© 2014, Richard P. Clem
These are the course materials for my review course for the Multistate Professional Responsibility Exam (MPRE). It is a review of the ABA Model Rules of Professional Conduct, which are covered on the MPRE. For information about the review course, please visit this link, where I also have links to other free and inexpensive study resources. You can also register for upcoming courses at that link. Those programs will be presented as live lectures in various cities, as well as by telephone conference call. Since these programs are presented live, there is always an opportunity for questions and answers.
These materials are also available in
PDF format and
Kindle format at Amazon
If you’re interested in finding out more about my Continuing Legal Education programs for attorneys, please visit my CLE page.
These materials have been adapted from the Continuing Legal Education program I’ve presented hundreds of times for attorneys. Since they’re not covered on the exam, this version doesn’t bother looking at the modifications in particular states, and we won’t look at the practical issues of how to apply these rules in the “real world”. Instead, I’ll present the material necessary for you to pass the test.
Rule 1.0: Terminology.
The first section of the
rules contains definitions of many terms used elsewhere in the rules. I’ve incorporated these definitions into the
discussion of the rules to which they apply.
But when you get ready for the test, keep in mind that the following
terms have definitions in Rule 1.0, and it’s a good idea to read through Rule
1.0. In most cases, these terms are
defined as you would expect, but you should take a look at the definitions.
"Belief" or
"believes"
"Confirmed in
writing"
"Firm" or "law
firm"
"Fraud" or
"fraudulent"
"Informed consent"
"Knowingly,"
"known," or "knows"
"Partner"
"Reasonable" or
"reasonably"
"Reasonable belief"
or "reasonably believes"
"Reasonably should
know"
"Screened"
"Substantial"
"Tribunal"
"Writing" or
"written". N.B. A writing includes any tangible or electronic
record, including audio or video recording.
"Signing" can include a "Sound, symbol, or process"
adopted by a person with intent to sign.
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Rule 1.1: Competence
A
lawyer shall provide competent representation to a client. Competent representation requires the legal
knowledge, skill, thoroughness and preparation reasonably necessary for the
representation.
ABA
Comment: “Expertise in a particular field of law may be required in some
circumstances”, but a lawyer “may accept representation where the requisite
level of competence can be achieved by reasonable preparation.”
Rule
1.2: Scope of Representation and
Allocation of Authority Between Client and Lawyer
A
lawyer “shall abide by a client's decisions” and consult with the client as to
how they will be pursued. The lawyer can
take steps that are impliedly authorized to carry out those decisions. The rule
specifies that the lawyer must abide by the client’s decision whether or not to
settle a case or how to plead in a criminal case. Since the client is the decisionmaker, this
means that the representation “does not constitute an endorsement of the
client's political, economic, social or moral views or activities.”
However,
a lawyer may counsel a client to engage in, or assist in “conduct that the
lawyer knows is criminal or fraudulent”.
However, a lawyer may discuss the legal consequences of any proposed
course of conduct and assist a client to make a good faith effort to determine
the scope, meaning, or application of the law.
A
lawyer may limit the scope of the representation if reasonable and if the
client gives informed consent.
Rule
1.3: Diligence.
This
rule states in its entirety, “A lawyer shall act with reasonable diligence and
promptness in representing a client.”
Rule
1.4: Communication
A
lawyer must communicate with his client in the following situations:
1. Any time
the client needs to consent to some action under the rules.
2. Tell the
client how his or her objectives are going to be carried out.
3. Keep the
client informed about the status of the matter.
4. Comply
with reasonable requests for information.
5. Let the
client know of any relevant limitations on the lawyer's conduct, if the lawyer
knows that the client expects assistance that’s not permitted..
ABA
Comment: The client should have “sufficient information to participate
intelligently in decisions. However,
“not be expected to describe trial or negotiation strategy in detail.”
Rule
1.5: Fees.
Fees
and expenses must not be "unreasonable". The following factors are relevant to
determine whether the fee is reasonable:
Time and labor required, novelty and difficulty, whether the
representation will prevent the lawyer from taking other employment, customary
charge in the locality, amount involved and results obtained, time limitations,
nature and length of relationship with the client, the lawyer's experience and
reputation, and whether fixed or contingent.
These
factors are not exclusive.
Fee
and scope of representation shall be communicated to the client, preferably in
writing before starting or within a reasonable time. This is not necessary for an existing client
if it’s at the same basis and rate as before.
But any changes need to be communicated
Contingent
fee agreements must be in writing and signed by the client. The contract must contain the following
information:
After
the contingent fee case is concluded, the lawyer must give a prompt statement
showing the remittance to the client and how it was determined.
Contingency
fees are not allowed in the following types of cases:
1. Family
law cases
2. Criminal
cases
Splitting
fees between more than one attorney must be "in proportion to the services
provided by each lawyer" or in cases in which both attorneys maintain
responsibility for the case. The client
must agree in writing, and this agreement must include the proportion that each
lawyer will receive. Of course, the
overall fee must be reasonable.
Rule
1.6: Confidentiality:
"A
lawyer shall not reveal information relating to the representation of a client
unless the client gives informed consent, except for disclosures that are
impliedly authorized in order to carry out the representation, and except as
stated" elsewhere in the rule.
Note: For purposes of the test, please forget
everything you know about the Attorney-Client privilege! The confidentiality under Rule 1.6 is much
broader. There will be many situations
that are not privileged, but the confidentiality of this rule still
applies.
A
lawyer may reveal information if he
or she believes it’s reasonably necessary to prevent “reasonably certain death
or substantial bodily harm”. A lawyer may also reveal the information to
prevent, mitigate, or rectify substantial financial loss to someone, if it’s
reasonably certain, but only in cases of a crime or fraud about which the client
has used the lawyer’s services.
Note: The
preceding paragraph varies considerably from state to state. Many states replace the word “may” with
“shall”.
A
lawyer may also reveal client confidences "to secure legal advice about
the lawyer's conduct under these rules." and "to comply with other law or a court
order". However, in the case of a
court order, the ABA comment points out that even then, “the lawyer must
consult with the client about the possibility of appeal”.
Information
can be revealed if it’s necessary to detect and resolve conflicts of interest
if a lawyer changes jobs or the firm’s ownership changes. But privileged
information can’t be revealed, and this information can’t be revealed if it
prejudices the client.
Rule
1.7: Conflicts of Interest with current
clients.
A
lawyer may not represent a client if there is a concurrent conflict of
interest. A concurrent conflict of
interest is defined as one of the following:
A
client can consent to a conflict of interest.
But all of the following tests need to be met:
Rule
1.8: More specific rules on conflicts of
interest
The vast majority of conflict of interest problems
arise out of the general rule, Rule 1.7.
The rules themselves don’t go into a lot of detail about the common
problems involving conflicts of interest.
The official ABA comments (and state comments) following the rule do
provide some helpful guidance, and it is worthwhile to read through that
section.
Rule 1.8 covers some specific situations, although
many of these are quite uncommon. But
since they are specific rules, they’re likely to be on the test.
A
lawyer may not enter into a transaction with a client in which he acquires an
interest adverse to the client (such as a security interest), unless the
transaction is fair and reasonable, the client is advised in writing to obtain
outside advice, and the client gives written consent.
A
lawyer may not use information about the representation of a client to the
client’s disadvantage, unless the client gives informed consent, or as
otherwise allowed by the rules.
Gifts
from clients (including testamentary gifts)
A
lawyer may not solicit a substantial gift from a client (including testamentary
gift). A lawyer may not prepare an
instrument giving a gift to the lawyer or a relative. There is an exception if the lawyer (or other
recipient) is related to the client. For
purposes of this paragraph, “related” includes spouse, child, grandchild,
parent, grandparent or other person with a close familial relationship. Note:
State version of this rule tend to differ as to the details.
Until
a case is concluded, a lawyer may not receive literary rights based upon the
representation.
A
lawyer may not provide financial assistance to a client in connection with
litigation, except the following:
If
a lawyer's fee is paid by someone other than the client, all of the following
requirements must be met:
1. The
client must give informed consent
2. It does
not interfere with the lawyer's independence.
3.
Confidential information is maintained properly.
If
a lawyer is representing more than one party, then any aggregate settlement
must be approved in writing by all of the clients. The lawyer must inform all of the clients
about the existence and nature of all of the settlements.
A
lawyer may not ask a client to prospectively waive malpractice claims (unless
the client is independently represented when making that waiver). When settling a claim for past malpractice,
the person must be informed in writing of the desirability of seeking outside
legal advice (unless they are already represented). A lawyer may not ask a client to agree not to
report the lawyer's conduct to disciplinary authorities.
A
lawyer may not acquire a proprietary interest in a cause of action, except for
the following:
1. An
attorney's lien for his or her fee, if authorized by law.
2. A
reasonable contingent fee in a civil case.
A
lawyer may not have sexual relations with a client (unless the relationship predated
the legal representation).
With
the exception of the last paragraph, these prohibitions also apply to all
lawyers in the same firm. (which is discussed in more detail in Rule 1.10).
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Rule
1.9: Duties to former clients
A
lawyer who has represented a former client may not represent another person in
the same or substantially related matter without the informed written consent
of the former client
If
the firm in which a lawyer had represented a person, then the lawyer may not
represent a person materially adverse to that person about whom the lawyer had
acquired confidential information under Rule 1.6 or this rule. Note:
As the ABA comments state, with respect to the former client of a former
firm, "the Rule should not be so broadly cast as to preclude other persons
from having reasonable choice of legal counsel."
A
lawyer may not use information relating to the representation of a former
client to the former client's disadvantage, unless as otherwise permitted by
the rules (or when the information has become generally known).
A
lawyer may not reveal information relating to a representation of a former
client (other than would be permitted with respect to a current client).
Rule
1.10: Imputed Disqualification.
In
general, if a lawyer in a firm is prohibited from representing a client under
Rule 1.7 or 1.9, then the same prohibition extends to all lawyers in the firm.
There
are two exceptions to this disqualification:
1. The
other lawyers in the firm are not disqualified if the prohibition is based on a
personal interest of the prohibited lawyer, and there is not a significant risk
that the representation by the other lawyers would be materially limited.
2. If the
lawyer is disqualified under Rule 1.9 (duties to former clients), then the other
lawyers are not disqualified if all three of the following conditions are met:
i. The
personally disqualified lawyer performed only minor and isolated services in
the earlier matter, and only with the former firm.
ii. That
lawyer is screened from any participation in the new matter, and receives no
fee from it.
iii.
Written notice is given to the former client. If the former client requests it, the
screened off lawyer or his firm must certify that screening procedures are in
place. Notification must also be given
when the screening ends.
In
general, if a lawyer is no longer part of a firm, then the firm is not
disqualified because the former member's
having represented a client.
However, the former firm might be disqualified in one of the following
four situations:
1. The
matter is the same or substantially related to the matter in which the formerly
associated lawyer represented the client.
2. One of
the firm's remaining lawyers has certain confidential information.
3. The
conflict has been waived, in the same manner as the waiver under Rule 1.7.
4. In the
case of Government lawyers, a different rule (1.11) applies.
Rule
1.11: Special rules regarding former and current government officers and
employees.
Rule
1.9(c) (use of information gained from a previous representation) does apply in the case of a former
government attorney. Also, in general,
such a lawyer may not represent a client in connection with a matter in which
that lawyer participated personally, unless the government agency gives its
written informed consent.
If
one lawyer in a firm is disqualified under the previous paragraph, then the
firm is also disqualified, unless both of the following conditions are met:
1. The
disqualified lawyer is screened, and shares no portion of the fee.
If
a lawyer has gained confidential government information about a person during
his government employment, then he may not represent a private client whose
interests are adverse to that person, if the information could be used to that
person's material disadvantage. In this
case, the lawyer's firm may represent such a client, if the disqualified lawyer
is screened and does not share in the fee.
Current
government lawyers are bound by Rules 1.7 and 1.9. Such a lawyer may not participate in matters
in which he participated outside of government, unless the agency gives its
written informed consent.
Current
government lawyers may not negotiate for employment with any person involved in
a matter in which he is participating.
(There is an exception for current judicial law clerks, subject to
conditions.)
Rule
1.12: Former judges, arbitrators, mediators, and neutrals.
In
general, a lawyer should not represent anyone in a matter in which he or she
served as a judge, arbitrator, mediator, neutral, or judicial law clerk. A lawyer shall not negotiate for employment
with such a person (with an exception for law clerks, subject to conditions.
If
a lawyer is disqualified under this rule, then the rest of the lawyer's firm is
also disqualified, unless the lawyer is screened and shares no part of the fee,
and notice is given.
In
general, a partisan arbitrator in a multi‑member arbitration panel may
subsequently represent that party in the same matter.
Rule
1.13: Organization as client.
A
lawyer retained by an organization represents the organization. Therefore, if he becomes aware that some
person within the organization is going to act in violation of a legal
obligation to the organization, or violate a law that is likely to result in
substantial injury to the organization, then the lawyer must act in the best
interest of the organization. In
general, he must refer the matter to higher authorities within the
organization.
If
the highest authority within the organization fails to address this a clear
violation of law, and if the lawyer reasonably believes that this will cause
substantial injury to the organization, then the lawyer may make limited
disclosure, even if the disclosure would otherwise violate Rule 1.6. (This does not apply if the lawyer has been
retained to investigate a possible violation of law or to defend a claim
arising out of a violation.)
If
the lawyer believes that he has been fired for being a
"whistleblower", then he or she is required to bring this information
to the attention of the organization's highest authority.
When
dealing with officers, directors, employees, etc., the lawyer should explain
that the organization is the client, if it is apparent that the organization's
interests are adverse to those persons.
In
general, the organization's lawyer may also represent officers, employees,
etc. But see Rule 1.13(g) regarding
required consent.
Rule
1.14: Client with Diminished Capacity
In
general, a lawyer should, to the extent reasonably possible, maintain a normal
client‑lawyer relationship.
Diminished
capacity may be the result of minority, mental impairment, or some other
reason.
If
the lawyer reasonably believes that a client with diminished capacity is at the
risk of "substantial physical, financial, or other harm", then the
lawyer may take reasonably necessary protective action. This can include consulting with others who
have the ability to take action. If
appropriate, the lawyer may seek to have appointed a guardian ad litem,
conservator, or guardian.
The
client's confidential information is still protected by Rule 1.6. However, the lawyer is impliedly authorized
to reveal information, if necessary to take such protective action. However, note that the lawyer is not required
to take action under this rule. He or
she is merely authorized to take action.
Therefore, care should be taken to ensure that confidential information
is not released to the client’s detriment.
As the ABA comment notes, “at the very least, the
lawyer
should determine whether it is likely that the person or entity consulted with
will act adversely
to
the client's interests before discussing matters related to the client.”
Rule
1.15: Safekeeping a Client’s property.
The
rules require lawyers to deposit funds belonging to clients or other third
parties to be deposited into a trust account if they are held in connection
with a representation. The account shall
be in the state where the lawyer’s office is located, and records shall be
maintained for [five years] after the end of the representation [brackets in
original].
The
only funds belonging to the lawyer which can be held in such accounts are
reasonable amounts to cover service charges, and funds belonging jointly to the
lawyer and client.
Fees
belonging to the attorney must be withdrawn from the trust account within a
reasonable time after being earned. A
written accounting must be made for any such withdrawals.
A
lawyer must promptly notify a client or third person upon receiving such funds,
securities, or other properties.
Property
belonging to clients or third parties must be identified and appropriately
safeguarded.
Complete
records must be kept of all such property.
Property
must be paid or delivered promptly if requested by the person entitled to
receive it.
Generally,
all advance fees must be deposited into the trust account and withdrawn as
earned, unless subject to a written agreement under Rule 1.5.
If
the lawyer is in possession of property in which two persons (possibly
including the lawyer himself or herself) claim an interest, that property shall
be kept separate until the dispute is resolved.
The property not in dispute must be promptly distributed.
Note: Most state versions of this rule go into
greater detail, and/or reference additional requirements such as the following:
http://www.mncourts.gov/lprb/rulesapp1.html
(Minnesota)
http://www.iowacourtsonline.org/wfdata/frame11315‑1608/TrustOutline.pdf
(Iowa)
Rule
1.16: Declining or terminating
representation.
A
lawyer shall not represent a client, and shall withdraw from
representing a client in any of the following situations:
1. The
representation will result in violation of the rules or of other law
2. The
lawyer's physical or mental condition materially impairs the lawyer's ability
3. The
lawyer is discharged.
A
lawyer may withdraw from representing a client* in any of the following
situations:
1. There
will be no material adverse effect on the client's interests.
2. The
client persists in a course of action involving the lawyer's services, and the
lawyer reasonably believes this is criminal or fraudulent.
3. The
client has used the lawyer's services to perpetrate a crime or fraud.
4. The
client insists on taking some action that the lawyer finds repugnant or with
which the lawyer fundamentally disagrees.
5. The
client fails to substantially fulfill an obligation (e.g. pay) for the lawyer's
services, and sufficient warning has been given.
6.
Continued representation would be an unreasonable financial burden for
the lawyer, or the client has made it unreasonably difficult.
7.
"other good cause for withdrawal exists".
*‑‑Even
though a lawyer may be permitted to withdraw under one of these circumstances,
the lawyer must comply with any law requiring notice or permission by the
court.
When
ordered by the court, the lawyer must continue representing the client,
notwithstanding good cause for terminating the representation.
If
a lawyer does terminate a representation, the lawyer must take reasonable steps
to protect the client's interests.
The
lawyer may retain papers relating to the client “to the extent permitted by
other law.”
Rule
1.17: Sale of law practice.
A
lawyer may sell or purchase a law practice, including the firm’s goodwill, if
the following conditions are met:
1. The
seller ceases to practice law in that geographic area* and/or that area of the
practice of law.
2. The
entire practice, or area of practice, is sold to one or more lawyers or law
firms.
3. The
seller gives a specific written notice to each client. That notice must say that the client has the
right to retain another lawyer to take possession of the file. It must also state that consent will be
presumed if objection is not received in 90 days.
If
notice can’t be given to a client, then the representation can be transferred
only by court order. The seller may give
the court information in camera to the extent necessary to obtain such an
order.
Rule
1.18: Duties to a prospective client.
A
"prospective client" is a person who discusses with a lawyer the
possibility of forming an attorney‑client relationship.
In
general, information revealed in such discussions cannot be used or
revealed. (There is an exception only if
Rule 1.9 permits revealing it with respect to a former client.)
If
the lawyer has learned information that "could be significantly
harmful" in those discussions, then the lawyer shall not represent a
client with interests that are materially adverse. This prohibition extends to other lawyers in
the firm.
There
are two exceptions to this rule:
1. The
lawyer may represent the client if both the client and the prospective client
have given written informed consent.
2. If the
lawyer took reasonable measures to avoid exposure to the information, then
other lawyers in his or her firm may represent the client. Notice must be given to the prospective
client.
Rule
2.1: Advisor.
In
representing a client, a lawyer shall exercise independent professional
judgment and render candid advice. In
giving advice, the lawyer may also look to considerations besides the
law, such as moral, economic, social, and political factors.
Note:
there is no “Rule 2.2" , since it was repealed from the ABA model
rules. A few states still have this old
rule, and in some states, the following rule has been re-numbered.
Rule
2.3: Evaluation for use by 3rd persons.
A
lawyer may evaluate a matter affecting a client for use by someone else, if the
lawyer reasonably believes that doing so is otherwise compatible with the
relationship with the client.
If
the evaluation will adversely affect the client's interests, then the lawyer
must first obtain the client's informed consent.
Except
as authorized in connection with the evaluation, confidential information
remains protected by Rule 1.6.
Rule
2.4: Lawyer serving as 3rd‑party neutral.
If
a lawyer is serving as a third‑party neutral (for example, arbitrator or
mediator), the lawyer must inform unrepresented parties that he or she is not
representing them. If the party does not
understand the lawyer's role, then the lawyer must explain the difference
between a third‑party neutral and a lawyer representing a client.
Rule
3.1: Meritorious claims and contentions.
A
lawyer shall not do any of the following in representing a client:
1.
Knowingly advance a claim or defense that is unwarranted, unless it can
be supported by a good faith argument for an extension, modification, or
reversal of existing law.
2.
Knowingly advance a factual position unless there is a non‑frivolous
basis.
3. File a
suit, conduct a defense, or delay a trial if the lawyer knows (or it is
obvious) that doing so would serve merely to harass or maliciously injure
another person.
Exception: The lawyer for a defendant in a criminal case
(or a case that could result in incarceration) may defend as to require that
every element of the case be established.
Rule
3.2 Expediting litigation:
"A
lawyer shall make reasonable efforts to expedite litigation consistent with the
interests of the client."
Rule
3.3: Candor toward the tribunal.
A
lawyer shall not do any of the following:
1. Make a
false statement of fact or law to a tribunal, or fail to correct a prior false
statement.
2. Fail to
disclose adverse legal authority if:
a. it is
from the controlling jurisdiction
b. it is
known to the lawyer
c. it is
directly adverse to the client's position
d. it is
not disclosed by opposing counsel.
3. Offer
evidence known to be false. If a lawyer
has offered material evidence and he or she comes to know of its falsity, the
lawyer shall take reasonable remedial measures.
This might include disclosure to the tribunal. (If a lawyer knows evidence to be false, then
he or she may refuse to offer that evidence, except in the case of a criminal
defendant's testimony.)
If
a lawyer in an adjudicative proceeding knows that a person has engaged or will
engage in criminal or fraudulent conduct, then the lawyer must take reasonable
remedial measures. If necessary, this
can include disclosure to the tribunal.
These
duties continue until "the conclusion of the proceeding".
The
duties set forth in this rule take precedence over Rule 1.6. Therefore, under this rule, a lawyer might be
required to disclose otherwise confidential information.
In
an ex parte proceeding, a lawyer shall inform the tribunal of all material
facts necessary to make an informed decision, whether or not those facts are
adverse.
Rule
3.4 Fairness to opposing party and counsel.
A
lawyer shall not do any of the following:
1.
Unlawfully obstruct another party's access to evidence, or unlawfully
alter, destroy or conceal documents or other items having potential evidentiary
value. A lawyer may not counsel or
assist another person in doing so.
2. Falsify
evidence, or counsel or assist a witness to testify falsely, or offer a witness
an inducement that is prohibited by law.
3.
Knowingly disobey obligations under court rules, except for an open
refusal based upon an assertion that no such obligation exists.
4. Make
frivolous discovery requests or fail to diligently comply with proper discovery
requests.
5. Allude
at trial to matters that the lawyer does not believe are relevant or supported
by evidence, or assert personal knowledge unless actually testifying, or state
personal opinions.
6. Request
that someone other than a client not voluntarily give information to another
party. There is an exception to this
rule if both of the following conditions are met:
a. The
person is a relative, employee, or agent of a client, and
b. The
lawyer believes that the person's interests will not be adversely affected.
Rule
3.5: Impartiality and decorum of the
tribunal
1. Seek to influence a judge, juror, prospective
juror, or other official by means prohibited by law.
2. Communicate ex parte by any of those persons
during a proceeding, other than as permitted by law or court order.
3. Communicate with a juror after discharge from
the jury in any of the following cases:
a. the communication is prohibited by law or court order;
b. the juror has made
known to the lawyer a desire not to communicate; or
c. the communication
involves misrepresentation, coercion, duress or harassment; or
1. Before
the trial, a lawyer shall not communicate with anyone the lawyer knows to be a
member of the venire.
2. During
the trial, a lawyer connected with the case may not communicate with any member
of the jury. Even a lawyer who is not
connected with the case is prohibited from communicating with a juror
concerning the case.
3. After
the jury has been discharged, a lawyer shall not ask questions or make comments
to a juror that are "calculated merely to harass or embarrass the
juror" or influence the juror's actions in future cases.
Note: Many states, including Minnesota, have
adopted more specific requirements as part of this rule.
Rule
3.6 Trial publicity.
If
a lawyer participates in the investigation or litigation of a matter, then he
or she shall not make an extrajudicial statement if the lawyer knows or
reasonably should know that it will be publicly disseminated, and there will be
a substantial likelihood of prejudicing the matter.
However,
the following communications are permissible:
(1) the claim, offense or defense
involved and, except when prohibited by law, the identity of the persons
involved;
(2) information contained in a public
record;
(3) that an investigation of a matter
is in progress;
(4) the scheduling or result of any
step in litigation;
(5) a request for assistance in
obtaining evidence and information necessary thereto;
(6) 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
(7) in a criminal case, in addition
to subparagraphs (1) through (6):
(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.
A lawyer may also 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 initiated by the lawyer or the
lawyer's client. A statement made pursuant to this paragraph shall be limited
to such information as is necessary to mitigate the recent adverse publicity.
Note:
The text of this rule varies somewhat in some states, including
Minnesota.
The
prohibition under this rule applies to other lawyers associated in a firm or
government agency.
Rule
3.7 Lawyer as witness.
If
it is likely that a lawyer will be a necessary witness, then he or she shall
not act as an advocate. There are the
following exceptions:
1. The
testimony relates to an uncontested issue.
2. The
testimony relates to the nature and value of legal services rendered in the
case.
3. There
would be a substantial hardship to the client
It
is permissible for a lawyer to be an advocate, even though an attorney in his
or her firm will be a witness. However,
he or she might be precluded because of confidential information, under Rules
1.7 or 1.9.
Rule
3.8 Special responsibilities of a prosecutor
A
prosecutor may not prosecute a criminal case if he or she knows that the case
is not supported by probable cause.
The
prosecutor must make reasonable efforts to assure that the accused has been
advised of his right to obtain counsel and the procedure for obtaining counsel.
The
prosecutor shall "not seek to obtain from an unrepresented accused a
waiver of important pretrial rights, such as the right to a preliminary
hearing".
The
prosecutor must timely disclose mitigating evidence.
In
general, a prosecutor should not subpoena a lawyer in a grand jury proceeding
regarding the lawyer's past or present client.
However, there is a limited exception if all of the following are true:
If
the prosecutor knows of new, credible, material evidence which creates the reasonable
likelihood that a convicted defendant did not commit the crime, he or she must
promptly disclose the information to the court or other appropriate
authority.
If
that conviction took place in the prosecutor’s own jurisdiction, then he must
also do the following:
When
a prosecutor knows of clear and convincing evidence establishing that a
defendant in the prosecutor’s jurisdiction was convicted of an offense that the
defendant did not commit, the prosecutor shall seek to remedy the conviction.
Rule
3.9 Advocate in nonadjudicative proceedings
A
lawyer representing a client before a legislative body or administrative agency
shall disclose that the appearance is on behalf of a client. Most of rules 3.3, 3.4, and 3.5 apply to such
a representation.
Rule
4.1 Truthfulness in statements to others
In
the course of representing a client, a lawyer may not make a false statement of
material fact or law to a third party.
A
lawyer shall not fail to disclose a material fact when disclosure is necessary
to avoid assisting a criminal or fraudulent act (unless the information is
confidential under Rule 1.6). (The
Minnesota rule does not contain this provision.)
Rule
4.2 Communication with person represented by counsel
In
representing a client, a lawyer shall not communicate about the subject with a
person the lawyer knows to be represented by another lawyer. There is an exception if the other lawyer
consents, or if authorized by law or court order.
Rule
4.3 Dealing with unrepresented person
In
dealing on behalf of a client with a person who is not represented by counsel,
if the person misunderstands the lawyer’s role, the lawyer has an affirmative
duty to correct the misunderstanding.
The
lawyer shall not give legal advice (other than the advice to secure counsel, if
the lawyer believes the interests are likely to be in conflict.)
A
lawyer shall not state or imply that he or she is disinterested.
Rule
4.4 Respect for rights of 3rd persons.
In
representing a client, a lawyer shall not use means that have no purpose other
than to embarrass, delay, or burden third parties. A lawyer must not use methods of obtaining
evidence that violate a third person's rights.
If
a lawyer accidentally receives a document and reasonably knows that it was
inadvertently sent, then the lawyer shall promptly notify the sender.
Rule
5.1: Responsibilities of partners, managers, and supervisory lawyers
A
partner in a law firm, or another lawyer with comparable managerial authority,
shall make reasonable efforts to ensure that there are measures reasonably
assuring that all lawyers conform to the rules.
A
lawyer with direct supervisory authority has a similar duty.
A
lawyer is responsible for another lawyer's violation in either of the following
two circumstances:
1. The
lawyer orders or ratifies the conduct.
2. The
lawyer has managerial or supervisory authority and knows of the conduct in time
to mitigate it, but fails to do so.
Rule
5.2 Responsibilities of a subordinate lawyer
A
lawyer is bound by the rules, even though he or she acted at the direction of
another person.
However,
it is not a violation if the lawyer acts in accordance with a supervisory
lawyer's reasonable resolution of an arguable question.
Rule
5.3 Responsibilities regarding nonlawyer assistants
Lawyers
with managerial authority, such as partners, shall make reasonable efforts to
ensure that non‑lawyers employed or retained are compatible with the
lawyer's professional obligations.
This
duty also applies to persons with direct supervisory authority.
Lawyers
are responsible for violations by such persons in the following circumstances:
1. The
lawyer orders or ratifies the conduct.
2. The
lawyer is a partner or comparable manager, and knew of the conduct in time to
mitigate it, but failed to do so.
Rule
5.4 Professional independence of a lawyer
A
lawyer shall not share fees with a nonlawyer.
There are, however, four exceptions to this rule:
1. Certain
payments to a lawyer's estate after his or her death.
2. Purchase
of the practice of a deceased, disabled, or disappeared lawyer.
3. Certain
retirement or compensation plans for non‑lawyer employees
4. Court‑awarded
legal fees may be shared with certain non‑profit organizations.
A
lawyer may not form a partnership with a non‑lawyer if one of the
activities of the partnership is the practice of law.
A
lawyer may not have his services directed or regulated by a person who
recommends, pays, or employs him or her.
A lawyer shall not practice with or in the form of a
professional corporation or association authorized to practice law for a
profit, if a nonlawyer is involved in any of the following ways:
1.
A nonlawyer owns any interest in the firm, (with the exception of a
fiduciary representative of the estate of a lawyer may hold the stock or
interest of the lawyer for a reasonable time during administration
2.
A nonlawyer is a holds the position of corporate director or officer or
similar position
3. A
nonlawyer has the right to direct or control the professional judgment of a
lawyer.
.
Rule
5.5: Unauthorized practice of law; multijurisdictional
practice of law.
A
lawyer shall not practice law in a jurisdiction if it violates the regulation
of the legal profession in that jurisdiction or assist another person in doing
so. However, a lawyer admitted in his or
her home state does not violate this rule by conduct in another state, if the
same conduct would be permitted by an out‑of state lawyer by the
following rules:
A
lawyer admitted in another U.S. jurisdiction (who is not disbarred or suspended
in any jurisdiction*) may provide any of the following types of services on a
temporary basis:
1. Services
in association with a lawyer who is admitted in the state, who actively
participates in the matter.
2. Services
that are reasonably related to a pending or potential proceeding (even if the
proceeding is in this state), if the lawyer or the person the lawyer is
assisting reasonably expects to be authorized by law or order to appear.
3.
Reasonably related to a pending or potential arbitration, mediation,
etc., (even if it is in this state), if both of the following conditions are
met:
a. The
services must be reasonably related to the lawyer's practice where he is
admitted.
b. The
services are not ones where the forum requires pro hac vice admission.
4. Arise
out of or are reasonably related to the lawyer's practice where he is
admitted. However, this provision
applies only to matters that are not within the preceding paragraphs (2:
proceedings before a tribunal, or 3:
arbitration, mediation, etc.)
A
lawyer from another jurisdiction, including outside the United States, (if not
disbarred or suspended anywhere*) may provide legal services in the state if
authorized by federal law, or some other law.
In
addition, a lawyer from another jurisdiction (if not disbarred or suspended
anywhere*) may provide services to the lawyer’s employer or its organizational
affiliates; as long as they are not services for which the forum requires pro
hac vice admission. If those services
are performed by a foreign lawyer and require advice on the law of this or
another jurisdiction or of the United States, such advice shall be based upon
the advice of a lawyer who is duly licensed and authorized by the jurisdiction
to provide such advice.
For
either of these actions by a non-U.S. lawyer, the foreign lawyer must be a
member in good standing of a recognized legal profession in a foreign
jurisdiction, the members of which are admitted to practice as lawyers or
counselors at law or the equivalent, and are subject to effective regulation
and discipline by a duly constituted professional body or a public authority.
Even
if one of these exceptions applies, a lawyer not admitted in a state shall not
do either of the following:
1. Unless
otherwise authorized, establish an office or systematic presence in the state
to practice law.
2. Hold out
to the public or represent that he is admitted to practice in the state.
Rule
5.6 Restrictions on right to practice
A
lawyer may not participate in any kind of business arrangement that restricts
his or her right to practice law after terminating the relationship. There is an exception for agreements
concerning retirement benefits.
A
lawyer may not participate in an agreement that restricts his or her right to
practice as part of the settlement of a client's case.
Rule
5.7: Responsibilities regarding law‑related
services.
A
"law‑related service" is a service that might reasonably be
performed with and substantially related to the provision of legal
services. However, it is the type of
service that can be performed by a nonlawyer and not be prohibited as the
unauthorized practice of law.
A
lawyer providing such services is subject to the Rules of Professional Conduct
in either of the following situations:
1. They are
not distinct from the lawyer's provision of legal services to clients
2. If the
lawyer fails to take reasonable measures to assure the person obtaining the
services knows that they are not legal services, and that the protections of
the lawyer‑client relationship do not apply.
(Note:
This rule has not been adopted in all states, including Wisconsin)
Rule
6.1 Voluntary pro bono publico service
"Every
lawyer has a professional responsibility to provide legal services to those
unable to pay." A lawyer
"should aspire" to render at least 50 hours of pro bono service per
year. This obligation can be fulfilled
in the following ways:
A
substantial majority of those fifty hours shall be without fee or expectation
of fee to the following:
1. persons
of limited means
2.
charitable, religious, civic, government, etc., organizations, in
matters that are designed primarily to help persons of limited means.
In
addition, a lawyer should provide services for no fee or substantially reduced
fee, to secure or protect civil rights or civil liberties, public rights. Or, a lawyer should provide services to
charitable, religious, civic, etc., organizations in furtherance of those
organizations' purposes, when standard fees would significantly deplete the
organization's resources or would otherwise be inappropriate.
A
lawyer should deliver legal services at a substantially reduced fee to persons
of limited means.
A
lawyer should participate in activities for improving the law, legal system, or
legal profession.
In
addition, a lawyer should voluntarily contribute financially to organizations
that provide legal services to persons of limited means.
Rule
6.2 Accepting appointments
A
lawyer shall "not seek to avoid appointment" by a tribunal, except
for good cause. Examples of good cause
include:
1. Representing
the person is likely to result in a rule violation.
2. It would
be an unreasonable financial burden.
3. The
person's cause is so repugnant that it will likely impair the lawyer's ability
to represent the person.
Rule
6.3 Membership in legal services organization
A
lawyer may serve as a director, officer, or member of a legal services
organization, even though the organization serves persons with interests
adverse to one of his or her clients.
However, the lawyer should not knowingly participate in any decision or
action of the organization in either of the following cases:
1. Doing so
would be a conflict of interest under Rule 1.7.
2. The
decision could have a material adverse effect on the organization's
representation of such a client.
Rule
6.4 Law reform activities affecting client interests
A
lawyer is permitted to serve as a director, officer, or member of an
organization involved in the reform of the law or its administration. This is true even though the reform may
affect the interests of one of his or her clients. But if the lawyer knows that a client's
interests may be materially benefited by a decision in which the lawyer
participates, the lawyer must disclose this fact. However, the lawyer need not identify the
client.
Rule
6.5 Nonprofit and court‑annexed limited legal services programs
The
following rules apply to a lawyer who participates in a program sponsored by a
nonprofit organization or court which provides short‑term legal services
to clients, where neither the lawyer nor the client expect that the lawyer will
provide continuing representation in the matter. (Wisconsin adds language to make clear that
this also applies to programs sponsored by bar associations or accredited law schools.)
The
lawyer is subject to Rules 1.7 (conflicts of interest) and 1.9(a) (conflicts of
interest with former clients), only if the lawyer knows that the representation
involves a conflict of interest.
The
lawyer is subject to Rule 1.10 (imputed conflict of interest of firm) only if
he knows that another lawyer in his or her firm would be disqualified. Otherwise, Rule 1.10 applies.
Rule
7.1 Communications concerning a lawyer's services
A
lawyer is prohibited from making false or misleading communication about the
himself or herself, or about his or her services. This includes communications that contain a
material misrepresentation of fact or law, or if it omits a fact necessary to
make the statement not materially misleading.
Rule
7.2 Advertising
A
lawyer may advertise. Advertising is
subject to Rules 7.1 and 7.3. The
following rules also apply:
A
lawyer may not give anything of value to someone to recommend his services,
with the following exceptions:
1. Pay the
reasonable cost of permitted advertisements or communications.
2. Pay the
usual charges for a legal service plan or a lawyer referral service. (The lawyer referral service must approved by
the appropriate regulatory authority.)
3. Pay for
a law practice under Rule 1.17.
4. Refer
clients to another lawyer or other professional under an agreement that the
other person will refer clients to the lawyer.
However, such an agreement must be otherwise permitted by the rules, and
the following conditions must apply:
a. The
reciprocal referral agreement is not exclusive
b. The
client is informed of the existence and nature of the agreement.
Any
communications made under this rule must include the name of at least one
lawyer or law firm who is responsible for its content.
Rule
7.3: Direct contact with prospective clients
A
lawyer shall not solicit professional employment from prospective client in
person or by live telephone contact, if a significant motive is the lawyer's
pecuniary gain. There are two exceptions
to this rule:
1. The
person contacted is a lawyer, or
2. The person contacted is family, has a close
personal relationship, or has a prior professional relationship.
In
addition, a lawyer shall not solicit professional employment in any manner
(written, recorded, electronic, in‑person or telephone) if either of the
following are true:
1. The
prospective client has made known a desire not to be solicited, or
2. The
solicitation involves coercion, duress, or harassment.
Any
written, recorded, or electronic communication soliciting professional employment
from someone known to be in need of services in a particular matter must
conspicuously include the words "Advertising Material" on any outside
envelope, and at the beginning and end of the communication. There are the same two exceptions as in the
first rule:
1. The
person contacted is a lawyer, or
2. The
person contacted is family, has a close personal relationship, or has a prior
professional relationship.
Note: Some states require that such advertisements
be sent to an office of the state supreme court, but this requirement is not
part of the model rule.
This
rule does not prohibit a lawyer from participating in a prepaid or group legal
service plan (not owned or directed by the lawyer) that uses in‑person or
telephone contact to solicit membership, if the persons are not known to need
particular legal services.
Rule
7.4: Communication of fields of
practice
A
lawyer may communicate whether or not he or she practices in a particular field
of law.
A
lawyer admitted to engage in patent practice before the U.S. Patent and
Trademark Office may use the designation "patent attorney" or
similar.
A
lawyer engaged in admiralty practice may use the designation
"admiralty", "proctor in admiralty", or similar.
A
lawyer shall not state or imply that he or she is certified as a specialist in
a particular field unless both of the following are true:
1. The name
of any certifying organization is clearly identified.
2. The
lawyer must really have been certified as a specialist by an organization that has
been approved by an appropriate state authority or that has been accredited by
the American Bar Association.
(Note: State versions of this
rule usually contain a similar requirement, but the wording often varies.)
Rule
7.5 Firm names and letterheads
Firm
names, letterheads, and other professional designations must comply with Rule
7.1 (e.g., no false or misleading information).
A trade name may be used by a lawyer, but it is subject to the following
requirements:
1. It may
not imply a connection with a government agency
2. It may
not imply a connection with a public or charitable legal services organization
3. It must
not violate Rule 7.1
Note: The use of a geographic name could imply
connection to a government agency, and a word such as “clinic” might imply a
connection to a charitable organization.
A
firm with offices in more than one jurisdiction may use the same name in each
jurisdiction. However, the
identification of lawyers in an office shall indicate the jurisdictional
limitations.
The
name of a lawyer holding public office shall not be used during any substantial
period in which the lawyer is not actively and regularly practicing with the
firm.
Lawyers
may state or imply that they practice in a partnership or other organization
only when that is a fact.
Rule
7.6 Political contributions to obtain government legal engagements or
appointments by judges.
A
lawyer or law firm shall not accept a government legal engagement or an
appointment by a judge if he or she makes a political contribution or solicits
contributions for the purpose of being considered.
(Minnesota
has not adopted this rule.)
Rule
8.1 Bar admission and disciplinary matters
The
following applies to an applicant for admission to the bar, or to a lawyer in
connection with a bar admission application or with a disciplinary matter. Such a person shall not:
1.
knowingly make a false statement of material fact, or
2. fail to
disclose a fact necessary to correct a misapprehension that the person knows
has arisen.
3. Knowingly
fail to respond to a lawful demand for information.
However,
this rule does not require disclosure of information that is otherwise
confidential because of Rule 1.6.
Rule
8.2 Judicial and legal officials
A
lawyer shall not knowingly or recklessly make a false statement concerning the
qualifications or integrity of a judge, adjudicatory officer or public legal
officer, or candidate for judicial or legal office.
A
lawyer who is a candidate for judicial office shall comply with the code of
judicial conduct.
Rule
8.3: Reporting professional misconduct.
A
lawyer who knows that another lawyer has violated these Rules shall inform the
appropriate authority.
A
lawyer who knows that a judge has violated the applicable rules of judicial
conduct shall inform the appropriate authority.
This
rule does not require disclosure of information that is confidential under Rule
1.6. It does not require disclosure of
information gained while participating in an approved lawyers assistance
program
Rule
8.4: Misconduct
The
following are professional misconduct under the model rules:
1. Violate
the rules of professional conduct, knowingly assist or induce a violation, or
do so through another's acts.
2. Commit a
criminal act that reflects adversely on honesty, trustworthiness, or fitness as
a lawyer.
3. Engage
in conduct involving dishonesty, fraud, deceit, or misrepresentation.
4. Engage in conduct that
is prejudicial to the administration of justice
5. State or
imply an ability to improperly influence a government agency or official or
achieve results that violate these Rules or other law.
6.
Knowingly assist a judicial officer in conduct that violates the rules
of judicial conduct or other law
(Note: Most
states add a few additional items to this list.).
Rule
8.5 Disciplinary authority; choice of law
Disciplinary
Authority
A
lawyer admitted to the bar in the state is subject to the disciplinary
authority of the state regardless of where the conduct occurs.
A
lawyer not admitted in the state is subject to the state's disciplinary
authority if he or she offers to provide any legal services in the state.
A
lawyer may be subject to disciplinary authority in more than one state for the
same conduct.
Choice
of Law
For
conduct before a tribunal, the law of the jurisdiction where the tribunal sits
shall apply (unless that court's rules provide otherwise.
For
other conduct, if the lawyer is admitted only in one state, then the rules
shall be the rules of that state.
If
the lawyer is admitted in more than one state, then the rules of the jurisdiction
where he or she principally practices shall apply. However, if the conduct has its predominant
effect in another jurisdiction, then the rules of that jurisdiction will apply.
About the Author
Richard P. Clem is a provider of Continuing Legal
Education (CLE) programs for attorneys, and specializes in programs on legal
ethics and the elimination of bias in the legal profession. He has presented live CLE programs in Minnesota,
Iowa, Wisconsin, Nebraska, Indiana, and Texas, and also presents teleconference
programs for attorneys throughout the United States.
Clem has been in private practice in the Twin Cities
for over 25 years. His reported cases include: Asociacion Nacional de
Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de
Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert.
denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center,
465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State,468 N.W.2d 580
(Minn. Ct. App. 1991).
Clem has a B.A. in history from the University of
Minnesota, and a J.D., cum laude, from Hamline University School of Law in St.
Paul, Minnesota.
These materials are part of his Multistate
Professional Responsibility Review Course, which consists of a live lecture or
telephone conference call.
For
information on this and other upcoming programs, please visit:
Return to my main page
Copyright 2014, Richard P. Clem.
Attorney Richard P. Clem is responsible for the
content of this page.
Richard P. Clem, Attorney
PO Box 14957
Minneapolis, MN 55414
Phone: 612-378-7751
e-mail: clem.law@usa.net
Minnesota Attorney Registration Number 0192648
