PR Rules Covered by Rothman S'06
1
ABA Model Rules pp. 4-971ABA Model Rules pp. 4-97
1Preamble & Scope p.4
31.X Client Lawyer Relationship p.7
72.X Counsellor p.55
73.X Advocate p.58
94.X Transactions with Non-Client Persons p.69
105.X Law Firms & Associations p.72
117.X Info About Legal Services p.86
138.X Maintaining the Integrity of the Profession p.93
14Index p.98
Preamble & Scope p.4PREAMBLE:
1. RPCs define lawyers relationship to legal system[13]
2. Responsibility = Reps clients [1];
a. Advisor of legal rights & obligations & practical
implications[2]b. Advocate[2]c. Negotiator[2]d. Evaluator of legal
affairs[2]e. Or 3rd party neutral [3], i.e., non-representational;
1.12, 2.4
f. Inside or outside legal profession[3], subject to discipline
for dishonesty, fraud, deceit, or misrep. 8.4
3. Responsibility = Officer of legal system [1]; anda. Under the
law.[5] No harassment or intimidation. Respect for the legal
system.
4. Responsibility = Public citizen[1].
a. Seek to improve law, access to legal system, admin of
justice, quality of service.[6]
b. Learned profession[6]
c. Further publics understanding & confidence in rule of law
& justice system[6]d. Mindful of relatively lacking access to
legal system by the poor[6]
e. All lawyers should devote time & effort to ensure equal
access to system of justice [6]
f. Help the bar regulate itself in the public interest[6]
5. In all functions [4] competent, prompt & diligent. Keep
confidences.
6. Guided by personal conscience[7]. Strive[7]
7. The three responsibilities usually harmonize [8]. But
sometimes conflict [9]. Lawyers own interest in remaining ethical
& earning a living[9]. Professional discretion even with
RPCs[9]:a. Obligation zealously to protect & pursue clients
legit interests w/in law[9]
b. While maintaining professional, courteous & civil
attitude[9]
8. Self-governing profession & ultimate authority vested in
the courts[10]a. Self-regulation helps maintain the legal
professions independence from govt domination. Preserves govt under
the law because lawyers are not dependent on govt for the right to
practice.[11]
b. Autonomy carries special responsibilities[12]:
i. Regulations in the public interest & not
parochial[12]
ii. Every lawyer under RPC[12]
iii. Should aid in securing RPC observance by other lawyers[12];
neglect compromises the independence of the profession[12]
iv. Vital role in preserving society[13]
v. RPCs define lawyers relationship to legal system[13]
SCOPE:
1. RPCs are rules of reason[14] ( to be interpreted w reference
to purposes of legal representation & of the law
itself.[14]
a. Imperative, obligatory & disciplinary = shall or shall
not
b. Permissive; discretionary; not disciplinary
c. Comments are aspirational & do not add obligations to the
Rules
d. Comments explain & illustrate [21], but Rules text is
authoritative.
2. RPCs operate in context of court rules, statutes, & case
law[15]3. RPC compliance[16]
a. Voluntary
b. Peer & public pressure
c. Disciplinary
4. RPCs provide framework for ethical practice of law[16]
5. Substantive law determines whether atty-client relationship
exists[17]. Most duties attach after client request & atty
agreement (i.e., relationship formed) [17] But some duties attach
prior, 1.6 & 1.18. Whether a duty exists may be a Q of fact.
[17]6. Govt lawyers have some legal authority that reposes in
clients in private rels, e.g., whether to settle or appeal. [18]
May also represent several govt agencies in intra-govtal
controversies where a private lawyer could not represent such
clients RPCs do not abrogate such authority.[18]7. Failure to
comply w obligation or prohibition ( disciplinary process[19].
Lawyer often has to act upon uncertain or incomplete evidence of
the situation. Discipline is meted out based on such circumstances,
plus willfulness, seriousness, extenuating factors & previous
record. [19]a. RPCs are not basis for civil liability[20]. They
provide guidance & framework.
b. Rule violation should not give rise to cause of action or
presume legal duty was breached, or presume disqualification[20].c.
Opposing parties subvert Rules purpose when they invoke them as
procedural weapons[20].d. Rule violation may be evidence of
breach[20].
1.X Client Lawyer Relationship p.7RPC 1.0 Terminology, incl.
(e) informed consent ( [6],[7] IC before continuing or accepting
representation[6] 1.2(c), 1.6(a), 1.7(b)
IC usually requires affirmative response[7] not silence 1.7(b),
1.9(a), 1.8(a), 1.8(g) (d) fraud & fraudulent ([5]
Under substantive law of jurisdiction w purpose to
deceive[5]
Negligent failure to inform or negligent misrepresentation not
enuf [5]
Not necessary to have caused damage, injury or relied[5]
(h)(i)(j) reasonableness
(k) screened ( [8],[9],[10]
1.11, 1.12, 1.18
RPC 1.1 Competence = legal knowledge, skill, thoroughness,
preparation. May accept rep where lawyer must prep to be
competent.[5] Rule 6.2 Lawyers should keep abreast.[6]
RPC 1.2 Scope of Rep &
Allocation of Authority between Lawyer & Client Client has
ultimate authority [1] See 1.4(a)(1)
Client-lawyer disagreements [2] See 1.16(b)(4) or 1.16(a)(3)
Limit on lawyer conduct [13] See 1.4(a)(5)
Diminished-capacity client [4]( 1.14
Limited scope of rep [6],[7],[8]
Agreements [8] see 1.1, 1.8, 5.6 Clients behaving illegally
1.2(d), [9]-[12] Withdraw [10] 1.16(a)
Disaffirm [10] 4.1
RPC 1.3 Diligence & Promptness (reasonable) Carry to
conclusion [4] unless relationship terminated per 1.16
If relationship in doubt, lawyer should clarify in writing
[4]
Appeals [4]
Sole practitioners should have a back-up plan [5]
RPC 1.4 Communication
RPC 1.5 Fees & expenses must be reasonable (d) Prohibited
contingent fees ( [6]
Securing a divorce or amount of alimony or property Representing
a criminal defendant
Advance payments ok, but must return unearned portions [4] see
1.16(d)
RPC 1.6 Atty-Client Privilege; Duty of Confidentiality relating
to current representation (a) shall not reveal w/o IC [2] Info
given by client and other info whatever its source[3], incl. info
that could reasonably lead to discovery by others [4]
(a) impliedly authorized to carry out rep
(a) or permitted under (b)
(b) MAY (or MUST in some jurisdictions) reveal
(1) To prevent death or serious bodily injury
(2) To prevent client crime or fraud ( keeps the lawyer from the
taint of having participated in a crime or fraud
(3) to prevent/mitigate/rectify financial injury (after crime
has been consummated[8]) (4) to secure legal advice for lawyer ( to
the extent reasonably necessary & always using a hypothetical
[9] (5) to establish lawyers claim or defense (6) to comply w any
other law or court order ( see gloss [13] Disclosure may be
required by other Rules [15]:
if permitted by (b) here by 1.2(d); 4.1(b); 8.1; 8.3.
REGARDLESS of (b) here: 3.3(c) Candor Toward Tribunal Former
client confidentiality ( see 1.9(c)(2)
Atty-client privilege does not attach as between commonly
represented clients (1.7 [30]
RPC 1.7 Conflict of Interest: Current Clients (b) Despite
concurrent COI, lawyer MAY represent if all four (1)-(4) are met
1.7(b)(4) IC by each client ( see [18], [19], [20]
Note that as between commonly represented clients atty-client
privilege does not attach, so they must be so advised.[30][31]
Revoking consent [21]
Consent to future conflict [22]
May withdraw, sometimes with courts approval [5]
Prohibitions [14]-[17]
Some rep is non-consentable [14], [16], [17]
Reping competitors in unrelated matters is not ordinarily COI
[6]
Personal interest conflicts [10], [11], [12]
Lawyer has independent duty to client even when 3rd party pays
[13]
Organizational clients [34], [35]
Do not include affiliates or constituent or subsidiaries or
parents [34]; treated as separate entities. Could a lawyer on the
Bd of Directors have conflict w/ representing the Org? Reflect
& review ( withdraw from one or the other role as needed. Some
matters discussed by Bd of Dir when Dir lawyer is present may not
be protected by atty-client privilege. Lawyer should advise &
withdraw accordingly. [35]
RPC 1.8 COI: Current Clients: Specific Rules Champerty
prohibited (i) and [16]
RPC 1.9 Former Clients & Firms (a) Cannot represent when
materially adverse to former clients w/o IC
(b) Disqualifies the lawyer ONLY WHEN s/he has actual knowledge
of info protected by 1.6 & 1.9(c). [5], [6] (c) Prohibits using
info related to rep to the disadvantage of former client (except as
Rules require or permit),
or if info became generally known,
or revealing info related to rep (except as Rules require or
permit).
See [8]
IC applies to (a) & (b) ( [9]
RPC 1.10 Imputation of COI: General Rule Rep is not prohibited
if lawyer has knowledge from work done prior to being a lawyer;
s/he must be screened from any personal involvement in case. [4]
Former govt lawyers covered by 1.11
RPC 1.11 COI for Govt officers & Employees Former govt
lawyers are disqualified ONLY FROM particular matters in which s/he
participated personally & substantially. [4] (d) current govt
lawyers are subject to 1.7 & 1.9 except as law otherwise
permits
(a)(2) & (d)(2) protect former clients & prevent lawyers
from exploiting public office for the advantage of another client.
[3]
RPC 1.13 Organization as Client duly authorized constituents (b)
reasonably necessary in the best interests of the Org. ( see
[3]
Referral to a higher authority w/in the Org? [4] If timely
response needed, lawyer MUST refer to higher authority [5]
Remember the entity is the client, not its duly authorized
persons. Bd of Directors typically acts as the Org.[5] If Org uses
lawyer to further a crime or fraud ( 1.6(b)(2), 1.6(b)(3) may
permit disclosure of confidential info [6]
(d) lawyer has authority to disclose info as necessary to
investigate or defend Org or officer or employee as hired by the
Org. [7] Hard to define govt Org. [9]
(g) recognizes that a lawyer may rep Org AND an officer or major
shareholder.[12]
Derivative lawsuits may give rise to a conflict between lawyers
duty to the Org & his/her duty to the Board being sued [14] (
Rule 1.7 governs.
RPC 1.15 Safekeeping Property Always separate from lawyers own
property.
RPC 1.16 Declining or Terminating Representation Mandatory
withdrawal [2], [3] Discharge [4]-[6]
Optional Withdrawal [7]-[8]
Assist client even if wrongfully discharged [9] but allowed to
retain papers as security for fee as permitted by law [9]
RPC 1.18 Prospective Clients Initial consultation, no matter how
brief, establishes duty [3], ( except as permitted by 1.9
Lawyer may condition initial consultation on IC that no info
revealed during consult will prohibit lawyer from reping a
different client in the matter. [5]
2.X Counselor p.55RPC 2.1 Advisor - of law and other
considerations Consider clients morale in presenting the info
[1]
Overly narrow legal terms may fail to inform client[2]
Proper to include ethical & moral considerations [2]
Lawyer has responsibility to explain that more than just
strictly legal considerations may be involved [3]
Lawyer should recommend consulting non-lawyer professionals when
appropriate[4] or may advise in the face of conflicting
recommendations of experts [4]
RPC 2.3 Evaluation for Use by 3rd Persons Ensure it does not
conflict w duty to client [3]
Eval at client direction or implied to carry out rep [1]
Distinguish evaluation from an investigation of a person w/o
atty-client relationship to lawyer. [2] E.g., investigating a
vendors title to property.
RPC 2.4 Lawyer Serving as 3rd Party Neutral
(non-representational role) Lawyer does not represent
ADR [1]
Court rules, or Ethics rules may apply [2]
3.X Advocate p.58RPC 3.1 Meritorious Claims Rule of limitation;
punishable
Basis in law or fact required, else frivolous Requires good
faith argument for extension, mod or reversal of existing law
Defense of crime or possible incarceration offense may defend so
as to require that every element of the case be established.
Trumped by State or Fed Constitutions that entitle D to present
defense otherwise disallowed here [3]
RPC 3.2 Expediting Litigation Rule of aspiration
Violated when lawyer uses procedure to delay or harass
Dilatory practices bring admin of justice into disrepute [1]
Lawyers convenience generally subordinate to this Rule [1]
RPC 3.3 Candor Towards the Tribunal Knowingly is key here.
(a)(2) Clearly applicable authority, i.e., citations, must be
disclosed.
Assertions by clients lawyer does not testify unless personally
knows facts [3]
(a)(3) requires that lawyer refuse to offer evidence lawyer
KNOWS TO BE FALSE, regardless of clients wishes premised on
obligation as officer of the court to prevent trier of fact from
being misled by false evidence. [5], [8]. Lawyers reasonable belief
that the evidence is false permits its presentation [8]. However,
lawyers knowledge of falsity can be inferred from the
circumstances! [8] On the other hand, when a lawyer reasonably
believes the evidence to be false s/he may refuse to offer it.[9]
(c) If lawyer discovers later that false evidence was presented,
follow remedial course of action [10]. May even have to reveal info
otherwise protected by 1.6. Preserve the integrity of the
adjudicative process [12] Duration of obligation extends to when
final judgment was affirmed on appeal or time for appeal has
passed. [13]
Ex Parte Proceedings allowed [14] Withdrawal is not required if
disclosure will adversely affect client. However, under 1.16(a) the
lawyer may be required to seek the courts permission to withdraw
[15]. If lawyer cannot persuade client to withhold false info,
lawyer should attempt to withdraw.
RPC 3.4 Fairness to Opposing Counsel (e) lawyer shall not in
good faith allude to matters irrelevant or unsupported by
admissible evidence (b) it is not improper to pay expenses of
witness (except to an occurrence witness) or expert (except a
contingency fee).
RPC 3.5 Impartiality & Decorum of Tribunal Lawyer shall
not
(a) seek influence
(b) communicate ex parte except as permitted by law
(c) communicate with a (prospective) juror
(d) disrupt tribunal
Some improper conduct is criminal [1]
Communicating w (prospective) jurors after jury has been
discharged is generally permitted, unless a court order or law
prohibits it.
RPC 3.6 Trial Publicity (a) May not materially prejudice an
adjudicative proceeding through extrajudicial statements. But
balanced by free speech [1][3]. Materially prejudicing items listed
in [5], [6] (c) May mitigate adverse publicity initiated
elsewhere.[7] Special confidentially rules apply to juvenile,
domestic relations, mental disability cases. 3.4(c) requires
compliance. [2]
RPC 3.7 Lawyer as Witness (a) Generally not done in same trial
where lawyer advocates, with narrow exceptions (a)(1)-(3) ( see
[3], [4] Lawyers can say what evidence they will present, but not
present the evidence per se
(b) Permitted: Testimony by another lawyer in the firm [5]
Issue of confusing or prejudicing the jury Balancing interest of
tribunal against those of client, because disqualifying the lawyer
may disadvantage the client [4]
Rules 1.7 or 1.9 COI may preclude lawyer from being a witness as
permitted in (a).[6]
RPC 3.8 Special Responsibilities of Prosecutors (Criminal) (a)
refrain from prosecutions unsupported by probable cause
(b) assure that accused has been advised of rights
(c) shall not seek to obtain from unrepresented Ds waivers of
important rights Except when accused appears pro se with approval
of tribunal[2] (d) shall timely disclose to defense negating
evidence
Except when it could harm the public interest or an individual w
protective order from the tribunal [3]
(e) Shall not subpoena a lawyer to demand protected, privileged
info, or unessential info, or could have reasonably obtained the
info in other ways (e)(1)-(3) (f) refrain from extrajudicial
statements that heighten public condemnation of accused, or assist
prosecutors associates from doing so. [6] Supplements rule 3.6 [5]
Prosecutor is a minister of justice, not simply an advocate[1]
Systematic abuse of prosecutorial power could violate 8.4.
Prosecutors are subject to 5.1 & 5.3 like other lawyers [6]
4.X Transactions with Non-Client Persons p.69RPC 4.1
Truthfulness in Statements to Others Rule refers to statements of
fact [2]
Shall not knowingly
(a) Make false statements, e.g., an alibi lawyers knows is
false
(b) fail to disclose a material fact [material to whom?] when
disclosure is necessary to avoid a crime or fraud by client UNLESS
1.6 prohibits disclosure
Sales puffery is not material fact when it is an opinion
Lawyer must be truthful on clients behalf [1] BUT has no
affirmative duty to inform opponent of relevant facts. If lawyer
can avoid assisting in a crime or fraud only by disclosing, then
under (b) the lawyer must do so, unless prohibited by 1.6 [3]
RPC 4.2 Communication with Person Repd by Another Counsel
Protects people who have selected counsel from over-reaching by
other lawyers[1] Communication outside the matter is permitted
[4]
Communications authorized by law [5] When in doubt, seek a court
order [6]
Other counsels consent may be required
Lawyer must have actual knowledge of the other counsel reping,
but knowledge can be inferred. [8]
In the case of a repd Org, this rule prohibits comms w a
constituent of the Org who supervises, directs, or consults w the
Orgs lawyer [7] Communication is not prohibited w Orgs former
constituent. [7]
If current constituent has own counsel, that counsels consent
suffices [7]
RPC 4.3 Dealing with an Unrepd Person Shall not state or imply
to such person that lawyer is disinterested, and person appears to
misunderstand, lawyer shall clarify lawyers role in the matter.
When lawyer thinks unrepd persons interests may be adverse to
lawyers client, lawyer shall not give legal advice, except to
suggest they get counsel. [2] Rule distinguishes between persons
whose interests are adverse to lawyers client and those whose
interests are not adverse. [2]
Rule does not prohibit lawyers from negotiating terms of a
transaction or settling disputes w an unrepd person [2]
RPC 4.4 Respect for the Rights of 3rd Persons (a) Shall not
embarrass, delay, or burden a 3rd person. Or use methods to obtain
evidence violating 3rd persons legal rights. (b) Lawyer receiving a
legal document in error must promptly notify the sender.
5.X Law Firms & Associations p.72RPC 5.1 Responsibilities of
partners, managers, supervisors (a) Measures must be in place to
ensure all conform to RPCs; refers to managers [1] [2] (b)
Supervisors must take reasonable effort to ensure juniors conform
to RPCs
(c) One lawyer may be responsible for anothers violations, if
s/he orders or ratifies such conduct, or a partner/manager knows of
conduct but fails to avoid, prevent, or mitigate. See also 8.4(a).
A junior associate could violate RPCs in violation of (b) poor
procedures but not necessarily in violation of (c), when there is
no direction, ratification or knowledge [6]
RPC 5.2 Responsibilities of Subordinate Lawyers (a) Bound by
RPCs notwithstanding direction of seniors. But not if s/he does not
know of the impropriety, e.g., a frivolous pleading. [1] (b) Does
not violate RPCs if acting in accordance w supervisors reasonable
resolution of an arguable Q of professional duty. [2]
RPC 5.3 Responsibilities Regarding Nonlawyer Assistants
RPC 5.4 Professional Independence of Lawyers
RPC 5.5 Unauthorized Practice; Multijurisdictional Practice
RPC 5.6 Restrictions on Right to Practice = Non-Compete
7.X Info About Legal Services p.86RPC 7.1 No false or misleading
communications about the lawyer or the lawyers services, incl.
omissions, material misrep of fact or law. Need disclaimers or
qualifiers in advertisements. Cannot mislead as to lead a
reasonable person to form a conclusion on which there are no facts
[2]; or to expect similar results.[3]
RPC 7.2 Advertising (subject to 7.1 & 7.3) Permitted in
written, recorded, electronic, public media [5] Must include name
& office address of at least one lawyer responsible for it
TV & Internet permitted[3]
Cannot pay others to recommend, but may pay for reasonable costs
of media, lawyer referral service (if approved by authorities), law
practice 1.17, non-exclusive and disclosed referrals to other
lawyers. Expenses for media permitted, but paying others for
hawking, impermissible [5] Hiring publicists, public-relations,
business-development permitted [5] Their conduct covered in 5.3
Active quest for clients permitted contrary to tradition[1]
Permits public dissemination of services undertaken, basis for
fees, foreign language abilities, names of references, and (with
consent) names of represented clients, etc. Effectiveness and taste
are subjective[3]
Referral services may be non-profit or regulated [6]
Participation in legal services plans must conform with lawyers
professional obligations. 5.3 governs how such plans advertise
& communicate w clients.[7] May mutually refer to other
lawyers, as long as not exclusive & disclosed to client.
RPC 7.3 Direct contact w prospective clients No live in-person
soliciting for pecuniary gain, Ohralik, except when contacting
another lawyer, family, personal or prior professional
relationship, e.g., former client [4]
Potential for abuse silver tongue [1] Permitted to engage in:
constitutionally protected activities, charitable legal services,
orgs that provide legal services to members. [4] In re Primus
(permitted to express political belief and advance civil liberties
objectives of ACLU; letter to client protected as 1st Am freedom of
association; counsel fees awarded by court for vindication of civil
rights not the same as pecuniary gain) Permitted to solicit
organizations seeking representation [6]
BUT no false or misleading under 7.1
No soliciting employment from prospective clients in any way if
pc made known desire not to be solicited or if solicitation
harasses, coerces, places under duress.
Fla. prohibits personal injury lawyers from sending targeted
direct-mail to victims & relatives for 30 days after an
accident/disaster. Upheld in Went For It.
Advertising Material must appear on outside of envelope for all
solicitations, but not for other communications of general interest
or responses [7] Participation permitted in group legal plans that
do solicit, as long as not owned/directed by the lawyer, i.e.,
cannot work around the solicitation rule.
RPC 7.4 Fields of Practice & Specialization Ares practiced
or not practiced may be stated
Specialists only if patent attorney, admiralty
Other certifications in a given field of law permitted if by
regulated body or provisionally regulated body (so disclosed) Or
may mention a certification when jurisdiction lacks one, w
disclosure When saying specialist lawyer subjects to false &
misleading standard in 7.1
RPC 7.5 Firm Names & Letterheads May not imply connection to
govt, charitable or public legal services
Firm name may be used in every locational jurisd, but lawyers
names must be attached
Name of lawyer holding public office will not be used in firm
name or in firm communications
Name of deceased partner permitted as a trade name, but names of
former partners impermissible Lawyers who share offices but are not
associated may not use a name that so implies
RPC 7.6 Political Contributions for purposes of securing Govt or
Judge appointed engagements, preclude accepting such appointments.
May fully participate in the political process
Political contributions in initiative and referendum elections
are not banned Referee, commissioner, special master, guardian are
examples of judge-appointed engagements.
Analysis explained [5]
Rule 8.4 implicated
8.X Maintaining the Integrity of the Profession p.93RPC 8.1 Bar
Admission & Disciplinary Matters knowingly false statements or
omissions Duty attaches to bar applicants as well as lawyers
RPC 8.2 Judicial & Legal Officials knowingly/recklessly
false statements regarding qualifications or integrity of others in
judicial system Continue traditional practice of defending judges
and courts unjustly criticized
RPC 8.3 Reporting Professional Misconduct Inform the appropriate
professional authority
Does not require disclosure of:
Info protected by 1.6
Encourage client to consent to disclose
or
Info gathered while on a disciplinary committee or lawyer assist
program to the extent it would be atty-client privileged, as well
when retained by another attorney to represent [4] Unenforceable to
require reporting every violation use judgment
RPC 8.4 Misconduct Only refers to conduct pertaining to practice
of law, incl:
Violence, dishonesty, breach of trust, interference w admin of
justice, pattern of minor offenses [1]
Bias/prejudice based on race, sex, religion, national origin,
disability, age, socioeconomic status, sexual orientation ( when
prejudicial to admin of justice [2]
Lawyer may refuse to comply w an obligation he believes is
absent; includes challenges to law under 1.2(d) [3] Lawyers in
public office have responsibilities beyond other citizens [4]
RPC 8.5 Disciplinary Authority & Choice of Law Discipline
meted out in admitted jurisd regardless of where misconduct
occurred
But if conduct clearly has predominant effect in another jurisd,
only rules of that jurisd apply [4]
But lawyer may be subject to discipline in >1 jurisd [2]
Subject to RPCs of each court lawyer practices in [4]
Some comity & consistency when multiple jurisds are applying
rules to conduct [5] This rule does not apply transnationally
Index p.98
Paltin
Professional ResponsibilityPage 1 of 1411/29/2006