Professional Responsibility

The Client-Lawyer Relationship

1. Competence
a. 1.1: A lawyer shall provide competent representation to a client. Competent
representation requires the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation.
i. Factors: complexity and specialized nature of the matter, lawyers
general experience, training, preparation and study available to spend
on the matter, whether it is feasible to refer the matter.
ii. Need not have specialized training or experience to handle new legal
problems
iii. Emergencies are okay if you cannot refer.
2. Scope of Representation
a. Clients Decisions
i. 1.2(a): a lawyer shall abide by a clients decisions concerning the
objectives of representation and shall consult with the client as to the
means by which they are to be pursued. A lawyer may take such
actions on behalf of the client as is impliedly authorized to carry out
representation. A lawyer shall abide by a clients decision whether to
settle a matter. In a criminal case, the lawyer shall abide by the clients
decision, after consultation with the lawyer, as to a plea to be entered,
whether to waive jury trial and whether the client will testify.
ii. Civil Cases
1. Client decides whether to settle
iii. Criminal case
1. Client decides whether to testify, plea, waive jury trial.
b. Limiting Scope
i. 1.2(c): A lawyer may limit the scope of the representation if the
limitation is reasonable under the circumstances and the client gives
informed consent.
ii. Must be reasonable under the circumstances
1. Limitation cannot exempt a lawyer from the duty to provide
competent representation
c. No Illegal Conduct
i. 1.2(d): A lawyer shall not counsel a client to engage, or assist a client,
in conduct that the lawyer knows is criminal or fraudulent, but 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 law.
ii. Prohibited from knowingly counseling or assisting a client to commit a
crime or fraud.
1. Does not prevent lawyer from giving honest opinion about the
actual consequences of a type of conduct.
iii. If client is already engaged in that conduct, the lawyer must avoid
assisting the client in areas the lawyer knows is fraudulent or by
suggesting how to conceal the fraud.
1. It may be necessary for the lawyer to withdraw. If withdrawal is
insufficient, the lawyer may have to give notice.
3. Communication

a. Diligence
i. Rule 1.3: A lawyer shall act with reasonable diligence and promptness
in representing a client.
b. Communication
i. Rule 1.4(a)(1): A lawyer shall promptly inform the client of any decision
or circumstance with respect to which the clients informed consent is
required
ii. (2) reasonably consult with the client about the means by which the
clients objectives are to be accomplished
iii. (3) keep the client reasonably informed about the status of the matter
iv. (4) promptly comply with reasonable requests for information and
v. (5) consult with the client about any relevant limitation on the lawyers
conduct when the lawyer knows that the client expects assistance not
permitted by the Rules.
vi. (b) a lawyer shall explain a matter to the extent reasonably necessary
to permit the client to make an informed decision regarding the
representation.
1. A lawyer must consult with client about the means and
objectives
2. Keep the client reasonably informed
3. Comply with reasonable requests for information
4. Explain matters to the client that are reasonably necessary so
the client can make informed consent.
4. Fees
a. Rule 1.5(a): Fees must be reasonable. Factors to determine fees:
i. Time, novelty, difficulty, skill
ii. Likelihood that this work will exclude other work
iii. Prevailing market rates
iv. Amount of time and results likely to be obtained
v. Time limitations
vi. Nature and length of relationship with this client
vii. Experience, reputation and ability of lawyer
viii. Whether fee is fixed or contingent
b. Rule 1.5(b): Scope of representation and fee should be laid out in writing
before or within a reasonable amount of time after the representation has
commenced.
c. Rule 1.5(c): A contingent fee is allowed under certain circumstances
i. Needs to be in writing and signed by client
ii. Must show accurate bill at the conclusion of the representation
d. Rule 1.5(d): No contingency fees for:
i. Domestic relations matters
ii. Criminal cases
e. Rule 1.5(e): Division of Fees
i. Okay for lawyers in the same firm
ii. Okay for lawyers not in the same firm only if:
1. The division is proportional to the work
2. The client agrees
3. The total fee is reasonable
5. Confidentiality of Information
a. Rule 1.6: A lawyer shall not reveal information relating to the representation
of a client unless:

i. The client gives informed consent

ii. The disclosure is impliedly authorized in order to carry out the
representation
iii. The lawyer reasonably believes it is necessary to:
1. Prevent death or bodily harm
2. Prevent the client from committing a crime or fraud that is
reasonably certain to result in substantial injury to the interests
of another
3. To prevent, mitigate or rectify injury to the interests of another
from a crime the client committed using the lawyers services
4. To secure legal advice about compliance
5. To establish a claim or defense to a charge against the lawyer
based on the conduct with the client
6. To comply with law or a court order
7. To resolve conflicts of interests
Conflicts of Interest
6. Conflicts of Interest: Current Clients
a. Rule 1.7: a lawyer shall not represent a client if the representation involves a
concurrent conflict of interest. A concurrent conflict of interest exists if:
i. The representation of one client will be directly adverse to another
client OR
ii. There is a significant risk that the representation of one client will be
materially limited by the lawyers responsibilities to another client
b. A lawyer may represent a client (not ones directly opposed in litigation) if:
i. The lawyer reasonably believes that he can provide competent and
diligent representation
ii. The representation is legal
iii. The representation does not involve the assertion of a claim by one
client against another in the same litigation or other proceedings and
iv. Each affected client gives informed consent, in writing.
c. Process
i. Identify the clients
ii. Determine whether a conflict exists
iii. Decide whether representation may be undertaken despite the conflict
iv. If so consult with the clients and obtain informed, written consent.
d. If a conflict of interest arises before representation is undertaken, lawyer
must decline, unless consented to by both.
e. Personal Conflicts of Interest
i. Lawyers own interests are not permitted to have an adverse effect on
representation of the client
1. Lawyer has a stake in the transaction
2. Lawyer has discussion concerning possible employment with an
opponent of the firm
3. Undisclosed financial interests
ii. Relatives
1. Clients are entitled to know the existence and implications of the
relationship between the lawyers BEFORE the lawyer undertakes
representation (informed consent required)
2. Not imputed to other members of the firm
3. No sexual relationships with a client unless it was pre-existing.

f. Third Party Payor

i. A third party may pay for services but client must informed consent
ii. Attorney-client relationship remains with the client and not with the
payor
g. Incontestable Conflicts
i. Determined by considering whether the interests of the clients will be
adequately protected if the clients are permitted to consent
ii. Some states
1. Cannot represent more than one defendant in a capital case
2. Representation by a former government lawyer in criminal cases
iii. Mediation is not a tribunal so no conflicts there.
h. Informed Consent
i. Includes the relevant circumstances and the reasonably foreseeable
ways the conflict could have an adverse effect on that client
ii. Sometimes informed consent cannot be obtained because in order to
do so, the lawyer would have to break confidentiality
i. In Writing
i. Document executed by client
ii. Subsequent to oral consent, lawyer records it and transmits it to client
iii. Must be within a reasonable amount of time
j. Revocation
i. A client may revoke consent and terminate representation at any time
k. Consent to Future Conflicts
i. Determined on case by case basis; clients sophistication is a factor
ii. If specific type of conflict, generally ok
iii. If open ended, normally ineffective
l. Conflicts in Ligitation
i. Co-defendants
1. Ordinarily a lawyer should decline to represent multiple
defendants in a criminal case
2. Common representation in civil cases may be proper if informed
consent
ii. Precedent
1. Ordinarily taking a position in one case that may harm another
case in terms of precedence is okay unless it materially limits the
lawyers effectiveness
2. Factors include
a. Where cases are pending
b. Substantive or procedural issues
c. Temporal relationship
d. Significance of the issues
iii. Class Action
1. Unnamed plaintiffs not considered clients for purposes of
conflicts
2. Informed consent of unnamed parties not required
m. Common Representation
i. Lawyer has an equal duty to each client
ii. If one client asks lawyer not to share information with others in
common representation, this can create a conflict
iii. At the outset lawyer should advice that if one party becomes adverse
to another, the lawyer will have to withdraw from that representation

n. Organizational Clients
i. A lawyer representing parent company does not necessarily represent
subsidiaries or affiliates
ii. If the lawyer is also a board member, should determine whether the
two roles will conflict
7. Conflict of Interest: Specific Rules
a. Rule 1.8: lawyer shall not enter into business transaction with client or
knowingly acquire an interest adverse to a client unless:
i. The terms and transaction are reasonable and fair and are fully
disclosed in writing
ii. Client is advised to seek independent counsel and
iii. Client gives written, informed consent
b. Lawyer shall not use information of the client to the clients disadvantage
unless the client gives informed consent.
c. A lawyer shall not solicit any substantial gift from a client.
d. Prior to conclusion of representation, lawyer shall not make or negotiate an
agreement for literary or media rights relating to the representation.
e. Lawyer shall not provide financial assistance except
i. May advance court costs and expenses of litigation, the repayment of
which may be contingent
ii. For an indigent client, can pay court costs and expenses outright
f. May not accept third party payor money unless:
i. Client gives informed consent
ii. No interference with client-lawyer relationship and
iii. Information of representation is still protected
g. For aggregate settlements, a lawyer shall not participate in the agreement
unless each client gives informed consent in writing. Lawyers disclosure
shall include existence and nature of all claims or pleas involved and the
people involved.
h. A lawyer shall not
i. Make an agreement limiting the lawyers liability to a client for
malpractice
ii. Settle a claim with an unrepresented client unless that person is
advised in writing to get a lawyer
i. A lawyer shall not acquire a proprietary interest in the cause of action or
litigation except the lawyer may:
i. Acquire a lien to secure a fee and
ii. Contract with a client for a contingency fee in civil cases
j. No sexual relationships with a client unless it was pre-existing.
k. All except sexual relationship are imputed to the firm.
8. Duties to Former Clients
a. Rule 1.9: A lawyer who has formerly represented a client cannot represent
another adverse party in the same or substantially related matter without
written, informed consent.
b. Lawyer shall not represent a person in the same or substantially related
matter in which a firm the lawyer was a part had previously represented a
client:
i. Whose interests are materially adverse and
ii. The lawyer has obtained protected information
Unless the former client gives written, informed consent.
c. A lawyer with a firms former client shall not thereafter:

i. Use the information to the disadvantage of the former client or

ii. Reveal the information relating to the representation.
d. Question: whether the lawyer was so involved in the matter that the
subsequent representation can be justly regarded as a changing of sides in
the matter in question
9. Imputation of Conflicts of Interest: General Rule
a. Rule 1.10: While lawyers are associated in a firm, none of them shall
knowingly represent a client when any one of them practicing alone would be
prohibited from doing so unless:
i. The prohibition is personal or
ii. The disqualification is a result from the attorneys prior firm and
1. The disqualifying lawyer is timely screened
2. Written notice is given to former clients and
3. Certifications of compliance with the Rules are given
b. When a lawyer has terminated an association with a firm, the firm is not
prohibited from representing conflicted parties unless:
i. The matter is the same or substantially related and
ii. Any lawyer remaining in the firm has information protected
c. Disqualification under this section can be waived by clients
d. Definition of a Firm:
i. Lawyers in a law partnership, professional corporation, sole
proprietorship or other association authorized to practice law, lawyers
employed in legal service organizations or legal departments of
corporations or organizations
10.
Conflicts of Interest for Government Officers and Employees
a. Rule 1.11: A lawyer who formerly served as a public officer or employee to
the government shall not represent a client in connection with a matter
which the lawyer participated personally and substantially as a public officer
unless the government agency gives written, informed consent.
b. If the lawyer is disqualified, no lawyer in the firm may undertake the
representation unless:
i. The disqualified lawyer is timely screened and removed from fees for
that representation
ii. Written notice is given to the government agency.
c. If the lawyer has information that the lawyer knows is confidential
government information, the lawyer may not represent a private clients
whose interests are adverse to that matter in which the information could be
used to the material disadvantage of that person.
d. Lawyer currently serving as public officer:
i. Cannot participate in a matter he personally and substantially
participated in while in private practice or
ii. Negotiate for private employment with any person who is involved as a
party
e. Matter includes:
i. Judicial or other proceeding
ii. Application
iii. Request for a ruling or other determination
iv. Contract
v. Claim
vi. Controversy
vii. Investigation

11.
a.
b.
c.

d.
12.
a.
b.

c.
d.
13.
a.
b.
c.

14.
a.
b.
c.

viii. Charge
ix. Accusation
x. Arrest
xi. Other particular matter involving specific party or parties.
Former Judge, Arbitrator, Mediator or other Third Party Neutral
Rule 1.12: lawyer shall not represent person in which they participated
personally and substantially as a judge arbitrator or law clerk unless all
parties give written informed consent.
Lawyer may not negotiate for employment as a judge, adjudicative officer,
mediator or other third party neutral. Law clerks may negotiate for
employment only after the judge has been notified.
If a lawyer has been disqualified, no other lawyer may knowingly undertake
representation unless
i. The disqualified layer is timely screened and receives no fee
ii. Written notice is given to the parties and tribunal
An arbitrator selected as a partisan of a party is not prohibited from
subsequently representing that party.
Organization as a Client
Rule 1.13: A lawyer represents the organization
If the lawyer knows that a constituent is engaged in action that may
substantially injure the corporation, the lawyer shall refer the matter to the
highest authority in the organization.
i. If highest authority doesnt act, and
ii. The lawyer reasonably believes the violation is reasonably certain to
cause substantial injury to the organization
iii. Then the lawyer may reveal information to prevent injury to the
organization.
In dealing with companys individual employees, the lawyer should explain to
that person that he represents the company if he knows or reasonably
should know that the organizations interests are adverse to the employees.
A lawyer representing a company may represent any of its employees. The
organization must consent (other than the individual who is to be
represented).
Client with Diminished Capacity
Rule 1.14: if the clients capacity is diminished, the lawyer shall try to
maintain a normal client-attorney relationship
The lawyer may take reasonably protective action to protect the client.
In taking such actions, the lawyer is allowed to reveal information but only to
the extent necessary to protect the clients interests.
i. Lawyer should not disclose the clients mental incapacity unless
absolutely necessary to protect the clients interests
Safekeeping Property
Rule 1.15: Lawyer should keep his funds separate from the clients. Complete
records of accounts and funds should be kept by the lawyer for five years
after termination of the representation.
Lawyer may deposit his own funds into the clients account only to pay
service charges.
Lawyer should deposit advance legal fees and expenses into the client trust
fund account and should only draw on those funds when services have been
rendered.

15.

16.

17.

d. If the lawyer receives property or money in which a client or third party has
an interest, the lawyer should notify that person.
e. If the lawyer has possession over disputed property or funds, that money
should be kept separate until the dispute has been resolved.
Termination
a. Rule 1.16: A lawyer shall not represent a client or, where representation has
commenced, shall withdraw from the representation if
i. the representation results in violation of rules or law
ii. lawyers physical or mental condition is impaired
iii. the lawyer is discharged
b. Lawyer can withdraw from representation if:
i. It can be accomplished without materially adversely effecting the client
ii. The client is persisting in illegal conduct
iii. Client used the lawyers services in furtherance of a crime
iv. Client insists upon taking actions repugnant to the lawyer
v. Client fails to fulfill an obligation
vi. Representation is an unreasonable financial burden on the lawyer
vii. Other good cause.
c. Must give notice and if required, show good cause.
d. Upon termination, must take steps to protect clients interest like giving
notice, allowing time for employment of other counsel, surrendering
paperwork or unused retainer.
Sale of Law Practice
a. Rule 1.17: May sell or purchase a law practice if:
i. The seller ceases to practice private law or at least in the area of
practice that has been sold
ii. The entire practice or the entire area of the practice is sold
iii. The seller gives written notice to each of the sellers clients:
1. Proposed sale
2. Clients right to retain other counsel and
3. Clients consent will be presumed if the client does not take any
action within 90 days.
iv. If notice cannot be given, then a court order transferring
representation must be acquired.
v. Fees charged to clients cannot increase because of the sale.
Duties to Prospective Clients
a. Rule 1.18: A person who consults with a lawyer about potential
representation is a prospective client.
b. Information learned from a prospective client is protected by attorney-client
privilege
c. Cannot take on the client if they are a part of the same of substantially
similar matter that is adverse to their interests. This is imputed to the firm as
well.
d. Representation is permissible if:
i. Both the affected and prospective client have given written informed
consent or
ii. The lawyer receiving the information took steps to avoid exposure to
more disqualifying information and
1. The disqualifying lawyer is timely screened and no fees and
2. Written notice is given to the prospective client.

Differing Roles of a Lawyer

18.
a.

b.

19.
a.

b.

20.
a.

21.
a.

b.

Counselor
Rule 2.1: Advisor
i. In representing a client, a lawyer shall exercise independent
professional judgment and render candid advice. In rendering advice, a
lawyer may refer not only to law but to other considerations such as
moral, economic, social and political factors, that may be relevant to
the clients situation.
Comments
i. Lawyer should also give honest advice, even if it is unpalatable.
ii. It is proper for a lawyer to refer to moral and ethical considerations in
giving advice.
iii. The type of advice given is based on the sophistication of the client.
iv. If the client needs to speak with a specialist in another field, the lawyer
should advice this.
v. A lawyer has no duty to initiate an investigation into the clients affairs
or to give advice but may do so if it appears to be in the clients
interests.
Evaluation for Use by Third Persons
Rule 2.3:
i. A lawyer may provide an evaluation of a matter affecting a client for
the use of a third party if the lawyer reasonably believes it is
compatible with representation of the client
ii. If the lawyer knows or should know that the evaluation will be adverse
to his client, he should not provide unless the client gives informed
consent.
iii. Information relating to an evaluation is confidential.
Comments
i. The question is: whether the lawyer is retained by the person whose
affairs are being examined.
1. If yes, the general rules of loyalty to client and preservation of
confidences apply.
ii. Important that who the lawyer is retained by is made clear to both
parties.
iii. Lawyer is not permitted to make a false statement of material fact or
law in providing an evaluation
Lawyer as Third Party Neutral
Rule 2.4:
i. A lawyer may serve as a third party neutral to resolve a dispute
between two people, neither of which are the lawyers client. i.e.,
arbitrator or mediator
ii. Lawyer serving in this role shall inform unrepresented parties that the
lawyer is not representing them. Lawyer should explain the difference
to them.
Meritorious Claims and Contentions
Rule 3.1
i. A lawyer shall not bring a frivolous claim. A lawyer may in a criminal
case defend the proceeding as to require that every element of the
case be established.
Comments

22.
a.
b.

23.
a.

b.

c.

d.

i. Lawyers must inform themselves of the facts of their clients cases and
positions. An action is not frivolous even if the lawyer thinks the action
will fail.
ii. It is frivolous if the lawyer cannot make a good faith argument on the
merits of the argument for extension, modification or reversal of
existing law.
iii. A lawyers obligations under this rule are second to properly defending
a criminal defendant even if the lawyer knows the defendant to be
guilty.
Expediting Litigation
Rule 3.2: A lawyer shall make reasonable efforts to expedite litigation
consistent with the interests of the client.
Comments
i. Not okay to routinely fail to expedite litigation solely for the
convenience of the advocates.
ii. Not okay to delay just to frustrate the opposing party.
iii. Question is whether a competent lawyer acting in good faith would
regard the course of action as having some substantial purpose other
than delay
Candor Towards the Tribunal
Rule 3.3
i. A lawyer shall not knowingly:
1. Make false statements or fail to correct a false statement
previously made to the tribunal
2. Fail to disclose legal authority in the controlling jurisdiction that is
directly adverse to the clients position
3. Offer evidence the lawyer knows is false.
ii. If a lawyers client s engaging in criminal or fraudulent conduct, the
lawyer shall take remedial measures including disclosure to the
tribunal.
iii. In an ex parte proceeding, a lawyer shall inform the tribunal of all
material facts known to the lawyer that will enable the tribunal to
make an informed decisions whether or not the facts are adverse.
Representations by a Lawyer
i. An assertion purporting to be on the lawyers own knowledge, as in an
affidavit by the lawyer or in a statement in open court may properly be
made only when the lawyer knows the assertion is true or believes it to
be true after reasonably diligent inquiry
Legal Argument
i. Must disclose adverse authority in the controlling jurisdiction that has
not been disclosed by the opposing party.
ii. Legal argument is a discussion seeking to determine the legal premises
properly applicable to the case
Offering Evidence
i. Lawyer must refuse to offer evidence he knows is false, regardless of
the clients wishes.
ii. If the lawyer knows the client intends to testify falsely, the lawyer
should try to persuade the client. If he cannot, the lawyer can choose
not the call the witness. If it is the defendant, he can put him on the
stand but not ask him questions.

e.

f.

24.
a.

b.

25.
a.

iii. This applies only if the lawyer knows the evidence is false. Does not
apply if the lawyer has a reasonable belief that the evidence is false.
The lawyer may refuse to offer that evidence as well.
Remedial Measures
i. If the lawyer learns that evidence or testimony was false afterwards,
the lawyer must take reasonable remedial measures
ii. Inform the client of your duties and ask that the client correct the
evidence or cooperate in your withdrawal
iii. In resolving the situation, the lawyer may have to disclose confidential
information. Then it is up to the court to decide what to do.
iv. This prevents the lawyer from being forced to commit fraud on the
court.
Duration of the Obligation
i. Conclusion of the proceeding terminates the obligation (i.e. final
judgment has been affirmed on appeal or the time for review has
passed)
Fairness to Opposing Party and Counsel
Rule 3.4: Lawyer shall not:
i. Unlawfully obstruct another partys access to evidence or alter, destroy
or conceal a document or other material with evidentiary value.
ii. Falsify evidence, counsel or assist a witness to testify falsely or offer an
inducement to a witness
iii. Knowingly disobey an obligation under the rules of a tribunal
iv. Make a frivolous discovery request or fail to make effort to comply with
proper discovery requests
v. Allude to any matter the lawyer does not reasonably believe is relevant
or that will not be supported by admissible evidence, assert personal
knowedge of facts in issue or state a personal opinion as to the
justness of a case, the credibility of a witness, guilty or innocence of
accused
vi. Request a person other than the client from refraining to give
information unless
1. The person is a relative or employee of the client
2. The lawyer reasonably believes that the persons interests will
not be adversely affected by refraining from giving such
information
Witnesses
i. Not improper to pay for their expenses or to compensate expert
witnesses
ii. It IS improper to offer lay witnesses a fee for testifying or to pay an
expert a contingent fee
Impartiality and Decorum of the Tribunal
Rule 3.5: A lawyer shall not:
i. Seek to influence a judge, juror, prospective juror or other official
ii. Communicate ex parte with such a person during the proceeding
iii. Communicate with a juror after discharge if:
1. The communication is prohibited by the judge
2. The juror has made known they dont want to be contacted
3. The communication involves misrepresentation, coercion, duress
or harassment
iv. Engage in conduct to disrupt the tribunal

26.

27.

b. Comments
Trial Publicity
a. Rule 3.6
i. No extrajudicial statements the lawyer knows or should know will be
disseminated by means of public communication and will have a
substantially likelihood of prejudicing the proceeding
ii. A lawyer may state:
1. The claim, offense or defense involved and the identity of the
persons
2. Information contained in the public record
3. The investigation is in progress
4. Scheduling or result of any step in litigation
5. Request for assistance in obtaining evidence or information
6. Warning of danger concerning the behavior of a person involved
when there is reason to believe harm to an individual or public
interest
7. Criminal case:
a. Identity, residence, occupation and family status
b. If the accused has not been apprehended, information
necessary to aid in the apprehension
c. The fact, time and place of arrest
d. Identity of investigating and arresting officers or agencies
and the length of the investigation
8. A statement required to protect a client from substantial undue
prejudicial effect of recent publicity
b. Comments
i. Things not to mention
1. Character, credibility, reputation or criminal record of a party,
suspect, identity of a witness or expected testimony
2. Whether incarceration is possible, possibility of guilty plea,
confession, admission, refusal or failure to make a statement
3. Performance or result of tests or refusal or failure to take them
4. Opinion as to guilt or innocence
5. Fact that defendant has been charged with a crime unless lawyer
notes that it is merely an accusation and he is innocent until
proven guilty
6. Extrajudicial speech that may be prejudicial
Lawyers as Witnesses
a. Rule 3.7
i. A lawyer shall not act as advocate at a trial in which the lawyer is likely
to be a necessary witness unless:
1. The testimony relates to an uncontested issue
2. The testimony relates to the nature and value of legal services
rendered in the case OR
3. Disqualification of the lawyer would work substantial hardship on
the client
ii. A lawyer may be an advocate in a trial in which another lawyer in the
lawyers firm is likely to be called as a witness.
b. Comment
i. Even if a lawyer can serve as a witness and advocate, conflicts of
interest may prevent him from doing so.

28.

29.

Special Responsibilities of a Prosecutor

a. Rule 3.8: Prosecutors in a criminal case shall
i. Refrain from prosecuting a charge that the prosecutor knows is not
supported by probable cause
ii. Make reasonable efforts to assure that the accused has been advised
of the right to obtain counsel
iii. Not seek to obtain a waiver of rights from an unrepresented accused
iv. Make timely disclosures
v. Not subpoena a lawyer about a past or present client unless
1. The information is not protected by privilege
2. The evidence is essential
3. No feasible alternative to obtain the information
vi. Refrain from making extrajudicial comments
vii. When a prosecutor gets new evidence that a convicted did not commit
the offense he shall
1. Promptly disclose that evidence to the appropriate court and
2. If the conviction was in his jurisdiction, disclose that to the
defendant and
3. Undertake further investigation to determine whether the
defendant as wrongfully convicted
viii. When a prosecutor knows of evidence that a convicted defendant did
not commit the crime, the prosecutor shall seek to remedy the
conviction
Advocate in Nonadjudicative Proceedings
a. Rule 3.9: A lawyer representing a client before a legislative body or
administrative agency in a nonadjudicative proceeding shall disclose that the
appearance is in a representative capacity and shall conform to the
provisions of the rules.

Transactions with Persons Other than Clients

30.

Truthfulness in Statements to Others

a. Rule 4.1: A lawyer shall not knowingly
i. Make a false statement of material fact or law to a third person or
ii. Fail to disclose a material fact when disclosure is necessary to avoid
assisting a criminal or fraudulent act by a client, unless disclose is
otherwise prohibited.
b. Comments
i. Misrepresentation
1. Must be truthful in dealing with others but has no affirmative
duty to inform an opposing party of relevant facts
2. Must not affirm or incorporate a statement of another person the
lawyer knows is false
3. Misrepresentation can also occur if the lawyer makes true but
misleading statements
ii. Statement of Fact
1. NOT material fact:
a. Estimates or price or value
b. Partys intentions as to acceptable settlement of a claim
c. Existence of an undisclosed principal except where
nondisclosure would constitute fraud
iii. Crime or Fraud by Client

31.

1. Sometimes can withdraw and disaffirm an opinion

2. In extreme cases, the lawyer may have to withdraw and disclose
information relating to the representation to avoid having been
deemed to assist the clients crime or fraud
Communication with Person Represented by Counsel
a. Rule 4.2
i. In representing a client, a lawyer shall not communicate about the
subject of representation with a person the lawyer knows to be
represented by another lawyer in the matter, unless the lawyer has the
consent of the other lawyer or is authorized to do so by law or a court
order.
b. Comments
i. This Rule applies even if the person initiated
ii. If the lawyer discovers the person is represented, immediately
terminate communication.
iii. OK to communicate about matters outside the representation.
iv. Parties to a matter may communicate directly about a matter.
v. If an