suffer harm in the future if the lawyer doesn't eliminate the threat (cmt 6)] - Ex: lawyer who knows that a client has accidentally discharged toxic waste into a town's water supply may reveal this info to the authorities if there is a present and substantial risk that a person who drinks the water will contract a life-threatening or debilitating disease and the lawyer's disclosure is necessary to eliminate the threat or reduce the number of victims - Value of life and physical integrity \> need to preserve confidentiality - This disclosure in mandatory in IL 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 which the client has used or is using the lawyer's services** - Permits a lawyer to reveal info to the extent necessary to enable affected persons or authorities to prevent the client from committing a crime or fraud (cmt 7) - Client can prevent disclosure from refraining from wrongful conduct (cmt 7) - Other implicated rules: - **1.d(d):** Lawyer doesn't have to reveal the client's misconduct, but can't counsel or assist the client in conduct the lawyer knows is criminal or fraudulent - **1.16:** lawyer's obligation or right to withdraw from the representation of the client - **1.13(c):** permits the lawyer, where the client is an organization, to reveal info relating to the representation under limited circumstances - If the lawyer is aware that the client's criminal or fraudulent activity will injure someone financially, they can disclose it 3. **To prevent, mitigate, or rectify substantial injury to the financial interests or property that is reasonably certain to result or has resulted from the client committing a crime or fraud using the lawyer's services** - [Only applies to PAST conduct;] when the lawyer doesn't learn about the client's crime/fraud until after it occurred and it's a situation that could have been prevented or mitigated (cmt 8) - [Doesn't apply when a person who has committed a crime or fraud and then hires a lawyer to represent them relating to that offense (cmt 8)] - Situation: - Past conduct - Client didn't use lawyer's services to do it - Client hired the lawyer relating to the past conduct - If the lawyer can't mitigate/make the situation better, doesn't apply 4. **To secure legal advice about the lawyer's compliance with the Model Rules** - Lawyer can invoke this role to consult another lawyer for advice - [Cmt 9:] disclosing info to secure this type of advice will typically be impliedly authorized for the lawyer to carry out the representation, but even without authorization these disclosures are allowed b/c of the importance of complying with the Rules - Tie in with **Rule 1.1 Competence**; always best to go to an established attorney if you're in over your head 5. **To establish a claim for legal fees, to establish a defense to a criminal charge or civil claim against the lawyer based on conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client** - [Cmt 10:] if there is a legal claim or disciplinary charge alleging that a lawyer was complicit in a client's conduct/engaged in any misconduct, lawyer can respond to the extent they believe reasonably necessary to establish a defense - [don't need to wait until a claim/complaint has been filed] - Very narrow: can only reveal info that is necessary to respond to the allegations and must first takes steps to avoid the need for revelation, limit its scope, or limit the dissemination of the information - [ABA 2021 Formal Opinion:] a negative online review alone doesn't meet permissible disclosure exception for self-defense; guidance says don't respond at all - If a client gives a lawyer a bad review and the lawyer responds that the client was at fault and reveals info in the response, that's a 1.6 violation. But if the lawyer had reported the client's review to a disciplinary agency and gave them the same info in the course of an investigation, falls under this exception - *In re Margaret Skinner:* Client posted negative reviews of Skinner online and Skinner responded and disclosed the client's name and address, name of the client's employer, and how much the client paid Skinner. Violation of 1.6. 6. **To comply with the law or a court order** - Court order = subpoena - If court orders you to testify about what your client did/said, first defense is to say that it's privileged b/c privilege crime/fraud exception would apply and overcome this. B/c exceptions are permissive, attorney can ultimately say they won't testify, but could be put in jail for contempt of court - [This is where ACP comes in and takes over;] can't claim confidentiality to avoid testifying (may be held in contempt of court), but can claim that the info is privileged (if all requirements are met) - Tension btw 1.6 and 3.3 (candor to tribunal): obligations to client vs. obligations to judge - *Decker* 7. **To detect and resolve conflicts of interest relating to the lawyer's change of employment or change in ownership of a firm, only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client** - [Cmt 13:] lawyers in diff firms may need to disclose limited info to each other to detect and resolve conflicts when a lawyer is considering working at a new firm, two firms are considering a merger, or a lawyer is considering purchasing new firm; BUT ONLY TO THE EXTENT REASONABLY NECESSARY - Only permitted to disclosed limited info after substantive discussions about the new relationship have occurred - Disclosure should only include: - Identity of the persons and entities involved in the matter - Brief summary of the general issues involved - Info about whether the matter has ended - Disclosure of *any* info is prohibited if it would compromise a/c privilege or otherwise prejudice the client - Examples of prejudice to client: corporate client is seeking advice on a takeover that hasn't been publicly announced; person is consulting lawyer about the possibility of divorce before their spouse knows; person consulted a lawyer about a criminal investigation that hasn't led to a public charge - Disclosure is only permitted here if client gives informed consent - if you are changing jobs, the new firm will do a thorough check on conflicts among your clients with theirs - This makes it so you can make disclosures of confidential information for the vetting process, but must be narrowly tailored. - The new employer will only need to know who the clients are, what kind of claims were handled, and when they were handled. - *\*Anything further likely violates atty-client privilege*. - Firm should have a system in place to check for this [**1.6(c) Prevention:**] a lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client - **Cmt 18: lawyer must act competently to protect information relating to the representation of a client against unauthorized access by third parties and against inadvertent or unauthorized disclosure by the lawyer or people subject to lawyer's supervision** - Added to protect against risks of accidental dissemination of electronically stored information - Unauthorized access to, or the inadvertent or unauthorized disclosure of, information relating to representation of a client doesn't constitute a violation of 1.6(c) if the lawyer made reasonable efforts to prevent the access or disclosure - Factors to consider when determining reasonableness of the lawyers efforts include: - Sensitivity of the information - Likelihood of disclosure if additional safeguards aren't employed - Cost of employing additional safeguards - Difficulty of implementing the safeguards - Extent to which the safeguards adversely affect the lawyer's ability to represent clients - Client can require a lawyer to provide special security measures not required by the Rules or give informed consent to forgo measures that would be required - **Cmt 19: when transmitting a communication containing confidential info, lawyer must take reasonable precautions to prevent info from getting into the wrong hands** - Ex: phone calls, emails, faxes, etc. - [Lawyer doesn't have to use special security measures if the method of communication affords a reasonable expectation of privacy] - Means that you should warn your client of the dangers of this (unsecured networks (e.g., airplane wireless, starbucks), school and work servers, if monitored by the school or workplace no longer confidential), ABA Formal Opinion 11--459 **[Attorney-Client Privilege & Confidentiality]** **Confidentiality vs. A/C Privilege:** - **Confidentiality = ethical rule; "I can't disclose this information to anyone or I will be violating the rules of professional misconduct"** - **Privilege= rule of evidence; "I can't testify about what my client told me or about something relating to my representation"** - **Confidentiality is big and broad (assume everything is confidential); what is privileged will almost always be confidential** - **Confidentiality won't be destroyed by the presence of a third party, but privilege can be** - **Privilege must be asserted by the client, confidentiality is automatic** - **Confidentiality protects [all info related to representation], but ACP only extends to [information exchanged between client and lawyer]** - **Confidentiality doesn't allow a lawyer to refuse to testify or produce evidence, but ACP can** - **Under 1.6(b)(6), a lawyer can refuse to disclose confidential information even if faced with a court order, but can be held in contempt of court. If the info is confidential and privileged, lawyer can refused to testify/produce info without repercussion** **[Attorney-Client Privilege:] a communication, made by the client in confidence to a lawyer acting in that capacity, for the purpose of obtaining legal advice, is protected from disclosure unless the disclosure is waived** - **Must be asserted by client, not lawyer** - **Can be asserted by lawyer on client's behalf (i.e. during trial)** - **Creation of common law and varies state-by-state and between state and federal courts** - **[Communication:] does not include physical evidence, the lawyer's observations, or information/facts; only covers expression of facts/information** - **Doesn't include the name of the client or the fee paid** - **This would be covered by confid