MPRE Lecture Outline

MPRE Lecture Outline Intro to The MPRE - It can test on anything from Fed. Rules of Civ. Procedure to Fed. Rules of Evidence Find the 10 experimental questions 6 different types of questions (the first two are the most important ones) 1. Subject to Discipline 2. May or Proper 3. Subject to litigation sanction 4. Subject to Disqualification 5. Subject to Civil Liability 6. Subject to Criminal Liability Lawyer Misconduct A lawyer is subject to disc. 24/7 in everything they do even if it has nothing to do with the law (RULE 8.4) A lawyer is subject to disc. For misconduct and it is professional misconduct to: 1. Violate or attempt to violate the modern rules either personally or through the acts of another over whom the lawyer has control (another lawyer or an employee of the firm) a. It is not a defense to a lawyer’s misconduct that she acted at the direction of a partner unless she acted at the direction of that lawyer pursuant to a “reasonable resolution” of an arguable ethical issue. ( close call) (rule 5.2b) 2. To commit a criminal act which adversely reflects on the lawyer’s honesty, trustworthiness or fitness as a lawyer. a. For example theft, violence, or a willful (not negligent) failure to file an income tax return even though no taxes were ultimately owed. b. Adultery is not considered an ethical violation because it has no specific connection to practicing law. c. There is no need of a conviction d. A pattern of repeated minor offenses can indicate an indifference to legal obligations amounting to unfitness. 3. Is knowingly counseling or assisting a client in criminal or fraudulent conduct. 4. To imply an ability to improperly influence a judge or a public ofÏcial. a. Just giving the impression is improper even if you have no ability to influence a judge or a public ofÏcial. 5. Is knowingly assist a judge in conduct that violates the CJC (code of judicial conduct). 6. Is violate a court rule or a court order or advising a client to do so. Choice of law/ Conflicts of law Conduct in one state involving the law of one state - A lawyer is subject to disc. In a state where the lawyer is admitted regardless of where the misconduct occurs. She is also subject to disc, in the jurisdiction where the misconduct occurred ever if the attorney is not admitted in that jurisdiction. - Where multiple jurisdictions are involved and the attorney’s misconduct involves a matter pending before a tribunal, then apply the ethics rules of the jurisdiction where the tribunal sits. On non litigated matters, apply the ethics rules where the conduct occurred unless the predominant effect of the misconduct is in another jurisdiction. A lawyer is not subject to discipline if her conduct conforms to the rules of the jurisdiction in which the lawyer reasonably believes that the predominant effect of her conduct will occur. REPORTING MISCONDUCT - - - - - - There is no duty to volunteer unfavorable information about an applicant to be admitted to the bar, but if the bar requests info from an attorney, then the attorney must truthfully respond and co-operate. There is an ethical duty for a lawyer or a judge to inform the appropriate authorities when possessing UNPRIVILIDGED KNOWLEDGE (more than mere suspicion) that another lawyer or judge has committed misconduct raising a “substantial question” as to that lawyer’s fitness or honesty as a lawyer. 1. The complaint cannot be made anonymously 2. Has to be unprivileged info If the information is privileged, it arose from the attorney-client relationship, then the client’s permission must first be obtained and revealing that info cannot be harmful to the client. There is no duty to report another lawyer’s ethical violation if it involves: 1. Revealing information relating to the client’s representation which requires the lawyer to first obtain the client’s informed consent before making the disclosure. The lawyer should encourage the client to consent if the disclosure would not prejudice the client’s interest; 2. A lawyer retained to represent the lawyer whose ethical or criminal conduct is in question; 3. Information learned by an attorney while participating in an approved drug alcohol assistance program. 4. Information that is based only on suspicion and not on knowledge. It is not unethical for a judge or lawyer to get drunk in public. It is only when the lawyer’s intoxication affects her ability to practice. This gives rise to a duty by other lawyers to report the misconduct. A lawyer shall not threaten to file a disciplinary complaint against opposing council to gain an advantage because the threatening lawyer is ethically obligated to report such conduct, with the consent of her client. In a civil case, an attorney can threaten criminal prosecution of the other lawyer’s client provided the criminal and civil issues are related (arose out of the same transaction or occurrence) and the lawyer has a well founded believe that criminal charges are warranted. 1. Exam III, question 8 pg 344. LAWYER’S MISREPRESINTATION (NO LIES) - - - - - - - A lawyer shall not knowingly make a false statement of “material fact”: 1. To a third person during the representation of a client; 2. To a tribunal; 3. To any one On a matter not involving the practice of law. Client A was involved in a hit and run committed by C, a client, attorney B called A and said “I think your client was driving the car.” Can A respond A) My client was not driving (NO, this is a false statement of material fact) B) “if my client is sued he will testify he was not driving” (No, again it is a false statement) C) “You are right my client was driving.” (NO, this would breach the attorney-client privilege) In negotiations a lawyer can make misrepresentations on estimates of value or to price, because the rules do not consider these statements “material facts” on which another party should rely. It is not misleading for a lawyer to give legal assistance to a pro se party and not advise the court, because the ABA has concluded that such assistance is not material to the merits of the pro se party’s case. A lawyer’s communication is misleading if: 1. It misrepresents a material statement of law or fact;  This can came in any fashion. One way is if a lawyer states that he is an expert in a certain kind of field even though he has never done anything in that field. 2. It omits a fact to make a statement non misleading; 3. The statement is likely to create unjustified expectations about the results a lawyer can achieve. A misrepresentation can occur if a lawyer incorporates or afÏrms a third party statement that the lawyer knows is false. A lawyer appearing before a legislative or fact finding hearing may not silently mislead that body when she is representing a client, but she does not have to disclose the identity of the client. A lawyer cannot use a firm name, letter head or other designation that is false or misleading. 1. This most frequently arises when a group of lawyers get together and call it a partnership even though it is not. A trade name can be used “the lawyers legal clinic” provided it does not mislead or imply any connection with a charitable, governmental, or legal organization. 1. When a trade name includes a geographical name (queens legal clinic) then a disclaimer may be necessary to avoid misleading the public from thinking it has a connection with a government. An attorney who enters public service ( a mayor, attorney general or ambassador) shall not permit her name to remain on a law firm during any significant period in which she does not RAP (Regularly and Actively Practice) the law 1. Public OfÏcials Name on a Firm  R- egularly, and  A-ctively  P-racticing Law - The modern Rules do not govern non-lawyers, except for a non-lawyer who intentionally makes a false material statement of fact in her application to the bar. CLIENT MISREPRESENTATION - - - - A lawyer shall not knowingly allow a tribunal to be misled by false material statements of law or fact until a legal matter is fully completed. When a lawyer KNOWS that the client has lied to the court (perjury at a deposition, an arraignment, at a trial or at sentencing), then if the client will not correct it the lawyer may seek to withdraw from legal misrepresentation by advising the judge that “professional considerations require my termination” of the representation which will indicate to the court possible perjury without requiring the lawyer to disclose client confidences. A lawyer owes a duty of complete candor to a tribunal which outweighs the duty of client confidentiality. A lawyer SHALLNOT offer evidence to the court that the lawyer knows to be false and may refuse to offer such evidence (other than the testimony of a criminal defendant) if the lawyer does not know if that evidence is false but reasonably believes that the testimony or evidence is false. 1. For example in a criminal case a lawyer can refuse to offer a letter if he reasonably believes that it has been forged. When a client lies to others, the lawyer cannot disclose this misrepresentation (it is confidential) but the lawyer must withdraw from the case to avoid knowingly assisting a client in fraudulent or illegal conduct. The lawyer must make a “noisy withdrawal” if the client intends to continue the fraud which the lawyer has unwitÝngly facilitated. 1. To make a “noisy withdrawal” you send out a letter to the adversary that because of professional considerations you are withdrawing and are disavowing any of the prior workproduct. This puts the other side on notice that something is wrong. The lawyer may disclose information to prevent, rectify or mitigate substantial economic harm to others where the client has used the attorney services to aid and further the client’s wrongdoing. UNAUTHORIZED PRACTICE OF LAW - - A lawyer shall not assist another person in the unauthorized practice of law. An attorney shall not practice law or give legal advice WITHIN a jurisdiction in which the lawyer is not authorized to practice. An attorney may employ non-lawyers to do all tasks except to exercise independent legal judgment, such as counseling clients about the law, appearing in court, or conducting a deposition. A non-lawyer is permitted to represent herself pro se but she is prohibited from representing another such as a relative or a business entity. A lawyer who gives legal advice to a pro se party is not aiding in the authorized practice of law. 12 states (including NY) do not allow disbarred attorneys to engage in any work relating to the practice of law, but most states allow them to be employed as paralegals provided they are supervised and they do not engage in the practice of law. MULTIJURISDICTIONAL PRACTICE - - A lawyer admitted in another US jurisdiction who is not suspended or disbarred can regularly practice law in a jurisdiction where she is not admitted when: 1. The lawyer is employed by the client (in-house corporate counsel or government lawyer) and acts on behalf of the client or an afÏliated organization on legal service that do not require pro hoc vice (a motion to allow the practice of law) admission in court. 2. Is legal services that are authorized be federal law which merely require a lawyer to be admitted in any state. For example trademark, bankruptcy, patent, copyright, immigration, or in a federal administration hearing. A lawyer admitted in a US jurisdiction can practice law on a TEMPORARY BASIS in a jurisdiction where she is not admitted if the legal services that are undertaken are: 1. With another lawyer admitted in that jurisdiction who actively participates in the matter; or 2. In anticipation of a proceeding in that jurisdiction in which the lawyer expects to be admitted pro hoc vice (on motion) allowing the attorney to review documents, to review witnesses, meet with clients and conduct depositions; or 3. In relation to any arbitration or mediation proceeding in the state where the lawyer is admitted and it is the type of legal services that would not require pro hoc vice admission. RESTRICTING THE RIGHT TO PRACTICE LAW - - - A lawyer shall not participate in 1) a settlement agreement or 2) an employment contract that restricts her future ability to practice law or to fully assist any future client. Such restriction is unethical because it restricts A) the client’s freedom of choice in selecting capable council and B) A lawyer’s right to freely practice law. 1. For example, as part of a settlement in a client’s case the client was restricted from using information learned in the current representation in any future litigation. This was unethical because it restricted the lawyer’s ability to fully represent a future client. It would not be unethical to agree not to reveal the terms of the final settlement. 2. If such an agreement is entered into both lawyers, the one who made the offer and the one who agreed to it will be punished. It is ethically proper for a lawyer to participate in a collaborative legal effort in which both attorneys and parties to work together and negotiate a settlement without court intervention. If negotiations break down and a client elects to litigate then both lawyers must withdraw from further representation and cannot assist either party in subsequent litigation. The ABA has concluded that this type of representation is “limited representation” permitted under rule 1.2. Covenants not to compete are not binding within the law profession. A law firm is permitted to condition the payments of retirement benefits on a lawyer retiring and not competing with the firm. When a lawyer sells or a part of her law practice then a covenant not to compete is ethically permitted in the terms of that sale. PRO BONO SERVICES - - - Every lawyer SHOULD provide 50 hours of pro bono of free civil or criminal legal services to those unable to pay. A substantial majority of those legal services should be without expectation of being paid by a client of limited means or to an organization involved in matters that address the needs of persons with limited means. 1. For example shelters for battered women, the homeless or food pantries. The balance of the 50 hours can be satisfied by A or B 1. A) free or reduced fees of any individual of limited fees or any organization seeking to protect civil rights, or to charitable, religious, civic or educational organizations to protect and further their purpose. 2. B) Law reform activity. For example CLE. Bar Association, or volunteering to lobby for a change in the law. This pro bono requirement can be satisfied by 1 or 2. 1. 1) donating money to an organization that provides free legal services ; or 2. 2) Designating the law firm’s aggregate pro bono responsibility to another lawyer in the firm. DECLINING LEGAL EMPLOYMENT - - - - A lawyer shall not accept a client’s matter unless it can be performed competently, promptly and without a conflict of interest. There is no ethical duty for a lawyer to accept a client unless the request is from the court. 1. When a judge asks you to take on a case the lawyer shall not decline. A lawyer shall not seek to decline court appointment except where the legal representation would be: 1. Violate the model rules. For example there is conflict of interest or if the lawyer lacks competency in that matter; 2. The appointment would impose an unreasonable financial burden on the lawyer; 3. It would be so repugnant to the lawyer that it would impair her ability to represent the client. With a client’s informed consent a lawyer is permitted to limit the objectives of the representation to a specifically defined purpose, but the lawyer must fully inform the client of any problems such limited representation would cause. A lawyer shall not accept employment of shall withdraw from representation of a CCARP Client. CCARP 1. Competency Lacking - incompetent in the matter of law. 2. Conflict of interest 3. Advancing frivolous claims 4. Representation violates the Model Rules- accepting the case would cause the attorney to violate the rules 5. Physical or emotional condition of the attorney- either the physical or mental condition of the attorney prevent him from taking the case. - If a lawyer knows or should know she is not competent to handle a client’s matter then she must decline it. An attorney may provide adequate representation by associating with or consulting with a competent lawyer, but only with the client’s consent. A lawyer can provide adequate representation in a wholly new area of law through study provided it does not cause the client unreasonable expense or delay. In an emergency, under the rule of necessity, an attorney can give legal advice in an area in which she is not competent in a situation where referral to another attorney is not practical. What can a public defender do when faced with an excessive case load preventing the attorney from meeting the obligations to each of her criminal clients? 1. The ABA says that she must seek to withdraw from some of her case and if she cannot provide competent and diligent representation to those clients and she must ask the court for no further new representation. FRIVOLOUS CONDUCT - A lawyer shall not advance a claim or a defense that is not supported by existing law or supported by a “good faith” argument for reversal or modification of the existing law. If the lawyer pursues a frivolous claim, a motion, or a defense then that lawyer is subject to discipline and subject to litigation sanctions by the court. If the frivolous pleading or motion is withdrawn within 21 days from service of an adversary’s motion for sanctions, then that motion cannot be submitted to the federal court. Even though the lawyer withdraws the frivolous paper she may never the less be subject to ethical sanctions for engaging in frivolous conduct in violation of the model rules. An action is not necessarily frivolous if the lawyer believes that the client’s matter may not prevail. WITHDRAWING FROM EMPLOYMENT - - - - The client is always free to discharge the attorney for any reason or no reason. When fired by the client, the lawyer must withdraw the signed waiver agreement. If the discharge is without cause then the attorney can treat the agreement as rescinded and has a cause of action against the client for quantum merut to recover for the value of the legal services rendered. Non-refundable legal are prohibited because it interferes with a client’s right to freely fire the lawyer. The grounds for a lawyer’s mandatory withdrawal are the same as for declining employment, CCARP. In addition to CCARP an attorney must withdraw from conducting a trial if it is likely that the attorney will be called to testify as a “necessary witness” on a contested issue and that testimony is unobtainable elsewhere. The reason for the disqualification is because the function of an advocate is to explain evidence given by others as well as to argue and advance the client’s case, but the function of a witness is to state facts objectively. If the advocate is allowed to testify then the lawyer would be susceptible to impeachment as a biased witness weakening the evidentiary value of that testimony. This rule does not disqualify the attorney in participating in pretrial discovery, pretrial motions, or the post trial appeal. And it does not vicariously disqualify another lawyer in the same law firm. This disqualification does not apply to an attorney who is representing herself per se. Exceptions to witness rule: U-SUCH 1. Unlikely to be called- the lawyer is unlikely to be called - - 2. Related to legal Services- the testimony is related to legal services, such as billing 3. Uncontested issue4. Cumulative testimony 5. Hardship on the client. (money does not usually work) If mandatory grounds for CCARP disqualification are not present then an attorney MAY ethically withdraw from legal representation for: 1. No reason if it can be accomplished without a “material adverse effect” on the client’s interest; or 2. CIAFFF Co-Counsel incompatibility- the two counsels do not get along  Illegality pursued by client  Conduct contrary to Advice or judgment  Fraud pursued by client  Financial burden too great  Fee arrangement breached by client Prior to withdrawal in a litigation matter, the lawyer must comply to applicable laws that require notice from the court or permission from the court. Even if there exists grounds for mandatory withdrawal (CCARP) or permissive grounds the attorney shall continue to represent the client if ordered to do so by the court. Whenever a lawyer withdraws she shall take “SOUND” steps to protect the client’s interest. 1. Cooperate with Subsequent counsel 2. Recommend Other counsel 3. Unearned money returned 4. Notice of withdrawal given to the client 5. Deliver papers to which the client is entitled subject to a retaining lien for the attorney’s unpaid fee Attorney’s Fees (Reasonable Fee) - - - - A lawyer shall only charge a fee and charge for expenses that are reasonable. The scope of the representation, as well as the fee charged and any charge for expenses, shall be communicated to the client “preferably” in writing, except for regularly represented clients, who will be charged the same rate as previously established. The retainer agreement cannot: 1. Allow the attorney to approve or disapprove of any settlement 2. Contain any attempt to exonerate or limit the attorney from her future malpractice liability. Attorneys can accept payment by credit card or they can refer clients to a bank that has agreed to extend loans or a line of credit to the attorney’s clients. The attorney can be paid in money or property. A lawyer can hold property as security for payment of a legal fee (a mortgage on real property, a valuable lamp, or shares of stock signed in blank) but these security arrangements are considered “business transactions” requiring the client’s informed consent in an ABC writing signed by the client. In determining the reasonableness of a fee, the rules consider RENT A SERF. - 1. Reasonableness of fees- RENT A SERF  Relationship with client  Employment by others turned down  Novelty of issue  Time involved  Amount customarily charged in that location  Skill of the attorney  Expertise in that particular area  Results achieved and amount involved  Fixed or contingent fee Even with the consent of a client, a lawyer shall not acquire an interest in the client’s cause of action. That is the lawyer cannot take an assignment of part or the client’s entire claim, because this would allow the lawyer to veto a settlement, which is the sole province of a client. A lawyer can take shares of stock in its corporate client as a fee for legal services, but such an arrangement is considered an ABC, business transaction, with a client, requiring a writing signed by the client. Legal Expenses - A LAWYER CAN SEEK reimbursements for out of pocket expenses either by charging a reasonable amount agreed to in advance by the client or in the absence of such an agreement, charging the client the actual out of pocket cost incurred by the lawyer. Contingent Fees (CF) - - - - - - Contingent fee arrangements permit an attorney to receive a reasonable fee contingent on the attorney success. The reasonableness must be judged at the time the fee arrangement was entered into. A CF arrangement shall be in writing and shall be signed by the client (ABC). It shall state the method by which the fee is to be calculated including the percentage or percentages to the lawyer in the event of a settlement, judgment or an appeal and also whether litigation expenses are to be deducted before or after the CF is calculated. CF are prohibited: 1. In a criminal matter 2. In a domestic relations matter, divorce, where a fee is contingent upon securing a divorce, securing an amount for child support, alimony or marital property recovered by the attorney. A CF is permissible in post-divorce proceedings to collect arrears that have not been paid. A CF is permissible even where liability is clear and a recovery is certain, however, if the lawyer is confident that the defendant will offer an amount to settle that the client would accept when the case is first filed, then the lawyer SHOULD charge a significantly smaller percentage A lawyer shall not give anything of value to a non-lawyer for referring a client to a lawyer. A lawyer can enter a nonexclusive agreement, terminable at will, (reciprocal referral agreement) with another lawyer or a non-lawyer who is a professional, psychiatrist or doctor, but not a financial planner, but a lawyer cannot pay that non-lawyer professional anything for simply referring a client. Paying the usual fee to participate in a non-for-profit , bar approved lawyer referral service is permissible, provided any fee earned by the attorney is not shared with the referral service. A lawyer can also participate in a non-profit or for-profit prepaid legal service plan. - - - A lawyer can approach a large group (e.i. a union) or can approach an existing prepaid legal service plan and become an attorney for that group, even though the group directly solicits clients but it cannot solicit clients known to be in need of legal services. A valid prepaid plan cannot be managed by lawyers that participate in the plan. Sharing Legal Fees Sharing legal fees with a non-lawyer is prohibited, except: 1. Payment to a non-lawyer for the purchase of a law practice, where a lawyer has died, become disabled or has disappeared. 2. Fee payments to a law firm’s compensation plan or retirement plan, even though nonlawyer employees also participate in the plan. 3. Payments to an organization owned by non-lawyers that provide temps to a law firm. The temps work must be closely supervised by the law firm. 4. Quantum meruit payments to a disbarred or suspended lawyer, for legal work performed prior to the date of disbarment. 5. A court awarded legal fee can be transferred to a bono-fied non-profit organization that sponsored the case to a pro-bono attorney as long as that money is used for that group’s legal assistance. Such an arrangement must be disclosed to the client. 6. Lawyers with non-lawyers can set up separate business entities to provide clients with “law related services” (example: accounting, financial planning, tax returns or tax advice, title search). The attorney must advice the client in writing that these services are non-legal and that the attorney-client privilege does not apply to them. When the lawyer refers the client to these entities, it is treated as a business transaction and it must be confirmed in writing by the client. (ABC and WAIF) If a lawyers are in the same law firm (partners, associates,) then the rules do not restrict how the fees are to be shared and clients do not have to be advised of the fee arrangements Sharing legal fees outside the law firm is permitted, if: 1. The fee is reasonable; and 2. The client gives informed consent as to how much each lawyer will receive, and this consent is confirmed in writing (not an ABC writing); and 3. The fee paid to the attorney is either  Commensurate to the work performed; or  Each attorney assumes joint and separate liability for any malpractice; this requirement gives the referring attorney an incentive to pick a competent attorney for the client’s matter. Lawyer Confidentiality - - - Generally confidential communications made between he lawyer and the client are protected by the attorney client privilege, but if a known third party was present the privilege does not apply. If the lawyer represents two clients on a common matter then the privilege never the less applies, but if a dispute arises between the two clients and they become opposing parties, then the attorney-client privilege is waived. If the third party present is either the client’s or the attorney’s employee (paralegal, interpreter, or an accountant) who is present to facilitate the communication, then the privilege continues to apply. If the client seeks the lawyer’s legal advice to further or facilitate a crime or fraud then the privilege is waived under the “crime-fraud” exception. - - - - The rules of ethics combine the attorney client privilege and attorney client confidentiality into one standard which prohibits disclosure of any information obtained by the attorney “relating to the representation,” whether it was acquired before, during, or after the attorney client relationship existed. The attorney-client privilege and work product privilege apply in judicial proceedings if the lawyer is called as a witness to testify, however, the rules of client confidentiality apply in all other situations other than where evidence is sought from the lawyer through compulsion of law. This ethics confidentiality rule applies not only to matters communicated in confidence to the client but to all matters related to the client’s representation wherever its source.\ An attorney shall not use confidential information to the disadvantage of 1. A present client, unless the client consents after full disclosure; or 2. A former client, unless that information has become generally known, in which case no consent is required. Notwithstanding the confidentiality rules, a lawyer may reveal: 1. Where the disclosure is expressly or impliedly consented to by the client, or is authorized by law. For example disclosure impliedly authorized to carry out the representation, for example disclosures in settlement negotiations, or in a criminal case is plea bargain negotiations, or disclosures necessary to protect the interest of a client with a diminished mental capacity or disclosures made to other members of the law firm.  A lawyer can seek ethical or legal advice with someone outside the firm without the client’s consent, but the lawyer must use hypothetical’s to discuss the issues involved so that the identity of the client cannot be ascertained.  Where a lawyer uses a confidential document to refresh a witness’s recollection WHILE THE WITNESS IS ON THE STAND, then this subjects the document to automatic disclosure to opposing counsel. If that document was used to refresh the witness’s recollection prior to trial, then the disclosure of the document is up to the court’s discretion.  A lawyer who reasonably believes that a client is abusing medication and that medication renders the client unable to communicate or to reach an informed decision, then impliedly the lawyer has the right to discuss the matter with the client’s doctor. 2. When a court over rules the privilege and orders the attorney to make disclosure. The attorney is not required to appeal the court’s order. 3. Disclosures necessary to collect a legal fee, or defend allegations of wrong doing, by either the client or a third person. (self-defense rule) 4. To prevent reasonable certain death or substantial bodily harm, to either the client (suicide) or to others whom the client wants to kill or seriously injure, then the lawyer MAY reveal information necessary to prevent it. 5. To prevent, mitigate, or rectify a crime of fraud that is reasonably certain to cause, or has already resulted in direct financial injury where the client has used the lawyer’s services to further the fraud, then the lawyer may reveal the information to prevent, mitigate, or rectify  Where a lawyer for an organization KNOWS that an employee or an ofÏcer is violating the law and it is likely to result in substantial injury to the organization, then the lawyer “shall” climb the corporate ladder to report the wrong doing. If this internal reporting to the highest authority proves insufÏcient to protect the - - - - entity from substantial harm then the lawyer MAY disclose the wrong doing to people outside the corporation to prevent injury to the organization. Allowing an attorney to reveal the secrets and confidences: 1. Consent from the client (express or implied) 2. Court ordered disclosure 3. To collect a fee or defend against a suit 4. Client’s criminal or fraudulent conduct An attorney does not have to disclose a client’s past crimes (2 murders) or disclose the whereabouts of the evidence (the bodies), but the attorney cannot take possession of the fruits of the crime and cannot suggest expressly or impliedly that evidence be destroyed. This would constitute the crime of obstruction of justice and the attorney would be subject to “criminal liability.” 1. An exception to this rule allows an attorney to take temporary possession of physical evidence to have it tested (ballistics, DNA), provided that the test will not alter that evidence. The attorney must then return the evidence from where it was found or turn it over to the D.A. If a lawyer unknowingly submitted evidence to the court (testimony or real evidence) but then learns that the evidence was false or misleading, then this must be disclosed to the court. When confidential communications are involved, lawyers must take REASONABLE RECAUTIONS to prevent client confidences from coming into the hands of others. If the lawyer’s method of communication affords a “reasonable expectation of privacy,” then the lawyer’s ethical duty is satisfied. Thus in most cases the lawyer can use unencrypted emails, which if intercepted will not waive attorney-client privileges. However, if the client insists on more secure way of sending messages then the lawyer must follow the client’s instructions. If confidential information is inadvertently disclosed by an attorney, pretrial discovery, then the attorney who receives it must immediately notify the other attorney. SAFEKEEPING OF PROPERTY AND FUNDS BELONGING TO ANOTHER - - - - - When holding property or money belonging to a client or to a third person, the attorney must promptly (within a few days): 1. Give notice to those entitled to the property 2. Appropriately safeguard it 3. Deliver it to the person entitled to it 4. Render an accounting, if requested 5. Keep current and complete records and retain them for 5 years. All client money or property paid to a lawyer shall be promptly forwarded to the client or promptly deposited into the attorney’s escrow account, maintained within the state where the lawyer’s ofÏce is located, unless the client consents to an out-of-state escrow account. Property delivered to an attorney shall be kept separate from the attorney’s own property and reasonable steps should be taken to safeguard it. Example, shares of stock shall be deposited into a safety deposit box, unless some other kind of safekeeping is warranted by special circumstances. An attorney shall not comingle client funds with the attorney’s personal funds, because it subjects the client’s funds to the claims of the attorney’s creditors, and it may also allow the attorney to use those funds for personal purposes. An attorney shall not deposit any of her own money into the escrow account, except: 1. To pay bank service charges; or 2. A retainer fee paid by the client; or 3. Joint funds belonging to the client and to the attorney, which then permits to “promptly" withdraw his fee from the escrow account unless that fee is disputed by the client, in which case the disputed amount cannot be released. - If a lawyer is aware of a third party’s lien on the client’s recovery arising from: 1. A contract; or 2. A court order; or 3. A lien arising by law (for example, a Medicaid lien or a workman’s comp lien) then the lawyer must withhold these funds from the client until the lien is settled; the lawyer should not arbitrary try to solve the dispute. CONFLICT OF INTEREST - - - - - A lawyer shall not represent a client if there is a significant risk that the lawyer’s representation maybe limited by the attorney’s responsibility or loyalty to a present client, a former client, a third person, or by the lawyer’s own self interest. The conflict of interest rules are not per se, allowing the client to waive the attorney’s conflict provided: 1. The lawyer reasonably believes that the conflict will not adversely affect the attorney’s judgment or duty of undivided loyalty ; and 2. objectively a reasonable person would conclude that the attorney could represent both different interests; and 3. Each client gives informed consent after full disclosure of the possible adverse affect. The consent must be confirmed in writing (does not have to be signed by the client). A lawyer can ask a perspective client to waive conflicts that may arise in the future but the effectiveness of that waiver depends on the extent that the client reasonably understands the risks that the waiver entails. Thus an open-ended general consent ordinarily will be ineffective because it is not reasonably likely that the client understood the risks involved. The most frequently used advanced waiver is a “one shot deal” with a client who is 1. a large corporation 2. experienced in the use of lawyer, 3. is represented by counsel when the waiver was given, 4. and the prospective waiver is to a future conflict unrelated to the subject matter of the lawyers current representation. There are 6 nonconsensual conflicts where a lawyer cannot ask a client to consent: 1. The lawyer does not reasonably believe that she can provide competent representation to both clients affected by the attorney’s conflict 2. The representation is prohibited by law 3. The lawyer or lawyers from her firm cannot represent two clients asserting related or unrelated claims against one another in the same litigation 4. A lawyer or any lawyer in her firm is prohibited from preparing a document that gives the lawyer or a member of the lawyer’s immediate family a substantial gift from the client. One exception is a close family member. 5. Until the case has been concluded a lawyer cannot enter into a contract or negotiate for a contract involving the literary or media rights of the client’s case. 6. Sex with a current client unless that sexual relationship existed prior to forming the attorney client relationship. CONFLICTS WITH A FORMER CLEINT - - - - - - - Once the attorney-client relationship has ended the duty of loyalty ceases but the attorney’s duty of confidentiality continues. Absent informed consent of the former client an attorney shall not accept new employment if: 1. The new matter is the same or it substantially relates to the prior representation and the attorney’s new client’s interests are materially adverse to the former client’s interests. Here the lawyer is precluded from switching sides.; or 2. The matters are totally unrelated to the former representation but the attorney possess confidential information from the former representation that could be used against the former client to advance the interests of the lawyer’s current client, unless that information has become generally known. When a lawyer changes jobs and goes to a new firm that is opposing his old firm on a matter then unless the lawyer’s former client consents the new firm is disqualified from that matter, unless the migrating lawyer acquired no protected confidential information and did not work directly on that matter while she was at the old firm. All lawyers in the new firm are disqualified through imputation but only if the challenged lawyer actually acquired client confidences. If that layer was only briefly involved in the periphery of the case (working on a change of venue motion) and worked solely on legal issues, then that new lawyer will be disqualified from working on that case but his new firm will not be disqualified. If the new lawyer, while at her old firm, acquired no knowledge or information relating that particular client then neither the lawyer or her new firm are disqualified from representing the opponent on that matter. A lawyer deciding to change firms should give prompt pre-withdrawal notice to her current clients. She cannot make in person, face to face contact, with firm clients prior to her departure if she did not work with those clients and has no family relationships with those clients, but she can send an announcement to the old firm’s clients after she has departed from the firm. A former government lawyer shall not represent a private client in connection with a matter in which that lawyer participated “PERSONALY AND SUBSTANTIALLY” as a government employee. The former government lawyer’s new firm will not be vicariously disqualified provided the former government lawyer is screened from any participation in that matter and prompt written notice is given to the government agency to ensure screening compliance. There is no screening requirement for interagency job transfers. A former government lawyer shall not use confidential government information that is not available to the public to the material disadvantage of another. A lawyer cannot subsequently represent a client in any matter in which the lawyer was personally and substantially involved as a full or part time judge, a judges law clerk , a mediator or arbitrator, unless all of the parties in the matter give informed consent. When a government lawyer works on drafting a general statute, regulation or government policy, then this representation does not disqualify the attorney after leaving government service from working on a case involving the same statute or law. CONFLICT WITH A PRESENT CLIENT - - - When a client engages the services of a lawyer then that client is entitled to believe that until the matter is finally disposed of the client has the undivided loyalty of that lawyer. A lawyer cannot accept new employment if it “DIRECTLY ADVERSE” to the interest of an existing client. Even if the two matters are totally different. That is, a favorable result to the new client would be detrimental to the lawyers existing clients. A lawyer may represent multiple clients on the same side of the matter, provided it is obvious that their interests are adequately represented by one lawyer and each consents after full disclosure of the possible adverse affects of dual representation. 1. If one client comes and tells you something but asks you not to tell that to the other client you cannot represent both clients. In making an aggregate settlement for multiple clients represented by the same attorney, the lawyer must disclose the existence of the nature of each client’s claim, the settlement amount distributed to each client, and the amount the attorney will receive in fees. In a criminal case, the plea offered to each of the multiple clients must be disclosed to both clients. In both criminal and civil cases, the client must give informed consent signed by the client (ABC). ADVANCING MONEY TO CLIENT - - - In connection with pending or contemplated litigation attorneys are forbidden to give a client financial assistance. For example, making a mortgage payment or guaranteeing a loan for a client, even though that client is in severe financial circumstances. An attorney may advance or guarantee a client’s litigation expenses including court fees, deposition fees, expert witness fees, and medical examinations for an injured client. The repayment of these litigation fees can be made contingent. If the client is indigent, then a lawyer can pay and not just advance court costs and litigation expenses. THIRD PERSON’S INTEREST IN A CASE - If a third person will pay the attorney’s fee in whole or in part then the attorney must compliance with 3i’s. 1. Informed consent by the client 2. No interference by the third person 3. Information remains confidential THE ATTORNEY’S OWN CONFLICT - - - - - - An attorney’s own conflicting interest should not be allowed to adversely affect her representation of the client. Two lawyers related by blood or marriage or two cohabiting lawyer cannot represent adverse parties unless both clients give informed consent. Their law firms are not vicariously disqualified. An attorney shall refrain from having business dealings with a client that could result in gains to the attorney at the client’s expense unless the arrangement is fair and reasonable, is put in writing, the client is given time to reflect on the transaction, and to seek advice from an independent counsel, and the client must agree in writing signed by the client. 1. (WAIF) Business transaction with Client  Writing signed by the client  Advise the client to seek counsel  Informed consent on full disclosure  Fair and reasonable transaction terms 2. (ABC) A clients signature is requires for  Aggregate claims settlements  Business transactions with a client  Contingent fee agreements A lawyer cannot solicit a substantial gift from a client, but a client can do so on her own initiative. If that gift requires a legal instrument neither the lawyer nor her firm can draft that instrument. A lawyer (or a judge) cannot negotiate for new employment with an opposing party or that party’s law firm while personally and substantially participating in any matter involving that party. A law clerk to a judge can negotiate for employment with a party or a lawyer involved in matter in which the clerk is participating, but only if the clerk first notifies the judge of this fact. When a lawyer represents a client it does not constitute an endorsement of the client’s views or activities. The lawyer’s duty of loyalty applies only to the lawyers professional capacity, but it does not impose any obligation on the lawyer to adopt the personal views of the client. A lawyer can participate in law reform activities (Bar Association) even though: 1. It is adverse to the interests of a client; or 2. It may materially benefit a client, in which case the attorney must disclose this benefit to the law reform organization but the attorney does not have to disclose the identity of the client. IMPUTED DISQUALIFICATION - If a lawyer is disqualified from representing a client by a conflict, then no one in the law firm can represent that client except where the conflict is based on the lawyer’s personal interests. For example, Sex with a client, intense feelings, business interest, or a family relationship with and adverse party or an adversary. Provided the lawyer with the conflict has nothing more to do with the case. LAWYER AS AN ADVOCATE - - - In pre trial discovery a lawyer cannot make a frivolous discovery request and cannot fail to make a reasonable diligent effort to comply with an advisories discovery request. A lawyer cannot obstruct another parties access to documents or witnesses, thus she cannot induce or assist a witness in evading or ignoring a subpoena. An attorney should be a zealous advocate at trial but should not read “A POEM” 1. Do not  Argue facts not in the record  Passion appeals to the jury  Personal Opinions  Embarrass the Witness  Misstate evidence or knowingly present false evidence A lawyer cannot assert her personal opinion regarding the facts in issue and cannot vouch fr the honesty or credibility of a witness or for the justness of the case. By doing so she becomes and unsworn witness. 1. Watch out for “In my opinion...” A lawyer shall make reasonable efforts to expedite the litigation consistent with the interests of her client. Although it may be expectable for a lawyer to seek postponement for the lawyer’s personal reasons, but it is improper for the lawyer to do so routinely for her own convenience. A LAWYER’S DUTY TO A CLIENT - - - A lawyer shall abide by a client’s decisions concerning the objectives of the representation and shall keep the client reasonably informed. Reasonable requests for information shall be complied with. In a matter that may involve litigation a lawyer shall inform the client of alternate dispute resolutions such as arbitration or mediation. An attorney has a duty to abide by a client’s decisions affecting “5th SLAP” rights 1. Client’s Rights to Decide  5th – whether to take the stand or invoke the 5th amendment  Settle a civil case and decide the terms  Litigate by a judge or jury  Assert afÏrmative defenses  Plea bargaining in a criminal case If a lawyer becomes aware that the client expects legal assistance that would violate the rules then the lawyer must consult with the client regarding any legal or ethical limitation imposed on the lawyer. PROSECUTORS - Prosecutors can only prosecute on probable cause. - - - Prosecutors have a due process obligation to reveal to the defendant exculpatory evidence, evidence that would relieve the defendant or evidence that could be used to impeach a prosecutor’s witness. (Brady) Prosecutors have a duty to reveal a rap sheet of their witnesses. The Brady rule can be excused if disclosure would cause substantial harm to someone, and the prosecutor gets a court order permitÝng the nondisclosure. If a prosecutor has credible evidence creating a reasonable likely hood of innocence, then the prosecutor has a duty to act on this information after the defendant has been convicted. 1. If the prosecutor is outside the prosecutor’s jurisdiction then he has to let the prosecutor in that jurisdiction know of the evidence. Prosecutors have a reasonable duty to ensure the defendant is advised of his right to counsel and prosecutors shall not urge a defendant to waive an important right such as the right to a jury or the right to a preliminary hearing in court. ATTORNEY’S COMMUNICATION - - COMMUNICATION WITH JUDGES It is unethical to initiate or participate in an ex-parte communication with a judge involving the subject matter of the litigation before the judge. 1. Exceptions:  The judge can meet separately with each side, provided all parties and all attorneys consent;  For scheduling, administrative purposes or in an emergency there can be exparte communication with a judge or a judge’s law clerk provided no one gains an advantage, and the other side is given notice of the communication and an opportunity to respond. A lawyer is allowed to truthfully criticize a judge, but is prohibited from knowingly or recklessly making a false statement about a judge A lawyer is prohibited from making gifts to a judge except ordinarily hospitality. A lawyer has an ethical duty to reveal known legal authority that is in direct opposition to the lawyer’s position. There is no ethical obligation to disclose adverse facts to the court, unless in an ex-parte motion. COMMUNICATION WITH JURORS - You cannot talk to a member of a jury about the subject matter Once the jury is discharged, if the court rules permit, the lawyer can discuss the case with the juror. A lawyer cannot talk to a discharged juror if: 1. The juror makes it known to the lawyer that she does not want to communicate; or 2. The lawyer engages in harassment type tactics. COMMUNICATIONS WITH PARTIES - - A lawyer “ENGAGED IN A MATTER” who knows that a party has an attorney cannot communicate with that party without: 1. Consent from the attorney; or 2. Obtaining a court order When a party is a corporation represented by an attorney, then opposing counsel can talk to : - 1. A former employee 2. An employee of the corporation who is not in a supervisory position or one who does no regularly consult with corporate counsel. If the party is not represented by an attorney then a lawyer can communicate with that party to gather evidence, but a lawyer cannot mislead that party and cannot pretend that she is disinterested. The lawyer cannot give that unrepresented party any legal advice, but can present to that party documents to be reviewed and signed. COMMUNICATION WITH WITNESSES - - A lawyer can compensate but not reward a fact witness in a case by paying the witness out of pocket reasonable expenses. An expert witness can be paid a reasonable fee, but not a contingent fee. The attorney can advise his client, family members, and the client’s employees not to “voluntarily” talk with the opposing party, provided the attorney reasonably believes that the witnesses interest will not be adversely affected. An attorney cannot ask a question of a witness if it does solely to embarrass that witness. An attorney can speak with the other party’s witnesses without that party’s attorney’s consent. COMMUNICATION WITH ADVERSARIES - An attorney should agree to a reasonable request made by an adversary for an adjournment, provided there is prejudice to the attorney’s client. NEWS MEDIA COMMUNICATION AND ADVERTISEMENT - - - - Lawyers (including prosecutors) involved in a case and those lawyers associated with the lawyer are prohibited from making out of court statements to the press, if there is a substantial likelihood that it would prejudice a fair trial. A prosecutor has a duty to prevent others who are working with her from making such statements. A lawyer is permitted to make a public statement to protect a client form substantial prejudice that resulted from an earlier public statement that was not initiated by that lawyer. Prohibited Public Statements (GRIPE) 1. G- Opinions of Guilt or innocence 2. R- Results of or refusal to take tests 3. I- Identification/ Credibility of a witness 4. P- Plea possibilities 5. E- Existence of a confession Permissible Public Statements (WAIVE) 1. W- Warn public of danger 2. A- Assistance of public requested 3. I- Investigation in progress 4. V- Victim’s identification 5. E- Explanation of crime or defense raised Permissible to News Media (JPHEAD) 1. J- Judicial proceedings 2. P- Public record 3. H- History of accused 4. E- Evidence (not confession) 5. A- Arrest circumstances 6. D- Defendant’s denial COMMUNICATIONS ON LEGAL SERVICES - - False or misleading advertisements can be prohibited because they are not protected by the first amendment, however a law cannot limit or regulate truthful commercial speech unless the law is narrowly tailored to serve a substantial governmental interest. Truthful advertising is permissible(chapter 9 lists the items that can be listed) An ad is misleading if it cannot be factually verified or substantiated. Example “ill do anything to win your case.” Or “ if I cannot get you an acquittal on your DWI case, no one can.” Unsubstantiated statements that compare one lawyer’s services with another are prohibited unless the factual comparison can be factually substantiated. 1. Example: “I’m as good as the wall street lawyers.” 2. “my fees are very reasonable” is permissible because it could be verified. ADVERTISEMENTS - Any advertisement must contain the name and the address of the lawyer or law firm responsible for its content. In a targeted advertisement that is either prerecorded or sent by mail must contain the statement “advertising material” on the envelope on at the start and finish of the recording. A lawyer cannot accept employment from unsolicited or live telephone or a chat email solicitation of business. An exception to this rule is where the person solicited is 1. Another lawyer 2. A close friend 3. A family member 4. A former client 5. A present client 6. A pro bono attorney who expects no financial gain Code of Judicial Conduct (CJC) - The goal of the CJC is to promote the independence, impartiality and the integrity of the judiciary. It instructs judges to avoid even the appearance of impropriety 24/7. The judge must be fair and impartial because bias by a judge weakens the public confidence in the judiciary, but it is permissible for a judge to give extra attention to a pro se party. A judge cannot voluntarily appear in litigation as a character witness, but if she is subpoenaed she must appear. CANNON 2 (JUDICIAL DUTIES) - A judge shall competently, diligently, and impartially carry out judicial duties. There can be no bias shown in the judge’s courtroom by the judge, the lawyers, or court staff. - - - - There can be no ex parte communication with a judge about a pending matter but the court makes an exception for problem solving courts such as the new drug courts or courts for domestic violence. Other exceptions to ex parte communications with a judge 1. The judge can seek the assistance of an expert witness but first must give notice to all parties, give them an opportunity to object and must share the expert’s results with the parties. 2. 60min The judge cannot make public comment on the case while it is pending. The judge can respond to critical allegations concerning the pending matter either directly by the judge or by a third person. The judge must rely on the evidence in the record and cannot conduct an independent investigation of the facts, including electronic research. However, the judge can take judicial notice of evidence that was not presented. The judge cannot use or disclose nonpublic information (conversations in a judges chambers), unless that information poses a threat of harm to the judge or to a third person. The judge can participate in settlement discussions, but cannot coarse a party into settling. After a jury verdict a judge can thank the jurors generally for their service to the community, but he cannot commend or criticize a jury except in a written opinion. The judge can meet with the jury after the verdict but she cannot discuss the merits of the case with the jury. Judge’s Administrative Duties - - - The judge should not appoint a large campaign contributor. (Each state fixes what constitutes a large campaign contributor). An exception to this rule is for: 1. Uncompensated positions; or 2. Where a random selection process is used; or 3. There is no other competent lawyer who is willing to except the appointment. If a judge has a reasonable belief that another judge or an attorney has an alcohol or drug problem then the judge must take “appropriate action” such as: 1. Confrontation with the judge or lawyer 2. Contact an assistance program to intervene 3. Contact a supervisor 4. Contact the grievance committee If a judge has KNOWLEDGE that another lawyer or judge is violating the model rules or the CJC, which adversely affects on that person’s honesty, trustworthiness, and fitness, then the judge must report it. If the judge does not have knowledge but only information that a “substantial likelihood” of a violation then the judge must take “appropriate action” described above. Disqualifying A Judge - Even if a judge believes disqualification is unnecessary, she should place on the record anything relevant to her disqualification. A judge shall not sit on a case if her impartiality might reasonably be questioned and no motion is required for the judge to disqualify herself. Disqualification of a judge (P-FIB) 1. P- Previous participations- if the judge previously participated in the matter now before the judge, then she must disqualify herself if she was:  A material witness; or  An attorney in the case; or  Her firm was the attorney of record; or  She was a party; or  She was a judge earlier in the case; or  She was a prosecutor substantially involved in the case. 2. F- Family Relationship  This includes great-great parents down to great-great grand children, aunts and uncles, nephews and nieces, who are:  A party in the litigation; or  An ofÏcer or director in the party (business); or  A lawyer in the litigation; or  Has a financial interest in the case; or  Is a material witness  Relatives of the judge cannot appear in the litigation, but the relative’s law firm can appear. 3. I- interest ($) in the outcome  If the judge or her domestic partner, or a close family member, or some other relative residing in the judge’s house hold has an ECONOMIC INEREST in that case that could be substantially affected by its outcome, then the judge shall disqualify herself. 4. B- Biased based on personal knowledge or prejudice  If the judge learns of a campaign contribution that was more than a specific amount then if that campaign contributor appears in the judge’s court room, she must disqualify herself. Likewise if the judge is going to leave the bench and is negotiating for employment then if that law firm appears in her court room she must disqualify herself. Except for biased, the parties can waive the judge’s conflict of interest, but only if the parties agree unanimously and it is negotiated outside the judge’s presence and the waiver us put on the record.  - CANNON 3 (EXTRA JUDICIAL ACTIVITIES) - - - The judge cannot offer court facilities to groups that the judge belongs to. Where the facilities are closed to other groups. But the judge can offer court facilities for court activities (for ex: high school moot court competitions or Bar Association meetings.) The judge can teach and can publish. The judge can join civic, educational, religious, or charitable organizations. But not if those organizations are involved in invidious discrimination. A judge can be an ofÏcer or director of a nonprofit organization , but cannot be an ofÏcer or director if it: 1. Is likely to appear before the judge; or 2. It frequently is involved in litigation in the judge’s court house. A judge cannot become involved in fund raising, but he can participate a fundraising event and can attend that event. However, the judge cannot be the speaker or guest of honor at the - - event, unless the organization involves the law or the legal system (bar association) in which case he can be a speaker or a guest of honor. A judge can personally solicit contributions from 1. Family members; or 2. Fellow judges.  But not if the judge has supervising authority or appellate authority. A judge can solicit membership in law related groups, but not in other groups. The judge can give investment advice to nonprofit groups the judge belongs to but she cannot ive legal advise for those groups. BUSINESS ACTIVITIES OF A JUDGE - - A judge cannot be a director, ofÏcer, or employee of a business, but can participate in such fashion for a family owned business. The judge can participate in passive business activities including real estate investment, securities, and participating in a limited partnership. If a judge earns outside income, it must be reported on the court’s website. Campaign contributions can be made a to a judge’s campaign committee, but gifts other than ordinary hospitality cannot be made to a judge. Loans to a judge are not permitted, except by lending institutions. 1. One exception: gifts or a loan can be given to a judge by a person who is not allowed in the judge’s court room (P-FIB). A special occasion gift can be made to the judge or a member of the judge’s family. The judge must report within 30 days free invitations to Bar Association or law related events and out of pocket reimbursements when attending those functions. A judge cannot be an arbitrator or mediator, even with the consent of all parties. The judge cannot be a fiduciary, except of a family member and only if that case does not go into the judge’s court room. Part Time Judges - A part time judge is not prohibited from (BIG- FLAP) POLITICS - - A sitÝng judge or a lawyer seeking election to be a judge: 1. Can contribute to a political party or to a candidate 2. Can advertise for election 3. Publically oppose or endorse a candidate for the same judicial ofÏce 4. Establish a campaign committee to accept contributions 5. In a partisan election identify herself as a member of a political party 6. In a patrician election seek or accept endorsements from a political party Ina judicial election including a primary, there can be no contributions made to a judge, but only to a judge’s campaign committee, and only reasonable amounts can be made. A candidate for judicial election must resign from her ofÏce in any political organization, but she does not have to resign from public ofÏcer. If a judge is appointed to judicial ofÏce: 1. There can be no accepting or solicitation of funds, and the judge cannot establish a campaign committee. That person seeking appointment can seek endorsements and - can meet with the appointing committee. She does not have to resign from her ofÏcer in a political organization. A judge running for non-judicial ofÏcer, must first resign the judgeship except if he is running for another judicial ofÏce or is seeking to be elected to a constitutional convention.