MPRE REVIEW
OUTLINE
I.
REGULATION OF THE LEGAL
PROFESSION (8-12%)
A.
Courts
·
Regulate
legal profession
·
Their
regulations must be rational.
Courts cannot require lawyer to be:
a.
United
States citizens;
b.
Residents
in the particular state
c.
Solely
on the basis that the candidate is a member of a particular organization.
B.
Practicing
across jurisdictional boundaries
·
Each
jurisdiction sets its own bar regulations
·
Lawyers
must be separately admitted in each state
·
Exception:
“Pro hac vice” which means temporary admission. This is for a lawyer wants to
participate in litigation in a jurisdiction in which she is not admitted to
practice.
·
Generally
speaking, there is no requirement to admit to the federal court of the U.S.
C.
ABA
Model Rules of Professional Conduct (1983)
a.
Model
Rules
·
They
are “must” rules.
b. Comments
·
They
are explanation of the rules.
D.
Three
types of discipline: (There is no question on how to discipline a lawyer.)
a.
reproval,
censure, reprimand
·
They
refer to slight sanctions.
b.
suspension
·
They
are tougher sanction.
·
If
a lawyer is subject to suspension, he must notify his clients immediately.
c.
disbarment
·
This
means taking away license of practice.
·
Re-admission
must go through the whole process.
E.
Unauthorized
practice of law (from lawyers’ and non-lawyers’ aspects)
1.
Lawyer’s
duties
A lawyer must practice with a license in order to
have the following practices:
a.
Appearance
(in court and on behalf of clients)
b.
Taking
depositions
c.
Negotiating
settlements
2.
Clerk’s
duties
They must be properly supervised by lawyers. They
can:
a.
Interview
witnesses;
b.
Fill
in blank forms; and
c.
Write
memos.
Delegation is possible, but a lawyer is responsible
for the clerk’s mistake.
A lawyer is subject to disciplinary proceedings for
not supervising the clerk’s work.
Duty to supervise also exist in the delegation of
work to younger associates.
F.
Lawyer’s
duty to maintain the integrity of the legal profession
1.
Bar
admission and disciplinary matters
An applicant or lawyer recommending an applicant
cannot:
a.
make
a false statement of material fact or omit a material fact
·
Past
misconduct of a lawyer should be disclosed.
·
A
lawyer is not denied for admission solely because of the disclosure of past
misconduct.
·
However,
non-disclosure is a legitimate reason for denial of admission.
b.
fail
to respond to a lawful demand for information, or
c.
fail
to disclose a fact necessary to correct a misapprehension.
·
When
something relevant happens in the intermediary period between the admission and
the final approval for admission, the lawyer should disclose the facts.
2.
Duty
of Lawyer to Report Professional Misconduct
a.
By
other lawyers
·
Duty
to report is not governed by state line.
·
A
lawyer has a duty to support disciplinary proceeding by reporting relevant
information.
·
Lawyers
in the same firm should report the misconduct committed by others.
b.
By
judges
·
Duty
to report a bribe.
3.
Duty
of Confidentiality
Duty to report does not apply if the information is
obtained through the client-attorney relationship.
We must always ask how the information is obtained.
e.g. Lawyer steals Client’s money in April. In
August of the same year, Lawyer seeks advice from attorney Acton regarding an
expected investigation by the disciplinary authorities on this matter. Since
Acton’s knowledge of the matter is protected by the ethical duty of confidentiality,
Acton must not report Lawyer’s disciplinary violation. But, Acton cannot
recommend Lawyer to be admitted in another state.
G.
Jurisdiction
to discipline a lawyer:
1.
The
state in which lawyer is admitted to practice
2.
The
state in which lawyer’s misconduct occurs
·
This
state can disallow a lawyer who commit the misconduct practice there.
H.
Misconduct
1.
violating
or attempting to violate a model rule,
·
e.g.
A lawyer cannot speak / attempt to speak to a client who is represented by
other lawyers.
2.
assisting
or inducing anther lawyer to violate a model rule,
3.
using
the acts of another person to violate a model rule,
·
e.g.
hiring an investigator to communicate with other party.
4.
engaging
in conduct that shows dishonesty, fraud, deceit or misrepresentation.
·
this
does not raise to the standard of crime.
5.
committing
a crime that shows dishonesty, untrustworthiness or unfitness to practice law
6.
engaging
in conduct that is prejudicial to the administration of justice
·
this
is not a broad concept, we have always refer to the rules.
7.
stating
or implying an ability to improperly influence a governmental agency or
official,
8.
Knowingly
assisting a judge in conduct that is illegal or in violation of the Code of
Judicial Conduct.
A.
Consensual
·
If
a lawyer is appointed by the court, the lawyer must take the case, unless there
is good course in rejecting the case.
-
financial
problems
-
conflict
of interest
-
personal
inability and personal feelings are in contrast with the client’s position
B.
Lawyer’s
duty to reject certain cases
1.
Physical
or mental disability
2.
Conflicts
·
A
lawyer must not sue current client on even on unrelated matters.
3.
Frivolous
claims or defenses
a.
in
civil matters
·
everything
in the statement is correct, but the claim itself is frivolous, the lawyer
should reject the case.
b.
in
criminal matters
·
a
lawyer can take a frivolous case and plead not guilty for his or her client.
Three exceptions:
a.
the
lawyer associates herself with another lawyer who is competent to the handle
the matter and the client consent (the client may hire the law firm);
b.
the
lawyer becomes competent in this subject matter;
c.
emergency
cases – exception applies only for period of the emergency.
·
e.g.
The client gives you a call and says that you the only one he know who can help
him at that moment.
6. Criminal conduct
·
A
lawyer cannot assist a client to commit a crime.
A lawyer must not reveal any information relating to the representation of the client. (Broad definition of confidentiality)
A.
Broader
than the attorney-client privilege
The rules of evidence cover confidential
communication between the relationship of attorney and client in the course of
giving legal advice. (Narrow definition of confidentiality)
Exceptions:
1.
client
consents (informed consent);
2.
may
use confidence to the extent necessary to defend self from civil, criminal or
disciplinary claim;
·
If
the client just threatens to sue the lawyer, the lawyer cannot review the
information.
·
Only
when a lawsuit is filed, the lawyer can disclose the information.
·
In
order to review the confidential information in the proceeding for the
obtaining of legal fees, the lawyer need not prove an unpaid fee.
3.
if
the court orders it;
·
The
court can order reveal of confidential information, but not privileged
information.
4.
client
intends to commit a crime that will likely result in imminent death or
substantial bodily harm.
·
Lawyer
“may” reveal under these circumstances.
·
Remember
both the requirements for “future crime” and “imminent death or substantial
bodily harm” must be satisfied.
B.
Use
of confidential information
·
Lawyers
may not use the confidential information to the client’s disadvantages without
the client consent.
A.
Attorney
Advertising
·
Attorney
has the first amendment right of the advertisement provided that they are not
misleading.
·
Examples:
yellow page ads, office signs, business cards, announcements, letterhead,
brochures, letters sent by mail, recorded phone messages.
·
Every
advertisement must include the name of one lawyer who is responsible for the
advertisement and that lawyer must keep a record.
·
Appropriate
words include “limited to” or concentrated in”
·
Do
not use the word “specialize”.
-
must
name the organization and state that;
1.
organization
has been recognized by the state as an issuer of specialization; or
2.
the
lawyer’s state has not yet approved the organization, or
3.
the
lawyer’s state has no program for approving organizations.
·
Both
must be partners
·
If
the partner is dead, the firm can use his name forever.
·
If
the partner is retired, the firm can use his name.
·
However,
if the partner moves to a government body, his mane must be removed.
·
Multi-state
firm must list the jurisdictional limitation of lawyers.
·
must
not use “winning team” or “united states.
·
The
firm must keep a copy of the ads for 2 years.
·
Lawyers
must pre-approve the ads.
·
This
is allowed for formal ads.
·
In
Florida, if you want to send a personal injury ad by mail, you must send it 30
days after the accident happened.
·
Watch
out that different states may have different regulations.
·
Always
mark the envelops with the word “ advertisement”.
·
generally
not allowed, however, there are 2 exceptions:
a.
Admiralty
b.
Patent
B.
Solicitation
·
This
is impermissible because this is a live communication .
·
The
scope include face-to-face communication, telephone call and handing partner’s
name cards.
·
It
also limits lawyers hiring a third party to solicit.
Permissible Solicitations
1.
group
and prepaid legal advice
·
Health
insurance and medical packages are common examples
·
However,
the health insurance companies cannot make solicitation to people they know
they need
2.
Education
·
A
lawyer cannot give individual advice in a seminar.
3.
No
fee
·
Refer
to the case that political groups provide free legal services.
4.
close
friends and relative
5.
a
present client;
6.
former
client.
·
You
can make solicitation to a person who does not want legal service.
·
Lawyer
“must” reach a written retainer with the client at the outset.
·
The
agreement “should” be in writing.
·
Client
can give property in exchange for legal service.
·
Lawyer
can accept payment by credit card.
A.
Minimum
fees prohibited
·
However,
maximum amount is prohibited.
B.
Factors
in determining reasonableness of fees:
·
No
double-billing (for time working for 2 clients)
·
The
longer the relationship, the more you can charge.
·
This
is because the lawyer is picking up a chance of winning or getting nothing.
·
Typical
example is that the lawyer works for 10 hours and have 1/3 of the compensation.
It comes out the amount of the compensation is very high.
C.
Contingent
fee
·
Indictment
obtained for extra payment is not allowed.
·
securing
of divorce and property settlement.
·
This
is especially important in the context of:
-
If
the lawyer is fired without any reason, the lawyer can charge a reasonable
amount, that is the normal hourly rate for the time he worked on.
-
If
there is a reason for the termination, the lawyer will be given no payment.
·
Contingency
agreement must be in writing.
·
If
the specific amount is not spread out in the agreement, the lawyer will get the
lowest payment.
·
When
the case is concluded, the lawyer must send a closing statement to the client.
D.
Fee
splitting with other lawyers.
·
generally
allowed.
·
generally
not allowed
·
only
with few exceptions:
·
in
case of joint responsibility, lawyers may spread the fees at whatever proportion
they like.
·
referral
fee is prohibited if
-
other
lawyers do not work on the case and
-
has
no responsibility
·
This
may be an issue when a lawyer leaves the firm or retires.
E.
Fee
splitting with non-lawyers
·
this
is generally prohibited.
Three exceptions
a.
death
benefits
·
Pay
to the estates of the deceased partner according to the terms of the
partnership agreement.
b.
payment
for work done before death; and
·
the
works must be completed before the lawyer died.
c.
compensation
and retirement plans for non-lawyer employees
·
funded
by the firm’s fees
·
there
may be non-lawyer administrator who is paid by a portion of the legal fees
earned by the firm. This refers to the overall profits.
A.
Partnership
·
Only
lawyers can be partners of a business for the practice of law.
·
A
partner is responsible for the conducts of lawyers and he or she supervise the
works of lawyers.
B.
Corporation
·
Only
lawyers can be officer, directors or shareholders of a legal corporation.
·
However,
by operation of law, non-lawyer can hold shares of the legal corporation.
C.
Relationship
of lawyers with non-lawyers:
·
allowed
·
Lawyers
are prohibited to use dual profession to solicit the legal works.
·
Privilege
does not apply in dual profession when a lawyer is working in a non-lawyer
capacity.
·
this
is also subject to the ABA Model Rules.
D.
Restrictions
on Rights to Practice
·
A
lawyer cannot participate in an agreement that restricts the lawyer’s rights to
practice, such as an employment contract containing restrictive covenants.
·
However,
a lawyer can enter into a retirement arrangement that the retirement benefit
will only be paid if his rights of practice are restricted in certain sense.
This is a limited sense of restriction of practice.
·
No
settlement for restriction of future practice is permissible.
A.
Liability
for legal malpractice
·
Violation
of the ABA Model Rules is not necessarily to a malpractice.
·
However,
the violation of Model Rules may form parts of the evidence for malpractice.
·
There
is no statutory requirement for malpractice insurance, but having such
insurance is regarded as proper.
·
Lawyers
are responsible for the secretary’s misconduct.
i. to clients;
ii. to potential
clients;
·
Duty
of confidentiality exists even in the absence of client-attorney relationship.
iii. to third parties who are intended to benefit from legal
services.
·
If
the lawyer provides information that he knows a third party may rely upon, he owes
a duty to that third party.
·
This
is a matter of forseeability.
Proximate cause
·
Plaintiff
must prove that she would have a discovery in an underlying case, “but for” the
lawyer’s malpractice.
·
Ordinary
standard of care.
·
The
standard does not derived from state to state.
·
Lawyers
cannot limit his liabilities such as liabilities for malpractice.
·
Cannot
settle liabilities with former clients .
·
Must
ask clients to review the settlement agreement with other counsels.
B.
Diligence
in communications
·
Keep
the clients reasonably informed the development of the case.
·
Responded
promptly.
·
Provide
sufficient decision for client to make a decision.
·
Must
offer settlement offer (for the benefit of client).
C.
Duty
to avoid conflicts
·
generally
prohibited unless
Four requirements:
·
cannot
obtain mortgage of client’s property.
Exceptions:
a.
uncontested
matter
b.
where
testimony pertains to legal fees;
c.
substantial
hardship (must be less than 3 years from one case to another case);
d.
disqualification
not imputed (other lawyers of the firm can be witnesses).
·
A
lawyer may not represent a party on a matter as she works substantially and
personally for the government.
·
The
definition of “matters” is very broad.
Conflict not imputed if:
·
“matter”
does not refer to legislation or a facts.
·
A
lawyer cannot represent a client suing a party represented by his spouses or
parents unless the client consents.
·
Conflict
created by representation by spouse does not impute to the law firm.
·
A
lawyer cannot draft an instrument giving himself or his relative a gift from
client except that the lawyer is a relative of the donor.
·
A
lawyer cannot acquire literary or media rights from the client’s story until
the matter is completely concluded.
·
Client
can consent to waive this provision.
D.
Interests
of other clients
·
A
lawyer cannot sue a client even if it is an unrelated matter.
·
If
the multiple clients’ interests are adverse, a lawyer cannot represent them.
·
However,
a lawyer can act for both if their interests are not in conflict.
·
When
the conflict arise later, the lawyer must cease acting for both,
·
A
lawyer cannot use the information of one client to assist his representation
for another.
·
A
lawyer may not oppose a former client n a matter that is substantially related
to the representation of a former client.
E.
Third-party
interests
·
This
involves a situation where the third party pays the bill for your clients.
·
Typical
situation is that the insurance company pays for the insured.
-
The
lawyer represents the “insured”.
-
In
the insurance policy, the insured expressly consents this arrangement.
-
Under
no circumstance, the lawyer can reveal any information of the insured to the
insurance company.
-
A
lawyer cannot act under the instruction of the insurance company.
·
Another
example is that parents pay for the minor. The client of the lawyer is the
minor, not the parents.
F.
Organization
as client
·
A
lawyer should present the entity as a whole, but a particular person, such as
the director.
A.
Duty
not to commingle money or property
·
Lawyer
cannot commingle their money with clients’ money.
·
Clients’
funds such as settlement check is paid to clients’ trust account in the state
that the lawyer practice or the state where the client resides.
·
It
is the lawyer’s obligation to put the money into an interest bearing account if
the amount of interest is more than the amount the cost for the opening of the
account.
B.
Safeguard
property
C.
Promptly
notify client of receipt of property and money
D.
Promptly
forward to client money and property
E.
Disputed
Claims
·
If
the client disputes the amount due to the lawyer, the disputed proportion must
be put into the client’s trust account until the dispute is resolved.
·
In
a contingent fee arrangement, lawyers should give the clients the proportion
that is not subject to dispute.
A.
Client’s
decision
·
Whether
to commence the proceeding
·
Defence
·
Settlement
of the suit
·
Testifying
in criminal suit
·
Plead
guilty
·
Appeal
·
Elect
for a jury trial in a criminal case
B.
Lawyer’s
decisions
·
Granting
reasonable adjournment that does not prejudice the client.
·
Conducting
discovery
·
Conducting
deposition
However, lawyers should be abide by the client’s
instruction on cost.
C.
Client
under disability
·
Lawyers
must have guardians appointed in such a case.
·
The
guardian, rather than the client will make decision in this case.
Three ways:
1.
client
fires lawyer
2.
attorney
must withdraw
3.
attorney
may withdraw
A.
Client
has power to terminate lawyer-client relationship
·
Lawyers
can be fired for a reason(without compensation) or for no reason (without
compensation).
B.
Need
court’s permission
·
Lawyers
need motion to withdraw from the court.
C.
Must
return client’s property promptly
·
The
definition of “property” is very broad.
·
It
means everything, whatever documents drafted or used in the retainer.
D.
Mandatory
withdrawal (MUST)
·
occurs
during the representation
·
If
continuing representation requires attorney to violate the law or disciplinary
rules, the attorney must withdraw.
E.
Permissive
withdrawal (MAY)
a.
client
persist in criminal or fraudulent conduct;
·
Lawyer’s
reasonable belief is sufficient
b.
client
has used attorney’s service to commit past crime or fraud;
c.
client’s
objective is repugnant or imprudent;
d.
client
breaks promise to lawyer;
·
Failure
to pay lawyer’s bill alone is not sufficient
·
However,
it the client has money and he fails to pay, this will become a sufficient
cause.
e.
Unreasonable
financial hardship for attorney;
f.
client
will not cooperate.
F.
Reasonable
notice
·
When
a lawyer is withdrawing, he must give client notice.
1.
Lawyer
as advocate
·
Facts
have already occurred, lawyer tries to proceed the case in the most favorable
position for the client.
2.
Lawyer
as advisor
·
This
is more forward looking.
·
It
does not refer only to legal advice. Lawyer can give non-legal advice and get
paid of it.
3.
Lawyer
as intermediary
·
Lawyer
must tell both parties that he does not represent either party individually.
·
However,
the lawyer as an intermediary can represent either party subsequently.
4.
Lawyer
as evaluator
5.
Lawyer
as prosecutor
·
Prosecutor
must disclose evidence tending to mitigate the guilt of the defendant.
6.
Lawyer
as negotiator
·
General
rules apply with 2 exceptions:
-
Lawyer
can lie what the client accepts in a settlement.
-
Lawyer
can lie the estimated price or value in negotiation.
C.
Fairness
to the court
1.
Duty
of candor to the court
·
must
reveal case law in the controlling jurisdiction as oppose to the client .
·
this
means that the lawyer just need disclose, need not explain.
·
need
not reveal the facts that is contrary to client’s position.
·
this
is not privileged.
·
Lawyer
is subject to disciplinary proceeding for knowingly making a false material
statement to the court.
·
If
lawyer does not know the statement is not true, he is not subject to
disciplinary proceedings.
2.
Witnesses
·
No
contingency fee is allowed one the condition that the testimony is submitted.
·
Lawyer
can speak to the adversary’s witness directly.
3.
Jurors
·
cannot
speak to juror in any circumstance for any issue.
·
cannot
speak with juror about the case
·
a
typical example is the a juror phones his sister attorney for the opinion of
the definition of “reasonable doubt”. If his sister answers the question, she
will violate the ABA Model Rules.
·
can
speak, but not harass.
4.
Lawyer’s
conduct during litigation
·
Lawyer
cannot refer matters which are irrelevant to the case.
·
lawyer
cannot give personal opinion.
5.
Criticism
of Judges
·
Lawyer
can criticize the judge, but cannot make a false statement to the judge.
D.
Fair
ness to adversary
1.
No
direct communication with adverse party if represented by lawyer, unless meet
one of the following:
·
lawyer
cannot hire an agent to represent him to speak to others.
2.
Corporation
– adversary must obtain corporate counsel’s permission to speak with:
3.
Securing
absence or noncooperation of witness
·
Lawyer
cannot advise or cause a person to leave the jurisdiction to make them
unavailable to testify.
·
Lawyer
cannot advise a person not to give evidence to the opponent.
·
However,
lawyer can advise client’s relative or agent not to give information if it is
their intents.
4.
Duty
to be courteous to your adversary
E.
Fairness
to non-clients
1.
respect
for rights of third persons
·
cannot
investigate which cause undue burden to a third party.
2.
Unrepresented
party
·
Speaking
to unrepresented party is permissible, but cannot give him advice.
·
Asking
unrepresented party to seek legal advice or representation.
A.
Support
judiciary
·
Cannot
have money to judge directly, but can give money to the campaign committee.
B.
Gifts
·
Ordinary
social gift.
C.
Supporting
law improvement
·
Lawyer
may have an office in a law reform committee/group even though the group is
contrary to the client’s position.
·
However,
lawyer must tell the group the his client (unnamed) will benefit from a certain
decision of the group.
D.
Public
service
·
Pro
bono works.
A.
ABA
Code of Judicial Conduct
·
Judge
and magistrate can make reference to others.
1.
Mandatory
Rules (MUST Rules for judges)
2.
“Hortatory
Statements” (SHOULD Rules for judges)
B.
General
Obligations
·
with
independence and integrity in her official capacity and personal life.
·
with
2 exceptions
-
book
-
payment
for speaking
-
ordinary
social gift e.g. birthday present
·
must
report any gift which exceeds $150.
·
cannot
deviate from the principle of law with personal experience.
·
A
judge cannot use non-public information gained in her judicial capacity.
C.
Litigation
responsibilities:
·
Deliver
opinion and decide motion properly and promptly.
·
Judge
cannot sanction lawyer for the client’s misbehavior.
Three exceptions
a.
expressly
authorized by law
b.
mediation
or settlement
c.
emergencies
D.
Disqualification
·
Conflict
of interest
·
Impartiality
called into questions.
These are the situations that judge must disqualify
himself:
1.
Bias
or personal knowledge
·
toward
the party or party’s lawyer
Prior Involvement:
2.
Former
partner or close relative
·
of
the party’s, attorney’s
·
of
a witness
·
close
relative means anyone close than a cousin.
3.
Economic
interest – a judge must disqualify herself if she knows that, either as an
individual or a fiduciary, she has an economic interest in the mater or in one
of the parties of she has any other interest that is more than de minimis and
that could be substantially affected by the proceedings.
·
One
share in a company is not sufficient.
·
Ownership
in mutual funds is not sufficient since this involves one step further.
Disqualification is also required if the economic
interest is held by the judge’s:
(1)
Spouse,
(2)
Parent.
(3)
Child,
or
(4)
By
any other member of the judge’s family who resides in the judge’s household.
4.
Remittal
of disqualification
·
Wavier
of disqualification by parties
·
However,
this does not apply in personal bias.
E.
Administration
·
Judge
can refer to matters to disinterested experts
·
Full
disclosure of the experts must be made to all parties.
·
Judge
must give parties opportunity to comment.
F.
Extra
judicial activities
1.
law
related organization
·
can
serve as officer or director
·
cannot
make decision on how the case proceeds or specific decision of the case.
·
can
be member of the Legal Aid which constantly appear before her bench.
2.
Money
·
can
only raise money for judges of the same court personally.
·
can
help organize.
3.
fiduciary
activities
·
prohibited.
·
Exception:
a judge may serve as fiduciary for a member of the judge’s family where these
conditions are met:
The disqualification for
economic interest that apply to a judge personally also apply when the judge
acts as a fiduciary. See XIII, D, 3.
4.
reporting
misconduct
5.
testimony
– a judge shall not testify as a character witness unless subpoenaed
·
however,
he must discourage parties to do that.
6.
non-profit
organizations – a judge may serve as an officer, director or trustee for a
non-profit educational, religious or charitable organization.
7.
participation
in a business
·
Judge
shall not be an officer or director of any business entity
·
Exceptions:
Closely held family business and the business does not appear before him.
8.
teaching
·
allowed
so as written law review.
9.
reference
·
allowed
10.
membership
in organization
·
prohibited
except private organizations decide to preserve the religion and culture value
of the members.
·
allowed
except this is regarded as discrimination in the judge’s jurisdiction.
11.
practice
of law
·
full
time commitment is prohibited.
·
Exceptions
-
representation
for the judge herself
-
Legal
advice to her family members.
G.
Judge
and politics
a.
public
speaking
·
can
speak at gathering
·
cannot
commit on how to decide a case.
b.
soliciting
votes
·
if
this is in personal capacity, it will be allowed.
c.
fund
raising
·
cannot
raise money personally but ca form a campaign committee to raise funds.
·
Time
limit: 1 year prior to the election and 90 days after the election.
Duty to exercise independent
professional judgment.
Absent the necessary
consent, a lawyer may not represent a client if a conflict of interest exists.
a.
A
lawyer may not represent a client if to do so will be directly adverse to the
interest of another client unless
i.
The
lawyer reasonably believes the representation will not adversely affect the
relationship w/ another client.
ii.
Each
client consents after consultation.
1.
A
disinterested lawyer would conclude that the client should not agree to the
representation under the circumstances.àclient may not be asked to
consent.
2.
Consultation
may be impossible b/c confidentiality.
b.
Present,
actual conflict between 2 clients in litigation
i.
A
lawyer cannot represent 2 clients whose interests are in present, actual
conflict.
ii.
Diff
lawyers in the same firm may not represent opposing parties in a civil case.
iii.
A
lawyer must not represent two parties on the same side of a case if a
disinterested lawyer would conclude that they should not consent b/c of a
present actual conflict between their interests.
iv.
Absent
consent after consultation, a lawyer must not represent a client in one case
and oppose the same client in another pending case, even when the two cases are
unrelated.
v.
Absent
consent after consultation, a lawyer must not represent 2 clients on
inconsistent positions if either client would be disadvantaged.
vi.
Can
represent two clients whose interests are not legally adverse
i.
Consultation
and consent. Same rule as above a(2)
ii.
Potential
conflicts between two clients in civil litigation—may represent two clients if
there interests are just potentially in conflict provided that (1) she
reasonably believes that she can represent both effectively and (2) she MUST
obtain the consent of both clients after consultation.
iii.
If
the two conditions are met, lawyer may represent co-P or co-D in civil
litigation
iv.
Potential
conflicts between two clients in Nonlitigation—may represent
i.
lawyer
has the duty of loyalty to the org, not individual officials.
ii.
If
the highest authority of the org insists on conduct that violates a law and is
likely to result in substantial injury to the org, lawyer may resign.
i.
Private
work following gov work on the same matter—MUST NOT represent a client in a
matter in which she participated personally and substantially.
1.
Drafting
of a legislation is not a matter
2.
If
a lawyer is disqualified by the rule then everyone in the firm is also
disqualified UNLESS
a.
the
lawyer must be screened off from the case.
b.
must
not be apportioned a part of the fee earned in the case
c.
written
notice must be promptly given to the gov agency to enable it to make sure that
the above conditions are met.
3.
Subsequent
use of info gained during gov service—must not use confi. info about a person
gained during gov service to represent another person whose interests are
adverse to that person to the material disadvantage of that person.
a.
this
rule is imputed to his law firm
ii.
gov
work following private work –must not participate in a matter on behalf of gov
that she substantially and personally involved in while in private work. Except
when she is the only authorized person.
iii.
When a gov lawyer is personally and
substantially involved in a matter, she must not negotiate employment w/ a
party or the attorney of a party.
i.
from
judicial service to private law practice—a lawyer must not represent a client
in a matter in which she has participated personally and substantially while
serving as a judge. Unless consent after disclosure.
1.
If
a lawyer is disqualified by the rule then everyone in the firm is also
disqualified UNLESS
a.
the
lawyer is screened off from the case.
b.
must
not be apportioned a part of the fee earned in the case
c.
written
notice must be promptly given to the appropriate tribunal to enable it to make
sure that the above conditions are met.
2.
Law
clerk must notify the person she is working for before negotiating a private
employment w/ a party.
i.
The
trans is fair and reasonable to the client
ii.
Terms
are fully disclosed to the client
iii.
Disclosure
is in writing
iv.
Client
is given a reasonable chance to seek advice from an outside lawyer about the
trans
v.
Client
consents in writing
1.
EXCEPTION—standard
commercial trans
i.
Subject
to discipline if use client’s confi info to the client’s disadvantage without
consent.
1.
only
applies when the use is disadvantageous to the client.
ii.
Subject
to civil liability if lawyer uses confi info for his own monetary benefit
without the client’s consent, even if the use does not harm the client in any
way.
1.
exception:
may use the confi info for the benefit of another client in representing the
other client even if doing so will benefit the lawyer, provided the
original client is not harmed
i.
May
accept fair gift.
i.
They
must not represent clients whose interests are directly adverse without first
getting the consent of the respective clients after consultation.
i.
Exception:
contingent fee.
i.
client
consents after consultation
ii.
3rd
person does not interfere w/ the lawyer’s independence or representation of the
client
iii.
the
arrangement does not compromise the client’s confi info.