MPRE OUTLINE

I. Regulation of the Legal ProfessionA. Powers of the Courts and Other Bodies to Regulate Lawyers

1. ABAa. Voluntary membership and No disciplinary authority (can’t disbar you)b. ABA Model Rules of Professional Conduct

1) “Must” rules – mandatory (disciplinary rules)2) “Should” rules – advisory (ethical considerations) – No punishment for violation or “what

would be proper”3) Types of Discipline for violating a Mandatory Rule:

a) Private Reprimand/Censure: getting yelled at or a letter in your fileb) Public Reprimand/Censure: getting published in a bar jounalc) Suspension (for a finite period of time): cannot practice and name cannot stay on the doord) Disbarment: name has to come off of the door

2. Judicial Exercisea. U.S. Supreme Court is ultimate authorityb. State’s highest court determines rules for state

3. State laws – “moral turpitude” vs. “good moral character”B. Admission to the Profession

1. U.S. Supreme Court says state requirements for admission to bar be rationally related to the practice fo law.a. What is rational?

1) Graduation from ABA accredited law school2) Requirement of taking an oath to support U.S. or S.C. Constitution

b. What is not rational?1) U.S. Citizenship2) Residency

2. Requirements on you when you apply to the bar (it’s a privilege not a right)a. Truth and full disclosure: including expunged offensesb. Duty to cooperate

3. Requirements on lawyers regarding applicantsa. Good applicants – your input is aspirational/”should”b. Bad applicants – duty to report when asked, or to correct something you believe may have arisen

in the matterC. Regulation After Admission – Lawyer Discipline

1. Regulated by highest state supreme court (and through its agencies)D. Mandatory and Permissive reporting of Professional Misconduct

1. Self-Regulating Profession – with two pronged duty when you know of a violationa. Must report when you know, unless protected as confidential informationb. Must be available to testify (no anonymous reporting).

2. If unethical conduct is a crime, must be relevant to some aspect of practice of law.a. Dishonestyb. Breach of trustc. NOT: ex. Drunk driving

3. A lawyer who commits fraud in the conduct of a business is subject to discipline, even if the lawyer is not active in the practice of law.

4. Where a lawyer learns of bad conduct of another lawyer through representation of that lawyer as a client, the duty of confidentiality will trump the duty to report the misconduct to the bar, OR through

membership in an approved lawyers assistance program that helps lawyers and judges with substance abuse problems.

E. Multi-jurisdictional Practice1. Unauthorized practice – can’t do it where not admitted 2. Permissible temporary multi-jurisdictional practice

a. Associate with an active local lawyerb. Special permission called pro hac vice: for this matter onlyc. Mediation or arbitration out of the home-state practiced. Anything reasonably related to lawyer’s home-state practice

1) Ex: Real estate lawyers who write contracts and do everything but the closings3. Permissible Permanent Multi-Jurisdictional Practice

a. Employed by her only client which has several offices: Corporate Lawyer or Gov’t Lawyerb. Legal services authorized by federal or local law: Tax Court

4. Consequences – Subject to both states’ rulesa. Not a lower standard

5. Law firm with offices in more than one jurisdiction may use the same name in each jurisdiction, but identification of the lawyers in an office of the firm shall indicate the jurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located.a. Ex: Letterheads with asterisk

F. Responsibilities of Partners, Managers, Supervisory and Subordinate Lawyers1. Supervisory responsible for acts of subordinates if:

a. Knew of misconduct at a time when consequences can be avoided or mitigated and the lawyer fails to take remedial action (but if it’s too late then the supervisor cannot get in trouble) OR

b. If the violation raises a substantial question as to the lawyers honesty or character and supervisor ordered or ratified the conduct

2. Subordinate not responsible for his own actions if: (how to get out of it)a. You were told to or order to do the misconduct ANDb. It is arguable that what you did was okay to do.

G. Unauthorized Practice of Law – by Lawyers and Non-Lawyers1. The following activities require a license (and constitute the “practice of law.”)

a. Appearances in Judicial Proceedings and Depositionsb. Drafting documents that impact substantial legal rightsc. Negotiating settlements

2. The following activities do not require a license (These do not constitute the “practice of law.”)a. Interview clients or people or witnessesb. Filling in formsc. Writing legal memos

H. Fee Division With a Non-Lawyer: (General Rule: You CANNOT do it)1. Exceptions:

a. Heirs of the deceased attorneysb. Employees in the form of salaries and as part of pension or bonus plans.c. Lawyer may share court awarded legal fees with a non-profit organization that employed, retained

or recommended employment of the lawyer in the matter.I. The Law Firm and Other Forms of Practice

1. Lawyers must not imply that they are partners or otherwise associated with each other in a law firm unless they really are. As to the public, the law firm includes lawyers who frequently consult, work jointly, and have access to each others’ files. (Ex: Law firms sharing space)

2. Only Lawyers can be partners, or officers if we’re dealing with a corporation, if any part of the partnership business is the practice of law.

a. Except: shareholders and it’s only temporary by operation of law. 3. Relationship of the Dual Profession Lawyer with Non-Lawyers

a. Dual professions: okay to list dual professionsb. Soliciting legal business: can use dual profession to solicitc. Attorney/client privilege: does not apply to non-lawyer work.d. Ancillary (or law related) services: OK to provide service reasonably performed in conjunction

with and related to legal services, and note:1) Non-legal and legal provided together: Rules apply to both2) Non-legal services provided by entity controlled by the lawyer: lawyer must assure that client

knows of their interest and that it is not legal services. a) Failure to provide client with notice of interest would mean that the rules apply to

everything.J. Restrictions on the Right to Practice: (No non-competes)

1. Exceptionsa. Retirementb. Settling a claim (dividing up a firm)

K. Solo practitioner has a special duty to plan for death or disability by designating another competent lawyer to:1. Review files2. Notify clients3. Determine protective actions

II. The Client-Lawyer RelationshipA. Formation of Client Lawyer Relationship (General Rule: Lawyers have general freedom to reject cases)

1. Exceptions to general freedom to reject casesa. Defenseless or oppressed – “Should”b. Fair Share of Pro Bono - “Should” – 50 hours per year recommendedc. Appointments – “Must”d. Exceptions – good cause shown, i.e. “should” or “must” cases you may be able to reject:

1) Unreasonable Financial Burden2) Duty to reject cases – “Must” Reject

a) Physical or Mental Inabilityb) Conflict of Interestc) Frivolous Defense or Claimd) Strong Feeling or Biase) Incompetence/Lacking the Legal Expertisef) Exceptions: When you are able to take a case that you otherwise must reject for

incompetence.(1) A: Association(2) L: Learn it(3) E: Emergency

B. Scope, Objective, and Means of the Representation1. Decision-Making Authority: Important decisions belonging to the client, whether to:

a. Sueb. Settle

1) Must inform client of all settlement offers unless client has specifically with informed consent authorized a specific acceptance and rejection range.

c. Testify (in a criminal case)d. Pleae. Jury/Bench

f. Appeal2. Procedural and tactical decisions belonging to the attorney (law, tactics, and strategy)

a. Which court to file inb. Depositions – do we take/not take?c. Discovery – whether + what to seek/produced. Continuances – whether to request or grant a request

1) Exceptions: i.e. procedural or tactical issues which belong to the clienta) Case expenses – client can say: “I can’t afford 47 depositions”b) Third person’s “well being” i.e. putting a child on the stand

3. When client is under diminished mental capacity, or is minor, client decision DO NOT shift to lawyer. Rather, you must get a GUARDIAN APPOINTED.a. But, the lawyer should both respect and involve the client as much as possible for input on

decisions that impact the client’s well being.C. Counsel and Assistance Within Bounds of the Law

1. Means be honest and truthful . . . subject to discipline for knowingly making a false statement of fact or law to the court or failing to correct a previously made false statement of material law or material fact.

D. Termination of the Client-Lawyer Relationship1. Need Court permission when matter is in litigation and must return client’s property, including the case

file and unused portion of retainer2. Judge’s decision is often affected by particular stage of the matter when withdrawal is sought3. Client has the power to fire the attorney, but we can’t fire clients

a. Lawyer may be able to sue though4. Mandatory Withdrawal

a. Duty to rejectb. Client fraud and refusal to rectifyc. Client insists on violation of law or ethical provisiond. Client has begun and illegal course of action

5. Permissive Withdrawala. Can be for any reason where there’s no material harm to client, orb. If client consents, orc. Where one of these is met:

1) Client persists in criminal or fraudulent conduct2) Client has used attorney’s services to commit past crime or fraud3) Clients objective is repugnant or imprudent4) Client breaks promise to law to pay the fee5) Unreasonable financial hardship for attorney’s practice6) Client will not cooperate

d. But cannot abandon client. Must take proper steps to avoid material adverse effect on client.1) Hypo: Client tells lawyer that client is “going to lie” under oath on the stand.

a) Dissuade clientb) Request permission to withdrawc) Do as instructed: client that lies, make a statementd) Give client reasonable notice to get a new lawyer

E. Client-Lawyer Contracts1. Lawyer can limit representation, i.e. “only through pre-trial discovery”2. Basic rules of contract construction apply: against the drafter

F. Fees: Fee arrangement (scope of representation, basis or rate of fee, and expenses for which client will be responsible) shall be communicated to client before (or within a reasonable time after) representation starts.

Exception: When a lawyer will charge a regularly represented client on the same basis or rate in subsequent matters.1. Excessive fees and minimum fees are prohibited2. Factors in setting a reasonable fee: Look for lawyers not doing what they said

a. Time and laborb. Difficulty and novelty of questionsc. Experience, reputation and abilitiesd. Relationships: nature and lengthe. Exclusions (whether lawyer must turn away other cases if client knows of this)f. Fixed or contingent (contingent can be higher)g. Fees customarily charged

3. Contingent fee arrangements – must be reasonable; signed by clienta. Must not use in criminal case

1) No incentive fee: Emilio Estevez example, he can give you royalties from Mighty Ducks, just not representation

2) No percentage of publication rights based upon representation until the case is over, appeals and all.

b. Must not use in domestic relations case1) “Past due” support payments are debt and therefore okay.

c. Contingencies Fee must be explained – in writing(s) and must notify the client of any expenses for which they are liable, whether or not the client wins the case1) Before you take the case2) After the case is concluded (settlement letter)

4. Lawyers can sell and buy a law practice (including good will)a. The entire practice or entire field of practice must be soldb. Seller must exercise competence in identifying a qualified purchaserc. Written notice must be given to the seller’s clients regarding:

1) The sale2) Client’s right to get their files returned3) Client’s right to get new counsel4) Consent will be presumed if the client takes no action within 90 days of the receipt of the

notice. If notice cannot be given for some reason, then a court order is required to authorize the transfer of the representation.

d. Seller must cease to engage in private practice of law (or at least in the sold field) or leave the jurisdiction

e. Purchaser must take all client matters not just the good ones. III. Client Confidentiality

A. Attorney-Client Privilege and Confidentiality1. Privilege protects confidential communication; confidentiality covers the same AND any other

information obtained by the attorney relating to representation, regardless of the source including that which may be embarrassing or derogatory to the client.a. Privilege is held by the client and not by the attorney

2. Presence of a Third Party does not destroy confidentiality if the third party was present to help further the attorney client relationship

B. Work Product Doctrine1. Material prepared by a lawyer for or in anticipation of litigation is immune from discovery unless the

other side shows a substantial need for the material and an inability to gather the material without undue hardship.

2. A lawyer’s mental impressions or opinions are always immune from discovery regardless of need, unless immunity is waived.

C. Disclosure Expressly or Impliedly Authorized by Client (what a client authorizes with informed consent to disclose)1. Express authorization requires informed consent: the client agrees to proposed course of conduct after

lawyer sufficiently explains material risks and reasonable alternatives.2. Implied authorization to carry out representation (except screened member)

D. Exceptions to Privilege1. Waived by Client2. Client seeks attorney’s service to engage in or assist in future crime/fraud3. Communication is relevant to issue of breach of attorney client relationship. (breach of contract

between attorney and client)E. Other Exceptions to the Confidentiality Rule

1. Waived by Client2. Required by law or court order3. Informed Consent4. Implied authority to disclose to further the representation5. Client Fraud or Perjury – 2 prongs:

a. Client has committed fraud or perjury (past): CANNOT be disclosedb. Client is committing fraud or perjury: lawyer must seek to withdraw from the matter and if such

effort is denied, or if withdrawal does not resolve the problem, then the lawyer must disclose the fraud to the judge.

c. Exception: Lawyer has the duty to rectify false testimony until the end of the proceedings, appeals and all.

6. To obtain legal or ethical advice for lawyer. Use of hypotheticals with colleague is ok if discrete to protect the identity of client.

7. To prevent reasonably certain death or substantial bodily harm, (assumes in the future): permitted to reveal information to the extent necessary to prevent the harm which does not need to be the product of a crime.

8. To prevent substantial financial harm or fraud if the client is or has used the lawyer’s services in the matter. Also true if the client has already acted and disclosure can prevent or mitigate the consequent financial harm.

F. Past Crimes1. Are considered secrets and cannot disclose2. Death of a client does not end obligations

IV. Conflicts of Interest: In general lawyer cannot represent adverse interests of client or prospective client. In some instances, conflict can be cured if BOTH of the following occur: 1) Lawyer fully explains risks and alternatives (informed consent) and 2) Client agrees in writing (can be electronic).A. Current Client Conflicts: Lawyer’s Personal Interests or Duties

1. No loans to clients in connection with pending or contemplated litigation; no de minimus exceptionsa. Exception: Advancing the costs of litigation

2. Rule of Imputation – what one lawyer can’t take the firm (partners, associates, and “of counsel”) can’t take (except the lawyer as witness) and where the conflict is uniquely personal to the lawyer (sexual relationships)a. Sexual Relationships with clients that are not pre-existing to the representation are subject to

discipline; consent or harm is irrelevant; not rule of imputation, but screening is required1) Pre-existing sexual relations are okay2) If they are your clients then you start sleeping with them, then you must withdraw, but your

firm can remain.

B. Acquiring an Interest in Litigation (Lawyer can’t acquire an interest in the case)1. Exceptions:

a. Contingency Feesb. Security Liens: Interest in Work Product

C. Business Transactions With Clients (Lawyer can’t enter into a business deal with a client)1. Exceptions:

a. Unless it is an ordinary transactionb. As long as terms are fair

2. Requires in writing:a. A full disclosure of termsb. Advised to get independent counselc. Informed consent, signed by client

D. Conflicting Interests – Current Clients and Former Clients (Lawyer cannot have conflicting interests with current clients and former clients)1. No interests adverse to clients

a. Cannot represent client in one matter and oppose him in anotherb. Cannot represent client whose interests are directly adverse to another clientc. Cannot represent client against former client when you acquired confidences in former

representation. E. Current Client Conflicts – Multiple Clients and Joint Representation

1. Must have reasonable belief of no adverse effect2. Client gives written informed consent3. When representing two or more clients, lawyer shall not make an aggregate settlement of claims

without informed consent in writing from each client after full review of entire settlement as to all parties which includes:a. That the clients have come to an agreement among themselves about how the aggregate sum will

be shared;b. Disclosure to each client of all the terms including:

1) Total amount to be paid or received by each individual2) Detail of every other clients’ participation in the settlement3) How the lawyer’s fees and costs must be paid4) And the existence and nature of all claims, defenses, and pleas involved in the settlement.

(what all is getting settled)c. These extensive disclosures may require the law to share one client’s confidential information

with the other so at the outset of the case, the lawyer should get each client’s informed consent. (you will have to share information)

F. Prospective Client Conflicts1. Have an expectation of attorney-client privilege

G. Third Party Compensation and Influence1. Attorney can be paid by a third person, but requires:

a. Written informed consent by client ANDb. Confidences must be kept

H. Imputed Conflicts1. Lawyers related as Parent, Child, Sibling, or Spouse shall not represent adverse parties, unless full

informed consent; but no rule of imputationI. Former Judge, Arbitrator, Mediator, or Other Third Party Neutral or Government Lawyer

1. Judge or government employee who later goes into private practice may not represent a party on a matter she or he worked personally, to wit: Rule: Cannot take “matters” where previously acted or had

substantial responsibility absent written informed consent, but not rule of imputation – so long as lawyer is “screened off” from the case.a. Matter is specific facts with specific parties

1) Matter a lawyer in private practice can take, even though as a government lawyer/judge, he or she did the worka) Drafting lawsb) Compiling statistics

2) Matter a lawyer in private practice cannot take, when as a government lawyer/judge, he did the work. However, someone else in the firm can take the case – so long as the former government lawyer is timely screened.a) Previously ruled on the caseb) Where you drafted a contract with the government and that contract is at issue.

b. Elements of screen1) Written disclosure to the other side2) No working on or discussing the case or access to file by “screened off” attorney3) No fee to the “screened off” attorney – no incentive to cheat

V. Competence, Legal Malpractice, and Other Civil LiabilityA. Maintaining Competence: Competence is a 2-pronged duty: Professional Responsibility and Malpractice;

committing malpractice does not automatically mean a disciplinary rule has been violated, and visa-versa.B. Civil Liability to Client, including Malpractice

1. Recovery comes from cause of action based in: contract, tort, or fiduciary relationship.2. Requires: money loss and causation: “but for you actions I would have won.”3. Purpose of civil malpractice claim is compensation

C. Distinguished from Disciplinary Process1. Purpose is punishment2. Doesn’t require money loss of causation

D. Exercising Diligence and Care: A lawyer must:1. Reasonably consult with client about the means by which the client’s objectives are to be

accomplished2. Keep client reasonably informed about status of/developments in the case3. Promptly comply with reasonable requests for information4. Explain matters to client to extent reasonably necessary to permit client to make informed decisions

regarding representation5. Communicate all settlement offers not specifically addressed in blanket authority from client.

E. Limiting Liability for Malpractice – Lawyer can’t do it prospectively unless client has independent representation in making the agreement. (we are knowingly incompetent and client still wants our representation).

F. Malpractice Insurance and Risk Prevention1. Lawyers have malpractice insurance2. Some states require you to report insurance status.

VI. Litigation and Other Forms of AdvocacyA. Candor to the Tribunal: Must reveal adverse decision or statute of controlling jurisdiction

1. Can’t bury adverse decision2. No explanation is required to be given to the court3. Can distinguish away4. Can offer a good faith argument to change the law

B. Fairness to Opposing Party and Counsel: Civility, Courtesy, and Decorum are aspirationalC. Meritorious Claims and Contentions: Lawyer must have good faith basis for actions; make only meritorious

claims and contentions.

D. Trial Publicity1. Lawyer connected with case must not make a public statement outside courtroom that the lawyer

reasonably should know would have a substantial likelihood of materially prejudicing the case.2. Lawyer can speak publicly on what a reasonable lawyer would believe is required to protect client

from substantial undue prejudicial effect of recent publicity not initiated by the lawyer or client. (respond in kind).

3. Special constraint on prosecutor: can’t make extra judicial comments that have a substantial likelihood of heightening public condemnation of the accused.

4. Lawyers MAY state “dry facts” about the case.E. Lawyer as a witness

1. Rule: Lawyer can’t be necessary witness for client2. Exceptions

a. Uncontested matterb. Legal fees (statutorily awarded)c. Substantial Hardship to Client

3. Disqualification not imputedVII. Transactions and Communications with Persons Other than Clients

A. Truthfulness in Statements to OthersB. Communications with Represented Persons

1. Gotta go through the client’s lawyer.2. Parties may communicate directly with each other and lawyers may inform them of this fact. (Required

to encourage them).C. Communications with Un-represented Persons (Pro-se)

1. Can’t give legal advice2. Cannot appear disinterested when you are in fact an advocate/adversary3. Can negotiate a transaction or settle client’s dispute with un-represented person

a. Cannot appear disinterestedD. Respect for Rights of Third Persons

1. Witnessesa. Not contingent fees for expertsb. Can pay reasonable expenses and lost wages, but can’t condition payment on testimony (Lay

People)c. No need to obtain permission of other side to interview a witness

1) Except: Corporate employees of managerial responsibility or whose acts could be imputed to corporation requires consent of organization’s in-house counsel

d. Can advise witnesses they don’t have to voluntarily testify if:1) Person is related to or is an agent of the party that the lawyer represents, and 2) The person will not be harmed by not volunteering

2. Jurorsa. During trial:

1) No lawyer connected with the case can talk about the case with a juror unless authorized by law or court order.

2) No de minimus exceptionb. After trial: must not communicate if any of these 3 conditions is met:

1) Court Prohibits it2) Juror tells law “I don’t want to talk to you.”3) Purpose is harassment

VIII. Different Roles of the LawyerA. Lawyer as Advisor

1. Client is entitled to all information – entitled to candid advice2. Should give legal, moral, economic, or ethical advice

B. Lawyer as Evaluator1. Must be compatible with other aspects of representation, and2. Client’s written informed consent, because the evaluation must be truthful.3. Must be truth in the evaluation; if harmful result, get informed consent in writing

C. Lawyer as negotiator1. Documents sent to lawyer by mistake – must promptly notify sender

D. Lawyer as Arbitrator, Mediator or Other Third Party Neutral1. Must explain that there is no attorney-client relationship to unrepresented party2. If litigation, must withdraw

E. Prosecutors and Other Government Lawyers1. Must not prosecute without probable cause2. Assure the accused is advised of his right to counsel, knows how to get counsel, and is given a chance

to get counsel.3. Must seek to remedy the conviction of a defendant in his jurisdiction if he/she knows of clear and

convincing evidence that the defendant was innocent4. Disclose new, credible and material evidence that creates a reasonable likelihood that a defendant was

wrongly convicted.F. Lawyer Appearing in Non-adjudicative Proceeding

1. A lawyer may serve as a state legislator or hold other public office when permitted by law. This lawyer may not use her public office to attempt to influence a tribunal in a pending matter.

2. A lawyer may serve as a director, officer, or member of an organization involved in reform of the law or its administration, notwithstanding that the reform may affect the interests of a client of the lawyer.

G. Law Reform Activities Affecting Client Interests1. Lawyer must disclose that she is working in representative capacity2. When lawyer works on law reform project and is asked to participate in a decision that would

materially benefit a client, the lawyer must disclose that fact but not identify the client.H. Lawyer Representing an Entity or Other Organization

1. Corporate Representation – you represent the corporation/entity, not an individual officer or directora. Lawyer can be a director of company, but not attorney client privilege in board meetings.b. If lawyer for organization learns that an act has been or is about to be committed in a way that

violates a duty to the organization or a law in a way that might be imputed to the organization, AND if the violation is likely to cause substantial injury to the organization, the lawyer must proceed as is reasonably necessary to protect the interests of the organization.1) Must report violation to higher authority (president) and to outside directors if necessary.2) May report relevant information to appropriate persons outside the organization only if, and to

the extent that, the lawyer reasonably believes such reporting is necessary to prevent substantial injury to the organization

3) Narrow range of discretion: lawyer need not report violation if she reasonably believes that the organization’s best interests do not require the violation to be reported.

c. Security violations – Sarbanes-Oxley Act: there is a duty of securities lawyers to report up the chain of command to CEO; if not appropriate response, must report to board of directors and may report to SEC. (only)

IX. Safekeeping Funds and Other PropertyA. Establishing and Maintaining Client Trust Accounts

1. Lawyer must keep all clients’ money in a separate trust account in the state where the lawyer practices, (UNLESS the client: consent to the Account being in another state).

2. No commingling of lawyer’s money with client money. For small sums, may use a Pooled Trust Account, but cannot use one client’s money for the benefit of another client. For a large sum held for a long period of time, must be separate interest-bearing account with interest going to client.

3. Exception: Lawyer money can cover bank service charges4. IOLTA (or similar) means: Interest on Lawyers Trust Accounts: Interest goes to state bar foundation.

B. Safekeeping Funds and Other Property of Clients: If other than money, Lawyer must safeguardC. Disputed Claims:

1. Following the receipt of settlement, the lawyer must notify the client promptly, keep the records, render accounting, and pay out promptly. If disputed, that portion remains in the client trust account.

2. Cannot move to the operating accountD. Retainer – 2 types

1. Advance on fees : belongs to client and goes into trust account and any unearned portion must be returned if the lawyer is fired or withdraws.

2. Availability : belongs to attorney and goes into lawyer’s account. (earned immediately). E. Special Circumstances

1. Once an attorney receives payment, they may call and attempt to re-negotiate for more attorneys’ fees.2. Lawyer may accept a reasonable give from client, but must not draft deed or gift or will, unless you are

related to the donor.X. Communications About Legal Services

A. Advertising and Other Public Communications About Legal Services1. Advertising (information concerning the name of the lawyer/firm, the lawyer’s/firm’s address and

telephone number; kinds of services offered; basis on which fees are determined including prices for specific services and payment/credit arrangements; lawyer’s foreign language ability; names of references; and other information that might invite the attention of persons seeking legal assistance).

2. Cannot be false or misleading – applies to ads, personal communication, office signs, cards, letters, emails, etc.

3. Any communication concerning a lawyer’s services shall include the name and address of at least one lawyer or law firm responsible for its consent. a. Cannot create unjustified expectations in the ad even if they are true statementsb. Cannot have unsubstantiated comparisons in the ad unless they are factually verifiablec. Cannot imply results by improper means in the ad

4. Firm names and letterheada. Artificial names are okay if not misleading

1) “New York Legal Services” is not okay because it suggests association with the government.b. Temporarily bad or good lawyer’s name stays; permanently bad or good lawyer’s name leaves;

Dead people can stay in name. (Ambassadorships are permanent)B. Referrals – okay to split fees with other lawyers outside of firm as follows:

1. Work together2. With client’s written informed consent that discloses the share each lawyer will get,3. Paid proportionally to work done (OR, some different proportion IF each lawyer assumes joint

responsibility for the matter).4. One reasonable fee in total5. But lawyers can enter into a reciprocal referral arrangement with another lawyer, or non-lawyer

professional with the following restrictions:a. Arrangement cannot be exclusiveb. Referred client must be told of the arrangement and if the arrangement creates a conflict of interest

for either the referring or receiving lawyer, then the lawyer must get written informed consent.c. The referral agreement must not interfere with the lawyer’s professional judgment as to making

referrals

d. The agreement should not be of indefinite duration and should be review periodically to be sure it complies with the Rules.

C. Group Legal Services: are okay, but don’t cover criminal matters.D. Quick Advice Programs sponsored by Court or “non-profit” organization: lawyer-client relationship exists

but only through the quick advice stage and informed consent to the limited scope of relationship required.1. Conflict of interest rules: relax because no to run conflict checks, but where a conflict is actually

known to the lawyer, it cannot be ignored.2. Actual knowledge can be inferred from the circumstances3. Where client hires lawyer after the quick advice (for regular and continued representation), the conflict

rules WILL apply. E. Solicitation: Direct Contact with Prospective Clients

1. General ban on solicitationa. Solicitation is seeking fee paying work through in-person, live telephone, or real time electronic

contact with a non-lawyer prospect with whom the lawyer has no family, or previous relationship2. Permissible Solicitations: (that is unless the prospective client has made known the lawyer a desire not

to be solicited by the lawyer.) a. Targeted Direct Mails: OK to send truthful letter to a person known to face a specific problem,

absent actual knowledge that the prospective client does not wish to receive the communication.1) State or Fed can restrict; for example, requiring “Advertising” to appear on envelope or email.

b. Group and Prepaid Legal Services so long as the memberships or subscriptions for the plan are not solicited from the persons who are known to need legal services.

c. Education: OK to give seminars to educate the public provided no individualized legal advice is given

d. No fee will be taken: CAN solicite. Close friends and relativesf. Present Clientg. Former Client

F. Communication Regarding Fields of Practice and Specialization1. Common law specializations are patent and admiralty – must pass their bar.2. Supreme Court Peel case (the “Certified Specialist”)

a. Not okay, unlessb. You are certified by an organization approved by the state or ABA and identify it.

XI. Lawyer’s Duties to the Public and the Legal SystemA. Voluntary Pro Bono ServiceB. Accepting Appointments: must do so unless good causeC. Serving in Legal Services OrganizationD. Criticism of Judges and Adjudicating Officials – very carefulE. Political Contributions to Obtain Engagements of Appointments – not supposed to doF. Improper Influence on Government Officials.

XII. Judicial Conduct: Governs Judges, Magistrates and RefereesA. Structure and Application of the Judicial Code

1. Code of Judicial Conduct (CJC) applies to judges and those who perform judicial functions including magistrates, court commissioners, referees and special masters

2. Several portions of the CJC do not apply to retired or part-time judges; but:a. Retired judges subject to recall can serve as an arbitrator, fiduciary, or mediator, but not while

serving as a judgeb. Part-time, periodic part-time and pro tempore part-time judges are exempt from many, but not all,

CJC provisions restricting outside activities and political activitiesB. Maintaining the Independence and Impartiality of the Judiciary

1. Judges are judges 24 hours a day . . . Must uphold and follow the law2. What is an Appearance of Impropriety?

a. When judge’s conduct creates a reasonable perception that the CJC has been violated or that otherwise reflects adversely on the judge’s honesty, impartiality, temperament or fitness as a judge.

3. Must not abuse judicial prestigea. Cannot use judicial letterhead for personal businessb. CAN write a letter of recommendation based on personal knowledge on official letterhead if

1) Says reference is personal2) There is no likelihood that the letter could reasonably be perceived as an attempt to use

judicial office to exert pressure.C. Performing the Duties of Judicial Office Impartially, Competently and Diligently

1. External influences must not influence or sway judicial decision making2. Competence: Requires legal knowledge, skill, thoroughness and preparation necessary to perform

duties.a. Promptly dispose of court businessb. Devote adequate time to dutiesc. Be punctual in attending court

3. Judges can encourage settlements but cannot coerce parties to settle.4. Judges must avoid bias, prejudice and harassment and require those who the judge directs and controls

(bailiff, clerk, etc.) which includes race, sex, gender, religion, national origin, ethnicity, disability, age, socioeconomic status, marital status, sexual orientation, or political affiliation.

5. Ex-parte communication is not permitted except:a. Expressly authorized by law, Ex: Drug or mental health courts where judges assume a more

interactive role with parties.b. Mediation or Settlement (with consent of the parties)c. Emergency or deminimus, okay to judge, but not to juror.d. Inadvertent Receipt of Unauthorized Ex Parte Communication – Judge must notify parties and

give an opportunity to respond6. No independent investigation of facts . . .consider only evidence presented.7. No public or nonpublic comments from judges that may affect case outcome or otherwise interfere

with a fair trial8. Regarding cases or issues likely to come before the court, judge must not make pledges, promises, or

commitments inconsistent with the impartial performance of duties.9. Judges must not criticize jurors for their verdict10. Administrative appointments must be made impartially and based on merit, not on the basis of

nepotism or favoritism11. Judge who has actual knowledge that another judge has violated the CJC (or lawyer has violated the

Rules of Professional Conduct) in a manner that raises a substantial question as to the other judge’s character and fitness, the judge must report; where judge receives such information from another, judge must take appropriate action.

D. Disqualification: unless parties remit, the judge must offer to step down1. Judge must disqualify herself when impartiality might reasonably (and objectively . . . not based on

party whim) be questioned.2. Judge should disclose any information that parties or lawyers might consider relevant even if the judge

does not believe there is a reasonable basis for disqualification.3. In an emergency, necessity overrides the rule of disqualification4. Judge must step down with personal knowledge/bias of possibly disputed facts.

5. Judge must step down if she had prior involvement as material witness, lawyer, associate of key lawyer in case, presided as judge in another court, served as government employee in a capacity concerning the proceeding.

6. Judge cannot have economic interest (personally or as fiduciary) in the matter or one of the parties before her – except de minimus. a. De minimus interests: an insignificant interest that raises no reasonable question regarding the

judge’s impartialityb. Includes interests held by judge’s spouse, domestic partner, parent or child (wherever the kid

resides) or any other family member living in the judge’s homec. Exceptions: Mutual Funds (unless judge participates in the management of the fund or the

proceeding could substantially affect the value of the interest; securities held by an organization, bank deposits or mutual insurance policies . . . UNLESS the proceedings could impact the value of the deposit/policy.

7. If former partner or close relative (that is within the 3rd degree of relationship) is party, attorney, material witness, or person with more than a de minimus that could be substantially be affected by the proceeding that is before the judge. a. Too close: parent, grandparent, kids, grandkids, siblings, aunts, uncles, nieces, nephews, in-laws

(wife’s mother = your uncle)b. Cousins are okay

8. When judge knows a party (or attorney or law firm) has contributed more than the jurisdiction’s specified amount to his election campaign committee with a designated number of prior years to the judge’s election.

9. When judge or candidate for judge makes a public statement other than court proceeding/opinion that commits or appears to commit the judge to a particular position or result

10. Parties can remit for all the above, EXCEPT for judge’s personal bias to party or party’s lawyer.E. Extrajudicial Activities

1. Judge’s personal and extra-judicial activities (while encourage) must not interfere with proper performance or otherwise appear to undermine the judge’s integrity or impartiality

2. Judge must not testify as a character witness, except by subpoena3. Judge may take part in educational, religious, charitable, fraternal, or civic organization and activities

not conducted for profit, Such activities include:a. Solicitation of contributions for the organization, but only from family members or other judges

over whom the judge has no supervisory or appellate authority. b. Appearing or speaking at, receiving an award at, or being featured on the program of the

organization’s event (if the event is a fund-raiser, the event must concern the law, legal system or administration of justice).

c. Serving as an officer, director, trustee or non-legal advisor unless the proceedings would ordinarily come before the judge.

4. Judges may encourage lawyers to provide pro bono services5. Judges must not be members of organizations that discriminate on the basis of race, sex, gender,

religion, national origin, ethnicity, or sexual orientation . . .once judge learns of the discrimination, must resign immediatelya. Even if not member, must not use the benefits or facilities of that organizationb. May attend an event there if it is an isolated event that cannot be perceived as an endorsement of

the organization’s practicesc. Exception: OK to be a member of a religious organization (which is lawful exercise of freedom of

religion)6. Fiduciary relationships: generally, judge must not serve as an executor, administrator, trustee, guardian

or other fiduciary – except for a family member – and then only where:

a. There is no interference with official dutiesb. Proceedings would not ordinarily come before that judge (judge’s own court) or c. Matter will not involve adversary proceedings in a court under that judge’s appellate jurisdiction

7. Generally, a judge may not serve as an officer, director, manager, general partner, advisor, or employee of a business. But the judge may hold an manage her own investments and those of her family unless such activity willa. Interfere with official dutiesb. Lead to frequent disqualification of the judgec. Involve the judge in proceedings that will likely come before the judge

8. Judges may receive reasonable compensation for speaking, teaching or writing unless such payment could appear to undermine impartiality. Judges may be reimbursed for necessary expenses (travel, food, lodging, etc.) or have fees waived when associated with judge’s participation in permitted activities.

9. Judges must not accept gifts, loans, bequests or other things of value where prohibited by law or where such may appear to undermine impartialitya. Where not prohibited, judges may accept with reporting de minimus items (plaques, certificates),

ordinary social hospitality, gifts from people whose appearance or interest in a case would lead the judge to be disqualified anyway (ex. Family members and close friends).

b. Where not prohibited, judges may accept and MUST report: invitations to attend without cost an activity related to the law or legal system or an event associated with the judge’s educational, religious, charitable or civic activities if that invitation is offered to non-judges engaged in similar ways, and gifts, loans, bequests or other items of value if the source is someone who is likely to come before the judge.

10. Judges do not engage in the full time practice of law, except:a. Pro seb. Advice for family members (but may not act in a forum)

F. Political and Campaign Activities of Judges and Candidates for Judge: If a judge is running for office, judge/candidate:1. Can speak at gatherings, but must not, with respect to cases or controversies or issues that are likely to

come before the court, make pledges, promises or commitments that are inconsistent with impartial performance of duties.

2. Must not hold office or make speeches on behalf of a political organization3. Must not use court staff, facilities or court resources in a campaign4. Must take reasonable steps to ensure others (including family members) do not do what the

judge/candidate cannot do.5. May respond to false or misleading statements issued by an opponent, or media with factually accurate

response, with may be done personally, but preferably through someone else.6. Candidates can organize a fundraiser – but does so by establishing a campaign committee; does not go

out personally to get money – and can do so for a specified period before and a specified number of days after the election. Must meet all reporting requirements.

7. If a judges wants to run for non-judicial elective office, if law requires, must resign from bench . . . for appointed office, need not resign judgeship.

8. A judicial candidate must act with dignity, impartiality, integrity and independence expected of a judge.