Professional Responsibility Guide Part 8

Question 5 Question 6 After a major airplane crash in the vicinity of an affluent island town, in which 122 passengers and crew were killed, the town’s attorneys swarmed like locusts to get a “piece of the action” and the potentially huge contingent fees that were likely to arise from the case. Interested in fees himself, but also rather disgusted at the performance of some of his colleagues of the bar, one attorney placed an ad in the town’s weekly legal newspaper, whose readership was almost entirely lawyers. The ad suggested that any attorneys representing plaintiffs in the airline crash matter contact him in order to consolidate lawsuits against the airline, and that legal fees would be divided in proportion to the work performed. The ad was signed by the attorney and indicated his office address and telephone number. A lawyer represents a defendant who is being prosecuted in a jury trial for an armed robbery and attempted murder that occurred on June 15. The accused has pleaded not guilty to the charges, but the lawyer knows that the accused is the perpetrator and that the crime occurred at approximately 10 p.m. The victim testifies that she is certain that the crime occurred at midnight. The accused has an airtight alibi for midnight. At 11:40 p.m. he was arrested on a drunk driving charge, and he was in police custody until 6 a.m. on June 16. On cross-examination, the lawyer does nothing to challenge the victim’s recollection of the time of the attack. Also, as the trial unfolds, the lawyer does not introduce any evidence at her disposal that would help establish the time of the attack as 10 p.m. The lawyer calls as a witness a police officer who testifies that the accused was in fact in custody at midnight on the night in question. The accused does not testify and is acquitted. Was it proper for the attorney to place such an advertisement? (A) Yes, because the ad was not misleading. (B) Yes, because the lawyers will split the fees in proportion to work done. (C) No, because the attorney is soliciting business. (D) No, because the ad is in bad taste. Are the lawyer’s actions proper? (A) Yes, because her client is a criminal defendant and constitutional protections take precedence over ethical rules. (B) Yes, because she did not present false evidence. (C) No, because she knew that the victim’s testimony was wrong and would mislead the jury as to a crucial component of the case. (D) No, unless she notified the judge of the true facts outside the presence of the jury, and he instructed her to proceed. Question 7 Question 8 An attorney has a high-profile divorce law practice in the town in which he resides. Because of his heavy caseload, the attorney often appears before the four chancery judges of the county court. One of the chancery judges is getting married, and he sends a wedding invitation to the attorney. The attorney wishes to send the judge, as a wedding gift, an imported Italian machine that makes espresso and cappuccino coffee because he knows that the judge loves fine coffee. The coffee machine sells for $200 at the town’s best cooking equipment store. The attorney sent the coffee machine to the judge, and the judge duly made a public report of the gift. A man walked into the law offices of a lawyer who, because she was not busy at the time, agreed to talk to the man right away. The man told the lawyer that he was concerned that he might be indicted soon. He explained the details of his predicament at length to the lawyer, but after he finished, the lawyer explained that she only handled civil matters and urged the man to consult with a friend who was a criminal lawyer. The man went on to retain the friend. A few days after her interview with the man, the lawyer read a news item announcing the man’s indictment. It quoted the district attorney at some length. After reading the article, the lawyer became convinced that something the man had told her during their interview would probably exonerate him or, at the very least, lead to a reduction in the charges against him if the district attorney became aware of the information in her possession. Was it proper for the attorney to send the coffee machine to the judge? (A) Yes, because the judge would not be unduly influenced by a $200 gift. (B) Yes, because the judge made a public report of the gift. (C) No, because the gift was not a campaign contribution, and lawyers should not give other types of gifts to judges. (D) No, because the value of the gift exceeded $150. May the lawyer reveal the information to the district attorney? (A) Yes, because the man did not retain the lawyer as his counsel. (B) Yes, because the information will help the man. (C) No, because the attorney learned the information during the course of an attorneyclient relationship. (D) No, unless the man consents to the disclosure. Question 9 Question 10 A lawyer practices in State A. State A’s rules of legal ethics depart from the ABA Model Rules in one significant respect: State A has no “financial injury” exception to the lawyer’s duty of confidentiality. Thus, when a State A lawyer learns in confidence that her client is about to use her legal services to inflict serious financial injury on someone, the lawyer may withdraw, but she must not reveal what she learned in confidence. The lawyer limits her practice to federal securities law, and she regularly appears before the Securities and Exchange Commission (“SEC”). One of her major clients is a company that makes and sells cotton textiles. The company’s shares are traded on the New York Stock Exchange and in securities matters the company is regulated by the SEC. While working on an SEC registration statement for the company, the lawyer learned in confidence that three of the company’s top executives were cooperating in a scheme to loot the company of millions of dollars. If their scheme continues, it could drive the company into insolvency. The lawyer alerted the chief legal officer of the company to the situation, but he did nothing. She then alerted the chief executive officer, who also did nothing. Finally, she alerted the six outside members of the board of directors, but they too failed to act. In disgust, the lawyer withdrew from the matter and vowed never again to represent the company. A wife whose husband was hard-drinking and abusive went to see a lawyer about getting a divorce. However, because the wife did not work outside the home, she told the lawyer that she could not afford to pay a big legal fee. The lawyer was sure that the wife had adequate grounds for divorce in that her husband was adulterous, an alcoholic, and frequently beat her. Therefore, the lawyer told the wife that if she could put up the $200 filing fee, he would do all the work for 10% of whatever he was able to obtain in alimony and child support on her behalf. The wife was elated and immediately agreed to the arrangement, thanking the lawyer profusely. The lawyer left his office that night with a warm feeling that he had helped a fellow human being, secure in the knowledge that at least one person in the community would have something nice to say about lawyers. Must the lawyer now tell the SEC about the scheme? (A) Yes, the SEC’s regulations under the Sarbanes-Oxley Act require her to alert the SEC if her other efforts have proven fruitless. (B) No, the SEC’s regulations give her discretion to either reveal or not reveal the matter to the SEC. (C) Yes, because the shareholders could be seriously financially injured if the scheme continues. (D) No, because State A’s legal ethics rules do not allow her to reveal confidential information in this situation. Personal satisfaction aside, was the lawyer’s conduct proper? (A) Yes, because the fee is reasonable and is not excessive. (B) Yes, because the lawyer is providing legal services to a person who might not otherwise be able to afford them. (C) No, because a contingent fee arrangement is prohibited when the fee is based on the amount of alimony or a division of marital property. (D) No, because the wife was indigent and the lawyer should have advanced her the filing fees. Question 11 Question 12 The driver of a car and his passenger were injured as the result of a collision with a bus. They believe the bus driver was entirely at fault, and they want to bring a negligence action against the bus company. They engage in an initial consultation with a local attorney. In the course of the consultation, the attorney realizes that the bus at issue belongs to a bus company that the attorney’s firm is representing in an unrelated matter. The attorney interrupts the conversation, explains this potential conflict of interest, and obtains the written consent of both the driver and passenger to represent them. A judge ruled in favor of a plaintiff in a civil action where the defendant was ordered to pay the plaintiff $50,000 in damages. The judge has since resigned from the bench. The defendant has refused to pay the $50,000, asserting that the verdict was obtained through improper means. The defendant asks the judge, now in private practice, if she will represent him. Which of the following is not true? (A) The attorney may not represent the car’s driver and passenger because he has not obtained the written consent of the bus company. (B) The attorney may not represent the car’s driver and passenger because he did not inform the passenger that he may have a cause of action against the car driver. (C) The attorney may represent the car’s driver and passenger. (D) The attorney may appear on the bus company’s behalf at a court hearing that afternoon. Would the judge be subject to discipline if she represents the defendant? (A) No, because the judge is no longer on the bench. (B) No, because the judge was not a party to fraud when the original verdict was handed down. (C) Yes, because the judge ruled on this case when she was a judge. (D) Yes, because former judges may not engage in private practice. ANSWERS TO MULTIPLE CHOICE QUESTIONS Answer to Question 1 (C) If one lawyer within a firm has a conflict of interest and cannot take on a matter, no other lawyer in the firm may take on the matter either. [ABA Model Rule 1.10(a)] One situation that would create a concurrent conflict would be if there is a significant risk that the representation of a client will be materially limited by the lawyer’s own interest or his responsibilities to another client, a former client, or a third person. [ABA Model Rule 1.7(a)(2)] The mayor would be prohibited from representing the development company in this matter because such representation would be materially limited by his responsibilities, as mayor, to the city. Thus, his law partner is also prohibited from such representation. Therefore, (A) and (B) are incorrect. (D) is also incorrect; it makes no difference whether the mayor has a direct role in the representation or shares any fees. Answer to Question 2 (A) The attorney has no duty to represent the sales manager, so (A) is proper. (B) is improper because the attorney may only represent the sales manager if he does not insist on testifying falsely. [See ABA Model Rule 3.3(a)(3)] (C) is improper because it is a form of extortion. (D) is improper because the sales manager’s confession to past perjury is protected by the duty of confidentiality. [See ABA Model Rule 1.6] Answer to Question 3 (C) A judge should disqualify herself in a proceeding in which her impartiality might reasonably be questioned, including but not limited to instances where she served as lawyer in the matter in controversy. [CJC Rule 2.11(A)(6)(a)] The fact that these matters are routine or uncontested does not excuse her from this rule; thus (A) is incorrect. (B) is incorrect because avoiding delay does not allow a judge to ignore CJC Rule 2.11(A)(6)(a). (D) is incorrect because it is too broad. Answer to Question 4 (B) Under ABA Model Rule 5.5(b), a lawyer must not aid a nonlawyer in the unauthorized practice of law. Under these facts, the attorney would improperly be assisting the pastor, who has not in fact been authorized to practice law despite his law school degree. (A) makes no sense; the pastor’s potential remedy for the attorney’s mistakes does not subject the attorney to discipline. (C) is incorrect because any duty a lawyer may have to educate the public does not justify a lawyer’s assisting in the unauthorized practice of law. (D) is irrelevant. Answer to Question 5 (A) This is the best answer here because nothing in this advertisement violates the ABA Model Rules. The fact that the ad is not misleading is important because neither the ABA Model Rules nor the First Amendment protects misleading or deceptive advertising. (B) is incorrect because fee splitting is a separate issue; it does not affect the propriety of the ad. (C) is incorrect because the attorney here is not soliciting business, and also because the traditional ban on all solicitation is no longer constitutional. (D) is incorrect in that the ad is not patently in bad taste, and even if it were, it would probably be protected by the First Amendment unless it was misleading or overreaching. Answer to Question 6 (B) The lawyer’s actions were proper because she did not offer false evidence, and she is under no duty to volunteer harmful facts. [See ABA Model Rule 3.3; comment 14 to ABA Model Rule 3.3] In fact, to do so would probably be a breach of ethics. (A) is incorrect because her actions were proper regardless of the constitutional protections afforded criminal defendants. (C) is incorrect because an attorney is under no obligation to volunteer harmful facts in an adversarial proceeding even if the jury will be misled by the testimony of a witness. It is up to the state to establish the time of the crime; if it cannot do so, it has not met its burden of proof. (D) is incorrect because the lawyer should not disclose the facts to anyone, not even the judge. These facts are information related to the case and cannot be disclosed or used to the client’s disadvantage absent some recognized exception to the duty of confidentiality. None applies here. Had the lawyer presented a witness (other than the accused) who testified that the time was midnight when the lawyer knew it was 10 p.m., the lawyer would have had to rectify the false testimony. Here, however, the testimony came from the opponent, and the lawyer is under no obligation to rectify it. Answer to Question 7 (B) ABA Model Rule 3.5(a) forbids a lawyer from seeking to influence a judge by means prohibited by law. CJC Rule 3.13(C)(3) permits a judge to accept a gift from someone who has come or is likely to come before the judge if the judge files a public report of the gift. (A) is wrong because there is no specific value that is tied to undue influence. (C) is wrong because campaign contributions are not the only types of gifts lawyers may make to judges. (D) is wrong because the value of the gift triggers only a reporting requirement. The gift is not improper as such. Answer to Question 8 (D) An attorney may reveal or use confidential information if the client gives informed consent. [See ABA Model Rules 1.6, 1.18] (C) is incorrect because it does not take into account exceptions to the general rule of confidentiality. (A) is incorrect because the man consulted the lawyer in her capacity as an attorney, and it is irrelevant that he did not retain her. (B) is incorrect because the attorney may not reveal information, even if it will help the client, unless the client consents or the information falls into recognized exceptions to the confidentiality rule, which are not present here. Answer to Question 9 (B) The SEC’s regulations under the Sarbanes-Oxley Act permit, but do not require, a securities lawyer to reveal a client’s confidential information to the SEC when the lawyer reasonably thinks that doing so is necessary to prevent or rectify a securities act violation (or similar law violation) that is likely to cause substantial financial injury to the client or its shareholders. (A) and (C) are wrong because the regulation permits, but does not require, the lawyer to alert the SEC. (D) is wrong because the SEC regulations purport to preempt any inconsistent state ethics rules. [See 17 C.F.R. §§205.1, 205.6(c)] (It remains to be seen whether courts will uphold the SEC’s effort to preempt the field and override inconsistent state ethics rules.) Answer to Question 10 (C) ABA Model Rule 1.5(d)(1) subjects a lawyer to discipline if the fee in a domestic relations matter is contingent upon the securing of a divorce, the amount of alimony or support, or the amount of the property settlement. (A) is incorrect because the size of the fee is irrelevant because the ABA Model Rules forbid a contingency fee in this situation no matter what the amount of the fee. Although (B) states a rationale behind contingency fees, this rationale will not support a contingency fee in this case. (D) is incorrect because a lawyer may, but is not required to, pay or advance costs to an indigent client. Answer to Question 11 (C) The attorney may not represent both the passenger and the driver when there is a potential conflict of interest between them unless: (i) the attorney reasonably believes that he can represent both clients effectively; and (ii) the passenger and the driver give informed, written consent. The attorney must withdraw from the joint representation, however, if later discovery shows that the passenger has an actual claim against the driver. Here, there is no indication that the driver, the passenger, and the bus company all gave informed, written consent and thus (C) is not a true statement. [See ABA Model Rule 1.7] (A) is a true statement for the same reason. (B) is true because a lawyer must not represent a client if the representation of that client will be directly adverse to the representation of another client, unless both clients give informed, written consent. [See ABA Model Rule 1.7] (D) is true because the attorney already represents the bus company in the unrelated matter. Answer to Question 12 (C) ABA Model Rule 1.12(a) provides that a lawyer must not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge, unless all parties to the proceedings give informed, written consent. Thus, (C) is correct, and (A) and (B) are incorrect. (D) is incorrect because a judge may subsequently engage in private practice, except she may not participate in cases where she was personally and substantially involved. APPROACH TO EXAMS PROFESSIONAL RESPONSIBILITY IN A NUTSHELL: Lawyers and judges are subject to various sources of ethical regulation. Most importantly, the American Bar Association has adopted the Rules of Professional Conduct (“RPC”) and the Code of Judicial Conduct (“CJC”), which outline the rights and duties of lawyers and judges. Most states have rules that are patterned after the RPC and CJC. Lawyers and judges who violate these rules may be subject to discipline. I. REGULATORY CONTROLS OVER ATTORNEYS AND UNAUTHORIZED PRACTICE OF LAW A. Admission to Practice 1. Citizenship or residency requirements impermissible 2. Applicant must show good moral character 3. Lawyer cannot make false statements regarding applications B. Disciplinary Process 1. General substantive standards a. Violating the RPC or assisting another in doing so b. Committing a criminal act that reflects adversely on lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects c. Stating or implying an ability to improperly influence a government agency or official or to achieve results by means that violate the RPC or other law d. Conduct involving dishonesty, fraud, deceit, or misrepresentation e. Conduct prejudicial to the administration of justice f. Knowingly assisting a judge or judicial officer in conduct that violates the CJC or other law 2. Common types of discipline: disbarment, suspension, and censure 3. Practice in multiple states a. Lawyer is subject to the regulation of the state in which she is admitted, regardless of where her conduct occurs b. Choice of law 1) If conduct is related to the matter before the tribunal, tribunal will apply the local RPC 2) For other conduct, tribunal will apply: a) The RPC in state where conduct occurred, or b) The rules of another state in which the predominant effect of the conduct occurred (1) Safe harbor for lawyer who reasonably believed the predominant effect occurred elsewhere C. Unauthorized Practice of Law 1. Nonlawyer generally may not: a. Draft a real estate sales contract b. Counsel on legal implication of tax laws 2. 3. 4. II. III. c. Draft wills and estate plans Lawyer cannot practice in a state where she is not licensed, except: a. Permissible temporary practice 1) Association with active local lawyer 2) Pro hac vice admission 3) Alternative dispute resolution arising out of home state practice 4) Other practice reasonably related to home state practice b. Permissible permanent practice 1) Lawyer employed by only client (e.g., in house counsel) 2) Practice in restricted branch of law (e.g., federal agencies) Lawyer cannot assist nonlawyer in unauthorized practice Nonlawyer cannot own an interest in a law firm ESTABLISHING A LEGAL PRACTICE A. Forms of Practice 1. May not practice under a trade name or other misleading name 2. May not partner with or share legal fees with nonlawyers B. Responsibilities of a Partner, Manager, or Supervisory Lawyer 1. Must make reasonable efforts to ensure that actions by lawyer and nonlawyer subordinates conform to the RPC 2. Supervisory lawyer responsible for subordinate’s act if she: a. Orders or ratifies act b. Knowingly fails to take remedial action C. Responsibilities of a Subordinate Lawyer 1. Must follow RPC even when acting at supervisor’s direction 2. Can safely follow supervisor’s directions regarding resolution of an arguable question of professional duty D. Sale of a Law Practice 1. May reasonably restrict seller’s private practice 2. Entire practice or practice area must be sold 3. Fees to clients must not increase as a result of the sale 4. Must give written notice to clients about the sale and provide opportunity to retain other counsel or collect their file INFORMATION ABOUT LEGAL SERVICES A. Advertising 1. Ads must not be false or misleading a. Characteristics of misleading ads 1) Unfounded conclusions 2) Unjustified expectations of results 3) Unsubstantiated comparisons to other lawyers 2. Ad must contain the name and office address of at least one lawyer or firm responsible for its content 3. IV. May not pay people for recommendations a. Exceptions 1) Costs of permitted advertising 2) Charges for legal service plan or nonprofit lawyer referral service 3) Paying to purchase a law practice 4) Reciprocal, nonexclusive referral agreements with another lawyer B. Solicitation 1. In-person, telephonic, or real-time personal solicitation of strangers prohibited if motive is pecuniary gain a. Exceptions: close friends, relatives, lawyers, and former and current clients 2. May not solicit by any method if: a. The recipient has indicated a desire not to be contacted b. The solicitation involves coercion, duress, or harassment 3. Must not make unsolicited communication within 30 days of accident or disaster 4. Must not use an agent to do what lawyer is prohibited from doing C. Identification of Practice and Specialization 1. May indicate that practice is limited to certain areas but may not identify as a specialist unless certified by an ABA-approved organization ENTERING INTO THE LAWYER-CLIENT RELATIONSHIP A. What Creates a Lawyer-Client Relationship? 1. Lawyer agrees to provide legal services 2. Lawyer fails to make clear that he does not want to represent the person and knows or should know that the person is reasonably relying on him to provide the services 3. Lawyer is appointed by a tribunal B. Basic Responsibility to Render Public Interest Legal Service 1. RPC suggest 50 hours of pro bono service per year 2. May participate in law reform activities even if the reform affects clients’ interests C. Client with Diminished Capacity 1. Must maintain normal lawyer-client relationship 2. May seek appointment of guardian D. Emergency Legal Assistance to Nonclient with Diminished Capacity 1. May take legal action on behalf of the person 2. Must reasonably believe impaired person has no other representative available 3. Should not seek compensation E. Avoiding Conflicts of Interest 1. Concurrent conflicts a. 2. 3. 4. 5. 6. When conflict exists 1) Direct adversity between clients; or 2) A significant risk that the representation will be materially limited by lawyer’s personal interests or by his responsibilities to another client, former client, or third person b. Lawyer may still accept representation if: 1) Lawyer reasonably believes he can competently and diligently represent each client; 2) Representation is not prohibited by law; 3) Representation does not involve a claim by one client against the other; and 4) Each client gives informed, written consent Specific conflict situations (some waivable, some not) a. Business transaction with client or providing financial assistance to client b. Using information relating to representation to client’s disadvantage c. Designating oneself as beneficiary or soliciting a substantial gift from client (unless client is related to lawyer) d. Accepting literary or media rights based on information relating to the representation or obtaining a proprietary interest in the cause of action e. Accepting compensation from a third person f. Accepting an aggregate settlement on behalf of multiple clients g. Agreeing to limit malpractice liability or settling such a claim h. Engaging in a sexual relationship with client, unless the relationship existed before the representation started Conflicts regarding former client a. Must not represent someone whose interests are materially adverse to former client, absent former client’s informed, written consent b. Must not use former client’s confidential information to former client’s disadvantage or reveal any information relating to the representation unless required by the RPC Conflicts regarding prospective client a. If lawyer obtains confidential information that could substantially harm prospective client, he cannot represent a different person with interests materially adverse to prospective client in the same or a substantially related matter b. Overcoming a prospective client conflict 1) Prospective client and current client both give informed, written consent; or 2) Screening procedures (for imputed conflicts) Lawyer may not represent client where she is likely to be a necessary witness, unless: a. Uncontested issue b. Testimony regarding the nature and value of legal services c. Withdrawal would result in substantial hardship Conflicts in representing an organization a. Lawyer must act in best interest of organization 1) Reporting violation of a legal obligation or violation of law by someone associated with the organization a) 7. 8. 9. 10. 11. F. V. Reporting inside organization—lawyer must report if the violation is likely to result in substantial injury to the organization b) Reporting outside organization—lawyer may (but is not required to) report if necessary to prevent substantial injury to the organization and reporting within the organization has failed Lawyer’s conflict is imputed to other lawyers in the firm unless conflict is based on personal interest a. Can be overcome with screening procedures Successive government and private employment a. Former government employee must not represent private client in connection with a matter in which he participated personally and substantially as a government employee 1) Conflict not imputed to others at the firm if disqualified lawyer is screened, apportioned no part of the fee, and the government agency is provided with written notice b. Current government lawyer must not participate in a matter in which she personally and substantially participated in during private practice, unless government agency provides written consent c. Current government lawyer must not negotiate for private employment with a party in a matter in which she is participating personally and substantially (except for law clerks to judges or arbitrators) Former judge, mediator, or other third party neutral in a matter must not later represent anyone in that matter unless all parties consent Lawyer serving as a third party neutral must explain to unrepresented parties that he is not acting as their lawyer Lawyer may provide short term limited legal services under a program sponsored by a nonprofit organization without any expectation of a continuing representation in the matter Establishing Compensation for Legal Services 1. Duty to avoid fee misunderstandings a. Lawyer must communicate the scope of the representation, the basis or rate of the fee, and any expenses for which client will be responsible b. A written fee agreement is preferable but not required 2. Fees must be reasonable based on time, labor, and skill required 3. Contingent fee agreements must be in writing and are prohibited in: a. Criminal cases b. Domestic relations matters (unless the representation only involves collecting past-due balances on financial orders) 4. Referral fees are not allowed, but lawyers may divide fees with client’s consent if the fee is proportionate to the work performed by each lawyer or if lawyers assume joint responsibility for the representation THE LAWYER’S RESPONSIBILITIES TO THE CLIENT A. Basic Obligations of Competence and Care 1. VI. Competent representation requires legal knowledge, skill, thoroughness, and preparation a. Lawyer may gain competence with adequate research or preparation, or by consulting another lawyer B. Duty to Preserve Confidentiality of Information 1. Attorney-client privilege—applies to testimony in court by lawyer or client regarding confidential communications a. Survives termination of relationship and client’s death b. For organizational clients, privilege applies to communications with a high-ranking official and other employees who speak to lawyer at the direction of a superior about a subject within the scope of the employee’s duties 2. Duty of confidentiality a. Duty continues to apply after relationship has terminated b. Exceptions—disclosure permissible when: 1) Client consents 2) Necessary to prevent certain death or substantial bodily harm 3) Necessary to prevent or mitigate the results of a crime or fraud by client that is reasonably certain to cause substantial financial loss, if client has used or is using lawyer’s services to commit the crime or fraud 4) Required by law or necessary to obtain legal ethics advice 5) Necessary to collect a fee or protect lawyer 6) Necessary to detect and resolve conflicts of interest arising from lawyer’s change of employment or change in the composition of a law firm, if attorney-client privilege is not violated and client is not prejudiced C. Duty to Protect Client’s Property 1. Must keep client’s property in a separate trust account a. May deposit personal funds to pay bank service charges b. Must place advance fees in the account, to be withdrawn as fees are earned 2. Must notify client upon receipt of property in which client has an interest 3. Must maintain records of client account funds and other property 4. Must deliver property on client’s request and provide an accounting 5. If lawyer possesses disputed property, the disputed portion must be kept separately until resolution of the dispute DUTIES AND BOUNDS OF REPRESENTATION A. Duty as Adviser 1. Exercise independent judgment and render candid advice B. Scope of Representation 1. Abide by client’s decisions (e.g., accepting settlement offers) 2. Act within bounds of the law a. VII. Must withdraw if client is using lawyer’s services to commit a crime or fraud C. Transactions with Third Persons 1. Must not communicate with person represented by counsel, unless: a. Lawyer has no actual knowledge of representation b. The communication is authorized by law c. Subject of the communication is outside the representation 2. May communicate with unrepresented person but must not state or imply that lawyer is disinterested 3. Must notify sender of any document or electronic information relating to representation that is inadvertently received D. Conduct of Litigation 1. Must bring only meritorious claims and contentions 2. Must make reasonable efforts to expedite litigation E. Candor Toward the Tribunal 1. Must not: a. Make false statements of fact or law b. Fail to correct false statements of fact or law c. Fail to disclose directly adverse controlling legal authority d. Knowingly offer false evidence 1) Must take reasonable remedial measures if false evidence is offered F. Fairness to Opposing Party and Counsel 1. Must not: a. Suppress evidence b. Advise or cause someone to hide or leave the jurisdiction in order to make that person unavailable as a witness c. Conceal or knowingly fail to disclose information lawyer is obligated to reveal d. Knowingly use perjured testimony or false evidence e. Participate in the creation or preservation of false evidence f. Knowingly engage in other conduct that is illegal or contrary to the RPC G. Trial Publicity 1. Must not make extrajudicial statements likely to materially prejudice an adjudicative proceeding DECLINING AND TERMINATION OF THE ATTORNEY-CLIENT RELATIONSHIP A. Declining Employment 1. Should not accept representation if it: a. Will harass or maliciously injure another b. Presents an unwarranted claim or defense B. Mandatory Withdrawal 1. Continued employment will violate the RPC 2. Lawyer’s physical or mental condition materially impairs ability to represent client 3. Client discharges lawyer C. Permissive Withdrawal 1. No material adverse effect on client’s interests 2. Client persists in a criminal or fraudulent course of action 3. Client used lawyer’s services to perpetrate a crime or fraud 4. Lawyer considers client’s course of action repugnant 5. Client fails to fulfill obligation to lawyer and has been reasonably warned that lawyer will withdraw unless it is fulfilled 6. Representation will impose unreasonable financial burden 7. Other good cause D. Protecting Client’s Interests on Termination 1. Examples include returning client’s papers, allowing client time to secure other counsel, and refunding unearned fees VIII. THE LAWYER’S RESPONSIBILITIES TO THE LEGAL PROFESSION IX. A. Lawyer’s Conduct While Not in Practice 1. Bound by RPC even when acting privately B. Political Contributions to Obtain Government Employment 1. “Pay to play” contributions prohibited C. Judicial and Legal Officials 1. Must not make false or reckless statements about the qualifications or integrity of a judge, adjudicatory, or public legal officer D. Special Role of Public Prosecutor 1. Must avoid bringing charges not supported by probable cause 2. Must make timely disclosure of exculpatory evidence to defense E. Reporting Professional Misconduct 1. Must report lawyer who has violated the RPC if violation raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects JUDICIAL ETHICS A. Integrity, Independence, and Impartiality 1. Judge must act in a manner that promotes the public’s confidence in the judiciary, and must avoid impropriety and the appearance of impropriety a. This general standard applies on and off the bench b. Personal relationships must not interfere with conduct c. Must not misuse judicial prestige 1) d. e. B. Permitted actions a) Recommendations or references based on personal knowledge b) Participating in judicial selection c) Testifying as character witness when summoned (must not volunteer) Must not use, or be a member of, an organization that practices invidious discrimination 1) Exceptions: intimate, purely private organizations and organizations that preserve religious, ethnic, or cultural values of common interest to the members Must not publicly manifest a knowing approval of invidious discrimination on any basis Diligent, Impartial Performance 1. Must hear all matters assigned unless disqualified 2. Must be fair and impartial 3. Must require order and decorum in court 4. Must be patient and courteous and require the same of those under the judge’s control 5. Must not engage in ex parte communications, except: a. Expressly authorized by law b. Effort to settle or mediate matter c. Emergency or administrative matter 6. Must not initiate, permit, or consider communications from others made to the judge outside the presence of the parties’ lawyers concerning a pending or impending matter, except: a. Court personnel b. Disinterested legal experts c. Communications between trial and appellate courts 7. Must not independently investigate the facts in a case 8. Must dispose of judicial matters promptly, efficiently, and fairly 9. Prohibited comments about pending cases a. Public comments that might reasonably be expected to affect the case’s outcome or impair its fairness b. Nonpublic comments that might substantially interfere with a fair trial 10. Must not commend or criticize jurors for their verdict (but may thank the jury) 11. Must not disclose nonpublic information acquired in a judicial capacity for nonjudicial purposes 12. Must perform judicial and administrative duties diligently and competently 13. Must make appointments impartially and based on merit 14. Misconduct by others a. Other judges and lawyers 1) If judge receives information indicating a substantial likelihood that lawyer or judge has violated the RPC or CJC, judge must take “appropriate action” 2) If judge has actual knowledge of a violation, she must report the violating lawyer or judge to the relevant disciplinary authority 15. Must require court staff and others under judge’s direction to act in accordance with the CJC C. Disqualification 1. Whenever judge’s impartiality might reasonably be questioned a. Should disclose any information that parties and lawyers might consider relevant, even if judge believes there is no basis for disqualification 2. Bias or personal knowledge of relevant evidentiary facts 3. Prior involvement in the matter 4. Sufficient economic interest in the matter 5. Relative involved in the case (related more closely than a cousin) 6. Party or party’s lawyer made contributions to judge’s campaign fund over a specified amount 7. Prior public statement of judicial commitment to an issue in the proceeding 8. All of the above grounds for disqualification may be remitted (waived) by the parties except personal bias or prejudice concerning a party D. Extrajudicial Activities 1. May participate in nonjudicial activities that involve either legal or nonlegal subjects if consistent with CJC 2. Must not appear at a public hearing before, or otherwise consult with, an executive or legislative body or official, except on matters concerning the law, the legal system, or the administration of justice 3. Must not accept appointments to governmental committees or commissions unless they concern the law, the legal system, or the administration of justice 4. May participate in activities sponsored by law-related organizations and nonprofit organizations 5. May hold and manage personal or family investments 6. May not serve on the board or as an employee or adviser of a corporate entity 7. Should not accept gifts, bequests, favors, loans, or other things of value from anyone if doing so violates the law or compromises judge’s independence, integrity, or impartiality a. Exceptions 1) Items of little intrinsic value 2) Prizes from random drawings open to nonjudges 3) Gifts incident to the activities of a family member that incidentally benefit the judge 4) Ordinary social hospitality 5) Gifts from family and friends b. Gifts subject to reporting requirements 1) Gifts incident to a public testimonial 2) Invitation to a law-related function associated with judge’s activities 3) Gifts from a person who has or is likely to come before the judge 8. Judge may serve as an executor, guardian, etc., for family members only and in limited circumstances 9. A full-time judge may not act as a mediator, arbitrator, or private judge unless expressly authorized by law 10. 11. A full-time judge must not practice law A judge may be compensated for outside activities under certain circumstances but is subject to reporting requirements E. Judges and Politics 1. General prohibitions on judges and judicial candidates a. Holding office in another political organization b. Publicly endorsing or opposing another candidate for public office c. Making speeches on behalf a political organization d. Financially supporting a political candidate e. Publicly identifying oneself as a candidate of a political organization f. Using court resources in a campaign for office g. Personally accepting or soliciting campaign contributions other than through a campaign committee 2. Judge must resign when she becomes a candidate for a nonjudicial elective office (but not an appointive office) 3. Judicial candidate must not make pledges, promises, or commitments with respect to issues likely to come before the court that are inconsistent with judicial impartiality 4. Special rules for candidates in public elections a. Permitted actions 1) Establish a campaign committee a) Committee may publish literature and seek reasonable contributions and public support 2) Speak on behalf of her candidacy 3) Publicly endorse or oppose candidates for the same judicial office 4) Seek, accept, or use endorsements from a person or organization other than a partisan political organization 5) Contribute to a political organization or candidate for public office 6) Buy tickets for and attend political gatherings 7) Seek public support and reasonable contributions b. Must not personally solicit publicly stated support or campaign contributions F. Application of the CJC 1. Special rules a. A retired judge subject to recall is allowed to serve as an arbitrator or mediator, and (except when acting as a judge) to serve as a fiduciary b. Continuing part-time judges, periodic part-time judges, and pro tempore part-time judges are exempt from many CJC provisions that restrict political and other activities