LAW 565-001 – Professional Responsibility


Rule List
Rule #Rule TopicTab ColorPage #
1.1CompetencePurple7
1.2Scope of RepresentationPurple8
1.3??Purple10
1.4CommunicationPurple11
1.6ConfidentialityPurple15
1.7Conflict of InterestPurple19
1.9Successive Conflict of InterestPurple??
1.10Imputed Conflict of InterestPurple34
1.14Diminished CapacityPurple42
1.16Declining/TerminationPurple46
2.1CounselingPurple52
2.3??Purple??
2.4??Purple??
4.1TruthfulnessPurple68
5.1Supervisory LawyersPurple71
5.2Subordinate LawyersPurple73
5.3Nonlawyer AssistancePurple73
5.6??Purple??
5.7??Purple??
8.1Bar MattersPurple93
8.2??Purple??
8.3Reporting MisconductPurple94
8.4??Purple??

Moral

Morals are one's internal beliefs of right and wrong.

True morality is determined by God, but this often does not align with people's personal morals or legal ethical standards.

Ethic

Ethics are external rules imposed upon upon people to make them behave more morally.

Many things are immoral but ethical. Some things are unethical but still moral.

Competence

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

One can be competent in a matter he does not have training or experience in.

Confidentiality
  1. A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
  • While usually only followed if there is a possibility of harming the client, the letter of the rule basically prevents sharing anything ever at all.
  • Comment 4 also says that it prohibits revealing information that do not reveal protected information but could reasonably lead to the discovery of such information.
  • Comment 20 says that this even applies to former clients.
  1. A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
    1. to prevent reasonably certain death or substantial bodily harm;
    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;
    3. to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;
    4. to secure legal advice about the lawyer's compliance with these Rules;
    5. to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client;
    6. to comply with other law or a court order; or
    7. to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.
  2. 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.

If a client is currently engaged in a crime or fraud and using a lawyer's assistance therefor, Rule 4.1 requires disclosure, trumping Rule 1.6.

Truthfulness

In the course of representing a client a lawyer shall not knowingly:

  1. make a false statement of material fact or law to a third person; or
  2. fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

A lawyer should also not lie to his client. This is probably prohibited by Rule 8.4(c) and/or Rule 1.4.

A lawyer and a client can agree to impose higher standards of conduct.

Under Rule 1.2(c), they can also agree to limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.

  • However, a lawyer may not waive the duty of competent representation.

Except for decisions allocable under the ethical rules, an attorney's duty is to take professional responsibility for conduct of the case after consulting with his client. The client establishes the goals, the attorney establishes the means. A client has an absolute choice whether to accept any plea or settlement offers, demand a jury trial, or a third thing we haven't covered yet.

Diminished Capacity
  1. When a client's capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.
  2. When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client's own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.
  3. Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client's interests.
Termination

Most lawyer-client relationships end when all the relevant work has been completed.

At this time, according to Rule 1.16(d) the lawyer must return any papers and property to which the client is entitled as well as any unearned payment, although most states allow liens over some documents for unpaid bills.

A lawyer still has a duty to protect the confidences of former clients.

Under Rule 1.16, a lawyer may be fired at any time, must withdraw if ethics require, and may withdraw for good cause under Rule 1.16(b), most broadly if he can do so without material adverse effect on the interests of the client but also if he stops being paid, the case will result in an unreasonable financial burden on the lawyer, or the client makes representation unreasonably difficult.

If a lawyer has already filed suit for a client, he generally cannot withdraw without the court's permission.

Conflict of Interest
Concurrent Conflict of Interest
  1. . . . . A concurrent conflict of interest exists if:
    1. the representation of one 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 responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

Taking inconsistent positions creates a conflict of interest if there is a significant risk that it will materially limit the representation of one client by the precedent established for another.

Only economic conflicts between clients does not constitute a conflict of interest.

  1. Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:
    1. the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
    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 proceeding before a tribunal; and
    4. each affected client gives informed consent, confirmed in writing.

Confirmed in writing does not mean it has to be signed.

Imputed Conflict of Interest

A firm is treated as a single lawyer under Rule 1.10.

Firm
  1. "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.

What constitutes a firm depends on the specific facts. It can exist if they present themselves in a way that suggests that or if they conduct like a firm.

A firm can exist for some purposes, like prohibiting representing both sides, but not for other purposes, like attribution of knowledge.