Introduction and Week 1-9:
1. What are the sources of professional responsibility and ethics regulation for attorneys? What obligations are prescribed? What other kind of guideposts should a lawyer reflect upon, according to the Preamble to the MRPC? A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice. Preamble & Scope
2. What are the sources of professional responsibility and ethics regulation for judges? The Model Code of Judicial Conduct and peer review
3. What are the two broad categories of duties that professional responsibility rules embody? A lawyer's conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer's business and personal affairs. A lawyer should use the law's procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer's duty, when necessary, to challenge the rectitude of official action, it is also a lawyer's duty to uphold legal process. Preamble & Scope
4. What is one area of professional responsibility with a high level of bar activity this year? Technology competence
5. What are some of the shared normative commitments held by members of the legal profession in the United States? A lawyer should further the public's understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority. A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance. Therefore, all lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest. Preamble & Scope
6. What are the three roles that a lawyer fulfills according to the Preamble to the MRPC? (1) Advisor/Counselor, (2) Advocate and Officer of the Court/Professional and (3) Public citizen. Preamble & Scope
7. What are the three personal qualities that every lawyer should evidence according to the Preamble? What other two core obligations does the Preamble list? In all professional functions a lawyer should be 1. competent, 2. prompt and 3. diligent. A lawyer should also (1) maintain communication with a client concerning the representation, and a lawyer should (2) keep in confidence information relating to representation of a client except so far as disclosure is required or permitted by the Rules of Professional Conduct or other law. Preamble & Scope
8. As a public citizen, according to the Preamble, what are some of the goals that a lawyer's behavior should embody? As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. Preamble & Scope
9. How is the legal profession governed, according to the Preamble? The legal profession is largely self-governing. Although other professions also have been granted powers of self-government, the legal profession is unique in this respect because of the close relationship between the profession and the processes of government and law enforcement. This connection is manifested in the fact that ultimate authority over the legal profession is vested largely in the courts. The legal profession's relative autonomy carries with it special responsibilities of self-government. The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar. Preamble & Scope
10. According to the Preamble, when do most duties flowing from the MRPC attach? Are there exceptions? The Rules of Professional Conduct are rules of reason. Most of the duties flowing from the client-lawyer relationship attach only after the client has requested the lawyer to render legal services and the lawyer has agreed to do so. But there are some duties, such as that of confidentiality under Rule 1.6, that attach when the lawyer agrees to consider whether a client-lawyer relationship shall be established. See Rule 1.18. Whether a client-lawyer relationship exists for any specific purpose can depend on the circumstances and may be a question of fact. Preamble & Scope
11. According to the Preamble, how should the the disciplinary process of an alleged violation of a Rule proceed? Compliance with the Rules, as with all law in an open society, depends primarily upon understanding and voluntary compliance, secondarily upon reinforcement by peer and public opinion and finally, when necessary, upon enforcement through disciplinary proceedings. Preamble & Scope
12. According to the Preamble, does a violation of a Rule give rise to a cause of action against an attorney? Not necessarily. The Rules are thus partly obligatory and disciplinary and partly constitutive and descriptive in that they define a lawyer's professional role. The Rules presuppose a larger legal context shaping the lawyer's role. That context includes court rules and statutes relating to matters of licensure, laws defining specific obligations of lawyers and substantive and procedural law in general. Preamble & Scope
13. Is the MRPC a law? How does it connect with state level rules of professional responsibility? The MRPC is a statement of a model code of ethics, which is then incorporated into law with some modifications into each state's rules. Preamble & Scope
14. What does it mean for a lawyer to be "competent"? Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.1.1
15. What are the relevant factors in determining whether a lawyer employs the requisite knowledge and skill in a particular matter? Relevant factors include the relative complexity and specialized nature of the matter, the lawyer's general experience, the lawyer's training and experience in the field in question, the preparation and study the lawyer is able to give the matter and whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question. In many instances, the required proficiency is that of a general practitioner.1.1
16. Is expertise in a particular field of law ever required? Expertise in a particular field of law may be required in some circumstances.1.1
17. Does a law need to have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar? Not necessarily. Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve, a skill that necessarily transcends any particular specialized knowledge.1.1
18. If a lawyer is new to an area of law, what are the best courses of conduct? A lawyer can provide adequate representation in a wholly novel field through necessary study. Competent representation can also be provided through the association of a lawyer of established competence in the field in question. 1.1
19. Are the rules different in emergency situations? Yes. In an emergency, a lawyer may give advice or assistance even without the skill ordinarily required provided that referral, consultation or association with a more skilled lawyer would be impractical. However, assistance should be limited to that reasonably necessary in the circumstances.1.1
20. What is the key question regarding competence that a lawyer should ask? The questions is "Can the requisite level of competence can be achieved by reasonable preparation?"1.1
21. What are some of the conduct elements that demonstrate competent handling of a particular matter? These include inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners. It also includes adequate preparation.1.1
22. What is the standard for determining adequate preparation? The required attention and preparation are determined in part by what is at stake; major litigation and complex transactions ordinarily require more extensive treatment than matters of lesser complexity and consequence. An agreement between the lawyer and the client regarding the scope of the representation may limit the matters for which the lawyer is responsible. 1.1
23. What should a lawyer do before retaining or contracting with other lawyers outside the lawyer’s own firm to provide or assist in the provision of legal services to a client? The lawyer should ordinarily obtain informed consent from the client and must reasonably believe that the other lawyers’ services will contribute to the competent and ethical representation of the client. 1.1
24. How is the reasonableness of the decision to retain or contract with other lawyers outside the lawyer’s own firm analyzed? It will depend upon the circumstances, including the education, experience and reputation of the non-firm lawyers; the nature of the services assigned to the nonfirm lawyers; and the legal protections, professional conduct rules, and ethical environments of the jurisdictions in which the services will be performed, particularly relating to confidential information. 1.1
25. How should a shared representation proceed? When lawyers from more than one law firm are providing legal services to the client on a particular matter, the lawyers ordinarily should consult with each other and the client about the scope of their respective representations and the allocation of responsibility among them. When making allocations of responsibility in a matter pending before a tribunal, lawyers and parties may have additional obligations that are a matter of law beyond the scope of these Rules. 1.1
26. What does it mean that a lawyer is obligated to maintain competence? To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject. 1.1
27. In an ongoing representation, who makes the ultimate decisions concerning the objectives of representation? The client, but for limited exceptions. 1.2
28. In an ongoing representation, does the lawyer have an obligation to consult with the client as to the means by which the objectives are to be pursued? Yes. But, a lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation.1.2
29. Who decides whether to settle or plead in a case? A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify. 1.2
30. Can a lawyer may limit the scope of the representation? Yes, if the limitation is reasonable under the circumstances and the client gives informed consent. 1.2
31. How does a lawyer limit scope? Scope is generally limited by agreement with the client in writing or by the terms under which the lawyer's services are made available to the client. 1.2
32. Do lawyers and clients have substantial latitude to limit the representation? Yes, but the limitation must be reasonable under the circumstances. If, for example, a client's objective is limited to securing general information about the law the client needs in order to handle a common and typically uncomplicated legal problem, the lawyer and client may agree that the lawyer's services will be limited to a brief telephone consultation. Such a limitation, however, would not be reasonable if the time allotted was not sufficient to yield advice upon which the client could rely. Although an agreement for a limited representation does not exempt a lawyer from the duty to provide competent representation, the limitation is a factor to be considered when determining the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. 1.2
33. Does a lawyer's representation of a client constitute an endorsement of the client's political, economic, social or moral views or activities? No.1.2
34. Is a lawyer obligated to represent a client using means the lawyer finds repugnant or imprudent? No. The terms upon which representation is undertaken may exclude specific means that might otherwise be used to accomplish the client's objectives. Such limitations may exclude actions that the client thinks are too costly or that the lawyer regards as repugnant or imprudent. 1.2
35. Is a lawyer allowed to assist a client if the requested assistance is potentially criminal or fraudulent? No, A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent.1.2
36. How should a lawyer handle a situation where a client asks for assistance with potentially criminal or fraudulent conduct? A lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.1.2
37. How are disagreements between clients and lawyers about the means to accomplish objectives resolved? The MRPC does not prescribe how such disagreements are to be resolved. Other law, however, may be applicable and should be consulted by the lawyer. The lawyer should also consult with the client and seek a mutually acceptable resolution of the disagreement. 1.2
38. What happens if a client and a lawyer cannot agree on means? If such efforts are unavailing and the lawyer has a fundamental disagreement with the client, the lawyer may withdraw from the representation. Conversely, the client may resolve the disagreement by discharging the lawyer. 1.2
39. Does the fact that a client uses advice in a course of action that is criminal or fraudulent of itself make a lawyer a party to the course of action? No. There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity. 1.2
40. How does a lawyer handle a crime in progress? The lawyer is required to avoid assisting the client, for example, by drafting or delivering documents that the lawyer knows are fraudulent or by suggesting how the wrongdoing might be concealed. A lawyer may not continue assisting a client in conduct that the lawyer originally supposed was legally proper but then discovers is criminal or fraudulent. The lawyer must, therefore, withdraw from the representation of the client in the matter. In some cases, withdrawal alone might be insufficient. It may be necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm any opinion, document, affirmation or the like. 1.2
41. How should a lawyer communicate with a client who expects assistance not permitted by the Rules of Professional Conduct or other law or if the lawyer intends to act contrary to the client's instructions? The lawyer must consult with the client regarding the limitations on the lawyer's conduct. 1.2
42. What does it mean that a lawyer pursues a matter with diligence? It means that a lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf. 1.3
43. Does a lawyer's "zeal" mean that a lawyer is bound to press for every advantage that might be realized for a client? No. For example, a lawyer may have authority to exercise professional discretion in determining the means by which a matter should be pursued. It does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect. 1.3
44. What does the duty of diligence mean for a lawyer's work load? A lawyer's work load must be controlled so that each matter can be handled competently. 1.3
45. How does a lawyer know when a representation has ended? If a lawyer's employment is limited to a specific matter, the relationship terminates when the matter has been resolved. If a lawyer has served a client over a substantial period in a variety of matters, the client sometimes may assume that the lawyer will continue to serve on a continuing basis unless the lawyer gives notice of withdrawal. Doubt about whether a client-lawyer relationship still exists should be clarified by the lawyer, preferably in writing. 1.3
46. What are some unique aspects of solo practice in connection with the duty of diligence? To prevent neglect of client matters in the event of a sole practitioner's death or disability, the duty of diligence may require that each sole practitioner prepare a plan, in conformity with applicable rules, that designates another competent lawyer to review client files, notify each client of the lawyer's death or disability, and determine whether there is a need for immediate protective action. 1.3
47. What kinds of communications practices characterize are required under the MRPC? A lawyer should promptly inform the client of any decision or circumstance with respect to which the client's informed consent is required. A lawyer should reasonably consult with the client about the means by which the client's objectives are to be accomplished, keep the client reasonably informed about the status of the matter, promptly comply with reasonable requests for information; and consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law. 1.4
48. What degree of detail in legal explanation is required under the MRPC? A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. A lawyer may be justified in delaying transmission of information when the client would be likely to react imprudently to an immediate communication. Adequacy of communication depends in part on the kind of advice or assistance that is involved. A lawyer may not withhold information to serve the lawyer's own interest or convenience or the interests or convenience of another person. 1.4
49. How does exigency of the circumstances impact the duty to communicate promptly? In some situations, the duty will require consultation prior to taking action. In other circumstances, such as during a trial when an immediate decision must be made, the exigency of the situation may require the lawyer to act without prior consultation. In such cases the lawyer must nonetheless act reasonably to inform the client of actions the lawyer has taken on the client's behalf. However, the MRPC requires that the lawyer keep the client reasonably informed about the status of the matter, such as significant developments affecting the timing or the substance of the representation. 1.4
50. How should a lawyer handle the discovery of a material error? A lawyer should promptly inform a current client upon discovery. 1.4
51. How does a lawyer determine whether an error is material? An error is likely to be material if a disinterested lawyer would conclude that: the error will result in financial loss to the client, substantial delay in achieving the client’s objectives for the representation, or material disadvantage to the client’s legal position, or disclosure of the error is necessary for the client to make an informed decision about the representation (including whether to terminate the representation) or for the lawyer to advise the client of significant changes in strategy, timing, or direction of the representation. A lawyer’s effort to avoid embarrassment, discipline or financial liability for the lawyer’s material error in the course of a representation is not a sufficient basis for failing to communicate as required. 1.4
52. Why is nondisclosure of a material error problematic under the MRPC? Depending on the facts, the lawyer’s material error may create a conflict of interest between the lawyer and the client requiring the lawyer’s withdrawal or the client’s informed consent, confirmed in writing. 1.4
53. Is a lawyer required to inform a former client where the lawyer discovers only after the client-lawyer relationship has ended that the lawyer made a material error in the former client’s representation? No. 1.4
54. What are the factors to be considered in determining the reasonableness of a fee? Lawyers charge fees that are reasonable under the circumstances. Factors include the following: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent. A lawyer may seek reimbursement for the cost of services performed in-house, such as copying, or for other expenses incurred in-house, such as telephone charges, either by charging a reasonable amount to which the client has agreed in advance or by charging an amount that reasonably reflects the cost incurred by the lawyer. 1.5
55. When must fee arrangements be communicated? The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client. Generally, it is desirable to furnish the client with at least a simple memorandum or copy of the lawyer's customary fee arrangements that states the general nature of the legal services to be provided, the basis, rate or total amount of the fee and whether and to what extent the client will be responsible for any costs, expenses or disbursements in the course of the representation. 1.5
56. Can fee arrangements be modified once a representation has begun? Yes, however certain conditions apply. Modification of an existing fee agreement, whether written or not, is permissible, but any modification should be reasonable under the circumstances at the time of the modification as well as communicated to and accepted by the client. Periodic, incremental increases in a lawyer’s regular hourly billing rates are generally reasonable if such practice is communicated clearly to and accepted by the client at the commencement of the client-lawyer relationship. Modifications sought by a lawyer that change the basic nature of a fee arrangement or significantly increase the lawyer’s compensation, absent an unanticipated change in circumstances, are less likely to be reasonable. 1.5
57. Can lawyers represent clients on a contingency fee basis? Yes, a fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by the MRPC or by law. Contingent fees, like any other fees, are subject to the reasonableness standard. A contingent fee agreement shall be in a writing signed by the client and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination. 1.5
58. What kinds of legal fees are prohibited? A lawyer shall not enter into an arrangement for, charge, or collect: (1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof; or (2) a contingent fee for representing a defendant in a criminal case. However, the MRPC does not preclude a contract for a contingent fee for legal representation in connection with the recovery of post-judgment balances due under support, alimony or other financial orders because such contracts do not implicate the same policy concerns.1.5
59. When can a fee be divided between lawyers who are not in the same firm? It may be made only if: (1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation; (2) the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing; and (3) the total fee is reasonable. 1.5
60. May a lawyer may require advance payment of a fee? Yes, but the lawyer is obliged to return any unearned portion.1.5
61. May a lawyer may accept property in payment for services, such as an ownership interest in an enterprise? Yes, providing this does not involve acquisition of a proprietary interest in the cause of action or subject matter of the litigation. Such fees often have the essential qualities of a business transaction with the client and additional clarifying disclosures may be required.1.5
62. What is the test for a fee arrangement that runs afoul of the MRPC? An agreement may not be made whose terms might induce the lawyer improperly to curtail services for the client or perform them in a way contrary to the client's interest. For example, a lawyer should not enter into an agreement whereby services are to be provided only up to a stated amount when it is foreseeable that more extensive services probably will be required, unless the situation is adequately explained to the client. A lawyer should not exploit a fee arrangement based primarily on hourly charges by using wasteful procedures.1.5
63. Can a lawyer who has a conflict of interest that would preclude the representation receive a portion of the fee generated in the matter? No. A lawyer should only refer a matter to a lawyer whom the referring lawyer reasonably believes is competent to handle the matter. 1.5
64. Can fees be received by a lawyer in the future for work performed during a previous association with a law firm that ended? Yes. 1.5
65. How should fee disputed between clients and lawyers be handled? If a procedure has been established for resolution of fee disputes, such as an arbitration or mediation procedure established by the bar, the lawyer must comply with the procedure when it is mandatory. If it is voluntary, the lawyer should conscientiously consider submitting to it. Law may prescribe a procedure for determining a lawyer's fee. The lawyer entitled to such a fee and a lawyer representing another party concerned with the fee should comply with the prescribed procedure.1.5
66. When may a lawyer reveal information about a client? A lawyer may not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by the Rules. 1.6
67. What exemptions exist in connection with client confidentiality? A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to prevent reasonably certain death or substantial bodily harm; (2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services; (3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;
(4) to secure legal advice about the lawyer's compliance with the Rules; (5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; (6) to comply with other law or a court order; or
(7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client. 1.6
68. Do the Rules govern accidental or inadvertent disclosures? Yes, a lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client. 1.6
69. Why is client confidentiality treated strictly by the Rules? It contributes to the trust that is the hallmark of the client-lawyer relationship. The client is thereby encouraged to seek legal assistance and to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter. 1.6
70. How does the Rules' treatment of confidentiality differ from the concept of attorney-client privilege and work product protections? The attorney-client privilege and work product doctrine apply in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. 1.6
71. Can a lawyer seek counsel from another attorney on handling client matters using a hypothetical that does not disclose the identity of the client? Yes, carefully. This prohibition also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person. A lawyer's use of a hypothetical to discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved. 1.6
72. According to the Rules, is the public usually best served by a strict rule of lawyer confidentiality? Yes, however a limited accommodation is allowed for circumstances where abuse of the lawyer-client relationship is underway in particular forms: the Rules recognize the overriding value of life and physical integrity and permit disclosure reasonably necessary to prevent reasonably certain death or substantial bodily harm that is reasonably certain to occur, will be suffered imminently, or if there is a present and substantial threat that a person will suffer such harm without action. The Rules provide the example of a lawyer who knows that a client has accidentally discharged toxic waste into a town's water supply if there is a present and substantial risk that a person who drinks the water will contract a life-threatening or debilitating disease and the lawyer's disclosure is necessary to eliminate the threat or reduce the number of victims. Local versions of these exceptions will vary; close review of particular state bar practice is warranted. 1.6
73. Are there other scenarios where limited disclosures are permitted? Yes, the Rules provide the examples of detect and resolve conflicts of interest, such as when a lawyer is considering an association with another firm, two or more firms are considering a merger, or a lawyer is considering the purchase of a law practice. Lawyers should err on the side of caution and only reveal information after substantive discussions have already occurred. The disclosure of any information is prohibited if it would compromise the attorney-client privilege or otherwise prejudice the client. 1.6
74. What does it mean in practice to act competently to preserve confidentiality? Lawyers must make reasonable efforts to prevent the access or disclosure. Factors to be considered in determining the reasonableness of the lawyer’s efforts include, but are not limited to, the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the cost of employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use). A client may require the lawyer to implement special security measures not required by this Rule or may give informed consent to forgo security measures that would otherwise be required by this Rule. 1.6
75. How does this duty of competence in confidentiality relate to communications? The lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients. This duty, however, does not require that the lawyer use special security measures if the method of communication affords a reasonable expectation of privacy. Factors to be considered in determining the reasonableness of the lawyer's expectation of confidentiality include the sensitivity of the information and the extent to which the privacy of the communication is protected by law or by a confidentiality agreement. A client may require the lawyer to implement special security measures not required by this Rule or may give informed consent to the use of a means of communication that would otherwise be prohibited by this Rule. 1.6
76. The Rules state that whether a lawyer may be required to take additional steps to safeguard a client’s information in order to comply with other law, such as state and federal laws that govern data privacy or that impose notification requirements upon the loss of, or unauthorized access to, electronic information, is beyond the scope of these Rules; does that mean that lawyers are shielded from liability for computer security failures? No. It does not. Some states such as New York impose affirmative requirements of computer security and standards of conduct for services providers. 1.6
77. Does the duty of confidentiality continue after the termination of an attorney-client relationship? Yes. Lawyers may not use information in any way that disadvantages a former client or for their own benefit/ in conflict with client interests. 1.6
78. When does a conflict of interest exist that limits representation? A lawyer shall not represent a client if the representation involves a concurrent conflict of interest - i.e. (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. 1.7
79. Are there exceptions to the rule against representations where a lawyer has a conflict of interest? Yes. A lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; AND (4) each affected client gives informed consent, confirmed in writing. 1.7
80. Why is the MRPC concerned with conflicts of interest? Because loyalty and independent judgment are essential elements in the lawyer's relationship to a client. Loyalty to a current client prohibits undertaking representation directly adverse to that client without that client's informed consent. Thus, absent consent, a lawyer may not act as an advocate in one matter against a person the lawyer represents in some other matter, even when the matters are wholly unrelated. The client as to whom the representation is directly adverse is likely to feel betrayed, and the resulting damage to the client-lawyer relationship is likely to impair the lawyer's ability to represent the client effectively. In addition, the client on whose behalf the adverse representation is undertaken reasonably may fear that the lawyer will pursue that client's case less effectively out of deference to the other client, i.e., that the representation may be materially limited by the lawyer's interest in retaining the current client. Similarly, a directly adverse conflict may arise when a lawyer is required to cross-examine a client who appears as a witness in a lawsuit involving another client, as when the testimony will be damaging to the client who is represented in the lawsuit. 1.7
81. What are the three types of concurrent conflicts of interest? Concurrent conflicts of interest can arise from the lawyer's responsibilities to another client, a former client or a third person or from the lawyer's own interests. 1.7
82. With respect to conflicts of interest, how do the Rules define "informed consent" and "confirmed in writing"? The Rules define these terms in the Definitions section of the Rules, specifically rule 1.0(e) and (b) respectively. 1.7
83. Can a conflict of interest exist before representation is undertaken? Yes. 1.7
84. If a conflict of interest exists before a representation is undertaken, what are the possible results? The representation must be declined, unless the lawyer obtains the informed consent of each client. 1.7
85. How does a firm/a lawyer determine whether a conflict of interest exists? A lawyer should adopt reasonable procedures, appropriate for the size and type of firm and practice, to determine in both litigation and non-litigation matters the persons and issues involved. Ignorance caused by a failure to institute such procedures will not excuse a lawyer's violation of this Rule. 1.7
85. How should a conflict that arises after representation has been undertaken be handled? The lawyer ordinarily must withdraw from the representation, unless the lawyer has obtained the informed consent of the client. Where more than one client is involved, whether the lawyer may continue to represent any of the clients is determined both by the lawyer's ability to comply with duties owed to the former client and by the lawyer's ability to represent adequately the remaining client or clients, given the lawyer's duties to the former client. 1.7
86. When might a conflict arise after the start of a representation? Unforeseeable developments, such as changes in corporate and other organizational affiliations or the addition or realignment of parties in litigation, might create conflicts in the midst of a representation, as when a company sued by the lawyer on behalf of one client is bought by another client represented by the lawyer in an unrelated matter. Depending on the circumstances, the lawyer may have the option to withdraw from one of the representations in order to avoid the conflict. The lawyer must seek court approval where necessary and take steps to minimize harm to the clients. 1.7
87. After withdrawal due to a conflict, must the lawyer continue to protect the confidences of the client from whose representation the lawyer has withdrawn? Yes. 1.7
88. Does simultaneous representation in unrelated matters of clients whose interests are only economically adverse, such as representation of competing economic enterprises in unrelated litigation, ordinarily constitute a conflict of interest? No. 1.7
89. Can adverse conflicts arise in transactional matters? Yes. For example, if a lawyer is asked to represent the seller of a business in negotiations with a buyer represented by the lawyer, not in the same transaction but in another, unrelated matter, the lawyer could not undertake the representation without the informed consent of each client. 1.7
90. Can conflicts exist if there is no direct adverseness? Yes. A conflict of interest exists if there is a significant risk that a lawyer's ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer's other responsibilities or interests. For example, a lawyer asked to represent several individuals seeking to form a joint venture is likely to be materially limited in the lawyer's ability to recommend or advocate all possible positions that each might take because of the lawyer's duty of loyalty to the others. 1.7
91. What are the critical questions in a situation where there is no direct adverseness? The questions are: What is the likelihood that a difference in interests will eventuate and, if it does, whether it will materially interfere with the lawyer's independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client. 1.7
92. When might a lawyer's duties to a former client or other persons limit a current representation? A lawyer's duties of loyalty and independence may be materially limited by responsibilities to former clients or by the lawyer's responsibilities to other persons, such as fiduciary duties arising from a lawyer's service as a trustee, executor or corporate director. 1.7
93. When might a lawyer's personal interest conflict with those of a client? The lawyer's own interests should not be permitted to have an adverse effect on representation of a client. For example, when a lawyer has discussions concerning possible employment with an opponent of the lawyer's client, or with a law firm representing the opponent, such discussions could materially limit the lawyer's representation of the client. In addition, a lawyer may not allow related business interests to affect representation, for example, by referring clients to an enterprise in which the lawyer has an undisclosed financial interest. Also, when lawyers representing different clients in the same matter or in substantially related matters are closely related by blood or marriage, there may be a significant risk that client confidences will be revealed and that the lawyer's family relationship will interfere with both loyalty and independent professional judgment. As a result, each client is entitled to know of the existence and implications of the relationship between the lawyers before the lawyer agrees to undertake the representation. Thus, a lawyer related to another lawyer, e.g., as parent, child, sibling or spouse, ordinarily may not represent a client in a matter where that lawyer is representing another party, unless each client gives informed consent. 1.7
94. Is a lawyer allowed to have a sexual relationship with a client? No. A lawyer is prohibited from engaging in sexual relationships with a client unless the sexual relationship predates the formation of the client-lawyer relationship. 1.7
95. Is it a conflict of interest to have someone other than the client pay for legal services? No. A lawyer may be paid from a source other than the client, including a co-client, if the client is informed of that fact and consents and the arrangement does not compromise the lawyer's duty of loyalty or independent judgment to the client. If any doubt exists whether the conflict is consentable, the lawyer must ensure that the client has adequate information about the material risks of the representation. 1.7
96. How is consentability to conflicts determined under the MRPC? The question of consentability must be resolved as to each client separately. Consentability is typically determined by considering whether the interests of the clients will be adequately protected if the clients are permitted to give their informed consent to representation burdened by a conflict of interest. Thus, representation is prohibited if in the circumstances the lawyer cannot reasonably conclude that the lawyer will be able to provide competent and diligent representation. For example, some conflicts are nonconsentable because the representation is prohibited by applicable law, e.g. in some states substantive law provides that the same lawyer may not represent more than one defendant in a capital case, even with the consent of the clients, and under federal criminal statutes certain representations by a former government lawyer are prohibited, despite the informed consent of the former client. In addition, decisional law in some states limits the ability of a governmental client, such as a municipality, to consent to a conflict of interest. Whether clients are aligned directly against each other requires examination of the context of the proceeding. 1.7
97. What does informed consent to a conflict require? It requires that each affected client be aware of the relevant circumstances and of the material and reasonably foreseeable ways that the conflict could have adverse effects on the interests of that client. The information required depends on the nature of the conflict and the nature of the risks involved. When representation of multiple clients in a single matter is undertaken, the information must include the implications of the common representation, including possible effects on loyalty, confidentiality and the attorney-client privilege and the advantages and risks involved. Under some circumstances it may be impossible to make the disclosure necessary to obtain consent. 1.7
98. May a lawyer properly request a client to waive conflicts that might arise in the future? The effectiveness of such waivers is generally determined by the extent to which the client reasonably understands the material risks that the waiver entails. The more comprehensive the explanation of the types of future representations that might arise and the actual and reasonably foreseeable adverse consequences of those representations, the greater the likelihood that the client will have the requisite understanding. Thus, if the client agrees to consent to a particular type of conflict with which the client is already familiar, then the consent ordinarily will be effective with regard to that type of conflict. If the consent is general and open-ended, then the consent ordinarily will be ineffective, because it is not reasonably likely that the client will have understood the material risks involved. On the other hand, if the client is an experienced user of the legal services involved and is reasonably informed regarding the risk that a conflict may arise, such consent is more likely to be effective, particularly if, e.g., the client is independently represented by other counsel in giving consent and the consent is limited to future conflicts unrelated to the subject of the representation. 1.7
99. May an attorney represent opposing parties in the same litigation? No, regardless of the clients' consent. On the other hand, simultaneous representation of parties whose interests in litigation may conflict, such as co-plaintiffs or codefendants is permitted as long as conflict does not exist. A conflict may exist by reason of substantial discrepancy in the parties' testimony, incompatibility in positions in relation to an opposing party or the fact that there are substantially different possibilities of settlement of the claims or liabilities in question. Such conflicts can arise in criminal cases as well as civil. The potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one codefendant. On the other hand, common representation of persons having similar interests in civil litigation is proper if not conflict exists. 1.7
100. May a lawyer take inconsistent legal positions in different tribunals at different times on behalf of different clients? Yes. The mere fact that advocating a legal position on behalf of one client might create precedent adverse to the interests of a client represented by the lawyer in an unrelated matter does not create a conflict of interest. A conflict of interest exists, however, if there is a significant risk that a lawyer's action on behalf of one client will materially limit the lawyer's effectiveness in representing another client in a different case. 1.7
101. When a lawyer represents or seeks to represent a class of plaintiffs or defendants in a class-action lawsuit, are unnamed members of the class are ordinarily considered to be clients of the lawyer? No. The lawyer does not typically need to get the consent of such a person before representing a client suing the person in an unrelated matter. Similarly, a lawyer seeking to represent an opponent in a class action does not typically need the consent of an unnamed member of the class whom the lawyer represents in an unrelated matter. 1.7
102. What are the consequences if a representation of multiple clients fails to pass muster as conflict-free? In considering whether to represent multiple clients in the same matter, a lawyer should be mindful that if the common representation fails because the potentially adverse interests cannot be reconciled, the result can be additional cost, embarrassment and recrimination. Ordinarily, the lawyer will be forced to withdraw from representing all of the clients if the common representation fails. 1.7
103. What happens to attorney-client privilege in a scenario with commonly represented clients? With regard to the attorney-client privilege, the prevailing rule is that, as between commonly represented clients, the privilege does not attach. Hence, it must be assumed that if litigation eventuates between the clients, the privilege will not protect any such communications, and the clients should be so advised. 1.7
104. How does the duty of confidentiality work in a continued common representation? It will almost certainly be inadequate if one client asks the lawyer not to disclose to the other client information relevant to the common representation. This is so because the lawyer has an equal duty of loyalty to each client, and each client has the right to be informed of anything bearing on the representation that might affect that client's interests and the right to expect that the lawyer will use that information to that client's benefit. The lawyer should, at the outset of the common representation and as part of the process of obtaining each client's informed consent, advise each client that information will be shared and that the lawyer will have to withdraw if one client decides that some matter material to the representation should be kept from the other. In limited circumstances, it may be appropriate for the lawyer to proceed with the representation when the clients have agreed, after being properly informed, that the lawyer will keep certain information confidential. For example, the lawyer may reasonably conclude that failure to disclose one client's trade secrets to another client will not adversely affect representation involving a joint venture between the clients and agree to keep that information confidential with the informed consent of both clients. 1.7
105. When a lawyer represents a corporation or other organization does the lawyer by virtue of that representation, necessarily represent any constituent or affiliated organization, such as a parent or subsidiary? No. Thus, the lawyer for an organization is not barred from accepting representation adverse to an affiliate in an unrelated matter, unless the circumstances are such that the affiliate should also be considered a client of the lawyer, there is an understanding between the lawyer and the organizational client that the lawyer will avoid representation adverse to the client's affiliates, or the lawyer's obligations to either the organizational client or the new client are likely to limit materially the lawyer's representation of the other client. But, a lawyer for a corporation or other organization who is also a member of its board of directors should determine whether the responsibilities of the two roles may conflict. 1.7
106. When do the Rules permit a lawyer to enter into a business relationship with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client? Only when (1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client; (2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and (3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer's role in the transaction, including whether the lawyer is representing the client in the transaction. 1.8
107. What do the Rules caution about gifts between lawyers and clients? The Rules prohibit a lawyer from soliciting any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client.
108. Can a lawyer make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation prior to the conclusion of representation of a client? No. 1.8
109. Can a lawyer advance a client court costs and other expenses of litigation? Yes, a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter. A lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client; and a lawyer representing an indigent client pro bono, a lawyer representing an indigent client pro bono through a nonprofit legal services or public interest organization and a lawyer representing an indigent client pro bono through a law school clinical or pro bono program may provide modest gifts to the client for food, rent, transportation, medicine and other basic living expenses. 1.8
110. Are there any limitations on a lawyer advance a client court costs and other expenses of litigation? Yes. A lawyer (i) may not promise, assure or imply the availability of such gifts prior to retention or as an inducement to continue the client-lawyer relationship after retention;
(ii) may not seek or accept reimbursement from the client, a relative of the client or anyone affiliated with the client; and
(iii) may not publicize or advertise a willingness to provide such gifts to prospective clients. 1.8
111. How do the Rules govern aggregate settlements of claims and aggregate plea deals? A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client gives informed consent, in a writing signed by the client. The lawyer's disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement.1.8
112. Can a lawyer make an agreement prospectively limiting the lawyers own liability to a client for malpractice? Only if the client is represented by a different attorney with respect to the negotiation of the limitation of liability. 1.8
113. Can a lawyer settle a claim or potential claim for a malpractice liability with an unrepresented client or a former client? Only if that person is advised in writing of the desirability of seeking settlement and is given a reasonable opportunity to obtain the advice of independent counsel.1.8
114. Can a lawyer obtain a proprietary interest in a cause of action or the subject matter of litigation that the lawyer is conducting for a client? No, unless it is a lien authorized by law to secure the lawyers fees and expenses or the contract is with a client for a reasonable contingent fee in a civil case.1.8
115. How do the Rules treat potential conflicts of interest if a lawyer was previously associated with a potentially adverse representation?
A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client whose interests are materially adverse to that person; and about whom the lawyer had acquired information protected by the Rules that is material to the matter unless the former client gives informed consent, confirmed in writing.
A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client. 1.9
116. How does the definition of the scope of the prior matters impact the assessment of whether a conflict of interest exists for an attorney who previously was part of a firm working on matters potentially adverse to a client? The scope of a "matter" for purposes of the Rules depends on the facts of a particular situation or transaction. The lawyer's involvement in a matter can also be a question of degree. When a lawyer has been directly involved in a specific transaction, subsequent representation of other clients with materially adverse interests in that transaction clearly is prohibited. On the other hand, a lawyer who recurrently handled a type of problem for a former client is not precluded from later representing another client in a factually distinct problem of that type even though the subsequent representation involves a position adverse to the prior client. 1.9
117. Why do the Rules offer some flexibility with respect to imputation of conflicts in situations where attorneys have practiced at other firms working on potentially adverse matters? Today many lawyers practice in firms, that many lawyers to some degree limit their practice to one field or another. Many move from one firm to another several times in their careers. If the concept of imputation were applied with unqualified rigor, the result would be radical curtailment of the opportunity of lawyers to move from one practice setting to another and of the opportunity of clients to change counsel. The Rules disqualify the lawyer only when the lawyer involved has actual knowledge of information protected by Rules. 1.9
118. How are conflicts of interest handled in large firms? The Rules allow a firm to avoid a conflict of interest where
(1) the prohibition is based on a personal interest of the disqualified lawyer and does not present a significant risk; or
(2) the prohibition arises out of the disqualified lawyer’s association with a prior firm, and the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom;
(ii) written notice is promptly given to any affected former client to enable the former client to ascertain compliance and
(iii) certifications of compliance with these Rules and with the screening procedures are provided to the former client by the screened lawyer and by a partner of the firm, at reasonable intervals upon the former client's written request and upon termination of the screening procedures. 1.10
119. Are there special limitations for attorneys who were formally public officers or employees of the government? Yes. Generally, a lawyer who has formerly served as a public officer or employee of the government shall not otherwise represent a client in connection with the matter in which the lawyer has participated personally and substantially unless the appropriate government agency gives consent in writing. A firm should treat the lawyer as subject to screening procedures. 1.10
120. Do the conflicts rules for former judges and other adjudicative officers or law clerks follow the rules for former government employees generally? Yes, however in the case of these former officials all parties to the preceding must give informed consent in writing in order for the lawyer to be involved. Otherwise screening procedures are required as well as written notice to any appropriate tribunal to an order it to ascertain compliance. 1.12
121. How should a lawyer representing an organization handle a situation where an officer, employee, or other person associated with the organization is engaged in an act that might be reasonably imputed to the organization and likely to result in substantial injury to the organization? The lawyer should proceed as is reasonably necessary in the best interests of the organization. Usually this means referring the matter to a higher authority inside the organization And, if warranted, to the highest authority that can act on behalf of the organization. 1.13
122. How should a lawyer handle a situation where the escalation of potentially illegal and injurious conduct is not adequately addressed by higher authorities inside an organization after escalation according to the Rules? The rules advise that when the lawyer knows that the organization is likely to be substantially injured by action of an officer or other constituent that violates a legal obligation to the organization or is in violation of law that might be imputed to the organization, the lawyer must proceed as is reasonably necessary in the best interest of the organization. The organization's highest authority to whom a matter may be referred ordinarily will be the board of directors or similar governing body. However, applicable law may prescribe that under certain conditions the highest authority reposes elsewhere, for example, in the independent directors of a corporation. Paragraph (c) of this Rule supplements Rule 1.6(b) by providing an additional basis upon which the lawyer may reveal information relating to the representation, but does not modify, restrict, or limit the provisions of Rule 1.6(b)(1) - (6). Under paragraph (c) the lawyer may reveal such information only when the organization's highest authority insists upon or fails to address threatened or ongoing action that is clearly a violation of law, and then only to the extent the lawyer reasonably believes necessary to prevent reasonably certain substantial injury to the organization. It is not necessary that the lawyer's services be used in furtherance of the violation, but it is required that the matter be related to the lawyer's representation of the organization. If the lawyer's services are being used by an organization to further a crime or fraud by the organization, Rules 1.6(b)(2) and 1.6(b)(3) may permit the lawyer to disclose confidential information. In such circumstances Rule 1.2(d) may also be applicable, in which event, withdrawal from the representation under Rule 1.16(a)(1) may be required. 1.13
123. How should a lawyer handle a situation where the interests of various constituents inside an organization may become disconnected? In such circumstances, the lawyer should advise any constituent whose interests are ad to those of the organization that the lawyer cannot continue to represent such a constituent and that the person should obtain independent representation. 1.13
124. How should a lawyer conduct an attorney client relationship with a client with decision making limitations? In such circumstances, as far as reasonably possible, a lawyer should maintain an ordinary relationship with the client, including when the client's decision making limitations impact the client's ability to provide directions to the lawyer or make reasonably informed choices. However, when the lawyer reasonably believes that the client is at risk of substantial physical, financial or other harm unless action is taken and the client cannot adequately act in their own interests to address the risk, the lawyer may take reasonably necessary protective action. This includes revealing information related to the representation to the extent the lawyer reasonably believes is necessary to protect the client's interests. 1.14
125. In the situation where a client potentially has decision making limitations and wishes to include a 3rd party, how does this impact the lawyer's role? The lawyer should document the role that the 3rd party plays in order to attempt to avoid a waiver of attorney client evidentiary privilege. Nevertheless the lawyer should primarily look to the client not family members and other persons to make decisions on the client's behalf. 1.14
126. How do the rules direct lawyers to treat safekeeping of client property? A lawyer who is in possession of a client's property in connection with the representation must keep that property separate from the lawyer's own property. This means keeping funds in separate accounts and clearly identifying other property in distinct ways. Complete records shall be kept by the lawyer and preserved for a period of 5 years after termination of the representation Upon receiving funds or property in which a client has an interest, a lawyer should promptly notify the client or third person and be prepared to provide a full accounting regarding such property. 1.15
127. Are there any exceptions to the prohibition on commingling a lawyer's own funds with the funds of clients? Yes, it is permissible when necessary to pay bank service charges on an account provided that accurate records are kept regarding which part of the funds are the lawyers. A lawyer is not required to remit to client funds amounts that the lawyer reasonably believes represent fees owed but a lawyer may not hold onto funds in order to coerce a client into accepting the lawyer's contention in this situation where a dispute exists as to the amount of payment.1.15
128. When may a lawyer withdraw from a representation? A lawyer may withdraw from a representation when the withdrawal can be accomplished without material adverse effect to the interests of the client or
the client persists in a course of action that is criminal or fraudulent or the client has used the lawyer services to perpetrate a crime or fraud or
the client insists on taking actions the lawyer considers repugnant or with which the lawyer has a fundamental disagreement or
the client fails to substantially fulfill an obligation to the lawyer regarding services and the lawyer has given reasonable warning of of withdrawal unless the obligation is fulfilled or
the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult or other good cause. 1.16
129. Upon termination of representation, what steps is a lawyer required to undertake? A lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law.
130. What notice is required to clients in the event of a law firm sale? Notice of the proposed sale, the client's right to retain alternate counsel and take possession of the file, and the fact that consent will be assumed after 90 days of receipt of the notice.
131. Can fees charged to clients be increased by reason of a sale? No. 1.17
132. What does it mean that a lawyer acts as an advisor? The lawyer should view themselves as a counselor and exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation. 2.1
133. How does a lawyer Handle a situation where the client will be upset by the advice or will be unwilling to hear it? A lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client. 2.1
134. Is it proper for a lawyer to refer to relevant moral and ethical considerations in giving advice? Yes. Although a lawyer is not a moral advisor as such, moral and ethical considerations impinge upon most legal questions and may decisively influence how the law will be applied. 2.1
135. Should a lawyer consider a client's legal sophistication? Yes. A client may expressly or impliedly ask the lawyer for purely technical advice. When such a request is made by a client experienced in legal matters, the lawyer may accept it at face value. When such a request is made by a client inexperienced in legal matters, however, the lawyer's responsibility as advisor may include indicating that more may be involved than strictly legal considerations. 2.1
136. Are there situations when a lawyer should give a client advice that was not requested? Yes. When a lawyer knows that a client proposes a course of action that is likely to result in substantial adverse legal consequences to the client, the lawyer's duty to the client under Rule 1.4 may require that the lawyer offer advice if the client's course of action is related to the representation. 2.1
137. May a lawyer provide an evaluation of a matter affecting a client for the use of someone other than the client? Yes, if the lawyer reasonably believes that making the evaluation is compatible with other aspects of the lawyer's relationship with the client. But, when the lawyer knows or reasonably should know that the evaluation is likely to affect the client's interests materially and adversely, the lawyer shall not provide the evaluation unless the client gives informed consent. 2.3
138. Is a legal evaluation for the benefit of a third party the same as an investigation for a client? No. A legal evaluation should be distinguished from an investigation of a person with whom the lawyer does not have a client-lawyer relationship. When the lawyer is retained by that person, the general rules concerning loyalty to client and preservation of confidences apply, which is not the case if the lawyer is retained by someone else. 2.3
139. How should a lawyer handle a situation where the ability to investigate facts prior to providing advice is limited? In no circumstances is the lawyer permitted to knowingly make a false statement of material fact or law in providing an evaluation. Any limitations that are material to the lawyer's evaluation should be described in the lawyer's ultimate report. If after a lawyer has commenced an evaluation, the client refuses to comply with the terms upon which it was understood the evaluation was to have been made, the lawyer's obligations are determined by law, having reference to the terms of the client's agreement and the surrounding circumstances. 2.3
140. How should lawyers respond to financial auditors' requests for information? Follow the procedure is set forth in the American Bar Association Statement of Policy Regarding Lawyers' Responses to Auditors' Requests for Information, adopted in 1975. 2.3
141. Can a lawyer serve as a third-party neutral? Yes. When the lawyer assists two or more persons who are not clients of the lawyer to reach a resolution of a dispute or other matter that has arisen between them, e.g. as an arbitrator, a mediator or in such other capacity as will enable the lawyer to assist the parties to resolve the matter. A lawyer serving as a third-party neutral shall inform unrepresented parties that the lawyer is not representing them. When the lawyer knows or reasonably should know that a party does not understand the lawyer's role in the matter, the lawyer shall explain the difference between the lawyer's role as a third-party neutral and a lawyer's role as one who represents a client. 2.4
142. Are there limits to the role of a lawyer as a zealous advocate? Yes, a lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. 3.1
143. Can a lawyer engage in stall tactics to strategically manipulate the judicial process? No. A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client. 3.2
144. What obligations constrain a lawyer's conduct with respect to a tribunal or court? A lawyer has a duty of candor toward the tribunal. A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or (3) offer evidence that the lawyer knows to be false. 3.3
145. How should a lawyer handle the situation where the lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity? The lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false. 3.3
146. How should a lawyer handle a situation where the lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding? The lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. 3.3
147. How do the Rules instruct lawyers to handle access to evidence? With respect to evidence, a lawyer shall not unlawfully obstruct another party' s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act. A lawyer shall not falsify evidence. 3.4
148. How do the Rules govern lawyer conduct with respect to witnesses? A lawyer shall not counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law. A lawyer shall not request a person other than a client to refrain from voluntarily giving relevant information to another party unless (1) the person is a relative or an employee or other agent of a client; and (2) the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information. 3.4
149. Can a lawyer knowingly disobey an obligation under the rules of a tribunal? No, a lawyer shall not knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists. 3.4
150. What Rules limit discovery conduct? In pretrial procedure, a lawyer shall not make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party. 3.4
151. What Rules limit methods of introducing evidence at trial? In trial, a lawyer shall not allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused. A lawyer shall not request a person other than a client to refrain from voluntarily giving relevant information to another party unless (1) the person is a relative or an employee or other agent of a client; and (2) the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information. 3.4
152. How do the Rules limit lawyers' communications with judges and jurors? A lawyer shall not: (a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law; (b) communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order; OR (c) communicate with a juror or prospective juror after discharge of the jury if: (1) the communication is prohibited by law or court order;
(2) the juror has made known to the lawyer a desire not to communicate; or (3) the communication involves misrepresentation, coercion, duress or harassment. Conduct intended to disrupt a tribunal is prohibited. 3.5
153. Are there restrictions on lawyer media communications and publicity about cases or other investigatory matters? A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. 3.6
154. Are there exceptions to the Rules' restriction on lawyer communications and publicity about cases or other investigatory matters? Yes. A lawyer may state: (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. Notwithstanding the above, a lawyer may 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. 3.6
155. Do the Rules governing limitations on communication apply equally to lawyers in a firm or government agency with imputed knowledge of the matter? Yes. No lawyer associated in a firm or government agency with a lawyer subject to communications restrictions shall make a statement prohibited by the Rules. 3.6
156. Can a lawyer act as an advocate at a trial in which the lawyer is likely to be a necessary witness? Generally not. A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless: (1) the testimony relates to an uncontested issue; (2) the testimony relates to the nature and value of legal services rendered in the case; or (3) disqualification of the lawyer would work substantial hardship on the client. However, a lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by the Rules. 3.7
157. What key Rules constrain prosecutorial conduct with respect to the accused? In addition to Rules regarding evidence and wrongful convictions, the prosecutor in a criminal case shall: (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause; (b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel; (c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing. 3.8
158. What key Rules govern prosecutorial conduct with respect to disclosures of exculpatory evidence? A prosecutor shall make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal. 3.8
159. What key Rules govern a prosecutor's ability to subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client? A prosecutor shall not subpoena a lawyer in these circumstances unless the prosecutor reasonably believes: (1) the information sought is not protected from disclosure by any applicable privilege; (2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and (3) there is no other feasible alternative to obtain the information. 3.8
160. What key Rules govern prosecutors' communications? Except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, a prosecutor shall refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under the MRPC. 3.8
161. How should a prosecutor handle the situation when the prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted? In this situation, the prosecutor shall: (1) promptly disclose that evidence to an appropriate court or authority, and (2) if the conviction was obtained in the prosecutor’s jurisdiction, (i) promptly disclose that evidence to the defendant unless a court authorizes delay, and (ii) undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit. 3.8
162. Does a prosecutor have an affirmative duty to correct wrongful convictions? Yes. 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. 3.8
163. Is there anything special about the situation where a lawyer is representing a client before a legislative body or administrative agency in a non-adjudicative proceeding? The lawyer shall disclose that the appearance is in a representative capacity and shall conform to the provisions of Rules. A lawyer appearing before such a body must deal with it honestly and in conformity with applicable rules of procedure. 3.9
164. Does the general rule about lawyers representing a client before a legislative body apply in all situations where a lawyer is representing a client before a government body? No. This Rule only applies when a lawyer represents a client in connection with an official hearing or meeting of a governmental agency or a legislative body to which the lawyer or the lawyer’s client is presenting evidence or argument. It does not apply to representation of a client in a negotiation or other bilateral transaction with a governmental agency or in connection with an application for a license or other privilege or the client’s compliance with generally applicable reporting requirements, such as the filing of income-tax returns. Nor does it apply to the representation of a client in connection with an investigation or examination of the client’s affairs conducted by government investigators or examiners. 3.9
165. What does the duty of truthfulness entail? In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited otherwise by the Rules or law. 4.1
166. Does a lawyer have an affirmative duty to inform an opposing party of relevant facts? No, but a misrepresentation can occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is false. Misrepresentations can also occur by partially true but misleading statements or omissions that are the equivalent of affirmative false statements. 4.1
167. Does the duty of truthfulness involve all information? No. This Rule refers to statements of fact. Whether a particular statement should be regarded as one of fact can depend on the circumstances. Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact. Estimates of price or value placed on the subject of a transaction and a party’s intentions as to an acceptable settlement of a claim are ordinarily in this category, and so is the existence of an undisclosed principal except where nondisclosure of the principal would constitute fraud. Lawyers should be mindful of their obligations under applicable law to avoid criminal and tortious misrepresentation. 4.1
168. How should a lawyer address a situation where the client involves the lawyer in a crime or fraud through a lie or misrepresentation? Ordinarily, a lawyer can avoid assisting a client’s crime or fraud by withdrawing from the representation. Sometimes it may be necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm an opinion, document, affirmation or the like. In extreme cases, substantive law may require a lawyer to disclose information relating to the representation to avoid being deemed to have assisted the client’s crime or fraud. 4.1
169. Can a lawyer communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter? No, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order. 4.2
170. Does the MRPC prohibit communication with a represented person, or an employee or agent of such a person, concerning matters outside the representation? No. For example, the existence of a controversy between a government agency and a private party, or between two organizations, does not prohibit a lawyer for either from communicating with nonlawyer representatives of the other regarding a separate matter. 4.2
171. How should a lawyer handle the situation when the lawyer is dealing with an unrepresented person? If the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client. 4.3
172. Can a lawyer ever engage with an unrepresented person on behalf of a client? The MRPC distinguishes between situations involving unrepresented persons whose interests may be adverse to those of the lawyer’s client and those in which the person’s interests are not in conflict with the client’s. In the former situation, the possibility that the lawyer will compromise the unrepresented person’s interests is so great that the Rule prohibits the giving of any advice, apart from the advice to obtain counsel. Whether a lawyer is giving impermissible advice may depend on the experience and sophistication of the unrepresented person, as well as the setting in which the behavior and comments occur. This Rule does not prohibit a lawyer from negotiating the terms of a transaction or settling a dispute with an unrepresented person. So long as the lawyer has explained that the lawyer represents an adverse party and is not representing the person. 4.3
173. How should a lawyer handle situations where the lawyer has the discretion to embarrass a third party, such as opposing counsel? The MRPC state that
a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person. In particular, a lawyer who receives a document or electronically stored information relating to the representation of the lawyer's client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender. 4.4
174. What is the typical response when a lawyer receives a document in error? General best practice is to notify opposing counsel and delete the document, however in some jurisdictions a lawyer is given discretion to exercise professional judgment. 4.4
175. When is a lawyer responsible for another lawyer's violation of the Rules of Professional Conduct? If the lawyer is (1) a partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm; (2) in a position with direct supervisory authority over another lawyer; (3) the lawyer orders or with knowledge ratifies the conduct; or (4) is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. 5.1
176. What is the standard of care that applies to a lawyer's responsibility over another lawyer's conduct if the MRPC create a duty to supervise? The lawyer shall make reasonable efforts to ensure that measures are in effect sufficient to provide reasonable assurance of conforming to the MRPC. 5.1
177. In a law firm, what are some examples of policies and procedures that are designed to ensure sufficient measures to provide reasonable assurance of conforming to the MRPC? Such policies and procedures include those designed to detect and resolve conflicts of interest, identify dates by which actions must be taken in pending matters, account for client funds and property and ensure that inexperienced lawyers are properly supervised. 5.1
178. Does the size of a law firm inform what constitutes an assessment of reasonable supervision of MRPC compliance? Yes. Additional measures that may be required to fulfill the responsibility of MRPC oversight due to a firm's structure and the nature of its practice. For example, in a small firm of experienced lawyers, informal supervision and periodic review of compliance with the required systems ordinarily will suffice. In a large firm, or in practice situations in which difficult ethical problems frequently arise, more elaborate measures may be necessary. 5.1
179, Do law firms ever create whistleblower avenues internally for MRPC noncompliance? Yes. Some firms have a procedure whereby junior lawyers can make confidential referral of ethical problems directly to a designated senior partner or special committee. 5.1
180. How does the MRPC determine whether a supervision duty existed in a situation that is ambiguous? Whether a lawyer has supervisory authority in particular circumstances is a question of fact. Partners and lawyers with comparable authority have at least indirect responsibility for all work being done by the firm, while a partner or manager in charge of a particular matter ordinarily also has supervisory responsibility for the work of other firm lawyers engaged in the matter. 5.1
181. How do the Rules determine appropriate remedial action by a supervisor in an instance where a lawyer under supervision has engaged in a violation of the Rules? Appropriate remedial action by a partner or managing lawyer would depend on the immediacy of that lawyer's involvement and the seriousness of the misconduct. A supervisor is required to intervene to prevent avoidable consequences of misconduct if the supervisor knows that the misconduct occurred. Thus, if a supervising lawyer knows that a subordinate misrepresented a matter to an opposing party in negotiation, the supervisor as well as the subordinate has a duty to correct the resulting misapprehension. 5.1
182. Is a failure to adequately supervise an independent violation of the rules even if the supervisor has not expressly ratified the violation? Yes. Professional misconduct by a lawyer under supervision could reveal a violation of supervisory lawyer even though it does not entail direction, ratification or knowledge of the violation. 5.1
183. If a supervising attorney instructs a subordinate to engage in conduct violating the MRPC, is the subordinate responsible for the conduct? Yes.
A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person if the lawyer knows or should know that the conduct is prohibited by the MRPC. However, if the duty under the MRPC is ambiguous or not clear, a subordinate lawyer does not necessarily violate the Rules if that lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty. 5.2
184. When is a lawyer responsible for the conduct of as non-lawyer under the lawyer's supervision? A lawyer is required to make reasonable efforts to ensure that the lawyer or the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer. A lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if: (1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. 5.3
185. To what degree are lawyers required to supervise their assistants in day-to-day tasks? A lawyer must give such assistants appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to representation of the client, and should be responsible for their work product. The measures employed in supervising nonlawyers should take account of the fact that they do not have legal training and are not subject to professional discipline. 5.3
186. Can lawyers hire various external third party non-lawyers outside the firm hired in connection with rendering legal services to the client? To what degree are lawyers required to supervise them? Yes. A lawyer may use nonlawyers outside the firm to assist the lawyer in rendering legal services to the client. Examples include the retention of an investigative or paraprofessional service, hiring a document management company to create and maintain a database for complex litigation, sending client documents to a third party for printing or scanning, and using an Internet-based service to store client information. When using such services outside the firm, a lawyer must make reasonable efforts to ensure that the services are provided in a manner that is compatible with the lawyer’s professional obligations. The extent of this obligation will depend upon the circumstances, including the education, experience and reputation of the nonlawyer; the nature of the services involved; the terms of any arrangements concerning the protection of client information; and the legal and ethical environments of the jurisdictions in which the services will be performed, particularly with regard to confidentiality. When retaining or directing a nonlawyer outside the firm, a lawyer should communicate directions appropriate under the circumstances to give reasonable assurance that the nonlawyer's conduct is compatible with the professional obligations of the lawyer. 5.3
187. How is this duty of supervision of non-lawyer third parties handled when the client directs the selection of the services provider? Where the client directs the selection of a particular nonlawyer service provider outside the firm, the lawyer ordinarily should agree with the client concerning the allocation of responsibility for monitoring as between the client and the lawyer. 5.3
188. Is a lawyer allowed to share legal fees with a non-lawyer? No. In general, a lawyer or law firm shall not share legal fees with a nonlawyer. 5.4
189. Why do the Rules prohibit fee sharing? These limitations are to protect the lawyer's professional independence of judgment. Where someone other than the client pays the lawyer's fee or salary, or recommends employment of the lawyer, that arrangement does not modify the lawyer's obligation to the client. 5.4
190. Are there exceptions to the Rule that a lawyer is not allowed to share fees with a non-lawyer? Yes. If (1) Through an agreement allowing post-mortem payment to the lawyer's estate or to one or more specified persons; (2) In the case of a lawyer who purchases the practice of a deceased, disabled, or disappeared lawyer may pay the purchase price to the estate or other representative of that lawyer; (3) a lawyer or law firm may include nonlawyer employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement; and
(4) a lawyer may share court-awarded legal fees with a nonprofit organization that employed, retained or recommended employment of the lawyer in the matter. 5.4
191. Can a lawyer form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law? No. 5.4
192. How do the Rules limit financial influence on professional judgment? A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering such legal services. Also, a lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if: (1) a nonlawyer owns any interest therein, except that 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 corporate director or officer thereof or occupies the position of similar responsibility in any form of association other than a corporation ; or (3) a nonlawyer has the right to direct or control the professional judgment of a lawyer. 5.4
193. What circumstances constitute unauthorized practice of law under the MRPC? A lawyer may practice law only in a jurisdiction in which the lawyer is authorized to practice. A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so. In particular, a lawyer who is not admitted to practice in this jurisdiction shall not: (1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or (2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction. 5.5
194. How is the "practice of law" defined according to the MRPC? The definition of the practice of law is established by law and varies from one jurisdiction to another. A lawyer must not hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction. 5.5
195. Are there any exceptions to the MRPC approach to unauthorized practice of law?
A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that:
(1) are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter;
(2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized;
(3) are in or reasonably related to a pending or potential arbitration, mediation, or other alternative resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission; or
(4) other circumstances that arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice. 5.5
196. How does the authorized practice of law restriction under MRPC apply to in house counsel? Lawyers licensed and in good standing in one jurisdiction may lawfully practice as an in-house counsel under the laws of a foreign jurisdiction, may provide legal services through an office or other systematic and continuous presence in this jurisdiction that: (1) are provided to the lawyer's employer or its organizational affiliates, are not services for which the forum requires pro hac vice admission; and when performed by a foreign lawyer and requires advice on the law of this or another U.S. 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; or
(2) are services that the lawyer is authorized by federal or other law or rule to provide in this jurisdiction. 5.5
197. Is there a single test to determine whether a lawyer’s services are provided on a “temporary basis”? No. The facts and circumstances are analyzed as a whole. Systematic presence in a jurisdiction for the purposes of rendering legal services is generally a problem under the MRPC. 5.5
198. Does the exception allowing legal services provided on a temporary basis extend to allowing communications advertising legal services of lawyers admitted in other jurisdictions? No. 5.5
199. Can law firms restrict lawyers from practicing law upon termination of the relationship as a condition of joining the firm? No. A lawyer shall not participate in offering or making: (a) a partnership, shareholders, operating, employment, or other similar type of agreement that restricts the right of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement. 5.6
200. Can a settlement agreement contain a restriction on the lawyer's right to practice as part of the settlement of a client controversy? No. 5.6
201. Can a lawyer avoid being subject to the MRPC by providing law-related services through a separate entity? Generally not. If the circumstances that are not distinct from the lawyer's provision of legal services to clients, the MRPC control. If the services are provided through an entity controlled by the lawyer individually or with others if the lawyer fails to take reasonable measures to assure that a person obtaining the law-related services knows that the services are not legal services and that the protections of the client-lawyer relationship do not exist, the MRPC control.
202. How does the MRPC define the term "law-related services"? It denotes services that might reasonably be performed in conjunction with and in substance are related to the provision of legal services, and that are not prohibited as unauthorized practice of law when provided by a nonlawyer.
