PROFESSIONAL

RESPONSIBILITY
 PROFESSIONAL RESPONSIBILITY i.

PROFESSIONAL RESPONSIBILITY

TABLE OF CONTENTS

I. REGULATORY CONTROLS OVER ATTORNEYS AND UNAUTHORIZED

PRACTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
A. GENERAL SOURCES OF REGULATION . . . . . . . . . . . . . . . . . . . . . .1
1. State Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
a. State Legislatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
b. State Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
c. State Bar Associations . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
2. Federal Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
a. Federal Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
1) Requirements for Admission . . . . . . . . . . . . . . . . . . . . . . .1
2) Interstate Federal Practice . . . . . . . . . . . . . . . . . . . . . . . .1
a) “Pro Hac Vice” Appearances . . . . . . . . . . . . . . . . . . . .2
b) Continuous Federal Practice . . . . . . . . . . . . . . . . . . . .2
b. Federal Administrative Agencies . . . . . . . . . . . . . . . . . . . . . . .2
c. Federal Government Attorneys . . . . . . . . . . . . . . . . . . . . . . . .2
3. American Bar Association . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
B. ADMISSION TO THE LEGAL PROFESSION . . . . . . . . . . . . . . . . . . . .3
1. Citizenship Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
2. Residency Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
a. Admission on Motion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
b. Residency for Federal Court Practice . . . . . . . . . . . . . . . . . . . . .3
3. Character Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
a. Applicant’s Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
b. Procedural Protections . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
c. Conduct Failing the “Good Moral Character” Test . . . . . . . . . . . . .4
d. Constitutional Limitations on Regulatory Authorities . . . . . . . . . . . .4
e. Attorney’s Duty to Cooperate with Character Investigations . . . . . . . .4
C. DISCIPLINARY PROCESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
1. General Substantive Standards . . . . . . . . . . . . . . . . . . . . . . . . . . .4
2. Disciplinary Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
a. Complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
b. Screening and Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
1) Commencement of Hearing . . . . . . . . . . . . . . . . . . . . . . .5
2) Procedural Protections . . . . . . . . . . . . . . . . . . . . . . . . . .5
3. Forms of Disciplinary Sanction . . . . . . . . . . . . . . . . . . . . . . . . . . .6
4. Effect of Disciplinary Action on Other Court Systems . . . . . . . . . . . . . .6
5. Practice in Multiple States—Choice of Law . . . . . . . . . . . . . . . . . . . .6
a. Choice of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
D. UNAUTHORIZED PRACTICE OF LAW . . . . . . . . . . . . . . . . . . . . . . .6
1. Definition of Unauthorized Practice . . . . . . . . . . . . . . . . . . . . . . . .6
2. Limited Exception Where Professional Judgment Not Required . . . . . . . .7
3. Definition Applied to Specific Activities . . . . . . . . . . . . . . . . . . . . . .7
a. Preparation of Documents . . . . . . . . . . . . . . . . . . . . . . . . . . .7

(MR02/CJC07)
ii. PROFESSIONAL RESPONSIBILITY

1) Real Estate Brokers . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

2) Title Insurance and Escrow Companies . . . . . . . . . . . . . . . . .7
3) Lay Tax Advisers . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
4) Estate Planners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
b. Representation of Clients . . . . . . . . . . . . . . . . . . . . . . . . . . .7
1) Corporations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
2) Collection Agencies . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
3) Representation “In Propria Persona” . . . . . . . . . . . . . . . . . .8
4. Multi-Jurisdictional Practice . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
a. Permissible Types of Temporary Multi-Jurisdictional Practice . . . . . . .8
1) Association with Active Local Lawyer . . . . . . . . . . . . . . . . . .8
2) Special Permission to Practice in Local Tribunal . . . . . . . . . . . .8
3) Mediation or Arbitration Arising Out of Practice in Home State . . .8
4) Other Temporary Practice Arising Out of Practice in Home State . .9
b. Permissible Types of Permanent Multi-Jurisdictional Practice . . . . . . .9
1) Lawyers Employed by Their Only Client . . . . . . . . . . . . . . . .9
a) Foreign Lawyers Advising on United States Law . . . . . . . . .9
2) Legal Services Authorized by Federal or Local Law . . . . . . . . . .9
c. Informing the Client . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
d. Disciplinary Consequences of Multi-Jurisdictional Practice . . . . . . . 10
5. Judges and Court Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
6. Lawyers Aiding Lay Practitioners . . . . . . . . . . . . . . . . . . . . . . . . 10
7. Law Firms and Nonlawyers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
E. LAW-RELATED (ANCILLARY) SERVICES . . . . . . . . . . . . . . . . . . . . 10
1. Services Provided by Entity Controlled by Lawyer . . . . . . . . . . . . . . . 11

II. ESTABLISHING A LEGAL PRACTICE . . . . . . . . . . . . . . . . . . . . . . . . . 11

A. FORMS OF PRACTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
1. Law Firms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
a. Relationship of Lawyers Within the Firm . . . . . . . . . . . . . . . . . 11
b. Designation of “General Counsel” . . . . . . . . . . . . . . . . . . . . . 11
c. Protecting Client’s Interests . . . . . . . . . . . . . . . . . . . . . . . . . 11
d. Naming the Law Firm . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
1) Firm Members in Public Service . . . . . . . . . . . . . . . . . . . . 11
2) Offices in Other Jurisdictions . . . . . . . . . . . . . . . . . . . . . 12
3) Partnerships and Business Entities . . . . . . . . . . . . . . . . . . 12
2. Lawyers in Association with Nonlawyers . . . . . . . . . . . . . . . . . . . . 12
a. Partnerships with Laypersons that Involve Legal Practice . . . . . . . . 12
b. No Sharing of Legal Fees . . . . . . . . . . . . . . . . . . . . . . . . . . 12
c. Lawyer Must Exercise Independent Judgment . . . . . . . . . . . . . . . 12
3. Legal Corporations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4. Legal Services Organizations . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
a. Legal Aid and Public Defenders . . . . . . . . . . . . . . . . . . . . . . . 12
b. Military Legal Assistance Offices . . . . . . . . . . . . . . . . . . . . . . 13
c. Lawyer Referral Services . . . . . . . . . . . . . . . . . . . . . . . . . . 13
d. Group Legal Service Plans . . . . . . . . . . . . . . . . . . . . . . . . . . 13
e. Advertising by Legal Service Plans . . . . . . . . . . . . . . . . . . . . . 13
f. Membership in Legal Services Organizations . . . . . . . . . . . . . . . 13
 PROFESSIONAL RESPONSIBILITY iii.

B. RESPONSIBILITIES OF A PARTNER OR SUPERVISORY LAWYER . . . . . 13

1. Law Firm Must Ensure Member Lawyers Conform to RPC . . . . . . . . . 13
2. Supervisory Lawyers Have Comparable Responsibility . . . . . . . . . . . . 13
3. When Lawyer Responsible for Another Lawyer’s Violation of RPC . . . . . 14
C. RESPONSIBILITIES OF A SUBORDINATE LAWYER . . . . . . . . . . . . . . 14
D. RESTRICTIONS ON RIGHT TO PRACTICE . . . . . . . . . . . . . . . . . . . 14
E. SALE OF A LAW PRACTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

III. INFORMATION ABOUT LEGAL SERVICES . . . . . . . . . . . . . . . . . . . . . . 14

A. BACKGROUND OF ADVERTISING AND SOLICITATION RULES . . . . . . 14
1. Definitions—Advertising vs. Solicitation . . . . . . . . . . . . . . . . . . . . . 14
2. First Amendment Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
a. In-Person Solicitation May Be Banned . . . . . . . . . . . . . . . . . . . 16
B. ADVERTISING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
1. Basic Rule—Communications Must Be True and Not Misleading . . . . . . 16
2. Truthful but Misleading Communications . . . . . . . . . . . . . . . . . . . 16
3. Limits on Advertising . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
a. Identification of Advertiser . . . . . . . . . . . . . . . . . . . . . . . . . 16
b. Payments for Recommending a Lawyer’s Services . . . . . . . . . . . . . 16
4. Types of Information that May Be Disseminated . . . . . . . . . . . . . . . . 17
C. SOLICITATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
1. In-Person, Live Telephone, or Real-Time Electronic Contact Generally
Prohibited . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
a. Exceptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
1) Close Personal or Prior Professional Relationship . . . . . . . . . . 17
2) Prepaid or Group Plans . . . . . . . . . . . . . . . . . . . . . . . . 18
2. Written, Recorded, or Electronic Communications Generally Permitted . . . 18
a. Notification that Communication Is Advertising . . . . . . . . . . . . . . 18
3. Circumstances Rendering All Contacts Impermissible . . . . . . . . . . . . . 18
4. Use of Agents to Solicit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
5. Supreme Court Cases on Solicitation . . . . . . . . . . . . . . . . . . . . . . 18
D. COMMUNICATION OF FIELDS OF PRACTICE . . . . . . . . . . . . . . . . . 18

IV. ENTERING INTO THE LAWYER-CLIENT RELATIONSHIP . . . . . . . . . . . . 19

A. CREATING THE LAWYER-CLIENT RELATIONSHIP . . . . . . . . . . . . . 19
1. Implied Assent and Reasonable Reliance . . . . . . . . . . . . . . . . . . . . 19
B. BASIC RESPONSIBILITY TO RENDER PUBLIC INTEREST LEGAL
SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
1. Law Reform Activities Affecting Client Interests . . . . . . . . . . . . . . . . 20
C. ACCEPTING APPOINTMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
D. CLIENT WITH DIMINISHED CAPACITY . . . . . . . . . . . . . . . . . . . . . 20
E. EMERGENCY LEGAL ASSISTANCE TO NONCLIENT WITH DIMINISHED
CAPACITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
1. Limits on Lawyer’s Ability to Render Emergency Legal Assistance . . . . . 21
2. No Compensation for Emergency Legal Assistance . . . . . . . . . . . . . . . 21
F. AVOIDING CONFLICTS OF INTEREST . . . . . . . . . . . . . . . . . . . . . . 21
1. Concurrent Conflicts of Interest . . . . . . . . . . . . . . . . . . . . . . . . . 21
a. Client Consent to Concurrent Conflicts . . . . . . . . . . . . . . . . . . 21
iv. PROFESSIONAL RESPONSIBILITY

1) Consent to Future Conflicts . . . . . . . . . . . . . . . . . . . . . . 22

b. Representation of Multiple Parties in a Single Matter . . . . . . . . . . . 22
1) Criminal Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2) Civil Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
c. Specific Kinds of Conflicts . . . . . . . . . . . . . . . . . . . . . . . . . . 23
1) Ownership or Financial Interest Adverse to Client . . . . . . . . . 23
a) Exception for Standard Commercial Transactions . . . . . . . 23
2) Improper Use of Information Adverse to Client . . . . . . . . . . . 23
3) Designating Oneself as a Beneficiary . . . . . . . . . . . . . . . . . 23
4) Literary or Media Rights Based on Representation . . . . . . . . . 24
5) Financial Assistance to Client . . . . . . . . . . . . . . . . . . . . . 24
6) Compensation from Party Other than Client . . . . . . . . . . . . . 24
7) Aggregate Settlement or Agreement in Multiple Representation . . 24
8) Limiting Liability for Malpractice . . . . . . . . . . . . . . . . . . . 24
9) Settling Malpractice Claim with Unrepresented Client or Former
Client . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
10) Proprietary Interest in the Cause of Action . . . . . . . . . . . . . . 24
11) Sexual Relations Between Lawyer and Client . . . . . . . . . . . . . 25
2. Conflict of Interest Regarding Former Client . . . . . . . . . . . . . . . . . 25
a. Using or Revealing Information . . . . . . . . . . . . . . . . . . . . . . 25
3. Duties to Prospective Client . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
a. Consultation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
b. Lawyer’s Duty Concerning Conflict of Interest . . . . . . . . . . . . . . 26
c. How to Overcome a Prospective Client Conflict . . . . . . . . . . . . . . 26
4. Problems with Testifying for Client . . . . . . . . . . . . . . . . . . . . . . . 26
a. Uncontested Issue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
b. Nature and Value of Legal Services . . . . . . . . . . . . . . . . . . . . . 27
c. Substantial Hardship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
5. Conflicts in Corporate Representation . . . . . . . . . . . . . . . . . . . . . 27
a. Lawyer Represents Organization . . . . . . . . . . . . . . . . . . . . . . 27
b. Lawyer Must Act in Best Interest of Organization . . . . . . . . . . . . 27
1) Duty to Report to Higher Authority in the Organization . . . . . . 27
2) Duty to Report Outside the Organization . . . . . . . . . . . . . . . 27
3) Whistleblower Protection . . . . . . . . . . . . . . . . . . . . . . . 28
c. Explaining Identity of Client . . . . . . . . . . . . . . . . . . . . . . . . 28
d. Multiple Representation Permissible . . . . . . . . . . . . . . . . . . . . 28
e. Securities Lawyer’s Duties Under Sarbanes-Oxley Act . . . . . . . . . . 28
1) Securities Lawyer’s Duty to Report to Chief Legal Officer . . . . . 29
2) CLO’s Duty to Investigate and Obtain “Appropriate Response”
from Client . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
3) Securities Lawyer’s Duty If CLO Fails to Obtain “Appropriate
Response” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
4) Securities Lawyer May Alert the SEC . . . . . . . . . . . . . . . . 29
5) Protection for Securities Lawyer’s Job . . . . . . . . . . . . . . . . 29
6. Imputation of Conflicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
a. Prohibition of One Lawyer Imputed to Entire Firm . . . . . . . . . . . . 30
b. Effect of Lawyer’s Termination with Firm . . . . . . . . . . . . . . . . . 30
c. Waiver of Imputed Disqualification . . . . . . . . . . . . . . . . . . . . . 30
 PROFESSIONAL RESPONSIBILITY v.

7. Successive Government and Private Employment . . . . . . . . . . . . . . . 30

a. Prior Public Legal Employment May Create Conflict of Interest . . . . 30
b. Lawyer’s Conflict of Interest Not Necessarily Imputed to Firm . . . . . 30
c. Conflict of Interest May Arise If Lawyer Has Confidential Information . 31
d. Prohibited Actions of Public Law Officer or Employee . . . . . . . . . . 31
8. Former Judge, Arbitrator, Mediator, or Other Third-Party Neutral . . . . . 31
9. Lawyer Serving as a Third-Party Neutral . . . . . . . . . . . . . . . . . . . . 31
10. Nonprofit and Court-Annexed Limited Legal Service Programs . . . . . . . 32
G. ESTABLISHING COMPENSATION FOR LEGAL SERVICES . . . . . . . . . 32
1. Duty to Avoid Fee Misunderstandings . . . . . . . . . . . . . . . . . . . . . . 32
2. Fee Must Be Reasonable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
3. Minimum and Maximum Fee Schedules . . . . . . . . . . . . . . . . . . . . . 33
a. Minimum Fees Violate Antitrust Laws . . . . . . . . . . . . . . . . . . . 33
b. Regulation of Maximum Fees . . . . . . . . . . . . . . . . . . . . . . . . 33
4. Contingent Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
a. Disclosure Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
b. Offer of Other Fee Arrangement . . . . . . . . . . . . . . . . . . . . . . 33
c. When Contingent Fee Is Prohibited . . . . . . . . . . . . . . . . . . . . . 33
1) Criminal Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
2) Domestic Relations Cases . . . . . . . . . . . . . . . . . . . . . . . . 34
d. Discharge of a Lawyer on Contingency . . . . . . . . . . . . . . . . . . . 34
5. Referral Fees Are Unethical . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

V. THE LAWYER’S RESPONSIBILITIES TO THE CLIENT . . . . . . . . . . . . . . . 34

A. THE BASIC OBLIGATIONS OF COMPETENCE AND CARE . . . . . . . . . . 34
1. Competent Representation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
a. Knowledge and Skill . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
1) Retaining Other Lawyers to Assist in the Matter . . . . . . . . . . . 34
b. Thoroughness and Preparation . . . . . . . . . . . . . . . . . . . . . . . 35
2. Diligence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
3. Communication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
B. THE DUTY TO PRESERVE CONFIDENTIALITY OF INFORMATION . . . . 35
1. Attorney-Client Privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
a. Corporate Client—Attorney-Employee Communications . . . . . . . . . 35
b. Privilege Limited to Communications Between Parties . . . . . . . . . . 36
c. Duration of Privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
2. Duty of Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
a. Exceptions to Duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
1) Disclosure with Consent or Implied Authority . . . . . . . . . . . . 36
2) Disclosure to Prevent Death or Substantial Bodily Harm . . . . . . 36
3) Disclosure to Prevent or Rectify Substantial Financial Loss . . . . . 36
4) Disclosure Required by Court, Ethics Rules, or Law . . . . . . . . . 36
5) Disclosure Necessary to Collect a Fee or Protect Lawyer . . . . . . 37
6) Disclosure to Obtain Legal Ethics Advice . . . . . . . . . . . . . . . 37
7) Disclosure Necessary to Address Conflicts of Interest . . . . . . . . 37
b. Acting Competently to Preserve Confidentiality . . . . . . . . . . . . . . 37
3. Evaluation for Use by Third Persons . . . . . . . . . . . . . . . . . . . . . . 37
C. THE DUTY TO PROTECT A CLIENT’S PROPERTY . . . . . . . . . . . . . . 38
vi. PROFESSIONAL RESPONSIBILITY

1. Separation of Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
2. Recordkeeping Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . 38
3. Lawyer’s Duty to Keep Client Informed . . . . . . . . . . . . . . . . . . . . . 38
4. Remittance of Funds and Property . . . . . . . . . . . . . . . . . . . . . . . . 38
5. Property Claimed by Lawyer and Other Person . . . . . . . . . . . . . . . . 38

VI. THE DUTIES AND BOUNDS OF A LAWYER’S REPRESENTATION . . . . . . . . 38

A. DUTY AS ADVISER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
B. SCOPE OF REPRESENTATION . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
1. Lawyer Must Abide by Client’s Decisions . . . . . . . . . . . . . . . . . . . . 39
2. Lawyer’s Representation Does Not Constitute Endorsement of Client’s
Views . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
3. Lawyer Must Act Within Bounds of Law . . . . . . . . . . . . . . . . . . . . 39
a. Discussing Proposed Conduct . . . . . . . . . . . . . . . . . . . . . . . . 39
b. Discovering Illegal Conduct . . . . . . . . . . . . . . . . . . . . . . . . . 39
C. TRANSACTIONS WITH THIRD PERSONS . . . . . . . . . . . . . . . . . . . . 39
1. Communication with Adverse Parties and Third Persons . . . . . . . . . . . 39
a. Communication with Represented Person Impermissible . . . . . . . . . 39
1) Exception—Lawyer Does Not Have Actual Knowledge of
Representation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
2) Exception—Communication Authorized by Law . . . . . . . . . . . 40
3) Exception—Matters Outside the Representation . . . . . . . . . . . 40
b. Application of Rule to Organizations . . . . . . . . . . . . . . . . . . . . 40
c. Communication with Unrepresented Person Permissible . . . . . . . . . 40
2. Respect for Rights of Third Persons . . . . . . . . . . . . . . . . . . . . . . . 41
3. Documents Sent Inadvertently . . . . . . . . . . . . . . . . . . . . . . . . . . 41
4. Truthfulness in Statements to Others . . . . . . . . . . . . . . . . . . . . . . 41
D. THE CONDUCT OF LITIGATION . . . . . . . . . . . . . . . . . . . . . . . . . 41
1. Meritorious Claims and Contentions . . . . . . . . . . . . . . . . . . . . . . 41
a. Lawyer Must Inform Herself of Facts . . . . . . . . . . . . . . . . . . . . 41
2. Expediting Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
E. CANDOR TOWARD THE TRIBUNAL . . . . . . . . . . . . . . . . . . . . . . . 42
1. False Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
a. General Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
1) Lawyer Must Not Offer Evidence She Knows Is False . . . . . . . . 42
2) Lawyer May Refuse to Offer Evidence She Believes Is False . . . . . 43
3) Lawyer Must Take Reasonable Remedial Measures If False
Evidence Offered . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
b. Criminal Defendant Who Insists on Testifying Falsely . . . . . . . . . . 43
2. Required Disclosures in Ex Parte Proceeding . . . . . . . . . . . . . . . . . . 43
F. FAIRNESS TO OPPOSING PARTY AND COUNSEL . . . . . . . . . . . . . . . 43
G. AVOIDING IMPROPER CONTACT WITH JURORS AND THE COURT . . . 44
H. ADVOCATE IN NONADJUDICATIVE PROCEEDINGS . . . . . . . . . . . . . 44
I. TRIAL PUBLICITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
1. Basic Test . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
2. Permitted References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
3. Areas Likely to Have Prejudicial Effect . . . . . . . . . . . . . . . . . . . . . 45
4. Right of Reply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
 PROFESSIONAL RESPONSIBILITY vii.

VII. TERMINATION OF THE LAWYER-CLIENT RELATIONSHIP . . . . . . . . . . . 46

A. IN GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
B. MANDATORY WITHDRAWAL . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
C. PERMISSIVE WITHDRAWAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
D. WHEN LAWYER MUST CONTINUE REPRESENTATION . . . . . . . . . . . 47
E. PROTECTION OF CLIENT’S INTERESTS ON TERMINATION . . . . . . . . 47

VIII. THE LAWYER’S RESPONSIBILITIES TO THE LEGAL PROFESSION . . . . . . 47

A. IN GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
B. LAWYER’S CONDUCT WHILE NOT IN PRACTICE . . . . . . . . . . . . . . 47
C. GENERAL GUIDELINES FOR A LAWYER’S CONDUCT . . . . . . . . . . . . 47
D. POLITICAL CONTRIBUTIONS TO OBTAIN GOVERNMENT
EMPLOYMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
1. Prohibited Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
2. Excluded Employment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
E. JUDICIAL AND LEGAL OFFICIALS . . . . . . . . . . . . . . . . . . . . . . . . 48
F. THE SPECIAL ROLE OF THE PUBLIC PROSECUTOR . . . . . . . . . . . . . 48
G. REPORTING PROFESSIONAL MISCONDUCT . . . . . . . . . . . . . . . . . . 49

IX. JUDICIAL ETHICS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

A. SELECTION, TENURE, AND DISCIPLINE OF JUDGES . . . . . . . . . . . . . 49
1. Selection of Judges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
2. Code of Judicial Conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
a. Who Is Subject to the CJC? . . . . . . . . . . . . . . . . . . . . . . . . . 50
B. INTEGRITY, INDEPENDENCE, AND IMPARTIALITY . . . . . . . . . . . . . 50
1. Conduct On the Bench . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
2. Conduct Off the Bench . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
3. Personal Relationships . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
4. Misuse of Judicial Prestige . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
a. Permissible Acts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
1) References and Recommendations . . . . . . . . . . . . . . . . . . . 51
2) Judicial Selection . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
3) Character Witness . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
5. Relationships with Discriminatory Organizations . . . . . . . . . . . . . . . 51
a. Organizations that Discriminate in Violation of Local Law . . . . . . . . 52
b. Public Approval of Invidious Discrimination . . . . . . . . . . . . . . . . 52
c. Judicial Efforts to End Discrimination . . . . . . . . . . . . . . . . . . . 53
C. DILIGENT, IMPARTIAL PERFORMANCE OF JUDICIAL DUTIES . . . . . . 53
1. Hearing and Deciding Adjudicative Matters . . . . . . . . . . . . . . . . . . 53
2. Impartiality and Fairness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
3. Order and Decorum in Court . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
4. Patience, Dignity, and Courteousness . . . . . . . . . . . . . . . . . . . . . . 53
5. Avoidance of Bias, Prejudice, and Harassment . . . . . . . . . . . . . . . . . 53
6. Right to Be Heard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
7. Ex Parte Communications . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
a. Expressly Authorized by Law . . . . . . . . . . . . . . . . . . . . . . . . 54
b. Mediation or Settlement . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
c. Emergencies or Administrative Matters . . . . . . . . . . . . . . . . . . 54
viii. PROFESSIONAL RESPONSIBILITY

d. Inadvertent Receipt of Ex Parte Communication . . . . . . . . . . . . . 54

8. Communications from Others . . . . . . . . . . . . . . . . . . . . . . . . . . 54
a. Court Personnel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
b. Disinterested Legal Experts . . . . . . . . . . . . . . . . . . . . . . . . . 54
c. Other Communications . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
d. Communications Between Trial and Appellate Courts . . . . . . . . . . 55
9. Findings of Fact and Conclusions of Law . . . . . . . . . . . . . . . . . . . . 55
10. Independent Investigation of Facts . . . . . . . . . . . . . . . . . . . . . . . . 55
11. Promptness, Efficiency, and Fairness . . . . . . . . . . . . . . . . . . . . . . 55
12. Public Comments on Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
a. Official Duties Excepted . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
b. Judge as a Party . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
13. Promises with Respect to Cases Likely to Come Before Court . . . . . . . . . 56
14. Commentary on Jury Verdict . . . . . . . . . . . . . . . . . . . . . . . . . . 56
15. Nonpublic Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
16. Competence, Diligence, and Cooperation . . . . . . . . . . . . . . . . . . . . 56
17. Judicial Appointments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
a. Appointments of Lawyers Making Contributions to Judge’s Election
Campaign . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
18. Disciplinary Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
a. Judicial Misconduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
b. Lawyer Misconduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
c. Disability or Impairment of Judge or Lawyer . . . . . . . . . . . . . . . 57
d. Cooperation with Disciplinary Authorities . . . . . . . . . . . . . . . . . 57
19. Supervisory Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
D. DISQUALIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
1. General Rule—Whenever Impartiality Might Reasonably Be Questioned . . 58
a. Disclosure by Judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
b. Rule of Necessity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
2. Bias or Personal Knowledge . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
3. Prior Involvement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
4. Economic Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
a. Definition of “Economic Interest” . . . . . . . . . . . . . . . . . . . . . . 60
b. Exceptions to the Definition . . . . . . . . . . . . . . . . . . . . . . . . . 60
5. Involvement of a Relative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
a. Meaning of “Relative” . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
b. Meaning of “Involved” . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
6. Persons Making Contributions to Judge’s Election Campaign . . . . . . . . 61
7. Public Statements of Judicial Commitment . . . . . . . . . . . . . . . . . . . 61
8. Remittal of Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
E. EXTRAJUDICIAL ACTIVITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
1. Avocational Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
2. Nonlegal Governmental Hearings and Consultations . . . . . . . . . . . . . . 62
3. Governmental Committees and Commissions . . . . . . . . . . . . . . . . . . 62
4. Law-Related Organizations and Nonprofit Organizations . . . . . . . . . . . 63
a. Serving as Officer, Director, Trustee, or Advisor . . . . . . . . . . . . . 63
b. Fund and Membership Solicitation . . . . . . . . . . . . . . . . . . . . . 63
c. Attending Events . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
 PROFESSIONAL RESPONSIBILITY ix.

5. Financial and Business Activities . . . . . . . . . . . . . . . . . . . . . . . . . 64

6. Gifts, Bequests, Favors, and Loans . . . . . . . . . . . . . . . . . . . . . . . . 64
a. Gifts Subject to Reporting Requirements . . . . . . . . . . . . . . . . . . 65
7. Fiduciary Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
a. Financial Dealings as Fiduciary . . . . . . . . . . . . . . . . . . . . . . . 65
b. Conflicting Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
8. Service as Arbitrator or Mediator . . . . . . . . . . . . . . . . . . . . . . . . 66
9. Practice of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
10. Outside Compensation and Expenses . . . . . . . . . . . . . . . . . . . . . . 66
a. General Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
b. Reports of Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . 66
F. JUDGES AND POLITICS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
1. Rules Applicable to All Judges and Judicial Candidates . . . . . . . . . . . . 66
a. Definition of “Candidate” . . . . . . . . . . . . . . . . . . . . . . . . . . 67
b. General Prohibitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
c. Explanation of General Prohibitions . . . . . . . . . . . . . . . . . . . . 67
d. Judges Who Run for Nonjudicial Office . . . . . . . . . . . . . . . . . . 67
e. Dignity, Impartiality, Integrity, and Independence . . . . . . . . . . . . 68
f. Response to Attacks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
g. Statements, Promises, and Pledges . . . . . . . . . . . . . . . . . . . . . 68
1) But Note—“Announce Clause” Is Unconstitutional . . . . . . . . . 68
2. Rules Applicable to Candidates for Appointed Positions . . . . . . . . . . . . 68
3. Rules Applicable to Judges and Candidates Subject to Public Election . . . . 69
a. Campaign Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
1) Ban on Personal Solicitation . . . . . . . . . . . . . . . . . . . . . . 70
2) Campaign Committees . . . . . . . . . . . . . . . . . . . . . . . . . 70
a) Solicitation Time Limits . . . . . . . . . . . . . . . . . . . . . . 70
b) Excessive Campaign Contributions . . . . . . . . . . . . . . . . 70
G. APPLICATION OF THE CODE OF JUDICIAL CONDUCT . . . . . . . . . . . 70
 PROFESSIONAL RESPONSIBILITY 1.

PROFESSIONAL RESPONSIBILITY

I. REGULATORY CONTROLS OVER ATTORNEYS

AND UNAUTHORIZED PRACTICE

A. GENERAL SOURCES OF REGULATION

Practice within state courts is regulated by the courts, legislature, and bar of each state. Practice
in the federal courts is regulated by the rules of each district court and circuit court of appeals,
rules promulgated by the Supreme Court of the United States, and rules passed by Congress.

1. State Regulation

a. State Legislatures
The relative powers of the legislature and courts of a state with respect to regulation
of the legal profession have never been clearly defined through legislation or case law.
It is generally assumed that the legislature establishes standards as aids to the judicial
branch, but that the courts may fashion more stringent rules.

b. State Courts
The inherent authority to regulate practice within the courts of a state is vested in the
highest court of the jurisdiction. Final decisionmaking power with respect to such
regulation is usually assumed by these courts.

c. State Bar Associations

Two general classes of state bar associations can be distinguished: integrated bar
associations and voluntary bar associations. Integrated bar associations require all attor-
neys within the state to join and thereby subject themselves to the rules promulgated
by the association. They are usually formed under the authority of state legislatures,
state courts, or in some cases, by the state courts under general powers and instruc-
tions created by the state legislature. Voluntary bar associations do not encompass the
entire community of practicing lawyers within a state unless they all voluntarily join.
Still, these voluntary associations have often been in the forefront of proposing ethical
standards and attempting to regulate the unauthorized practice of law.

2. Federal Regulation

a. Federal Courts
Each federal district and appellate court promulgates its own rules independent of those
that exist for the state courts in the jurisdiction where the federal court sits.

1) Requirements for Admission

Most federal courts require only that the attorney seeking admission be a member
of the bar of the state in which the court sits and make formal application for
admission to the federal bar.
2) Interstate Federal Practice
Under limited circumstances, an attorney who is a member of the bar in one state
and admitted to practice before a federal court in that state may be permitted to
appear in a federal court in another state.

(MR02/CJC07)
2. PROFESSIONAL RESPONSIBILITY

a) “Pro Hac Vice” Appearances

An attorney who is a member of the bar in one state may be allowed to
appear “pro hac vice” in federal court in another state to argue or try a partic-
ular case. In such instances, the state in which the federal court sits cannot
limit the attorney’s rights.
Example: An attorney who specializes in antitrust law and is a member
of the bar in State A appears in federal court in State B on a
complex antitrust matter. State B cannot limit the attorney’s
right to practice in federal court on the ground that he is not
licensed to practice in State B.

b) Continuous Federal Practice

A different result is reached when an attorney attempts to conduct a full-time
federal practice within a state in which he has not been admitted to the bar.
Under such circumstances the state is fully within its rights in limiting the
attorney’s access to the courts even though he has limited himself exclusively
to federal matters.

b. Federal Administrative Agencies

In most instances, the only requirement for practice before a federal administrative
agency is that the attorney be a member of the bar of the state in which the agency sits.
Certain specialized agencies, such as the United States Patent Office, also require that
the attorney pass a special examination to test his expertise. In addition, it has been
recognized that federal law may totally preempt an area in such a manner so as to
allow anyone who meets specific qualifications to practice law in that field regardless of
whether he is admitted to practice in a particular jurisdiction.
Example: An attorney or nonlawyer “agent” may be admitted to practice law
before the Patent Office provided he has passed a special examination. A
state cannot prohibit a qualified patent agent from practicing patent law
in that state on the basis that he is not admitted to that state’s bar and is
thereby engaged in the unauthorized practice of law. [Sperry v. State of
Florida ex rel. Florida Bar, 373 U.S. 379 (1963)]

Most federal administrative agencies have a procedure whereby an attorney may be

suspended or disbarred from practice before the agency.

c. Federal Government Attorneys

A federal government attorney is subject to state ethics laws and rules (as well as local
federal court rules) governing attorney conduct in each state in which the attorney
engages in her duties. [28 U.S.C. §530B(a); 28 C.F.R. §§77.2, .3]

3. American Bar Association

The American Bar Association (“ABA”) is a voluntary national organization which, since its
inception, has performed many important advisory functions relating to the regulation of the
legal profession, including promulgating the Model Rules of Professional Conduct (“RPC”),
which have been adopted by a majority of states. Note that in 2002, the ABA revised the
Model Rules, and this outline is based on the Rules as revised.
 PROFESSIONAL RESPONSIBILITY 3.

B. ADMISSION TO THE LEGAL PROFESSION

In regulating admission to practice, each jurisdiction has formulated certain prerequisites. While
the details of satisfying these will vary by state and federal district, the applicant normally must
meet educational requirements, pass (except where waived if from another jurisdiction) a bar
examination, and show that she is a person of good moral character. To satisfy constitutional
standards of equal protection of the laws, any prerequisite to admission must bear a rational
relationship to the applicant’s fitness or capacity. [Schware v. Board of Bar Examiners of New
Mexico, 353 U.S. 232 (1957)]

1. Citizenship Requirements
A state may not require that an applicant be a citizen of the United States. [In re Griffiths,
413 U.S. 717 (1973)]

2. Residency Requirements
State residency requirements for bar admission violate the Privileges and Immunities Clause
of the United States Constitution. [Supreme Court of New Hampshire v. Piper, 470 U.S. 274
(1985)] Rationale: The right to practice law is a “fundamental” right. States may discrimi-
nate against nonresidents only where their reasons are substantial and the difference in
treatment bears a close or substantial relation to those reasons.
a. Admission on Motion
A state residency requirement for admission to the state’s bar without examination (on
motion) is unconstitutional. Requiring nonresidents to sit for a bar examination while
residents may be admitted on motion violates the Privileges and Immunities Clause.
[Supreme Court of Virginia v. Friedman, 487 U.S. 59 (1988)]

b. Residency for Federal Court Practice

The Supreme Court has also struck down a local rule of a federal district court that
required, in addition to bar membership in the state in which the court sits, that appli-
cants to the court’s bar also live or maintain an office in that state. The Court found this
requirement unnecessary and irrational. [Frazier v. Heebe, 482 U.S. 641 (1987)]

3. Character Requirements
Every jurisdiction places on each applicant the burden of showing that he possesses “good
moral character.”

a. Applicant’s Procedure
Each applicant is usually required to answer a detailed background questionnaire and
to furnish references. The refusal to furnish such information is grounds for rejection of
the applicant.
Example: An applicant who refuses to answer questions concerning his possible
membership in the Communist Party may be rejected because such
inquiries are merely a prelude to an investigation into his moral
character. [Konigsberg v. State Bar of California, 366 U.S. 36 (1961)]

b. Procedural Protections
An applicant is entitled to procedural due process with regard to actions taken by the
bar representatives reviewing his application. This includes the right to a hearing before
the bar committee and confrontation of adverse witnesses, as well as the right to
4. PROFESSIONAL RESPONSIBILITY

judicial review of the denial of an application based on bad moral character. [Willner v.
Committee on Character and Fitness, 373 U.S. 96 (1963)]
c. Conduct Failing the “Good Moral Character” Test
The purpose of the bar committee’s investigation into the background of an applicant
is to determine if there is anything in his past that reflects adversely upon his honesty
and integrity. The general benchmark used to measure this is whether any of the appli-
cant’s past conduct involved “moral turpitude,” i.e., acts that involve intentional dishon-
esty or are repugnant to accepted moral standards. Any conduct or charges against the
applicant involving such crimes as bribery, perjury, theft, murder, rape, etc., would fall
within the definition of “moral turpitude,” but a variety of illegal acts, such as draft
evasion and possession of marijuana for personal use, may or may not be acts involving
“moral turpitude,” depending upon the nature of the offense and the intent of the
individual.
Example: An applicant who had used aliases to hide his Jewish background from
employers and who had been arrested along with other discontented
laborers was found not to have committed an act of “moral turpitude.”
[Schware v. Board of Bar Examiners of New Mexico, supra]
d. Constitutional Limitations on Regulatory Authorities
Although a state regulatory agency may establish criteria that must be met by persons
seeking admission to practice law within the state, there must be a nexus between the
requirements for admission and an applicant’s fitness to practice law. For instance, the
state regulatory authority may not reject an applicant solely because of membership in
a political organization, as opposed to active and knowing participation in the organi-
zation with the intent to advance specific goals.
Nor may rejection be based on the personal beliefs of an applicant where those beliefs
are not translated into an illegal advocacy to action. In this context, the Supreme Court
rulings in bar admission proceedings have tracked the development of standards for the
invocation of free speech and associational rights under the First Amendment.
Example: An applicant may not be rejected merely on the basis of his membership
in the Communist Party where there is no showing that he ever engaged
in, or even advocated, actions to overthrow the government by force or
violence. [Schware v. Board of Bar Examiners of New Mexico, supra]

e. Attorney’s Duty to Cooperate with Character Investigations

An applicant for admission to the bar, or an attorney in connection with a bar admis-
sion application or in connection with a disciplinary matter, must not: (i) knowingly
make a false statement of material fact; or (ii) fail to disclose a fact necessary to correct
a misapprehension known by the person to have arisen in the matter, or knowingly
fail to respond to a lawful demand for information from an admissions or disciplinary
authority. This rule does not require disclosure of information otherwise protected by
RPC 1.6 (relating to confidentiality). [RPC 8.1]

C. DISCIPLINARY PROCESS

1. General Substantive Standards

The Model Rules list six general prohibitions, the violation of which may, as do violations of
 PROFESSIONAL RESPONSIBILITY 5.

the specific prohibitions in the Rules, lead to disciplinary measures. Under these prohibitions,
a lawyer may not:

(i) Violate or attempt to violate the Rules of Professional Conduct, knowingly assist or
induce another to do so, or use the acts of another to commit a violation;

(ii) Commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness,
or fitness as a lawyer in other respects;

(iii) State or imply an ability to improperly influence a government agency or official or to

achieve results by means that violate the Rules of Professional Conduct or other law;

(iv) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation;

(v) Engage in conduct prejudicial to the administration of justice; or

(vi) Knowingly assist a judge or judicial officer in conduct that violates applicable rules of
judicial conduct or other law.

[RPC 8.4]

2. Disciplinary Procedure
While the details of disciplinary procedure vary from state to state, there is a general proce-
dural scheme along the following lines:

a. Complaint
The disciplinary proceeding is initiated by a complaint to the state bar, which may be
filed by a dissatisfied client, a member of the bar, or any other interested party. The
filing of a complaint is generally considered a privileged communication and the
complainant is usually protected from subsequent action by the attorney for defamation
or malicious prosecution as a matter of public policy.

b. Screening and Hearing

The complaint will be examined in a preliminary screening process conducted by a
panel appointed by the grievance committee of the state bar.

1) Commencement of Hearing
If a decision is made to pursue the complaint, a nonpublic hearing will usually be
held before the grievance committee after notice to the attorney under investiga-
tion.

2) Procedural Protections
The Due Process Clauses of the Fourteenth Amendment and relevant state consti-
tutions are applicable to state disciplinary proceedings. Thus, while the specific
procedures vary by jurisdiction, a lawyer subject to a disciplinary hearing retains
the basic rights to counsel and to cross-examination of witnesses at the hearing.
[In re Ruffalo, 390 U.S. 544 (1968)] He also has the absolute right to invoke,
without penalty, the Fifth Amendment protection against self-incrimination
under the Supreme Court’s ruling in Spevack v. Klein, 385 U.S. 511 (1967).
6. PROFESSIONAL RESPONSIBILITY

3. Forms of Disciplinary Sanction

The most common penalties for engaging in unethical or unprofessional conduct are: (i)
disbarment (permanent revocation of an attorney’s license); (ii) suspension (temporary
revocation of an attorney’s right to practice); and (iii) public or private censure by the courts
or bar associations.
4. Effect of Disciplinary Action on Other Court Systems
Each state and federal court system is considered a separate, autonomous unit for disci-
pline as well as admission of attorneys. Thus, disciplinary proceedings by the state courts
located within the federal district have no binding effect on the attorney’s ability to practice
before the federal courts in that district. Similarly, foreign state courts must make their own
independent evaluation of an attorney’s conduct when he has been disciplined in a sister
state. However, most states give some effect to the sister state’s determination during their
own proceedings on the basis of “full faith and credit” or “comity.”
5. Practice in Multiple States—Choice of Law
A lawyer is subject to the regulation of the state in which she is admitted, regardless of
where her conduct occurs. The disciplinary authority of a state includes lawyers not admitted
in the state who provide or offer to provide legal services in the state. Note that a lawyer may
be disciplined in more than one state based on the same conduct. [RPC 8.5(a)]

a. Choice of Law
A tribunal considering conduct connected with a matter pending before it will apply
the Rules of Professional Conduct of the state in which it sits, unless the tribunal’s rules
provide otherwise. Regarding any other conduct, the tribunal will apply: (i) the rules of
the state in which the conduct occurs; or (ii) the rules of another state in which occurred
the predominant effect of the conduct. A safe harbor is provided for a lawyer whose
conduct conforms to the rules of a state in which the lawyer reasonably believes the
predominant effect will occur. [RPC 8.5(b)] Thus, if the lawyer is reasonably mistaken
about the place of predominant effect, she will not be subject to discipline under the
rules of the state where the predominant effect actually occurs. Regarding conflicts
of interest only, a lawyer and client may enter into a written agreement specifying the
“predominant effect” jurisdiction—e.g., “Client and Lawyer anticipate that the predom-
inant effect of the lawyer’s conduct will be in Ohio and agree that the Ohio Rules
of Professional Conduct and Ohio law relating to conflicts of interest should govern
Lawyer’s work on this matter.” [RPC 8.5, comment 5]

D. UNAUTHORIZED PRACTICE OF LAW

In addition to regulating the admission and discipline of lawyers, each jurisdiction has sought to
prevent the unauthorized practice of law. This prohibition is predicated upon the public’s need
for integrity and competence of those persons purporting to render “legal” services. It is not
unauthorized practice, however, for a layperson to represent herself.
1. Definition of Unauthorized Practice
The Rules do not attempt to set forth a single definition of those activities that constitute
the unauthorized practice of law. They adopt instead a functional definition. The Rules do,
however, prohibit a lawyer from practicing law in a jurisdiction where doing so violates the
regulation of the legal profession in that jurisdiction or assisting another person in doing so.
[RPC 5.5(a)]
 PROFESSIONAL RESPONSIBILITY 7.

2. Limited Exception Where Professional Judgment Not Required

Where the professional judgment of a lawyer is not involved, nonlawyers such as court
clerks, abstracters, and many government officials are authorized to engage in occupations
even if they require a special knowledge of law in certain areas.
3. Definition Applied to Specific Activities
The actual determination of what constitutes unauthorized practice has been left to the state
supreme court. Some states have attempted to define the practice of law in connection with
specific activities, but in large measure the distinctions between such practice and proper lay
activities are based on the particular circumstances of each case.
a. Preparation of Documents

1) Real Estate Brokers

Real estate brokers may not draft contracts but may fill in the blanks on standard
contracts as long as separate fees are not charged for such services.

2) Title Insurance and Escrow Companies

Title insurance and escrow companies are permitted to fill in standardized
mortgage and deed forms in certain jurisdictions but are restrained from doing so
in others.

3) Lay Tax Advisers

In theory, lay tax advisers may not counsel individuals as to the legal implications
of their conduct but may, if qualified (i.e., by accountancy training), prepare tax
returns for clients.
Example: Client goes to see his tax accountant to consult with him
concerning tax shelters for his large income. The accountant
may not give advice to Client on tax shelters because such advice
requires the professional judgment of a lawyer as to the legality of
specific action under the tax laws.

4) Estate Planners
Estate planners may not draft wills or prepare plans for specific individuals
but may disseminate general information to the public through commercial or
noncommercial means.
Example: An estate planner published a book entitled How to Avoid Probate,
which was in effect a “do-it-yourself” probate kit. He was subse-
quently charged with practicing law without a license. The court
ruled that he was merely disseminating information to the public
to enable individuals to represent themselves. [New York County
Lawyers’ Association v. Dacey, 287 N.Y.S.2d 422 (1967)]

b. Representation of Clients

1) Corporations
Corporations, other than nonprofit legal service groups or recognized professional
corporations, generally may not represent a client directly in judicial proceedings
or provide representation through their attorney-employees.
8. PROFESSIONAL RESPONSIBILITY

2) Collection Agencies
Collection agencies in a number of jurisdictions may not bring suit directly to
enforce a debt assigned to them for collection. However, a state statute defining
debt collection as the practice of law, thus limiting debt collection activities to
members of that state’s bar, was held to be an unconstitutional imposition on inter-
state commerce. [National Revenue Corp. v. Violet, 807 F.2d 285 (1st Cir. 1986)]

3) Representation “In Propria Persona”

Individuals (not corporations) have the right to represent themselves even if they
are not attorneys.

4. Multi-Jurisdictional Practice
A lawyer who is not licensed to practice in a state must not: (i) open a law office in that state,
(ii) represent that she is admitted to practice in that state, or (iii) establish a “systematic and
continuous presence” in that state without becoming licensed there. [RPC 5.5]

a. Permissible Types of Temporary Multi-Jurisdictional Practice

The nature of modern law and commerce requires many lawyers to practice across
state lines. RPC 5.5(c) recognizes this fact and provides that if a lawyer is admitted to
practice in one state, and is not disbarred or suspended from practice in any state, then
she may provide legal services in a second state on a temporary basis in four situations:

1) Association with Active Local Lawyer

The out-of-state lawyer who is not admitted in a state may practice there on a
temporary basis if she associates a local lawyer who actively participates in the
matter. [RPC 5.5(c)(1)]
Example: Attorney A is admitted to practice in Utah only, and she works
for a law firm that regularly represents a nationwide labor union.
The union is trying to organize workers in Arizona, and A is sent
to Arizona to give legal advice to the union’s organizers. With
the union’s consent, A associates local labor lawyer L and rents
a temporary office near L’s office. L works actively with A in
handling legal problems arising from the union’s organizing efforts.
A’s temporary practice in Arizona is proper.

2) Special Permission to Practice in Local Tribunal

An out-of-state lawyer may request special permission from a local court, admin-
istrative agency, or other tribunal to handle a matter in that tribunal. [RPC 5.5(c)
(2)] In a court, such permission is commonly called admission “pro hac vice,”
which means admission for purposes of this matter only. An out-of-state lawyer
who reasonably expects to be admitted pro hac vice may engage in preliminary
activities in the state, such as meeting with clients, reviewing documents, and
interviewing witnesses.

3) Mediation or Arbitration Arising Out of Practice in Home State

An out-of-state lawyer may mediate, arbitrate, or engage in another form of alter-
native dispute resolution in a state if her services arise out of, or are reasonably
related to, her practice in the state in which she is admitted. [RPC 5.5(c)(3)]
 PROFESSIONAL RESPONSIBILITY 9.

Example: Attorney A is admitted to practice in Utah only. She represents a

Utah client in a contract dispute, and the contract states that all such
disputes will be submitted to arbitration in Arizona. A may repre-
sent her client in the Arizona arbitration, and the same would be
true of a mediation or other form of alternative dispute resolution.

4) Other Temporary Practice Arising Out of Practice in Home State

RPC 5.5(c)(4) is a catch-all category that permits an out-of-state lawyer to tempo-
rarily practice in a state if the practice is reasonably related to the lawyer’s home-
state practice.
Example: Lawyer L is admitted to practice in Utah only. She represents a
Utah client that buys up and revitalizes run-down shopping centers.
That client asks L to travel to Arizona to negotiate with the owner
of an Arizona shopping center and to draft a purchase agreement
that will satisfy the owner and that will be valid under the law
of Arizona. It would be proper for L to render those services in
Arizona.

b. Permissible Types of Permanent Multi-Jurisdictional Practice

A lawyer who is admitted in one jurisdiction, and who is not disbarred or suspended
from practice in any jurisdiction, may provide legal services through an office or other
systematic and continuous presence in a state in which she is not admitted in two
narrowly limited situations:

1) Lawyers Employed by Their Only Client

Some lawyers are salaried employees of their only client (e.g., in-house corporate
lawyers and lawyers employed by the government). They may set up a permanent
office to render legal services to their employer in a state, even if they are not
admitted to practice there. However, if they want to litigate a matter in that state,
they must seek admission pro hac vice. [RPC 5.5(d)(1)]
Example: Attorney A is admitted to practice in Maryland and Virginia. She
is employed by General Motors (“GM”), which assigns her to be
the legal advisor in a GM office in Arizona. A need not be admitted
to practice in Arizona, but if she wants to represent GM in a suit
pending in an Arizona court, she must seek admission pro hac vice.

a) Foreign Lawyers Advising on United States Law

A foreign lawyer practicing under this rule (e.g., serving as in-house counsel
for a corporation) may not directly advise her client on the law of a United
States jurisdiction. Rather, she must consult with a lawyer who is licensed
by the relevant jurisdiction and base any advice to her client on advice she
obtains from the local lawyer.

2) Legal Services Authorized by Federal or Local Law

In rare instances, federal or local law authorizes a lawyer to practice a restricted
branch of law in a state in which she is not otherwise admitted to practice. [RPC
5.5(d)(2)]
10. PROFESSIONAL RESPONSIBILITY

Example: Lawyer L is admitted to practice law in New York, and she is

admitted to prosecute patents in the United States Patent and
Trademark Office, which is located in Washington, D.C. When L
“retired” and moved to Florida, she did not become a member of
the Florida bar; rather, she set up a Florida practice that is limited
to patent prosecution in the Patent and Trademark Office. L does
not handle other patent matters, such as patent licensing or patent
infringement, and she does not practice any other kind of law. L’s
restricted practice in Florida is proper. [See Sperry v. Florida, 373
U.S. 379 (1963)]

c. Informing the Client

An out-of-state lawyer who: practices on a temporary basis, is a salaried employee of
his only client, or is authorized to practice by federal or local law may under some
circumstances be required to inform the client that he is not licensed in the state; e.g.,
when the representation occurs primarily in the state where the lawyer is not licensed
and requires knowledge of that state’s law. [RPC 5.5, comment 20]

d. Disciplinary Consequences of Multi-Jurisdictional Practice

A lawyer who engages in multi-jurisdictional practice in a state is subject to that state’s
disciplinary authority. [RPC 5.5, comment 19]

5. Judges and Court Officers

Full-time judges and court officers (including clerks) may not practice law, nor may law
students represent clients except where authorized to do so under the supervision of a
licensed attorney.

6. Lawyers Aiding Lay Practitioners

A lawyer may not practice law in association with, or otherwise share fees with, a layperson
and may be disciplined for aiding a nonlawyer in the unauthorized practice of law.

7. Law Firms and Nonlawyers

Law firms, whether in the form of professional corporations or associations, may not be set
up in such a way that a nonlawyer owns an interest therein (except for a fiduciary represen-
tative during the administration of an estate), a nonlawyer is a corporate officer or director
thereof, or a nonlawyer has the right to direct or control a lawyer’s professional judgment.
[RPC 5.4(d)]

E. LAW-RELATED (ANCILLARY) SERVICES

Lawyers are permitted to provide law-related services to clients. Law-related services (often
referred to as ancillary services) are services that might reasonably be performed in conjunction
with (and are related to) the provision of legal services and that are not prohibited as unauthorized
practice of law when provided by a nonlawyer. Examples of law-related services include financial
planning, accounting, trust services, real estate counseling, and tax return preparation. A lawyer is
subject to the Rules of Professional Conduct with respect to the provision of law-related services
if she provides those services under circumstances that are not distinct from her provision of legal
services to clients. [RPC 5.7(a)(1)]
 PROFESSIONAL RESPONSIBILITY 11.

1. Services Provided by Entity Controlled by Lawyer

When the law-related services are provided by a separate entity controlled in whole or in part
by a lawyer, the lawyer is subject to the Rules of Professional Conduct with respect to those
services unless she takes reasonable measures to ensure that the recipient of the services
knows that the services provided by the entity are not legal services and that the protections
of the lawyer-client relationship do not apply. [RPC 5.7(a)(2)]

II. ESTABLISHING A LEGAL PRACTICE

A. FORMS OF PRACTICE
Lawyers have the opportunity to practice law in myriad ways. The most prevalent of these various
forms are sole practitioners; law firms; lawyers involved in the executive, legislative, and judicial
aspects of government; legal services organizations; and counsel to special interest groups and
business enterprises, most notably corporations, banks, and insurance companies.

1. Law Firms

a. Relationship of Lawyers Within the Firm

Law firms range in size from two to over 1,000 lawyers, and their activities encom-
pass the entire ambit of legal services. Three categories of practitioners generally are
distinguished within the firm framework: partners, associates, and attorneys of counsel.
Partners are those lawyers who share responsibility and liability for the activities of the
firm. In many jurisdictions, a firm may not be designated as a partnership unless the
“partners” share in the profits as well as the expenses of the firm. Associates do not
share full responsibility or liability for the firm’s work and are often limited in their
contact with clients due to the organizational characteristics of the firm. “Of counsel”
denotes a lawyer who has a continuing relationship with a law firm, other than as a
partner or associate.

b. Designation of “General Counsel”

“General counsel” or a similar professional reference may be used by a law firm that
devotes a substantial amount of professional time to the representation of a client.
c. Protecting Client’s Interests
Whatever the structure of the firm, a lawyer in practice must ensure that the interests
of the client are paramount to the interests of the firm and that the client’s problems are
handled with competence and care.

d. Naming the Law Firm

A lawyer must not use a firm name, letterhead, or other professional designation that
is false or misleading. A private practitioner may use a trade name that does not imply
a connection with a government agency or with a public or charitable legal services
organization. [RPC 7.5(a)]

1) Firm Members in Public Service

The name of a lawyer holding a public office must not be used in the name of
a law firm, or in communications on its behalf, during any substantial period
12. PROFESSIONAL RESPONSIBILITY

in which the lawyer is not actively and regularly practicing with the firm. [RPC
7.5(c)]

2) Offices in Other Jurisdictions

A law firm with offices in more than one jurisdiction may use the same firm name
or other professional designation in each jurisdiction. However, when identifying
its lawyers in an office of the firm, the firm must list the jurisdictional limitations
of those lawyers not licensed to practice in the jurisdiction where the office is
located. [RPC 7.5(b)]

3) Partnerships and Business Entities

Lawyers may not imply that they practice in a partnership or other organization if
they do not. [RPC 7.5(d)]

2. Lawyers in Association with Nonlawyers

a. Partnerships with Laypersons that Involve Legal Practice

A lawyer may not be a partner with a nonlawyer if any of the partnership activities
consists of the practice of law. [RPC 5.4(b)]

b. No Sharing of Legal Fees

A lawyer or law firm must not share legal fees with a nonlawyer, except that: (i) an
agreement by a lawyer with the lawyer’s firm, partner, or associate may provide for
the payment of money, over a reasonable period of time after the lawyer’s death, to the
lawyer’s estate, or to one or more specified persons; (ii) a lawyer who purchases the
practice of a deceased, disabled, or disappeared lawyer may pay to the estate or other
representative of that lawyer the agreed-upon purchase price (see E., infra, for sale of a
law practice discussion); (iii) a lawyer or law firm may include nonlawyer employees in
a compensation or retirement plan, even though the plan is based in whole or in part on
a profit-sharing arrangement; and (iv) a lawyer may share court-awarded legal fees with
a nonprofit organization that employed, retained, or recommended her employment in
the matter. [RPC 5.4(a)]

c. Lawyer Must Exercise Independent Judgment

A lawyer must not permit a person who recommends, employs, or pays the lawyer to
render legal services for another to direct or regulate the lawyer’s professional judgment
in rendering such legal services. [RPC 5.4(c)]

3. Legal Corporations
Due to favorable tax treatment for corporate pension and profit-sharing plans, all 50 states
and the District of Columbia allow lawyers to incorporate into highly regulated special
business structures known by various titles such as professional corporations and profes-
sional associations. The liability of the lawyer to the client may not be limited in a legal
corporation.

4. Legal Services Organizations

a. Legal Aid and Public Defenders

Legal aid offices and public defender services provide legal assistance for the poor.
 PROFESSIONAL RESPONSIBILITY 13.

They are usually operated or sponsored by an accredited law school, a nonprofit

community organization, a government agency, or a bar association representative.

b. Military Legal Assistance Offices

Military legal assistance offices provide legal services to military personnel and their
families.
c. Lawyer Referral Services
Lawyer referral services maintain lists of lawyers who are willing to accept new clients.
The individual seeking help is referred by the service to a lawyer for an initial consul-
tation at a prearranged low fee. Further arrangements are left to the lawyer and the
client. If the client is unhappy with the lawyer, he may return to the service for another
referral.

d. Group Legal Service Plans

Group legal service plans are plans designed to provide various legal services to
members of a specific group. Such groups may consist of union members, members of
an association, and participants in prepaid legal insurance programs.

e. Advertising by Legal Service Plans

The preceding legal service plans may advertise their availability to the public, but such
advertisements must conform to the Rules of Professional Conduct (see III.B., infra).
[RPC 7.2, comment 7]

f. Membership in Legal Services Organizations

A lawyer may serve as a director, officer, or member of a legal services organiza-
tion, other than the law firm with which the lawyer practices, notwithstanding that the
organization serves persons having interests adverse to a client of the lawyer. However,
the lawyer must not knowingly participate in a decision or action of the organization:

(i) If participating in the decision would be incompatible with the lawyer’s obligations
to a client under RPC 1.7 (relating to conflicts of interest); or

(ii) Where the decision could have a material adverse effect on the representation of a
client of the organization whose interests are adverse to a client of the lawyer.

[RPC 6.3]

B. RESPONSIBILITIES OF A PARTNER OR SUPERVISORY LAWYER

1. Law Firm Must Ensure Member Lawyers Conform to RPC

A partner in a law firm, and a lawyer who individually or together with other lawyers has
comparable managerial authority, must make reasonable efforts to ensure that the firm has in
effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules
of Professional Conduct. [RPC 5.1(a)]

2. Supervisory Lawyers Have Comparable Responsibility

A lawyer having direct supervisory authority over another lawyer must make reasonable
efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct. [RPC
14. PROFESSIONAL RESPONSIBILITY

5.1(b)] A lawyer having direct supervisory authority over a nonlawyer must make reasonable
efforts to ensure that the person’s conduct is compatible with the professional obligations of
the lawyer. [RPC 5.3(b)] This responsibility applies to nonlawyers within the firm (e.g., legal
assistants) and outside the firm (e.g., document management companies, private investiga-
tors).

3. When Lawyer Responsible for Another Lawyer’s Violation of RPC

A lawyer will be responsible for another lawyer’s violation of the Rules of Professional
Conduct if: (i) the lawyer orders or, with knowledge of the specific conduct, ratifies the
conduct involved; or (ii) the lawyer is a partner or similar manager in the law firm in which
the other lawyer practices, or has direct supervisory authority over the other lawyer, and
knows of the conduct at a time when its consequences can be avoided or mitigated but
fails to take reasonable remedial action. [RPC 5.1(c)] Similar rules apply with respect to
a lawyer’s responsibility for a nonlawyer’s violation of the Rules of Professional Conduct.
[RPC 5.3]

C. RESPONSIBILITIES OF A SUBORDINATE LAWYER

A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at
the direction of another person. A subordinate lawyer does not violate the Rules of Professional
Conduct if he acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable
question of professional duty. [RPC 5.2]

D. RESTRICTIONS ON RIGHT TO PRACTICE

A lawyer must not participate in offering or making: (i) a partnership, shareholders’, operating,
employment, or other similar agreement that restricts the rights of a lawyer to practice after
termination of the relationship, except an agreement concerning benefits upon retirement; or (ii)
an agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a
client controversy. [RPC 5.6] This rule does not apply to prohibit restrictions included in the terms
of the sale of a law practice pursuant to RPC 1.17 (see below).

E. SALE OF A LAW PRACTICE

A lawyer or law firm may sell or purchase a law practice or an area of practice, including
goodwill, if: (i) the seller ceases to engage in private practice, or an area of practice that has been
sold, in either the geographic area or the state in which the practice has been conducted (whether
the area of practice includes the geographic area or the entire state is at the discretion of each
state); (ii) the entire practice or area of practice is sold to one or more lawyers or law firms; (iii)
the fees charged to clients do not increase because of the sale; and (iv) the seller gives written
notice to each client of the sale and the client’s right to retain other counsel or to take possession
of her file. [RPC 1.17]

III. INFORMATION ABOUT LEGAL SERVICES

A. BACKGROUND OF ADVERTISING AND SOLICITATION RULES

1. Definitions—Advertising vs. Solicitation

“Advertising” generally refers to a lawyer’s communication with the public at large or a
segment of the public. In contrast, “solicitation” generally refers to individual contact with a
 PROFESSIONAL RESPONSIBILITY 15.

layperson, initiated by a lawyer (or lawyer’s agent), that is designed to entice the layperson to
hire the lawyer. A blatant form of solicitation is “ambulance chasing,” in which a lawyer (or
lawyer’s agent) seeks out injured people and urges them to hire the lawyer to represent them.

2. First Amendment Protection

The United States Supreme Court has recognized that lawyer advertising is commercial
speech protected by the First and Fourteenth Amendments. These Amendments allow
commercial speech to be totally prohibited only if false or misleading. [See Bates v. State
Bar of Arizona, 433 U.S. 350 (1977)] Otherwise, commercial speech must be allowed, but
may be limited by regulations that:

(i) Serve a substantial government interest;

(ii) Directly and materially advance that interest; and

(iii) Are narrowly tailored to serve the substantial interest (i.e., the means chosen reason-
ably fit the ends sought).

[Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995)—citing Central Hudson Gas & Electric
Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980)] Moreover, the
government may require attorneys to make disclosures to prevent misleading advertisements
as long as the disclosures are not unduly burdensome and are reasonably related to the state’s
interest in preventing deception. [Milavetz, Gallop & Milavetz, P.A. v. United States, 559
U.S. 229 (2010)—lawyers (and other “debt relief agencies”) could be required to include
information about their legal status and the nature of the assistance provided, as well as the
possibility of the debtor’s filing for bankruptcy]
Example: After conducting a two-year study on the effect of lawyer advertising on
public opinion, Florida adopted a rule prohibiting lawyers from sending
targeted, direct-mail solicitations to victims and their relatives for 30 days
following an accident or disaster. The regulation was upheld: (i) the state has
a substantial interest in protecting the privacy and tranquility of its citizens
as well as in protecting the reputation of the legal profession; (ii) the study
showed that the public was offended by targeted solicitations sent shortly after
an accident or disaster and that the 30-day ban directly advances the state
interests; and (iii) the rule is narrowly tailored (30-day ban) to achieve the
desired results. [Florida Bar v. Went For It, Inc., supra]

Compare: 1) Missouri could not prohibit lawyers from advertising the jurisdictions in
which they are licensed nor prohibit the general mailing of cards announcing
the opening of an office, as there was no showing that these advertisements
were misleading or difficult to supervise. [In re R.M.J., 455 U.S. 191 (1982)]

2) An attorney could not be reprimanded for placing an ad offering to repre-

sent “drunk drivers” or one including a picture of a specific (allegedly defec-
tive, intrauterine) medical device. Ads cannot be banned simply because they
are aimed at specific potential plaintiffs or because they are viewed as undig-
nified. [Zauderer v. Office of Disciplinary Counsel of the Supreme Court of
Ohio, 471 U.S. 626 (1985)]
16. PROFESSIONAL RESPONSIBILITY

3) Kentucky could not flatly prohibit lawyers from sending letters to poten-
tial clients faced with particular legal problems. [Shapero v. Kentucky Bar
Association, 486 U.S. 466 (1988)—lawyer could not be prohibited from
sending truthful, nondeceptive letters to people facing foreclosure]
a. In-Person Solicitation May Be Banned
The Supreme Court has found that in-person solicitation is likely to result in
overreaching or misleading a layperson. Therefore, states may adopt prophylactic rules
to forbid in-person solicitation for profit. [Ohralik v. Ohio State Bar Association, 436
U.S. 447 (1978)]
B. ADVERTISING
1. Basic Rule—Communications Must Be True and Not Misleading
A lawyer must not make a false or misleading communication about the lawyer or the
lawyer’s services. “False or misleading” includes material misrepresentations of law or fact,
and omissions of fact that are necessary to make a statement, considered as a whole, not
materially misleading. [RPC 7.1]
2. Truthful but Misleading Communications
A truthful communication is misleading if: (i) there is a substantial likelihood that the
communication will lead a reasonable person to reach a conclusion about the lawyer or her
services for which there is no reasonable foundation; (ii) it reports the lawyer’s achievements
on behalf of clients and is presented in a manner that would lead a reasonable person to form
an unjustified expectation of receiving the same results in a similar matter, without refer-
ence to the specific circumstances of each client’s case; or (iii) it contains an unsubstanti-
ated comparison of the lawyer’s services or fees with those of other lawyers and is presented
with such specificity as to lead a reasonable person to conclude that the comparison can be
substantiated. [RPC 7.1, comments 2, 3]
3. Limits on Advertising
RPC 7.2(a) gives lawyers broad latitude in advertising their services in a true and nonmis-
leading manner. They may advertise in written, recorded, or electronic communication,
including public media. However, even true, nonmisleading advertisements are subject to the
following limits:
a. Identification of Advertiser
An advertisement must contain the name and office address of at least one lawyer or
firm responsible for its content. [RPC 7.2(c)]
b. Payments for Recommending a Lawyer’s Services
A lawyer must not give anything of value for a person’s recommendation of the
lawyer’s services. However, a lawyer may:

(i) Pay the reasonable costs of permitted advertisements (e.g., broadcast airtime,
directory listings, or newspaper ads);
(ii) Pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer
referral service, i.e., one that has been approved by an appropriate regulatory
authority;
 PROFESSIONAL RESPONSIBILITY 17.

(iii) Pay for purchase of a law practice pursuant to RPC 1.17 (see II.E., supra); or

(iv) Refer clients to another lawyer or a nonlawyer professional pursuant to an agree-

ment not otherwise prohibited by the Rules of Professional Conduct that provides
for the other person to refer clients or customers to the lawyer. Any such reciprocal
referral agreement must not be exclusive, and the client must be informed of the
existence and nature of the agreement.

[RPC 7.2(b)] If a lawyer accepts assignments or referrals from a legal service plan or
a lawyer referral service, she must act reasonably to assure that the activities of the
plan or service are compatible with her professional obligations; e.g., a communication
with prospective clients by the plan or service must not be false or misleading. [RPC
7.2, comment 7] Similarly, a lawyer may pay others for generating client leads (e.g., a
bankruptcy lawyer may pay to be listed on an informational bankruptcy website that
offers to connect each visitor with a lawyer) but the lead generator’s communications
must not be false or misleading, and the lead generator must not recommend the lawyer.
[RPC 7.2, comment 5]

4. Types of Information that May Be Disseminated

The following are among the types of information that a lawyer may publicly disseminate:
(i) information concerning the name of the lawyer or her firm, and the lawyer’s or firm’s
address, e-mail address, website, and telephone number; (ii) the kinds of services the lawyer
will undertake; (iii) the basis on which fees are determined, including prices for specific
services and payment and credit arrangements; (iv) the lawyer’s foreign language ability; (v)
the names of references; and (vi) other information that might invite the attention of persons
seeking legal assistance. [RPC 7.2, comment 2]

C. SOLICITATION
A solicitation is a targeted communication initiated by the lawyer that is directed to a specific
person and that offers to provide, or can reasonably be understood as offering to provide, legal
services. However, a communication generally is not a solicitation if it: (i) is directed to the
general public (e.g., through a billboard, website, television commercial, or Internet banner
advertisement); (ii) responds to a request for information; or (iii) is automatically generated in
response to an Internet search.

1. In-Person, Live Telephone, or Real-Time Electronic Contact Generally Prohibited

Subject to the exceptions below, a lawyer must not, by in-person, live telephone, or real-time
electronic contact, solicit professional employment when a significant motive for the lawyer’s
doing so is the lawyer’s pecuniary gain (i.e., offers to provide legal services for free are
generally permissible). [RPC 7.3(a)]

a. Exceptions

1) Close Personal or Prior Professional Relationship

Subject to the limitations in 3., below, a lawyer is generally not prohibited from
initiating personal contact with (i) another lawyer; or (ii) a person with whom the
lawyer has a family, close personal, or prior professional relationship.
18. PROFESSIONAL RESPONSIBILITY

2) Prepaid or Group Plans

A lawyer is permitted to participate in a prepaid or group legal service plan that
uses in-person or telephone contact to solicit memberships for the plan from
persons who are not known to need legal services in a particular matter covered by
the plan. However, the lawyer must not own or direct the organization that operates
the plan. [RPC 7.3(d)]

2. Written, Recorded, or Electronic Communications Generally Permitted

Generally, a lawyer is not prohibited from sending truthful, nondeceptive communications to
persons known to face a specific legal problem. [RPC 7.3]

a. Notification that Communication Is Advertising

If a lawyer uses a written, recorded, or electronic communication to solicit employment
from someone known to be in need of legal services for a particular matter, the commu-
nication must include the words “Advertising Material” on the outside envelope, if
any, and at the beginning and end of any recorded or electronic communication. [RPC
7.3(c)] This labeling requirement is not necessary when the recipient of the communica-
tion is another lawyer or is in a family, close personal, or prior professional relationship
with the lawyer making the communication.

3. Circumstances Rendering All Contacts Impermissible

A lawyer is prohibited from soliciting professional employment, regardless of what method is
used, if:

(i) The target of the solicitation has made known to the lawyer that she does not want to be
solicited by the lawyer; or

(ii) The solicitation involves coercion, duress, or harassment.

[RPC 7.3(b)] Note that federal law prohibits lawyers from communicating with victims of an
airplane accident, or their families, until 45 days after the accident. [49 U.S.C. §1136(g)(2)]

4. Use of Agents to Solicit

RPC 8.4(a) prohibits a lawyer from using an agent to do that which the lawyer must not
do, e.g., violate a law or disciplinary rule. Thus, a lawyer must not use an agent (sometimes
called a “runner” or “capper”) to contact prospective clients in a manner that would violate
RPC 7.3.

5. Supreme Court Cases on Solicitation

Just to recap, the Supreme Court has held that states may ban in-person solicitation, but they
cannot impose a total ban on media advertisements or direct mail letters merely because
they target potential clients with a particular problem. (See A., supra.)

D. COMMUNICATION OF FIELDS OF PRACTICE

A lawyer may communicate the fact that she does or does not practice in particular fields of
law. A lawyer who is admitted to patent practice before the United States Patent and Trademark
Office may use the designation “Patent Attorney” or a substantially similar designation. Similarly,
a lawyer engaged in admiralty practice may use the designation “Admiralty,” “Proctor in
 PROFESSIONAL RESPONSIBILITY 19.

Admiralty,” or a substantially similar designation. A lawyer may not state or imply that she is
certified as a specialist in a particular field of law, unless:

(i) The lawyer has been certified as a specialist by an organization approved by an appropriate
state authority or accredited by the ABA; and

(ii) The name of the certifying organization is clearly identified in the communication.

[RPC 7.4]

IV. ENTERING INTO THE LAWYER-CLIENT RELATIONSHIP

A. CREATING THE LAWYER-CLIENT RELATIONSHIP

A lawyer-client relationship arises when:

(i) A person manifests an intent that the lawyer provide legal services and the lawyer agrees;

(ii) A person manifests an intent to have the lawyer represent him, the lawyer fails to make clear
that he does not want to undertake the representation, and the lawyer knows or should know
that the prospective client is reasonably relying on the lawyer to provide the services; or

(iii) A tribunal appoints a lawyer to represent a client.

[Restatement of the Law (Third) Governing Lawyers (hereinafter “Restatement”) §14]

1. Implied Assent and Reasonable Reliance

The lawyer’s assent is implied when he fails to clearly decline representation and the
prospective client reasonably relies on the representation. The reasonableness of the reliance
is a question of fact.
Examples: 1) Client Carla writes a letter to attorney Aida, asking Aida to represent her
in a personal injury case. Aida never responds to the letter. One year later, the
statute of limitations expires on Carla’s claim, and she sues Aida for malprac-
tice for failing to file the suit. Here, there was no attorney-client relationship.
Although Aida did not expressly decline the representation, it was unreason-
able for Carla to rely on Aida’s representation based on an unanswered letter.
[See Restatement §14, illus. 3]

2) Client Casey calls lawyer Lisa’s office asking that Lisa represent him
in a court proceeding relating to his arrest for driving under the influence
(“DUI”). Lisa is out of the office. Casey tells Lisa’s secretary that he under-
stands that Lisa handles many DUI cases and hopes that she will take the case
even though the court date is only 10 days away. The secretary tells Casey
to send over all papers relevant to the proceeding. She does not tell him that
Lisa will decide whether to take the case only after reviewing the papers. One
day before Casey’s court date, Lisa phones Casey and declines to represent
him. Here, it would likely be found that an attorney-client relationship existed
because Casey’s reliance was reasonable. Lisa regularly handled DUI cases,
20. PROFESSIONAL RESPONSIBILITY

her agent responded to his request for help by asking him to send the papers,
and the imminence of the hearing made it appropriate for Lisa to decline
while there was still time for Casey to get another lawyer. [Restatement §14,
illus. 4]

B. BASIC RESPONSIBILITY TO RENDER PUBLIC INTEREST LEGAL SERVICE

A lawyer should aspire to render a specified minimum number of hours of pro bono publico
legal services per year. The Model Rules suggest 50 hours of such service per year. A substan-
tial majority of the hours should be devoted without fee to poor persons or to organizations in
matters that are designed primarily to address the needs of poor persons. Other services should be
provided through: (i) delivery of legal services for free or at a substantially reduced fee to persons
or groups seeking to secure civil or public rights; (ii) delivery of legal services at a substantially
reduced fee to poor persons; or (iii) participation in activities to improve the law, legal system,
or legal profession. Also, a lawyer should voluntarily contribute financially to organizations that
provide legal services to poor persons. [RPC 6.1]

1. Law Reform Activities Affecting Client Interests

A lawyer may participate in law reform activities even if such reform may affect the interests
of any of her clients. However, when the lawyer knows that a client’s interests may materially
benefit due to a decision in which the lawyer participates, the lawyer must disclose that fact
to the reform organization (but need not identify the client). [RPC 6.4]

C. ACCEPTING APPOINTMENTS
A lawyer must not seek to avoid appointment by a tribunal to represent a person except for good
cause, such as: (i) representing the client is likely to result in a violation of the RPC or other law;
(ii) representing the client is likely to result in an unreasonable financial burden on the lawyer; or
(iii) the client or the cause is so repugnant to the lawyer as to be likely to impair the lawyer-client
relationship or the lawyer’s ability to represent the client. [RPC 6.2]

D. CLIENT WITH DIMINISHED CAPACITY

When a client’s capacity to make adequately considered decisions in connection with the repre-
sentation is diminished, whether because of minority, mental impairment, or some other reason,
the lawyer must, as far as reasonably possible, maintain a normal lawyer-client relationship with
the client. A lawyer may seek the appointment of a guardian or take other protective action with
respect to a client with diminished capacity if the lawyer reasonably believes that the client cannot
adequately act to protect herself from substantial physical, financial, or other harm. If the lawyer
takes protective action, he is impliedly authorized under RPC 1.6(a) to reveal information about
the client to the extent reasonably necessary to protect the client’s interests. [RPC 1.14]

E. EMERGENCY LEGAL ASSISTANCE TO NONCLIENT WITH DIMINISHED

CAPACITY
Where the health, safety, or financial interest of a person with seriously diminished capacity is
threatened with imminent and irreparable harm, a lawyer may take legal action on behalf of the
person. This is true even though the impaired person is unable to establish a lawyer-client relation-
ship or to make or express considered judgments about the matter. However, the impaired person
(or someone acting on her behalf) must have consulted the lawyer before he may undertake legal
action on her behalf. [RPC 1.14, comment 9]
 PROFESSIONAL RESPONSIBILITY 21.

1. Limits on Lawyer’s Ability to Render Emergency Legal Assistance

Even in an emergency, a lawyer should not act unless he reasonably believes the impaired
person has no other lawyer or representative available. When the lawyer acts, he should act
only to the extent reasonably necessary to avoid imminent and irreparable harm, and, in this
situation, the lawyer owes the same duties to the impaired person as he would with respect
to a client, including the duty of confidentiality. Furthermore, the lawyer should take steps to
regularize the relationship, or implement other protective solutions, as soon as possible.

2. No Compensation for Emergency Legal Assistance

Normally, a lawyer should not seek compensation for emergency actions taken on behalf of
an impaired person.

F. AVOIDING CONFLICTS OF INTEREST

A lawyer must be careful not to enter into a relationship where there is a potential conflict of
interest that is likely to adversely affect his ability to exercise independent and professional
judgment. After accepting employment, a lawyer should carefully refrain from acquiring a
property right or assuming a position that would tend to make his judgment less protective of the
interests of his client unless the client consents.

1. Concurrent Conflicts of Interest

Except on the conditions stated in a., below, a lawyer must not represent a client if the repre-
sentation creates a concurrent conflict of interest. A concurrent conflict of interest exists
when: (i) the representation of a client will be directly adverse to the interests of another
client; or (ii) there is a significant risk that the representation of a client will be materially
limited by the lawyer’s personal interests or by his responsibilities to another client, former
client, or third person. [RPC 1.7(a)]

a. Client Consent to Concurrent Conflicts

Despite a concurrent conflict of interest, a lawyer may undertake a representation if the
following four conditions are satisfied:

(i) The lawyer reasonably believes that he can competently and diligently represent
each affected client, despite the concurrent conflict;

(ii) The representation is not prohibited by law (e.g., a state statute prohibits the
lawyer from switching from the prosecution side to the defense side of a criminal
case);

(iii) The representation does not involve the assertion of a claim by one client against
another client who is represented by the lawyer in the same case pending before a
court or other tribunal; and

(iv) Each affected client gives informed consent, confirmed in writing.

[RPC 1.7(b)] Note that condition (i), above, creates a “reasonable lawyer” standard—
i.e., if a reasonable lawyer looking at the facts would have to advise an affected client
not to consent, then the conflict is “unconsentable,” and client consent will not resolve
the conflict. [RPC 1.7, comment 14] Note also that the rule requires “informed” consent,
22. PROFESSIONAL RESPONSIBILITY

which means that each affected client must understand how the conflict could harm
her. [RPC 1.7, comment 18] Sometimes a lawyer’s duty of confidentiality to one client
prevents him from disclosing information that another client needs in order to under-
stand the conflict of interest. In this situation, the conflict is unconsentable. [RPC 1.7,
comment 19] Consent also must be “confirmed in writing,” which means either of two
things: (i) the client executes a writing, or (ii) the lawyer promptly records and trans-
mits a confirmatory writing to the client after the client orally consents to the conflict.
Under the RPC, a “writing” includes electronic transmissions (e.g., e-mail). [RPC 1.7,
comment 20]

1) Consent to Future Conflicts

Whether a client may effectively consent to conflicts that may arise in the future
depends on the test in a., above. Such a waiver is more likely to be valid if it is
comprehensive and specific—i.e., the lawyer explains the types of future repre-
sentations that might arise and the actual and reasonably foreseeable adverse
consequences of those representations. Thus, if the client agrees to consent to a
particular type of conflict with which the client is already familiar, the consent is
likely to be valid. Open-ended, general waivers are likely to be ineffective because
it is not reasonably likely that the client will have understood the material risks
involved. [RPC 1.7, comment 22]

b. Representation of Multiple Parties in a Single Matter

A common issue arises when two or more parties ask a single lawyer to represent them
in a matter. The advantages of having a single lawyer are obvious: the cost will probably
be lower than having two lawyers, and the single lawyer can present a united front for
both clients. The disadvantages are also obvious: the interests of the two clients may be
mostly harmonious but partly or potentially in conflict (e.g., one personal injury plain-
tiff may need money badly and may therefore be anxious to accept a joint settlement
offer that the other plaintiff thinks is too low).

1) Criminal Litigation
The Sixth Amendment guarantees every criminal defendant the right to effec-
tive assistance of counsel. Because the interests of criminal co-defendants are
very likely to diverge, ordinarily a lawyer should not try to defend two people in a
criminal case. [RPC 1.7, comment 23]

2) Civil Matters
In civil litigation and in nonlitigation matters, one lawyer may represent two
parties or clients whose interests are potentially in conflict if, after analyzing the
facts and applicable law, the lawyer concludes that she can effectively represent
both clients. (If the clients’ positions are already antagonistic, the lawyer gener-
ally should not take on the representation.) The lawyer must obtain the clients’
consent as described in a., above. In doing so, the clients must be advised that if
litigation arises between them regarding the matter, neither of them can claim the
attorney-client privilege for their communications with that lawyer. Therefore, the
lawyer should ordinarily make clear to all clients at the outset that whatever one
client discloses will be shared with all of the other clients. If the potential conflict
eventually ripens into a present conflict, the lawyer must analyze the situation
 PROFESSIONAL RESPONSIBILITY 23.

again and re-address the conflict, which may involve repeating the steps in a.,
above. However, if a reasonable lawyer would have to advise either of the two
clients not to consent, the lawyer must withdraw. [RPC 1.7 and comments] The
lawyer may continue to represent one consenting client, but only if the client who
is dropped provides informed consent, confirmed in writing. [See RPC 1.9(a)]
c. Specific Kinds of Conflicts
RPC 1.8 augments the foregoing general rule on concurrent conflicts by identifying
specific conflict situations. As you will see, some of the situations can be solved by
obtaining the affected clients’ informed consents, and others cannot.

1) Ownership or Financial Interest Adverse to Client

A lawyer must not enter into a business transaction with a client or knowingly
acquire an ownership or other pecuniary interest adverse to a client unless:

(i) The transaction and terms under which the lawyer acquires the interest are
fair and reasonable to the client and are fully disclosed and transmitted in
writing to the client in a manner that can be reasonably understood by the
client;

(ii) The client is informed in writing of the desirability of seeking, and is given
a reasonable chance to seek, the advice of independent legal counsel on the
transaction; and

(iii) The client understands the lawyer’s role in the transaction, including whether
the lawyer is representing the client, and the client gives informed consent in
a signed writing.

[RPC 1.8(a)]

a) Exception for Standard Commercial Transactions

The prohibition against entering into a business transaction with a client does
not apply to standard commercial transactions between the lawyer and the
client for products or services that the client generally markets to others, such
as banking or brokerage services, medical services, products manufactured or
distributed by the client, and utilities services. The reason for this exception is
that the lawyer has no advantage in dealing with the client in such situations.
[RPC 1.8, comment 1]

2) Improper Use of Information Adverse to Client

A lawyer must not use information relating to the representation of a client to
the disadvantage of the client unless the client gives informed consent, except as
permitted or required by the Rules of Professional Conduct. [RPC 1.8(b)]

3) Designating Oneself as a Beneficiary

A lawyer must not solicit a substantial gift from a client or prepare an instrument
giving the lawyer or a person related to the lawyer any substantial gift from a client,
including a testamentary gift, except when the client is related to the donee. [RPC
1.8(c)] For purposes of this rule, “related” means a spouse, child, grandchild, parent,
24. PROFESSIONAL RESPONSIBILITY

grandparent, or other person with whom the lawyer or client has a close, familial
relationship.

4) Literary or Media Rights Based on Representation

Prior to the conclusion of representation of a client, a lawyer must not make or
negotiate an agreement giving the lawyer literary or media rights to a portrayal or
account based, in substantial part, on information relating to the representation.
[RPC 1.8(d)]

5) Financial Assistance to Client

A lawyer must not provide financial assistance to a client in connection with
pending or contemplated litigation, except that: (i) a lawyer may advance court
costs and expenses of litigation, the repayment of which may be contingent on the
outcome of the matter; and (ii) a lawyer representing an indigent client may pay
court costs and expenses of litigation on behalf of the client. [RPC 1.8(e)]

6) Compensation from Party Other than Client

A lawyer must not accept compensation for representing a client from someone
other than the client unless: (i) the client gives informed consent, (ii) there is no
interference with the lawyer’s independence of professional judgment or with the
lawyer-client relationship, and (iii) information relating to the representation of the
client is protected as required by RPC 1.6 (relating to confidentiality of informa-
tion). [RPC 1.8(f)]

7) Aggregate Settlement or Agreement in Multiple Representation

A lawyer who represents two or more clients must not participate in making an
aggregate settlement of the claims of or against the clients, or in a criminal case
an aggregate agreement as to guilty or no contest pleas, unless each client gives
informed consent in a signed writing. The lawyer’s disclosure must explain the
existence and nature of all the claims or pleas involved and of the participation of
each person in the settlement or agreement. [RPC 1.8(g)]
8) Limiting Liability for Malpractice
A lawyer must not make an agreement prospectively limiting the lawyer’s liability
to a client for malpractice unless the client is independently represented in making
the agreement. [RPC 1.8(h)]

9) Settling Malpractice Claim with Unrepresented Client or Former Client

A lawyer must not settle a claim or potential claim for malpractice liability with an
unrepresented client or former client without advising that person in writing that
independent counsel is desirable and giving that person a reasonable chance to
consult with independent counsel. [RPC 1.8(h)]

10) Proprietary Interest in the Cause of Action

A lawyer must not acquire a proprietary interest in the cause of action or subject
matter of litigation the lawyer is conducting for a client, except that the lawyer
may: (i) acquire a lien authorized by law to secure the lawyer’s fee or expenses,
and (ii) contract with a client for a reasonable contingent fee in a civil case. [RPC
1.8(i)]
 PROFESSIONAL RESPONSIBILITY 25.

11) Sexual Relations Between Lawyer and Client

A lawyer must not have a sexual relationship with a client. This rule applies even if
the relationship is consensual, and even if the client is not harmed. The sole excep-
tion to the rule is when the lawyer and client had a consensual sexual relation-
ship before the lawyer-client relationship began. [RPC 1.8(j)] Even if there was a
preexisting consensual relationship, the lawyer should make sure that his ability to
represent the client will not be affected by the relationship. [RPC 1.8(j), comment
18] Similarly, a lawyer who represents an organization (either as outside or inside
counsel) must not have a sexual relationship with a constituent of the organization
who supervises the lawyer’s work or consults the lawyer about the organization’s
legal matters. [RPC 1.8(j), comment 19] A conflict caused by a sexual relationship
is not imputed to other lawyers in the lawyer’s firm.

2. Conflict of Interest Regarding Former Client

A lawyer who formerly represented a client in a matter may not thereafter represent another
person in the same or a substantially related matter if that person’s interests are materi-
ally adverse to those of the former client, unless the former client gives informed consent,
confirmed in writing. [RPC 1.9(a)] Also, a lawyer is prohibited from knowingly representing
a person in the same or a substantially related matter in which a firm with which the lawyer
formerly was associated had previously represented a client: (i) whose interests are materially
adverse to that person; and (ii) about whom the lawyer had acquired information protected
by RPC 1.6 (relating to confidentiality of information) and RPC 1.9(c) (relating to using or
revealing information) that is material to the matter, unless the former client gives informed
consent, confirmed in writing. [RPC 1.9(b)]

a. Using or Revealing Information

A lawyer who has formerly represented a client in a matter or whose present or former
firm has done so may not thereafter: (i) use information relating to the representation to
the disadvantage of the former client, except as permitted or required by the RPC (e.g.,
relating to confidentiality of information), or when the information has become gener-
ally known; or (ii) reveal information relating to the representation except as permitted
or required by the RPC. [RPC 1.9(c)]

3. Duties to Prospective Client

A prospective client is a person who consults with a lawyer about the possibility of forming
a client-lawyer relationship with respect to a matter. [RPC 1.18(a)] The attorney-client
privilege protects confidential communications between a lawyer and a prospective client.
Also, the ethical duty of confidentiality applies to such consultations. Thus, the lawyer must
not reveal or use information learned during the consultations, unless an exception to the
duty of confidentiality applies. [RPC 1.18(b)]

a. Consultation
Whether communications constitute a consultation making a person a prospective client
depends on the circumstances. It is likely that a consultation has occurred when:

(i) A lawyer, either in person or through advertising, specifically requests or invites

the submission of information about a potential representation without clear
warnings that limit the lawyer’s obligations; and
26. PROFESSIONAL RESPONSIBILITY

(ii) A person provides information in response.

However, a consultation does not occur when a person provides information to a lawyer
in response to an advertisement that merely consists of the lawyer’s biographical infor-
mation, areas of practice, contact information, or legal information of general interest.
Furthermore, someone who contacts the attorney in an effort to disqualify the attorney
(i.e., by creating a conflict of interest) is not a prospective client. [RPC 1.18, comment 2]

b. Lawyer’s Duty Concerning Conflict of Interest

Subject to the exceptions stated in c., below, a lawyer who obtains confidential informa-
tion during a consultation with a prospective client must not later represent a different
person with interests materially adverse to those of the prospective client, in the same
or a substantially related matter, if the confidential information could significantly harm
the prospective client. [RPC 1.18(c)] This conflict is imputed to others in the lawyer’s
firm, but the imputation can be overcome by screening, as stated in c., below.

c. How to Overcome a Prospective Client Conflict

One way to overcome the conflict described above is to obtain informed consent,
confirmed in writing, from both the affected client and the prospective client. [RPC
1.18(d)(1)] A second way to overcome the conflict is to satisfy all of the following
conditions:

(i) Demonstrate that the lawyer who held consultations with the prospective client
took care to avoid exposure to more confidential information than was neces-
sary to determine whether to represent the prospective client;

(ii) Demonstrate that the disqualified lawyer is timely screened from any participa-
tion in the matter and will not share the fee; and

(iii) Give written notice to the prospective client.

[RPC 1.18(d)(2)]

4. Problems with Testifying for Client

An attorney ordinarily may not represent a client in litigation where the attorney is likely to
be a necessary witness. (Note: An attorney may act as advocate in a trial in which another
attorney in the attorney’s firm is likely to be called as a witness unless precluded from doing
so by the rules relating to conflict of interest.) If an attorney is likely to be a necessary
witness, the attorney should refuse employment or, if he has already been retained, should
withdraw from the case. There are three recognized exceptions to this prohibition noted
below. [RPC 3.7]

a. Uncontested Issue
If the attorney’s testimony will relate solely to an uncontested issue, representation is
not prohibited.
Example: In a proceeding concerning an uncontested will, an attorney may testify
as to the testamentary capacity of the decedent.
 PROFESSIONAL RESPONSIBILITY 27.

b. Nature and Value of Legal Services

If an attorney’s testimony will concern only the nature and value of legal services
rendered to the client, the attorney will not be prohibited from representing the client.
Example: B’s suit against C includes a legitimate cause of action for attorneys’
fees. Attorney X may testify as to the value of the services that he has
rendered to B.

c. Substantial Hardship
If the withdrawal of the attorney for the purpose of testifying would result in substantial
hardship to the client (e.g., because of the distinctive value of the attorney or firm to the
case), the attorney may continue to represent the client.
Example: X represents B in a highly complex case that is in the middle of trial.
Defendant C attempts to bribe X. X’s testimony becomes highly relevant
to the case at this point, but he cannot withdraw from the case because B
would not be able to secure adequate replacement representation on such
notice. X should be permitted to testify and to continue to represent B.

5. Conflicts in Corporate Representation

A special problem of multiple representation occurs when a lawyer is asked to represent both
an entity such as a corporation and its labor force or a corporation and its governing compo-
nents (i.e., its directors and officers). [RPC 1.13]

a. Lawyer Represents Organization

A lawyer employed or retained to represent an organization represents the organization
acting through its duly authorized constituents.

b. Lawyer Must Act in Best Interest of Organization

If a lawyer for an organization knows that an officer, employee, or other person associ-
ated with the organization is engaged in action, intends to act, or refuses to act in a
matter related to the representation that is a violation of a legal obligation to the organi-
zation, or a violation of law that reasonably might be imputed to the organization, and
is likely to result in substantial injury to the organization, the lawyer must proceed as is
reasonably necessary in the best interest of the organization.

1) Duty to Report to Higher Authority in the Organization

In the situation described above, the lawyer must ordinarily report the violation to
a higher authority in the organization (e.g., a corporation’s president). If necessary,
the lawyer must report it to the organization’s highest authority (e.g., a corpora-
tion’s outside directors). RPC 1.13(b) does, however, give the lawyer a narrow
range of discretion—she need not report a violation to a higher authority if she
reasonably believes that the organization’s best interest does not require the viola-
tion to be reported.

2) Duty to Report Outside the Organization

If the lawyer reports the violation to the organization’s highest authority, but the
highest authority fails to take timely, appropriate action, the lawyer may report the
relevant information to appropriate persons outside of the organization. This is true
even if the information would otherwise be protected by the duty of confidentiality
28. PROFESSIONAL RESPONSIBILITY

(see V.B.2., infra). [RPC 1.13(c)] However, the lawyer’s authority to report to
outsiders applies only if, and to the extent that, the lawyer reasonably believes
that reporting is necessary to prevent substantial injury to the organization. The
authority to report to outsiders does not apply to a lawyer who is hired by the
organization to investigate an alleged violation of law or to defend the organization
or its constituents against a claimed violation of law. [RPC 1.13(d)]
Example: Attorney A’s corporate client C produces frozen chicken pies. C’s
production process creates large quantities of liquid waste, which C
is supposed to pump into recycling tanks. C’s manufacturing vice
president sometimes orders his workers to dump the waste into
a ditch that drains into some neighboring wetlands; the dumping
is cheaper and quicker, but it gradually destroys the wetlands in
violation of state and federal environmental laws. When A learned
about the dumping, she reported it to C’s president and warned
him that C will be fined millions of dollars if it gets caught. C’s
president ignored A’s warning, so A reported the matter to the
highest authority in the company—the audit committee of the
board of directors. The audit committee did nothing. If A reason-
ably believes that the company will be substantially injured if the
dumping continues, A may report the relevant information to the
appropriate environmental enforcement authority, even if some of
that information would otherwise be protected by the duty of confi-
dentiality. [See RPC 1.13(c)]

3) Whistleblower Protection
A lawyer who reasonably believes that she has been fired because of actions
she took pursuant to RPC 1.13(b) or (c), or who withdraws when circumstances
require or permit her to do so, must proceed as she reasonably believes necessary
to inform the organization’s highest authority of her firing or withdrawal. [RPC
1.13(e)]

c. Explaining Identity of Client

In dealing with an organization’s directors, officers, employees, members, shareholders,
or other constituents, a lawyer must explain the identity of the client when she knows
or reasonably should know that the organization’s interests are adverse to those of the
constituents with whom the lawyer is dealing. [RPC 1.13(f)]

d. Multiple Representation Permissible

A lawyer representing an organization may also represent any of its directors, officers,
employees, members, shareholders, or other constituents, subject to the provisions of
RPC 1.7 (relating to conflict of interest—disclosure and consent requirements). If the
organization’s consent to the dual representation is required, the consent must be given
by an appropriate official of the organization other than the individual who is to be
represented, or by the shareholders. [RPC 1.13(g)]

e. Securities Lawyer’s Duties Under Sarbanes-Oxley Act

In the Sarbanes-Oxley Act of 2002, Congress instructed the Securities and Exchange
Commission (“SEC”) to make rules for securities lawyers who discover their clients
 PROFESSIONAL RESPONSIBILITY 29.

violating federal or state securities laws or similar laws. The SEC rules [see 17 C.F.R.
§§205.1 et seq.] apply to “securities lawyers,” meaning not only lawyers who practice
before the SEC, but also lawyers who advise clients about documents that will be filed
with the SEC or who advise clients about whether information must be filed with the
SEC.

1) Securities Lawyer’s Duty to Report to Chief Legal Officer

If a securities lawyer becomes aware of credible evidence that her client is materi-
ally violating a federal or state securities law, she must report the evidence to her
client’s chief legal officer (“CLO”). The same reporting duty applies to credible
evidence that one of her client’s personnel has breached a fiduciary duty under
federal or state law or has committed a “similar material violation” of federal or
state law.

2) CLO’s Duty to Investigate and Obtain “Appropriate Response” from Client

The CLO must investigate the situation to find out whether a violation occurred. If
the CLO concludes that no violation occurred, he must report that conclusion to the
securities lawyer. If the CLO concludes that a violation did occur, is occurring, or
is about to occur, the CLO must take all reasonable steps to get the client to make
an “appropriate response.” Roughly stated, that means that the client must stop or
remedy the violation and make sure that it does not happen again. The CLO must
report those results to the securities lawyer.

3) Securities Lawyer’s Duty If CLO Fails to Obtain “Appropriate Response”

If the securities lawyer believes that the CLO did not achieve an appropriate
response from the client, the securities lawyer must then report the evidence to one
of the following: (i) the client’s entire board of directors, (ii) the audit committee of
the board, or (iii) a committee made up of outside directors (directors who are not
beholden to the client). Notice that the Sarbanes-Oxley reporting rule is manda-
tory, unlike RPC 1.13, which gives the lawyer some discretion about whether to
report a violation to a higher authority in the organization.

4) Securities Lawyer May Alert the SEC

The Sarbanes-Oxley rules permit, but do not require, the securities lawyer to
reveal to the SEC, without the client’s consent, any confidential information that
is reasonably necessary: (i) to stop the client from committing a violation that will
cause substantial financial injury to the client or its investors; (ii) to rectify such a
financial injury if the lawyer’s services were used to further the violation; or (iii)
to prevent the client from committing or suborning perjury in an SEC matter or
lying in any matter within the jurisdiction of any branch of the federal government.
A securities lawyer who acts in accordance with the Sarbanes-Oxley rules cannot
be held civilly liable for doing so and cannot be disciplined under any inconsistent
state rule. [See 17 C.F.R. §§205.6(c), 205.7]

5) Protection for Securities Lawyer’s Job

If a securities lawyer is fired for doing what the Sarbanes-Oxley rules require, she
may report the firing to the client’s board of directors (thus setting up the client for
an expensive wrongful termination suit).
30. PROFESSIONAL RESPONSIBILITY

6. Imputation of Conflicts

a. Prohibition of One Lawyer Imputed to Entire Firm

While lawyers are associated in a firm, none of them may knowingly represent a client
when any one of them practicing alone would be prohibited from doing so by RPC 1.7
(relating to conflict of interest with current client) or RPC 1.9 (relating to conflict of
interest duties owed to former clients), unless: (i) the prohibition is based on a personal
interest of the prohibited lawyer and does not present a significant risk of materially
limiting the representation of the client by the remaining lawyers in the firm; or (ii) the
disqualified lawyer is timely screened from any participation in the matter (i.e., does not
discuss the case with others at the firm, does not have access to case files), the disquali-
fied lawyer is apportioned no part of the fee from the matter (but receiving a previously
established salary is allowed), and the former client is given notice. [RPC 1.10(a)]

b. Effect of Lawyer’s Termination with Firm

When a lawyer has terminated an association with a firm, the firm is not prohibited
from thereafter representing a person with interests materially adverse to those of a
client represented by the formerly associated lawyer and not currently represented by
the firm unless: (i) the matter is the same or substantially related to that in which the
formerly associated lawyer represented the client; and (ii) any lawyer remaining in the
firm has information protected by RPC 1.6 (relating to confidentiality) and RPC 1.9(c)
(relating to using or revealing information pertaining to the representation) that is
material to the matter. [RPC 1.10(b)]

c. Waiver of Imputed Disqualification

A disqualification may be waived by the affected client. [RPC 1.10(c)]

7. Successive Government and Private Employment

a. Prior Public Legal Employment May Create Conflict of Interest

Except as otherwise expressly permitted by law, a lawyer who formerly worked as a
public officer or government employee must not represent a private client in connec-
tion with a matter in which the lawyer participated personally and substantially as a
public officer or employee, unless the appropriate government agency gives informed
consent, confirmed in writing, to the representation. Also, the lawyer is subject to RPC
1.9(c) (relating to using or revealing information relating to the representation of a
former client). For purposes of this rule, a “matter” is one that involves a specific party
or parties. Thus, researching or drafting legislation is not a “matter” giving rise to a
conflict. [RPC 1.11(a), (e)]

b. Lawyer’s Conflict of Interest Not Necessarily Imputed to Firm

No lawyer in a firm with which the former government lawyer is associated may
knowingly undertake or continue representation in a matter in which the lawyer partici-
pated personally and substantially as a public officer or employee unless:

(i) The disqualified lawyer is timely screened from any participation in the matter and
is apportioned no part of the fee therefrom; and
 PROFESSIONAL RESPONSIBILITY 31.

(ii) Written notice is promptly given to the appropriate government agency to enable it
to ascertain compliance with the provisions of this rule.

[RPC 1.11(b)]

c. Conflict of Interest May Arise If Lawyer Has Confidential Information

Except as law may otherwise expressly permit, a lawyer having information that the
lawyer knows is confidential government information about a person, acquired when
the lawyer was a public officer or employee, may not represent a private client whose
interests are adverse to that person in a matter in which the information could be used
to the material disadvantage of that person. A firm with which that lawyer is associated
may undertake or continue representation in the matter only if the disqualified lawyer
is timely screened from any participation in the matter and is apportioned no part of the
fee therefrom. [RPC 1.11(c)]

d. Prohibited Actions of Public Law Officer or Employee

Except as otherwise expressly permitted by law, a lawyer currently serving as a public
officer or employee may not: (i) participate in a matter in which she participated person-
ally and substantially while in private practice or nongovernmental employment, unless
the appropriate government agency gives informed consent, confirmed in writing; or (ii)
negotiate for private employment with any person who is a party or a lawyer for a party
in a matter in which the lawyer is participating personally and substantially, except that
a lawyer who is a law clerk to a judge or arbitrator may negotiate for private employ-
ment after so notifying the judge or arbitrator. [RPC 1.11(d)]

8. Former Judge, Arbitrator, Mediator, or Other Third-Party Neutral

A lawyer must not represent anyone in connection with a matter in which the lawyer partici-
pated personally and substantially as a judge or other adjudicative officer, or law clerk to
such a person, or as an arbitrator, mediator, or other third-party neutral (see infra) unless all
parties to the proceeding give informed consent, confirmed in writing. However, an arbitrator
selected as a partisan of a party in a multimember arbitration panel is not prohibited from
subsequently representing that party. [RPC 1.12] If a lawyer is disqualified pursuant to this
rule, no lawyer in a firm with which that lawyer is associated may knowingly undertake or
continue representation in the matter unless: (i) the disqualified lawyer is timely screened
from any participation in the matter and is apportioned no part of the fee therefrom; and (ii)
written notice is promptly given to the parties and any appropriate tribunal to enable them to
ascertain compliance with this rule.

9. Lawyer Serving as a Third-Party Neutral

A third-party neutral is a person who assists two or more other persons in resolving a dispute
between them. [RPC 2.4] Arbitrators and mediators are examples of third-party neutrals. A
third-party neutral is often a nonlawyer. When a lawyer serves as a third-party neutral, the
lawyer does not represent any of the parties as clients, and the lawyer must make that fact
clear to parties who are not represented by their own lawyers. If an unrepresented party is a
novice at this form of dispute resolution, the lawyer who acts as a third-party neutral should
explain the differences between the role of a third-party neutral and the role of a lawyer who
represents a client (e.g., the absence of the attorney-client privilege). [RPC 2.4, comment 3]
32. PROFESSIONAL RESPONSIBILITY

10. Nonprofit and Court-Annexed Limited Legal Service Programs

Under a program sponsored by a nonprofit organization or court, a lawyer may provide short-
term limited legal services to a client without any expectation of a continuing representation
in the matter. In such circumstances, the lawyer is subject to RPC 1.7 (relating to conflicts
of interest with current clients) and RPC 1.9(a) (relating to conflict of interest duties owed
to former clients) only if she knows that representation of the short-term client involves a
conflict. The lawyer is subject to RPC 1.10 (relating to imputed conflicts) only if she knows
that another lawyer associated with her in a firm is disqualified by RPC 1.7 or RPC 1.9(a)
with respect to the matter. [RPC 6.5]

G. ESTABLISHING COMPENSATION FOR LEGAL SERVICES

The fee arrangement for representation of a client is a matter left for the individual attorney
and client. There are, however, certain principles governing the setting of fees and the forms of
compensation.

1. Duty to Avoid Fee Misunderstandings

Before or within a reasonable time after commencing the representation of a client, the
lawyer must communicate to the client the scope of the representation, the basis or rate of
the fee, and any expenses for which the client will be responsible. The communication would
preferably be in writing and need not be given when the lawyer is charging a regularly repre-
sented client on the same basis or rate. Any changes in the basis, rate, or expenses must also
be communicated to the client. [RPC 1.5(b)]

2. Fee Must Be Reasonable

A lawyer must not make an agreement for, charge, or collect an unreasonable fee or an
unreasonable amount for expenses. Among the factors to be considered in determining the
reasonableness of a fee are:

(i) The time and labor required;

(ii) The novelty and difficulty of the questions involved;

(iii) The skill required to perform the legal service;

(iv) The likelihood, if apparent to the client, that acceptance of the particular employment
will preclude other employment;

(v) The customary fee within the locality for similar work;

(vi) The amount involved and the result obtained;

(vii) The nature and length of the relationship between the parties;

(viii) The experience, ability, and reputation of the attorney;

(ix) The time limitations imposed by the client or the circumstances; and

(x) Whether the fee is fixed or contingent.

[RPC 1.5(a)]
 PROFESSIONAL RESPONSIBILITY 33.

3. Minimum and Maximum Fee Schedules

a. Minimum Fees Violate Antitrust Laws

In Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975), the United States Supreme Court
declared that the imposition of minimum fee schedules by state bar associations was a
violation of the federal antitrust laws.
b. Regulation of Maximum Fees
Maximum fees for certain types of legal work have been imposed in a number of juris-
dictions either by statute, court rules, or court decisions. Areas affected by such regula-
tion include workers’ compensation claims, claims by soldiers against the government,
probate and guardianship matters, Social Security claims, representation of indigents
in criminal proceedings, and contingent fee arrangements. Such maximums are strictly
enforced, although procedures may exist for additional compensation in unusual cases.
Under the reasoning of the Court in Arizona v. Maricopa County Medical Society, 457
U.S. 332 (1982), an agreement by members of a bar association to follow a schedule of
maximum fees would probably violate the antitrust laws.

4. Contingent Fees
A contingent fee is a fee that is dependent on the successful resolution of a client’s case and
payable from the judgment proceeds. Usually, such fees take the form of a set percentage of
the recovery, the fee being zero if there is no recovery. The RPC approve of contingent fees
within certain limits.

a. Disclosure Requirements
A contingent fee agreement must be in writing, signed by the client, and state the
method by which the fee is to be determined, including: (i) the percentage or percent-
ages that accrue to the lawyer in the event of settlement, trial, or appeal; (ii) litigation
and other expenses to be deducted from the recovery; and (iii) whether such expenses
are to be deducted before or after the contingent fee is calculated. Also, the agreement
must clearly notify the client of any expenses for which the client will be liable regard-
less of whether the client prevails. Upon conclusion of a contingent fee matter, the
lawyer must provide the client with a written statement of the outcome of the matter.
Such statement must also show any remittance to the client and the method of its deter-
mination. [RPC 1.5(c)]

b. Offer of Other Fee Arrangement

If there is any doubt as to whether a contingent fee is consistent with the client’s best
interest, the lawyer should offer the client alternative bases for the fee and explain their
implications. [ABA Formal Op. 94-389 (1994)] A contingent fee does not become
improper simply because the client can afford to pay on some other basis or the case is
a clear winner, but in those situations the lawyer should give the client a chance to make
an informed choice as to the fee arrangement. [ABA Formal Op. 94-389 (1994)]

c. When Contingent Fee Is Prohibited

1) Criminal Cases
A lawyer is subject to discipline for using a contingent fee arrangement when
defending a person in a criminal case. [RPC 1.5(d)(2)]
34. PROFESSIONAL RESPONSIBILITY

2) Domestic Relations Cases

A lawyer is also subject to discipline for using a contingent fee in a domestic
relations case when the contingency is based on the securing of a divorce, the
amount of alimony or support, or the amount of a property settlement. [RPC 1.5(d)
(1)] However, a lawyer may use a contingent fee in a suit to recover money that is
past due under an alimony or support decree.

d. Discharge of a Lawyer on Contingency

A client retains the authority to discharge a lawyer hired on a contingency basis at any
stage of the proceedings. Usually, but not always, the lawyer will be entitled to the
reasonable value of the services performed up to the time of the discharge.

5. Referral Fees Are Unethical

“Referral fees,” whereby the primary attorney pays a portion of his fee to a second attorney
who suggested him to the client, are clearly unethical. An attorney may ethically divide fees
with an outside attorney only if: (i) the division is proportional to the services performed by
each attorney or each attorney assumes joint responsibility for the representation; and (ii)
the client agrees in writing to this arrangement, including the share allotted to each lawyer.
[RPC 1.5(e)] In all cases, the total fee must be reasonable.

V. THE LAWYER’S RESPONSIBILITIES TO THE CLIENT

A. THE BASIC OBLIGATIONS OF COMPETENCE AND CARE

Once having entered into a lawyer-client relationship, a lawyer must act competently and with care
in handling legal matters for that client. There are several facets to these related obligations.

1. Competent Representation
Competent representation requires the legal knowledge, skill, thoroughness, and preparation
reasonably necessary for the representation. [RPC 1.1]

a. Knowledge and Skill

In determining whether a lawyer employs the requisite knowledge and skill in a partic-
ular matter, relevant factors include the relative complexity and specialized nature of the
matter, the lawyer’s general experience, the lawyer’s training and experience in the field
in question, the preparation and study the lawyer is able to give the matter, and whether
it is feasible to refer the matter to, or associate or consult with, a lawyer of established
competence in the field in question. In many instances, the required proficiency is that
of a general practitioner. Expertise in a particular field of law may be required in some
circumstances.

1) Retaining Other Lawyers to Assist in the Matter

Before a lawyer retains or contracts with lawyers outside her firm to assist in the
provision of legal services to the client, she should: (i) reasonably believe that
the services of the outside lawyers will contribute to the competent and ethical
representation of the client, and (ii) obtain the client’s informed consent. [RPC
1.1, comment 6] When lawyers from more than one firm provide legal services to
 PROFESSIONAL RESPONSIBILITY 35.

a client on a particular matter, they should consult with each other and with the
client regarding the scope of their respective representations and the allocation of
responsibility among them. [RPC 1.1, comment 7]

b. Thoroughness and Preparation

Adequate preparation is determined in part by what is at stake. Major litigation and
complex transactions ordinarily require more extensive treatment than matters of lesser
complexity and consequence.

2. Diligence
A lawyer must act with reasonable diligence and promptness in representing a client. [RPC
1.3] A lawyer’s workload must be controlled so that each matter can be handled competently.
[RPC 1.3, comment 2]

3. Communication
A lawyer must keep a client reasonably informed about the status of a matter and promptly
comply with reasonable requests for information. A lawyer must explain a matter to the
extent reasonably necessary to permit the client to make informed decisions regarding the
representation. When the lawyer knows that the client expects assistance not permitted by the
RPC or other law, the lawyer must consult with the client about any relevant limitation on the
lawyer’s conduct. [RPC 1.4]

B. THE DUTY TO PRESERVE CONFIDENTIALITY OF INFORMATION

1. Attorney-Client Privilege
Generally, the attorney-client privilege allows a client to refuse to testify and prevent his
attorney from testifying in court about communications between the two. It applies to confi-
dential communications made by an individual to an attorney who is sought out for the
purpose of obtaining legal advice. The theory behind the rule is to promote full disclosure
between the client and the attorney so that the attorney can most capably represent the client.
A client is a person or entity seeking legal services from an attorney.

a. Corporate Client—Attorney-Employee Communications

When the client is a corporation, the privilege covers confidential communications
between the attorney and a high-ranking corporate official. It also covers communica-
tions between the attorney and other corporate employees if:

(i) The employee communicates with the attorney at the direction of the employee’s
superior;

(ii) The employee knows that the communication is to help the corporation get legal
advice; and

(iii) The communication concerns a subject within the scope of the employee’s duties
for the corporation.

[Upjohn Co. v. United States, 449 U.S. 383 (1981)]

36. PROFESSIONAL RESPONSIBILITY

b. Privilege Limited to Communications Between Parties

The attorney-client privilege is limited to communications between the parties;
the privilege does not apply to anything the attorney discovers on her own. If the
substance of the communication is revealed to another who is not a party to the privi-
leged relationship, the privilege is destroyed. However, an exception is made for those
individuals, such as law clerks and secretaries, who are necessary to enable the attorney
to properly perform her duties. In such situations, the privilege extends to communica-
tions made in the presence of such essential third parties.

c. Duration of Privilege
The attorney-client privilege continues indefinitely. Termination of the attorney-client
relationship does not terminate the privilege. The attorney-client privilege even
survives the death of the client. Rationale: Knowing that communications will remain
confidential even after death encourages the client to communicate fully and frankly
with his attorney. [Swidler & Berlin v. United States, 524 U.S. 399 (1998)]

2. Duty of Confidentiality
Except as noted below, a lawyer must not reveal information relating to the representation
of a client. [RPC 1.6] The duty of confidentiality applies to all information “relating to the
representation,” regardless of when or where it was acquired, whether the client asked for
it to be kept in confidence, and whether revealing it might harm or embarrass the client.
The duty of confidentiality continues to apply even after the lawyer-client relationship has
terminated. Note that the duty of confidentiality is broader than the attorney-client privilege,
which covers only confidential communications between the attorney and the client, or their
respective agents. Note also that an attorney must not make disclosures that could reasonably
lead to discovery of confidential information by a third person.
a. Exceptions to Duty

1) Disclosure with Consent or Implied Authority

A lawyer may reveal information relating to the representation of a client if the
client gives informed consent or if the disclosure is impliedly authorized in order
to carry out the representation. [RPC 1.6(a)]

2) Disclosure to Prevent Death or Substantial Bodily Harm

A lawyer may reveal information to the extent that she reasonably believes neces-
sary to prevent reasonably certain death or substantial bodily harm. [RPC 1.6(b)
(1)]

3) Disclosure to Prevent or Rectify Substantial Financial Loss

To the extent she reasonably believes necessary, a lawyer may disclose informa-
tion relating to the representation of a client to prevent the client from committing
a crime or fraud that is reasonably certain to cause substantial financial loss to a
person if the client is using or has used the lawyer’s services to commit the crime
or fraud. The same is true if disclosure is necessary to rectify or mitigate the finan-
cial loss. [RPC 1.6(b)(2), (3)]

4) Disclosure Required by Court, Ethics Rules, or Law

To the extent she reasonably believes necessary, a lawyer must comply with a court
 PROFESSIONAL RESPONSIBILITY 37.

order or other law requiring the lawyer to give information about a client. Note
that there are also circumstances under which the ethical rules permit or require
the lawyer to disclose information relating to the representation (e.g., when false
evidence is introduced in court). Lastly, there may be statutes requiring the lawyer
to reveal information in certain circumstances. [RPC 1.6]
5) Disclosure Necessary to Collect a Fee or Protect Lawyer
A lawyer may reveal information to the extent the lawyer reasonably believes
necessary to establish a claim or defense on behalf of the lawyer in a controversy
between the lawyer and the client, to establish a defense to a criminal charge or
civil claim against the lawyer based upon conduct in which the client was involved,
or to respond to allegations in any proceeding concerning the lawyer’s representa-
tion of the client. [RPC 1.6(b)(5)]

6) Disclosure to Obtain Legal Ethics Advice

To the extent she reasonably believes necessary, a lawyer may also disclose confi-
dential information to obtain confidential legal advice about the lawyer’s personal
duty to comply with legal ethics rules. [RPC 1.6(b)(4)]
7) Disclosure Necessary to Address Conflicts of Interest
A lawyer may reveal information to the extent she reasonably believes necessary
to detect and resolve conflicts of interest arising from her change of employment or
from changes in a law firm’s composition or ownership (e.g., merger or purchase of a
law practice). However, the lawyer must not reveal information that would compro-
mise the attorney-client privilege or otherwise prejudice the client. [RPC 1.6(b)(7)]

b. Acting Competently to Preserve Confidentiality

A lawyer must make reasonable efforts to prevent the inadvertent or unauthorized
disclosure of, or unauthorized access to, information relating to a client’s representation.
[RPC 1.6(c)] The reasonableness of the lawyer’s efforts would depend on such factors
as: the sensitivity of the information, the likelihood of disclosure absent appropriate
safeguards, the cost and difficulty of implementing such safeguards, and the extent to
which the safeguards adversely affect the lawyer’s ability to represent clients. [RPC 1.6,
comment 18]

3. Evaluation for Use by Third Persons

A lawyer may provide an evaluation of a matter affecting a client for use by someone other
than the client if:

(i) The lawyer reasonably believes that making the evaluation is compatible with other
aspects of the lawyer’s relationship with the client; and

(ii) The lawyer obtains the client’s informed consent if the evaluation is likely to materi-
ally harm the client’s interests.

[RPC 2.3] Such evaluation may include, for example, an opinion concerning the title of
property rendered at the behest of a vendor for the information of a prospective purchaser, or
at the behest of a borrower for the information of a prospective lender. In some situations, the
evaluation may be required by a government agency.
38. PROFESSIONAL RESPONSIBILITY

Except as disclosure is required in connection with a report of an evaluation, information

relating to the evaluation is otherwise protected by the confidentiality of information rules.

C. THE DUTY TO PROTECT A CLIENT’S PROPERTY

1. Separation of Funds
A lawyer must hold property of clients or third persons that is in the lawyer’s possession in
connection with a representation separate from the lawyer’s own property. Funds must be
kept in a separate account maintained in the state where the lawyer’s office is situated, or
elsewhere with the consent of the client or third person. Other property must be identified as
such and appropriately safeguarded. [RPC 1.15(a)] A lawyer may deposit her own funds in a
client trust account solely to pay bank service charges, but only in an amount necessary for
this purpose. A lawyer must deposit into the account legal fees and expenses that were paid
in advance, to be withdrawn only as fees are earned or expenses are incurred. [RPC 1.15(b),
(c)]

2. Recordkeeping Requirements
Complete records of client account funds and other property must be kept by the lawyer and
must be preserved for a period to be designated by individual states (typically five years)
after termination of the representation. [RPC 1.15(a)]

3. Lawyer’s Duty to Keep Client Informed

Upon receiving funds or other property in which a client or third person has an interest, a
lawyer must promptly notify the client or third person. [RPC 1.15(d)]

4. Remittance of Funds and Property

Except as stated in RPC 1.15, or otherwise permitted by law or by agreement with the client,
a lawyer must promptly deliver to the client or third person any funds or other property that
the client or third person is entitled to receive and, upon request by the client or third person,
must promptly render a full accounting regarding such property. [RPC 1.15(d)]

5. Property Claimed by Lawyer and Other Person

When in the course of representation a lawyer possesses property in which at least two
persons (one of whom may be the lawyer) claim interests, such property must be kept
separate by the lawyer until resolution of the dispute. The lawyer must promptly distribute all
portions of the property that are not in dispute. [RPC 1.15(e)]

VI. THE DUTIES AND BOUNDS OF A LAWYER’S REPRESENTATION

A. DUTY AS ADVISER
In representing a client, a lawyer must exercise independent professional judgment and render
candid advice. In rendering advice, a lawyer may refer not only to law, but to other considerations
such as moral, economic, social, and political factors that may be relevant to the client’s situation.
[RPC 2.1]

B. SCOPE OF REPRESENTATION
 PROFESSIONAL RESPONSIBILITY 39.

1. Lawyer Must Abide by Client’s Decisions

A lawyer must abide by a client’s decisions concerning the objectives of the representation
and must consult with the client as to the means by which the objectives are to be pursued.
A lawyer must abide by a client’s decision whether to settle a matter. In a criminal case, the
lawyer must abide by the client’s decision, after consultation with the lawyer, as to what plea
to enter, whether to waive a jury trial, and whether the client will testify. [RPC 1.2(a)] In
addition, a lawyer may act on behalf of the client, as she is impliedly authorized to carry out
the representation, and may reasonably limit the scope of the representation with the client’s
informed consent. [RPC 1.2(a),(c)]

2. Lawyer’s Representation Does Not Constitute Endorsement of Client’s Views

Representation of a client, including representation by appointment, does not constitute an
endorsement of that client’s political, economic, social, or moral views or activities. [RPC
1.2(b)]

3. Lawyer Must Act Within Bounds of Law

A lawyer must not counsel or assist a client in conduct that the lawyer knows is criminal or
fraudulent. However, the lawyer may discuss the legal consequences of proposed courses of
conduct, and may counsel or assist the client in a good faith effort to determine the validity,
scope, meaning, or application of the law. [RPC 1.2(d)] Determining the validity of a statute
may require that a client disobey the statute. [RPC 1.2, comment 12]
Example: The school board adopted a rule prohibiting public school students from
wearing certain articles of religious significance while attending school. A
group of concerned citizens asked Attorney how to challenge the constitution-
ality of the rule. Attorney may advise them of the several ways to gain legal
standing, including disobedience of the rule.

a. Discussing Proposed Conduct

The fact that a client uses the lawyer’s advice to carry out a crime or fraud does not by
itself make the lawyer a party to the illegal conduct. [RPC 1.2, comment 9]

b. Discovering Illegal Conduct

When a lawyer originally believes that a client is engaged in lawful conduct, but then
discovers that the client is using the lawyer’s services to commit a crime or fraud, the
lawyer must withdraw. [RPC 1.16(a)(1); 1.2, comment 10]

C. TRANSACTIONS WITH THIRD PERSONS

1. Communication with Adverse Parties and Third Persons

a. Communication with Represented Person Impermissible

In the representation of a client, a lawyer must not communicate about the subject of the
representation with a person he knows to be represented by counsel in the matter unless
the other counsel has granted permission or he is otherwise authorized by law or court
order to make such direct communication. [RPC 4.2] This rule applies to communica-
tions with any person, even if not a party to a formal adjudicative proceeding, contract,
or negotiation, who is represented by counsel concerning the matter to which the
communication relates.
40. PROFESSIONAL RESPONSIBILITY

1) Exception—Lawyer Does Not Have Actual Knowledge of Representation

The prohibition on communications with a represented person applies only if the
lawyer knows that the person is represented in the matter to be discussed. This
requires actual knowledge of the representation. However, knowledge may be
inferred from the circumstances. Therefore, a lawyer cannot evade the requirement
of obtaining the consent of counsel by closing her eyes to the obvious. [RPC 4.2,
comment 8]

2) Exception—Communication Authorized by Law

A lawyer is not prohibited from communicating with a represented person if the
communication is authorized by law. Communications authorized by law include,
for example, the right of a party to a controversy with a government agency to
speak with government officials about the matter. Such authorized communica-
tions also include constitutionally permissible investigative activities of lawyers
representing governmental entities (directly or through investigative agents), prior
to commencement of criminal or civil enforcement proceedings.

3) Exception—Matters Outside the Representation

Note that RPC 4.2 does not prohibit communications with a represented person,
or an employee or agent of such person, concerning matters outside the represen-
tation. Also, parties to a matter may communicate directly with each other and
a lawyer having independent justification for communicating with a represented
person is permitted to do so. [RPC 4.2, comment 4]

b. Application of Rule to Organizations

Corporations and other organizations are “persons” for the purposes of this rule. Thus,
a lawyer must get the consent of the organization’s counsel before communicating with:

(i) A person who supervises, directs, or regularly consults with the organization’s
lawyer concerning the matter;

(ii) A person with authority to obligate the organization with respect to the matter; or

(iii) A person whose act or omission in connection with the matter may be imputed to
the organization for purposes of civil or criminal liability.

However, if the person is represented in the matter by her own counsel, then consent by
that counsel (rather than the organization’s counsel) is sufficient. [RPC 4.2, comment 7]
Note that consent is usually not needed before talking with a former employee, unless
the former employee has extensive knowledge of the organization’s relevant privileged
information. [ABA Formal Op. 91-359 (1991); Camden v. Maryland, 910 F. Supp. 1115
(D. Md. 1996)]

c. Communication with Unrepresented Person Permissible

When a person does not have counsel of his own, a lawyer representing a client may
communicate with such person directly. However, when dealing with the unrepresented
person, the lawyer must not state or imply that she is disinterested. When the lawyer
knows or reasonably should know that the unrepresented person misunderstands the
 PROFESSIONAL RESPONSIBILITY 41.

lawyer’s role in the matter, the lawyer must make reasonable efforts to correct the
misunderstanding. Moreover, if the lawyer knows or reasonably should know that the
interests of the unrepresented person are or have a reasonable possibility of being in
conflict with the interests of the lawyer’s client, the lawyer may only advise the unrepre-
sented person to obtain counsel. No other legal advice is permitted. [RPC 4.3]
2. Respect for Rights of Third Persons
In representing a client, a lawyer must not use means that have no substantial purpose other
than to embarrass, delay, or burden a third person; or use methods of obtaining evidence that
violate the legal rights of such a person. [RPC 4.4]

3. Documents Sent Inadvertently

A lawyer who receives a document (including a fax or e-mail) relating to her representation
of a client that she knows or reasonably should know was sent inadvertently must promptly
notify the sender. [RPC 4.4(b)] The requirement of prompt notification allows the sender to
take protective measures. The rule does not address the issue of whether the recipient must
take additional steps, such as returning the document. Also, any effect of the inadvertent
dispatch on the document’s privileged status is left unaddressed. [RPC 4.4, comment 2]

4. Truthfulness in Statements to Others

In representing a client, a lawyer must not knowingly: (i) make a false statement of material
fact or law to a third person; or (ii) fail to disclose a material fact when disclosure is neces-
sary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited
by RPC 1.6 (relating to confidentiality of information). [RPC 4.1]
D. THE CONDUCT OF LITIGATION
The general precepts governing a lawyer’s professional responsibility obviously remain in effect
during the course of an actual trial, whether judicial or administrative in nature. The RPC also set
out certain specific principles governing the lawyer’s zealous representation during the conduct of
litigation.

1. Meritorious Claims and Contentions

A lawyer must not bring or defend a proceeding, nor assert or controvert an issue therein,
unless there is a basis in law and fact for doing so that is not frivolous (e.g., a good faith
argument for an extension, modification, or reversal of existing law). A lawyer for the defen-
dant in a criminal proceeding, or the respondent in a proceeding that could result in incarcer-
ation, may nevertheless defend a proceeding so as to require that every element of the case
be established. [RPC 3.1]

a. Lawyer Must Inform Herself of Facts

A lawyer must inform herself about the facts and applicable law of the case and deter-
mine that she can make a good faith argument supportive of the client’s position. It
is not necessary for the lawyer to believe in the ultimate success of the action. Also,
an action or defense is not frivolous merely because the facts have not first been fully
substantiated or because the lawyer expects to develop vital evidence only through
discovery. [RPC 3.1, comment 2]

2. Expediting Litigation
A lawyer must make reasonable efforts to expedite litigation consistent with the interests
42. PROFESSIONAL RESPONSIBILITY

of the client. [RPC 3.2] Delay should not be indulged merely for the convenience of the
advocates or for the purpose of frustrating an opposing party’s attempts to obtain rightful
redress.

E. CANDOR TOWARD THE TRIBUNAL

A lawyer must not knowingly:

(i) Make a false statement of fact or law to a tribunal;

(ii) Fail to correct a false statement of material fact or law previously made to the tribunal by
the lawyer;

(iii) Fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the
lawyer to be directly adverse to the position of the client and not disclosed by opposing
counsel; or

(iv) Offer false evidence. If a lawyer has offered material evidence and the lawyer comes to
know of its falsity, the lawyer must take reasonable remedial measures, including, if neces-
sary, disclosure to the tribunal.

These four duties continue to the conclusion of the proceeding—i.e., when a final judgment has
been affirmed on appeal or the time for taking an appeal has passed.

1. False Evidence

a. General Rules
The following general rules apply in civil and criminal cases, and in all other kinds of
proceedings that are pending before a tribunal, such as binding arbitration or an admin-
istrative agency proceeding when the agency will adjudicate the rights of the parties.
These general rules also apply in ancillary proceedings, such as a deposition. The sole
exception to these general rules is when a criminal defendant insists on testifying falsely
(see b., below).

1) Lawyer Must Not Offer Evidence She Knows Is False

A lawyer must not offer evidence that she knows is false. The term “knows”
means actual knowledge, but a lawyer’s actual knowledge can be inferred from
the surrounding circumstances. [RPC 1.0(f)] The term “evidence” includes false
testimony of a client, false testimony of a third person, falsified documents, and
physical evidence that the lawyer knows is not what it is represented to be. If
only part of a witness’s testimony is known to be false, the lawyer may allow the
witness to testify to the truthful part, but not the false part. [RPC 3.3, comment 6]
If a client insists that the lawyer offer evidence that the lawyer knows is false, the
lawyer must first try to convince the client that the evidence should not be offered.
If that fails, and if the lawyer continues to represent the client, the lawyer must
refuse to offer the evidence. A lawyer whose client has put her in this unpleasant
position may seek the tribunal’s permission to withdraw as counsel [RPC 1.16(b)],
but she is not required to withdraw unless the lawyer-client relationship has
become so strained that the lawyer can no longer represent the client competently.
[RPC 1.16(a)(1); RPC 3.3, comment 15]
 PROFESSIONAL RESPONSIBILITY 43.

2) Lawyer May Refuse to Offer Evidence She Believes Is False

A lawyer may refuse to offer evidence that she reasonably believes is false, except
for the testimony of a defendant in a criminal case (see b., infra). [RPC 3.3(a)
(3)] Notice that the permissive wording of the rule gives the lawyer a measure
of discretion—because an advocate should resolve reasonable doubts in favor of
her client, she may elect to offer the evidence, even though there is a reasonable
ground to doubt its veracity.

3) Lawyer Must Take Reasonable Remedial Measures If False Evidence Offered

If a lawyer has offered evidence, and later discovers that it is false, the lawyer
must take reasonable remedial measures, including (if necessary) disclosure of the
falsity to the tribunal. The same duty applies if the falsehood takes the lawyer by
surprise; e.g., if one of the lawyer’s witnesses unexpectedly lies when being cross-
examined by opposing counsel. Ordinarily, the first reasonable remedial measure
is for the lawyer to speak confidentially with the client (or other witness), to warn
that person of the lawyer’s duty to reveal false evidence, and to seek that person’s
cooperation in withdrawing or correcting the false evidence. [RPC 3.3, comment
10] If that does not work, the lawyer may ask the tribunal’s permission to withdraw
as counsel. As stated in 1), supra, the lawyer is not forced to withdraw as counsel
unless the lawyer-client relationship has become so strained that the lawyer can no
longer represent the client competently. As a last resort, the lawyer must disclose
enough information to the tribunal to set the matter straight, even if that means
disclosing confidential information that would otherwise be protected by the
attorney-client privilege or the lawyer’s ethical duty of confidentiality, or both. The
tribunal then decides what to do about the falsehood, such as disclose it to the trier
of fact, declare a mistrial, or do nothing.

b. Criminal Defendant Who Insists on Testifying Falsely

A criminal defendant has a constitutional right to testify on his own behalf. [Rock v.
Arkansas, 483 U.S. 44 (1987)] If a criminal defendant insists on testifying, the defense
lawyer must allow him to testify, even if the lawyer reasonably believes, but does
not know, that the testimony will be false. [RPC 3.3(a)(3), comments 7 and 9] On the
other hand, a criminal defendant does not have a constitutional right to commit perjury
without suffering the consequences. [See Nix v. Whiteside, 475 U.S. 157 (1986)] If
a criminal defense lawyer knows that the defendant’s testimony will be false (and
remember that the lawyer’s knowledge can be inferred from the circumstances), then
the lawyer must try to convince the defendant not to testify falsely. If that fails, the
lawyer may ask the court’s permission to withdraw. If attempted persuasion fails and
the lawyer continues to represent the client, the lawyer must refuse to offer the false
evidence.

2. Required Disclosures in Ex Parte Proceeding

In an ex parte proceeding, a lawyer must inform the tribunal of all material facts known to
the lawyer that will enable the tribunal to make an informed decision, whether or not the
facts are adverse to his client. [RPC 3.3(d)]

F. FAIRNESS TO OPPOSING PARTY AND COUNSEL

A lawyer must not:
44. PROFESSIONAL RESPONSIBILITY

(i) Unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy, or
conceal a document or other material having potential evidentiary value, or counsel or assist
another person to do any such act;

(ii) Falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a
witness that is prohibited by law;

(iii) Knowingly disobey an obligation under the rules of a tribunal except for an open refusal
based on an assertion that no valid obligation exists;

(iv) In pretrial procedure, make frivolous discovery requests or fail to make reasonably diligent
efforts to comply with legally proper discovery requests by an opposing party;

(v) In trial, allude to any matter that the lawyer does not reasonably believe is relevant or that
will not be supported by admissible evidence, assert personal knowledge of facts in issue
except when testifying as a witness, or state a personal opinion as to the justness of a cause,
the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an
accused; or

(vi) Request a person other than a client to refrain from voluntarily giving relevant informa-
tion to another party unless: (i) the person is a relative or an employee or other agent of a
client; and (ii) the lawyer reasonably believes that the person’s interests will not be adversely
affected by refraining from giving such information.

[RPC 3.4]

G. AVOIDING IMPROPER CONTACT WITH JURORS AND THE COURT

Based on its concern with the integrity of legal proceedings and the importance of the appear-
ance of fairness to our legal system, the RPC forbid improper contact with jurors and the court,
whether it be a judicial or administrative tribunal. Specifically, a lawyer must not: (i) seek to
influence a judge, juror, prospective juror, or other official by means prohibited by law; (ii)
communicate ex parte with such a person during the proceeding except as permitted by law or
court order; (iii) engage in conduct intended to disrupt a tribunal; or (iv) communicate with a
juror or prospective juror after discharge of the jury if prohibited from doing so by law or court
order, the juror has made known a desire not to communicate, or the communication involves
misrepresentation, coercion, duress, or harassment. [RPC 3.5]

H. ADVOCATE IN NONADJUDICATIVE PROCEEDINGS

A lawyer representing a client before a legislative or administrative tribunal in a nonadjudicative
proceeding must disclose that the appearance is in a representative capacity. [RPC 3.9]

I. TRIAL PUBLICITY
To maintain the dignity of the profession and ensure against prejudicial publicity, the RPC provide
restraints on public statements by lawyers on either side with regard to the matter at issue in a
civil or criminal trial.

1. Basic Test
A lawyer who is participating or has participated in the investigation or litigation of a matter
must not make an extrajudicial statement that the lawyer knows or reasonably should know
 PROFESSIONAL RESPONSIBILITY 45.

will be disseminated by means of public communication and will have a substantial likeli-
hood of materially prejudicing an adjudicative proceeding in the matter. This prohibition also
applies to any such lawyer’s associates in a firm or government agency. [RPC 3.6(a), (d)]

2. Permitted References
A lawyer may state:

(i) The claim, offense, or defense involved and, except when prohibited by law, the
identity of the persons involved;

(ii) The information contained in a public record;

(iii) That an investigation of a matter is in progress;

(iv) The scheduling or result of any step in litigation;

(v) A request for assistance in obtaining evidence and information necessary thereto;

(vi) A warning of danger concerning the behavior of a person involved when there is
reason to believe that there exists the likelihood of substantial harm to an individual or
to the public interest; and
(vii) In a criminal case, in addition to the above, (i) the identity, residence, occupation, and
family status of the accused; (ii) if the accused has not been apprehended, information
necessary to aid in apprehension of that person; (iii) the fact, time, and place of arrest;
and (iv) the identity of investigating and arresting officers or agencies and the length of
the investigation.

[RPC 3.6(b)]

3. Areas Likely to Have Prejudicial Effect

There are certain subjects that are more likely than not to have a material prejudicial effect
on a proceeding, particularly when they refer to a civil matter triable by a jury, a criminal
matter, or any other proceeding that could result in incarceration. These subjects relate to:
(i) The character, credibility, reputation, or criminal record of a party, suspect in a
criminal investigation, or witness; the identity of a witness; or the expected testimony
of a party or witness;
(ii) In a criminal case or proceeding that could result in incarceration, the possibility of a
guilty plea to the offense or the existence or contents of any confession, admission, or
statement given by a defendant or suspect or that person’s refusal or failure to make a
statement;
(iii) The performance or results of any examination or test or the refusal or failure of a
person to submit to an examination or test, or the identity or nature of physical evidence
expected to be presented;
(iv) Any opinion as to the guilt or innocence of a defendant or suspect in a criminal case
or proceeding that could result in incarceration;
46. PROFESSIONAL RESPONSIBILITY

(v) Information the lawyer knows or reasonably should know is likely to be inadmissible
as evidence in a trial and would, if disclosed, create a substantial risk of prejudicing an
impartial trial; or

(vi) The fact that a defendant has been charged with a crime, unless there is included
therein a statement explaining that the charge is merely an accusation and that the
defendant is presumed innocent until and unless proved guilty.

Another relevant factor in determining prejudice is the nature of the proceeding. Thus,
criminal jury trials are most sensitive to extrajudicial speech, while civil trials may be less
sensitive. Nonjury hearings and arbitration proceedings may be even less affected. [See RPC
3.6, comments 5, 6]

4. Right of Reply
A lawyer is permitted to make a statement that a reasonable lawyer would believe is required
to protect a client from the substantial undue prejudicial effect of recent publicity not initi-
ated by the lawyer or her client. Any statement made pursuant to this rule must be limited to
information that is necessary to mitigate the recent adverse publicity. [RPC 3.6(c)]

VII. TERMINATION OF THE LAWYER-CLIENT RELATIONSHIP

A. IN GENERAL
Just as the Rules of Professional Conduct regulate the formation of lawyer-client relationships,
they also spell out the proper procedures for withdrawal from the representation of a client. The
Rules distinguish between situations where the lawyer must terminate employment (manda-
tory withdrawal) and situations where she is permitted to terminate employment (permissive
withdrawal).

B. MANDATORY WITHDRAWAL
Withdrawal is mandatory (after obtaining permission from the tribunal if required by its rules), or
representation should be declined if:

(i) The representation will result in violation of the Rules of Professional Conduct or other
law;

(ii) The lawyer’s physical or mental condition materially impairs the lawyer’s ability to repre-
sent the client; or

(iii) The lawyer is discharged.

[RPC 1.16(a)]

C. PERMISSIVE WITHDRAWAL
A lawyer may withdraw from representing a client if:

(i) Withdrawal can be accomplished without material adverse effect on the interests of the
client;
 PROFESSIONAL RESPONSIBILITY 47.

(ii) The client persists in a course of action involving the lawyer’s services that the lawyer
reasonably believes is criminal or fraudulent;

(iii) The client has used the lawyer’s services to perpetrate a crime or fraud;

(iv) A client insists upon taking action that the lawyer considers repugnant or with which the
lawyer has a fundamental disagreement;

(v) The client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s
services and has been given reasonable warning that the lawyer will withdraw unless the
obligation is fulfilled;

(vi) The representation will result in an unreasonable financial burden on the lawyer or has
been rendered unreasonably difficult by the client; or

(vii) Other good cause for withdrawal exists.

[RPC 1.16(b)]

D. WHEN LAWYER MUST CONTINUE REPRESENTATION

When ordered to do so by a tribunal, a lawyer must continue representation notwithstanding good
cause for terminating the representation. [RPC 1.16(c)]

E. PROTECTION OF CLIENT’S INTERESTS ON TERMINATION

Upon termination of representation, a lawyer must take steps to the extent reasonably practicable
to protect a client’s interests, such as giving reasonable notice to the client, allowing time for
employment of other counsel, surrendering papers and property to which the client is entitled,
and refunding any advance payment of fee or expense that has not been earned or incurred. The
lawyer may retain papers relating to the client to the extent permitted by law. [RPC 1.16(d)]

VIII. THE LAWYER’S RESPONSIBILITIES TO THE LEGAL PROFESSION

A. IN GENERAL
Given the unique nature of the legal profession in society, every lawyer bears the burden of
assisting in the improvement of the legal system and assuring that the profession itself is not
brought into disrepute. Many of the RPC provisions discussed so far attempt to recognize the
significance of this concept in the course of regulating relationships with a client and need not be
restated here. However, there are other provisions of the Rules, as well as some general principles,
that give further substance to the lawyer’s obligations to the legal system and profession. These
are set forth below.

B. LAWYER’S CONDUCT WHILE NOT IN PRACTICE

Lawyers acting in their private business or personal capacities are still bound by professional
standards of conduct and can be disciplined for conduct violating such standards.

C. GENERAL GUIDELINES FOR A LAWYER’S CONDUCT

When explicit ethical guidelines do not exist to control a lawyer’s conduct, he should determine
48. PROFESSIONAL RESPONSIBILITY

his conduct by acting in a manner that promotes public confidence in the integrity and efficiency
of the legal system and profession.

D. POLITICAL CONTRIBUTIONS TO OBTAIN GOVERNMENT EMPLOYMENT

A lawyer or firm must not accept a government legal engagement (i.e., employment that a public
official has the power to award) or an appointment by a judge if the lawyer or firm makes or
solicits a political contribution for the purpose of obtaining or being considered for such
employment or appointment (“pay to play” contributions). [RPC 7.6 and comment]

1. Prohibited Contributions
This rule does not prohibit all political contributions by lawyers or firms—only those that
would not have been made but for the desire to be considered for the employment or
appointment. The circumstances of the contribution may indicate its purpose. Contributions
that are substantial compared to contributions made by other lawyers or firms, are made
for the benefit of an official who can award such work, and are followed by an award to the
lawyer or firm support an inference that the contributions were for the purpose of obtaining
the work. Other factors, such as a family or professional relationship with a candidate or a
desire to further a political, social, or economic interest, weigh against inferring a prohibited
purpose. [RPC 7.6, comment 5]

2. Excluded Employment
Excluded from the ambit of the rule are: (i) uncompensated services; (ii) engagements or
appointments made on the basis of experience, expertise, qualifications, and cost, following a
process that is free from influence based on political contributions; and (iii) engagements or
appointments made on a rotating basis from a list compiled without regard to political contri-
butions. [RPC 7.6, comment 3]

E. JUDICIAL AND LEGAL OFFICIALS

A lawyer must not make a statement that the lawyer knows to be false or with reckless disregard
as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory or public
legal officer, or of a candidate for election or appointment to judicial or legal office. [RPC 8.2(a)]
A lawyer who is a candidate for judicial office must comply with the applicable provisions of the
Code of Judicial Conduct. [RPC 8.2(b)]

F. THE SPECIAL ROLE OF THE PUBLIC PROSECUTOR

The prosecutor in a criminal case must:

(i) Refrain from prosecuting a charge that the prosecutor knows is not supported by probable
cause;

(ii) Make reasonable efforts to ensure that the accused has been advised of the right to, and
the procedure for obtaining, counsel and has been given reasonable opportunity to obtain
counsel;

(iii) Not seek to obtain from an unrepresented accused a waiver of important pretrial rights such
as the right to a preliminary hearing;

(iv) Make timely disclosure to the defense of all evidence or information known to the prose-
cutor that tends to negate the guilt of the accused or mitigate the offense, and in connection
 PROFESSIONAL RESPONSIBILITY 49.

with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating infor-
mation known to the prosecutor, except when the prosecutor is relieved of this responsibility
by a protective order of the tribunal;

(v) Exercise reasonable care to prevent investigators, law enforcement personnel, employees, or
other persons assisting or associated with the prosecutor in a criminal case from making an
extrajudicial statement that the prosecutor would be prohibited from making under RPC 3.6
(relating to trial publicity) or this Rule;

(vi) Not subpoena a lawyer in a criminal proceeding to present evidence about a client unless
the prosecutor reasonably believes: (i) the information is not protected by privilege; (ii) the
evidence is essential to an ongoing investigation or prosecution; and (iii) there is no feasible
alternative to obtain the information;

(vii) Refrain from making extrajudicial comments that have a substantial likelihood of height-
ening public condemnation of the accused (except for statements that are necessary to inform
the public of the nature and extent of the prosecutor’s action and that serve a legitimate law
enforcement purpose);

(viii) Promptly disclose new, credible, and material evidence that creates a reasonable likelihood
that a convicted defendant did not commit the subject offense and, if the conviction occurred
in the prosecutor’s jurisdiction, make a reasonable investigation into the possible wrongful
conviction; and

(ix) Seek to remedy a conviction when the prosecutor knows of clear and convincing evidence
that a defendant in her jurisdiction was convicted for an offense that he did not commit.

[RPC 3.8]

G. REPORTING PROFESSIONAL MISCONDUCT

A lawyer who knows that another lawyer has committed a violation of the Rules that raises a
substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other
respects, must inform the appropriate professional authority. A lawyer who knows that a judge
has committed a violation of applicable rules of judicial conduct that raises a substantial question
as to the judge’s fitness for office likewise must inform the appropriate authority. This rule does
not require disclosure of information otherwise protected by RPC 1.6 (relating to confidentiality
of information), or information gained by a lawyer or judge while participating in an approved
lawyers’ assistance program dealing with substance abuse problems. [RPC 8.3]

IX. JUDICIAL ETHICS

A. SELECTION, TENURE, AND DISCIPLINE OF JUDGES

1. Selection of Judges
The constitutions of most states specify how judges are to be selected. In some states, judges
are appointed by the governor or the state legislature, while in others they are elected by the
voters. In still other states, judges are initially appointed and later retained or rejected by the
50. PROFESSIONAL RESPONSIBILITY

voters. State judges can be removed from office or otherwise disciplined in accordance with
state constitutional and statutory provisions.

2. Code of Judicial Conduct

As with lawyer conduct, the ABA has provided standards for judicial conduct. In 1990, the
ABA adopted the Code of Judicial Conduct (“CJC”), which was revised in 2007. The CJC is
intended as a model that the states and the federal judiciary can follow in formulating their
own standards of judicial conduct. The CJC has been adopted in substantial part in this state.

a. Who Is Subject to the CJC?

The CJC applies to all persons who perform judicial functions, including magistrates,
court commissioners, referees, and special masters. Retired judges, part-time judges,
and pro tempore part-time judges are exempted from some provisions of the CJC, as
explained in G., infra. Judicial candidates are bound by the provisions affecting political
activity explained in F., infra.

B. INTEGRITY, INDEPENDENCE, AND IMPARTIALITY

A judge must act in a manner that promotes the public’s confidence in the independence, integrity,
and impartiality of the judiciary, and must avoid impropriety and the appearance of impropriety.
[CJC 1.2]

1. Conduct On the Bench

The general standard obviously applies to a judge’s conduct on the bench in a judiciary
capacity. Although judges must be independent, they must also comply with the law. [CJC
1.1]
Example: Judge H was an outspoken opponent of laws against prostitution, and he
routinely dismissed prostitution cases despite contrary instructions from
reviewing courts. Judge H is subject to discipline for repeatedly refusing to
follow the law.

2. Conduct Off the Bench

The above duties also apply to a judge’s behavior in her personal life. [See CJC 1.2,
Comment (1)] A judge is subject to constant public scrutiny and must therefore accept
constraints that would be burdensome to the ordinary citizen. [CJC 1.2, Comment (2)]
Examples: 1) Judge R discovered his estranged wife in an automobile with another man.
The judge broke the car window (causing the other man to be cut with broken
glass) and slapped his estranged wife. Judge R is subject to discipline, even
though his conduct was unconnected with his judicial duties.

2) While driving under the influence of alcohol, Judge L ran a traffic signal
and violated other traffic laws. Judge L is subject to discipline.

3. Personal Relationships
A judge must not allow family, social, political, or other relationships to interfere with the
judge’s conduct or judgments. [CJC 2.4(B)]
Example: Judge A was assigned to hear a case in which a well-known legislator was
charged with a RICO violation. Judge A and the accused legislator are
members of the same charitable organization and the same political party.
 PROFESSIONAL RESPONSIBILITY 51.

Judge A must not allow these relationships to influence her decisions in the
case.

4. Misuse of Judicial Prestige

A judge may not lend the prestige of judicial office to advance the private interests of the
judge or others. [CJC 1.3]
Examples: 1) When Judge B was stopped for a routine traffic violation, he imperiously
informed the traffic officer: “I am a judge in this town, young man, and I
don’t take kindly to being stopped for petty reasons!” Judge B is subject to
discipline.

2) Judge C used her official court stationery when writing to a building

contractor with whom she was having a personal contract dispute. Judge C is
subject to discipline.

3) When Judge D’s teenage daughter was charged with shoplifting, Judge D
called Judge E, to whom the daughter’s case was assigned. D said: “E, as a
fellow judge, I want to tell you that my little girl is a good kid who deserves a
break.” Judge D is subject to discipline.

4) Judge F writes materials and gives lectures for a proprietary continuing

legal education company. Judge F should retain control over the company’s
advertisements of his materials and lectures to avoid exploitation of his
judicial office.

a. Permissible Acts
The following acts are permissible, as long as the judge is sensitive to abuse of the
prestige of the judicial office [CJC 1.3, Comments]:

1) References and Recommendations

Based on personal knowledge, a judge may act as a reference or provide a recom-
mendation for someone.

2) Judicial Selection
Judges can participate in the process of judicial selection by cooperating with
appointing authorities.

3) Character Witness
When properly summoned, a judge may testify as a character witness for someone.
However, judges must not appear voluntarily as character witnesses, and (except
where the demands of justice require) they should discourage people from
requiring them to serve as character witnesses.

5. Relationships with Discriminatory Organizations

A judge can be disciplined for membership in or use of an organization that currently
practices “invidious discrimination” based on race, sex, gender, religion, national origin,
ethnicity, or sexual orientation. The prohibition does not include an “intimate, purely private
organization” whose membership limitations could not be constitutionally prohibited.
52. PROFESSIONAL RESPONSIBILITY

Further, this category does not include an organization that is “dedicated to the preservation
of religious, ethnic, or cultural values of legitimate common interest to its members.” [CJC
3.6 and Comments]
Examples: 1) Judge G belongs to the Slovenian League, which limits its membership
to all descendants (regardless of sex or race) of persons from Slovenia, a
former republic of Yugoslavia. The object of the organization is to preserve
the culture and traditions of the Slovenian people. The organization does not
stigmatize as inferior those who do not fall within its membership require-
ments. Judge G may belong to the Slovenian League because it does not
practice “invidious discrimination.” [See Moser, The 1990 ABA Code of
Judicial Conduct: A Model for the Future, 4 Geo. J. Legal Ethics 731, 739-44
(1991)]

2) Judge H belongs to the Wednesday Morning Prayer Club, which limits

its membership to 12 persons who are members of the Oakdale Evangelical
Church. The object of the club is to meet every Wednesday morning for
prayer and study of religious writings. Judge H may belong to the club
because it is an intimate, purely private organization whose membership
limitations could not be constitutionally prohibited. [Id.]

3) Judge J belongs to the Maplehurst College Alumnae Society. Maplehurst

is a women’s college, and membership in the Alumnae Society is limited
to graduates of the college. The object of the organization is to raise money
for the college and to put on college-related social events for its members.
Because the organization has a rational basis for its single-sex limitation, and
because it does not stigmatize nonmembers as inferior, Judge J may belong to
the Alumnae Society. [Id.]

4) Judge K belongs to the Ashmount Golf and Tennis Club, which limits its
membership to 1,200 white male Protestants. The object of the organization
is to provide golf, tennis, and social facilities for its members. Conversations
in the clubhouse frequently concern business and professional matters, and
membership in the club offers significant business and professional advan-
tages. Judge K is subject to discipline. Note that Judge K would be subject
to discipline for using the Golf and Tennis Club (e.g., having lunch there as
a guest, renting a room for a meeting there, or occasionally using the sports
facilities as a guest) even if he were not a member.

a. Organizations that Discriminate in Violation of Local Law

The laws of some jurisdictions proscribe discrimination on other grounds. A judge in
such a jurisdiction is subject to discipline for belonging to an organization that violates
that jurisdiction’s antidiscrimination laws.

b. Public Approval of Invidious Discrimination

A judge can be disciplined for publicly manifesting a knowing approval of “invidious
discrimination on any basis.” [CJC 3.6, Comment (1)] To warrant discipline the judge
must: (i) know of the discrimination, and (ii) publicly manifest approval of it.
 PROFESSIONAL RESPONSIBILITY 53.

Example: The Pinecrest Union is an association of young business and professional

men and women. Its bylaws exclude persons over age 55. Membership in
the Pinecrest Union offers significant business and professional advan-
tages, and the membership limitation has become a topic of heated
public controversy. Judge O is not a member of the Pinecrest Union, but
he publicly endorses its age limitation. If this age limitation constitutes
“invidious discrimination,” Judge O is subject to discipline.

c. Judicial Efforts to End Discrimination

When a judge learns that an organization to which she belongs practices discrimination
that would bar the judge’s membership under the CJC, the judge must promptly resign.
[CJC 3.6, Comment (3)]

C. DILIGENT, IMPARTIAL PERFORMANCE OF JUDICIAL DUTIES

Judicial duties include all the duties of the judge’s office that are prescribed by law. Judicial duties
take precedence over all the judge’s other activities. [CJC 2.1]

1. Hearing and Deciding Adjudicative Matters

A judge must hear and decide all matters assigned to her, except those in which disqualifica-
tion is required (see D., infra). [CJC 2.7]

2. Impartiality and Fairness

A judge must uphold and apply the law and perform all duties fairly and impartially. A judge
must not be swayed by public clamor or fear of criticism. [CJC 2.2; 2.4(A)]

3. Order and Decorum in Court

A judge must require order and decorum in court proceedings. [CJC 2.8(A)]

4. Patience, Dignity, and Courteousness

A judge must be patient, dignified, and courteous to those with whom the judge deals in an
official capacity, including litigants, lawyers, jurors, and witnesses. A judge shall require like
behavior of lawyers, court officers and staff, and others who are under the judge’s direction
and control. [CJC 2.8(B)]

5. Avoidance of Bias, Prejudice, and Harassment

A judge must avoid bias, prejudice, and harassment, and require others (including lawyers)
who are under the judge’s direction and control to do likewise. Prejudice in this context
includes, but is not limited to, prejudice based on race, sex, gender, religion, national origin,
ethnicity, disability, age, sexual orientation, marital status, political affiliation, or socioeco-
nomic status. Even in nonjudicial activities, a judge should avoid making demeaning remarks
or jokes that play on these prejudices. [CJC 2.3]

6. Right to Be Heard
A judge must give every person who has a legal interest in a proceeding (or that person’s
lawyer) the right to be heard in accordance with the law. [CJC 2.6(A)]

7. Ex Parte Communications
“Ex parte” means one side only. An ex parte communication means a communication
between a judge and representative from one side of a matter when no representative from
54. PROFESSIONAL RESPONSIBILITY

the other side is present. A judge may not initiate, permit, or consider ex parte communica-
tions except in these three situations:

a. Expressly Authorized by Law

A judge may have ex parte communications where expressly authorized by law [CJC
2.9(A)(5)], which includes court rules and case law, as well as constitutional and statu-
tory law.

b. Mediation or Settlement
With the consent of the parties, the judge may confer separately with the parties and
their lawyers in an effort to settle or mediate a pending matter. [CJC 2.9(A)(4)]

c. Emergencies or Administrative Matters

Finally, a judge may have an ex parte communication if the following conditions are
met:

(i) The judge reasonably believes that no party will gain a procedural, substantive,
or tactical advantage from the communication; and

(ii) The judge notifies the lawyers for the other parties of the essence of the communi-
cation and gives them an opportunity to respond.

[CJC 2.9(A)(1)]

d. Inadvertent Receipt of Ex Parte Communication

The judge must promptly notify parties of his inadvertent receipt of an unauthorized ex
parte communication (e.g., a misdirected fax) and provide the parties with an opportu-
nity to respond. [CJC 2.9(B)]

8. Communications from Others

A judge may 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 in these four situations:

a. Court Personnel
A judge may consult about a matter with court personnel whose function is to aid the
judge in carrying out adjudicative responsibilities (e.g., the judge’s law clerk) and with
other judges provided the judge does not abrogate the responsibility to personally decide
the matter. [CJC 2.9(A)(3)]

b. Disinterested Legal Experts

A judge may obtain the advice of a disinterested expert on the applicable law, provided
that the judge gives advance notice to the parties’ lawyers regarding what expert was
consulted and what the expert said, and gives the parties’ lawyers a reasonable opportu-
nity to object and to respond. [CJC 2.9(A)(2)] A common and often desirable way to get
the advice of a legal expert is to invite the expert to file a brief amicus curiae.

c. Other Communications
A judge must not have communications about a matter outside the presence of the
 PROFESSIONAL RESPONSIBILITY 55.

parties’ lawyers with any person not mentioned above, unless the conditions stated in
7.c., supra, are satisfied. [CJC 2.9(A)(1)]
Example: In the middle of a trial, juror A telephoned Judge T at home and blurted
out that she had accidentally overheard a graphic radio report about
the trial and felt unable to continue as a juror. Judge T calmed A and
instructed her to come to court the next morning and report the incident
in the presence of the lawyers for the parties. Judge T handled the matter
properly.

d. Communications Between Trial and Appellate Courts

Some jurisdictions permit a trial judge to communicate with an appellate court about
a proceeding. A copy of any written communication, or the substance of any oral
communication, should be provided to the parties’ lawyers.

9. Findings of Fact and Conclusions of Law

If a judge asks the lawyers for one side to propose findings of fact and conclusions of law, the
lawyers for the other parties must be told of the request and given a chance to respond to the
proposed findings and conclusions. [CJC 2.9]

10. Independent Investigation of Facts

A judge must not independently investigate the facts in a case and must consider only the
evidence presented and judicially noticed facts. [CJC 2.9(C)]
Example: Judge U took a case under submission. While reading the transcript and
pondering her decision, she became puzzled about the testimony of witness
W. To save time and effort, Judge U simply telephoned W and asked him to
clarify the point that puzzled her. Judge U’s conduct is improper.

11. Promptness, Efficiency, and Fairness

A judge must dispose of judicial matters promptly, efficiently, and fairly. This duty requires
the judge to:

(i) Respect the rights of the parties, but resolve issues without unnecessary expense or
delay;
(ii) Monitor cases closely to eliminate dilatory practices, avoidable delays, and unnecessary
costs;
(iii) Encourage settlements, but without forcing the parties to give up their right to adjudica-
tion;
(iv) Devote adequate time to judicial duties;
(v) Be punctual in attending court;
(vi) Be expeditious in deciding matters under submission; and
(vii) Insist that the parties, lawyers, and court personnel cooperate in achieving the objec-
tives stated above.

[CJC 2.5, Comments (3), (4)]

56. PROFESSIONAL RESPONSIBILITY

12. Public Comments on Cases

When a case is pending or impending in any court, a judge may not make any public
comment that might reasonably be expected to affect its outcome or impair its fairness, or
make any nonpublic comment that might substantially interfere with a fair trial. This duty
continues through appeal and until the case is finally disposed of. The judge must require
like abstention from court personnel under her control. [CJC 2.10(A), (C)]

a. Official Duties Excepted

The duty to abstain from comment does not prohibit judges from making public state-
ments in the course of their official duties, or from publicly explaining court procedures.
[CJC 2.10(D)]

b. Judge as a Party
The duty to abstain from comment does not apply if the judge is a litigant in a personal
capacity. The duty does apply, however, if the judge is a litigant in an official capacity,
as in writ of mandamus proceedings. [CJC 2.10(D), and Comment (2)]

13. Promises with Respect to Cases Likely to Come Before Court

With respect to cases or issues that are likely to come before the court, a judge must not
make pledges, promises, or commitments that are inconsistent with the impartial perfor-
mance of the adjudicative duties of the office. [CJC 2.10(B)]

14. Commentary on Jury Verdict

A judge must not commend or criticize jurors for their verdict, but a judge may thank jurors
for their service. This duty does not apply to judicial commentary on a verdict in a court
order or judicial opinion. [CJC 2.8(C)]
Example: After the jury came in with a multimillion-dollar verdict for the plaintiff,
Judge X told the jurors: “Apparently you people just didn’t understand what
was going on in this case.” Judge X then issued a court order setting aside
the jury verdict and ordering a new trial. Judge X’s order was proper, but her
comment to the jury was not.

15. Nonpublic Information

A judge must not disclose or use, for nonjudicial purposes, any nonpublic information
acquired in a judicial capacity. [CJC 3.5] Nonpublic information includes, without limitation,
information that is under seal, impounded, or obtained in camera, and information obtained
in grand jury proceedings, presentencing reports, dependency cases, and psychiatric reports.

16. Competence, Diligence, and Cooperation

Judges must perform their judicial and administrative duties diligently and competently.
Judges also must cooperate with others in administrative matters. Judicial competence
requires the judge to perform judicial duties with the necessary legal knowledge, skill, and
preparation. [CJC 2.5 and Comments]
Example: Judge Q frequently hears criminal cases, but she has not kept up on changes
in the law of search and seizure. She routinely decides search and seizure
issues on a combination of intuition and what she learned in law school many
years ago. Judge Q is subject to discipline for failing to maintain her profes-
sional competence.
 PROFESSIONAL RESPONSIBILITY 57.

17. Judicial Appointments

A judge must exercise the power of appointment impartially and on the basis of merit (e.g.,
when appointing referees, special masters, receivers, guardians, assigned counsel, and court
personnel). A judge must not make unnecessary appointments, must avoid nepotism and
favoritism, and must not approve compensation for appointees beyond the fair value of their
services. [CJC 2.13(A), (C)]

a. Appointments of Lawyers Making Contributions to Judge’s Election Campaign

A judge who is subject to public election must not appoint a lawyer to a position if the
judge either knows that the lawyer (or his spouse or domestic partner) has contributed
to the judge’s election campaign more than the jurisdiction’s specified dollar amount
within a designated number of years prior to the judge’s campaign, or learns of such
contribution through a timely motion by a party or other interested person. This provi-
sion does not apply if the appointed position is substantially uncompensated, the lawyer
is selected in a rotation from a list of qualified and available lawyers compiled without
regard to their having made political contributions, or the judge finds that no other
lawyer is willing, competent, and able to accept the position. [CJC 2.13(B)]

18. Disciplinary Responsibilities

Judges have the following duties respecting misconduct by lawyers and other judges:

a. Judicial Misconduct
If Judge A receives information indicating a substantial likelihood that Judge B has
violated the CJC, Judge A must take “appropriate action.” What constitutes “appropriate
action” depends on the situation; it could range from simply speaking directly with
Judge B about the matter to reporting Judge B to the relevant disciplinary authority. If
Judge A has actual knowledge that Judge B has committed a violation of the CJC that
raises a substantial question about Judge B’s honesty, trustworthiness, or fitness for
office, then Judge A must report Judge B to the judicial disciplinary authority. [CJC
2.15(A), (C)]

b. Lawyer Misconduct
If a judge receives information indicating a substantial likelihood that a lawyer has
violated the RPC, the judge must take “appropriate action,” which means the same as
with respect to judicial misconduct (see supra). If a judge has actual knowledge that a
lawyer has committed a violation of the RPC that raises a substantial question about the
lawyer’s honesty, trustworthiness, or fitness to practice, then the judge must report the
lawyer to the relevant disciplinary authority. [CJC 2.15(B), (D)]

c. Disability or Impairment of Judge or Lawyer

If a judge reasonably believes that the performance of another judge or lawyer is
impaired by drugs or alcohol, or by a mental, physical, or emotional condition, the judge
must take “appropriate action” (e.g., speaking to the individual or making a referral to
an assistance program).

d. Cooperation with Disciplinary Authorities

A judge must cooperate with disciplinary authorities and must not retaliate against any
person who assists or cooperates in the investigation of a judge or lawyer. [CJC 2.16]
58. PROFESSIONAL RESPONSIBILITY

19. Supervisory Duties

A judge must require court staff, officials, and others subject to his direction and control to
act consistently with his duties under the CJC, and must ensure that judges under his supervi-
sory authority properly discharge their judicial responsibilities. [CJC 2.12]

D. DISQUALIFICATION

1. General Rule—Whenever Impartiality Might Reasonably Be Questioned

A judge must disqualify himself in a proceeding in which the judge’s impartiality might
reasonably be questioned. [CJC 2.11(A)] Note that the rule uses the objective standard of
reasonableness; a far-fetched argument or litigant’s whim is not sufficient to disqualify a
judge.

a. Disclosure by Judge
The judge should disclose on the record any information the judge believes that the
parties or their lawyers might consider relevant to the question of disqualification, even
if the judge believes there is no reasonable basis for disqualification. [CJC 2.11 and
Comment (5)]
Example: Judge Y plans to retire from the bench at the end of the year and return
to private law practice. Judge Y has held tentative discussions with
the private firm of A, B & C about joining that firm. Now Judge Y is
assigned to hear a case in which the defendant is represented by the A, B
& C law firm. Judge Y should disclose the facts and let the parties decide
whether to waive disqualification.

b. Rule of Necessity
Case law has created a rule of necessity that overrides the rules of disqualification.
For example, suppose that Judge Z is the only judge available to rule on an emergency
motion for a temporary restraining order. Judge Z may rule on the motion even though
she might be disqualified were it not an emergency. Even in such a situation, Judge Z
should disclose the ground for disqualification on the record and should use reasonable
efforts to transfer the matter to a different judge as soon as possible. Further, a judge
should not be disqualified for a reason that would apply equally to all other judges to
whom the matter might be assigned.
Examples: 1) State trial judge A is assigned to hear a case concerning the consti-
tutionality of a statute that will raise the salary of all trial judges in the
state. Judge A may hear the case because the reason for disqualification
applies equally to all other judges to whom the case might be assigned.

2) Judge B was assigned to hear a sex discrimination case, and the

defendant moved to disqualify her on the sole ground that she is a
woman. Because all judges are of one sex or the other, Judge B is not
disqualified.

2. Bias or Personal Knowledge

A judge must disqualify himself if there is reasonable ground to believe that the judge
has: (i) a personal bias or prejudice concerning a party or a party’s lawyer; or (ii) personal
knowledge of relevant evidentiary facts. [CJC 2.11(A)(1)] To be disqualifying, a bias must be
 PROFESSIONAL RESPONSIBILITY 59.

personal and must stem from an extrajudicial source; adverse attitudes toward a party formed
on the basis of evidence presented in the case are not disqualifying.

3. Prior Involvement
A judge must disqualify himself if the judge previously:

(i) Served as a material witness in the matter;

(ii) Previously presided over the matter as a judge in another court;

(iii) Served as a lawyer in the matter;

(iv) Participated in the matter as a government employee; or

(v) Was associated with a lawyer who substantially participated in the matter at the time
they were associated.

[CJC 2.11(A)(6)]

Examples: 1) Before her appointment as a state supreme court justice, Justice C practiced
law with lawyer L. At the time C and L were associated, L represented X in
the trial of X v. Y. After the trial, L withdrew as X’s lawyer. Now the case is
on appeal to the state supreme court. Justice C is disqualified.

2) In the preceding example, suppose that L did not begin representing X

until C had left the practice and become a supreme court justice. Justice C
need not recuse herself unless her prior association with L creates a reason-
able question about her impartiality under the general rule of disqualification
(see D.1., supra).

3) Before taking the bench, Judge D was a lawyer for the United States
Justice Department. At that time, attorney A was also a lawyer for the Justice
Department. Now Judge D is assigned to hear a case in which A represents
the Justice Department. Ordinarily, a lawyer in a government agency is not
“associated” with the other lawyers in the agency for purposes of the CJC.
Thus, Judge D is not disqualified unless his prior work with A creates a
reasonable question about his impartiality under the general rule of disqualifi-
cation (see D.1., supra).

4. Economic Interest
A judge must disqualify himself if the judge knows that he, either as an individual or as a
fiduciary, has an economic interest in the matter or in one of the parties. [CJC 2.11(A)(3)]
Disqualification is also required if the interest is held by the judge’s spouse, domestic partner,
parent, or child (wherever residing) or by any other member of the judge’s family who resides
in the judge’s household. A judge must keep informed about his economic interests, and must
make a reasonable effort to keep informed about those of the judge’s spouse or domestic
partner and minor children residing in the judge’s household. [CJC 2.11(B)]
60. PROFESSIONAL RESPONSIBILITY

a. Definition of “Economic Interest”

For the purpose of this rule, the term “economic interest” has a very technical defini-
tion; it means that the judge (or judge’s spouse, domestic partner, parent, child, or
family member residing in the judge’s household):

(i) Is an officer, director, adviser, or other active participant in the affairs of a party;
or

(ii) Owns more than a de minimis legal or equitable interest in a party.

[CJC 2.11, Comment (6)]

b. Exceptions to the Definition

A judge need not disqualify himself for:

(i) Owning an interest in a mutual fund that holds securities of a party;

(ii) Being an officer of an organization that holds securities of a party;

(iii) Having a deposit at a bank, credit union, or savings association that is a party
(unless the proceedings could substantially affect the value of the deposit); or

(iv) Owning government securities and the government is a party (unless the value of
the securities could be substantially affected by the proceedings).

[CJC 2.11, Comment (6)]

5. Involvement of a Relative
A judge must disqualify himself if the judge has a relative involved in the case. [See CJC
2.11(A)(2)]

a. Meaning of “Relative”
For the purpose of this rule, the term “relative” means a person (or the spouse or
domestic partner of a person) who is related within the third degree to the judge or to
the judge’s spouse or domestic partner. The third degree of relationship means: great-
grandparents, grandparents, parents, uncles, aunts, brothers, sisters, children, grand-
children, and great-grandchildren; in short, anyone related more closely than a cousin.
Remember that spouses and domestic partners are included on both ends of the calcula-
tion.
Example: Judge H is married to Mable. The third husband of Mable’s Aunt Lulu is
the plaintiff in a case assigned to Judge H. Judge H is disqualified.

b. Meaning of “Involved”
The term “involved” means that the relative is:

(i) A party, or an officer, director, or trustee of a party;

(ii) A lawyer in the proceedings;

 PROFESSIONAL RESPONSIBILITY 61.

(iii) Known by the judge to have more than a de minimis interest that could be substan-
tially affected by the proceedings; or

(iv) Known by the judge to be a likely material witness in the proceedings.

Example: Judge J is assigned to hear a case in which the state Attorney General
seeks suspension of the license of the Shady Acres Nursing Home until
Shady Acres provides more humane living conditions for its residents.
Judge J’s husband’s great-grandmother is a Shady Acres resident.
Because the great-grandmother’s interests could be substantially
affected, Judge J is disqualified.

6. Persons Making Contributions to Judge’s Election Campaign

A judge who is subject to public election must disqualify himself if he knows, or learns
through a timely motion, that a party or a party’s lawyer has, within a designated number of
prior years, made contributions to the judge’s election campaign that exceed the jurisdiction’s
specified amount. [CJC 2.11(A)(4)]

7. Public Statements of Judicial Commitment

A judge must disqualify himself if he, while a judge or a candidate for judicial office, has
made a public statement (other than in a court proceeding, judicial decision, or opinion) that
commits or appears to commit him with respect to an issue in the proceeding or the contro-
versy in the proceeding. [CJC 2.11(A)(5)]

8. Remittal of Disqualification
The parties and their lawyers can remit (waive) all of the foregoing grounds of disqualifica-
tion, except personal bias or prejudice concerning a party. [CJC 2.11(C)] The procedure for
remittal is as follows:

(i) The judge discloses on the record the ground for disqualification. The judge may then
ask whether the parties and their lawyers wish to discuss waiver.

(ii) The lawyers consult privately with their respective clients.

(iii) All the parties and their lawyers meet, outside the presence of the judge, and agree that
the judge should not be disqualified. As a practical matter, the judge may wish to have
all the parties and their lawyers sign a remittal agreement.

(iv) If the judge is willing to do so, he may then proceed with the case.

[See CJC 2.11(C)]

E. EXTRAJUDICIAL ACTIVITIES
A judge may engage in extrajudicial activities but must not:

(i) Participate in activities that undermine the judge’s independence, integrity, or impartiality;

(ii) Engage in coercive conduct;

62. PROFESSIONAL RESPONSIBILITY

(iii) Participate in activities that interfere with the judge’s judicial duties or lead to frequent
disqualification; or

(iv) Abuse the use of court resources.

[CJC 3.1]

1. Avocational Activities
A judge may speak, write, lecture, teach, and participate in nonjudicial activities that involve
either legal or nonlegal subjects, provided that these activities are consistent with the duties
stated elsewhere in the CJC. Because judges are in a unique position to help improve the law,
they are encouraged to do so through bar associations, judicial conferences, and the like.
[CJC 3.1, Comments (1), (2)]

2. Nonlegal Governmental Hearings and Consultations

A judge may 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, or on matters about which the judge acquired knowledge or exper-
tise. This duty does not apply when the judge is acting pro se in a matter that involves the
judge or his interests or when acting in a fiduciary capacity. [CJC 3.2]
Examples: 1) Judge M is invited to testify before the State Assembly Committee on
Criminal Justice concerning a proposed revision of the state’s mandatory
sentencing statute. Judge M may testify.

2) Judge N met privately with the Mayor of the city of Glenview to protest the
city’s plan to open a city dump adjacent to Judge N’s property. The meeting
was proper because it concerned Judge N’s own interests.

3. Governmental Committees and Commissions

A judge may not accept appointment to a governmental committee, board, commission, or
other governmental position unless it concerns the law, the legal system, or the adminis-
tration of justice. [CJC 3.4] Such appointments are likely to be very time-consuming, can
involve the judge in controversial matters, and can interfere with the independence of the
judiciary. A judge may, however, represent a governmental unit on a ceremonial occasion, or
in connection with a historical, educational, or cultural activity. [CJC 3.4, Comments]
Examples: 1) The governor appointed Judge O to serve on the State University Board of
Directors. Judge O must decline the appointment because State University is
a public school. That fact makes this a governmental appointment, and the
position is not related to the law, the legal system, or the administration of
justice.

2) The governor appointed Judge P to serve on the Board of Directors of the

State University School of Law. Judge P may accept the appointment, even
though it is a governmental appointment, because it involves the law.

3) Judge Q was appointed to serve on the Board of Directors of Butterfield

University, a private school. Judge Q may accept the office because Butterfield
University is not a governmental institution.
 PROFESSIONAL RESPONSIBILITY 63.

4. Law-Related Organizations and Nonprofit Organizations

A judge may participate in activities sponsored by organizations or government entities
concerned with the law, the legal system, or the administration of justice and those by a
nonprofit educational, religious, charitable, fraternal, or civic organization. Note that service
on the board of a public educational institution other than a law school is prohibited, but
service on the board of a public law school or any private educational institution would
generally be permitted. [See CJC 3.7 and examples, supra]

a. Serving as Officer, Director, Trustee, or Advisor

A judge is permitted to serve as an officer, director, trustee, or nonlegal adviser of an
organization unless it is likely that the organization:

(i) Will be engaged in proceedings that would ordinarily come before the judge; or

(ii) Will frequently be engaged in adversary proceedings in the court on which the
judge sits or one under its appellate jurisdiction.

[CJC 3.7(A)(6)]

Examples: 1) State supreme court Justice R is invited to be a director of the Forest

Protection League, a nonprofit organization that frequently brings
lawsuits to block the logging of old-growth forest areas. Justice R must
decline the invitation.

2) Judge S is the only trial judge who sits in Oceanside County. She is
invited to be a trustee of the Oceanside Memorial Hospital, which is
frequently named as a defendant in medical malpractice cases filed in
Oceanside County. Judge S must decline the invitation.

b. Fund and Membership Solicitation

A judge may assist an organization with fundraising or membership solicitation but
must consider whether the purposes of the organization or the nature of participation
conflicts with the judge’s duty to refrain from activities that compromise his indepen-
dence, integrity, and impartiality. [CJC 3.7, Comment (2)] A judge may make recom-
mendations to fund-granting sources concerning law-related projects. [CJC 3.7(A)(5)]
Further, a judge may help plan fundraising for an organization, and may help manage
and invest the organization’s funds. [CJC 3.7(A)(1)] A judge can solicit contributions
and memberships on behalf of the organization subject to the following limitations: (i)
contributions can be solicited only from members of his family or from other judges
over whom he does not exercise supervisory or appellate authority; (ii) memberships
can be solicited only on behalf of an organization that is concerned with the law, legal
system, or administration of justice. [CJC 3.7(A)]
Examples: 1) Judge T is the treasurer of International House, a nonprofit organi-
zation that serves foreign students at the local college. Each year
International House puts on a fundraising event. Judge T may help plan
the fundraiser, may help manage the funds thus raised, and may solicit
contributions from co-equal judges and family members, but not from
other people.
64. PROFESSIONAL RESPONSIBILITY

2) In the previous example, Judge T may sign a general contribution solici-

tation letter on the International House letterhead. The letterhead may list
Judge T as the treasurer of International House, and it may identify him
as a judge if others on the letterhead are comparably identified unless the
event concerns the law, legal system, or administration of justice.
3) In the previous example, Judge T may attend the International House
annual fundraising dinner, but not as a speaker or guest of honor unless
the event concerns the law, legal system, or administration of justice.
c. Attending Events
A judge can participate in non-fundraising events of the organization by: (i) attending
or speaking at an event, (ii) receiving an award or other recognition at an event, (iii)
being featured on the program of an event, and (iv) permitting his title to be used in
connection with the event. If the event serves a fundraising purpose, the judge may
participate in the above capacities only if the event concerns the law, legal system, or
administration of justice. [CJC 3.7(A)(4)]

5. Financial and Business Activities

Unless otherwise improper under the CJC, a judge may hold and manage investments
(including real estate) for himself or members of his family. [CJC 3.11(A)] A judge may not
be an officer, director, manager, general partner, adviser, or employee of any business entity.
A judge may, however, manage or participate in a business that is closely held by the judge or
members of his family, or a business that is primarily engaged in investing the judge’s or the
family’s financial resources. [CJC 3.11] A judge should not manage investments or partici-
pate in even a closely held family business if it interferes with judicial duties, if the business
frequently appears before the court on which the judge sits, leads to frequent disqualification,
or violates the CJC. [CJC 3.11(C)]

6. Gifts, Bequests, Favors, and Loans

As a general rule, a judge should not accept gifts, bequests, favors, loans, or other things of
value from anyone if doing so violates the law or compromises his independence, integrity,
or impartiality. A judge should urge family members who reside in the judge’s household not
to accept such items either. The exceptions to the general rule are as follows:
(i) Items with little intrinsic value (e.g., trophies, greeting cards);
(ii) Books, tapes, and the like, given by publishers for official use;
(iii) Rewards and prizes won in random drawings or contests that are open to persons who
are not judges;
(iv) A gift, award, or benefit incident to the activities of the judge’s spouse, domestic partner,
or a family member living in the judge’s household, that incidentally benefit the judge;
(v) Ordinary social hospitality (e.g., a dinner invitation);
(vi) A gift, bequest, favor, or loan from relatives, close personal friends, or others whose
appearance or interest in a case would disqualify the judge in any event (e.g., a new car
from the judge’s parents);
 PROFESSIONAL RESPONSIBILITY 65.

(vii) Commercial and financial opportunities, including loans from a lending institution,
made in the regular course of its business and on the same terms available to nonjudges;
and

(viii) A scholarship or fellowship or similar benefit given on the same terms as to other
people.

[CJC 3.13]

a. Gifts Subject to Reporting Requirements

In addition to the gifts and benefits listed above, a judge may also accept the following
items provided he reports receipt of the items:

(i) Gifts incident to a public testimonial;

(ii) An invitation to the judge and his spouse, domestic partner, or guest to attend a
law-related function or an event associated with the judge’s educational, religious,
charitable, fraternal, or civic activities; and

(iii) Gifts, bequests, loans, or other benefits from a person who has come or is likely to
come before the judge.

[CJC 3.13(C)]

7. Fiduciary Activities
Generally, a judge may not serve as an executor, administrator, trustee, guardian, or other
fiduciary. However, a judge may serve in such a capacity for a member of the judge’s family,
but only if the service will not:

(i) Interfere with the judge’s judicial duties;

(ii) Involve the judge in proceedings that would ordinarily come before him; or

(iii) Involve the judge in adversary proceedings in the court on which the judge sits or one
under its appellate jurisdiction.

[CJC 3.8(A), (B)]

a. Financial Dealings as Fiduciary

The restrictions on financial dealings that apply to a judge personally also apply when
the judge acts as a fiduciary. [CJC 3.8(C)]

b. Conflicting Duties
When the duties of a fiduciary conflict with the judge’s duties under the CJC, the judge
should resign as fiduciary. [CJC 3.8, Comment (1)]
Example: Judge V is appointed as trustee of a fund for the use and benefit of
his invalid brother. The trust fund includes common stock of several
companies that frequently appear as litigants before Judge V. The CJC
requires a judge to manage her investments in a way that minimizes
66. PROFESSIONAL RESPONSIBILITY

disqualifications. If the trust fund would be harmed by divestiture of

those stocks, Judge V should not serve as trustee.
8. Service as Arbitrator or Mediator
A full-time judge may not act as an arbitrator, mediator, or private judge unless expressly
authorized by law. This does not, of course, prevent the judge from participating in arbitra-
tion, mediation, or settlement conferences in a judicial capacity. [CJC 3.9 and Comment (1)]
9. Practice of Law
A full-time judge may not practice law. However, a judge may act pro se and may, without
compensation, give legal advice to, and draft or review documents for, a member of her
family. A judge must not, however, act as an advocate or negotiator for a family member in a
legal matter. [CJC 3.10 and Comment (1)]

10. Outside Compensation and Expenses

The federal government and many other jurisdictions have adopted rigorous require-
ments concerning the receipt and reporting of a judge’s outside compensation and expense
reimbursement. The following rules apply only where not supplanted by more rigorous
requirements.
a. General Requirements
A judge may receive compensation and reimbursement of expenses for proper outside
activities if:

(i) The compensation or expense reimbursement does not undermine the judge’s
independence, integrity, or impartiality or influence the judge’s performance of
judicial duties;
(ii) The compensation is reasonable for the work done and does not exceed what would
be given to a nonjudge; and
(iii) The reimbursement of expenses does not exceed actual expenses reasonably
incurred by the judge and, when appropriate to the occasion, the judge’s spouse,
domestic partner, or guest.
[CJC 3.12; 3.14]

b. Reports of Compensation
A judge who receives compensation or reimbursement for outside activities must report:
the activity, when and where it took place, the payor, and the amount. A judge must
make such reports annually in a public court document, but reports for reimbursement
must be made within 30 days of the event. In a community property state, compensation
received by the judge’s spouse is not attributed to the judge for this purpose. [CJC 3.15]

F. JUDGES AND POLITICS

The general rule is simple: Judges must not engage in political or campaign activity that compro-
mises the independence, integrity, and impartiality of the judiciary. [CJC 4]

1. Rules Applicable to All Judges and Judicial Candidates

The following rules apply to all judges and candidates for judicial office. [CJC 4.1]
 PROFESSIONAL RESPONSIBILITY 67.

a. Definition of “Candidate”
A “candidate” is a person who seeks to obtain or retain a judicial office either by
election or appointment. The same definition applies to a judge who seeks an elected or
appointed nonjudicial office. A person becomes a candidate when she does any one of
the following things:

1) Makes a public announcement of candidacy;

2) Declares or files as a candidate with the election or appointment authority; or

3) Authorizes solicitation or acceptance of contributions or support.

b. General Prohibitions
Except where specifically permitted by the CJC, a judge or candidate for judicial office
must not:

(i) Act as a leader or hold office in a political organization;

(ii) Publicly endorse or oppose another candidate for public office;

(iii) Make speeches on behalf of a political organization;

(iv) Financially support a political organization or candidate, which includes soliciting

funds, making contributions, paying assessments, and buying tickets for political
dinners or other functions;

(v) Publicly identify herself as a candidate of a political organization and seek, accept,
or use endorsements from a political organization;

(vi) Use court resources in a campaign for office; or

(vii) Personally accept or solicit campaign contributions other than through a campaign
committee, or use campaign contributions for private use.

[CJC 4.1] These general prohibitions have some exceptions that are discussed in 3.,
infra.

c. Explanation of General Prohibitions

When false statements are publicly made about a judicial candidate, a judge or judicial
candidate who knows the facts may make the facts public. A public officer, such as a
prosecutor, may retain that office while running for an elective judicial office. A judge
or judicial candidate may privately express her views on candidates for public office. A
candidate does not endorse another candidate simply by running on the same political
ticket. [CJC 4.1, Comment (8)]

d. Judges Who Run for Nonjudicial Office

A judge must resign from judicial office when she becomes a candidate for a nonjudi-
cial elective office. However, a judge need not resign when she becomes a candidate for
a nonjudicial appointive office or seeks to become a delegate to a state constitutional
convention. [CJC 4.5]
68. PROFESSIONAL RESPONSIBILITY

e. Dignity, Impartiality, Integrity, and Independence

A candidate must act with the dignity, impartiality, integrity, and independence
expected of a judge. [CJC 4.2(A)(1)] A candidate must encourage others to adhere to
the same standards expected of the candidate when they act in support of the candidate.
[CJC 4.1(B); 4.2(A)(4)]
f. Response to Attacks
Subject to the rules stated in g., below, candidates may respond to attacks on themselves
or their records.
g. Statements, Promises, and Pledges
When seeking judicial office, a candidate must not:
(i) With respect to cases, controversies, or issues that are likely to come before the
court, make pledges, promises, or commitments that are inconsistent with the
impartial performance of the adjudicative duties of the office; or
(ii) Knowingly or recklessly make any false or misleading statement or any statement
that would affect the outcome or fairness of any matter.
[CJC 4.1(A)] A candidate may make pledges or promises to improve judicial admin-
istration, and an incumbent judge may speak privately with other judges and court
personnel in the performance of judicial duties. The duties stated in this section apply to
any statements made in the process of securing judicial office, including statements to
selection, tenure, and confirmation authorities. The judge must ensure that others acting
on her behalf adhere to these standards.
Examples: 1) The United States Senate Judiciary Committee is holding a hearing to
determine whether to recommend lawyer L to the Senate for confirma-
tion as a Supreme Court Justice. A committee member asks L: “Tell us
whether you believe the Blotz Anti-Conspiracy Act is constitutional.”
If the constitutionality of the Act is likely to come before the Court, L
should decline to commit herself.
2) In the situation posed in Example 1), suppose a committee member
asks: “Tell us your views on the role of stare decisis in interpreting
the Bill of Rights.” L should answer the question candidly, but without
indicating how she would rule on any specific issue that is likely to come
before the Court.
1) But Note—“Announce Clause” Is Unconstitutional
The United States Supreme Court has held that an “announce clause”—i.e., a
clause prohibiting candidates for judgeships from announcing their views on
disputed legal or political issues—is unconstitutional because it violates the First
Amendment by prohibiting speech on the basis of content and burdening the
speech of political candidates. [Republican Party of Minnesota v. White, 536 U.S.
765 (2002)]
2. Rules Applicable to Candidates for Appointed Positions
Where a judgeship or other government position is filled by appointment, a candidate must
not engage in political activity to secure the appointed position, except that she may:
 PROFESSIONAL RESPONSIBILITY 69.

(i) Communicate with the appointing authority and screening groups; and

(ii) Seek support from any person or organization other than a political partisan organiza-
tion.

[CJC 4.3]

3. Rules Applicable to Judges and Candidates Subject to Public Election

In F., supra, you read some general rules that are designed to insulate judges and candidates
for judicial office from routine politics. Those general rules have some exceptions that apply
to positions filled by public election. The exceptions recognize the practicalities of elective
politics in a democratic system. If the system is to work, the participants must be allowed
some freedom to engage in politicking and campaigning. The exceptions cover three classes
of persons:

(i) Judges who are subject to public election;

(ii) Candidates for a judicial position filled by public election; and

(iii) Judges who seek a nonjudicial position filled by public election.

[See CJC, Terminology (definition of candidate)] These three classes of persons may do the
following things:

(i) Establish a campaign committee;

(ii) Speak on behalf of her candidacy, including through advertisements, websites, or other
campaign literature;

(iii) Publicly endorse or oppose candidates for the same judicial office;

(iv) Seek, accept, or use endorsements from a person or organization other than a partisan
political organization;

(v) Contribute to a political organization or candidate for public office; and

(vi) Buy tickets for and attend political gatherings.

[CJC 4.2]

In addition to the above, candidates in partisan public elections may identify themselves as
candidates of a political organization and seek, accept, and use endorsements of a political
organization. [CJC 4.2]

a. Campaign Activities
These parties may engage in campaign activities, subject to the following rules:
70. PROFESSIONAL RESPONSIBILITY

1) Ban on Personal Solicitation

These parties may neither personally solicit publicly stated support nor solicit or
accept campaign contributions. [CJC 4.1; 4.4]

2) Campaign Committees
These parties may, however, establish campaign committees, which may: (i) put
on candidate forums and publish campaign literature; (ii) manage campaign funds;
and (iii) solicit public support and reasonable contributions from members of the
public, including lawyers. Note that if a judge knows the identity of contributing
lawyers or litigants, that fact may require the judge to disqualify herself under the
CJC (see D., supra). [CJC 4.4 and Comments]

a) Solicitation Time Limits

Campaign committees may solicit contributions and public support in confor-
mance with the jurisdictional time limits. [CJC 4.4(B)(2)]

b) Excessive Campaign Contributions

A candidate must instruct the campaign committee not to accept contribu-
tions in excess of the jurisdiction’s specified limits. Also, the campaign
committee must file with the designated state office a report stating the name,
address, occupation, and employer of each person who has made such exces-
sive contributions. [CJC 4.4(B)(1), (3)]

G. APPLICATION OF THE CODE OF JUDICIAL CONDUCT

The CJC applies to all persons who perform judicial functions, including magistrates, court
commissioners, and special masters and referees. The Application section at the beginning of the
CJC contains a group of highly detailed exceptions that make various parts of the CJC inappli-
cable to several categories of retired and part-time judges. For bar exam purposes, we suggest that
mastering the detailed exceptions is not the best use of your time, and that you be content with the
following broad generalizations:

1. 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.

2. Continuing part-time judges, periodic part-time judges, and pro tempore part-time judges
are exempt from many, but not all, of the CJC provisions that restrict outside activities and
political activities.
 PROFESSIONAL RESPONSIBILITY MULTIPLE CHOICE QUESTIONS 1.

PROFESSIONAL RESPONSIBILITY MULTIPLE CHOICE QUESTIONS

INTRODUCTORY NOTE
You can use the sample multiple choice questions below to review the law and practice your under-
standing of important concepts that you will likely see on your law school exam. To do more questions,
access StudySmart MPRE software from the BARBRI website.

Question 1 Question 2

The mayor of a small city is also a licensed A sales manager testified before a federal
attorney who has a law partnership with a fellow grand jury that was investigating price-fixing
attorney in the city. Under the city’s charter, in the automobile tire industry. Ultimately, the
the mayor has the authority to determine what grand jury indicted the sales manager for price-
issues are to be placed upon the agenda of the fixing, a felony under the Sherman Act. After
city council. Several council members have told his indictment, the sales manager sought to hire
the mayor that they would like to see a particular a prominent attorney to represent him at his
zoning measure placed upon the agenda. This criminal trial. The sales manager is a middle
proposed ordinance would ban commercial class business executive with enough savings
development of a certain area within the city to pay for private counsel. He told his attorney
limits. in confidence that he had lied to the grand jury
about several meetings he had had with competi-
The mayor’s law partner has been retained tors. Furthermore, he told her that he wanted to
as attorney for a development company that has plead not guilty to the criminal charge and that
acquired land in the proposed noncommercial he intended to testify at trial as he did before the
zoning area and has plans to construct a large grand jury.
shopping center there. The mayor has agreed to
take no direct role in the representation, not to Which of the following would be proper for
share any fees from the case, and not to attend the attorney to do in this situation?
any city council meetings at which the matter
will be discussed. (A) Decline to represent the sales manager.

May the mayor’s law partner represent the (B) Agree to represent the sales manager and
development company in this matter? tell no one what he told her.

(A) Yes, because the development company is (C) Inform the sales manager that unless he
not a client of the mayor. pleads guilty to the criminal charge, she
will tell the prosecutor about his false testi-
(B) Yes, because the mayor will not be present mony before the grand jury.
at any city council meetings at which the
matter is discussed. (D) Decline to represent the sales manager and
inform the prosecutor about his false testi-
(C) No, because of the mayor’s position as mony before the grand jury.
mayor.

(D) No, because the mayor will have no direct

role in the representation and will not share
in any fees from the case.
2. PROFESSIONAL RESPONSIBILITY MULTIPLE CHOICE QUESTIONS

Question 3 Question 4

A partner in a law firm has just been elected a A law school graduate who is not a licensed
judge of the circuit court. She has been assigned member of the bar felt called to the ministry
to the probate division. During her last week after he graduated from law school. He received
with the law firm, she filed a number of very a degree in divinity and was formally ordained
routine, uncontested probate motions. At the as a minister of his faith. He is now the pastor of
time, she had no idea that she would be assigned a local church, where an attorney is a member
to the probate division. These routine probate of the congregation. As pastor, he has been very
motions have been assigned to her courtroom by disturbed about the high rates of divorce and the
a lottery system of random assignment that the breakdown in American family life. Therefore,
circuit court regularly employs to assign cases. he holds frequent “family counseling sessions”
where, among other things, he explains to the
Is it proper for the judge to rule on these parishioners who attend these sessions many
motions? of the legal ramifications of divorce, alimony,
child support, and child custody. These sessions
(A) Yes, because they are routine and uncon- are usually followed by question-and-answer
tested. periods, during which the pastor gives legal
advice to parishioners who cannot afford a
(B) Yes, because reassignment would cause lawyer. The pastor knows that the legislature
delay. has passed a new marriage dissolution law that
changes the law substantially from what he
(C) No, because she has a conflict of interest. was taught in law school. The pastor asks the
attorney who is a member of the congregation if
(D) No, because judges may never rule on he will prepare an outline and a memorandum
issues when their former law firm is fully explaining the new law so that he will be
involved. better informed for the sessions with his parish-
ioners.

If the attorney agrees to do this, is he subject

to discipline?

(A) Yes, because the pastor may bring the attor-

ney before the State Bar Disciplinary Com-
mittee if the attorney makes any mistake of
law in the memorandum.

(B) Yes, because the attorney is assisting in the

unauthorized practice of law.

(C) No, because the attorney has a duty to help

educate the public regarding the law.

(D) No, because marriage counseling is an

important part of the pastor’s duties as
pastor.
 PROFESSIONAL RESPONSIBILITY MULTIPLE CHOICE QUESTIONS 3.

Question 5 Question 6

After a major airplane crash in the vicinity A lawyer represents a defendant who is being
of an affluent island town, in which 122 passen- prosecuted in a jury trial for an armed robbery
gers and crew were killed, the town’s attorneys and attempted murder that occurred on June
swarmed like locusts to get a “piece of the 15. The accused has pleaded not guilty to the
action” and the potentially huge contingent fees charges, but the lawyer knows that the accused
that were likely to arise from the case. Inter- is the perpetrator and that the crime occurred
ested in fees himself, but also rather disgusted at approximately 10 p.m. The victim testifies
at the performance of some of his colleagues of that she is certain that the crime occurred at
the bar, one attorney placed an ad in the town’s midnight. The accused has an airtight alibi for
weekly legal newspaper, whose readership midnight. At 11:40 p.m. he was arrested on
was almost entirely lawyers. The ad suggested a drunk driving charge, and he was in police
that any attorneys representing plaintiffs in custody until 6 a.m. on June 16. On cross-exami-
the airline crash matter contact him in order nation, the lawyer does nothing to challenge the
to consolidate lawsuits against the airline, and victim’s recollection of the time of the attack.
that legal fees would be divided in proportion Also, as the trial unfolds, the lawyer does not
to the work performed. The ad was signed by introduce any evidence at her disposal that
the attorney and indicated his office address and would help establish the time of the attack as
telephone number. 10 p.m. The lawyer calls as a witness a police
officer who testifies that the accused was in fact
Was it proper for the attorney to place such an in custody at midnight on the night in question.
advertisement? The accused does not testify and is acquitted.

(A) Yes, because the ad was not misleading. Are the lawyer’s actions proper?

(B) Yes, because the lawyers will split the fees (A) Yes, because her client is a criminal de-
in proportion to work done. fendant and constitutional protections take
precedence over ethical rules.
(C) No, because the attorney is soliciting
business. (B) Yes, because she did not present false
evidence.
(D) No, because the ad is in bad taste.
(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.
4. PROFESSIONAL RESPONSIBILITY MULTIPLE CHOICE QUESTIONS

Question 7 Question 8

An attorney has a high-profile divorce law A man walked into the law offices of a lawyer
practice in the town in which he resides. Because who, because she was not busy at the time,
of his heavy caseload, the attorney often appears agreed to talk to the man right away. The man
before the four chancery judges of the county told the lawyer that he was concerned that he
court. One of the chancery judges is getting might be indicted soon. He explained the details
married, and he sends a wedding invitation to of his predicament at length to the lawyer, but
the attorney. The attorney wishes to send the after he finished, the lawyer explained that she
judge, as a wedding gift, an imported Italian only handled civil matters and urged the man to
machine that makes espresso and cappuccino consult with a friend who was a criminal lawyer.
coffee because he knows that the judge loves The man went on to retain the friend. A few days
fine coffee. The coffee machine sells for $200 after her interview with the man, the lawyer read
at the town’s best cooking equipment store. The a news item announcing the man’s indictment. It
attorney sent the coffee machine to the judge, quoted the district attorney at some length. After
and the judge duly made a public report of the reading the article, the lawyer became convinced
gift. that something the man had told her during their
interview would probably exonerate him or, at
Was it proper for the attorney to send the the very least, lead to a reduction in the charges
coffee machine to the judge? against him if the district attorney became aware
of the information in her possession.
(A) Yes, because the judge would not be un-
duly influenced by a $200 gift. May the lawyer reveal the information to the
district attorney?
(B) Yes, because the judge made a public report
of the gift. (A) Yes, because the man did not retain the
lawyer as his counsel.
(C) No, because the gift was not a campaign
contribution, and lawyers should not give (B) Yes, because the information will help the
other types of gifts to judges. man.

(D) No, because the value of the gift exceeded (C) No, because the attorney learned the infor-
$150. mation during the course of an attorney-
client relationship.

(D) No, unless the man consents to the disclo-

sure.
 PROFESSIONAL RESPONSIBILITY MULTIPLE CHOICE QUESTIONS 5.

Question 9 Question 10
A lawyer practices in State A. State A’s rules A wife whose husband was hard-drinking
of legal ethics depart from the ABA Model and abusive went to see a lawyer about getting
Rules in one significant respect: State A has no a divorce. However, because the wife did not
“financial injury” exception to the lawyer’s duty work outside the home, she told the lawyer that
of confidentiality. Thus, when a State A lawyer she could not afford to pay a big legal fee. The
learns in confidence that her client is about to lawyer was sure that the wife had adequate
use her legal services to inflict serious financial grounds for divorce in that her husband was
injury on someone, the lawyer may withdraw, adulterous, an alcoholic, and frequently beat
but she must not reveal what she learned in her. Therefore, the lawyer told the wife that if
confidence. The lawyer limits her practice to she could put up the $200 filing fee, he would
federal securities law, and she regularly appears do all the work for 10% of whatever he was able
before the Securities and Exchange Commission to obtain in alimony and child support on her
(“SEC”). One of her major clients is a company behalf. The wife was elated and immediately
that makes and sells cotton textiles. The compa- agreed to the arrangement, thanking the lawyer
ny’s shares are traded on the New York Stock profusely. The lawyer left his office that night
Exchange and in securities matters the company with a warm feeling that he had helped a fellow
is regulated by the SEC. While working on an human being, secure in the knowledge that at
SEC registration statement for the company, least one person in the community would have
the lawyer learned in confidence that three of something nice to say about lawyers.
the company’s top executives were cooperating
in a scheme to loot the company of millions of Personal satisfaction aside, was the lawyer’s
dollars. If their scheme continues, it could drive conduct proper?
the company into insolvency. The lawyer alerted
the chief legal officer of the company to the (A) Yes, because the fee is reasonable and is
situation, but he did nothing. She then alerted not excessive.
the chief executive officer, who also did nothing.
Finally, she alerted the six outside members of (B) Yes, because the lawyer is providing legal
the board of directors, but they too failed to act. services to a person who might not other-
In disgust, the lawyer withdrew from the matter wise be able to afford them.
and vowed never again to represent the company.
(C) No, because a contingent fee arrangement
Must the lawyer now tell the SEC about the is prohibited when the fee is based on the
scheme? amount of alimony or a division of marital
property.
(A) Yes, the SEC’s regulations under the Sar-
banes-Oxley Act require her to alert the SEC (D) No, because the wife was indigent and the
if her other efforts have proven fruitless. lawyer should have advanced her the filing
fees.
(B) No, the SEC’s regulations give her discre-
tion 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 informa-
tion in this situation.
6. PROFESSIONAL RESPONSIBILITY MULTIPLE CHOICE QUESTIONS

Question 11 Question 12

The driver of a car and his passenger were A judge ruled in favor of a plaintiff in a civil
injured as the result of a collision with a bus. action where the defendant was ordered to pay
They believe the bus driver was entirely at fault, the plaintiff $50,000 in damages. The judge has
and they want to bring a negligence action since resigned from the bench. The defendant
against the bus company. They engage in an has refused to pay the $50,000, asserting that the
initial consultation with a local attorney. In the verdict was obtained through improper means.
course of the consultation, the attorney realizes The defendant asks the judge, now in private
that the bus at issue belongs to a bus company practice, if she will represent him.
that the attorney’s firm is representing in an
unrelated matter. The attorney interrupts the Would the judge be subject to discipline if she
conversation, explains this potential conflict of represents the defendant?
interest, and obtains the written consent of both
the driver and passenger to represent them. (A) No, because the judge is no longer on the
bench.
Which of the following is not true?
(B) No, because the judge was not a party to
(A) The attorney may not represent the car’s fraud when the original verdict was handed
driver and passenger because he has not down.
obtained the written consent of the bus
company. (C) Yes, because the judge ruled on this case
when she was a judge.
(B) The attorney may not represent the car’s
driver and passenger because he did not (D) Yes, because former judges may not engage
inform the passenger that he may have a in private practice.
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.
 ANSWERS TO MULTIPLE CHOICE QUESTIONS 7.

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.
8. ANSWERS TO MULTIPLE CHOICE QUESTIONS

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 informa-
tion 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 testi-
mony 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 contribu-
tions 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
 ANSWERS TO MULTIPLE CHOICE QUESTIONS 9.

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 repre-
sent 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 incor-
rect. (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 PROFESSIONAL RESPONSIBILITY 1.

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. APPROACH TO PROFESSIONAL RESPONSIBILITY

c. Draft wills and estate plans

2. 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)
3. Lawyer cannot assist nonlawyer in unauthorized practice
4. Nonlawyer cannot own an interest in a law firm

II. 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

III. 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
 APPROACH TO PROFESSIONAL RESPONSIBILITY 3.

3. 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
IV. 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
4. APPROACH TO PROFESSIONAL RESPONSIBILITY

a. 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
2. 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
3. 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
4. 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)
5. 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
6. 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
 APPROACH TO PROFESSIONAL RESPONSIBILITY 5.

a) 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 substan-
tial injury to the organization and reporting within the
organization has failed
7. 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
8. 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)
9. Former judge, mediator, or other third party neutral in a matter must not later
represent anyone in that matter unless all parties consent
10. Lawyer serving as a third party neutral must explain to unrepresented parties
that he is not acting as their lawyer
11. 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

F. 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

V. THE LAWYER’S RESPONSIBILITIES TO THE CLIENT

A. Basic Obligations of Competence and Care

6. APPROACH TO PROFESSIONAL RESPONSIBILITY

1. 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 employ-
ee’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

VI. 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
 APPROACH TO PROFESSIONAL RESPONSIBILITY 7.

a. 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 repre-
sentation 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 adjudi-
cative proceeding

VII. 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
8. APPROACH TO PROFESSIONAL RESPONSIBILITY

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

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

IX. 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
 APPROACH TO PROFESSIONAL RESPONSIBILITY 9.

1) 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)
d. Must not use, or be a member of, an organization that practices invid-
ious discrimination
1) Exceptions: intimate, purely private organizations and organi-
zations that preserve religious, ethnic, or cultural values of
common interest to the members
e. Must not publicly manifest a knowing approval of invidious discrimina-
tion on any basis

B. 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
10. APPROACH TO PROFESSIONAL RESPONSIBILITY

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 execu-
tive 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 inciden-
tally 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
 APPROACH TO PROFESSIONAL RESPONSIBILITY 11.

10. A full-time judge must not practice law

11. 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 contri-
butions

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
 PROFESSIONAL RESPONSIBILITY EXAM QUESTIONS 1.

ESSAY EXAM QUESTIONS

INTRODUCTORY NOTE

The essay questions that follow have been selected to provide you with an opportunity to experience
how the substantive law you have been reviewing may be tested in the hypothetical essay examination
question context. These sample essay questions are a valuable self-diagnostic tool designed to enable
you to enhance your issue-spotting ability and practice your exam writing skills.
It is suggested that you approach each question as though under actual examination conditions. The
time allowed for each question is 45 minutes. You should spend 10-15 minutes spotting issues, under-
lining key facts and phrases, jotting notes in the margins, and outlining your answer. If you organize
your thoughts well, about 30 minutes will be more than adequate for writing them down. Should you
prefer to forgo the actual writing involved on these questions, be sure to give yourself no more time for
issue-spotting than you would on the actual examination.
The BARBRI technique for writing a well-organized essay answer is to (i) spot the issues in a
question and then (ii) analyze and discuss each issue using the “CIRAC” method:
C — State your conclusion first. (In other words, you must think through your answer before you
start writing.)
I — State the issue involved.
R — Give the rule(s) of law involved.
A — Apply the rule(s) of law to the facts.
C — Finally, restate your conclusion.
After completing (or outlining) your own analysis of each question, compare it with the BARBRI
model answer provided herein. A passing answer does not have to match the model one, but it should
cover most of the issues presented and the law discussed and should apply the law to the facts of the
question. Use of the CIRAC method results in the best answer you can write.
2. PROFESSIONAL RESPONSIBILITY EXAM QUESTIONS

EXAM QUESTION NO. 1

A third year law student went to interview for a job with Sam Stern, a local lawyer. The sign on the
door read:

Sam Stern, Esq.

Attorney and Counselor at Law
Certified Divorce and Personal Injury Specialist
Never Settle for Second Best

Inside was a scene of chaos: telephones ringing, files stacked around randomly, and clients waiting.
As the student sat in the waiting room, he could tell that the receptionist was discussing the scandalous
details of one of the divorce cases in the office with a caller who had reached her on her personal cell
phone. Finally lawyer Stern arrived. As he breezed by on the way to his inner office, the receptionist
said, “Mrs. Barnes is holding for you on two. She said she hasn’t been able to talk to you about her
personal injury case for months.” The lawyer paused, seemed to think about that for a second and said,
“Take a number and tell her I’ll get back to her this afternoon.” The student watched as the receptionist
wrote up a message and placed it on an old-fashioned spindle already overflowing with messages.
Apparently reminded that he had a law student waiting for an interview, Sam Stern burst back out
of his office and said, “Come with me, I’m late for a deposition. We’ll talk in the car.” He paused
and asked his receptionist, “Can I have a check on the office account so I can take this young man to
lunch?” When told that the balance was too low, he responded, “There’s plenty of money in the trust
account, give me one of those checks—I’ll pay that account back when the Jones fee comes in.”
His receptionist paused, started to say something, but then handed him a check on his trust account.
“One other thing before you leave: Judge Brown is holding on line one. He wants to appoint you to
serve as guardian ad litem in a divorce case.” As he went through the door, Mr. Stern yelled, “I’m not
going to take any of those low-paying appointments anymore. Tell him I’ve got a conflict—I’ll think of
something before I see him again.”
In the car on the way to the deposition, the student overheard the lawyer make two calls on his cell
phone. The first call was to Linda Larue. It was clear from the lawyer’s side of the conversation that
the lawyer represented Linda’s husband in a divorce action and he was urging her to sign a settlement
agreement. He ended the call by saying, “Have your lawyer call me.”
The second call was to his receptionist. He said, “Tell Mrs. Smith I have decided to take her divorce
case, but she is hard to work with so I want at least $50 an hour more than my regular rate. No, on
second thought, write an engagement letter and tell her my fee will be $400 an hour. I’ll earn every
penny of that.”
The lawyer pulled into a parking place near the office where the deposition was to occur. He
commented as he got his briefcase out of the car, “This is a partition case, and I don’t know anything
about partition cases. I am on the slow side of this case, and I am just trying to stall.” When the deposi-
tion was over, the lawyer took the law student to lunch. The law student decided not to take the job.
Identify and discuss each violation of the ABA Model Rules of Professional Conduct.
 PROFESSIONAL RESPONSIBILITY EXAM QUESTIONS 3.

EXAM QUESTION NO. 2

Lou Lawyer represents Wanda Wife in a post-divorce proceeding in which the sole issue is Wanda’s
attempt to receive increased child support from Hal Husband. Lou is representing Wanda under a
contingent fee arrangement based on a percentage of the amount of increased child support Lou may
be able to obtain in the proceeding. Lou has never appeared before the judge presiding over the matter
and knows nothing about him.
Hal Husband is an attorney who is currently under investigation by the state disciplinary admin-
istrator based on a complaint from Candy Client, alleging that she and Hal had an affair during his
representation of her.
Lou called Candy Client and stated to Candy that she was investigating the disciplinary complaint
against Hal. Candy assumed Lou was from the disciplinary administrator’s office and told Lou all of
the details of her affair with Hal during the representation.
After a motion filed by Hal’s lawyer, the judge ruled that neither the disciplinary investigation nor
the alleged affair would have any relevance to the determination of child support and that no evidence
of either would be allowed.
Lou, furious at the judge’s ruling, directed her paralegal to prepare, sign, and file a motion to
disqualify the judge in the child support proceeding. The motion alleged that the judge was a woman-
hater who would do anything to protect deadbeat dads in domestic proceedings regardless of the
law and, therefore, should be disqualified from hearing Wanda’s child support matter. The motion
also included graphic details of the allegations of Candy Client regarding the alleged affair with Hal
Husband. Lou leaked a copy of the motion to the local newspaper, which published the contents of the
motion.
As Hal’s lawyer, you have learned all of the above facts.
Note: Your only assignment is to address possible ethics issues relating to Lou, not the issues in the
underlying child support case or Hal’s investigation.
You need not provide the citation to any rule, but must be able to discuss the content of each rule to
which you refer in your answer.
(1) Do you have any obligations under the ABA Model Rules of Professional Conduct? If so, what
are those obligations?
(2) Has Lou violated any rule or rules of the ABA Model Rules of Professional Conduct? If so,
provide your analysis and conclusion for each such violation.
4. PROFESSIONAL RESPONSIBILITY EXAM QUESTIONS

EXAM QUESTION NO. 3

For the past 15 years, Craig has represented Trevor, the chief executive officer and founder of
Computer Chips, Inc. (“Computer Chips”), a large publicly traded computer company. Trevor also
develops real property, and Craig currently represents Trevor in a lawsuit regarding Trevor’s ownership
of real property in Anytown, USA. The lawsuit is close to being settled and, once settled, Trevor will
own the property on which he plans to build a 40-story high rise condominium.
Trevor has become frustrated with how the federal government is spending his “tax dollars.” One
day while Trevor is in Craig’s office to review the settlement documents regarding the lawsuit, Trevor
tells Craig that he intends to refuse to pay any more income taxes, because he believes that his taxes
should not go to support foreign countries. Craig thinks Trevor’s position is ridiculous and illegal,
and he wants to avoid any appearance that he endorses Trevor’s beliefs. Craig tells Trevor that he has
decided to terminate their relationship. Without Craig, the settlement of the lawsuit will collapse and
Trevor’s high rise project will be delayed for years.
After Trevor leaves the office, Craig contacts Harry, who is general counsel at Computer Chips, and
informs him of Trevor’s current decision not to pay his income taxes. It is Craig’s belief that Trevor
must be stopped, as Trevor’s actions will harm Computer Chips’s stock, in which Craig has invested
his life’s savings. Craig also tells Harry that he has begun selling his stock in Computer Chips and that
he believes it is his duty to tell the press about Trevor’s actions and to report Trevor’s potential crime to
the United States Attorney.
Before becoming general counsel of Computer Chips 15 years ago, Harry represented Trevor in
Trevor’s real estate holdings. Harry knows that Trevor can be a difficult client and that Trevor previ-
ously did not pay portions of his income tax in similar protest. Harry decides to call the chairman of
the board of Computer Chips and inform him of what Craig has divulged and of Trevor’s past actions
regarding the nonpayment of income taxes.
Have Craig and/or Harry violated any of the ABA Model Rules of Professional Conduct? Explain.
 PROFESSIONAL RESPONSIBILITY EXAM QUESTIONS 5.

EXAM QUESTION NO. 4

(1) After three years as an assistant district attorney, you decide to pursue your dream and open
your own law office. During your first month, you are contacted by a potential client who was involved
in an automobile accident. The case presents difficult issues regarding liability and insurance coverage.
Because of your inexperience in personal injury litigation, you contact a local lawyer experienced in
personal injury litigation to handle the claim. You, your client, and the other lawyer enter into a written
agreement which provides that (i) both lawyers will assume joint responsibility for the case, (ii) the
lawyers will receive a 35% fee based on the outcome of the case, and (iii) the lawyers will share the
fee.
Have your actions been appropriate under the ABA Model Rules of Professional Conduct? Explain
why or why not.
(2) A few weeks later, a longtime family friend advises you that he will soon be retiring from his
employment with a large insurance company. Although your friend has no legal education or training,
he has spent the last 20 years as an adjuster in the personal injury claims department. Your friend is
interested in part-time employment to avoid boredom, and you are excited about the opportunity to
expand your practice to include personal injury litigation. You agree to hire your friend as a legal assis-
tant (hereinafter referred to as your “legal assistant”) and to pay him an undetermined fee based on the
amount of the fee generated by each personal injury case.
Your legal assistant meets with prospective personal injury clients and gathers all relevant informa-
tion to support their claims. Since your criminal practice requires your frequent attendance in court,
you provide your legal assistant with blank, pre-signed letters of representation on your letterhead
which authorize your legal assistant to deal with the insurance companies in an effort to settle the case
and pre-signed letterhead stationery otherwise blank for his use in communicating with insurance
adjusters and clients regarding settlement negotiations. Many clients and insurance adjusters mistak-
enly believe your legal assistant is a lawyer.
After only two months on the job, your legal assistant advises you that he has successfully settled
your first personal injury case for $100,000. Your client is extremely satisfied and promises to refer
your firm to her friends. Your share of the settlement is $35,000. You pay your legal assistant $7,000
for a job well done.
Have your actions been appropriate under the ABA Model Rules of Professional Conduct? Explain
why or why not.
 PROFESSIONAL RESPONSIBILITY EXAM ANSWERS 1.

ANSWERS TO ESSAY EXAM QUESTIONS

ANSWER TO EXAM QUESTION NO. 1

Sam Stern (“Stern”) committed several violations of the ABA Model Rules of Professional Conduct
(“RPC”).
Specialization: Stern violated the RPC by having a sign on the door to his firm that reads, “Certi-
fied Divorce and Personal Injury Specialist.” A lawyer may not state or imply that he is certified as
a specialist in a particular field of law, unless: (i) the lawyer has been certified as a specialist by an
organization approved by an appropriate state authority or accredited by the ABA; and (ii) the name
of the certifying organization is clearly identified in the communication. Here, Stern stated that he was
a certified specialist in certain areas of the law, but failed to provide any supporting details. Thus, he
violated the RPC.
Supervising nonlawyers: Stern may have violated the RPC by allowing his receptionist to blatantly
discuss scandalous details of one of the firm’s divorce cases with persons outside of the firm. A lawyer
having direct supervisory authority over a nonlawyer must make reasonable efforts to ensure that the
person’s conduct is compatible with the professional obligations of the lawyer. Here, Stern was not
yet present when the receptionist was speaking on her cell phone about the divorce case. However, if
Stern knew the receptionist had a habit of discussing confidential information about his clients and did
nothing to remedy the situation, he has violated the RPC.
Diligence: Stern violated the RPC by failing to provide his clients with timely responses to their
messages. A lawyer must act with reasonable diligence and promptness in representing a client, and
his workload must be controlled so that each matter can be handled competently. Here, Stern’s client,
Mrs. Barnes, has apparently not received a response from Stern in months. This does not seem to be
an isolated incident, considering Stern also has an overflowing spindle of messages. Thus, Stern has
violated his duty of diligent representation.
Trust account funds: Stern violated the RPC by improperly taking money out of his firm’s client
trust account. Client funds must be kept in a separate trust account maintained in the state where the
lawyer’s office is situated, or elsewhere with the consent of the client or third person. A lawyer must
deposit into the trust account legal fees and expenses that were paid in advance, to be withdrawn only
as fees are earned or expenses are incurred. Here, Stern took money out of the trust account in order to
take the law student out to lunch, and this clearly violates the RPC.
Accepting appointments: Stern violated the RPC by attempting to avoid an appointment by Judge
Brown. A lawyer must not seek to avoid appointment by a tribunal to represent a person except for
good cause, such as: (i) representing the client is likely to result in a violation of the RPC or other law;
(ii) representing the client is likely to result in an unreasonable financial burden on the lawyer; or (iii)
the client or the cause is so repugnant to the lawyer as to be likely to impair the lawyer-client relation-
ship or the lawyer’s ability to represent the client. Here, Stern’s motivation for not wanting to serve as a
guardian ad litem in a divorce case was that it was “low paying.” This does not constitute good cause,
and therefore Stern has violated the RPC.
Dishonesty: In the incident above, Stern instructed his employee to lie to Judge Brown about
having a conflict that would not allow him to serve as a guardian ad litem. The RPC generally prohibit
conduct involving dishonesty, fraud, deceit, or misrepresentation. Thus, Stern’s dishonesty may have
violated the RPC.
Speaking with a represented person: Stern violated the RPC by speaking with his client’s spouse
regarding their divorce case. In the representation of a client, a lawyer must not communicate about the
subject of the representation with a person he knows to be represented by counsel in the matter unless
the other counsel has granted permission or he is otherwise authorized by law or court order to make
such direct communication. Here, Stern knew that his client’s wife, Linda Larue, was represented by
2. PROFESSIONAL RESPONSIBILITY EXAM ANSWERS

counsel because he said, “Have your lawyer call me.” Further, he was speaking with her about settling
the case, which related to the representation. Thus, Stern’s conversation with Linda violated the RPC.
Reasonableness of fee: Stern may have violated the RPC by charging Mrs. Smith an unreasonable
fee. A lawyer must not make an agreement for, charge, or collect an unreasonable fee or an unreason-
able amount for expenses. Among the factors to be considered in determining the reasonableness of a
fee are: (i) the time and labor required; (ii) the novelty and difficulty of the questions involved; (iii) the
skill required to perform the legal service; (iv) the likelihood, if apparent to the client, that acceptance
of the particular employment will preclude other employment; (v) the customary fee within the locality
for similar work; (vi) the amount involved and the result obtained; (vii) the nature and length of the
relationship between the parties; (viii) the experience, ability, and reputation of the attorney; (ix) the
time limitations imposed by the client or the circumstances; and (x) whether the fee is fixed or contin-
gent.
Here, Stern is planning to charge Mrs. Smith $400 an hour, which appears to be more than $50
higher than his normal hourly rate. There is no indication that the reason for this change is that the
legal work will be particularly complex, or that it will require more skill or preclude other employment.
Rather, Stern has increased the fee because he finds this client “hard to work with.” Despite his asser-
tion that he will “earn every penny” of the fee, this reasoning is suspect and indicates that the fee may
be unreasonable. Thus, Stern’s fee increase may violate the RPC.
Competence and duty to expedite litigation: Stern violated the RPC by failing to provide compe-
tent representation in the partition case. Once having entered into a lawyer-client relationship, a lawyer
must act competently and with care in handling legal matters for that client. Competent representation
requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the repre-
sentation. A lawyer also has a duty to expedite litigation consistent with the interests of his client.
Here, Stern has been involved in the partition case for some time, as evidenced by his statement,
“I am on the slow side of this case and I am just trying to stall.” He has not spent his time educating
himself on this area of the law, since he still doesn’t “know anything about partition cases.” Thus, he
has violated the RPC by failing to provide competent representation. Furthermore, depending on the
interests of Stern’s clients, Stern also may have violated his duty to expedite litigation by intentionally
delaying the case.

ANSWER TO EXAM QUESTION NO. 2

(1) I have the ethical obligation to report Lou’s misconduct under the ABA Model Rules of Profes-
sional Conduct (“RPC”). Under the RPC, an attorney who knows that another lawyer has committed
a violation of the RPC that raises a substantial question as to that lawyer’s honesty, trustworthiness,
or fitness as a lawyer in other respects, must inform the appropriate professional authority. Disclosure
is not required if it requires the attorney to divulge confidential client information, but such is not the
case under these facts. Accordingly, if I am of the opinion that Lou’s conduct violated the RPC in any
way, I am ethically obligated to report the misconduct.
(2) Lou has committed several violations of the RPC. The first ethical issue concerns the contin-
gent fee arrangement based on a percentage of the amount of increased child support Lou may be
able to obtain in the proceeding. Under the RPC, a contingent fee is a fee that is dependent on the
successful resolution of a client’s case and payable from the judgment proceeds. Contingent fee
arrangements are permissible in some situations. However, a lawyer must not enter into a fee arrange-
ment for a domestic relationship matter in which the fee collected is contingent upon the amount of
alimony or support. Therefore, Lou’s contingent fee arrangement violated the RPC.
The second ethical issue concerns Lou’s communications with Candy Client. In representing a
client, a lawyer must not use means that have no substantial purpose other than to embarrass, delay,
or burden a third person; or use methods of obtaining evidence that violate the legal rights of such a
 PROFESSIONAL RESPONSIBILITY EXAM ANSWERS 3.

person. Furthermore, in representing a client, a lawyer must not knowingly make a false statement of
material fact or law—or fail to disclose a material fact when disclosure is necessary to prevent misun-
derstanding—to a third person. In this case, Lou called Candy Client and stated to her that she was
investigating the disciplinary complaint against Hal. Lou should have disclosed to Candy Client that
she was not with the disciplinary administrator’s office to clarify any misunderstanding, and her failure
to do so violated the RPC.
The third issue concerns the unauthorized practice of law. The RPC prohibits a lawyer from
practicing law in a jurisdiction where doing so violates the regulation of the legal profession in that
jurisdiction or assisting another person in doing so. Here, when Lou authorized her paralegal to
prepare, sign, and file a motion to disqualify the judge in the child support proceeding, the paralegal
committed the unauthorized practice of law. Because Lou sanctioned that unauthorized practice, she
violated the RPC.
The fourth issue concerns the allegations made in the motion to disqualify the judge in the child
support hearing. A lawyer must not make a statement that the lawyer knows to be false or with reckless
disregard as to its truth or falsity concerning the qualifications or integrity of a judge. Here, even
though Lou knew “nothing” about the judge, he alleged that the judge was a woman-hater who would
do anything to protect deadbeat dads in domestic proceedings regardless of the law. While it is appro-
priate to file a motion to disqualify a judge for a legitimate reason, to state such outlandish, baseless
allegations is a violation of the RPC.
The fifth issue concerns the details of the alleged affair between Candy Client and Hal Husband
that Lou included in the motion to disqualify the judge in the child support hearing. A lawyer must
not knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on
an assertion that no valid obligation exists. Here, the judge ruled that neither the disciplinary investi-
gation nor the alleged affair would have any relevance to the determination of child support and that
no evidence of either would be allowed. Accordingly, when Lou included graphic details of the allega-
tions of Candy Client regarding the alleged affair with Hal Husband in the motion, she violated the
RPC.
The sixth issue concerns the leaked copy of the motion that included graphic details of the alleged
affair between Candy Client and Hal Husband. A lawyer who is participating or has participated in
the investigation or litigation of a matter must not make an extrajudicial statement that the lawyer
knows or reasonably should know will be disseminated by means of public communication and will
have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. Here,
Lou leaked a copy of the motion to the local newspaper, which published the contents of the motion.
Because of the graphic details of the alleged affair, Lou must have known of the prejudicial effect this
would have had on the proceeding and, therefore, violated the RPC.

ANSWER TO EXAM QUESTION NO. 3

Craig: Craig has violated the ABA Model Rules of Professional Conduct (“RPC”) by withdrawing
from representing Trevor, disclosing confidential information to Harry, and using confidential informa-
tion to the disadvantage of Trevor.
Withdrawal: Craig violated the RPC when he terminated his relationship with Trevor. At issue is
whether a lawyer may withdraw from representing a client. A lawyer may withdraw from representing
a client if withdrawal can be accomplished without material adverse effect on the interests of the client.
Here, Craig represents Trevor in a lawsuit that is close to being settled. The suit will not settle without
Craig, thereby delaying Trevor’s project for years. The multiyear delay will certainly have a material
adverse effect on Trevor. Therefore, Craig violated the RPC by terminating his relationship with
Trevor.
Craig may argue that he had to withdraw to avoid assisting Trevor with his crime of not paying
4. PROFESSIONAL RESPONSIBILITY EXAM ANSWERS

taxes. The RPC provide that a lawyer must not counsel or assist a client in conduct that the lawyer
knows is criminal or fraudulent. However, a lawyer may discuss a proposed course of conduct with a
client and explain to the client that the conduct would be unlawful. Here, Trevor is not asking Craig
to assist him in any way. He is merely telling Craig what he intends to do in the future. It is proper for
Craig to discuss this with Trevor and explain to him that it is illegal to not pay taxes. Continuing to
represent Trevor in the condominium lawsuit would not have assisted Trevor in his intended crime.
Finally, Craig may argue that he was justified in withdrawing from the representation of Trevor
because of his moral opposition to Trevor’s plan. A lawyer may withdraw if the client insists upon
taking action that the lawyer considers repugnant or with which the lawyer has a fundamental
disagreement. Here, Craig thought Trevor’s plan was “ridiculous and illegal.” However, it does not
seem that Trevor “insisted” on not paying taxes in the future—in fact, he made only one statement to
that effect, and there is no indication that Craig tried to talk him out of it. Given that the lawsuit was
about to settle, it is unlikely that Craig’s indignation was proper justification for withdrawing at the
last minute.
Disclosing information about Trevor: Craig violated the RPC when he disclosed confidential
information about Trevor to Harry. At issue is whether a lawyer may discuss confidential informa-
tion he received from a client with a third party. A lawyer must not reveal information relating to the
representation of a client. A lawyer may reveal such information, however, to prevent the client from
committing a crime or fraud that is reasonably certain to cause substantial financial loss to a person
if the client is using or has used the lawyer’s services to commit the crime or fraud. Here, Trevor told
Craig that he is no longer going to pay his taxes. This information was told to Craig in confidence,
but Craig then told Harry. Trevor does intend to commit tax fraud, which Craig believes could cause
substantial financial harm to the stockholders of Chips, Inc. However, there is no indication that Trevor
has used, or is using, Craig’s services in his plan. Thus, the RPC were violated when Craig gave Harry
this information.
Using information to Trevor’s disadvantage: Craig violated the RPC when he used confidential
client information to his client’s disadvantage by unloading the stock he owned in Computer Chips,
Inc. A lawyer must not use information relating to the representation of a client to the client’s disad-
vantage unless the client consents. Here, Craig has invested his life’s savings in Computer Chips,
Inc.’s, stock, and he has begun to sell that stock based on Trevor’s decision to not pay his income
taxes. As chief executive officer and founder of the company, Trevor will undoubtedly be harmed by
the sale of Craig’s stock, and it was unethical for Craig to use the information to his personal advan-
tage.
Harry: Harry violated the RPC when he divulged Trevor’s past tax crime and when he failed to
report Craig’s professional misconduct, but not when he divulged Trevor’s intent to commit the same
crime in the future.
Divulging information about Trevor: Harry violated the RPC by divulging Trevor’s past tax crime,
but not by divulging his intent to stop paying taxes again. At issue is whether a lawyer may divulge
information about a client.
A lawyer must not reveal information relating to the representation of a client, regardless of when
or where it was acquired. This duty of confidentiality continues to apply even after the lawyer-client
relationship has terminated. Here, Harry represented Trevor in his real estate holdings over 15 years
ago. Harry knows that Trevor previously has not paid his taxes. Even though Harry no longer repre-
sents Trevor, the duty of confidentiality still applies. Thus, Harry violated the RPC when he divulged
Trevor’s past tax crime.
It was proper for Harry to inform the board of Trevor’s intended crime. If a lawyer for an organiza-
tion knows that an officer of the organization intends to act in a matter related to the representation
that is likely to result in substantial injury to the organization, the lawyer must proceed as is reason-
ably necessary in the best interest of the organization. Here, Trevor is the CEO of Computer Chips
and intends to stop paying all income taxes. If Trevor does not pay income taxes related to Computer
 PROFESSIONAL RESPONSIBILITY EXAM ANSWERS 5.

Chips, it will likely result in substantial injury to the organization. As general counsel for Computer
Chips, it is proper for Harry to inform the board of Trevor’s intended course of conduct.
Failure to report Craig’s violations of the RPC: Harry probably violated the RPC when he failed
to report Craig for divulging confidential client information to him. At issue is whether a lawyer must
report professional misconduct. A lawyer having knowledge that another lawyer has committed a
violation of the RPC that raises a substantial question as to that lawyer’s honesty, trustworthiness, or
fitness as a lawyer in other respects, must inform the appropriate professional authority. Here, Harry
knows that Craig has told him confidential information about a client. This is a violation of the RPC. It
probably raises a substantial question as to Craig’s fitness as a lawyer, because lawyer-client confidenti-
ality is a cornerstone of the legal profession. Therefore, Harry should have reported this misconduct to
the appropriate professional authority. His failure to do so constitutes a violation of the RPC.

ANSWER TO EXAM QUESTION NO. 4

(1) My actions in accepting representation of the client and sharing the fee with the other lawyer
have been appropriate under the ABA Model Rules of Professional Conduct (“RPC”); however, my
contingent fee agreement with the client was not in compliance with the RPC.
Competent representation: The RPC provide that a lawyer must act competently in handling a legal
matter for a client. Competent representation requires the legal knowledge, skill, thoroughness, and
preparation reasonably necessary for the representation. In determining whether a lawyer employs the
requisite knowledge and skill in a particular matter, a relevant factor is whether it is feasible to refer the
matter to, or associate with, a lawyer of established competence in the particular field. Here, I did not
have experience with personal injury litigation, so I associated with a lawyer who was so experienced.
Thus, by associating with an experienced personal injury lawyer, I can provide competent representa-
tion to the client, and I have not violated the RPC by accepting representation of the client.
Fee sharing: I also have not violated the RPC by entering into the written agreement with my
client and the other lawyer to share the fee with the other lawyer. The RPC provide that a lawyer may
ethically divide fees with an outside lawyer if the client consents and the division is in proportion to
the services performed by each lawyer, or by written agreement with the client, each lawyer assumes
joint responsibility for the representation. Here, there was a written agreement; the agreement provided
that both lawyers will assume joint responsibility for the representation; and the client entered into the
agreement, thereby consenting to it. Consequently, I did not violate the RPC by agreeing with my client
and the other lawyer to share the fee with the other lawyer.
Contingent fee: I did not violate the RPC by charging my client a 35% contingent fee in the matter;
but I did violate the RPC by not disclosing in the written agreement the information required by the
RPC. Generally, a contingent fee is permitted in a civil case if the fee is reasonable. In determining the
reasonableness of a fee, courts will consider such factors as the time and labor required for the repre-
sentation, the experience of the attorney, and the amount involved and the result obtained. Moreover,
a contingent fee agreement must be in a writing that states (i) the percentage(s) that accrue to the
lawyer(s) in the event of settlement, trial, or appeal; (ii) litigation and other expenses to be deducted
from the recovery; and (iii) whether such expenses are to be deducted before or after the contingent fee
is calculated.
Here, the contingent fee agreement was in a writing. The matter involves a personal injury claim,
which is a civil matter, so my charging a contingent fee was not prohibited by the RPC. Also, the 35%
fee based on the outcome of the case was not unreasonable under the circumstances. I associated an
experienced attorney to handle the matter, the case could very well go to trial and involve a great deal
of time and labor, and the case also could be worth a lot of money. However, the written agreement did
not specifically indicate the percentage(s) that would accrue to the lawyers in the event of settlement,
trial, or appeal; it only stated that the lawyers will receive a 35% fee based on the outcome of the case.
6. PROFESSIONAL RESPONSIBILITY EXAM ANSWERS

Furthermore, the agreement did not discuss the litigation and other expenses to be deducted from the
recovery and how they would be deducted. Therefore, the written agreement that I entered into with
the client to charge the contingent fee was not proper under the RPC.
(2) My actions in sharing my fees with my legal assistant and in allowing him to handle the
personal injury cases have not been appropriate under the RPC.
Fee sharing: The RPC provide that a lawyer must not share legal fees with a nonlawyer. Here, I
have agreed to pay my legal assistant an undetermined fee based on the fee that I receive for each
personal injury case. In fact, after my legal assistant settled my first personal injury case for $100,000,
of which my fee was $35,000, I paid my legal assistant $7,000. Thus, I agreed to (and did in fact) share
my legal fees with my nonlawyer legal assistant and thereby violated the RPC.
Unauthorized practice of law: My actions in allowing my legal assistant to deal with my clients
and the insurance companies and their claims adjusters also violate the RPC. The RPC provide that
a lawyer must not assist a person who is not a member of the bar in the performance of an activity
that constitutes the unauthorized practice of law. The practice of law includes the settling of cases for
clients. In this case, I have provided my legal assistant with blank, pre-signed letters and stationery
that authorize him to deal with my clients and the insurance companies (and their claims adjusters)
regarding settlement of my clients’ personal injury cases. In fact, some of my clients and the insurance
adjusters actually believe that my legal assistant is a lawyer. Thus, I have provided my nonlawyer legal
assistant with the authority to settle cases for my clients, which activity constitutes the practice of law.
Consequently, I have assisted my legal assistant in the unauthorized practice of law and have thereby
violated the RPC.
Supervising nonlawyers: In addition, by providing my legal assistant with control over my personal
injury cases, I have failed to properly supervise him. The RPC provide that a lawyer with direct
supervisory authority over a nonlawyer must ensure that the nonlawyer’s conduct is compatible with
the professional obligations of the lawyer. Here, I have cloaked my legal assistant with the necessary
authority to practice law although he is not a lawyer and his practice of law is prohibited by the RPC.
Therefore, I have not ensured that my legal assistant’s conduct is compatible with my professional
obligations under the RPC and so have violated the RPC.