Professional Responsibility - MODEL RULES CHART
Professional Responsibility - MODEL RULES CHART
Togstad v. Veseley
Hickman v. Taylor-undue hardship
1.7 Conflict of Lawyer shall not represent client in concurrent conflict [2] Steps to determine conflict
Interest: Current • Directly adverse to another client
Clients • Representation could limit la..,vyer'szeal [23] representing multiple defendants in
May represent if: criminal matters ➔ grave risk of conflict
• Reasonably believes can be competent and diligent
• Not prohibited by law [24] Zeal of advocacy of a client because of
duties to another client
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• Does not involve conflicted clients (n v. f1)
• Informed consent given by each client (writing) [25] class actions
Togstad v. Veseley
Pentnwalt Corp. v. Slough, Inc.
1.8 Conflict of Shall not enter into adverse business transaction with client unless: [2] la..,vyershould discuss both material risks
Interest: Current • Fair and reasonable, in writing and existence of reasonable alternatives
Clients Specific • Advised in writing to get other counsel
Rules • Informed consent given in writing [5] use of information relating to the
• Shall not use info to disadvantage of client unless given informed consent representation to the disadvantage of the
• Shall not solicit substantial gift, prepare document that gives substantial client violates the lawyer's duty of loyalty
gift unless related to client
• Prior to termination of rep. no agreement for literary or media rights [6] small tokens are acceptable gifts and even
large gifts as long as not solicited. Lawyer
Lawyer shall not:
may not suggest that a client give a
• Provide financial assistance in pending or contemplated case except:
advancement of court costs or litigation expenses substantial gift
• Poor client ➔ can pay for expenses
[7] conveyance of a substantial gift
Lawyer shall not accept payment from one other than client unless:
REQUIRES detached advice of another
• Informed consent lawyer
• No interference with independent judgment
• Attorney-client info protected [9] literary rights
• No aggregated settlement claims in criminal cases expect ➔ informed
consent [16] Acquiring proprietary interest in subject
A Ja..,vyershall not: of litigation
• Prospectively limit malpractice suits unless client indep. Represented or
• Advised in writing to seek counsel and given time [17] & [18] Sexual Relationships between
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A la..,vyershall not: la..,vyersand clients
• Acquire proprietary interest in case except:
• Lien to get paid
• Contingent fee in civil case
No sexing unless predates la..,vyer-clientrelationship
1.9 Duties to Former Lawyer shall not represent another client in matter substantially related to a [2] clearly prohibited representation of new
Clients matter of a former client in which interests are materially adverse unless ➔ client when directly and substantially
informed consent given in writing involved with old client with materially
adverse interests
Lawyer shall not represent new client when old firm represented client that:
• Materially adverse interests [3] defines substantially related matters
• Acquired confidential information (unless informed consent in writing)
Lawyer and firm shall not use old clients information to that clients Hickman v. Taylor
disadvantage unless info becomes generally known
1.10 Imputation of Lawyers firm shall not represent client prohibited by 1.7 or 1.9 unless lawyer [4] does not apply when person with
Conflicts of personally adverse to representation information is a paralegal or secretary or law
Interest: General student as long as they are timely screened
Rules Old firm can represent new client with interests adverse to previous client as
long as
• The matter is not the same or substantially related
• Lawyers at the firm has no material information
Can be waived with informed consent in writing
1.11 Special Conflicts Lawyer who has served as a public officer or employee of the government Title 18 U.S.C.A. §207 - Restrictions on
oflnterest for • Subject to l.9(c) former officers, employees, and elected
Former & Current • Shall not represent a client in a matter which the lawyer participated in officials of the executive and legislative
Government materially and substantially as a public officer unless government gives branch
Officers & informed consent ➔ in writing
Employees • When a lawyer is disqualified from representation no lawyer at the firm
can represent the client unless (1) disqualified lawyer is screened, (2)
written notice is given to gov't agency and no pa11of fee is given to
disqualified lawyer
• Lawyer recently serving as a public officer or employee shall not -
negotiate for private employment unless law clerk
1.12 Former Judge, A la\vyer shall not: (1) represent anyone in connection with a matter in which the la\vyer participated in personally and
Arbitrator, substantially as a judge unless all parties give informed consent in writing; (2) negotiate for employment if served as a judge
Mediator or Other
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Third-Party
Neutral
1.13 Organization as a If lawyer knows officer of organization is engaged in detrimental conduct that [3] policy decisions are not within lawyers
Client relates to the representation and the conduct would be imputed to the duty
corporation the lawyer shall:
• Proceed as reasonably necessary in the best interests of org. ➔ highest [5] highest authority= board of independent
authority directors
• If highest authority fails to take action AND the violation will result in
substantial injury ➔ lawyer may reveal information to the extent necessary
to prevent substantial injury Pentnwalt Corp. v. Slough, Inc.
This does not apply to investigations relating to lawyer's representation or in IBMv. Levin
defending employee/officer in alleged violation FDIC v. Clark
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• Client doesn't pay ➔ lawyer gives warning client
• Unreasonable financial burden on lawyer
Lawyer must request withdrawal from tribunal ➔ their ruling governs
Lawyer must take steps to protect client's interest ➔ reasonable notice, time
to procure other representation, surrendering papers/property, refunding
advanced monies.
• Lawyer may retain papers to extent permitted by other law
1.17 Sale of Law Lawyer can sell or buy a practice if: [3] return due to unforeseen circumstances
Practice • Seller ceases to engage in private practice or in the area of practice sold allowed
• Entire practice sold to one or more lawyers
Seller gives written notice to clients regarding: (1) proposed sale; (2) clients [14] retirement plans do not constitute sale of
right to retain other counsel; (3) clients consent presumed if the client does practice
not take action in 90days
Togstad v. Veseley
COUNSELOR
2.1 Advisor Lawyer shall give candid advice ➔ law, economics, morals, political factors
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2.3 Evaluation for A lawyer may provide an evaluation for use by 3rd party if making evaluation [3] when 3rd party will rely on evaluation
Use by Third is compatible with duties to client ➔ if bad effect on client likely lawyer shall legal duty to that person may arise
Party not provide evaluation unless informed consent given
[4] under no circumstances may lawyer make
false statement of material fact in evaluation
ADVOCATE
3.1 Meritorious Lawyer shall not bring or defend non meritorious claims EXCEPT in criminal proceeding
Claims &
Contentions
3.3 Candor Toward A lawyer shall not knowingly: [2] la\vyer must not allow tribunal to be
the Tribunal • Make a false statement of fact to a tribunal or fail to correct a false mislead
statement of material fact previously made
• Fail to disclose controlling legal authority that is directly adverse or not [6] Steps to take if lawyer knows that the
disclosed by opposing counsel client intends to testify falsely or introduce
• Knowingly offer false evidence false evidence
Lawyer shall:
• Take remedial measures when they later find out a witness has lied [8] La..,vyeris only prohibited from offering
Lawyer may: evidence known to be false. Knowledge can
• Refuse to offer evidence reasonably believed to be false (excluding be inferred from the circumstances
criminal matters)
If the lawyer knows person intends to engage, is engaging, or has engaged in [l OJRemedial Measures - steps that
criminal or fraudulent conduct related to proceeding the la..,vyershall take constitute remedial measures
remedial measures ➔ disclose to tribunal
[13] Duration of Obligation
This includes disclosures of confidential material under 1.6 ➔ duty ends
when proceeding is concluded In re Seelig
Penthouse lnt'l Ltd V. Playboy
In an ex parte proceeding a lawyer shall inform the tribunal of all material U.S. v. Litchfield
facts known to the lawyer to enable tribunal to make informed decision People v. Andrades
(adverse+ beneficial facts), including the existence of witness. EX: filing a United States v. Thoreen
TRO
3.4 Fairness to A Lawyer shall not: [2] handling evidence, temporary custody for
Opposing Party & • Unlawfully obstruct another parties access to evidence or alter, destroy or investigatory purposes
Counsel conceal a document having potential evidentiary value
• Falsify evidence [3] it is not improper to pay a witnesses
• Knowingly disobey an obligation under court rules expenses or an compensate an expert witness
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• Make frivolous discover request or fail to produce discoverable materials
• At trial, allude to irrelevant matters, assert personal knowledge of facts In reZawada
except when testifying as a witness, or state a personal opinion
• Request a person to refrain from voluntarily giving relevant info unless:
(1) person is a relative/employee/agent and (2) reasonably believes
persons interests will not be adversely affected
3.5 Impartiality & Lawyer shall not: [4] belligerence - decornm
Decornm of the • Seek to influence a judge, juror, or prospective juror by means prohibited
Tribunal by law
• Communicate ex parte with judge/juror during proceeding
• Communicate with juror or prospective juror after discharge of jury if: ( l)
the juror has made it known they don't want to talk; (2) the
communication involves misrepresentation, coercion, duress or harassment
• Engage in conduct intended to disrnpt a tribunal
3.6 Trial Publicity Lawyer shall not make extrajudicial statements regarding a proceeding if [3] the rnle applies only to la\vyers who are
la\vyer reasonably knows it will be disseminated to public and will materially or have been involved in the investigation or
prejudice adjudicative process litigation of a case, and their associates. The
rnle precludes legal analysts
A la..,vyermay state:
• The claim or defense, identity of persons [5] Subjects more likely than not to have
• Information in public record prejudicial affect on a proceeding review 1-6
• Investigation is in progress
• Scheduling of litigation
• Request for assistance to get information [7] Extrajudicial statements made in response
to other parties adverse statements
• Warning of danger where likelihood of substantial harm is present
In criminal cases (can state above and):
• Identity, residence, occupation and family status
Gentile v. Nevada State Bar
• If accused has been apprehended or information to aid in apprehension
• Fact, time, place of arrest
• Identity of investigation or arresting officers
Lawyer can make statement to press to counter recent statement that
prejudices client (must limit information to that necessary to mitigate
damage)
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Responsibilities • Refrain from prosecuting charges without probable cause administration of justice when lawyer
of a Prosecutor • Make reasonable efforts to get accused counsel systematic abuse of prosecutorial discretion
• Not seek a waiver of important pretrial rights from an unrepresented constitute an 8.4
person
• Make timely disclosure of all evidence tending to negate guilt of accused [2] should not attempt to obtain waivers of
or mitigate offense preliminary hearings or other important
• Disclose to defense and tribunal all known unprivileged mitigating pretrial rights
information
• Not subpoena a lawyer in criminal case about past or present client unless: [5] Prejudicial statements in relation to 3.6
(1) the information is not protected; (2) evidence is essential to case or on-
going investigation; and (3) no other feasible alternative to obtain info. [6] Duty to control investigators, etc. "even
when such persons are not under direct
Refrain from making unnecessary extrajudicial statements that have a supervision of the prosecutor"
substantial likelihood of heightening public condemnation of the accused and
take reasonable care to ensure that investigators, law enforcement, [8] Prosecutor must seek to remedy
conviction
employees, and other persons in their control make no such statements
When new, credible material evidence that tends to show convicted t!,,is Gentile v. Nevada State Bar
innocent prosecutor shall: Atty essentially called the police (potential
witnesses) corrupt. NV SC called it
• Promptly disclose evidence to appropriate court/authority
prejudicial of material witness ...brought
• If conviction obtained in prosecutors jurisdiction: ( l) promptly disclose
charges after conclusion of trial
evidence to t!,,; (2) undertake fwther investigation to determine whether t!,,
is innocent
When prosecutor knows t!,, was falsely convicted he shall seek to remedy the
conviction
TRANSACTIONS WITH PERSONS OTHER THAN CLIENTS
4.1 Trnthfulness in In the course of representing a client a lawyer shall not knowingly
Statements to • Make a false statement of material fact or law to a third person
Others • Fail to disclose a material fact when disclosure is necessary to avoid criminal or fraudulent act by a client (unless 1.6)
4.2 Communication In representing a client a lawyer shall not: [4] parties to a matter may communicate
with Persons • Communicate about the subject of representation with a person known to directly with each other
Represented by be represented by another lawyer in the matter; unless:
Counsel • The lawyer has consent of the other lawyer or is authorized by law or court [7] constituent of organization
order
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4.3 Dealing with When dealing on behalf of a client with a person who is not represented by counsel a lawyer shall not:
Unrepresented • State or imply that the lawyer is disinterested
Persons • If lawyer knows or reasonably should know that person misunderstands lawyers role lawyer shall make reasonable efforts
to correct the misunderstanding
The lawyer shall not give legal advice to an unrepresented person other than to secure counsel if interests of person are
adverse to client
4.4 Respect for Lawyer shall not: [2] Prompt notification required but not
Rights of Third • Use means with no substantial purpose other than to embarrass, delay, or additional steps to return information
Persons burden a third person, or
• Use methods of obtaining evidence that violate persons legal rights
A lawyer who knows or should know that they have received documents by
mistake shall promptly notify sender.
LAW FIRMS & ASSOCIATES
5.1 Responsibilities A partner in a law firm (or equivalent lawyer) shall make reasonable efforts to [5] Duty to remedy
of Partners, ensure that reasonable measures are in place to ensure conformity with the
Managers, & rules of professional conduct
Supervisory
La\vyers A la\vyer directly supervising another lawyer shall make reasonable efforts to
ensure conformity with these rnles
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• Associate with licensed lawyer
• Reasonably related to pending or potential matter before tribunal in
jurisdiction and granted authorization by law to practice
• Pending or potential arbitration, mediation, or other alternative dispute
resolution proceeding ➔ arising out of practice in barred jurisdiction
• Not above but ➔ arising out of practice in barred jurisdiction
Lawyer not barred in jurisdiction may provide legal services if:
• Works for an organization (in-house counsel) and does not need pro hac
vice admission; or
• Lawyer authorized by federal law to provide services
5.6 Restrictions on Lawyer shall not enter into agreement limiting right to practice unless
Right to Practice • Retirement benefits, or
• Restriction as apart of settlement of a client controversy
PUBLIC SERVICE
6.2 Accepting Lawyer shall not seek to avoid appointment by tribunal expect for showing of [2] Good cause exists if lawyer can not
Appointments good cause: handle matter competently
• Representation likely to result in violation ofRPC or law
• Financial burden too great
• Repugnant
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Lawyer shall not give anything of value for a person recommending lawyer
services except that a lawyer may:
• Pay reasonable advertising costs
• Pay usual charges for not-for-profit or qualified referral service N.Y Code of Prof. Responsibility
• Pay a law practice ( 1.l 7) §1200.38[DR 7-107.] Trial Publicity
• Refer clients to another lawyer or Nonlawyer professional pursuant to a
reciprocal agreement that is: (1) not exclusive and (2) informed consent
given by client
• All ads must contain name and office of at least one lawyer or firm
responsible for its content
7.3 Direct Contact A la\vyer shall not in-person, telephone, real-time electronic contact solicit professional employment from prospective client
with Prospective when significant motive for solicitation is lawyers pecuniary gain; unless person contacted:
Clients • Is a lawyer
• Family, close personal, or prior professional relationship
Lawyer shall not solicit employment by fil!Ymeans if:
• Prospective client has made it clear they do not want solicitations
• Solicitation involves coercion, duress or harassment
Every solicitation to a person known to be in need of representation must include the words "Adve11ising Materials" on
outside envelope (at beginning and end ofrecorded communication) unless recipient is lawyer, family, etc.
Lawyer may participate in prepaid or group legal services that uses otherwise prohibited means of communication for persons
not known to need legal services
MAINTAINING THE INTEGRITY OF THE PROFESSION
8.1 Bar Admission & • Lawyer shall not lie on bar examination or application [l] material false statement in connection
Disciplinary • Fail to disclose fact necessary to correct misapprehension known to have with an application for admission it may be
Matters ansen basis of subsequent disciplinary action
• Knowingly fail to respond to a lawful demand for information; except for
confidential info protected by 1.6
8.3 Reporting A la\vyer who knows that another la\vyer has committed a violation shall inform the appropriate professional authority
Professional
Misconduct A la\vyer who knows that a judge has committed a violation that raises substantial question as to judges fitness shall inform
appropriate authority
This rule does not require disclosure of information protected by 1.6 gained during la..,vyerassistance program
8.4 Misconduct It is professional misconduct for a la..,vyerto: [2] Pattern of repeated offenses, even ones of
• Violate or attempt to violate the rules of professional conduct or minor significance when considered
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knowingly assist or induce another to do so separately, can indicate indifference to legal
• Commit a criminal act that reflects adversely on honesty, etc. obligation
• Engage in conduct that is prejudicial to the administration of justice [3] a la\vyer who, in the course of
• Engage in conduct involving dishonesty, fraud, deceit, or representing a client, knowingly manifests
misrepresentation words/conduct, bias or prejudice based on
• State or imply the ability to improperly influence gov't agency or to race, sex, religion, national origin, disability,
achieve results by means that violate these rules age, sexual orientation or SES, violates
• Knowingly assist a judge or judicial officer in conduct that violates rules paragraph (d)
or law
Cincinnati Bar Ass 'n v. Statzer- 8.4(c)
In re Gatti - 8.4(c)
8.5 Disciplinary Lawyer is subject to discipline in jurisdictions where:
Authority, Choice • Lawyer is barred
ofLaw • Provides or offers to proved legal services
Lawyer can be subject in both jurisdiction for the same conduct
Choice of law
• When conduct involves pending case ➔ rules of that jurisdiction apply
• For any other conduct the rules for that jurisdiction apply unless predominate affect of conduct is in a different jurisdiction
Lawyer shall not be subject to discipline if follows laws of jurisdiction where reasonably believes predominate affect will
occur.
CODE OF JUDICIAL CONDUCT
Rule 2.15 - Responding to D. A judge who receives information indicating a substantial likelihood that a la\vyer has committed a violation of the Rules
Judicial and La..,vyer of Professional Conduct shall take appropriate action
Misconduct
Rule 1.2 - Promoting A judge shall act at all times in a manner that promotes pubic confidence in the independence, integrity, and impartiality of
Confidence in the Judiciary the judiciary, and shall avoid impropriety and the appearance of impropriety.
18 U.S.C.A. §207(a)(l)- Permanent restriction to knowingly influence via communication or appearance before any agency, court, or court-martial of
Permanent Restrictions on the US or DC in connection with a particular matter that
Former Officers, employees • US or DC has a direct and substantial interest
of Executive & Legislative • Which the person has participated personally and substantially and
Branches • Which involved a specific party or specific parties at the time of such participation
18 U.S.C.A. §207(a)(2)-2 2yr ban on appearing before any agency, court, court- martial US or DC on behalf of any other person in connection
yr Restrictions for former w/particular matter
managers • In which US or DC has a direct and substantial interest
• That one knows or reasonably should know was actually pending under his or her official responsibility 1 yr prior
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ending employ w/US or DC
• Which involved a specific party or parties at the time it was so pending
18 U.S.C.A. §207 (c)-1 yr 1 year ban on appearing before the agency, court, court- martial of US or DC where you worked on behalf of any other
ban Restrictions for ANY person for any reason
employee
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