Rules
what does rules 1.1 and 1.3 concern?
1.1 = competency
1.3 = diligence
Attorney Client Privilege
1. communication made between privileged persons in confidence for the purpose of obtaining or providing legal assistance for the client
What Rules are involved with Conflicts?
Rule 1.7, Rule 1.9, Rule 1.10, Rule 1.18, Rule 1.13, Rule 1.8(f)
the firm can represent a client that had materially adverse interests to those of the client once represented by leaving lawyer and is not currently represented by the firm, UNLESS:
1. matter is same or substantially relate; and
2. any remaining information lawyer has is a material conflict with client
Under Rule 1.2, a lawyer shall limit scope of representation IF:
1. the limitation is reasonable; and
2. client gives informed consent
Lawyer shall not help client commit crim or fraud
lawyer can discuss legal consequences of any proposed course of conduct with client and may counsel or help client make good faith effort to determine law Lawyer shall:
1. abide by client's decisions concerning objectives of representation; and
2. consult with client as to means used for objectives
A lawyyer may take action on behalf of client authorization
1. legal knowledge and skill
2. thoroughness and preparation
3. maintain competence and continue legal education
after terminating a client relationship, what rule would information be handled under?
rule 1.6 (confidentiality); OR/and
attorney client privilege
Under the conflicts rules, what does each rule govern?
1.7 Current Client Conflicts
1.9 Former Client Conflicts
1.10 imputed disqualifications
1.13 organizations as clients
1.18 prospective clients
1.8(f) when a third party pays
Under Rule 1.10, if one lawyer is prohibited from representation then the entire firm is prohibited from representation unless prohibition:
1. is based on personal interest of L and does not risk materially limiting representation of client by remaining lawyers; or
2. prohibition is based on 1.9(a) or 1.9(b); AND
i. disqualified lawyer is screened and given no fee;
ii. written notice is given to former client;
iii. certification of compliance with rules and screening procedure is given to former client
Under 1.2, what does the client decide in a civil suit and a criminal suit:
Civil: whether to settle
criminal: whether and what plea to enter, whether to waive a jury trial; and whether to testify
What does competency mean?
Rule 1.1, comment 5: competent handling of a particular matter includes inquiry into an analysis of the factual and legal elements of the problem, and the use of methods and procedures meeting the standards of competent practitioners
Difference between ACP and Confidentiality
ACP: client holds power and can break, only for communications, attorney can never break, immune from judicial compulsion
Confidentiality: both client and attorney can break, attorney can break if impliedly authorized and obtain informed consent OR 1.6(b)
What factors do you need to consider to rep a client under Rule 1.7(a)?
1. if the representation of a client will be directly adverse to another client; or
2. there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibility to another client, a former client, a third person, or by a personal interest of the lawyer
Rule 1.13is representation of an organization... what does the rule subsections (a-c) entail?
(a) a lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents
(b) if the lawyer knows an officer/employee is engaged, intends to act, or refuses to act in a manner related to representation that is:
1. a violation of a legal obligation; or
2. a violation of law that might be imputed to an organization; then
an attorney shall proceed as necessary in best interest of organziation and shall refer the matter to the highest authority
(c) If despite the attorney's efforts under section b and the highest authority does not address the misconduct, and the attorney reasonably believes misconduct will result in substantial injury to org; then attorney may reveal information to representation allowed under 1.6 but only to the extent necessary to prevent substantial injury to org
shall not use or reveal informaiton learned in meeting except as allowed by 1.9
the Lawyer shall not represent client interests materially adverse to prospective client in same or similar related matter if lawyer received information from prospective client that could be harmful to him in a matter EXCEPT:
1. both affected client and prospective give consent; OR
2. lawyer took reasonable measures to avoid exposure to information that was needed to decide; AND
3. disqualified lawyer is screened and written notice to prospective client
bonus: comment 1
1. commitment and dedication
2. control your work load
3. promptness
4. see matter to the end
5. no neglect
Comment 1: a lawyer should pursue a matter on behalf of a client despite opposition, obstruction, or personal convenience to the lawyer & take whatever lawful & ethical measures that are required to vindicate a client's clause or endeavor
a lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf
1. client gives informed consent; or
2. disclosure is impliedly authorized
Under Rule 1.7(b), a lawyer may represent a client if:
2. the representation is not prohibited by law;
3. the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other profeeding before a tribunal; and
4. each affected client gives informed consent, confirmed in writing
Under 1.9(b), a lawyer shall not knowingly represent a person in the same or substantially related matter in which a firm with which the lawyer was associated had previously represented a client:
1. whose interests are materially adverse to that person; and
2. whether the lawyer had acquired information protected by rules 1.6 and 1.9(c) that is material to the matter (unless the former client gives written informed consent)
Rule 1.13(d-g) says what?
(d) attorney cannot investigate an alleged violation of law or defend org or officer against claim arising out of alleged violation of law
(e) if lawyer is discharged or withdraws from representation, then lawyer must notify the highest authority for reason's of lawyer's discharge or withdraw
(f) lawyer SHALL explain identity of client when dealing with org's directors, members, or shareholders when lawyer knows org's interests are adverse to those constituent that lawyer is dealing with
(g) lawyer may represent org's directors, officers or employees, subject to rule 1.7 (if consent is needed, need to get it from someone other than the individual to be represented)
Rule 1.16 is declining/ terminating representation.. what must you do under this rule?
Lawyer shall not represent or shall withdraw if:
1. representation will violate RPC or other law
2. lawyer's condition materially impairs L's ability to representation; or
3. lawyer is fired
A Lawyer may withdraw if:
1. it can be done without material adverse affect on client
2. client wants lawyer to commit crime or fraud
3. client used lawyer to commit crime or fraud
4. client insists on action lawyer thinks is repugnant
5. lawyer must comply with law requiring notice to or permission of tribunal when terminating representation
6. when ordered, L must continue rep
7. upon termination, L must take steps to protect client interests
Rule 1.6 exceptions
disclosure is reasonably necessary to:
1. prevent death or substantial harm
2. prevent crime or fraud that will result in substantial financial or property injury and client is using a lawyer to commit crime/ fraud
3. prevent, mitigate, rectify substantial financial or property injury as result of client and client used lawyer
4. get legal advice about compliance with ethic rules
5. establish claim or defense of lawyer in controversy with client
6. comply with other law or court order
7. check and resolve conflicts
8. detect and resolve conflicts
lawyer shall make reasonable efforts to prevent inadvertent or unauthorized disclosure or access to information related to representation
Under Rule 1.9(a), a lawyer who has formerly represented a client...
1. shall not represent another person in the same or a substantially relatedx matter
2. the person's interests are materially adverse to the interests of the former client
3. unelss, the former client gives written informed consent
Under rule 1.9(c), a lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
1. use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally know; or
2. reveal information relating to the representation except as these Rules would permit or required with respect to a client (rule 1.6)
Under 1.4, a Lawyer shall:
1. promptly tell client of any decision/circumstance where client's informed consent is required
2. consult with client about means to achieve objectives
3. keep client reasonably informed
4. promptly comply with reasonable requests for information
5. consult with client about relevant limitation on lawyer's conduct
6. explain matter to client so client can make informed decision regarding representation