Unauth practice of law

· prohib from

· practicing law in jxd where doing so violates regulaxn of the legal profession in that area

· assisting a person who ≠ mbr of bar in performnc of activity that consistitutes unauth practice of law

· * misdemeanor to practice law without being mbr of bar

· LTD EXC. where professional jdgmt not required

· MJP

· lawyer not licensed in the jxd prohib from

· open a law office in the state

· hold self out as practicing in the other state

· estab a systematic or continuous presence in other state without being licensed in the state

· lawyer MAY TEMPORARILY

· association with local lawyer

· get special permission to pratice in local tribunal

· engage in ADR IFF services arise out of practice in state in which licensed

· other temptorary practice arising out of practice in home state

· lawyer may PERMANENTLY open office and estab practice IFF

· lawyer is salaried employee of only client

· legal srvcs auth by fedl or local law

· break rules à punishmt in both states

· * CA rules = stricter

· oo-state lawyer who acts as inhouse counsel must still register, pay dues, comply with measures bt dne have to be licensed. cne make G apprncs

· oo-state lawyer may pract in CA for mnt 3 yrs without passing Bar IFF working under close supervision of lic atty, pay dues, comply with measures. may not do so if fail B.E. within 5 yrs.

· lawyer practicing with non-lawyer

· may not practice law in assoc with or share fees with non-lawyer

· firms: non-lawyer may not own interest; be partner, officer or director; or have rt to direct lawyer’s prof jdgmt

Estab’g the Legal Practice

· firm names cne be misleading

· in assoc with non-lawyer

· non-lawyer may not be a partner

· no sharing of legal fees

· EXC.

· agrmt to provide for pymt of money over reas period of time after lawyer death to lawyer x to persons

· pymt of purch price of law practice to x of deceased or disabled lawyer

· paymts pursuant to comp or retirement plan

· sharing G-awarded legal fees with non-prof org that employed or recmd emplymt of lawyer in mater

· lawyer must exercise indep jdgmg

· supervising/subordinate lawyer

· supervising - responsib for another lawyer’s violation of rules IFF

· lawyer orders or ratifies the conduct involved

· lawyer is partner or similar manager in which other lawyer practices

OR had direct supervisory authority over the lawyer

AND knows of conduct at time when its consequences can be avoided or mitigated

AND fails to rake reas remedial action

· * proib from assisintg in, inducing, soliciting an ethis violation by another person. if one mbr of firm commits viol, other mbrs of firm can be disciplined if they approved of or knew about and did nothing to prevent

· subord lawyer- bound by ethical rules notwithstd the lawyer acted at direction of another person

· lawyer cne enter agrmt to limit right to practice after termination of employment

· sale of practice – MAY do so [all or part] IFF

· sold to one or more lawyer of firm

· seller ceases competing prvt practice of law in geo area in which fmrly practiced

· client fees dne increase :: of sale

· seller notifies ea client of sal and of client’s rt to hire diff lawyer or take poss of their file

· * CA rules

· notice to client reqmts more complicated

· dne req seller to cease practicing in the area, but a cntc valid

· sale of " or subst " - not part

· subst " provision allows seller to retain a few client who pose conflict of inter for purch or who have long relxnshp with seller

Lawyer marketing

· advertising – comunication to public at large

· may not be false or misleading

· contains matl misrep of law or fact, OR

· omits info that nec to make communic as a whole not matly misleading

· must incl id of advertiser

· must not pay people to recommend him

· reciprocal referral arrgmts – OK with another lawyer or non-lawyer professional IFF arrgmt not c AND lawyer explains arrgmt to client when making referral

· * further ad rules – communic cne contains

· guarantee or warty as to outcome of case

· suggest quick cash or quick settlmt

· impersonation of lawyer or client without disclosure

· dramatization of accident of other event without disclosure

· contingent fee offer that dne warn client who loses case that still must pay litig costs if that’s part of arrgmt

· * communications that are PRESUMED TO BE FALSE or MISLEADING

· com deliv to potential client in hospital or suffering from phys of mental stress

· mailings that seek fee-paying work that are not clearly labeled as advert matl

· communics containing testimonials or endorsements without disclaimer that testims or endorsements are NOT A PROMISE ABOUT THE RESULTS of potential client’s case

· solicitation – individual contact with lay person desined to entice layperson into hiring the lawyer

· in-person solicitation may be banned

· lawyer may not seek fee-paying work by initiating personal or live telephone contact, or r/t e- contact with prospective li who is not a lawyer, and with whom lawyer has no personal, family, or prior professional connectin

· lawyer MAY send truthful targered dir mail solicitation to persons known to face specific legal problems U/L lawyer has actual knldg that client dne wish to rec communics

Entering lawyer/client relxnshp

· lawyer must not seek to avoid appt by tribunal u/l $ good cause to do [extreme financial burden, etc.]

· avoiding confl of int

· concurrent – must avoid rep

· rep of client will be directly adverse to rep of another client

· signif risk that rep of client will be matly ltd by pers interests or by interest of another client, fmr client, thrd person

· client consent

· lawyer reas belvs that can competently and diligently rep ea aff’d client

· rep not prohib by law

· rep dne involve the assertion of claim by one client against another client who is rep’d by lawyer in same case pending before a G or other trib

· ea aff’d client gives informed, wrtn consent

· o/s lawyer would look at fact and advise client to accept

· imputed confl of int

· usu if one lawyer is conflicted out, " lawyer in firm are conflicted out

· EXC

· conflicts caused by fmr, current govt lawyer

· conflict caused by purely personl interest of l a

· conflict caused by lawyer’s close family relxnshp with another lawyer who is rep’g diff client in matter

· conflict caused by lawyer sex relsnxhp with client

· client may give informed, written consent to rep

· specific conflicts

· oship or fin interest adverse to client – CONSENTABLE IFF

· xaction and terms which lawyer acquires int are fair and reas to client

· fully disclosed and xmitted in wrtg to the client in manner undertsandbale to client

· client is advised to seek indep counsel

· client understands lawyer roles and gives informed wrtn consent

· media rights based on rep

· lawyer may not make К dur rep

· * lawyer may make К dur rep IFF client understands and consents and Л finds it fair

· financial asstnc to client

· G costs and expenses of litigation

· pay on behalf of client for indigent client

· * cne “buy” client by paying a loan

· * lawyer make any loan after hired IFF client gives wrtng IOU

· rec’g comp from person other than client – NO U/L

· client gives informed wrtn consent

· no interefeerence with lawyer’s indep jdgmt

· info reltd to client is protected

· limit malpractice liab – NO U/L client indep represented

· proprietary int in cause of axn – NO U/L

· acquire lien auth by law to secure fee or expenses

· К with client for reascontingent fee in civil case

· sex with client

· IFF not already having sex, cne have sex with clu

· * cne deman sex as condxn of rep, enter into sex with coercion or duress, rep client incompetently :: sex rlxnshp

· confl of int with fmr client

· may not rep another client in same or subst reltd matter if client’s interests are matly adverse to ints of fmr client, U/L fmr client gives informd wrtn consent

· may not reveal info gathered from prev client rlxnshp

· trial counsel as wit

· β reltated to uncontested matter

· β will concern only nature and value of legal servcs rendered to client

· if wrdl of trial counsel for purp of β would result in subst hardship to client

· * may not β before jury U/L uncont matter, nature/srvs, client consent

· corp rep

· rep the corp, not the indivs

· may also rep dirs, ofcrs, etc.

· SOX

· reporting L of matl viol of fedl or state secty law to CLO

· investigation by CLO – if viol found, appropriate response reqd

· if appropr respons not taken, lawyer must report L to either bod or cmtee of o/s dirs

· may reveal confid info to SEC to prevent viol, rectify fin injury if lawyer’s servs yused to further viol, prevent client forom comt or suborning perjury

· fmr/curr govt ofcrs and emyees

· may not rep client in matter in which participated personally and substantially as govt ofcr or employee, U/L agency gives infrmd wrtn consent

· DQ govt lawyer must be screened/eth wall before other lawyer can rep

Compensation for legal services

· fee agrmt – IFF not rep’d before – must be communic to client [oral or wrnt] before or within reas time after commencing rep.

· * wrtn fee agrmt where fees to exceed $1000 U/L

· client is corporation

· client states in wrtg that dne want wrtn fee agrmt

· legal services same for kind of services tht client prev recd and pd for

· lawyer acted in emergency to protect client rts

· wrtg impractical for other reasons

· fee must be reasonable

· time

· skill

· labor

· experience, ability, reput of lawyer

· * not unconscionable

· contingent fees

· wrtg

· s/ client

· state method by which fe determined

· PROHIB in domestic rlxnsp matter, crim D cases

· if later discharged, get reas fees based on value of servcs perfmd and whether client winds

· referral fees

· prohib

· * may pay fees to o/w lawyer who referred client IFF

· client knows all terms

· consents in wrg

· total fee not unconscionable

· not increased :: of referral fee

· fee splitting

· see * rules above

· may divide fees with lawyer if div in proportion to servcn perfmrc by ea lawyer OR ea lawyer assumes joint responsibility for rep

· fee split in wrtg

· consented to by client

· fee reasonable

Lawyer responsib to client

· competence and care

· diligence and promptness

· duty of confid - cne reveal anything reltd to representation of a client

· EXC.

· consent of client

· crimes

· fraud, financial crimes

· MAY reveal IFF client is using lawyer servcs to commit crime, AND

· disclo would prevent or mitigate substantial financial loss

· * NO EXCEPTION – CNE REVEAL

· death or subst bodily harm

· MAY reveal ONLY what’s necessary to prevent act,

· IFF reas believe disclo necessary to prevent the certain death or subst bodily harm

· * IFF reas in circs, MUST

· make good faith effort to persuade client not commit act, AND

· inform client of decsn to reveal the confidence

· defending own services

· see also, lawyer-client prvlg [L]

· duty to protect client P

· sept trust acct

· keep records

· keep client infored and deliver p when entitled to rec

· if dispute over amt, hold disputed amt only, return the rest

· no commingling of own funds

· may “mix” funds in client trust accts IFF the accts are small and records kept

· scope of representation

· client à goals, objectives

· lawyer à tactics and strategies

· lawyer may NOT rep client who is engaged in crim/ethical violtions

· lawyer must wdraw

· lawyer MAY reveal as much as necessary to prevent, rectify, or mitigate injury if the lawyer’s advice has been used to further the crime

· lawyer MUST reveal if it’s the only way lawyer can avoid asstg client’s crime

· MAY discuss proposed course of conduct with client, and explain that it would be unlawful. MAY NOT recommend illegal conduct or instruct client on how to break the law and get away with it

Relxns with adverse parties

· represented person

· communic PROHIB even iff person consents

· apply IF KNOW represented

· corporation

· lawyer must get consent of org’s counsel before communic’g with constituent of the organization

· DNE apply to speaking with FMR mbrs of corp as long as dne break any current rules

· unrep person

· MAY communicate directly IFF

· dne state directly or indirectly that disinterested

· clears up miunderstdgs about role in the matter

· dne give advice other than to obtain counself if knows that client interests have reas chance of being adverse to those of unrep person

· respect 3^rd persons [dne harass]

· rec doc inadvertently, must promptly notify sender and allow them to rectify

· truthfulness in stmts

· must not KNOWINGLY

· make false stmt of matl fact or law to 3^rd person

· fail to disclose matl fact when disclo nec to avoid asstg crim by client UNLESS prohib stmt [confid]

Litigation

· no frivolous claims or defenses

· reas efforts to expedite litigation consistenet with interests of client

· candor to tribunal

· must not KNOWINGLY

· make false stmt of mtl fact or law

· fail to correct false stmt fo matl fact or law prev made to tribunal made by lawyer

· fail to disclose controlling legal auth directly advese to pos and not disclo by opp counsel

· NOTE: dne have to disclo harmful facts

· offer false L

· allow wits to β as to truthful parts, not untruthful parts

· client insists on perjury:

· counsel against

· dne offer

· if client still offers, MAY ask to be wdrawn from case but not reqd to do unless the relxnshp has beome so strained such that compet rep impossib

· * crim D client – IFF after all that, lawyer knows client going to β falsely, question in regular fashion up until the false prt, then allow the D to β in narrative form. dne use the false β in closing arg.

· lawyer may refuse to enter L reas blvd to be false EXC for β of crim D in case

· if L offered, lawyer must take remedial measures

· get client coop in wdrawing flase L

· ask tribn for permsn to wdraw

· must disclose enough info to tribunal to set the matter straight

· à then tribunal decides what to do

· fairness to opposing party – must not

· unlawfully obstruct access to L

· falsify β

· knowingly disobey obligation

· make frivolous discvry requests

· in trial,

· allude to any matter tht lawyer dne reas believe is relvnt OR

· wne be supported by admsbl L

· assert prs knldg of facts at issue

· state pers opinion as to justness of cause, credib of with, culpability of civl litigant, or guit/innocence of accused

· request a peson other than client to refrain from voluntarilyt ginving relvnt info to party U/L

· person = reltv of employee or agent of client AND

· lawyer reas blvs the person’s interests wne be adversely affected by refraining from giving such info

· * threaten to bring axn to gain advtg in civil dispute

· avoid improper contact with jurors and G

· trial publicity – may not make extra-Л stmt that lawyer s/knows will be dissem by means of pub communic AND will have subst likhood of matly prejudicing a procdg

· MAY make stmt that lawyer reas bwlv reqd to protect client from subst undue prejud effect of recent publicity NOT initiated by lawyer or client

Termination of lawyer-client relxnshp

· mandatory wdral

· rep will result in viol of ethics or law

· lawyer phy or mental condxn mtly impairs lawyer ability to rep client

· lawyer discharged

· permissive wdral

· accompl without matl adverse effect on interest of client [* NOT IN CA]

· client persis in crs of axn involving lawyer services that lawyer reas believes is crim or fraudulent

· client has used lawyer services to perpetrate crime or fraud [* NOT IN CA]

· client insists upon taking axn that lawyer considers repugnant or with which lawyer has fund disagrmt

· client fails to subst fufilfill oblig to lawyer re lawyer services and has giving reas warning that lawyer will widraw unless oblig fulfilled

· rep result in unreas finance burden on lawyer [*NOT IN CA]

· other good cause for wdral

Lawyer duties to the profession

· conduct when not practicing adhere to same stds as when practicing [ie nmay be subj to discip for violating eth stds even when not practicing]

· special rules for public Â

· refrain from  charge that  knows not suprtd by prob cause

· maek reas efforts to assure the accused has been dvised of rt to counsel and given reas oppty to obtain counsel

· not seek to obtain from unrep accused a waiver of important pretrial rights

· make timely disclo to D of " L or info known to  that tends to negate guilt of accused or mitigate the offense

· exercise reas care to prevent investigators or others assisting the  in crim case from making an extraЛ stmt aht  would be prohib from making

· not subpoena a law to present L against a client U/L Â reas belivs

· info not prvlgds

· L essential

· no feasible alternative

· reporting professional misconduct

· lawyer who knows another lawyer has comtd viol of RPC that raises subst question as to lawyer’s honesty or fitness as law in order respects MUSt inform authority

· * not reqd to report misconduct by another lawyer .

· * must report themselves WHEN

· sued for malpractice 3x in 12 mos

· found civilly liab for breach of fiduc duty or fraud or ≈

· sanctioned for more than $1k [except for discovery sanctions]

· charged with a felony

· convicted of certain serious crimes

· disciplined in another jxd.