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Tables of Contents for Professional Responsibility
Chapter/Section Title
Page #
Page Count
Overview of the Subject of Professional Responsibility
Scope of Coverage
1
2
The requirements of the law school course
1
1
The requirements of the bar exam
1
1
Your life as a lawyer
2
1
A Short History of Professional Regulation
3
2
Major Policy Considerations
5
1
Sources of Authority
6
6
The kinds of standards that may apply
7
1
Finding the standards
8
1
Who enforces the standards and how?
9
2
Are the standards validly applied?
11
1
The Structure of Professional Regulation
Regulation by State Authorities
12
6
Who calls the shots?
12
1
Admission to practice
13
4
The requirement of compliance with professional standards
17
1
Regulation by Federal Authorities
18
2
Who calls the shots?
18
1
Admission to practice
18
1
Compliance with professional standards of conduct
19
1
Jurisdiction of Professional Regulators
20
4
Conduct for Which a Lawyer May be Disciplined: General Principles and Interpretive Guidelines
The Structure and Taxonomy of the Model Code
24
1
Canons
24
1
Disciplinary Rules
24
1
Ethical Considerations
25
1
A word about footnotes
25
1
The Structure and Taxonomy of the Model Rules
25
1
A Brief Comparative Overview
26
1
The Model Code Canons
26
1
The Model Rule topical groupings
27
1
Reiterating the Distinction Between Mandate and Aspiration -- ``Must'' vs. ``Should''
27
1
Types of Common Offenses for Which Lawyers can be Disciplined
27
3
Violations of specific provisions of the Model Code or Model Rules
28
1
Assisting and/or attempting to violate specific provisions of the Model Code or Model Rules
28
1
Commission of certain crimes
28
1
Acts involving dishonesty
29
1
Conduct prejudicial to the administration of justice
29
1
Stating or implying an ability to influence improperly a government agency or official
29
1
Conduct adversely reflecting on fitness to practice law
29
1
Knowing assistance in a violation of judicial conduct
30
1
Primary vs. Secondary Liability for Violations of Disciplinary Standards
30
2
A Lawyer's Responsibilities to the System
Responsibilities Relating to the Admission Process
32
2
Responsibilities Relating to the Disciplinary Process
34
3
The duties of a lawyer subject to a disciplinary proceeding
34
1
The duty of lawyers not themselves the subject of disciplinary proceedings with respect to those proceedings
35
1
The duty to report wrongdoing
35
1
The duty under the Model Rules
35
1
The duty under the Model Code
36
1
Protection of clients' interests in connection with the duty to report wrongdoing
36
1
Responsibilities Relating to the Unauthorized Practice of Law
37
2
The duty to avoid unauthorized practice
37
1
The duty to avoid assisting the unauthorized practice of law
37
1
The duty to avoid the sharing of fees with non-lawyers
38
1
The duty to avoid forming a partnership with a non-lawyer
39
1
Systemic Responsibilities Relating to Preservation of the Model of Attorney Client Relationships
39
5
The duty to avoid agreements restricting the ability to practice law
40
1
The duty to avoid direct communications with those known to be represented by counsel
40
2
Duties when dealing with unrepresented persons
42
2
Beginning and Ending the Attorney-Client Relationship
Beginning the Attorney Client Relationship
44
6
The duty to reject some representations
44
1
The (arguable) duty to accept some representations
44
2
Identifying the client
46
1
Identifying the moment the relationship begins
47
1
The process of defining client objectives and expectations
48
1
Special considerations involving the objectives of incompetent or impaired clients
49
1
Ending the Attorney Client Relationship
50
6
Termination by the representation's own terms
50
1
Mandatory termination
50
1
Discretionary termination
51
2
The overriding importance of a tribunal's rules on withdrawal
53
1
The proper method of ending the relationship
54
1
Collecting a fee after the relationship has ended
54
1
Continuing duties after the relationship has ended
55
1
Setting and Sharing Fees and the Handling of Client Funds
Setting Fees
56
6
The amount that may be charged
56
2
Communicating the basis of calculating the fee
58
1
Charging expenses
58
1
Charging a fee on a contingent basis
59
3
Billing
62
1
Collecting Fees
63
1
Referral Fees and Fee-Sharing
63
2
Recognizing the problem
63
1
Distinguish sharing within firms
64
1
Distinguish sharing with non-lawyers
64
1
Standards for sharing with lawyers not in firms
64
1
The approach of the Model Rules
64
1
The approach of the Model Code
65
1
Dealing With Client Funds and Other Property
65
6
The duty to safeguard funds or other property
65
2
The duty to keep adequate records
67
1
Avoiding commingling with an attorney's own funds or property
67
2
The duty to give prompt notice of receipt
69
1
The duty to deliver promptly
69
1
The duty to give an accounting
69
1
Duties with respect to resolving disputes
69
1
Client security funds
69
2
The Lawyer's Duties Relating to Competence Diligence and Communication
The Duty of Competence
71
1
The Duty of Diligence
72
1
Duties Relating To Client Communication
73
2
The Attorney-Client Privilege, the Duty of Confidentiality and Related Matters
The Rules of Evidence
75
4
The attorney-client privilege
75
1
Establishing the privilege
76
1
Claiming and waiving the privilege
77
1
The work product doctrine
78
1
Work protected
79
1
Overcoming the protection of the doctrine
79
1
The Duty of Confidentiality Under the Disciplinary Standards
79
7
The context of coverage
79
1
The information covered by the disciplinary standards
79
1
The coverage of the Model Rules
79
1
The coverage of the Model Code
80
1
The actions limited by the duty
80
1
Exceptions to the duty of confidentiality
81
1
Client consent
81
1
Legal compulsion
82
1
Legitimate self-interest
82
1
A client's intent to engage in wrongdoing
83
2
Disclosures required or permitted by the disciplinary standards themselves
85
1
The Attorney-Client Privilege, the Duty of Confidentiality and the Former Client
86
1
The Duties to Avoid Making Misrepresentations and to Avoid Assisting a Client in Perpetrating a Crime or Fraud
87
3
The Duty of Loyalty, Part I: Avoiding Conflicts Among Clients
Current Client Conflicts
90
11
The basic rule
91
1
Illustrations of how the basic rule applies
91
1
Manifest conflicts
91
1
Inchoate conflicts
92
2
Indirect conflicts
94
1
Addressing conflict through consent
95
1
When can consent properly be sought?
95
1
How and when is consent to be obtained?
96
1
Waivers in advance
96
1
Addressing conflict through withdrawal
97
1
Withdrawal to accept a new client
97
1
Withdrawal from one or more of multiple ongoing representations
98
1
Avoiding conflict through careful client definition
98
2
Intermediations
100
1
Former Client Conflicts
101
2
The duty of loyalty owed to former clients
101
1
Distinguish the continuing duty of confidentiality
102
1
The Duty of Loyalty, Part II: Avoiding Conflicts Between the Interests of Clients and Those of Third Parties
Basic Principles
103
1
The approach of the Model Rules
103
1
The approach of the Model Code
104
1
Special Applications
104
9
Third-party payers, generally
104
1
Representing an insured
104
1
Public interest litigation
105
1
The client under a disability
105
1
The organizational client
106
1
The organization is the client
106
1
In some instances, organizational constituents should be regarded as third-parties
106
1
Resolving conflicts between constituent and organizational interests
107
2
Instances of simultaneous representation and the need for consent
109
1
Evaluations for third parties
110
3
The Duty of Loyalty, Part III: Avoiding Conflicts Between the Interests of Clients and the Lawyer's Own Interests
The General, or Catchall, Provisions Limiting Representations Implicating the Lawyer's Own Interests
113
3
Situations not otherwise addressed
113
1
Acting as a director of a corporate client
113
1
A lawyer's own business interests
114
1
A lawyer's own personal interests
114
1
A special case - matters of the heart
115
1
Situations that are otherwise addressed
116
1
The Specific Provisions Limiting Representations Implicating the Lawyer's Own Interests
116
8
Business transactions with clients
116
1
The approach of the Model Rules
116
1
The approach of the Model Code
117
1
Acquisition of pecuniary interest adverse to client
118
1
Documenting gifts from clients
118
1
Acquiring an interest in the outcome of litigation
119
1
Financial support of clients in litigation
120
1
Acquiring publication rights
121
1
Limiting liability to clients
121
2
Relationships with other lawyers
123
1
The Duty of Loyalty, Part IV: Imputation and Motions For Disqualification
Imputation Under the Model Rules and Model Code
124
4
The approach of the Model Rules
125
2
The approach of the Model Code
127
1
Motions for Disqualification
128
3
Raising the objection
128
1
Assessing the objection -- the importance of screening
129
2
The Lawyer's Special Duties as an Advisor
The Extent of Acceptable Advice
131
2
Related Matters
133
1
A Lawyer's Special Duties as an Advocate, Part I: Frivolous Claims and Defenses, Trial Tactics Generally, Special Rules on Dealing with Witnesses, Jurors and the Press and the Lawyer as a Witness
Frivolous Claims and Defenses
134
4
The disciplinary rules
134
1
The Model Rules
134
1
The Model Code
135
2
Putting the prosecution to its proof
137
1
Rule 11 of the Federal Rules of Civil Procedure
137
1
The certification requirement
137
1
Sanctions for violation of the certification requirement
137
1
Joint responsibility
138
1
Trial Tactics, Generally
138
3
Dilatory tactics
138
1
Lack of civility or decorum
139
1
The limits of relevance and admissibility
140
1
Avoiding an expression of an opinion on the merits
140
1
Avoiding the threat of criminal charges to gain advantage in a civil matter
140
1
Avoiding certain contacts with judges
141
1
Dealing With the Jury
141
2
Jury selection
141
1
Limits on communications
141
1
Limits on tactical selection
142
1
Contacts with jurors during and after the trial
142
1
Reporting misconduct by or toward a juror
143
1
Dealing With Witnesses
143
1
Dealing With the Press
144
2
The discredited approach of the Model Code
144
1
The approach of the Model Rules
145
1
The Lawyer as a Witness
146
2
The basic rule
146
1
Exceptions
146
1
A distinction under the Model Code
146
1
Imputation of the disqualification
147
1
A Lawyer's Special Duties as an Advocate, Part II: Special Problems Balancing Duties to a Tribunal With Duties of Confidentiality
Duties With Respect to Adverse Material Law
148
1
Duties With Respect to Adverse Material Facts
149
3
No misrepresentations of facts
149
1
No offering of false evidence
149
1
Duty of affirmative disclosure
150
2
Application -- The Special Case of Perjury
152
4
Constitutional considerations
152
1
Perjury by the lawyer's own client
152
1
The Model Rules analysis
153
1
The Model Code analysis
154
2
The ``narrative'' approach
156
1
Perjury by third parties
156
1
Dealing With Observations & Physical Evidence
156
4
Communicative content
157
1
Lack of communicative content
157
1
Rules on obstruction of justice and tampering with evidence
157
1
Application -- physical evidence observed by the lawyer
158
1
Application -- physical evidence taken into possession by the lawyer
158
1
Application -- advising clients on retention, disposition or surrender of physical evidence
158
1
Advising on specific items of evidence
158
1
Advising on retention and disposition programs
159
1
Advertising and Solicitation
Overview
160
1
Constitutional Landmarks
161
4
Commercial speech, generally
162
1
The specifics of lawyers' commercial speech
162
2
Non-commercial speech
164
1
Disciplinary Standards
165
9
The approach of the Model Rules
165
1
Communications concerning a lawyer's services
165
1
Communications regarding areas of practice
166
2
Firm names and letterheads
168
1
Direct contact
168
1
Authorized communications, subject to record-keeping requirements
169
1
Payments for recommendations
170
1
The approach of the Model Code
170
1
Recommendation of professional employment
171
1
Recommendations by others
171
1
Suggestion of need of legal services
171
1
Prohibited and permitted publicity
172
1
Communications of fields of practice
173
1
Professional notices, letterheads, office signs and firm names
173
1
Delivery of Legal Services: Organizational and Management Issues and Pro Bono Services
Organization and Management of Law Firms
174
7
The meaning of ``firm'' and ``partner''
174
1
Duties with respect to firm operations and resolution of issues of professional responsibility within firms
175
1
The duties of a supervising attorney
176
1
The duties of an attorney subject to supervision
177
1
Duties of all attorneys with respect to discrimination in conditions of employment
178
1
Duties on dissolution of a firm
178
1
Solicitation of clients
178
1
Restrictions on practice
178
1
Duties on sale of a legal practice
179
2
Involvement of Non-Lawyers in the Provision of Legal Services
181
2
Sharing control
181
1
Sharing fees
181
1
The special case of law-related services
181
2
Reminder -- the duty to avoid assisting the unauthorized practice of law
183
1
Organization and Management of Legal Clinics and Other Legal Services Organizations
183
3
Control by non-lawyers
183
1
Solicitation
184
1
Conflicts between clients of a legal services organization and those of a law firm
185
1
Law reform activities affecting client interests
186
1
Obligations of Lawyers With Respect to Pro Bono Services
186
The aspiration to provide pro bono services
186
1
Mandatory pro bono service
187
The Special Duties of Government Lawyers
Who is the Government Attorney's Client?
189
1
Defining the objectives of representation and making the decisions belonging to the client
189
Challenging a government official's decisions
190
1
Special Rules on Conflict of Interest
190
193
A government lawyer entering private employment
190
A private lawyer entering government employment
193
193
Avoiding Actual and Apparent Abuses of Public Power
193
2
Avoiding claims of influence
193
1
Avoiding misleading firm names
193
1
Refraining from actual abuse
194
1
A Prosecutor's Special Duties (and Arguable Exemptions)
195
4
Special obligations
195
2
Special exemptions -- ex parte communications
197
1
Before the grand jury
197
1
Other contacts during criminal investigations
198
1
The Special Duties of Judges and Lawyers with Respect to Judges
The Duties of Lawyers with Respect to Judges
199
1
The Duties of Would-be and Former Judges
200
2
The Duties of Judges Themselves
202
15
In general -- codes of judicial conduct
202
1
The structure and taxonomy of the CJC
202
1
Application
203
1
Canon 1 -- Upholding the integrity and independence of the judiciary
203
1
Canon 2 -- Avoiding impropriety and the appearance of impropriety
203
2
Canon 3 -- Performing duties impartially and diligently
205
1
Adjudicative responsibilities
205
2
Administrative responsibilities
207
1
Disciplinary responsibilities
208
1
Disqualification and remittal of disqualification
208
3
Canon 4 -- Minimizing conflicts presented by extra-judicial activities
211
1
In general
211
1
Specific requirements and safe harbors
211
1
Financial activities, including accepting gifts
212
1
Fiduciary activities
213
1
Serving as an arbitrator or mediator
213
1
Practicing law
214
1
Compensation, reimbursement and reporting
214
1
Canon 5 -- Refraining from inappropriate political activity
214
1
Additional requirement of a judge who is a candidate for non judicial office
214
1
Prohibitions and requirements relevant to any candidate for judicial office
214
2
Prohibitions and authorizations specific to candidates seeking appointment
216
1
Prohibitions and authorizations specific to judges and candidates subject to election
216
1
Applicability of Canon 5
216
1
Essay Exam Questions and Answers
217
12
Table of Cases
229
2
Table of References to the Model Rules of Professional Conduct
231
3
Table of References to the Model Code of Professional Responsibility
234
2
Table of References to the Code of Judicial Conduct
236
1
Subject Matter Index
237