ABA Model Rules of Professional Conduct
I. Rule 1.0 – Terminology
a. Belief; Confirmed in writing; Firm [Cal 1-100(B)(1)]; Fraud; Informed consent [Cal 3-310(A)]; Knowingly; Partner [Cal 1-100(B)(5)]; Reasonable; Reasonable belief; Reasonably should know; Screened; Substantial; Tribunal; Writing [Cal 3-310(A)]
II. Rule 1.1 – Competence
a. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation [Cal 3-110]
i. Legal knowledge and skill - Consult or learn new field; reasonable preparation; in emergency keep assistance limited
ii. Thoroughness and preparation – factual and legal inquiry; what is at stake
iii. Keep abreast of changes and engage in CLE
III. Rule 1.2 – Scope of Representation & Allocation of Authority Between Client and Lawyer
a. Client makes decisions regarding representation and means; lawyer may act under implied authority; client’s decision to settle; client’s decision whether to enter plea, waive a jury or testify
b. Representation is not endorsement of client’s views or activities
c. Lawyer may limit scope of representation if reasonable & with informed consent of client
d. No counseling to engage in or assist in fraud; discuss consequences; good faith effort to determine law [Cal 3-200(B) & 3-210]
i. May require lawyer to withdraw (Rule 1.16)
IV. Rule 1.3 – Diligence
a. Reasonable diligence and promptness requirement [Cal 3-110(B), B&P Code 6128 (delay)]
i. Zealous advocacy; control workload; carry matters to conclusion
V. Rule 1.4 – Communication
a. Lawyer shall [Cal 3-500, 3-510, B&P 6068(m)]
i. Inform client of matters requiring informed consent (settlement)
ii. Reasonably consult with client re the means by which to accomplish the client’s objectives
iii. Keep client reasonably informed re status of matter Promptly comply with reasonable requests for info
iv. Consult re limitations on lawyer’s conduct
b. Explain to extent reasonably necessary to permit informed decisions by client
i. Fulfill reasonable client expectations
VI. Rule 1.5 – Fees
a. No unreasonable fees or unreasonable amounts for expenses based on factors:
i. Time, labor, novelty, difficulty, skill requisite; likelihood of precluding other employment; fees customarily charged in locality; amount involved and results obtained; time limitations; nature and length of professional relationship; reputation, experience and skill of lawyer; fixed or contingent fee [Cal 4-200]
b. Fee basis to be communicate before/within reasonable time of commencement of representation (preferably in writing)
c. Contingent fee must be communicated in writing, signed by client, with particulars [B&P 6146, 6147, 6147.5, 6148]
i. Contingency fees not permitted for domestic relations or criminal representation
d. Division of fees outside the firm permitted only if
i. Division is proportional to work done or joint responsibility is assumed; Client agrees and agreement confirmed in writing; and fee is reasonable [Cal 2-200]
e. ABA Opinion – A lawyer may not bill for more time than she actually spends on a matter
i. May not charge for general overhead expenses; only may recoup expenses reasonably incurred in connection with client’s matter as long as charge reflects lawyer’s actual cost
VII. Rule 1.6 – Confidentiality
a. Lawyer shall not reveal confidential information relating to the representation unless the client gives informed consent or disclosure is impliedly authorized [Cal 3-100]
b. Information may be revealed to reasonably believed extent necessary to:
i. Prevent reasonably certain death or substantial bodily harm
1. McClure v. Thompson (Oregon)
a. Counsel reasonably believed that disclosure was necessary to prevent further criminal acts regarding the seemingly ongoing crime of the missing children
i. Past conduct is totally privileged
ii. Prevent client from committing crime or fraud resulting in substantial injury to financial interests or property (Enron Exception)
iii. Prevent, mitigate or rectify substantial injury to financial interests
iv. Secure legal advice re compliance with rules
v. Establish claim or defense re controversy between lawyer and client
vi. Comply with court order
c. City of Reno (Nevada)
i. Attorney client privilege not waived when using email
1. Client’s reasonable expectation of privacy
ii. Lawyer must disclose if she uses inadvertently disclosed information
VIII. Rule 1.7 – Conflict of Interest: Current Clients
a. No representation if concurrent conflict of interest [Cal 3-310]
i. Conflict of interest if
1. Representation of one client will be directly adverse to another client; or
2. Significant risk that representation of one client will be materially limited by lawyer’s responsibilities to another client, a former client, a third person, or a personal interest of the lawyer
b. May represent despite concurrent conflict of interest if
i. Lawyer able to provide competent and diligent representation to each client; representation is not illegal; representation is not a claim by one client against another in the same litigation; and each client gives informed consent confirmed in writing
IX. Rule 1.8 – Conflict of Interest: Current Clients: Specific Rules
a. No business transaction with client (or pecuniary interest adverse to client) unless [Cal 3-300]
i. Transaction is fair and reasonable to client and fully disclosed in writing; client advised in writing of desirability of seeking independent legal counsel (and reasonable time); and client gives informed consent in signed writing
1. Not an arm’s length transaction
b. No use of information to disadvantage of client unless informed consent and permitted by these rules
c. No gift solicitations nor preparation of instrument giving the gift to lawyer or her relative unless the lawyer/recipient is related to client (close familial relationship) [Cal 4-400]
d. No agreement re media rights prior to conclusion of representation
e. No financial assistance from lawyer to client except:
i. Advance court costs and expenses (repayment may be contingent); and lawyer may pay court costs and expenses on behalf of indigent client
f. No acceptance of payment from one other than client unless: [Cal 3-310]
i. Informed consent, no interference with independence or relationship, confidential information is protected per rule 1.6
g. No aggregate settlement of claims without informed consent in signed writing with lawyer’s disclosure of all claims involved
h. No agreement to limit lawyer’s liability for malpractice unless client independently represented; no settlement of malpractice claim with unrepresented client unless advised in writing of desirability of independent counsel (and given reasonable time) [Cal 3-400]
i. No proprietary interest in the cause of action or subject matter of litigation except – lien to secure fees or to contract re contingency fee in civil case
j. No sexual relations with clients unless consensual sexual relationship existed when client-lawyer relationship commenced [Cal 3-120]
i. All prohibitions above imputed to firm except (j)
k. [generally Cal 3-320, 4-300]
X. Rule 1.9 – Duties to Former Clients
a. No representation of a person in same or substantially related matter as former client if person’s interests are materially adverse to the interests of the former client (unless informed consent confirmed in writing) [Cal 3-310]
b. No representation of a person with same or substantially related matter if firm previously represented a client – whose interests are materially adverse to the that person; and about whom the lawyer gained confidential information
c. After representing a client a lawyer shall not
i. Reveal information relating to the representation to the disadvantage of the former client (unless info generally known); or
ii. Reveal information except as permitted or required by these rules
d. Determine that client is former based on client’s viewpoint – reasonable belief standard
XI. Rule 1.10 – Imputation of Conflict of Interest
a. Firm may not represent client if individual lawyer may not represent per 1.7 conflict of interest or 1.9 duties to former votes unless based on personal interest and no risk of material limitation exists
b. May represent materially adverse interests when a client has terminated an association with the firm unless
i. Matter is the same or substantially related and any firm lawyer has protected information [Cal 3-310]
1. Disqualification may be waived by client
XII. Rule 1.11 – Special Conflict of Interest for Current and Former Government Officers and Employees
a. Former officer of employee
i. Continuing duty of confidential information
ii. No representing a client in connection with a matter the lawyer participated in personally and substantially unless government agency gives informed consent confirmed in writing
b. Imputation to new firm unless
i. Lawyer screened, lawyer not to receive any part of fee; and written notice is given to appropriate government agency
c. May not represent a person in a claim against a person about whom the lawyer has confidential information obtained while working for government (under government authority) if the private client’s interests are adverse to and could be used to the material disadvantage of that person
i. Information is not available to public
ii. Firm may continue representation if lawyer is screened and no fee
d. Current officer or employee
i. Subject to 1.7 conflict of interests and 1.9 duties to former clients
ii. Shall not participate in matter in which lawyer participated personally and substantially while in private practice (unless government’s informed consent);
iii. Nor negotiate for private employment with person involved as a party or lawyer for party in a matter in which lawyer is participating personally and substantially
1. Except if law clerk to judge
XIII. Rule 1.12 – Former Judge or Other Third Party Neutral
a. No representing anyone in connection with a matter in which the lawyer participated personally and substantially as a judge, officer, law clerk, arbitrator, mediator
i. Unless all parties give informed consent confirmed in writing
b. No negotiating for employment with person involved in a proceeding in which lawyer is participating personally and substantially
i. Law clerk to judge may negotiate for employment only after lawyer has notified judge/officer
c. Imputation to firm unless
i. Lawyer timely screened and no fee; and written notice to the parties and any appropriate tribunal (to ascertain compliance)
d. Partisan arbitrator on a panel is not prohibited from subsequently representing that party
XIV. Rule 1.13 - Organization as a Client
a. Lawyer represents the organization acting through its duly authorized constituents [Cal 3-600]
b. If lawyer knows of a violation of legal obligation likely to result in substantial injury to the corporation, lawyer shall proceed as is reasonably necessary on the best interest of the organization
i. Includes referring the matter to higher authority within the organization
c. If highest authority fails to address an action or refusal to act that is clearly a violation of law and the lawyer reasonably believes the violation is reasonably certain to result in substantial injury to the organization
i. Lawyer may reveal information regardless of rule 1.6, but only to the extent necessary to prevent substantial injury to the organization
ii. Does not apply to information relating to a lawyer’s representation to investigate or defend an alleged violation
d. If lawyer is discharged because of actions per (b) and (c), or lawyer withdraws, she shall proceed to assure that the organization’s highest authority is informed of the lawyer’s discharge or withdrawal
e. Must explain the identity of the client to any of the organization’s directors, officers, employees, members, shareholders or others when lawyer knows that the organization’s interests are adverse to the constituent’s
f. Dual representation permitted per 1.7 consent of appropriate official (or shareholders) other than the one who is to be represented
XV. Rule 1.14 – Client with Diminished Capacity
a. Maintain a normal client-lawyer relationship as far as reasonably possible
b. May take reasonably necessary protective action (consulting or seeking appointment of guardian ad litem)
i. Confidential information is protected but lawyer has implied authorization to reveal information only to the extent necessary to protect client’s interests
XVI. Rule 1.15 – Safekeeping of Property
a. Hold client property and funds separately from lawyer’s (separate account); and complete records to be retained for five years after termination of representation [Cal 4-100]
i. Own funds may only be deposited in trust for bank service fees
ii. Deposit fees un advance in trust account and withdraw only as earned/incurred
b. Upon receipt of funds promptly notify client and promptly deliver entitled funds to client along with full accounting if requested
c. Keep disputed funds separate until resolution and promptly distribute all undisputed portions
XVII. Rule 1.16 – Terminating Representation
a. Mandatory Withdraw if [Cal 3-700]
i. Representation will violate rules or law
ii. Lawyer’s condition will materially impair his ability to represent
iii. Lawyer is discharged
b. Permissive Withdraw if
i. Accomplishable without material adverse effect on interests of client
ii. Client persists in fraudulent course of conduct involving lawyer’s services
iii. Client has used lawyer’s services to perpetrate crime or fraud
iv. Fundamental disagreement/lawyer finds action repugnant
v. Client fails to fulfill obligation re services (warning required)
vi. Representation will result in unreasonable financial burden on lawyer or has been rendered unreasonably difficult by client
vii. Other good cause
c. Comply with law re notice or permission from tribunal
d. Protect client’s interest via notice, time to employ other counsel, surrender papers and advance fees
XVIII. Rule 1.17 – Sale of Law Practice
a. Seller ceases to practice in area or jurisdiction; notice given to clients
i. Consent presumed if no action within 90 days [Cal 2-300]
b. Fees may not increase by reason of sale
XIX. Rule 1.18 – Duties to Prospective Client
a. Prospective client if discusses possibility of representation
i. Determine is attorney-client relationship exists based on client’s reasonable expectation
b. Lawyer shall not use or reveal information learned in consultation
c. No representation of a client with an interest materially adverse to the potential client’s in the same or substantially related matter if info received by lawyer that could be harmful
i. Imputation to firm
d. Exception – Representation is permissible despite disqualifying information if