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Professional Responsibility: Bar Checklist
1)Admitting and Disciplining Attorneys
a)Regulation of Attorney Admissions
i)PA Supreme Court exclusively
ii)Can require you to go to ABA accredited law school
iii)Cannot require US citizenship or state residency
iv)Violation of state laws (moral turpitude) = disbarment
b)Disciplinary Process
i)Forms of Discipline
(1)Reproval (censure/reprimand)
(2)Suspension (cannot practice for finite time; name stays on the letterhead)
(3)Disbarment(never practice law again; name comes off the letterhead)
ii)Lawyer Cannot:
(1)Violate the rules of professional conduct
(2)Commit criminal acts that reflect adversely on lawyer’s honesty, trustworthiness, or fitness as a lawyer
(3)Imply ability of improper influence over government agency
(4)Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation
(5)Engage in conduct prejudicial to the administration of justice
(6)Knowingly assist a judge or judicial officer to violate the judicial code (i.e., bribery)
c)Lawyer’s Duty to Maintain Integrity of Profession (Policing Other Lawyers)
i)Rule: Lawyer who know another lawyer violated the rules that raises a substantial question to that lawyer’s honesty or fitness must
(1)Inform the disciplinary board (rat on your lawyer friends)
(2)Be available to testify
ii)Prevent the Unauthorized Practice of Law
(1)Licenses required for
(a)Court appearances
(b)Depositions (anything where an oath is involved)
(c)Settlements except insurance companies
(2)No license required for
(a)Filing paperwork with the court
(b)Interviewing witnesses
(c)Filing out forms
iii)Prevent Unfit Applicant from Admission to the Bar
(1)Can’t lie on your own application packet
(2)Lawyers you don’t know—don’t recommend
(3)Lawyers you do know—should recommend if fit; must inform the PA Sup. Ct. if unfit
iv)Reporting and Testifying about Violations
(1)Must rat on your lawyer friends
(2)Rules are not jurisdiction specific
(3)Must be available to testify (no anonymous tips)
(4)You are a lawyer 24/7
2)Forming the Attorney-Client Relationship
a)Accepting Employment
i)Rule: Lawyer owes a duty of competent representation that requires the necessary knowledge, skill, thoroughness, and preparation for representation
ii)Accepting Employment
(1)General Rule: Freedom to Reject Cases
(2)Should take clients who are defenseless and oppressed
(3)Should take fair share of pro bono
(4)MUST take court appointments unless unreasonable financial burden or you have a duty to reject
(5)Duty to Reject
(a)Physical/Mental Disability of the Lawyer
(b)Incompetence unless
(i)Associate with other counsels with client’s permission
(ii)Learn the law
(iii)Emergency (still on the hook for malpractice, though)
(c)Actual Conflicts
(d)Imputed Conflict
(i)What you’re partner can’t do, you can’t do
(ii)What you can’t do, your partner can’t do
(e)Lawyer feels so strongly that he can’t represent client effectively
(f)Frivolous lawsuits in civil cases (no meritorious defense)
b)Specialization
i)National: patent law and admiralty law
ii)State Specialization: Litigation and Bankruptcy only
c)Solicitation
i)Can’t make false or misleading communications about lawyer’s services
ii)Can’t solicit in person (one-on-one) or on telephone directly or though intermediary
(1)No runners and cappers
(2)Lawyer referral services ok
(3)Group and prepaid legal services ok
(4)Educating laymen on legal problems ok but no specific call ins
(5)Volunteering legal advice ok but no specific call ins
iii)Exceptions to the Anti-Solicitation Rule
(1)Relatives and Close Friends
(2)Current Clients
(3)Former Clients on Any Topic
iv)Direct Mail Solicitation
(1)Generally OK
(2)Exception: Lawyer knows that the prospect’s physical, emotional, or mental state is such that the prospect
(a)Cannot exercise reasonable judgment
(b)Prospect tells the lawyer he doesn’t want communications
(c)Communication involves coercion, duress, harassment
d)Rules on Publicity and Advertising
i)Lawyer can seek exposure but can’t pay for it
ii)Communications Concerning Lawyer’s Services
(1)Cannot be false or misleading
(a)Unjustified expectations even if true (I have won every jury trial)
(b)Unverifiable comparisons (I am as good as Johnny Cochran)
(c)Implying results by improper means
(2)Firm Names and Letterheads
(a)Dead is OK
(b)Disbarred = off
(c)Elected officials = off
(d)Suspended OK
(3)Radio/TV Ads
(a)Limited to geographic Area where you practice
(b)No endorsement by public officials
(c)No actors
(d)Must handle cases advertised
e)Law Firms and Associations
i)Only Lawyers can be in charge
f)Dual Professions
i)Generally OK
ii)Can’t solicit from one profession to the other
iii)Privilege doesn’t carry over
iv)Ancillary businesses are ok
g)Legal Fees
i)Excessive fees prohibited
ii)Factors in setting reasonable fees
(1)Common sense
(2)Must relate to the work
(3)Fee advertised must be good for 90 days
iii)Contingent Fees
(1)Prohibited in criminal cases
(2)Prohibited in domestic relations cases unless past due alimony or child support
(3)Must be explained to the client and offer other options
(4)Fired lawyer gets quantum meruit for services rendered
iv)Fee Splitting with Lawyers
(1)Client must consent
(2)Total fee of the lawyers is not illegal or clearly excessive
(3)Referral fees are ok
v)Fee Splitting with Non-lawyers
(1)Generally no good
(2)Payment to heirs of a lawyer OK
(3)Pension, bonus plans, or retirement plans OK
vi)No Restrictions on Practice
(1)Generally, no non-compete clauses
(2)Exception: part of golden parachute or sale of practice
3)Lawyer-Client Relationship
a)Duty of Competence, Diligence & Communication
i)Rule: Lawyer owes a duty of competent representation that requires the necessary knowledge, skill, thoroughness, and preparation for representation
ii)Rule: Lawyer should act with reasonable diligence and promptness in representation of a client
iii)Rule: Lawyer must keep client informed and provide client with enough information to make informed decisions
b)Duty to Avoid Conflicts of Interest
i)Rule: Avoid Conflicts with current clients
(1)Shall not represent two clients with adverse interest unless
(a)Consent
(b)Reasonable belief that relationship with both will not be affected
(2)May not represent current clients if lawyer will be limited by lawyer’s self interest; duty to another client; duty to third party unless
(a)Consent after full disclosure and
(b)Reasonable belief that relationship will not be affected
(3)Lawyer’s own or imputed interest may not be in conflict with the client’s interest
(a)No loans to client or from client
(b)No acquiring interest in subject of litigation unless it’s contingent fee or lien to protect cost
(c)No buying client’s property at legal sale
(d)No acquiring interest adverse to client
(e)No business transaction with clients unless
(i)Disclosure in writing
(ii)Recommended independent counsel
(iii)Consent by client in writing
(f)Before conclusion of representation, no acquiring literary rights to subject of litigation
(g)No preparing legal instruments for clients where lawyer or his family is a beneficiary unless
(i)Client is related to the lawyer
(ii)Closer than cousins
(h)Immediate family members may not represent clients directly adverse to each other (Gene Hackman Movie would never have happened)
(i)Should not take gifts from client
(j)No accepting compensation from third party for the client unless
(i)Full disclosure and consent in writing
(ii)Will not interfere with lawyer’s independent judgment (i.e., will listen to the client only)
(iii)Client confidentiality is protected
ii)Rule: Former Clients: no representation in same or substantially related matter adverse to interest of former client unless full disclosure and consultation
(1)Can’t use information relating to representation that hurts former client unless (Rule 1.6)
(a)Client consents
(b)Future crimes
(c)Rectify a situation
(d)Litigation with client
(e)Court orders disclosure
(2)Can use information if it’s common knowledge
(3)Imputed Disqualification
(a)One lawyer prevented from representing a client = entire firm is disqualified
(b)New lawyer joins firm = firm cannot represent client in same or substantially related matter where new lawyer was adverse to current position and gained confidential information unless:
(i)New lawyer is screened and no fees
(ii)Former client is notified (consent not required)
(c)Lawyer Leaves Firm= firm can represent clients adverse to former lawyer’s clients unless
(i)Same or substantially similar matter and
(ii)Remaining lawyers have confidential information of former client
(d)Conflicts can be waived
(e)Matter: specific facts with specific parties
(i)Can’t handle matters where you “personally and substantially” participated
(ii)Can handle matters where you did not “personally and substantially” participate
(f)Screen
(i)Full disclosure to other side
(ii)No fee
(iii)No disclosure of confidential information
iii)Conflicts with Organizational Client
(1)Lawyer represents the organization which acts through its agents (communications with agents are privileged)
(2)Lawyer learn that agent acted or intends to act adverse to the corporation or illegal acts that injure the corporation, lawyer must
(a)Remonstrate with the agent to reconsider the action
(b)Advices that a separate legal opinion be obtained
(c)Refer the matter to higher authority in the organization
(3)If higher authority doesn’t do anything, lawyer may resign as corporate counsel
(4)Lawyer may represent organization and its officers, directors, employees, etc. as long as there is no conflict with the organization
c)Duty of Confidentiality
i)Rule: Cannot disclose secrets of client learned from any source (broader than attorney-client privilege)
ii)Rule 1.6:
(1)Keep all information relating to representation confidential unless client consents
(2)May reveal information if the lawyer reasonably believes necessary to
(a)Prevent future crimes resulting in death or substantial bodily harm
(b)Future crimes that substantially injure the financial interest or property of another
(c)Prevent or rectify criminal or fraudulent acts where lawyer’s services were used
(d)Establish claim or defense in a dispute with the client
(3)Lawyer must reveal information to tribunal
(a)False statements
(b)Offering false evidence
(4)Duty lasts forever
d)Duty of Candor Toward the Tribunal
i)Lawyer shall not knowingly
(1)Make false statement of material fact or law to tribunal
(2)Fail to disclose material fact to tribunal when necessary to avoid assisting crime or fraud by client
(3)Fail to disclose controlling adverse legal authority not disclosed by opposing counsel
(4)Offer false evidence knowing to be false
(5)May refuse to offer evidence reasonably believing that it’s false
(6)Ex parte lawyer must reveal all material facts know to the lawyer even if adverse to his position
(7)Duties continue until the close of the proceeding
e)Fiduciary Duty to the Client
i)Do not commingle money
ii)Safeguard property
iii)Notify, account, and pay over promptly
f)Attorney/Client Choices
i)Attorney
(1)Court
(2)Deposition type
(3)Discovery
(4)Grant continuances to opposing party
ii)Client
(1)Sue
(2)Settle
(3)Testify
(4)Plea
(5)Trial type
(6)Appeal
iii)Exceptions
(1)Monetary
(2)Harmful to third party
g)Terminating the Attorney-Client Relationship
i)OK with court’s permission and return of client’s property (client’s file)
ii)Client’s Right to Fire the Attorney
(1)Incompetence
(2)Attorney gets no money
iii)Client’s Power to Fire the Attorney
(1)Always for any reason
(2)Unless incompetent, lawyer gets quantum meruit
iv)Withdraw Mandatory
(1)Representation will result in violation of rules of professional conduct
(2)Lawyers ability to represent client is impaired
(3)Lawyer is fired
v)Permissive Withdrawal
(1)Client persist in using lawyer’s services that lawyer reasonably believes is criminal or fraudulent (perjury)
(2)Client has used lawyer’s services to commit crime or fraud
(3)Client’s conduct is repugnant to the lawyer
(4)Client fails to cooperate with lawyer
(5)Unreasonable financial burden on the lawyer
(6)Other good cause
vi)Sale of Law Practice
(1)Confidentiality and conflicts apply
(2)Allowed to sell if
(a)Retired
(b)Disabled or
(c)Death of a lawyer
(3)Must sell the whole thing, not just part of it
4)Lawyer’s Duties to the Legal System
a)Zealous Representation within the Bounds of the Law
i)Lawyer is an advocate
ii)Supervisor responsible if
(1)Knew and did nothing
(2)Told subordinate to do it
(3)Subordinate not responsible if it’s an arguable situation
iii):Lawyer is an advisor on non-legal matters
iv)Lawyer is an intermediary
v)Lawyer is an evaluator
vi)Prosecutorial Burdens
(1)Must disclose evidence tending to negate ’s guilt
(2)Prosecute only for probable cause
b)Fairness to Opposing Party and Counsel
i)Witnesses
(1)No contingent fees for experts
(2)Reasonable expenses and lost wages for lay witnesses
(3)Don’t need permission from other side to talk to a witness unless corporate employees whose acts could be imputed to the corporation
(4)Advise witness not to testify is proper if
(a)Person Is related or an agent of the party and
(b)Person’s interest would not be harmed
ii)Jurors
(1)During Trial
(a)No lawyer can talk about any case when juror is serving on a jury
(b)No lawyer on case can talk to juror at all (i.e., no “hello” in the hallway, no “pass the soap” in the bathroom)
(2)After Trial
(a)OK but
(b)No harassment
iii)Courtroom Conduct
(1)Lawyer can’t give his personal opinions about guilt or innocence
(2)Say “the evidence will show” that is guilty or not guilty
iv)Trial Publicity
(1)No statement that would materially prejudice the case
(2)Prosecutors can’t make statements likely to heighten public condemnation of the accused
c)Fairness to Non-clients
i)Truthful and
ii)Must no give appearance of being disinterested
d)Fairness to Adversaries
i)No ex parte communications with judge
ii)No obstruction of access to evidence
iii)Can’t falsify evidence