Ethics Chart v1

ABA MODEL RULES OF PROFESSIONAL CONDUCT

RULE DESCRIPTION COMMENTS CALBAR Rules CA B&P Code

1CLIENT LAWYER RELATIONSHIP

1.0 Terminology

1.1 Competence

Skill; Knowledge; Thoroughness; Preparation. Must consult with an expert or refuse

engagement if not possessive of requisite knowledge.

3-110

1.2Scope of Representation and Allocation of Authority Between Client and Lawyer

Client sets objectives; Lawyer can limit scope. Cannot assist in illegal activities. Views of client are not views of

lawyer.

1.3 Diligence Reasonable diligence and

promptness.

1.4 Communication

Promptly inform client of any issue requiring informed consent;

reasonably consult with client regarding means to achieve client’s objectives;

Must inform client of all settlement offers

keep client reasonable informed about the status of the matter;

promptly comply with reasonable requests for information;

Rule 3-500

Rule 3-510 = Comment 2 to MR 1.4

§ 6103.5 requires disclosure of all settlement offers.

More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net 1

http://finamore.net/

http://c.finamore.home.comcast.net/


1.5 Fees

No unreasonable fees or expenses.

Reasonableness is based on time & labor; skill required; need to turn away other business; local rates;

Communicate to client preferably in writing

Rule 4-200

Basically same except says “unconscionable” instead of unreasonable.

§ 6146

Limits fees on medical malpractice claims

§ 6148

Communicate to client must be in writing if >$1,000.

1.6Confidentiality of Information

No disclosure w/o informed consent or implied consent;

Secure advice about lawyer’s compliance with rules;

To defend lawyer in malpractice or against civil or criminal charges;

To comply with law or court order;

Reasonably certain death or bodily harm;

§ 6068e

Never disclose anything regardless of impact.

1.7 Conflict of Interest: Current Clients

Cannot represent client if it will adversely impact another client;

Or will limit representation of another client;

UNLESS:

the lawyer believes he can handle both (all) cases competently and diligently;

Not prohibited by law;

The case does not involve the claims of one client against another represented by the same lawyer in the same litigation;

Rule 3-310





Each affected client gives informed consent confirmed in writing.

1.8 Conflict of Interest: Current Clients: Specific Rules

a) Cannot Enter Into Business Arrangement With Client Or Acquire Any Ownership Interest Adverse To The Client Unless: Deal is fair and reasonable; Deal is disclosed in plain language

in writing to the client; Client is advised in writing to seek

advice of an independent attorney and is given adequate time to do so;

Client gives informed consent signed in writing agreeing to the terms of the deal, the lawyers role, and indicating whether or not the lawyer is representing the client in that particular deal.

b) Cannot use information to the disadvantage of the client unless the client gives informed consent or required by the rules.

c) No gifts unless related to the client.d) No media or book rights based on

representation in the casee) No financial assistance to client

except court costs and expenses in contingency cases; or if the client is indigent.

f) No third party fees accepted unless: Client gives informed consent; No interference with professional

judgment for with client-lawyer relationship;

Information relating to representation of client is protected

Rule 3-300

No security interest adverse to client.

Rule 4-400 is same as MR 1.8c gifts.

Rule 4-210

OK to pay third parties on behalf of client with client consent; can loan money after





as required by Rule 1.6.g) When representing multiple clients,

no blanket settlement or plea unless each involved client gives signed informed consent in writing and lawyer discloses existence and nature of all deals or pleas.

h) No agreement limiting lawyer’s malpractice liability unless client has independent counsel AND malpractice settlement with unrepresented clients unless client is advised in writing to seek independent legal counsel.

i) Lawyer cannot acquire proprietary interest in a case unless acquiring a lien against fees or it is a contingency fee deal.

j) No sex with client unless it pre-dated the client-lawyer relationship.

k) Any prohibition in this rule except for sex applies to all members of a firm if it applies to one member.

Rule 3-120 (sex w/ client).

Lists myriad exceptions.

§ 6106.8

§ 6106.9

1.9 Duties to Former Clients a) Cannot represent a client if the persons interests are materially adverse to a former client in the same or substantially related matter

b) Lawyer cannot represent a client if your old firm represented an adversarial party or if you at the old firm you gained privileged (Rules 1.6 and 1.9(c)) information about the adversarial party.

c) If you or your firm or your former

3-310e





form ever represented a client you can never use any information you gained during that representation against the client nor can you even disclose the existence of the representation unless it is permitted in the rules or has become generally known.

1.10Imputation of Conflicts of Interest

a) If any lawyer in a firm is barred by the rules from representing a client; then the entire firm is barred unless the barred lawyer’s interest in the case is purely personal and will not affect any of the firm’s other lawyers.

b) If a lawyer with specific knowledge of a case and a client leaves the firm; and if the firm no longer represents that client; then the firm is free to represent someone with interests materially adverse to that client UNLESS it is the same case and someone remaining at the firm has privileged information about the former client.

c) Disqualifications under this rule may be waived by the client under the conditions of MR 1.7.

d) Disqualification of lawyers in a firm with former or current government lawyers is governed by MR 1.11.

1.11 Special Conflicts of Interest for Former and Current Government Officers and Employees

a) Current or former government lawyers are subject to MR 1.9(c) and also cannot represent a client in a matter over which the lawyer had substantial involvement while

§ 8920§ 8921





working for the government unless the government gives its informed consent confirmed in writing.

b) If one lawyer in a firm is barred from a matter under this rule then so are all lawyers in the firm unless the lawyer is appropriately screened from participation in the matter AND written notice is provided to the government so that they can ascertain compliance with the rules.

c) If a lawyer obtained confidential information about a person while working for the government he cannot represent someone with materially adverse interests. However, the firm can as long as the lawyer is timely screened from participation and receives no share of the fee on that engagement.

d) Current government employees are subject to MR 1.7 and MR 1.9(c) AND may not participate in matters he was involved with while not a government employee unless the government gives its informed consent confirmed in writing.

1.12 Former Judge, Arbitrator, Mediator or Other Third Party Neutral

a) No representation unless informed consent confirmed in writing.

b) Judge cannot negotiate for employment; law clerk can after notifying judge.

c) If one lawyer is disqualified all are disqualified unless timely screened AND written notice sent to all parties and the court.

§ 6131





d) Arbitrators can represent clients who they formerly served as partisans on an arbitration panel.

1.13 Organization as Client

a) Lawyer works for the company.b) If lawyer knows that an officer,

employee, or other person associated with the company is about to act illegally or against the best interest of the company, the lawyer must protect the organization. Try to minimize disruption to the

company. Ask for reconsideration of the

matter. Advise the person that a second

legal opinion should be sought in order to present company management with two opinions.

Go higher up or to the top of the company.

c) If lawyer goes to the top and no change, lawyer may resign per MR 1.16.

d) Lawyer should always point out that his client is the company, especially when meeting with officers or employees whose interests may differ from the company’s.

e) Lawyer can represent the company and its officers or employees as long as an officer of the company (not the one being represented) approves the dual representation per MR 1.7.

1.14 Client With Diminished a) Try to retain normal relationship. Chapter 3 generally states that





Capacity

b) If lawyer believes that client cannot act in own best interests and is at risk, lawyer may talk to others able to take action to protect client or to seek appointment of a guardian ad litem, conservator, or guardian.

c) Lawyer may release information under MR 1.6(a) but only to the extent necessary to protect the client’s interests.

you should always represent your client competently.

1.15 Safekeeping Property

a) Keep complete records; segregate funds.

b) Lawyer may deposit his own funds into client trust account only to the extent necessary to pay bank fees.

c) Fees paid in advance go into trust account and are removed as earned.

d) Notify client upon receipt of funds belonging to client.

e) Disputed funds remain in trust; other amounts distributed promptly.

Rule 4-100

5 year retention requirement.

§ 6128Article 14 deals with funds for indigent defense. See § 6210 - § 6228

1.16 Declining or Terminating Representation

a) Must withdraw and cannot begin representation if: Representation will violate rules. Lawyer physically or mentally

unfit. Lawyer is discharged.

b) May withdraw if: No material adverse impact on

client. Client persists in illegal or

fraudulent activity.

Rule 3-700Must if malicious or baseless legal action

Adds-can’t get along w/ co-counsel.DOES NOT say b1 – OK if no adverse impactDOES NOT say if financial burden.

§ 6068h Says you can’t reject the cause of the defenseless or the oppressed out of consideration of yourself.





Client has used lawyer’s services to perpetuate a fraud or crime.

Client insists on action that lawyer disagrees with.

Client does not meet obligation to lawyer and has been reasonably warned.

Engagement has become an unreasonable financial burden on the lawyer or the client has made the engagement unreasonably difficult.

Other good cause for withdrawal.c) Lawyer must notify the court of

planned withdrawal per court rules.d) Lawyer should make termination as

easy on client as possible; give time to find another lawyer; return unused retainer, papers, etc.

1.17 Sale of Law Practice A lawyer may sell a law practice or an area of law practice including goodwill if:a) Lawyer retires, moves, stops an area

of practice.b) Entire practice or area of practice is

sold to another lawyer or group of lawyers.

c) Seller gives notice to each client regarding: Proposed sale Client’s right to retain other counsel

or take possession of the file. If no reply from client in 90 days,

OK to transfer file. If notice cannot be given, files

cannot be transferred without court order.

d) No fee increases due to sale.

Rule 2-300





1.18 Duties to Prospective Client

a) A person who discusses with a lawyer the possibility of forming a client-lawyer relationship is a prospective client.

b) Even if lawyer is not hired, no information may be disclosed except former client info per MR 1.9.

c) Lawyer cannot represent a client with interests adverse to the prospective client if the prospective client provides the lawyer with information potentially harmful to the potential client. If one lawyer in a firm is disqualified under this rule, then the whole firm is disqualified except as in (d).

d) Exceptions to c: Both prospective and current clients

provide informed consent confirmed in writing.

Lawyer who received the information tried to stop the client from telling him more and

i) The disqualified lawyer is timely screened

ii) Prompt written notice to the prospective client.

2 COUNSELOR

2.1 Advisor

Independent professional judgment Candid Advice Can consider moral & other factors

with the law2.3 Evaluation for Use by Third a) May provide data to third parties if





Persons

compatible with client relationshipb) Informed Consent if material issue

or impactc) Unless authorized, all protected by

MR 1.6

2.4Lawyer Serving as Third Party Neutral

a) Arbitrator or mediator or similarb) Make sure unrepresented parties

know you are not representing them.

Rule 1-710You are subject to the Code of Judicial Ethics

3 ADVOCATE

3.1Meritorious Claims and Contentions

Must have basis in law and fact; not frivolous

Rule 3-200 § 6068c

3.2 Expediting LitigationAttempt to expedite the litigation consistent w/ client int.

3.3 Candor Toward the Tribunal

a) A lawyer shall not knowingly: False statement of material fact Fail to disclose adverse info to

judge Offer or allow false testimony

b) Cannot allow client to fix the jury or other

c) Disclose all known facts in ex parte proceedings

d) Must take reasonable remedial measures

Rule 5-200Rule 5-220

§ 6068d

3.4 Fairness to Opposing Party and Counsel

A lawyer shall not:a) Hide or destroy documents or

obstructb) Falsify evidencec) Knowingly disobey an obligationd) Be a jerk about discoverye) Introduce opinion or irrelevant issuesf) Advise third parties not to give info

unless: Person is relative or agent of client And that person’s interests won’t be

harmed


§ 6068f





3.5Impartiality and Decorum of the Tribunal

A lawyer shall not:a) Try to bribe the judge or fix the juryb) Communicate ex parte w/ judge or

jury unless OKc) Talk to jurors after case if

Court prohibits it Juror doesn’t want to talk to him Misrepresentation, coercion or

harassment


§ 6068b

3.6 Trial Publicity

a) No prejudicial statements to the media

b) Notwithstanding a), lawyer may state: Claim, offense, or defense, names if

allowed Information that is public record Scheduling or result of litigation] Request for assistance in gathering

info Public good danger warning Name and address of criminally

accused Info necessary to catch if not caught Arrest place and time Names of arresting and

investigating agencies and officersc) Notwithstanding a) lawyer can make

any statement to counteract negative publicity

d) No lawyer shall violate a)

Rule 5-120Substantially same.

Rule 1-320b Says no gifts to the media. No equivalent in MR?

§ 6068f

3.7 Lawyer as Witness a) Lawyer can’t advocate if he will be witness unless: Testimony relates to uncontested

issue Testimony relates to legal services

Rule 5-210





rendered Disqualification of lawyer would be

hardship on clientb) A lawyer may advocate in a trial in

which another lawyer in the firm is likely to be called as a witness unless precluded from doing so by 1.7 or 1.9.

3.8Special Responsibilities of a Prosecutor

a) Don’t charge if no probable causeb) Make sure defendant knows he can

have a lawyerc) Don’t seek waivers from

unrepresented defendantsd) Timely discovery to defensee) Don’t subpoena a lawyer about a

client unless: No privilege Evidence is essential No other alternative

f) Don’t shoot mouth off to media

3.9Advocate in Nonadjudicative Proceedings

Make sure everyone knows you’re a lawyer and conform to 3.3a– 3.4a-c 3.5

4

TRANSACTIONS WITH PERSONS OTHER THAN CLIENTS

4.1Truthfulness in Statements to Others

a) No false statements of material factsb) No failure to disclose

4.2Communication With Person Represented by Counsel

Don’t talk to someone who has their own lawyer unless court order or OK by other lawyer.

Rule 2-100Says nothing about court order.

4.3Dealing With Unrepresented Person

Don’t fake that you are nonpartisan; no legal advice other than to get a lawyer.

4.4Respect for Rights of Third Persons

a) No ripping just to ripb) Must notify sender of items sent in

error

§ 6068f





5LAW FIRMS AND ASSOCIATIONS

5.1Responsibilities of Partners, Managers, and Supervisory Lawyers

a) Partners take reasonable efforts that all lawyers in firm comply with MR

b) Supervisors make reasonable assurance that subordinates comply.

c) Lawyer responsible for another’s violation if: Lawyer orders or ratifies Knows but does not mitigate

5.2Responsibilities of a Subordinate Lawyer

a) Lawyer bound by MR regardless of instructions

b) Not in violation if following orders on a reasonable judgment call.

5.3Responsibilities Regarding Nonlawyer Assistants

a) Supervisors to ensure reasonable compliance with MR.

b) Ensure subordinate conduct is compatible with yours if working together on a case.

c) Responsible for subordinate errors if: Lawyer orders or ratifies Knows but does not mitigate

5.4 Professional Independence of a Lawyer

a) No fee-sharing w/ non-lawyer except: Time payments after death of a

lawyer Payment to estate of lawyer for

amounts due Firm employees in retirement plan May share court awarded legal fees

w/ non-profit clientb) Cannot partner w/ non-lawyer if firm

will practice lawc) Cannot allow client to direct your

Rule 1-310Cannot partner w/ non-lawyer if firm will practice law

Rule 1-311Cannot hire disbarred or suspended members to help render services to client in any way unless you notify everybody and their brother.

Rule 1-310aFinancial arrangements with non-lawyers; same as MR 5.4a





prof judgmentd) Cannot practice as a PC or LLC if:

A non-lawyer owns a piece of the business

A non-lawyer is a director or officer A non-lawyer has right to direct or

control lawyer’s judgment

Rule 1-600a No fee sharing at all

5.5Unauthorized Practice of Law; Multijurisdictional Practice of Law

a) Cannot violate or assist in violation of local rules

b) If not admitted to practice in the jurisdiction cannot: Open an office or practice

continually Hold out as licensed to practice

therec) Can work temporarily out of

jurisdiction if: Local counsel Connected to the case ADR related to a case in your

jurisdiction Other business in that jurisdiction

d) May provide legal services out of area if: Your client has a presence there and

it is for your client and no pro hac vice application required.

In compliance with Federal Law.

Rule 1-300a) Cannot aid anyone in

unauthorized practice of lawb) Cannot practice in a jurisdiction

where doing so would be a violation of local rules.

§ 6104§ 6105

5.6Restrictions on Right to Practice

a) Cannot participate in offering or making: Employment arrangement that

restricts to practice law upon termination

Termination of right to practice is element of settlement in a client controversy.

5.7 Responsibilities Regarding Law-Related Services

a) Lawyer is subject to MR if services provided are done outside a normal





client-lawyer relationship and they are services that: By the lawyer normally or Performed by any entity the lawyer

controls.b) Services could legally be performed

by a non lawyer.6 PUBLIC SERVICE

6.1Voluntary Pro Bono Publico Service

Should try to do 50 hours per year.a) 50 hours to:

poor people charitable organizations

b) provide additional services through: no-fee service to rights

organizations reduced fees to poor people activity to improve the profession

Should also give money

6.2 Accepting Appointments

Don’t seek court appointment to represent someone if doing so would lead to:a) Violate MRb) Unreasonable financial burden on

lawyerc) Case is repugnant and would affect

judgment

6.3Membership in Legal Services Organizations

OK to serve as officer or member of a legal services organization, even if it has interests adverse to a client as long as:a) You don’t make decisions on matters

that would be incompatible with your client obligations.

b) Would hose a client of the organization who is adverse to your regular client.

6.4 Law Reform Activities Affecting Client Interests

OK to try and change the law if it will help your client. But you must disclose that if approved, the action will help one





of your clients.

6.5Nonprofit and Court-Annexed Limited Legal Services Programs

a) If you provide short-term non-continuing legal service (post earthquake advice, etc.) then you are: Subject to 1.7 & 1.9a only if you

are aware of conflict-of-interest Subject to 1.10 only if you know

that another firm lawyer is subject to 1.7 or 1.9a.

7INFORMATION ABOUT LEGAL SERVICES

7.1Communications Concerning a Lawyer’s Services

No false or misleading statements and no leaving out a fact so it won’t be materially misleading.

Rule 1-400dAlso, 1-400f says you keep everything 2 years

7.2 Advertising

a) Subject to 7.1 & 7.3, may advertiseb) No gifts or payments for referrals

except: May pay reasonable cost of ads Pay normal referral fees Pay for a law practice per 1.17 Refer clients to a firm with a

reciprocal referral arrangement if:i) The reciprocal agreement is

not exclusive andii) The client is informed of the

existence and nature of the agreement

c) Any communication in connection with this rule must have name and office address of at least one lawyer who wrote it.

Rule 1-320b Deals with referrals. Allows gifts if they did not lead to and were not offered in order to get the engagement.

Rule 2-200bSame as MR 7.2b

Article 9§ 6152

No trolling for work around the local jail.

§ 6154No runners or cappers.





7.3Direct Contact With Prospective Clients

a) Cannot directly contact a prospective client unless: Target is a lawyer Target is a family member or close

friendb) No calls, emails, etc. to prospective

client if: Target told you to leave him alone Coercion or harassment

c) All envelopes, emails, etc. must begin and end with “advertising material.”

d) OK to work for prepaid legal plans that use boiler room tactics.

Rule 1-400c

7.4Communication of Fields of Practice and Specialization

a) OK to communicate areas of specialization or areas not handled

b) “Patent Attorney”c) “Proctor in Admiralty”d) Cannot claim specialist unless:

Certified by State or ABA AND Name of certifying authority noted

on ad.

7.5 Firm Names and Letterheads

a) No use of firm name that violates 7.1 or implies public, gov’t., charitable affiliation.

b) OK to list all locations but must say who practices where

c) No mention of a firm member who holds public office

d) No implied affiliation unless such exists.

See standards of rule 1-400

7.6

Political Contributions to Obtain Government Legal Engagements or Appointments by Judges

Cannot accept court appointed or government jobs if you make contributions designed to solicit same.

8MAINTAINING THE INTEGRITY OF THE PROFESSION





8.1Bar Admission and Disciplinary Matters

a) No false statementsb) Must disclose facts and reply to

requests for info unless conflict with MR 1.6

Rule 1-200 basically same.a) No false statementsb) Cannot further an application for

a person you know to be unqualified

c) OK to serve as counsel for applicant.

§ 6068i

8.2 Judicial and Legal Officials

a) No starting rumors or making deliberate lies

b) If candidate for the bench, must comply with Code of Judicial Conduct

Rule 1-700§ 8920§ 8921

8.3Reporting Professional Misconduct

a) Must report lawyers who you know violated MR

b) Crooked judgesc) Not required that you violate MR1.6

8.4 Misconduct

It is misconduct to:a) Violate MR or help others do sob) Engage in a criminal act that reflects

adversely on your honesty or trustworthiness

c) Dishonesty, fraud, deceit or misrepresentation

d) Engage in conduct prejudicial to the admn. of justice; Discrimination based upon race, sex, national origin, religion, etc. is a violation of this provision.

e) Imply or state you can influence the gov’t.

f) Help a judge break the MR

Rule 1-120

Rule 2-400 (discrimination)

§ 6068o§ 6100§ 6101§ 6102

8.5 Disciplinary Authority: Choice of Law

a) You are subject to the rules of your home jurisdiction regardless of where the services were rendered. You are also subject to the rules of the





jurisdiction where you rendered services regardless of whether or not you are admitted to practice there.

b) Choice of Law: Local rules apply first Rules of jurisdiction where issue

occurred next




Topic Sections HintsSex w/ Clients CR 3-120c

CR 3-110bMR 1.1

OK if sex predates C-L relationship.Sex must not impair judgment.

Multiple Representations MR 1.7CR 3-310c

See list; many requirementsMust be in writing.

Competence MR 1.1 Could be malpractice.Business Relations w/ Clients MR 1.8a

CR 3-300MR 1.5MR 1.15

Look for unauthorized officer designation; s/b consented to in writing.

Look for value of stock – is fee reasonable?Safekeeping of client property and funds.

Fees MR 1.5§ 6148MR 4-200

Must be reasonable and preferably negotiated in writing.Must be in writing if >$1,000.Cannot be “unconscionable”

Side Deals – Steering Business to Associates

MR 1.8

Ordinary Rules of Agency

MR 8.4

Must disclose all side deals and receive consent and give opportunity to consult independent counsel.

Must disgorge profit; cannot make undisclosed profit at client’s expense.

Look for misconduct.Side Deals – Purchasing Adjacent Property

MR 1.8Fiduciary Duty

Must at least disclose and seek approval.

Responsibilities MR 8.3MR 8.4

Must report known violations unless protected by MR 1.6.

Suborning PerjuryAnd Providing Documents

MR 3.3aMR 3.4aMR 4.3Attorney Work Product and Attorney Client Privilege

See notes; if discovered, must take reasonable remedial measures.Must discuss downside to testimony w/ client.Cannot directly seek to hide evidence or advise others to do so.Don’t pretend that you are nonpartisan.Third party communications not privileged.




Topic Sections Hints

Disqualifying Lawyers MR 1.7MR 1.8MR 1.9MR 1.10MR 1.1118 USCA § 207 Cannot use contacts to influence gov’t. decisions.




Ethics Chart v1

Documents

Transcript of Ethics Chart v1