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MPRE - Coggle Diagram

- - - - Attys can be disciplined for both:
        
        personally committing the violation; or
        
        Aiding and abetting another Attys ethical violation
  - - - Usually responsible for regulating attorney's conduct and disciplining that attorney's licensed in that state
        
        Exc: Each Federal Dist. Court has its own ethical standards. Most are the same as the state's bar
  - - - law license in that state, or
        
        Failure to meet these requirements is a UPL violation
        
        Lawyers unauthorized in the state
        
        Unlicensed persons who engage in UPL
        
        Lawyers who knowingly assist nonlawyers in UPL
      - permission to practice pro hac vice from a court in that state
    - - Generally atty can only practice in a state they are licensed
        
        Two categories of Exc:
        
        Temp practice EXCs
        
        Pro hac vice to apper as co-counsel in a single case
        
        limited out-of-court legal work reasonably related to potential pending litigation in home jurisdiction
        
        engaging in alternative dispute resolution proceedings reasonably relating to litigation at home
        
        Drafting legal documents disposing of property both in home jurisdiction and other jurisdiction
        
        Non-temp practice EXCs
        
        working as in house council for an entity in another state IF no pro hac vice work is required
        
        Serving as fed atty so long as litigation limited to fed agencies or federal courts
  - - - Atty cannot enter into a Partnership with a nonlawyer IF the Partnership includes the practice of law
        
        No practice of law, then the atty is okay to partner w/ whomever
    - - Lawyers shouldn't share their legal fees with nonlawyers
        
        4 Narrow EXC:
        
        A firm may pay legal fees to the estate or survivors of a deceased Atty in the firm for a reasonable period of time before death
        
        A lawyer may pay money to the estate or survivors when deceased lawyer purchased the decedent's law practice
        
        A firm may pay for it's fees earned to nonlawyer employees compensation or retirement plan, even if it's part of a profit-sharing arrangement
        
        Atty who receives court-appointed fees may share them with a nonprofit organization they work for
  - - - acting at the direction of a supervisor is not a defense
    - - has duty to taek reasonable efforts to assure the subordinate follows ethical rules
      - if subordinate atty committed ethical violation and consequences can be avoided or lessened, supervisor must take reasonable steps to mitigate or remedy
  - - - EXC:
        
        When selling your firm, you can restrict your practice from scope or geographical influence of practice being sold
        
        How to sell a firm
        
        Send a letter to current clients stating the following:
        
        (i) there would be no change by the law firm in the fees charged to continue the client's representation,
        
        (ii) the client had the right to retain other counsel instead of the law firm or to take possession of his or her file, and
        
        (iii) the client receiving the notice would be presumed to have consented to the sale if the client did not take any action or did not otherwise object within 90 days after receiving the notice.
        
        atty who retires from a firm can be restricted from practicing law incident to provisions about retirement benefits related to prior service with the firm
- - - - Objectively good-faith arguments for extension, modification, or reversal of existing law is not frivolous
      - common factual violations include
        
        Civil cases prior to discovery
        
        Criminal cases where defense states a clearly guilty defendant is not guilty
  - - - Civil
        
        atty who reasonably believes a witness will commit perjury has discretion to call that witness
      - Criminal
        
        if atty doesn't know the witness is committing perjury no violation
        
        If atty knows any witness committed perjury in the PRESENT case, they have duty to take remedial measures
      - by defendant
        
        atty must advise client of duty of candor to court and seek clients cooperation in correcting the perjury
        
        if client refuses, lawyer MUST seek to withdraw from representation
        
        Only applies to current case.
        
        and if necessary to correct perjury, disclose clients false testimony to court
  - - - ethical duty not to obstruct the opposing party's reasonable access to relevant unprivileged evidence
      - A lawyer may lawfully ask someone other than their client not to voluntarily reveal relevant info when (1) the person is a relative or agent of the client, AND (2) the lawyer reasonably believes the person's interests will not be adversely affected by not giving the information
  - - - However: a lawyer may make such an extrajudicial statement if a reasonable lawyer would believe it necessary to protect the client from substantial undue prejudicial effect of recent publicity not initiated by the lawyer or their client
      - Statements relating to info in the public records are also permissible if not materially prejudicial
  - - - Exc: if testimony relates to an uncontested issue or the nature and value of legal represenation
- - - - providing legal advice about the consequences of engaging in proposed conduct
    - - Scope
        
        Objective
        
        Means
        
        Atty must reasonably consult w/ client about the means of representation. May then carry out representation authorized expressly or impliedly by client
        
        Discretion in Representation: Atty v. Client
        
        Atty:
        
        Client:
        
        1 more item...
        
        most decisions can be made by Atty after meaningful consultation w/ cleint
        
        Atty must work toward objective of agreed legal representation
        
        client choses
        
        Atty may limit scope of representation so long as limitations are reasonable under the circumstances AND client gives informed consent
        
        Scope and Atty fees must be communicated to client, preferably in writing, before or within a reasonable time after representation commences.
    - - No need for written K - unless representation is based on a contingent fee arrangemnt
      - Don't even need an oral K
      - Implied oral agreement
        
        if atty provides legal services for client under circumstances that indicate bilateral agreement
        
        Express OR
        
        Lawyer must clearly decline request for legal services, otherwise the lawyer must represent the client if they knew or should have known the person reasonably relied on lawyer for services
        
        Obj not Sbj standard
        
        Implied
      - SUPER EASY TO FORM
  - - - keep client reasonably informed about status of the matter
      - promptly comply w/ reasonable requests for information
      - promptly notify client of matters requiring clients informed consent
        
        unless client previously authorized atty to act on the particular matter
      - provide explanation and info sufficient for client to make informed consent
  - - - can termination relationship freely at anypoint
    - - with informed consent
        
        at agreed time
        
        this includes completion of AC scope agreement
      - without informed consent
        
        if doing so will not harm clients interests; OR
        
        is based on good cause
        
        GC includes: conflicts of interest, decline in atty's health to the point of significant impairing representation
        
        when atty is listed counsel - generally a court must approve withdrawal
    - - An atty cannot withdraw from representation when a court orders them to represent a client
  - - - before representation begins or within a reasonable time afterword an atty must communicate in writing the basis or rate of atty fees
        
        EXC: for regularly represented clients when current fee is same as fee charged in the past
        
        atty and client can come to a fee agreement orally if prior to atty's written communication, BUT NOT IF it is a contingent fee
      - If change in basis or rate, Atty must communicate that to client
    - - reasonable criteria
        
        time
        
        labor
      - based on services actually provided
        
        meaning termination of agreement does not give Atty a windfall
    - - always unethical in criminal
      - unethical in divorce when obtaining particular amount of alimony, support, or property settlement
      - permissible in civil
      - Must be in writing, and signed by the client
        
        atty can split a fee with atty in a different firm when client consents in writing, and split is proportional to services rendered, or attys assume joint representation of client
  - - - No. The client is still entitled to legal representation. So long as the atty does not counsel or assist in the illegal conduct, they may represent them
- - - - Current Clients
      - Current client and former client
      - Current client an Atty's personal interest
  - - - An atty can't represent a client when representation will be, or presents a significant risk that it will be directly adverse to another CURRENT OR FORMER client
        
        UNLESS:
        
        the lawyer reasonably believes they can provide competent and diligent representation to each client despite the conflict; AND
        
        the affected clients give written informed consent to the concurrent representation
        
        For a client to adequately consent the must understand the type of future representation that might arise, and the actual and foreseeable adverse consequences of those potential representations
        
        Clients may also later waive consent, which results in either their termination, or the a mandatory withdrawal from the attorney
        
        Former clients
        
        However, Model Rule 1.9 does not prohibit a lawyer from representing a current client in a matter adverse to a former client as long as the matter is not the same or substantially related to a matter in which the lawyer represented the former client.
        
        The lawyer may represent an adverse party to a former client in a substantially related mater with the former clients written informed consent
        
        Substantially related means:
        
        there is a "substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the [current] client's position in the subsequent matter."
    - - sexual relationships with clients that don't predate AC relationship are prohibited. the inverse is strongly discouraged
      - Apposing counsel related by blood or marriage
      - Literary rights in lieu of fees
        
        Can accept literary rights agreement AFTER representation has concluded
      - When an Atty makes a personal loan or gift to a client for other than case-related expenses
      - A lawyer cannot leave themselves substantial gifts from a clients will, unless they are related to the client
  - - - Two Exceptions
        
        If one layer in firm has a personal conflict, AND there is no significant risk of material limits to representation than another atty can represent
        
        if one atty has a conflict with with a current client based on their representation of a former client BEFORE THEY JOINED the firm
        
        Conflicted lawyer is disqualified
        
        Firm must screen conflicted atty, and he receives no portion of the fee
        
        Former client must give written consent
      - Personal Conflicts Imputed
        
        An atty's personal conflict of interest is not imputed to other firm members unless it presents a significant risk of materially limiting the other lawyers' representation
  - - - if they do the lawyer should ignore, and if they cant, they must withdraw
- - - - I.e. no duty of loyalty to either, and no AC privilege
  - - - Note: if an org hires an atty to investigate alleged violations of law the lawyer cannot reveal info relating to that representation EVEN IF atty reasonably believes the conduct is reasonably certain to cause substantial harm to the organization.
- - - - Can't commingle clients unearned funds with lawyer's personal funds
        
        Must establish a trust account with a bank to store unearned funds
        
        Atty fees must be earned hourly. BUT a classic retainer - a fee paid by client to secure the lawyer's availability for a specified time - is earned immediately and can be placed in firms business account
  - - - agreement is fair, reasonable, and disclosed in clear writing;
      - the lawyer advises client in writing of desirability to seek advice from independent counsel, and give them them the opportunity to actually seek it; and
      - Client must give informed consent in writing to important transaction terms, including their relationship with atty in the business
  - - - notice of funds and property includes a description of the boon, and when a group is involved, their take and total pool must be disclosed
- - - - i.e. atty cannot state or imply they are disinterested, and they can't give legal advice, but they may suggest the person seeks counsel
- - - - false or misleading = a material misrepresentation of fact or law or omits necessary fact to make statement whole
  - - - Emails
      - Texts
    - - except for other attys
      - Close fiends and family
      - or pro bono representation
  - - - Unless: the atty died and there is a continuing succession in the firms identity EVEN IF he deceased family disagrees
- - - - DOES NOT COVER
        
        Underlying facts
        
        Existing evidence
        
        Communications in furtherance of the commission of a crime
      - communication must be confidential. Atty and Client reasonable belief standard
  - - - Must take reasonable efforts to keep others from accessing confidential info
        
        Reasonableness factors =
        
        Steps taken to protect
        
        Likelihood of disclosure without more safeguards
        
        Cost + difficulty involved in using additional safeguards
    - - Client Authorization
        
        The client may expressly or impliedly authorized disclosure of confidential or privileged info
        
        Implied - disclosures reasonably necessary to carry represent client
        
        Atty in their own firm
        
        Atty can reveal info to attys in their own firm, but need consent from client to speak to outside attys
        
        But, an atty can speak to attys outside their firm for the purpose of seeking legal advice about ethical complaince
        
        Crime-Fraud Exception
        
        atty can disclose info w/o consent to the extent they believe necessary to prevent client from committing a crime or fraud reasonably certain to result in substantia injury to another person's property of financial interest
        
        Atty should first make an effort to pursued client to stop
        
        OR, to prevent, mitigate, or rectify such an injury already incurred
        
        Atty should first make an effort to pursued client to rectify
        
        Death or Injury
        
        Atty may reveal confidential info to prevent death or substantial bodily harm
        
        Disputes W/ Client
        
        if client files civil claim or incites disciplinary proceedings, atty may reveal as much as they believe reasonably necessary to establish a defense
        
        Work Product Doctrine
        
        1 more item...
- - - - Atty becomes competent by study, AND
        
        Works under an experienced Atty with an expertise in that area
        
        EXC
        
        Under Emergency Conditions, an attorney lacking expertise may render reasonably necessary limited legal services w/o guidance
    - - the duty of competency requires a lawyer to stay abreast of the changes in the law, its practice
        
        Includes technology
        
        i.e. A lawyer who stores confidential info in cloud based storage needs to familiarize themselves with the technology, vet companies security policies, and keep this knowledge current
        
        An atty may offer emergency advice even if they lack competence when neither consultation nor referral are available under the circumstances
        
        i.e. a phone call from jail to a non criminal lawyer
      - Diligence
        
        atty must be reasonably diligent
        
        i.e. A solo practitioner must should prepare a comprehensive plan designating another competent attorney to review client files, notify clients of the lawyer’s death or incapacity, and determine whether any client matter requires immediate action.
        
        However, clients must consent to this plan, otherwise, disclosure of client info to another attorney would violate client confidentiality
  - - - A lawyer is civilly liable for professional negligence toward a person the lawyer owes a duty of care IF:
        
        failure is a legal cause of injury
        
        lawyer failed to exercise care, and
      - malpractice waivers are not enforceable unless client received independent counsel before agreeing to it
    - - if atty owes a duty to a non-client and breaches that duty, they may be liable
        
        atty must have a reason to know about duty to non-client
- - - - No pro-bono work is required. But it is strongly encouraged
      - A lawyer shouldn't seek to avoid a court appointment except for good cause
        
        unreasonable financial burden
        
        Repugnancy such that it impairs relationship and legal ability
      - Law Reform
        
        attys can act in law reform bodies, even when the goals of the body may conflict with the interests of a client
    - - A lawyer that made political contributions generally may not accept a government or legal engagement or appointment by judge.
        
        Except: when appointment is made on a rotational basis
  - - - Judges must avoid impropriety, and even the appearance of impropriety
        
        no poker nights with atty friends in presiding cases
        
        An atty that has actual knowledge that a judge has committed a violation of the rules of judicial conduct that raises a substantial question of the person's fitness to judicial office must inform appropriate authorities
        
        personal and extrajudicial activities in a way that minimizes risk of conflict with judicial office
        
        No ex parte communications about any issue other than scheduling or similar administrative issue
        
        Judges should not voluntarily appear as character witnesses
        
        Cannot accept appointment to government committee, boards, commission, or other positions
        
        Unless it concerns the law, legal system, or administration of justice
        
        Must recuse if any of the following have a financial interest in either the subject mater in controversy or a party to the proceeding
        
        1 more item...
        
        Obj test: does it undermine judges appearance of independence, integrity, or impartiality