BAR ADMISSION AND DISCIPLLINARY MATTERS [8.

1]
CHARACTER FITNESS INQUIRY
In order to obtain Bar Admission, an applicant must demonstrate by clear and convincing evidence, that the
candidate possesses good moral character and general fitness1 to practice law. The admission committee
evaluates various factors when making its final decision during the Character Fitness Inquiry. See, In Re
Mustafa (holding that petitioner possessed good moral character and general fitness to practice law despite his
withdrawal of his moot teams funds, when considering petitioners academics, volunteering activities, and the
fact that he returned the money).
MUST TELL TRUTH TO THE BAR [8.1]
Under MRPC 8.1 an applicant or lawyer in connection with a bar application or disciplinary matter cannot:
(a) knowingly make a false statement of material fact; or (b) fail to disclose a fact necessary to correct a
misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful
demand for information from an admission or disciplinary authority.
Here, ___ is an applicant/lawyer in connection with the bar admission application or disciplinary matter because
___.
___ did/not (a) knowingly make a false statement of material fact because ____ is/not material.
Further, ___ did/not (b) fail to disclose a fact necessary to correct a misapprehension because ____.
___ was fully aware/knew about ___ and failed to correct the known misapprehension.
However, ___ will say that that ____ only has a duty to disclose information asked of them, not to
volunteer the information.
Here, ____ will correlate the request for a volunteer of information which they are not bound to do.
Also, ___ is/not a lawful demand of information because ____. ___ only has to divulge information
about themselves, not others. Examples of unlawful demands of information include sealed documents,
medical records or employment records, or information that would violate constitutional rights.
However, ____ can argue that the demand is lawful because it relates to anyone in the connection with
the bar application/lawyer. Moreover, the duty to disclose also requires the correction of any prior misstatement
or affirmative clarification.
Here ___ would/not be an affirmative clarification because ____. Thus, MRPC 8.1 does/not apply.
MALPRACTICE
In a malpractice suit, the client must demonstrate they would have prevailed in the underlying matter
but-for the attorneys conduct. Therefore, if the client would have lost, then they would not prevail in
malpractice.
Here, the client was involved in a civil/criminal case, with a cause of action for __________.

BREACH OF FIDUCIARY DUTY

An attorney may also be liable for a breach of fiduciary duty. The Third Restatement provides a list of
such duties which include: Safeguarding the clients confidences and property; Avoiding impermissible
conflicting interests; Adequately informing the client; Following instructions of the client; Not employing
1 Generally, admissions are denied for sex with minors, patterns of hostile and disruptive conduct, academic cheating, racist opinions,
criticism of the bar, and even disputed allegations of misconduct during law school or clerkships. However, admissions have been
accepted for manslaughter convictions due to the convict reforming and serving their time, shoplifting and misrepresentation of debt,
declaration of bankruptcy, pornography, too much debt.

adversely to the client powers arising from the client-lawyer relationship; and, Disqualification for conflicts of
interest.
Here, __________ may/not have a claim for breach of fiduciary duty by _________________.

DISCIPLINE WHEN THERES CHOICE OF LAW [8.5]

Discipline (a):
Under MRPC 8.5 (a) an attorney who violates the MRPC may be subject to discipline in a jurisdiction even if
the violation did not occur there. An attorney not admitted in a jurisdiction is subject to discipline if he provides
or offers to provide legal services there as well. Further, the attorney can be disciplined in multiple
jurisdictions, even if only admitted to one.
Choice of Law (b):
Subsection (b) provides that an attorney can be disciplined under the rules of a pending tribunal, unless the
tribunal prohibits it. Additionally, for any other misconduct, the rules of the jurisdiction where the violation
occurred, or if the predominant effect of the misconduct is in different jurisdiction, the rules of that jurisdiction
is applied.
Therefore, the client was/not prejudiced and may/not succeed in a malpractice claim.

DUTY TO PROTECT CLIENT CONFIDENCES

CONFIDENTIALITY OF INFORMATION [1.6]
An attorney may not reveal confidential client information relating to representation; including potential,
current, and former clients.
MRPC 1.6 provides that an attorney cannot reveal information about client representation, unless the client
gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the
disclosure is permitted by subsection (b). The duty applies to disclosures that do not themselves reveal
protected information but could reasonably lead to the discovery of such information by a third party.
Further, under MRPC 1.6 (c), an attorney must also make reasonable efforts to prevent inadvertent or
unauthorized access to information related to the representation of a client. This duty continues after the
attorney-client relationship ends.
An attorney does not violate subsection (c) if they make reasonable efforts to prevent the access or
disclosure; factors determining reasonably efforts include: sensitivity of information, likelihood
disclosure if additional safeguards are not employed, the costs, difficulty of implementing, and the
extent to which the safeguards adversely affect the attorneys ability to represent clients.
When transmitting communication that includes information about the case or client, the attorney must
take reasonable precautions to prevent the information from falling into the hands of unintended
recipients. Reasonableness of the precautions depend on the attorneys expectation of confidentiality,
sensitivity of information, the extent to which the privacy of the communication is protected by law or
confidentiality agreement.
1.6(b) Exceptions - Can reveal Confidential Information
MRPC(b) provides that an attorney may reveal information the extent the attorney reasonably believes
necessary in certain circumstances. However, the attorney must attempt to obviate the need for the disclosure.
An attorney may disclose if an exception under subsection (b), but does not violate the model rules if the
attorney opts to not disclose.
1.6(b)(1) Exceptions Prevent Certain Death or Subs Bodily Harm
Under subsection (b)(1) an attorney may reveal information relating to the representation of a client to the
extent the lawyer reasonably believes necessary to prevent certain death or substantial bodily harm. The
harm must be reasonably certain to occur if: (i) it is imminent; or, (ii) there is a present or substantial threat
that a person will suffer from such harm at a later date if the attorney fails to take action to eliminate the
harm. An attorney may disclose whether the harm is caused by the client or a third party, even if the client
requests no such help.
Furthermore, Courts have held that attorneys do not break this duty to their client when they provide
reasonably necessary information for use as leverage in plea bargain negotiations provided that the
harm is not reasonably certain to occur. See People v. Belge (attorneys did not break confidences
when they divulged they knew the location of a serial killers victims bodies in order to get a plea
bargain, since the serial killer was in jail and the victims were already dead).
`

However, in some circumstances, attorneys may be motivated to divulge information to third parties
when there is a harm is certain to occur. Courts have vacated decisions when there was significant
knowledge by counsel that a present or substantial threat that the opposing settlor will suffer harm
at a later date. See, Spaulding v. Zimmerman (opposing counsel had medical knowledge that he did not
disclose to the victim, that there was substantial threat victim would later suffer a great substantial
harm).

1.6(b)(2) Prevent Crime or Fraud

Under subsection (b)(2) an attorney may reveal information relating to the representation of a client to the
extent the lawyer reasonably believes necessary to prevent (future or present) crime or fraud2 from causing
substantial injury to the financial or property interests of another in furtherance of which the client used or
sought attorney services. A client can prevent disclosure by refraining from the crime or fraud and the attorney
can convince the client to refrain from engaging in the criminal or fraudulent conduct.
1.6 (b)(3) Prevent/Mitig/Sub inj. to $ interest or property of another
Under MRPC 1.6 (b)(3), a lawyer may reveal information relating to the representation of a client to the extent
the lawyer reasonably believes necessary 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 clients (past)
commission of a crime or fraud in furtherance of which the client has used the lawyers services. This
subsection addresses situations when an attorney learns of a crime or fraud after its occurrence and at the time it
can be prevented, rectified or mitigated. It does not apply in situations when the client commits a crime and
later seeks services.
1.6 (b)(4) to Secure Advice
Under MRPC 1.6 (b)(4) an attorney may reveal information relating to the representation of a client to the
extent the lawyer reasonably believes necessary for securing advise (such as how to comply with MRPC; can
be used as a defense).
1.6 (b)(5) When Atty v. Client Dispute
Under MRPC 1.6 (b)(5) an attorney may reveal information relating to the representation of a client to the
extent the lawyer reasonably believes necessary during a controversy between the attorney and client. The
attorney should first try to persuade the client to take suitable action to prevent the need to disclose. The
disclosure should be greater than the attorney reasonably believes necessary to accomplish the purpose of
disclosure; and if during a judicial proceeding, the attorney should be made in a manner that limit acces to
information such as requesting a protective order, access to the tribunal itself, or seek other arrangements.
For example, if the purpose is to collect unpaid attorneys fees or defend against malpractice suit, the
attorney is limited to reveal information to the extent it serves that purpose.
Finally, the attorney need not wait for the time a complaint is file before his right to defend applies.
1.6 (b)(6) Comply with Law or Court Order
Under MRPC 1.6 (b)(6), an attorney may reveal information relating to the representation of a client to the
extent the lawyer reasonably believes necessary to if comply with the law or a court order. A law or order
may require him to reveal client information, and in that even the law or order trumps the confidence. For
example, the Sarbanes-Oxley act allows disclosure of client fraud up through the corporate ladder to the SEC.
1.6 (b)(3) to Detect and Resolve Conflict or Interest
Under MRPC 1.6 (b)(7), an attorney may reveal information relating to the representation of a client to the
extent the lawyer reasonably believes necessary to detect and resolve conflicts of interest arising from
attorneys change of employment or from changes in the composition or ownership of a firm. However,
2 A Fraud is conduct which is fraudulent under the procedural or substantive law of a jurisdiction, the purpose of which is to deceive.
Fraud is therefore not merely negligent conduct or failure to appraise someone of relevant information; the conduct must have a
deceitful purpose.MRPC 1.2 (d) Prohibits Fraud and provides that an attorney shall not assist or advise client to engage in
criminally fraudulent conduct. The attorney may not suggest how the wrongdoing can be concealed. Nor can the attorney continue
assisting the client in the fraud if he discovers that conduct that he previously believed to be proper constitutes a fraud. In such a
case, the attorney must drop the client, and sometimes even give notice of withdrawal, disaffirm opinions, documents or other
affirmations.

an attorney may only do so if the revealed information would not compromise Attorney Client Privilege, or
otherwise prejudice the client.
In a circumstance where the attorney considers moving to another firm, two or more firms consider a
merger, or an attorney considers buying a practice, attorneys and law firms can disclose limited information but
only once substantive discussions about the new relationship have occurred.
[HYPOTHETICAL DEFENSE]
However, an attorney may pose a hypothetical under while representing a client, so long as another person
cannot reasonably identify the client.

Attorney Client Privilege

The Attorney-Client privilege is an evidence doctrine which bars the discovery of communications between a
client and attorney made in confidence for the purpose of obtaining legal advice and may be waived. The
doctrine applies to judicial and other proceedings in which an attorney may be called as a witness or otherwise
required to produce evidence concerning a client, but privilege only protects the confidential communication,
not the underlying information. The privilege also exists after the clients death. Swidler Berlin v. United
States.
The privilege exists when: (1) there was a communication (2) made in confidence (3) between a client or
someone soliciting an attorneys services (4) and an attorney or attorneys agents (5) for the purpose of
obtaining legal assistance.
Extends - Corporate and Government clients
The privilege extends to corporate and government clients as well as individuals. It applies to in-house
counsel and independent attorneys. However, the information cannot be funneled to corporate lawyers to
invoke privilege. The privilege extends to communications with any management or lower-echelon employee
or agent provided that it relates to subject matter of representation, regardless of who was communicating.
Upjohn.
Further, an attorney representing a corporation or agency can invoke the privilege when the organization
is involved in the matter, but the privilege may not extend in a matter involving only an individual
officer.
Waiver
Unlike an attorneys Duty of Confidence under MRPC 1.6, however, the privilege can be waived. The client
waives by revealing the privileged information to a non-privileged person, even if it is a co-client in a common
case.
The attorney waives if the client authorizes it through expressed or implied waiver or by divulging the
privileged information to a third party. If the disclosure was inadvertent and the attorney took reasonable
steps to prevent the inadvertent disclosure from happening and seeks to reclaim the material within a short time,
courts often excuse the conduct and rule that the privilege has not be waived. Under MRPC 4.4(b), the
recipient attorney must notify the opponent of the inadvertently disclosed material.
No Priv for: Client ID; Public Information. Future Crime or Fraud
A clients identity, public information, and information regarding clients request for assistance with crime or
fraud is not privileged. However, if the attorney successfully dissuades the client from committing future crime
or fraud, then the communication is privileged.
Attorney Can Disclose
The privilege does not preclude an attorney from disclosing confidential client communications to protect his
own interests (malpractice, disciplinary hearing), to collect client fees, or to comply with a court order.
May Be No ACP When Not acting Primarily as Atty
when an attorney is not acting primarily as an attorney but, for instance, as a business advisor, member of
the Board of Directors, or in another non-legal role.
Probate
Confidential communications between an attorney and testator may be disclosed for the purpose of
proving intent of decedent in a will. In certain cases, the client may desire or consent to revelation of personal
or family secrets only after his death. Further, Courts have occasionally revoked the privilege after the death of
the client if it deems that it serves a clients intent, such as in the case of resolving testamentary disputes among
heirs.

Privilege related to tax practice

Communication between a client and an attorney doing taxes will not create a valid privilege because it
involves business or accounting advice rather than legal advice.
WORK PRODUCT DOCTRINE
The Work Product doctrine protects notes and other materials that a lawyer prepares in anticipation of
litigation from discovery in pretrial civil proceedings. However, the underlying information is not protected.
Invoked
An attorney may invoke the privilege during civil and criminal proceedings when: (civil) responding to
discovery requests or to a request for attorney to testify; (criminal) responding to subpoena to testify in a grand
jury by the attorney and client, before a petit jury by an attorney, client is cross-examined, during a search
warrant seeking clients documents which were seized by attorney.
If the state appears to compel attorney to disclose information even without an official request, the
attorney may seek declaratory judgment or injunction; or may be encouraged to defend against penalties for not
having made a disclosure.

LAWYER LIABILTY
PARTNER/SUPERVISOR [5.1]
Under MRPC 5.1, the responsibility of a partner or supervising attorney is that they: (a) must make reasonable
efforts to establish internal policies and procedures to ensure compliance with the ethical rules; (b) must
make reasonable efforts to ensure all the subordinate attorneys are in compliance with the ethical rules, if
they have direct supervising authority. Responsibility for failure to supervise is limited to for attorneys who
had direct knowledge who go before disciplinary proceedings, however an entire firm is not liable.
Under MRPC 5.1 (c), a partner or supervising attorney is also responsible for the ethical rule violations of
another attorney if they: (1) orders or, with knowledge, ratifies the violations; or (2) they are partner (or have
comparable managerial attorney) or has direct supervisory authority and know of the violative conduct at the
time its consequences could be avoided or mitigated, but failed to take reasonable remedial action.
(C)
Here, _______ is a partner/supervisor is/is not responsible for ______ because he is/no a subordinate. There
was/not misconduct by the subordinate because _____________, which does/does not violate the ethical rules.
(1)
Further, ______ not order/know and ratify by _______.
(2)
Here, _______ is a (partner (has comparable managerial authority)/has direct supervisory authority) and
did not/knew of ____________ because _________.
However/ Further, at the time of the offense, ___________ could/not have been avoided/mitigated
because _________.
However/Additionally, __________ was/not something that could have been reasonably
remediated by _______, because__________.
Here, ____ is/not a partner nor a lawyer with comparable managerial responsibility because ____. ____
did/not make reasonable efforts because _____ is/not reasonable. ____ is/not reasonable because _____. ____
is (small firm, solo practitioner, etc.) thus the policies are reasonable for their firm because (resources, expertise,
etc.).

SUBORDINATE ATTORNEY [5.2]

Under MRPC 5.2 governs subordinate attorney responsibility. Subsection (a) provides they are bound by the
rules whether or not a supervisor told them to do it. Under (b) however, the subordinate attorney is not liable if
the subordinate acted in accordance with a supervisors reasonable resolution to an arguable question of
professional duty.
Here, the supervising attorney told/did not tell _____ to do ______ which is/not violation of the model
rules.
______ may still be responsible even if the supervisor instructed them to do _____________.
However/further, the conduct the supervising attorney proposed was/not ethical because____________.
However, _________ may be/is not protected under subsection (b) because he did not/told the
supervisor ____________ and the supervisors response that ____________ was reasonable/unreasonable.

SUPERVISOR OF A NON-ATTORNEY [5.3].

A non-attorney is not liable under the Model Rules of Professional Conduct. However MRPC 5.3 governs
responsibility of supervisors of non-attorneys and provides that: (a) a partner or layer with comparable
managerial authority must make reasonable efforts to ensure that the firm has measures that give reasonable
assurance of compliance with the model rules by non-attorneys; (b) an attorney with direct supervisory
authority over the non-attorney must reasonably ensure compliance with the model rules; and (c) an attorney is
responsible for the non-attorneys violation of the model rules if he: (1) knows, ratifies, or orders the
misconduct; or, (2) knows of the conduct but fails to take remedial action while the consequences could be
avoided or mitigated.
Non-Lawyers within the Firm
Non-attorneys include secretary, investigators, law student interns, paraprofessionals, independent contracctors
employed by an attorney or firm.
Here, _____ may be liable because the non-attorney was/not appropriately instructed or/and supervised
on ethical rules because __________.
Here, ____ may/not be liable because ______ do not/constitute measures accounting for _____s lack of
legal training since ________. Therefore, they could/not be subject to professional discipline.
Non-Lawyers Outside the Firm
Here, _____ may/may not be liable because they did not/fail to take reasonable efforts to ensure that the
services provided are consistent with the Model Rules, because_______.

REPORTING THE MISCONDUCT OF LAWYERS [8.3]

MRPC 8.3, an attorney who knows that another lawyer has committed a violation of the MRPC which raises a
substantial question as to that lawyers honesty, trustworthiness, or fitness as a lawyer, must inform the
appropriate authority. A substantial question is measured by the seriousness of the offense, rather than the
amount of evidence of which the reporting attorney may be aware.
Purpose of Rule is
The purpose of this rule concerns the need to regulate a self-regulating profession against offenses must
vigorously endeavor to prevent. Accordingly, courts have protected reporting attorneys against retaliation. See
Kelly v. Hunton & Williams (holding that the duty to disclose trumps the fact that plaintiff an at-will employee
fired for reporting fraudulent conduct could not be fired for that reason).
At will Employee
In the event of an at-will employee, retaliation by firing an associate who whistle-blows is illegal unless
there is a better reason for the firing.
Reporting Judge violating MCJC
MRPC 8.3 (b) requires an attorney to inform the appropriate professional authority when the attorney knows
that a Judge violated the rules of judicial conduct that raises a substantial question as to the judges fitness for
office.
No duty when Rep an Attorney in Disciplinary Proceeding
MRPC 8.3 (c) limits the duty to report when an attorney is representing another in a disciplinary proceeding
concerning questionable professional conduct since it jeopardized the attorney-client relationship under MRPC
1.6; and when the knowledge of such conduct is acquired by an approved lawyers assistance program.
Here, _____s conduct raises a substantial question regarding their honesty/trustworthiness/fitness because
___________. _______ shows that there is a substantial question regarding ______s
honesty/trustworthiness/fitness as an attorney because _______________.
However, ______ may not be required to report it to anyone because they did not know/received the
information from a legal help service.

Criminal Liability of Lawyers. This mostly comes in the form of mail or tax fraud.
Client Protection Funds. A client protection fund is a fund set up by the state in the event that an attorney does
something shitty to a client. It is supported by practicing attorneys, reimburses a theft of funds, and funded by
members of state funds.

ATTORNEY MISCONDUCT [8.4]

Under MRPC 8.4, an attorney can be disciplined for misconduct. Legal misconduct calls into conduct an
attorneys honesty, trustworthiness or fitness to practice law.
Definition of Misconduct
The model rules provided that it is misconduct to: (a) violate or help someone violate the model rules; (b)
commit a crime which poorly reflects attorneys honesty, trustworthiness, and fitness; (c) engage in dishonesty,
fraud, deceit, or misrepresentation; (d) engage in conduct prejudicial to the administration of justice; (e) attempt
or imply an ability to influence a government official; and (f) knowingly assist a judge or judicial officer in
unethical conduct.
Possible Breach of Fiduciary Duty
Attorneys that hold positions of trust (trustee/executors, administrators, guardians, agents and officers,
directors or managers of an organization), violate this rule when they abuse their position.
Liability for Attorneys Who Abuse public Office
Lawyers in public office also violate this rule when they abuse their office because it suggests their
inability to fulfill the requirements of lawyers.
(a)
Here, _____ did/did not violate/help ____ violate the model rules.
However, an attorney is not prohibited from advising a client about the legal actions they can take. ___
will argue that ____ was merely informing ____ about what avenues legally available to _____.
Yet, ___ may still be liable because ____ may show indifference to the legal obligation.
(b)
Here, _____ did/did not commit the crime. Attorneys must only answer for criminal offenses indicating lack of
characteristics relevant to legal practice, also known as crimes showing Moral Turpitude.
____ will argue that ______ it is not applicable. Yet, moral turpitude includes crimes involving
personal morality, premeditated harm, or repeated minor offenses.
(c)
Here, _____ conduct was dishonest/fraud/deceit or misrepresentation because______.
(d)
Here, _____ did/did not engage in prejudicial conduct that is prejudicial to the administration of justice
by _______. An attorney who in the course of representing a client, knowingly voices or conducts themselves
in a manner that shows a bias based on race, sex, religion, national origin, disability, age, sexual orientation or
socioeconomic status, violates the model rules when these actions are prejudicial to the administration of
justice.
___ will argue that _____ does/does not constitute words/conduct regulated by the MRPC because
_____. Further, _____s actions did/did not prejudice the administration of justice.
_____ will argue that _____ does/does not violate the rule because it amounted to illegitimate/legitimate
advocacy. For example, courts have found no violation regarding preremptory challenges based on race;
however, they have been found to violate the rule when the advocate somehow manifests their bias by, for
example, placing a B under the names of black jurors who were dismissed.
(e)
Here, ______ is/not liable because s/he attempted to/implied that he could/influence _______, who
is/not a government official, by __________.
(f)
Here, ______ knowingly/did not know assist _________, a judge/judicial officer, by ________ which
is/is not unethical conduct.

DISCIPLINE AND CHOICE OF LAW [8.5]

Discipline (a):
Under MRPC 8.5 (a) an attorney who violates the MRPC may be subject to discipline in a jurisdiction even if
the violation did not occur there. An attorney not admitted in a jurisdiction is subject to discipline if he provides
or offers to provide legal services there as well. Further, the attorney can be disciplined in multiple
jurisdictions, even if only admitted to one.
Choice of Law (b):
Subsection (b) provides that an attorney can be disciplined under the rules of a pending tribunal, unless the
tribunal prohibits it. Additionally, for any other misconduct, the rules of the jurisdiction where the violation
occurred, or if the predominant effect of the misconduct is in different jurisdiction, the rules of that jurisdiction
is applied.

RELATIONSHIPS BETWEEN LAWYERS AND CLIENTS

FORMATION OF AN ATTORNEY-CLIENT RELATIONSHIP
Attorney-Client client relationship is formed when the client intends to seek legal advice from attorney and
attorney either accepts or fails to clearly decline the representation. Attorneys who intend to decline
representation must inform a prospective client about any applicable statute of limitations period for their
matter, and they must clearly inform them that they will not take the case. Togstad v. Vesely (holding that
attorney was liable for malpractice because the attorney failed to inform plaintiff about the expiring statute of
limitations and not telling that he was declining representation).
Client and Attorney Control
Clients have control to decide the objective of representation, and attorneys have control over the means to
achieve clients desired objective.
No duty to Accept Representation, Appointment Exception
The attorney has no duty to accept the representation unless the client is appointed by the court, with some
exceptions including: good cause exists, it would violate a law or ethical rule, would put an unreasonable
financial burden on the attorney, or would prevent effective representation because of attorneys bias against the
client.
ATTORNEYS DUTIES TO CLIENT
Attorneys owe various duties to their clients including the: Duty of Competence (MRPC 1.1); Duty
of Diligence (Id. 1.3); Duty to Communicate (Id. 1.4); and, Duty of Candor (Id. 2.1). Some duties can
be modified and MRPC 1.2 permits the attorney to limit the scope of representation.
Modification of Duties
A client and an attorney can agree in higher standards than the MRPC by engaging in Contractual
Modification to Duties, which falls under Contract Law. Except in some circumstances, they can agree to
lower the expectations of the lawyer below the standard set by the model rules in exchange for an agreement
with discounted fees. An attorney should be advised to make any limitation very clear to client even if the
limitations are expressed under an agreement. See, Nichols v. Keller (holding that attorney filing clients
workers compensations claim but who failed to advise that client could sue someone other than employer under
his claim, could be sued for malpractice).
Third Party Counsel
An attorney may also bring in third party counsel through a collaborative agreement provided that attorney
acquires informed consent.

DUTY OF COMPETENCE [1.1]

MRPC 1.1 states that a lawyer must provide competent representation to a client. Competent representation
requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the
representation.
Knowledge/Skill
Generally, the required proficiency in knowledge and skill is that of a general practitioner. In determining
whether a lawyer employs the requisite knowledge and skill in a particular matter, relevant factors include: the
lawyers general experience, 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 a lawyer of established
competence in the field in question.
A lawyer need not necessarily have special training or prior experience to handle legal problems of a
type with which the lawyer is unfamiliar. New attorneys can be just as skilled as others. Yet, expertise
in a particular field may be required in some circumstances.
Here, ____ is not prohibited from taking a case in an unfamiliar area of law but ___ is required to bring
____ to the level of a competent practitioner promptly. _____ may educate ____ on the job through necessary
study and reasonable preparation however he may not be entitled to charge for the preparation hours.
In an emergency situation, ___ may give advice or assistance in a matter in which the lawyer does not
have the skill ordinary required where referral would be impractical.
The lawyer must maintain competence and should be up to date with the changes in the law and its
practices and comply with the continuing legal education requirements.
Here, __ did/did not comply because ____.
Thoroughness and Preparation
Thoroughness and Preparation evaluation includes inquiry into and analysis of the factual and legal elements
of the problem; use of methods and procedures meeting the standards of competent practitioners; adequate
preparation. However, MRPC 1.2 (c) can be used to create an agreement between lawyer and client regarding
the scope of the representation can limit the matters for which the lawyer is responsible.
A lawyer may accept representation where the requisite level of competence can be achieved by reasonable
preparation. This applies as well to a lawyer who is appointed as counsel for an unrepresented person.
Strickland v. Washington: Deathrow defendants appeals attorney did not violate his duty of competence for his
choice to preclude character evidence and instead relying on judges personal.
When Retaining or Contracting with Attorneys Outside of Firm
When retaining or contracting outside attorneys firm the attorney should get informed consent from
client and must reasonably believe that the third partys services will contribute to the competent and ethical
representation of the client.3
Attorneys are advised to consult with each other and the client about the scope of their respective
representation and allocation of responsibility.

3 MRPC 1.2 (allocation of authority); 1.4 (communication with client); 1.5(e) (fee splitting); MR 1.6 (confidentiality); MR 5.5(a)
(unauthorized practice of law),

DUTY OF DILIGENCE [1.3]

MRPC 1.3 sets out the attorneys Duty of Diligence, and provides that an attorney shall act with reasonable
diligence and promptness in representing clients. Thus, an attorney must pursue a matter for a client despite
opposition or personal inconvenience, and take whichever required measures are required to vindicate a clients
cause. In addition, the attorney must act with zeal in advocacy when representing a client.
The attorney should carry though to conclusion all matters undertaken for a client.
In the event of a sole practitioners death or disability, the attorney may prepare a plan that designates
another competent lawyer to review client filers, notify each client of attorneys death or disability, and
determine whether theres need for immediate protective action.
Here, ___ did/not do ___ which is/not a basic ___ therefore ____ was/not diligent.

DUTY TO COMMUNICATE [1.4]

MRPC 1.4 sets out the attorneys Duty of Communication. Under Subsection (a) An attorney must keep his
client: (1) Promptly informed of impending decisions and circumstances; (2)4 aware of available means to
obtain an objective; (3) Reasonably informed about the status5 of an issue; (4) Given information upon
reasonable request for information; and, (5) informed about the attorneys ethical limitation where appropriate.
Keep Client Sufficiently Aware of Available Options
Further, under section (b), the attorney must keep the client sufficiently aware of available options to make
informed decisions about representation. Keeping the client sufficiently aware requires that the attorney give
information to allow the client to participate intelligently in decisions about objectives and means.
However, the attorney would not ordinarily be expected to describe trial or negotiation strategy in detail.
Further, if client is an organization or group, the attorney should address communication to the appropriate
officials within the organization.
If the lawyer cannot promptly respond, he should explain to the client when to expect a response.
For example, the comments provide that client telephone calls should be promptly returned or
acknowledged.
Withholding Information
Even if the client requests information, an attorney may withhold information when the attorney will act
imprudently. However, the attorney cannot withhold information to further attorneys own interests.

4 In some cases, the attorney must consult with the client before taking action. However, sometimes the urgency of the matter may
require the attorney to act without prior consultation. Nevertheless, the attorney must reasonably inform the client about the actions
taken.
5 Status includes significant developments affecting the timing or substance of representation.Under subsection (a)(4),

DUTY OF CANDID ADVICE [2.1]

MRPC 2.1 set out the attorneys Duty of Candid Advice. The attorney shall provide independent judgment
and candid advice. Therefore, the attorney cannot be influenced by the attorneys or clients own personal
beliefs. A lawyer should not be deterred from giving a client unpleasant facts simply because the client doesnt
want to hear it or may not like it.
Not Generally Expected to Advise until Prompted
An attorney is not generally expected to give advice until prompted by the client. However, if the client
desires action that will be adverse to him, the Duty of Communication (Id. 1.4) requires him to offer advice
relating to the representation.
May Advise Regarding Alternatives
An attorney may also inform a client of dispute resolution options other than litigation, if the matter is likely
to be litigated.
In offering advice the attorney can include: political, legal, moral, economic, and social considerations.
When Purely Technical Advice is Inadequate
Purely technical legal advice may be inadequate when the client is considering other factors such as
cost of effect on third parties and the attorney can therefore provide moral and ethical considerations.
When the client asks for purely technical legal advice, the attorney may indicate that more may be
involved than strictly legal considerations.
Appropriate sometimes to Weight
Further, where appropriate, the attorney may assist the client in weighing advantages and disadvantages
of a particular course of action.

LIMITING SCOPE OF DUTIES/REPRESENTATION [1.2]

Competent Adult
MRPC 1.2 sets out the Scope of Representation and Allocation of Authority Between Client and Attorney.
Subsections (a) through (d) apply to Competent Adult Clients. Subsection (a) provides that an attorney shall
abide by the clients decisions concerning the objective of representation and may consult with the client
regarding the means by which to obtain the objective. However, this duty is subject to limitations in
subsections (c) and (d).
Under subsection (a),
In regards to the clients delegation of objective, and the attorneys discretion to consult with the
client, if there is a disagreement about the means, the rule offers no guidance on how to resolve the
matter.
Alternative Views. Legal assistance should not be denied to a client who cannot pay or has
unpopular views.
Means/Strategy Discretion
On appeal, the attorney has discretion over means to achieve objective and need not argue every
issue. Jones v. Barnes (holding that attorney did not violate ethical duty under MRPC 1.2, when
appeals attorney did not argue every issue client wanted).
[however, the lawyer instead only argued three, but submitted a pro se brief on the
clients behalf].
Attorneys implied authority to carry out representation
An attorney can take action on clients behalf as is impliedly authorized to carry out the representation.
However, the attorney must abide by a clients decision whether to settle the matter.
In Criminal Case, must abide by certain Decisions.
In a criminal case the attorney must abide by the clients decision after consultation with the attorney in
regards to entering a plea, waiving jury trial, and whether the client will testify.
Under subsection (b) the attorneys representation of a client is not an endorsement of the clients political,
economic, social or moral views or activities.
May Limit Scope When
Under subsection (c), the attorney and client may elect to limit the scope of representation to a select few
areas of client concern if: (1) reasonable under the circumstances, and (2) there is informed consent.
For example, attorneys and clients can agree to limit the duration of representation. Generally, this is
done up to a procedural stage.
1.2 (d) Prohibition on Crime or Fraud
Under subsection (d) the attorney cannot knowingly counsel or assist clients in the commission of crimes or
fraud. However, the attorney may discuss the legal ramifications of prohibited conduct, or assist a client
pursing a test case (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).
The fact that the client uses advice in a course of action that is criminal or fraudulent, does not by
itself make the attorney liable.
Further, if the attorney assists client in conduct which he thought was legally proper and later finds to
constitute crime or fraud, the attorney must withdraw.
In some cases, the attorney may have to disaffirm any opinion, document, affirmation or the like.

CLIENT WITH DIMINISHED CAPACITY [1.14]

MRPC 1.14 sets out the Scope of Representation and Allocation of Authority Between a Client with
Diminished Capacity Client and Attorney. Subsection (a) provides that when a clients capacity to make
adequately considered decisions in connection with representation is diminished, the attorney must as far as
reasonably possible, maintain a normal client-attorney relationship. This applies to clients who are minors,
have a mental impairment, or another reason.
If an attorney doesnt know whether or not the client is mentally incapacitated, then the lawyer can and
should make some assessment of a clients mental capacity.
May Take Reasonably Necessary Protective Action
Subsection (b) provides that the attorney may take reasonably necessary protective action if the attorney
reasonably believes: (i) the client has diminished capacity, is at risk of substantial physical, financial, or
other harm; (ii) unless action is taken; and, (iii) the client cannot adequately act in their own interest.
Reasonably necessary protective action may include things such as consulting with individuals or
entities able to protect the client, or appointing a guardian ad litem, conservator, or a guardian.
Guardian ad litem charged with the duty to determine and advocate for the best interests of the
ward; the best interests may not correspond with the expressed wishes of the ward.
Conservator given power to manage the financial affairs of the client, who thereby loses the
power to buy, sell, and hold property.
Guardian has even more authority. A guardian manages the clients financial affairs and may
make medical and other personal decisions for the client, who is thereafter the guardians
ward.
(d) Applies Duty of Confidentiality
Subsection (c) provides that the attorneys Duty of Confidentiality (Id. 1.6) applies to clients with
diminished capacity. However, when taking protective action (as in Id. 1.14(b)), the lawyer is impliedly
authorized to reveal information, but only to the extent reasonably necessary to protect the clients interests.
DECLINING REP. OR WITHDRAWAL [1.16]
Under MRPC 1.16 controls Withdrawal of Representation. Under Id. (a) the attorney shall not represent
client or withdraw if: (1) representation violates the ethical rules of conduct (conflict); (2) attorneys physical or
mental health materially impairs ability to represent client; and (3) the client fires the attorney.
1.16(b) Discretion to Withdraw
An attorney has discretion to Withdraw under subsection (b), subject to the exception in Id. (c), if: (1)
withdrawal will not materially compromise clients interest, (2) client involves the attorney in crime or fraud,
(3) the client used attorney services to perpetuate crime or fraud; (4) client insists on taking repugnant
action or attorney has fundamental disagreement; (5) client substantially fails to pay fee or comply with
other obligation and has been given reasonable warning of withdrawal for failure unless client complies;
(6) the representation will result in an unreasonable financial burden to attorney or has been rendered
unreasonably difficult by the client; or (7) for other good cause.
If the attorney is fired, the attorney still owes client fiduciary duty and must pay non-incurred
advanced fees and costs.
1.16 (c) To Comply with Law or Order
Under subsection (c), an attorney must comply with applicable law regarding notice, or permission from
the court to withdraw (if the matter is pending before the court). When ordered to do so, an attorney must
continue representing notwithstanding good cause for terminating the representation.
1.16(d) Obligations after Withdrawal
Under MRPC 1.16 (d), upon termination of representation an attorney must take steps to the extent reasonably
practicable to protect a clients interests, such as giving client reasonable notice, 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. Additionally, the
attorney should inform the client about any Statute Limitations applicable to representation.
When surrendering papers and property, the attorney may choose to withhold documents containing
attorneys mental impressions.

DUTY PRO BONO PUBLIC SERVICE [6.1]

MRPC 6.1, provides that every lawyer has a professional responsibility to render legal services to those unable
to pay. An attorney should aspire to render at least 50 hours of pro bono public legal services per year. This
responsibility is not intended to be enforced through disciplinary process. Further, an attorney unable to do pro
bono work may voluntarily donate money to organizations providing free legal services to persons of limited
means.
To fulfill the Voluntary Pro Bono Public Service responsibility, under MRPC 6.1 (a) the attorney should
provide a substantial majority of the hours without fee or expectation of fee to: (1) persons of limited means; or
(2) charitable, religious, civic, community, governmental and educational organizations in matters primarily
designed to address the needs of persons of limited means.
An attorney may be able to collect statutory fees in a case originally accepted as pro bono. Lawyers
who do receive these fees are encouraged to contribute an appropriate amount to organizations or
projects that benefit persons of limited means.
Government lawyers and Judges may be prohibited from performing the services in (a), but may
perform services in (b).
Further, under MRPC (b), the attorney should provide any additional service through: (1) delivery of legal
services at no fee or substantially reduced fee to individuals, groups or organizations seeking to secure or
protect civil rights, civil liberties or public rights, or charitable, religious, civic, community, governmental and
educational organizations in matters in furtherance of their purposes, where the payment of standard legal fees
would significantly deplete their resources or be otherwise inappropriate; (2) delivery of legal services at a
substantially reduced fee to persons of limited means; or (3) participation in activities for improving the law, or
legal system or profession.

ACCEPTING APPOINTMENTS [6.2]

MRPC 6.2 provides that an attorney must not seek to avoid appointment to represent a person except for good
cause, such as: (a) representation violates the law or model rules; (b) representation would result in an
unreasonable financial burden on the attorney; or (c) the client or the cause is so repugnant to attorney that it
would likely impair the attorney-client relationship or attorneys ability to represent the client.
Good cause exists when the attorney could not handle the matter competently or if undertaking the
representation would result in an improper conflict of interest. Further, an appointed attorney has the same
obligation as retained counsel (Duty of Loyalty and Confidentiality) and is subject to the same limitations.

CONFLICT OF INTERST and DUTY OF LOYALTY

An attorney owes a Duty of Loyalty to his clients which prohibits the attorney from representing a client who
has a conflict of interest with another of attorneys client. Attorneys should investigate whether a conflict of
interest exists depending on the circumstances predicated upon the type and time of client representation.
Before Representation
If a Conflict of Interest exists before representation is undertake, the attorney must decline representation
unless the attorney obtains informed consent from each client. Further, ignorance of a conflict of interest
caused by failure to have reasonable procedures will not excuse liability.
After Representation
If a Conflict of Interest exists after representation is undertaken, the attorney must withdraw unless he =
obtains informed consent from the client. Further, if theres more than one client, the attorney may represent
any of them if the attorney can comply with the duties owed to the former client and adequately represent the
remaining clients while complying to the duties owed to the former client.
EVALUATING CONFLICTS
Resolution of a conflict of interest problem requires the lawyer to: (1) clearly identify the client(s);
(2) determine whether a conflict of interest exists; (3) decide whether the representation may be
undertaken despite the existence of a conflict (i.e., whether the conflict is consentable; and (4) if so,
consult with the clients affected under (a) and obtain their informed, written consent.
Non-litigation conflicts under MRPC (a)(1),(2) include: the duration and intimacy of attorneys
relationship with clients involved; the functions being performed by the attorney; the likelihood
disagreements will occur and prejudice to the client from the conflict.
Special Consideration to Attorney Client Privilege and Attorney Client Confidentiality (MRPC 1.6).
Attorney Client Privilege does not apply between commonly represented clients. Confidentiality will
be inadequate if one client asks the attorney not to disclose to the other client information relevant to the
common representation.
Therefore, the attorney should tell each client that information will be shared and that the attorney will
have to withdraw if one client decides that some matter material to representation should be kept from
the other (triggering MRPC 1.7 (a)(2)).
Bonus Information
An attorney is prohibited from engaging in sexual relationships with clients unless the relationship began
before the attorney-client relationship and does not involve prostitution.

CONCURRENT CLIENTS [1.7] OR JOINT REPRESENTATION

MRPC 1.7 provides that an attorney may not represent a client if there is a concurrent conflict of interest.
Subsection (a) provides that such a conflict exists if: (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 lawyers responsibilities to another client, a former client or a third person or by a personal
interest of the lawyer.
1.7(a)(1)
Direct Adversity exists when the attorneys conduct on behalf of one client requires the attorney to act
against the interests of another client. Even outside of litigation, an attorney undertakes negotiations
against the other client.
If there is unrelated representation of two clients whose interests are only economically adverse, it
does not ordinarily constitute a conflict of interest. (An attorney should probably still get informed
consent, however since information is not always perfect and may have to get it later anyway).
Unnamed members of a class are not considered to be clients.
The attorney does not therefore need consent of such a person before representing a client suing the
person in an unrelated matter. Typically, an attorney representing an opponent in a class action, does not
typically need the consent of an unnamed class member in a claim where he is representing in an
unrelated matter.
1.7(a)(2)
A significant risk of material limitation exists even if there is no direct adversity when there is a
significant likelihood that different interest will eventuate and that it will material interfere with the
attorneys ability to consider, recommend, or carry out an appropriate course of action on behalf of
advocating for the clients interests.
Ordinarily an attorney can take inconsistent legal position in different tribunals at different times on
behalf of different clients, but if there is a significant risk of materially limiting the attorneys
effectiveness, the attorney must refuse one of the representations or withdraw. [SEE 1.7, cmt 24; and
concurrent clients sec. below]
This subsection governs the representation of co-parties in litigation. A conflict may exist by reason
of substantial discrepancy (parties testimony, incompatibility in positions in relation to an opposing
party of the fact that there are substantially different possibilities of settlement of the claims or liability
in question).
Payment from Third Party
An attorney may be paid by a source other than the client (including co-client) if the client is informed
of it, consents, and the agreement does not compromise the attorneys Duty of Loyalty or independent
judgement to the client.
However, if payment acceptance from any other source other than client poses a significant risk
that the attorneys representation of the client will be materially limited by the attorneys own
interest in accommodating third party payment acceptance, or by the attorneys responsibilities
to a payer who is also a co-client, then the attorney must comply with the requirements of
MRPC 1.7 (b).

ORGANIZATIONAL CLIENTS
An attorney representing a corporation or organization does not necessarily represented any affiliated
organization (such as a subsidiary). The lawyer may accept representation adverse to an affiliated in an
unrelated matter unless : (1) the affiliate should be considered a client of the lawyer; (2) theres an
understanding between lawyer and organization client that attorney will avoid representation adverse to
the clients affiliates; or, (3) the attorneys obligation to either the organization or new client are likely
to materially limit the attorneys representation of other client (triggering MRPC 1.2(a)(2)).
An attorney for a corporation or organization which is also a member of its board of directions should
determine whether the responsibilities of the two roles may conflict. In roles of conflict, the attorney
should not server as a director or withdraw as the organizations lawyer.
Exception to 1.7(a)
However, under subsection (b), even if there is a concurrent conflict of interest under subsection (a), 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 claims by one client against another client represented by the lawyer in
the same matter; and (4) each affected client gives informed consent, confirmed in writing (drafted by
attorney or client).
(1)
An attorney may not ask for consent if the circumstances do not permit him to reasonably conclude that
the attorney can provide competent and diligent representation.
Assuming that the circumstances do/not prohibit to reasonably conclude that the attorney can
provide competent and diligent representation, _______________ may/not represent _______.
Reasonable belief is looked at objectively, in terms of what a reasonable prudent attorney in like
circumstances would conclude.
(2)
For example, in some jurisdictions, the law prohibits that attorneys may not represent more than
one defendant in a capital case, even with informed consent.
(3)
Prohibits representation of opposing parties in the same litigation regardless of clients consent.
However, co-parties is governed by subsection (a)(2). Further,
1.7(b)(4) Informed Consent
Informed Consent is defined under MRPC 1.0(e) as an agreement to a proposed course of conduct
after the attorney communicates adequate information and explanation about the material risks of
reasonably available alternatives to the proposed course of conduct. Without any of the foregoing
elements, then the conflict is nonconsentable.
An attorney must explain to each affected client the ways that the conflict could adversely affect
their interests. Sometimes, obtaining informed consent can be difficult as it may require
disclosure of the other clients confidences, which also requires the clients consent (not
necessarily written).
Consent is revocable and can fire the attorney at any time. Whether revoked consent to the
clients own representation preclude an attorney from representing the other client in concurrent
conflict depends on the circumstances. (nature of conflict, whether the client revoked because of
a material change in circumstances, there reasonable expectations of other client, and whether
material detriment to the other clients or the lawyer would result).
Advanced Waiver
An attorney may also seek Advance Waiver from clients, and may do so upon the clients retention of
services. The validity of the advance waiver depends on factors including: the level of client

understanding of the risks of the possible future conflicts; the thoroughness and specificity of attorneys
initial disclosure of possible future conflicts; client experience with the type of legal services being
provided and the nature of the conflicts that could arise; whether the client received independent legal
advice before giving the advance waiver; and whether the conflict that arises is one that can be solved by
consent. (if it is nonconsentable, the waiver will not be valid as to that particular conflict.)
Here, ___ is/not asserting a claim by one client, ____, that is/not directly adverse to his other client(s),
______. Therefore, the attorney may/not represent _____ in this dispute.

CURRENT CLIENTS SPECIFIC RULES [1.8]

Inconsistent Legal Positions.
Generally, there is no problem with advocating on behalf of one client that might create adverse precedent for
another client, but an attorney needs to consider: (1) whether the issue is before a trial or appellate court, (2)
whether the issue is substantive or procedural, (3) the temporal relationship between the matters, (4) the
practical significance of the issue to the immediate and long-term interest of the clients, and (5) the clients
reasonably expectations in retaining the attorney.
Prohibition on Adverse Business Transaction Possessory Interest Adverse
Under MRPC 1.8 (a) an attorney cannot enter into a business transaction with a client or knowingly acquire an
ownership, possessory, security or other pecuniary interest adverse to a client unless: 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; 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 the client gives informed consent (in a writing signed by the client) to the
essential terms of the transaction and the lawyers role in the transaction, including whether the lawyer is
representing the client in the transaction.
Must be met even when the transaction is not closely related to the subject matter of the representation
Subsection (a) applies to: Lawyers engaged in the sale of goods or services related to the practice of
law (ex: sale of title insurance; investment services to existing clients of the lawyers legal practices) and
Lawyers purchasing property from estates they represent.
It does not apply to: Ordinary fee arrangements between client and lawyer; standard commercial
transactions between the lawyer and the client for products or services that the client generally markets
to others
Prohibition on Use of Representation Info vs. Client Interest or for own Interest
Under MRPC 1.8(b) an attorney cannot use information relating to representation of a client to the
disadvantage of the client, unless: the client gives informed consent (except as permitted or required by the
Model Rules)
Applies when the information is used to benefit either the lawyer or a 3rd person (ex: another client;
lawyers business associate)
Relates only to information that can disadvantage a client; if it benefits one or more clients, its ok (ex:
learning of a new government regulation during the representation of one client can be used to benefit
other clients)
Prohibition on Solicitation Gifts from Client
Under MRPC 1.8 (c) an attorney cannot solicit 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
Related persons spouse, child, grandchild, parent, grandparent or other relative or individual with
whom the lawyer or the client has a close, familial relationship
A lawyer can accept a gift from a client if the transaction meets general standards of fairness
If client offers the lawyer a substantial gift, lawyer can take it but, lawyer cant suggest that a substantial
gift be made to him or for his benefit, except where lawyer is related to the client.
Prohibition on Literary or Media Rights

Under MRPC 1.8 (d), prior to ending the representation of a client, the attorney cannot 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.
Doesnt prohibit a lawyer representing a client concerning literary property from agreeing that the
lawyers fee shall consist of a share in ownership in the property
Prohibition on Financial Assistance
Under MRPC 1.8 (e) an attorney cannot provide financial assistance to a client in connection with pending or
contemplated litigation; unless: the attorney may advance court costs and expenses of litigation, the repayment
of which may be contingent on the outcome of the matter; and that the lawyer representing an indigent client
may pay court costs and expenses of litigation on behalf of the client.
Lawyers cant subsidize lawsuits or administrative proceedings on behalf of clients, including loans for
clients living expenses
Lawyer can loan a client court costs and litigation expenses, because these advances are
indistinguishable from contingent fees
Exception allowing lawyers representing indigent clients to pay court costs and litigation expenses
regardless of whether these funds will be repaid is warranted
Prohibition on Third Party Payments
Under MRPC 1.8 (f) an attorney cannot accept compensation for representing a client from a third party;
unless: the client gives informed consent; theres no interference with attorneys independent professional
judgment or with the client-lawyer relationship; and, information relating to representation of a client is
protected by MR 1.6.
Lawyer cant accept or continue such representation unless the lawyer determines that there will be no
interference with the lawyers independent professional judgment and theres informed consent from the
client
Prohibition on Aggregate Claim Settlement when Representing two Clients
Under MRPC 1.8 (g) an attorney who represents two or more clients cannot participate in making an aggregate
settlement of the claims, or in a criminal case an aggregated settlement as to guilty or nolo contendere pleas;
unless: each client gives written and signed informed consent; and the disclosure includes the existence and
nature of all the claims or pleas involved and of the participation of each person in the settlement.
Rule provides that, before any settlement offer or plea bargain is made or accepted on behalf of multiple
clients, the lawyer must inform each of them about all the material terms of the settlement, including
what the other clients will receive or pay if the settlement or plea offer is accepted
Prohibition on Limiting Malpractice Liability
Under MRPC 1.8 (h) an attorney cannot: Make an agreement prospectively limiting his malpractice liability in
the future unless the client is independently represented in making the agreement; OR Settle a claim (or
potential claim) for such liability with an unrepresented client or former client unless that person is advised in
writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent
legal counsel in connection therewith.
Rule doesnt: Prohibit a lawyer from entering into an agreement with the client to arbitrate legal
malpractice claims, provided such agreements are enforceable and the client is fully informed of the scope and
effect of the agreement; Limit the ability of lawyers to practice in a limited-liability entity ; Prohibit a MR 1.2
agreement of the scope; or Prohibit agreements settling a claim or a potential claim for malpractice
Lawyer must: Advise the person in writing of the appropriateness of independent representation in
connection with such a settlement; and Give client or former client a reasonable opportunity to find and
consult independent counsel

Prohibition on Liens Proprietary Interest in Cause of Action

Under MRPC 1.8 (i) an attorney cannot acquire a proprietary interest in the cause of action or subject matter of
litigation hes conducting for a client; unless the lawyer can: (acquire a lien authorized by law to secure his fee
or expenses and contract with a client for a reasonable contingent fee in a civil case
Liens are authorized by law to secure the lawyers fees or expenses and contracts for reasonable
contingent fees
Prohibition on Sex with Client
Under MRPC 1.8 (j) an attorney cannot have sexual relations with a client; unless the consensual sexual
relationship existed between them when the client-lawyer relationship began.
When client is an organization, rule prohibits a lawyer for the organization (whether inside or outside
counsel) from having a sexual relationship with a constituent of the organization who supervises, directs
or regularly consults with that lawyer concerning the organizations legal matters
MRPC 1.8 (j) does not address sex with opposing counsel. This could however be a violation of Rule
1.7(b), which states that attorneys shall not represent a client if the representation of that client may be
materially limited by the lawyers responsibilities to another client or to a third person, or by the
lawyer's own interests (what affected interest here.), unless: (1) the lawyer reasonably believes the
representation will not be adversely affected; and (2) the client consents after consultation.
Prohibitions Extend to Firm while Associated except Sex One
Under MRPC 1.8 (k) provides that any prohibitions while attorneys are associated in a firm, applies to any one
of them applies to all of them.
Subsection (j) is personal and is not applied to associated lawyers.

PROSPECTIVE CLIENT [1.18]

MRPC 1.18 defines the obligations owed by attorneys to Prospective Clients. Such a client is one who
consults with an attorney about the possibility of forming an attorney-client relationship with respect to a
matter.
Attorneys are not obligated to accept representation from prospective clients; but should they decide to decline
representation, they should unambiguously inform the prospective client and advise the prospective client
about any applicable statute of limitations in their matter. See Togstad (Holding that attorney violated the
ethical rules for failure to inform clients wife that it would not represent her or about the statute of limitations).
Consultation likely occurred if attorney (or agent) specifically requests or invites information about
potential representation without clear and reasonably understandable warnings that limit the
obligation.
However, if the person volunteers information in response to advertising that merely describes the
lawyers education, experience, areas of practice, and contact information, or provides legal information
of general interest.
Factors to consider: retainer agreements
An attorney should decline to represent one or both clients under Rule 1.16. Note that if representation has
commenced, these circumstances would require you to withdraw under Rule 1.16
Under subsection (b) the attorney is barred from using or revealing prospective clients information except as
permitted by MRPC 1.9 (Duties to Former Clients).
Subsection (c) Disqualifies attorney representation of clients with interests materially adverse to prospective
client in the same or substantially related matter. This occurs when the attorney receives information from the
prospective client which is potentially significantly harmful prospective client information to person in the
matter if used. However, the attorney may be excepted from the rule under the firm exception under
subsection (d). If there is an active conflict rendering the attorney subject to such disqualification, the attorney
should decline to represent one or both under MRPC 1.16. If representation has commenced, the attorney
should withdraw. Id.
Firm Exception (Id. (d)). If a firm attorney has a conflict with the prospective client, another firm
attorney can represent current client if: (1) both clients give informed consent; or (2) if: (a) attorney
receiving potentially damaging information takes preventative steps against exposure to more than
necessary amount of information to determine whether representation is possible; (b) the disqualified
lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom;
and (c) written notice of the conflict is promptly given to the prospective client.

CURRENT CONFLICT IN PARTICULAR PRACTICE SETTINGS

IMPUTATION OF CONFLICTS OF INTEREST [1.10]
MRPC 1.10 (a) provides that if an attorney is disqualified due to a conflict with a Current (Id. 1.7) or
Former Client (Id. 1.9), the conflict is imputed to the members of the firm. Non-lawyers do not impute
conflicts to firm provided that those who have done conflicting work have been properly screened.
MRPC 1.10 (a) does not prohibit representation without: issues of client loyalty or protection of
confidential information, when potentially disqualified person is non-lawyer, or the events occurred before
person was lawyer.
EXCEPTIONS to (a)
However, subsection (a)(1) provides that there is no imputed Conflict with a Current Client (MRPC 1.7), if
the disqualification is based on the disqualified attorneys personal interest and it not present a significant risk
of materially limiting the representation of the client by the remaining lawyers of the firm (Id. 1.10 (a)(1)).
Subsection (a)(1) operates only among attorneys associated in a firm. When an attorney moves from
one firm to another, the situation is governed by 1.9(b), 1.10(a)(2), 1.10 (b).
However, subsection (a)(2) provides that there is no imputed Conflict with Former Client (MRPC 1.9(a) or
(b)) if the prohibition arose from disqualified attorneys association with a prior firm and: (i) the
disqualified attorney is timely screened; (ii) fees are not apportioned to disqualified attorney; (iii) written notice
is promptly given to former client.
Written Notice6 must include: (1) a description of the screening procedures, a statement of firm and
screened attorneys compliance, statement that review may be available after tribunal, and an agreement
by the firm to respond promptly to any written inquiries or objections by the former client about the
screening procedures; and, (2) a certification of compliance7 to former client, at reasonable intervals
upon termination of screening.
Screening Definition under MRPC 1.0 (k)
Screening denotes attorneys isolation from participation in a matter through the timely
imposition of procedures within the firm that are reasonably adequate under the circumstances to
protect confidential information.
An imputed conflict ends under MRPC 1.10 (b) if the attorney leaves the firm unless: (1) the matter is the
same or substantially related to that in which the formerly associated lawyer represented the client; and, (2)
any remaining firm attorney has information that is material to the matter, and protected by the Duty of
Confidentiality (MRPC 1.6) or Duty to Former Client regarding use or revelation of information under MRPC
1.9(c).
This section allows the firm to represent a person with interests directly adverse to those of a client represented
by an attorney who was formerly associated with the firm, but not where the interest are presently adverse to a
firms client.
Waivers of Disqualification by affected client or former client or Government attorneys!
Under subsection (c), Disqualification prescribed under MRPC 1.10 (a) may be waived by the affected client
or former client under conditions set forth MRPC 1.78.
6 This notice should describe screened lawyers prior representation, and given as soon as practicable after the need for screening
becomes apparent; attorney and firm should state that clients material confidential information has not been disclosed or used in
violation of the Rules
7 Certification gives former client assurance that material confidential information has not been disclosed or used inappropriately,
either prior or after a screen. If compliance is not certified, the certificate must describe the failure to comply
8 1.7(b) may represent a client if: (1) the attorney reasonably believes he/she will still be able to provide competent and diligent
representation to each affected client; (2) the representation is not prohibited by law; (3) representation does not involve claims by

Under subsection (d) Disqualification of attorneys associated in a firm with former or current government
attorneys is governed by MRPC 1.11.
Lawyer moves from firm A to firm B. The lawyer does not bring any clients with him
To analyze conflicts the lawyer carries with him into firm B based on confidences learned at firm A: 1.9(b)
To analyze conflicts that other lawyers at firm B may have because of the lawyers work at firm A: 1.10(a)
To analyze conflicts remaining at firm A as a result of work the lawyer did while there: 1.10(b)

one client against another client represented by the lawyer in the same matter; and (4) each affected client gives informed
consent, confirmed in writing (drafted by attorney or client).

CONFLICTS with FORMER CLIENTS

FORMER CLIENT [1.9]
An attorney owes a Duty of Loyalty and a Duty of Confidentiality to Former Clients. MRPC 1.9 (a)
provides that an attorney shall not represent another person in the same or a substantially related matter
where persons interests are materially adverse to those of a former client unless the former client gives
informed consent, confirmed in writing.
An attorney must generally be weary of representing a former/clients competitors due to their materially
adverse interests. See Maritrans (holding that attorney hired by a firm, breached a fiduciary duty to firms
former client, when he brought in former clients biggest competitor to firm and when contract between former
client and firm was terminated.)
A matter is substantially related if: they involve the same transaction or dispute or if there is a
substantial risk that confidential factual information as would normally have neem obtained in the prior
representation would materially advance the clients position in a subsequent matter.
Attorneys should be warned that clients are not required to reveal confidential information
learned by attorneys to demonstrate that a substantial risk that the lawyer has confidential
information to use in a subsequent matter.
Lawyers Moving Between Firms
Under MRPC 1.9 (b) the attorney cannot knowingly represent a person in the same or substantially related
matter when a firm with which attorney formerly associated also represented a former client if: (1) the
persons interest are materially adverse to firms former client; and, (2) attorney acquired former clients
material information protected under the Duty of Confidentiality (MRPC 1.6) and MRPC 1.9(c); unless the
former client gives informed consent, confirmed in writing.
Rule operates to disqualify an attorney only when the attorney has actual knowledge of protected
information under 1.6 and 1.9(c). Therefore, if an attorney did not acquire knowledge or information
relating to a particular client of attorneys former firm, and the attorney later moved to another firm,
neither the attorney nor the second firm is disqualified from representing another client in the
same or related matter even if there is a conflict.
Lawyer Duty to not Use or Reveal Former Clients information in connection with new representation
Further, under MRPC 1.9(c) an attorney who represented a former client or whose present or former firm
represented a former client cannot thereafter: use information relating to the former client to disadvantage
that former client except as permitted or required with respect to the client under the MRPC or when the
information has become generally known; or, reveal information relating to the former client except as
permitted or required with respect to the client under the MRPC.
The rule operates to protect information acquired by attorney in the course of representing a client
against subsequent use or revelation by the attorney to the disadvantage of the client. However, the fact
that the attorney once served a client does not preclude the attorney from using generally known
information about the client when representing another client.
Apply Rule 1.9 (duty to former clients). If _______ has terminated representation of _______ and _______ is
now a former client, _______ may not subsequently represent _______ in a matter that is the same or a
substantially related and in which _______s interests are materially adverse to the interests of _______ unless
the former client gives informed consent, confirmed in writing. _______ will argue this is a _______ matter
and is not the same or substantially related to the _______, so written consent and/or withdrawal under MR
1.16 would not be required. However, this seems to be a weak argument and it is doubtful that _______ would
consent.

CONFLICTS BETWEEN ATTORNEYS and CLIENTS

LEGAL FEES [1.5]
Fees
MRPC 1.5 governs Attorney-Client Fee Contracts and provides that: (a) fees must be reasonable9 and that
(b)10 attorney must inform client about scope of representation, fee and expense for which client will be
responsible, preferably in writing, within a reasonable time after representation.
RSNBL FEE
Fees may be deemed reasonable when two sophisticated parties or equal bargaining power reach a fee
agreement. See, Brobeck v. Telex (holding that the fee was reasonable because no party took advantage
or had unequal bargaining power, despite wash settlement).
However, even when parties agree, courts may intervene when the fee significantly exceeds the cost of
services in a given locality. See, In the Matter of Fordham (holding fee was excessive because it was
much higher than comparable OUI attorneys; even though attorney succeeded without expertise and
through much work).
Billable Hour
A lawyer billing by the hour may not bill: more hours than those actually worked, overhead or
markup costs, two clients for one period of time; bill a second client for recycled work; more
hours due to attorneys performance of necessary extra work to justify the billing; clients or the
firm for personal expenses or markup expense receipts; clients at a lawyers rate for work that
could be done by secretaries; or, solely for the cost or service of billing.
Here, _________ also violated ethical considerations in the fee arrangement with __________. The
issue regarding the flat fee of _________ is whether it is reasonable under MRPC 1.5. Attorneys may not
charge excessive fees and flat fees are acceptable in certain instances. A flat fee of _______ to rescind the
cancellation does not seem excessive because it could involve several hours of work. However, to say that that
she will absolutely prevail to __________ may reflect adversely and have negative effects on views of her
honesty, trustworthiness or fitness as a lawyer, since ____ may not be able to suceees. Further, it is advisable to
have fee agreements in writing for enforceability.
Contingent
MRPC 1.5(c) allows Contingency Fees provided the fee is reasonable, unless barred by subsection (d) or
some other law. Contingency Fee requires that it be: (1) in a writing signed by the client and shall state the
method by which the fee is to be determined, including: (i) the percentage accruing to attorney in the event of
settlement, trial or appeal; (ii) litigation and other expenses deducted; (iii) and whether expenses are to be
deducted before or after the contingent fee is calculated. It further requires: (2) clear notice to client of any
expenses for which client is liable whether or not the attorney prevails; and, (3) provide client with a written
statement of the outcome of the matter and showing the remittance to client and method of its determination if
theres a recovery, upon the matters conclusion.
Subsection (d) prohibits Contingent Fees for: (1) an initial suit related to domestic relations matters
when the payment or amount is contingent upon the securing of a divorce or upon the amount alimony
or support, or property settlement in lieu thereof; (2) criminal representation; or (3) when it is barred by
some other law.
9 Factors determining reasonableness: required time and labor, novelty and difficulty of questions involved, and requisite skill to
properly perform the legal service; likelihood that acceptance of representation precludes other representation; fee rate in area; results
obtained; the time limitations imposed by client or circumstances; nature and length of the professional relationship; attorneys
experience, reputation, and ability; and whether the fee is fixed or contingent.

10 Except for regularly represented clients from which the attorney charges a regularly represented client on the same basis or rate.
Also, theres no writing requirement (except contingency). Modification of Fee Agreements any changes to the basis or rate of fee
or expenses shall be communicated to the client. Property can be accepted as payment in services provided it does not involve
acquisition of a proprietary interest in the cause of action (subject to 1.8(a)).

Here, since it is a negligence action it is permitted but ______ violated the ethical rules because there is
no writing signed by ________, and the attorney did not address whether costs are assessed before or after
recovery, and did not specify an amount. ____________/A fair percentage is not sufficient notice.
Forbidden and Restricted fee and expense arrangements
Buying legal claims. [1.8(i)] a lawyer may not acquire a proprietary interest, except permitted liens and
contingency fees. Financial Assistance to Clients [1.8(e)]. Publication Rights [1.8(d)]. Advance Payments of
Fees and Nonrefundable Retainer Fees. If the lawyer does not earn the whole amount advanced, the unearned
portion of the advance must be returned to the client. [1.16(d)]
Fee Disputes
Cannot Limit the Ability to sue for malpractice. [1.8(h)]. Collection of fees. You may be able to
withhold documents until the fee is collected.
Fee Splitting
MRPC 1.5 (e) Prohibits the Fee Splitting between attorneys who are not in the same firm unless: (a) the fee is
divided proportionally based on labor or each assumes joint responsibility of representation; (b) the client
agrees in writing to the arrangement; and (c) the fee is reasonable. Further, an attorney is prohibited from
splitting fee with non-lawyer (unless otherwise allowed under MRPC 5.4).
Referral Fees. Referral fees are allowed so long as the referrer take on financial and ethical
responsibility for the representation as if the lawyers were associated in a partnership.
Fee Splitting with Non Lawyer
Under MRPC 5.4 A lawyer or firm shall not share legal fees with a non-lawyer except (a) upon
attorneys death to estate and heirs; (b) a firm may contribute to a non-lawyers compensation or
retirement plan; and (c) court-awarded l
egal fees to non-profits.
Payment by Third Parties
Under MRPC 1.8(f), a third party is allowed to pay for a clients services only if: the client consents after being
advised, and the third party does not direct the lawyers decision or representation, and the attorney avoids
sharing with the third person any confidences learned in the course of the representation.

CLIENT PROPERTY AND DOCUMENTS [1.15]

MRPC 1.15 governs the Safekeeping of Property and provides that :(a) provides that an attorney shall hold
property11 belonging to clients or third persons in connection with representation, separate from own property;
(b) an attorney may deposit his own funds in a client trust account12 for the sole purpose of paying bank
service charges on that account but online in an amount necessary for that purpose; (c)13 an attorney must
deposit into client trust account legal fees and expenses paid in advance only to be withdrawn as fees are earned
or expenses incurred; (d) an attorney must promptly notify client or third person when receiving funds or other
property in which they have an interest; and, (e)14 when during representation the attorney is in possession of
property in which two or more people (attorney can be among them) claim interests, the property must be kept
separate by the attorney until the dispute is resolved.
May with Hold in Fee Disputes
Further, if there is a fee dispute, either between the attorney and the client or by a creditor, the attorney
will not touch the money in the account.
See Administering estates and trusts [MRPC 1.8 (c)]
Under MRPC 1.8 (c) an attorney cannot solicit 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
Related persons spouse, child, grandchild, parent, grandparent or other relative or individual with
whom the lawyer or the client has a close, familial relationship
A lawyer can accept a gift from a client if the transaction meets general standards of fairness
If client offers the lawyer a substantial gift, lawyer can take it but, lawyer cant suggest that a substantial
gift be made to him or for his benefit, except where lawyer is related to the client.
See Lawyers Personal and Business Interests [MRPC 1.7(a)(2)]
In general, a lawyer has a conflict of interest if there is a significant risk that the representation of one
or more clients will be materially limited by attorneys personal interests. Such situations may
involve: business transactions, gifts from clients, sexual relationships with clients, intimate or family
relationships with adverse lawyers, and imputation of Lawyer-Client Conflicts to Other Lawyers.

11 Funds shall be kept in a separate account maintained by the state where the lawyers office is situated or elsewhere at the consent
of the client. Other property must be identified as such an appropriately safeguarded. Complete records of such account funds and
other property must be preserved for five years after representation.
12 Attorney must keep accurate records about which part of the funds belong to whom.
13 Attorney may not hold funds to coerce client into accepting attorneys contention. Disputed portions of funds must be kept in a
trust a account and the lawyer should suggest means for prompt resolution of the dispute, such as arbitration.
14 The attorney must promptly distribute all portion of the property to which the interests are not in dispute. Third parties may have
lawful claims against specific funds or other property in attorneys custody (creditor, lienholder, etc), if third party claim is not
frivolous, the attorney must refuse to give property to client until the claim is resolved, attorney should not unilaterally assume to
arbitrate a dispute between the client and third party; but the attorney may file action to have court resolve the dispute.

CONFLICTS for GOV ATTY and JUDGES

CONFLICTS FOR FORMER GOVERNMENT LAWYERS [1.11]
MRPC 1.1115 regulates Conflicts of Interest for Former and Current Government Officers and Employees
An attorney who has served or is currently serving as a public officer or employee is subject to MRPC 1.11 and
1.7, and is subject to statutes and government regulations on conflicts of interest.
When an attorney moves from one agency to another, the second agency is treated as another
client. However, because the conflict of interest is governed by subsection (d), the later agency is not
required to screen the lawyers as (b) requires the firm to do.
Duty of Loyalty to Former Government / Public Clients
Under MRPC 1.11 (a)16, a former government officer or public employee attorney: (1) is subject to
disqualification under 1.9(c) (Former Client Conflicts); and (2) cannot represent a client in a matter17 where the
attorney personally and substantially participated18 as a public officer or employee, unless the appropriate
government agency gives informed consent, confirmed in writing.
Disqualification
MRPC 1.11 (b) provides that attorney disqualification under MRPC 1.11(a) imputes the conflict to the firm
unless attorney: (1) timely screened, (2) is apportioned no part of fee, (3) and promptly provides written notice
to the government agency to allow it to ascertain compliance with the rule.
However, __________ may avoid being disqualified from representing ______ against _______under
this rule. For one thing___________ probably does not constitute a matter, since it does not involve a
dispute between parties.
Also, _________ only ______________. This probably would not/be enough involvement to be
construed as participating personally and substantially so there is/not a good chance that _______ would
not/be deemed to have a conflict.
Duty of Confidentiality re. Government Information
MRPC 1.11 (c) provides that unless prohibited by law; an attorney who knows a confidential government
information19 regarding a person, acquired when attorney was a public officer or employee, may not represent
a private client whose interests are adverse20 to that person in a matter in which the information could be used to
15 R. 1.9(a): Applies to all successive conflicts except those related to former government work. Atty. cannot represent client without
informed consent of former client in the same or a substantially related matter if the new clients interests are materially adverse
to those of the former client. R. 1.11(a): Applies to conflicts related to former government work. Atty. cannot represent client without
informed consent of former client in a matter in which the lawyer participated personally and substantially.
16 NOTE: (a) and (d) dont prohibit a lawyer from jointly representing a private party and a government agency when doing so is
permitted by Rule 1.7
17 For this rule, a Matter is defined by subsection (e) as any judicial or other proceeding, application, request for a ruling or other
determination, contract, claim, controversy, investigation, charge, accusation, arrest, or other particular matter involving a specific
party or parties and any other matter covered by the conflict of interest rules of the appropriate government agency.
18 Personal and Substantial Participation is exercised through decision, approval, disapproval, recommendation, the rendering of
advice, investigation or otherwise. Personal denotes direct participation; and is substantial when the employees involvement must
be of significance to the matter, or form a basis for a reasonable appearance of such significance. Mere official responsibility,
knowledge, perfunctory involvement, or involvement on an administrative or peripheral issue, is insufficient.
19 Con. Gov. Inf.: means information obtained under government authority and which the government is prohibited from disclosing
to the public, or has a legal privilege not to disclose and is non-public.
20 Adverse Interest: This conflict occurs only when the information would harm the client.

the material disadvantage of that person. However, attorneys firm may undertake or continue representation in
the matter only if the disqualified attorney is timely screened and is apportioned no part of the fee.
What may make this problem somewhat more difficult is that it involves a lawyer who formerly worked for the
government and now is in private practice.
There are several ethical issues that attorney and ___________ should consider before agreeing to represent
__________ in _____________. Due to _____ past employment with ____________, there is a potential
conflict of interest in connection with _______ representing ________ against the former client, ________.
___________ worked for the government _____as a ______ for ______. During that time, _________
performed ___________________ that _____ seeks to challenge in court. When a lawyer who has worked for
the government enters private practice, as ________ has done, the attorney cannot represent a private party as to
a matter in which she participated personally and substantially.

Duty of Loyalty to Former Private Clients when Attorney is Currently Public Servant
MRPC 1.11 (d)21 provides that unless prohibited by law; an attorney currently serving as a public officer or
employee is subject to MRPC 1.7 and 1.9.
No Participation while in Private or Non-Governmental Employment
Further, the attorney cannot: (i) participate in matters in which attorney personally and substantially
participated in while in private or nongovernmental employment, without the appropriate government agencys
informed written consent, confirmed in writing; or, (ii) negotiate for private employment with any person
involved as a party or partys attorney, in a matter in which the attorney personally and substantially
participated.
However, subsection (ii) does not apply and attorney may negotiate for private employment, if attorney
is a law clerk to a judge, other adjudicative officer or arbitrator, and it does not violate MRPC 1.12 (b).

21 NOTE: (a) and (d) dont prohibit a lawyer from jointly representing a private party and a government agency when doing so is
permitted by Rule 1.7

JUDGES CONDUCT MODEL CODE OF JUDICIAL CONDUCT

The Model Code of Judicial Conduct sets out four Cannons governing the conduct of judges. The MCJC
provides that a judge shall: (1) uphold and promote the independence, integrity and impartiality of the judiciary,
and shall avoid impropriety and the appearance of impropriety; (2) perform the duties of the judicial office
impartially, competently, and diligently; (3) conduct the judges personal and extrajudicial activities to minimize
the risk of conflict with obligations of judicial office; and (4) judge or candidate for judicial office shall not
engage in political or campaign activity that is inconsistent with the independence, integrity or impartiality of
the judiciary.
Impartiality and Fairness
Judges are barred from conduct suggesting bias, including discriminatory behavior.
AFFILIATION W. A DISCRIMINATORY ORG. [MCJC 3.6]
MCJC 3.6 prohibits judges from joining organizations that discriminate.22 Judges are further prohibited from
using benefits or facilities of an organization if they know or should know it discriminates. Mere attendance at
such an organizations event does not violate the rule if the event is isolated and could not be perceived as an
endorsement.
EX PARTE COMMUNICATIONS
A judge must avoid ex parte communications unless: (1) they are made for scheduling, administrative or
emergency purposes so long as the substance matter is not addressed; (2) the judge is obtaining written advice
of a disinterested expert on a proceedings applicable law if the judge provides advance notice and opportunity
for parties objections; (3) judge is consulting with court staff, officials, or other judges; (4) judge has parties
written consent and is overseeing effort to settle a pending matter; (5) other ex parte communication is
permitted by law is allowed.
DISQUALIFICATION OF JUDGES
A judge cannot hear a matter in which his/her impartiality may be questioned. The analysis is viewed
objectively and determined by whether a reasonable person might think the judge is not impartial.
Judicial Election Campaigns
Under MRPC 7.6 Attorneys and firms are allowed to contribute to judicial campaigns. However, no
attorney can accept an appointment by a judge or obtain legal work at a government agency, if the
lawyer makes or solicits political contributions23 for that purpose.
Family
MCJC 2.4 prohibits a judge from allowing family, social, political, or other relationship influence the
judges judgment.

22 on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation
23 Includes gifts, subscriptions, loans, advances or depositions of anything of value.

CONFLICT RELATED TO JUDGES [1.12]

MRPC 1.12 governs Conflicts of Former Judges, Arbitrators, Mediators or other Third Party Neutral.
Under subsection (a) the attorney shall not represent anyone in connection with a matter in which they
personally and substantially participated24; unless all parties to the proceeding give written informed consent,
or subsection (d) applies.
CONFLICT related to NEGOTIATING EMPLOYMENT while CURRENTLY SERVING
Under subsection (b) such an attorney cannot negotiate for employment with any person involved as a party or
advocate in a matter in which they are personally and substantially participating as a judge, or other adjudicative
officer or as an arbitrator, mediator or other third-party neutral. However, subsection (b) does not apply to
attorneys serving as law clerks, only if they previously notified the judge, or other adjudicative officer
Imputation of Conflicts from FORMER JUDGES
MRPC 1.12 (c) imputes a former judges conflicts to a firm when they are disqualified unless: (1) the
former judge is timely screened and not apportioned a fee; and the parties and tribunal are given written, prompt
notice to enable them to ascertain compliance with the rule.
Partisan Arbitrator Exception
MRPC 1.12 (d) allows formerly selected partisan arbitrators in a multi-member arbitration panel, to
subsequently represent that party.

24 Personal and substantial participation. The same as Rule 1.11 government lawyers.

ADVERTISING and SOLICITATION

TRUTHFUL COMMUNICATION - SERVICES AND FEES [7.1].
MRPC 7.1 regulates Attorneys Communication about Legal Services. An attorney cannot make false or
misleading statements about themselves or services, regardless of the means used. A communication is false
or misleading if: (a) it contains a material misrepresentation of fact or law; or (b) omits necessary fact to
make considered statement considered materially misleading.
Expectation of Results
An advertisement that truthfully reports a lawyers achievements on behalf of clients may be misleading
if presented as to lead to a reasonable person to form an unjustified expectation that the same result
could be obtained without factual foundation.
Expectation of Service or Fee
A comparison of the attorneys services or fee to those of another attorney may be misleading if
presented with such specificity that would lead a reasonable person to conclude the comparison is
substantiated.
ADVERTISING [7.2]
MRPC 7.2 provides that an attorney: (a) may advertise through a variety of media, but must do so truthfully;
(b)25 cannot pay others for recommendation; and any communication (c) must include the name and address of
at least one attorney in the firm responsible for its content.
Prohibitions on lawyer advertising violate free speech. Bates v. State Bar of Arizona (holding that
attorney advertising is allowed under the First Amendment, but that it could regulated and subject to
restraint when false, deceptive, or misleading.) Client testimonials, portrayals of judges, irrelevant
advertising, and the use of trade names, are not prohibited.
SOLICITATION [7.3]
General Advertising. [cmt 1]
General advertising like billboards, website, or ads are not considered solicitation because they are
directed to the general public.
No Ambulance Chasing
MRPC 7.3 regulates attorney Solicitation of clients. MRPC 7.3(a) prohibits client solicitation for professional
employment which is in-person, or through live telephonic or internet communications, when a significant
motive is pecuniary gain; unless: the person is an attorney or is a lawyer, family, or has a close personal or prior
professional relationship with the attorney.
Prepaid Legal Referral Service Exception
Under MRPC 7.3(d) however, an attorney may use a Prepaid or Group Legal Service Plan to contact
client directly notwithstanding (a).
Here, ______________ has not directly solicited but may have through an agent. In most states, it is
misconduct to circumvent ethical considerations by having another person violate them on ones behalf.
Here, it is likely _____ asked _________ to(pass out her cards) because _____, as an ambulance
driver, sees many potential victims like _____. In conclusion, __________ violated ethical
considerations in payment to ________ for the reasons above.
25 EXCEPT: the attorney may pay reasonable advertising costs (not for channeling work); may pay for a legal service plan or
non-profit or qualified referral services; pay for law practice purchase under MRPC1.17 (Purchase Sales of a Law Practice); can pay
Referral Fees (see MRPC 1.5, (e) subject to (e), attorney must not pay solely for referral but does not violate the rule by agreeing to
refer clients to the other attorney or non-attorney professional); under a Reciprocal Referral Agreements which does not otherwise
violate the rules if agreement is: (1) not exclusive; and (2) the client is informed of the existence and nature of the agreement.

Prohibition on Client rejects Solicitation

Subsection (b) further prohibits solicitation if a client has made known to attorney the desire to not be solicited
or if it involves coercion, duress or harassment.
Required Notice of Written Advertising
MRPC 7.3(c) requires every written, recorded, or email that is advertising to include the words Advertising
Material on the outside of the envelope, unless the client is a lawyer, family, or has a close personal or prior
professional relationship with the attorney or it is sent in response to requests of potential clients.
COMMUNICATIONS OF SPECIALTIES [7.4]
MRPC 7.4 (a) permits attorneys to communicate whether they practice in particular fields of law but prohibits
them from doing so misleadingly.
MRPC 7.4(b) permits attorneys admitted to engage in patent practice before the U.S. Patent and
Trademark Office to use the designation Patent Attorney or similar.
MRPC 7.4 (c) permits attorneys engaged in admiralty practice to use the designation Proctor in
Admiralty or similar
MRPC 7.4 (c) prohibits attorneys from stating or implying they are certified specialists in a particular field of
law unless: (1) certified by an accredited organization; and, (2) certifying organizations name is clearly
identified in the communication.
FIRM NAMES AND LETTERHEADS [7.5]
MRPC 7.5 (a) permits attorneys to use trade names provided the use complies with MRPC 7.1; unless it
implies a connection with a government agency or charitable organization.
A firm in continuous existence may include in its trade name, the names deceased partners but not
those of disassociated partners.
MRPC 7.4 (b) A firm can use the same name for the same firm in different jurisdictions provided they note
where each member is admitted.
MRPC 7.4 (c) prohibits use of an attorneys name who holds public office, does not actively practice with the
firm, as part of the firm name or in any of its communications.
MRPC 7.4 (d) prohibits attorneys from stating or implying that they practice in a partnership or other
organization when it is not the fact.

PROFESSIONAL INDEPENDENCE FROM NON-LAWYERS [5.4]

Prohibition of Splitting Fees with Non-Attorney
MRPC 5.4 (a) prohibits attorneys from splitting legal fees with non-attorneys except: (1) on attorneys death
(as in a will or other agreement); (2) when purchasing a deceased attorneys practice, under MRPC 1.17; (3) to
compensate non-attorney services; and, (4) to share court-awarded fees with a nonprofit.
Prohibition of Legal Practice Partnership with Non-Attorney
MRPC 5.4(b) prohibits attorney from forming a legal practice partnership with a non-lawyer.
Prohibition on Third-Party Influence on Professional Judgment
MRPC 5.4 (c) prohibits attorney from permitting third-party direct or regulate attorneys professional judgment
in a clients matter, even if they recommend, employ, or pay for that clients legal services.
Prohibition on Attorney Beholden to Non-Attorney
MRPC 5.4 (d) prohibits Attorneys to be beholden to a Non-Lawyer unless the non-lawyer: (1) owns an
interest; (2) is a corporate director or occupies a position of similar responsibility; or (3) has the right to direct
or control the professional judgment of a lawyer.

MRPC APPLIES TO LAW-RELATED SERVICES [5.7]

MRPC 5.7 subjects the attorney to the MRPC when attorney provides Law Related Services. Id. (a). This
rule applies to law-related services if they are indistinct from legal services. A law-related service is a service
that might reasonably be performed in conjunction with and in substance are related to the provision of legal
services, and are not prohibited as unauthorized practice of law when provided by a non-lawyer. Id. (b).

ATTORNEY DUTIES TO COURTS

MERITORIOUS CLAIMS AND CONTENTIONS [3.1]
MRPC 3.1 prohibits an attorney form bringing frivolous26 claims and contentions to the courts.
However, when defending a criminal case, the attorney can require the prosecution to prove every
element of the case.
Not Frivolous Claims. Frivolous is largely undefined.
EXPEDIENCY [3.2]
(Think 1.3 - Diligence as well).
MRPC 3.2 requires that an attorney make reasonable efforts to expedite litigation consistent with the interests
of the client. The rule applies to attorney conduct to meet discovery requests, appear at every court hearing,
calendar call, deposition, arbitration, or mediation. Accordingly, attorneys request for extensions are granted
for good cause. When the court is confronted by a request for an extension, it determines whether a competent
lawyer acting in good faith would regard the course of action as having some substantial purpose other than
delay.
Further, an attorney cannot routinely fail to expedite litigation solely for the convenience of the
advocates; attempt to frustrate opposing partys attempt to obtain rightful redress or repose; rely on
justifications that similar conduct is often tolerated by the bench and bar.
DUTY OF CANDOR TOWARDS THE TRIBUNAL [3.3]
MRPC 3.3 (a) provides that attorneys in a tribunal cannot knowingly: (1) make or fail to correct previous false
statements or material fact27; (2) hide or fail to disclose adverse controlling authority28; (3) offer known false
evidence.29 Under subsection (c) this duty continues through the conclusion of the proceeding (when judgment
affirmed on appeal or time of review has passed) and apply even if compliance requires disclosure under MRPC
1.6.
Prohibition on Crime and Fraud
MRPC 3.3 (b) provides that an attorney who knows client in a matter intends to engage or engaged in criminal
or fraudulent conduct, must take reasonable remedial measures,30 including disclosure, if necessary. Under
subsection (c) this duty continues through the conclusion of the proceeding (when judgment affirmed on appeal
or time of review has passed) and apply even if compliance requires disclosure under MRPC 1.6.
ExParte Communication
MRPC 3.3 (d) requires that attorney in ex parte31 proceeding, inform the tribunal of all known32 material facts,
including known adverse material facts, to permit tribunal to make an informed decision.
26 An action is frivolous id the attorney is unable to make either a good faith argument on the merits of the action taken or to support
the action taken by good faith argument for an extension, modification or reversal of existing law. Further, claims merely brought to
threaten or harass opponents, attempt to force a settlement, or that have no basis in fact or law are not permitted.
27 May require the disclosure of confidential information and discontinues at the conclusion of the proceeding.
28 Furthermore, attorneys must disclose adverse legal authority that opposing counsel failed to disclose. Obligation terminates at the
close of the proceedings.
29 Cannot allow clients or witnesses to offer evidence known or reasonably believed false. However, in criminal cases attorneys
may offer evidence they reasonably believe to be false. When an attorney knows client will testify something untrue, attorney does
not breach duty to counsel when advising client to not lie. See Nix v. Whiteside (holding attorney does not breach Duty to Counsel
when advising client not to lie on the stand).
30 Remedial Measures: advise the client of the attorneys Duty of Candor to Tribunal and seek cooperation regarding withdrawal or
correction of the false statements or evidence. If this fails and attorney cannot withdraw, attorney must disclose as is reasonably
necessary even if it requires the attorney to reveal information under MRPC 1.6. Ordinarily, withdrawal is not required but may be
advisable if the Attorney-Client Relationship has deteriorated to the point that attorney cannot competently represent client;
31 Judge has affirmative responsibility to afford absent party just consideration.
32 Attorney must provide those facts considered by the rule, which are known or reasonably believed to reach an informed decision.

Which Truth-Telling Rule Applies:

Who might lie
or deceive
Lawyer

Situation (Court, administrative hearing, or

discovery)
Lawyer is considering making a false statement of
fact or law to a judge.

Lawyers obligation

Client

Lawyer knows that her client is considering

testifying falsely in court or in a deposition.
Lawyer suspects but does not know that the planned
testimony may be false; witness is not criminal
defendant.
Lawyer suspects but does not know that the planned
testimony may be false; witness is a criminal
defendant.
Lawyer knows that her client or other witness has
testified falsely during direct or cross-examination.

Lawyer must counsel client and refrain from asking client questions that
would elicit the false testimony. 3.3(a)(3).
If lawyer reasonably believes it is false, lawyer may refuse to offer the
testimony or may allow it. 3.3(a)(3)

Civil client or
witness in any
proceeding
Criminal
Defendant
Client/Witnes
s
Client/witness
Lawyer

Lawyer

Witness has misled the court by making statements

that are literally true but deception
Lawyer knows of directly adverse controlling legal
authority that has not been disclosed by opposing
counsel.
Lawyer knows of facts adverse to clients interest,
not requested or required to be disclosed by a court
rule.

Lawyer must not do it. [ 3.3(a)(1), 8.4]

If the defendant insists on testifying, lawyer must allow it even if lawyer

reasonably believes it is false. 3.3(a)(3).
Lawyer must counsel client to correct the record; consider withdrawing;
correct record if necessary to undo the effect of the false testimony. Rule
3.3(b) and (c) and cmt 10.
Lawyer may have a duty to counsel client and correct the record. 3.3(b),
8.4(c).
Lawyer must bring it to courts attention (and distinguish it or explain
why it is not authoritative.) 3.3(a)(2).
No need to disclose unless the proceeding is ex parte. 3.3(d)

DUTY OF FAIRNESS TO OPPOSING PARTY & COUNSEL [3.4]

MRPC 3.4 imposes a Duty of Fairness to Opposing Party and Counsel, and prohibits attorney from doing a
number of things.
Spoilage
Under subsection (a) an attorney cannot unlawfully alter, destroy, conceal, or obstruct access to evidence or
other document with evidentiary value, or assist others to do so.
Falsification
Under subsection (b) an attorney cannot falsify or counsel or assist a witness to falsify evidence.
Disobey Law or Order
Under subsection (c) an attorney cannot knowingly disobey an obligation under the rules of a tribunal
except for open refusals based on an assertion regarding its invalidity.
Frivolous Discovery Request
Under subsection (d) an attorney cannot make frivolous discovery requests.
Relevance and Prohibition on Testifying
Under subsection (e) an attorney cannot: (i) allude to matters not reasonably believed relevant or unsupported
by admissible evidence; (ii) assert personal knowledge of a fact without testifying to it; or, (iii) state personal
opinions regarding witness credibility, litigant culpability, or an accuseds guilt or innocence.
Cannot ask Person to Not Testify Against Client
Under subsection (f) an attorney cannot request that a person other than the client to refrain from voluntarily
giving information to opposing side unless: the person is a relative, employee or agent of the client and the
attorney reasonably believes the persons interests will not be adversely affected by refraining from giving such
information.

INTERACTIONS WITH THE JUDGE AND JURIES [3.5]

Under MRPC 3.5 an attorney shall not (a) illegally influence judges, juries, or court officials; (b) communicate
ex parte with judges, other court officers, or jurors, unless authorized by a court order; (c) communicate with
jurors or prospective jurors after discharge if unlawful, juror does not desire it, or the the communication
involves misrepresentation, coercion, duress or harassment; and (d) engage in conduct intended to disrupt the
tribunal. The attorney should therefore avoid abusive behavior while presenting evidence and arguing in front
of a judge.

TALKING TO THE PRESS [3.6]

Under MRPC 3.6 (a) an attorney cannot make extrajudicial statements that attorney knows or should know will
spread to the public, and have a substantial likelihood to materially prejudice the case. Further, subsection (d)
prohibits attorneys associated in a firm or government agency with a lawyer subject to (a) from making
statements prohibited by that section.
May Talk to Press
However, subsection (b) provides that an attorney may state: the claim, offense or defense involved absent
any legal prohibition; public information; that an investigation of a matter is in progress; the scheduling or
result of any step in litigation; a request for assistance in obtaining evidence and information necessary; or, 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.
In addition, in Criminal Cases: the attorney may state: the identity, residence, occupation and family
status of the accused; if the accused has been apprehended, and info necessary; the fact, time and place
of arrest; the identity of the arresting officers; and length of ongoing investigation.
Defensive Statements
Defensive Statements are permitted under subsection (c), which are reasonably required to protect a client
from the effects of substantial undue prejudicial publicity.

ADVOCATE WITNESS RULE [3.7]

MRPC 3.7 (a) prohibits attorneys from advocating at a trial in which the lawyer is likely to be necessary
witness unless: (1) the testimony relates to an uncontested issue33; (2) the testimony relates to the nature and
value of legal services rendered in the case34; or (3) attorneys disqualification would be a substantial hardship
on client35.
If Conflict
If there is a conflict of interest, the attorney must acquire the clients informed consent in writing. In some
cases, the attorney will be precluded from acquiring informed consent.
If Called as Witness and Disqualified
However, under subsection (b), if likely that attorney will be called as a necessary witness and is disqualified
from advocating in a trial, another attorney from the firm may represent the client unless precluded from doing
so under MRPC 1.7 or 1.9. If the testifying attorney, would be disqualified from representing the matter
because a conflict, then that conflict is imputed on his or her firm, unless the client gives informed written
consent under MRPC 1.7.

33 No conflict
34 Permitting an attorney to testify avoids the need for a second trial with new counsel to resolve that issue.
35 Whether the tribunal is unlikely to be misled or the opposing party is likely to suffer prejudice depends on the nature of the case,
the importance and probable tenor of the testimony, and the probability that the testimony will conflict with that of another witness.

PROSECUTORIAL DUTIES TO THE COURT [3.8]

MRPC 3.8 sets out a Prosecutors Duties to the Court in a criminal case.
Under MRPC (a) Prosecutors in a criminal case shall not prosecute a charge they know is not supported by
probable cause.
Under MRPC (b) prosecutors must make reasonable efforts to assure defendants are advised of the right and
the procedure of obtaining counsel, and that they have been given reasonable opportunity to obtain counsel.
MRPC (c) prohibits prosecutors from seeking from unrepresented accused, a waiver of important pretrial
rights, (such as the right to a preliminary hearing).
Under MRPC (d) requires that a prosecutor make timely disclosure of all known exculpatory evidence or
mitigating information in a Criminal Case. At the sentencing stage, prosecutors must disclose all known
unprivileged mitigating information to the defense and tribunal, absent a protective order.
Under MRPC (e) prosecutors cannot subpoena attorneys in a grand jury or other criminal proceeding to
present evidence about a past or present client unless the prosecutor reasonably believes: (1) the information
sought is not protected by privilege; (2) the evidence is essential to successful completion of an ongoing
investigation or prosecution; and (3) there is no other feasible alternative to obtain it.
Under MRPC (f) a prosecutor cannot make extrajudicial comments which have a substantial likelihood of
heightening public condemnation of the accused. However, the prosecutor may make statements that are
necessary to inform the public of the nature and extent of prosecutors action and which serve legitimate law
enforcement purposes.
The prosecutor must also exercise reasonable care to prevent prosecutors agents or associates from making an
extrajudicial statement that the prosecutor would be prohibited from making under this section and MRPC 3.6.
MRPC (g) applies in the event that a prosecutor acquires knowledge of new, credible and material evidence
creating a reasonable likelihood that a convicted defendant is innocent of previous conviction; such
prosecutor must: (1) promptly disclose that evidence to an appropriate court or authority; and (2) if the
conviction was obtained in the prosecutors 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 wrongly convicted.
MRPC (h) applies in the event that a prosecutor gains knowledge of clear and convincing evidence establishing
that a defendant in the prosecutors jurisdiction was convicted of an offense that the defendant did not commit,
and requires the prosecutor to seek a remedy for the conviction.

ADVOCATING IN NON-ADJUDICATIVE PROCEEDINGS [3.9]

MRPC 3.9 Applies only when an attorney represent in client in an official hearing or meeting of a
governmental agency or legislative body to which the attorney or client is presenting evidence or argument.
In non-adjudicative proceedings before a legislative body of administrative agency, attorneys must disclose that
they are appearing in a representative capacity, and must conform to MRPC 3.3(a), (b), and (c), MRPC 3.4 (a),
(b), and (c), and MRPC 3.5.
Does not Apply in Negotiations or Bilateral Transactions with Gov. Agcy.
The rule does not apply in negotiations or other bilateral transaction with a governmental agency, or with a
license application or other privilege, or the clients compliance with generally applicable reporting
requirements. Nor does it apply to representation in connection with an investigation or examination of clients
affairs conducted by government investigators or examiners.
REPRESENTATION TO THE COURT AND SANCTIONS FRCP 11
Federal Rules of Civil Procedure (FRCP 11) requires attorney of record to sign every pleading, motion and
other court documents. In presenting to the court such pleadings, motions, or records, the attorney certifies that
to the best of his knowledge: they serve no improper purpose, such as to harass, cause unnecessary delay, or
needlessly increase the cost of litigation; the claims, defenses, and other legal contentions are warranted by
existing law or a non-frivolous argument; the factual contentions have or will have evidentiary support after
discovery; and the denials of factual contentions are reasonably based on belief or lack of information.
Under subsection (b) an attorney or firm is subject to discretionary Sanctions for violations of the rule, after
reasonable opportunity to respond.

LAWYERS DUTIES TO ADVERSARIES AND THIRD PERSONS

TRUTHFULNESS [4.1]
MRPC 4.1 imposes a Duty to be Truthful to adversaries and third persons. Unlike MRPC 3, the duty applies to
communications outside proceedings. The rule provides that in representing clients, an attorney may not
knowingly: (a) make a false statement of material fact or law to a third person or (b) fail to disclose a material
fact when disclosure is necessary to avoid assisting a criminal or fraudulent act36 unless limited by the Duty of
Confidentiality limitations under MRPC 1.6. The misrepresentations may occur when attorney incorporates
or affirms: a known and false third party statement or partially true but misleading statements or omissions.
NO DIR. COMMUNICATION - REPRESENTED PARTIES [4.2]
MRPC 4.2 provides that an attorney cannot communicate directly with a person known to be represented by
counsel in a matter, except on wholly unrelated matters. It does not matter who initiated the communication
and the attorney must immediately terminate the communication if the represented party initiates
communication. However, the attorney may communicate with a represented party if the attorney has other
counsels consent, or is authorized by law or court order.
If Organization
In the case that the represented party is an organization, the attorney cannot talk to an employee who
supervises, has authority to obligate the organization, or whose actions would be imputed on the
company.
COMMUNICATION UNREPRESENTED PARTIES [4.3]
MRPC 4.3 applies when an attorney is representing a client and communicates with an unrepresented party.
The attorney cannot say or imply that they are a disinterested party in the matter. The unrepresented party must
understand who the attorney is, and requires the attorney make reasonable efforts to correct a person who
misunderstands the attorneys role in the matter.
Can Only Advise to Get Attorney
The attorney cannot give an unrepresented person legal advice outside of advising to obtain separate counsel,
when the attorney knows or reasonably should know that the persons interests are or may reasonably be in
conflict with those of the client.
For example, there is no conflict when the attorney negotiates the terms of a transaction or settlement of
a dispute with an unrepresented person. Provided that the attorney explains they represents an adverse
party and not representing the person, the attorney may inform the unrepresented person of the terms
under which the client agrees on or settles a matter, prepares documents requiring a signature, or explain
attorneys own view about the meaning of a document or legal obligations

36 Applies when clients crime or fraud takes the form of a lie or misrepresentation. Ordinarily, an attorney can avoid assisting a
clients crime or fraud by withdrawal. 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 to avoid being deemed to have assisted in the clients crime or fraud. If the lawyer can avoid assisting a clients crime or
fraud only by disclosing information, he can do so under MRPC 1.2 (d).

DUTY TO RESPECT RIGHTS TO THIRD PARTIES [4.4].

MRPC 4.4 (a) imposes on an attorney the Duty to Respect a Third Partys Rights. In representing a client,
attorneys cannot take actions which serves no substantial purpose other than to embarrass, delay, or burden third
parties.
Requirement to Notify of Inadvertently sent Confidential Information
Further, subsection (b) requires an attorney to promptly notify a sender who inadvertently sends confidential
information during discovery. It applies when attorney knows or has reason to know that it was inadvertently
sent.