Notes

FL BAR Professional Book Professionalism: Pursuit and practice of the highest ideals and tents of the legal profession Ingredients - Character - Competence - Commitment - Civility Normally L isn’t subject to FL Bar disciple for violation professional expectation, but FLSCOTUS said unpro behavior can violate ethics std in FL Rules of pro conduct (ROPC) Standards for professionalism - Expectations - Oath of Professionalism - Creed of professionalism - FL regulating FL Bar - FLSC decisions Substantial/repeated violations of the Std is unpro conduct If conduct doesn’t rise to level of violating FLROPC can be handled in an informal process - Allows anyone to initiate a complaint with the FL Bar/Local Pro panel - Panel made up of Ls in the circuit - Can resolve complain by providing remedial guidance (if needed) - Can’t discipline a L - Can refer to the matter to the FL Bar to investigate if this violate FLROPC There can be additional guidelines from courts/local bar associations Creed - Revere the law/judicial system/public and private uphold dignity and esteem - Further pro’s devotion to public service and public good - honor/integrity/fair play - No misstate/distort/improperly exaggerate any fact/opinion and won’t use silence/inaction to mislead anyone - Assure just,speedy, and inexpensive determination of every action and resolution of every controversy - Respect time and commitment of others - Be diligent and punctual in communicating and fulfilling commitments - Will exercise ind judgment and won’t be governed by a C’s ill will/deceit - Word is my bond Oath of admission to FL BAR - Support Cons/FL Con - Respect due to courts/judicial officer - Wont counsel/maintain any suit/proceeding to be unjust, unless i honestly believe its debatable - Won’t mislead anyone/no false statement of fact/law - Keep confidentiality; won’t accept compensation in connection with their business without their knowledge and approval - I will be fair, integrity, civil, public and private - committing to not engage in any behavior that could harm another person's character or reputation unless it is necessary for a fair and just legal case - never reject or ignore the cause of those who are defenseless or oppressed due to personal reasons. Not to delay any person's cause for the sake of financial gain (lucre) or out of spite (malice). MRPC

PREAMBLE Ls serve as C re, officers of the legal system, and public citizens Roles Ls perform for Cs: Legal advisor, advocate on C position, negotiator seeking favorable ethical results, and evaluator assessing and reporting on legal affairs. Ls may act as impartial 3rd-parties to facilitate dispute resolution, with specific rules governing these roles and other non-practicing legal capacities, emphasizing ethical conduct in all areas, including non- professional ones. L must demonstrate competence, promptness, and diligence, maintaining C communication and confidentiality, unless disclosure is mandated or allowed by professional rules or law. A L's actions should adhere to legal requirements, respecting the legal system and its participants, using legal procedures for legitimate purposes only, and challenging official actions when necessary while supporting legal processes. Ls should work to improve the law, access to justice, and legal service quality, educating themselves beyond C needs, advocating for legal reform, and promoting public understanding and support for the legal system, especially aiding those with limited access to legal resources. Ls' professional responsibilities are outlined in the ROPC, law, personal ethics and peer respect, striving for excellence and public service within the legal profession. Roles generally align harmoniously for zealous C rep, justice, confidentiality COI normal, requiring professional and moral judgment within the FW of the ROPC The legal profession is self-governing, tied to government and law enforcement; courts largely overseeing professional regulation. Reduces the need for government oversight and helps maintain the profession's independence, crucial for challenging legal authority abuses. Self-governance responsibilities, ensuring that regulations serve the public interest and not just the profession's, with every L accountable for following and promoting adherence to these rules. SCOPE Rules interpret based on reference Some imperative (shall/shall not) Permissive : May; has discretion Other rules define nature of relationship between L and others Comments provide “ should ” as guidance Context based on court rules/statutes relating to matter of it/laws defining special obligation/substantive and procedural law FW for ethical practice of law; not exhaust all ethical consideration Broader legal principles and laws determine whether there is relationship between C and L - Most rules attach if C asks legal advice and attorney agrees - Some such as confidentiality (1.6) attach when L agrees to consider whether a C-L relationship shall be established - Gov Ls may have different roles/responsibilities when comparing - Ex : Gov L can decide to settle or appeal/supervise agencies Failure to comply with an obligation or prohibition imposed by a Rule is a basis for invoking the disciplinary process (action based on the facts & circumstance at the time of the conduct and recognizes Ls may have incomplete evidence of the situation) - Violation alone doesn’t give right to cause of action against a L or presume legal duty has been breached. - Violating MRPC can lead to nondisciplinary remedies (not disqualify L) MRPC 8.1 : When applying to the bar or dealing with disciplinary issues, an applicant or L must: a) Avoid deliberately making false statements about material facts. b) Not omit crucial facts necessary to correct any misunderstanding they know exists, and must respond to legitimate requests for information from admission or disciplinary authorities, with the

4) Are not within paragraphs (c) (2) or (c)(3) and arise out of or are reasonably related to the L's practice in a jurisdiction in which the L is admitted to practice. d) Ls licensed in other U.S. or foreign jurisdictions, not suspended or disbarred, can provide long-term services if: (1) They’re working for their employer or its affiliates, and the work doesn’t require special local court permission. (2) The services are allowed by federal or other laws in that jurisdiction. e) For purposes of paragraph (d): 1) Foreign Ls must be in good standing in their home jurisdiction and regulated by a professional body. 2) In-house counsels from other countries can practice under this rule if allowed by the highest court of the jurisdiction. Chapter 2: THE LEGAL PROFESSION: REGULATION, DISCIPLING AND LIABILITY A. Institutions that regulate Ls The legal profession is largely self-governing/Occasional government regulation is obviated. Why? - Ls sometimes challenge the validity of statutes and regulations. - Defend people charged with crimes by the state. 1. The highest state courts Most law is made by legislatures, courts, and administrative agencies. Is this also true of “L law”? In most states, the highest court of the state, not the legis, adopts the rules of conduct that govern Ls. Courts rely heavily on model rules produced by the American Bar Association. Highest court in each state enforces its ethics rules by disciplining Ls who violate them. - Often delegate primary responsibility for enforcement to disciplinary agencies run by Ls. How do state courts regulate Ls? - Adopt ethics codes and court procedural rules that govern Ls; - Aet & implement standards for licensing Ls, including edu and character requirements; - Supervise agencies that investigate and prosecute complaints of unethical conduct by Ls; - Oversee admin judicial bodies that impose sanctions on Ls who violate the ethics codes; and - Decide appeals in L disciplinary cases. Why have courts assumed primary responsibility for regulating Ls? Inherent powers doctrine Administer the judicial system and need to govern the conduct of those who appear before them.13 Can the legislature pass a bill to change a court rule, like when it wants to change the common law? Negative inherent powers doctrine : Their regulatory authority over Ls precludes regulation of Ls by other branches of gov Some state court decisions acknowledge that all three branches of gov play roles in regulating Ls. 2. State and local bar associations Does each state have only one bar association? No. Most states have one central org that performs a variety of regulatory and pro leadership functions, CA has two Janus v. AFSCME . Might be public splitting central orgs soon (first amendment right) 3. L disciplinary agencies Ls at disciplinary agencies (often called bar counsels, disciplinary counsels, or ethics counsels ) investigate and prosecute misconduct that violates the state ethics code. - May order “restitution to persons financially injured, disgorgement of all or part of the L’s or law firm’s fee, and reimbursement to the C security fund. 4. American Bar Association - ABA ethics rules are called the Model Rules of Professional Conduct (MRPC) 5. American Law Institute - produces summaries of the law called Restatements

- Covers civil and criminal liability of Ls to Cs and third parties, standards for disqualification of Ls for conflicts of interest, ethical rules for violation of which a L may be subject to discipline, evidentiary rules on attorney-C privilege, the law of unauthorized practice, and many other topics. - Black-letter rules : summarize the rules followed in a majority of jurisdictions. - The Restatement is not law Is the Restatement consistent with the Model Rules? Not always - Liability rules differ from the ethics codes or authors of the Restatement do not agree with the ABA about what the rules should be - Restatement is more specific than the Model Rules. - Ex : Rule 3.3(d) requires a L to reveal all material facts to the judge, even facts adverse to her C. The rule does not explicitly create an exception for privileged information, but the Restatement takes the position that privileged information is exempt from this requirement If state ethics rules and Restatement are inconsistent, should a L always follow the state rule? - Not simple. If a state ethics rule clearly requires or prohibits certain conduct, in most cases a L should follow the rule. - Maybe no clear guide; seek more advice 6. Federal and state courts - Court may hold a L in contempt/impose sanctions for obstructive behavior during discovery. Sanctions include fines, fee forfeiture, or other penalties. - The judge should report the misconduct to the L disciplinary agency if it violates an ethical rule that “raises a substantial question regarding the L’s honesty, trustworthiness, or fitness as a L in other respects. - Each juris have their own std and ethical rules/regulate Ls/review lower court decisions Is a member of a state bar automatically allowed to practice in the federal courts of that state? - No, usually apply and pay a fee 7. Legislatures Can make statute/const/regs that apply L or specific to them Ex: Criminal law/securities laws/banking laws… Ex : States have a statute that makes it a criminal offense to engage in the unauthorized practice of law Are Ls who testify at legislative hearings or meet with legislators on behalf of Cs required to comply with additional statutes and regulations? Yes some cases - Ex : If L engage in legis advocacy for profit, he must register as lobbyist - Register different process for lobbyist that rep foreign nations 8. Admin Agencies Do Ls need separate admission to practice before an administrative agency? - Yes in some cases ( Ex : Cs in admin adjudication like SS or immigration hearing) Do administrative agencies impose additional ethical or procedural rules on Ls who appear before them? Yes such as have disclosure (Ex: immigration review have their own ethical rules) - Consumer Financial Protection Bureau has authority to enforce the federal consumer debt collection law against attorneys who have annual revenues of more than $10 million. 9. Prosecutors Increase in disciplinary agencies and staff quality to investigate Ls (efficient) 10. Malpractice insurers These companies also “regulate” the Ls they insure. Ex : Develop a system to evaluate potential COI 11. Law firms and other employers Ethics counsel/loss prevention counsel/ethics committee : Large firms developed a comprehensive “ethical infrastructure” to provide Ls and nonLs with training, offer expert advice about ethics and liability questions, and prevent COI. 12. Cs Agencies like gov can regulate - Ex : Fed gov agencies prohibits block billing - Ex : Inst Cs have policies to make oversight on their laws (outside auditors) B. State ethics codes

6) Admin board evaluates the adjudicator's findings and recommendations, and makes a decision 7) Decisions made by this board can be appealed to the state's highest court. Do the L disciplinary agencies investigate most of the complaints and punish violators? No due to limited resources. Some jurisdictions dismiss up to 90% of all complaints, primarily because the alleged conduct does not violate professional conduct rules, leaving the public without practical remedies. Disciplinary authorities may avoid certain types of cases. - Agencies may not pursue charges of incompetence against criminal defense attorneys, legal malpractice, complaints related to ongoing litigation, incivility, or fee disputes. Other problems include: ● Most disciplined Ls are sole practitioners or from small firms. ● Formal discipline is disproportionately imposed on minority group members. ● Most complaints come from Cs, leaving much misconduct unknown. ● Many state disciplinary systems are underfunded and overwhelmed. ● In California, a backlog led to inappropriate settlements, potentially allowing severe offenders to continue practicing. ● The purposes of disciplinary systems are often unclear, with tensions between punitive, deterrent, and rehabilitative goals. Are some states making significant improvements in their disciplinary systems? Yes, increasing transparency and offering corrective programs for Ls. Ex: CA posts the names of attorneys charged with ethics rule violations on the internet before the charges are adjudicated. Ex: AZ has comprehensive diversion program. - Addresses complaints involving issues like neglect, lack of diligence, poor communication with Cs, and ineffective law office management. - Trains and educates Ls to improve their skills to help them prevent future incidents. If the disciplinary agencies tend to underenforce the rules, does that mean that Ls need not worry about compliance with the ethics rules? No 1) While not every violation is prosecuted, a significant number of cases are pursued each year. 2) Being accused of unethical behavior can harm a L's pro reputation, regardless of outcome. 3) Failing to comply with ethics codes can lead to legal malpractice liability 4) Ethical violations can have serious employment consequences. (fire/not hire) Is there a statute of limitations on disciplinary violations? No. Rule 32 exempts all SOLs 1. Grounds for Discipline What kinds of professional conduct can result in discipline? 1) Misappropriating C funds : Using Cs' funds for personal or unauthorized purposes. 2) Commingling funds : Mixing law firm and C funds in the same account. 3) Missing court filing deadlines : Failing to submit legal documents within the required timeframe. 4) Failure to respond to C communications : Ignoring or not adequately responding to Cs' inquiries or communications. 5) Criminal activities : Engaging in activities like mail fraud and tax evasion. 6) Neglecting C cases : Often linked to issues like substance abuse, resulting in inadequate attention to Cs' legal matters. Ex : IL The most frequent issues leading to disciplinary charges 1) Neglect of C cases 2) Failure to communicate with Cs 3) Excessive or improper fees, fraudulent activities, and mishandling C or third party funds. Ls can also be disciplined for personal misconduct. - Spanking his secretaries and Cs/threatening to spank/sexually assaulting Cs. - Publicly criticizing a judge in a blog post.

Can a L be disciplined for advising a C about proposed conduct that may be criminal or fraudulent? A L may advise a C who wants to know whether a possible course of action is lawful A L may be disciplined if he guides the C as to how to violate the law or helps the C to engage in conduct that is criminal or fraudulent. Rule 1.2(d): - A L must not advise or help a C in activities that are known to be criminal or fraudulent. - Excludes L negligent/maybe reckless conduct - A L is allowed to talk with a C about the legal outcomes of any planned actions. - A L can guide or support the C in sincerely trying to understand if the proposed action is lawful, and to clarify the law's details and how it applies But what constitutes assistance? Comments 9 and 10 to Rule 1.2 L's conduct in advising Cs: - Comment 9 : While a L cannot knowingly help or advise a C to commit a crime or fraud, they can discuss the possible legal outcomes of the C's actions. - Comment 10: Situations where a C's action is already in progress. The L must be particularly careful not to assist in any illegal activities. Do not create or provide fraudulent docs or advise on how to hide illegal activities. If a L initially thought a C's action was legal but later finds out it's illegal, they must stop any assistance in that action. A L could be accused of fraud if he prepared a fraudulent doc , even if he did not know that some of the information in the document was false. Circumstantial evidence Law other than the ethics rules might require a L to verify the information that the C provides. T rouble for advising to engage in criminal/fraudulent act or how to evade detection Ex : Assisting fraud - Destroying docs/advising them to do it - Conceal the identity of the owner of a business for a liquor license - Advising a C to leave the state 1.0(d) Fraud : Conduct that is fraudulent under the substantive or procedural law of the applicable juris and has a purpose to deceive.” Generally, fraud involves an intentional misrep of a material fact (a lie or a purposeful deception) Under what circumstances might a L commit or assist a fraud by failing to state a fact (omission) or by telling a half-truth? Omissions & half-truths can constitute fraud if intended to deceive another person Rule 4.1(b) : Bars a L from knowingly failing to disclose a nonconfidential material fact when disclosure is necessary to avoid assisting a C’s fraudulent act - A L must not deliberately hide important facts that are not confidential when those facts are needed to prevent helping a C commit fraud. Rule 4.1 Comment 1 : misrepresentations can also occur by partially true but misleading statement s or omissions that are the equivalent of affirmative false statements. Would a L assist a fraud or crime in violation of Rule 1.2(d) if he adheres to a state law that is at odds with a federal one? - In CO, weed is legal. State court adopted Rule 1.2 comment that it’s not a violation for a L to provide legal advice to businesses that sell recreational marijuana, but the L needs to advise their C about the federal criminal law - Federal court in CO said that a L may advise a C about the applicable state and federal law but stops short of permitting a L to assist a C in conduct that is permitted by state law but barred by federal law - Ex : A L in CO can tell a C about both CO's laws that allow selling marijuana and the federal laws that make it illegal. He can't help the C set up or run a marijuana business. Can a L be disciplined for conduct that has nothing to do with the practice of law? YES - Ex : Domestic violence/failure to pay child support/drunk driving,

4) If a L is disciplined in one state, they will likely be disciplined other states Can a L be disciplined for engaging in discriminatory behavior? Yes. Rule 8.4(g) : Prohibits Ls from engaging “in conduct that the L knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law To what extent can disciplinary violations be traced to substance abuse and other addictive behavior by Ls? 50-75% major disciplinary cases involve Ls with substance abuse problems 2. Reporting misconduct by other Ls a. The duty to report misconduct Rule 8.3 Professional Misconduct Reporting a) (a) A L who knows that another L (or adversary, public official) has committed a violation of the MRPC that raises a substantial question as to that L’s honesty, trustworthiness or fitness as a L in other respects, shall inform the appropriate professional authority. . . i) A L who “knows” of a violation by any other L must report it to the bar disciplinary agency. ii) Exceptions : 1) Not all violations must be reported ; only those raising a “ substantial question ” of the L’s “honesty, trustworthiness or fitness.” 2) Comment 2 A report need not be made if it would reveal information required to be kept in confidence under Rule 1.6. But a L should encourage a C to waive confidentiality and permit reporting if that would not substantially prejudice the C. (a) Ex : L finds out that their C has committed a violation, but reporting this would breach C confidentiality under Rule 1.6. The L can't report this violation because it's confidential. However, if the L believes that reporting could be beneficial and not greatly harm the C, they should advise the C to consider waiving confidentiality. If the C agrees to this waiver, the L can then report the violation without breaking confidentiality rules.ddddddd 3) Comment 5 A L who learns info about misconduct while participating in an “approved Ls assistance program” is exempted from the requirement to report that info b) (b) Requires reporting misconduct by judges c) (c) A L doesn't have to share info that is supposed to be kept confidential according to Rule 1.6 , or any info they learned while taking part in a program designed to help Ls. i) Ex : If a L attended a support group for Ls dealing with stress and shared some personal issues, they wouldn't have to reveal those details in a legal case because they were gained through a confidential program for Ls' well-being. Must Ls in a state with a reporting rule report serious ethical violations by other Ls? Yes Does this mean I have to blow the whistle on my boss if he does something unethical? Yes Is a L required to report L misconduct if the report would require disclosure of confidential information? No. (C can’t veto or receive permission to report) A L is not required to report 1) Info protected by the confidentiality rules and 2) Info learned while participating in a Ls’ assistance program. b. Ls’ responsibility for ethical misconduct by colleagues and superiors Rule 5.1 : A partner or supervising L is responsible for ensuring compliance with the ethical rules by subordinate Ls and explains when a senior L may be subject to discipline for the conduct of a subordinate L.

Rule 5.2 : When a subordinate L is responsible for his own conduct, and under what circumstances he may follow orders without fear of discipline. Rule 5.3 Explains the responsibilities of Ls who supervise nonL employees for ensuring that the employees comply with the rules of professional conduct. Explains when a L may be subject to discipline based on the conduct of a non L employee. - Ex: Andre hired a person to handle the firm's finances. When mistakes occurred, including overpayments to Cs, Beauregard replaced the bookkeeper and improved the software. Although no money went missing, his law license was suspended for six months for not supervising non-L employees properly. Rule 5.1 Responsibilities of Partners, Managers, and Supervisory Ls a) A partner shall make reasonable efforts to ensure all Ls in the firm conform MRPC i) Comments 2 and 3 L managers must set up systems to prevent ethical problems. - Check for COIs/manage C funds/Provide continuing edu in legal ethics. - Small firms need “informal supervision and periodic review” - Large firms may require “more elaborate measures.” ii) Comment 3 Law firm : Are legal services orgs/legal dept of corps, gov, and other orgs b) L having direct supervisory authority shall make reasonable efforts that other L conforms to the MRPC i) Comments 6 and 7 . If a sub L commits an ethical violation, the supervising L is not responsible for that violation if the supervisor did not direct or know about it. Violation could reveal a breach of the supervisor’s duty under Rule 5.1(b) to make reasonable efforts to prevent violations. c) A L shall be responsible for another L’s violation of the MRPC if: 1) The L orders the conduct 2) The L is a partner or has direct supervisory authority and knows of the conduct but fails to take remedial action a) The directly supervising partner is not the only partner who may be responsible for a violation. Any partner in the firm who knows of the improper conduct and fails to take action to reduce or prevent the harm also commits a violation. In orgs that don’t have partners, other Ls with “comparable managerial authority” are equally responsible. Rule 5.2 Responsibilities of a Subordinate L a) L must follow the MRPC, even if they were told to do something by someone else i) Comment 1. If a supervisor directed the action, the sub L may be able to prove that he did not actually know that the action was improper. b) Sub doesn’t violate the MRPC if he acts in accordance with a supervisory L’s reasonable resolution of an arguable question of professional duty i) Comment 2. If the supervisor reasonably thinks the conduct is proper, the sub can undertake the action even if he believes otherwise. If the supervisor turns out to be wrong, however, the supervisor could be disciplined. If the supervisor was so wrong that his belief that the action was proper was not reasonable, the sub may be disciplined. Are Ls, then, only partially responsible for their colleagues’ ethical violations? Not entirely. The law does not allow for the discipline of an entire law firm or all its partners if one associate in the firm violates an ethical rule. - Supervising Ls are accountable for the unethical actions of those they oversee if they directed or knew about the misconduct and didn't prevent it. - Other managers within the org can be held responsible if they were aware of the unethical actions. How can a L know whether a supervising L’s decision is reasonable? - Do research and seek advice from someone more experienced Can discipline be imposed on a whole law firm?

2) P suffered some other compensable harm Do some Ls owe fiduciary duties based on something other than a L-C relationship? - Yes. A L may serve as a broker, an escrow agent, an expert witness, an executor, or a trustee Can a L be disciplined/sued for malpractice/criminally prosecuted, for one act of misconduct? Yes. Helping a C commit a crime Could a L be liable to a person who was not a C? If the L is found to have owed a duty to the third person, and if it is shown that harm was caused by improper conduct by the L, some states will find the L liable to the third person - Ex : if a L was supposed to write a will for a C, and their errors in the will document led to a third party not receiving their intended inheritance, that L might be liable in certain states. 2. Malpractice insurance Are Ls required to carry malpractice insurance? None except OR Can prospective Cs find out which Ls have malpractice insurance? - Yes; 25 states require Ls to disclose (to the BAR or Cs) What kinds of mistakes are unlikely to be covered by a malpractice insurance policy? - Intentional acts (fraud) or other dishonest conduct (like billing or expense fraud) - Orders of restitution of legal fees, fines, or penalties - Orders to pay punitive damages (some states, Ls can purchase separate coverage for these) - Conduct of Ls in other roles, such as notary public, title agent, fiduciary, or T - Conduct of Ls who represent businesses of which they are also part-owners - Intra-firm disputes, such as liability to former partners or former employees 3. Other civil liability A L could be liable for - Advising or assisting unlawful C conduct/Stealing/Lying/IIOED/ - Breach of K/violation of reg statutes a. Liability for breach of contract - L negotiates an unfair fee agreement with a C through dishonesty or unfair tactics, - L negotiates a settlement based on false info, settlement could be voided - L has a business deal with a C without fully disclosing their own interests in the deal, and their inability to provide impartial advice, that business transaction might be invalidated. b. Liability for violation of regulatory statutes Adhere to fed/state/local/reg… 4. Disqualification for conflicts of interest In deciding to disqualify Ls from alleged COI, do courts interpret the state’s ethical codes? - No. Courts consider ethics rules as a reference but are guided by their own CL standards E. Criminal liability Talk to professor about this “Two of the Ls suggested that the money could be funneled through their firm’s bank accounts, and that the firm would not have to tell authorities where the funds originated” F. C protection funds - State C protection fund in case L can’t pay up (Ls’ Fund for C Protection) - 144k claims filed 1980 - 2016 - Guidelines to max amount - The fund sues the offending Ls Do the C protection funds take initiatives to prevent Ls from stealing C funds? Yes - A model trust accounting and financial record-keeping rule that guides Ls in the care and management of C funds; - Banks notify the L regulators when a L withdraws more funds from a C trust account than have been deposited into the account; - Conduct random audits of C trust accounts maintained by Ls - Provide technical assistance to Ls who lack skills in law practice management;

- Ls’ assistance programs: Counseling and guidance to Ls who struggle with alcohol or drug abuse, mental illness, learning disabilities, or other problems CHAPTER THREE Relationship between Ls and Cs A. Formation of the L-C relationship Ind typically meet with a L to discuss their problem, evaluate if the L can help L clarifies the confidentiality of the A-C relationship and fee structure. CIO checks are conducted Ls might decline due to COI, lack of expertise, or personal reasons. Should Ls investigate prospective Cs before agreeing to represent them? Maybe You can presume honesty and trust. Maybe research if needed to verify Can a L accept legal work that requires knowledge of an area of law with no experience? - Yes, if the L compensates for inexperience through study or affiliation with another L. - Rule 1.1 requires Ls to provide competent representation - 1.1 Comment 2 : Can take on an unfamiliar field if he has the time & resources to get up to speed. Must a L turn down a request if he lacks time, expertise, interest in the matter? Take on work in a new field only if she does the necessary study. May a L who does extensive self-educ to prepare for a C bill the C? - May be subject to discipline if the L bills the C for spending an unreasonable amount of time on research, especially if the research does not lead to worthwhile progress in the matter Can an associate who is working in an unfamiliar field assume that her work is competent if she keeps a partner informed about what she is doing? Not necessarily. - An associate who needs guidance should insist on genuine supervision. - Ex : Firm was hired to assist with franchise sales. Partner falsely claimed expertise, assigned the case to an inexperienced associate, and failed to communicate important legal requirements, resulting in a malpractice lawsuit against both the partner and the associate, citing Rule 1.1. Is a L obliged to represent a C who wants to hire her? general, Ls are allowed the discretion to decide whom to represent Limitations - Pro bono work - 6.1 Comment : Every L has a professional responsibility to provide legal services to those unable to pay. An L fulfills this responsibility by accepting a fair share of unpopular matters or indigent or unpopular Cs - Rule 1.2(b) : The L’s representation of that C “does not constitute an endorsement of the C’s political, economic, social or moral views or activities - Rule 6.2 Courts directs Ls to accept such assignments except for “good cause. - Violation of law or of the ethics rules Rules 1.2 and 1.16. - Can’t “counsel a C to engage, or assist a C, in conduct that the L knows is criminal or fraudulent.” - If the C insists, the L must withdraw from rep the C - Rule 8.4(g) prohibits Ls from engaging in “discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status in conduct related to the practice of law.” What should a L tell a prospective C about the possible downsides of hiring the L before agreeing to do legal work for the C? Inform a prospective C about the possible downsides of hiring them, such as potential costs, alternative options, or the complexity of the case. 2. Offering advice as the basis for a L-C relationship To form a L-C relationship, must the C sign an agreement or pay a fee? No. When a person seeks legal advice/legal services from a L, and the L receives confidences, gives legal advice, or provides legal services, the L may owe some professional duties to the other person Togstad v. Vesely, Otto, Miller & Keefe - Didn’t fee her, tell that his firm lacked medical malpractice expertise, seek another L advice - Didn’t inform about the 2 year SOL for medical malpractice

- Defense counsel should conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. - Efforts to secure info in the possession of the prosecution and law enforcement authorities. Have the standards articulated in Strickland been used to overturn convictions in cases where the defendants’ counsel performed poorly? Yes. Examples - L wrongly thought that certain helpful records were not allowed to be accessed due to state law - A L mistakenly believed he didn't need to seek evidence because he thought the prosecution would automatically share harmful evidence, and assumed the case would be dropped as the rape victim didn't want to continue. - L was incorrect in believing that the state wouldn't cover the cost for an expert ballistics examination due to not realizing a relevant law had changed. Is it ineffective assistance of counsel if a criminal defense L doesn’t know about or advise the C about the immigration consequences of a criminal matter? Yes, it can be considered ineffective assistance if a criminal defense L does not inform a noncitizen C about the risk of deportation from accepting a plea bargain. SC ruled that Ls must accurately advise noncitizen Cs about the immigration impacts of criminal convictions, including possible deportation. Is it ineffective assistance of counsel if a L fails to tell a C about a plea offer or provides bad advice to a C about a plea offer? Missouri v. Frye - 6A requires defense counsel to communicate to a D formal plea offers from the prosecution. - 6A guarantees a D the right to have a counsel present at all critical stages of the criminal proceedings - - D must show a reasonable probability that - D would’ve accepted the plea bargain - Court would have accepted the plea bargain Lafler v. Cooper - 6A guarantees effective assistance of counsel during the plea-bargaining process even if the D ultimately receives a fair trial. - A L’s failure to provide effective assistance of counsel in relation to an offered plea bargain presents a basis for relief if the D can show prejudice and that, but for the ineffective advice, there is a reasonable probability that the plea offer would have been adhered to by the prosecutor and accepted by the court 3. Diligence Rule 1.3 A L shall act with reasonable diligence and promptness in representing a C. - Ex : Return phone calls or file court papers on time - Rule 1.3, Comment 1 : A L must diligently advocate for their C's interests, regardless of any opposition or personal difficulties they may face. Encourages Ls to fight hard for their Cs but clarifies that they don't have to push for every possible benefit or use aggressive tactics. Ls can still be respectful and courteous to everyone involved. 4. Candor and communication a. Is it ever okay to lie? White lies/lies to protect people and your privacy Factors to decide to lie - Is the subject lied about either trivial or private? - Is anyone harmed by the lie?

- Is the purpose of the lie to protect someone? - Does the person lied to have a right to know or a strong interest in knowing the truth? - If there is a reason to tell a lie, can the problem be solved without lying? - If you tell this lie, will you need to tell other lies to cover up the first one? b. Lying versus deception: Is there a moral distinction? What makes a statement immoral is not necessarily its falsehood but the intention to deceive. Omitting info can be morally equivalent to an outright lie if both are intended to deceive. c. The intention of the speaker Truth : Not if the speaker is trying to deceive the hearer, but to whether a statement is factually accurate - Ex: “the sun revolves around the earth” is factually false, or untrue. If a person made this statement, honestly believing it to be true, the statement would be truthful, but still untrue d. Honesty and communication under the ethics rules Do the ethical rules ever allow Ls to lie to or deceive their Cs? The ethics rules explicitly direct Ls not to lie to tribunals or to persons other than Cs. Rule 8.4(c) : prohibits a L from engaging “in conduct involving dishonesty, fraud, deceit, or misrepresentation.” A lie to a C might or might not amount to “fraud” because the ethics rules limit “fraud” to conduct that is fraudulent under the state’s substantive or procedural law - Even if a lie is not “fraud,” however, it may amount to deceit or misrep; ground for pro discipline Rule 1.4 : requires L to provide info to a C about matters that require informed consent, where a C must make a decision, about the status of a matter, and about matters on which the C has requested info (accurate info), important developments in their cases (not every minor event) - Comment 1 : Rasonable communication between the L&C necessary for the C effectively to participate in the representation Rule 1.4 Communication a) A L shall: 1) Promptly inform the C decision or circumstance WRT’s Cs informed consent (defined by R 1.0(e) ) a) Rule 1.7 prohibits Ls from representing two Cs concurrently if the Cs have adverse interests, but permits the representation if several conditions are met, including the informed consent of both Cs 2) Reasonably consult about the means a) Means : Methods, strategies, approaches to achieve the C's goals b) Rule 1.2 gives the L some discretion about the “means” to be used to carry out the representation (as opposed to the “objectives,” which Cs are entitled to decide). But Ls must consult with Cs about these mean i) Ex : A L decides to file a motion to dismiss a case based on a procedural error, after discussing this strategy with the C, who has agreed that avoiding a trial is the main goal. 3) Keep the C reasonably informed a) Comment 3 : Status: Includes “significant developments affecting the timing or substance of the rep b) Ex : If the court’s schedule delays resolution of a case for six months, the L should inform the C. 4) Comply with reasonable requests; and a) Comment 4 If the L cannot respond promptly, she should explain when a response may be expected. Promptly respond to or acknowledge C communications. 5) Consult with the C about any relevant limitation on the L’s conduct when the L knows that the C expects assistance not permitted by the MRPC a) If a C asks a L to claim a tax deduction that the C is not entitled to claim, the L should explain that he cannot do that.

Rule 6.5 L can offer quick help (advice or filling out forms through programs) run by nonprofit groups or courts without needing to thoroughly check for conflicts with other Cs. Do the state bars approve of “unbundled” legal services? Yes - Ls to provide parts of a legal service, such as appearing in court for specific issues or helping with certain legal documents, without taking on a C's entire case - Some states allow ghostwriting May a C in a law reform case waive his right to be informed/consulted about settlement offers? - Yes, a C in a law reform case may waive their rights to be kept informed or to be consulted about settlement offers, provided they are fully informed about this arrangement and give their informed consent, ideally in writing. Contractual modification of a L’s duties: Collaborative law practice Suppose that a divorcing couple is keen to avoid litigation. May they contract with counsel to seek a collaborative rather than an adversarial outcome? Yes Both sides have their own Ls, but everyone commits to a non-fight approach. If they can't resolve issues and must go to court, the original Ls will step down, and the Cs will need new ones or represent themselves C. Ls’ responsibilities as agents Is a L ordinarily an agent of her C? Yes, Ls are agents and Cs are Principals. With exceptions, a C is bound by what the L does/fails to do, despite C’s own actions/culpability - Ex : If a L fails to file a C’s lawsuit within the SOLs, the C loses his right to sue the defendant, even if the C directed the L to file the case on time and even if the L falsely told the C that she had done so Three ways that a person can become an agent of another: 1. Express and implied authority - Cs could tell a L directly to sign a contract or to settle a case. - C may give a L a general instruction that implicitly allows the L to take certain actions - Express authority and implied authority are both considered “actual” authority - Exception : Some states, Ls need express authority to settle disputes on behalf of their Cs 2. Apparent authority - When a C tells a third party that the C’s L has the authority to settle a claim on his behalf, the third party may rely on the L’s subsequent actions, even if the C did not actually authorize those actions. 3. Authority to settle litigation By hiring a L to handle a lawsuit, does a C give the L authority to settle? Few states agree with this Ex : An employee who was wrongfully fired agreed to a $208k settlement through mediation, but later refused to sign it. The court enforced the settlement, ruling the employee's departure and instruction for his L to "handle it" gave the L authority to finalize the agreement on his behalf. D. Who calls the shots? 1. The competent adult C Which decisions may a L make without consulting a C, and which decisions require C consultation? Without consulting a C - Tactical choices: day to day procedural or strategic decisions, like how to phrase a question - Minor admin actions: schedules, request extents… Consulting a C - Whether to file a lawsuit, which court, settle, waive a jury trial, hire expert witness (costs) - Anything that can impact the case (like how to communicate with opposing counsel) L-C consulted about a decision but they disagree about what should be done. Who gets to decide? Decisions That Must Be Made by the C: ● Major Decisions with Profound Consequences

● Financial Decisions Decisions That Can Be Made by the L: ● Tactical and Procedural Decisions : These decisions, which must often be made quickly, such as objecting to a question during a trial. ● Rule 1.2: Outlines that while the C has the right to determine the objectives of the representation, the L has the discretion to decide the means by which these objectives are pursued, subject to the C's informed consent when necessary. 1.2 Scope of Representation and Allocation of Authority Between C and L a) C decides objectives of representation (usually with advice and guidance by the L). L must consult a C as to means used to pursue objectives. Civil case: C decides whether to settle Criminal case: C decides whether — to plead guilty, waive jury trial, to testify b) Rep does not constitute an endorsement c) A L and a C may agree that the L will provide less than the full range of services. The C may prefer this arrangement to reduce costs or for other reasons d) A L shall not counsel a C to engage, or assist a C, in conduct that the L knows is criminal or fraudulent, but a L may discuss the legal consequences of any proposed course of conduct with a C and may counsel or assist a C to make a good faith effort to determine the validity, scope, meaning or application of the law 1.2 and communication requirements of 1.4 allocate decision making between Ls and Cs Rule 1.2 - L may take actions that are “impliedly authorized,” - Does not define “objectives” or say much about what decisions the L may make. - Comment 2: typically trust their Ls' expertise in choosing the methods to achieve their goals, particularly in areas requiring legal knowledge and strategic planning. Restatement: L may decide - To move to dismiss a complaint/to pursue or resist particular discovery requests - Accommodate reasonable requests of opposing counsel; - Object or waive objections to questions during hearings; and what questions to ask a witness - Unless L-C agreed, L, not the C, should make decisions that “involve technical legal and strategic considerations difficult for a C to assess.” If a L and C disagree about decision making in a criminal matter, who gets to decide? Jones v. Barnes : An attorney assigned to represent a criminal defendant on appeal is under no duty to raise every non-frivolous issue. - Concur : Ethically you should do all the nonfrivoulous claims 2. Cs with diminished capacity Rule 1.14 Cs with diminished capacity a) If a C can't fully make decisions for themselves, the L should still try to keep a normal working relationship with them, treating them as much like any other C as possible. b) If the L thinks the C can't protect their own interests because of their condition, and they might get hurt physically, lose money, or face other serious problems, the L can step in to help (talking to people or orgs that can protect the C or even asking a court to appoint someone (like a guardian) to look after the C's rights). c) The L must keep the C's information private, as usual. But, if they have to take action to protect the C, they're allowed to share information about the C, but only as much as is needed to help the C. a. Assessing diminished capacity Comment 6 to Rule 1.14 - L can and should make a preliminary assessment of a C’s mental capacity. - Should consider and balance such factors as: