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Legal Profession
University of Denver School of Law
Wald, Eli

Wald_Legal_Profession_Fall_2013

RULES

Intro
Preamble
·         Lawyer is representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice
·         Lawyers are responsible for other lawyers observing the rules – would be required to report ANY lawyer to the regulation council
·         Violation of a rule is not a basis for a civil suit/malpractice – probative evidence but not dispositive
1.0
·         2 lawyers sharing expenses could be considered a firm if they hold themselves out to the public as a firm. Would a reasonable client know you are not a firm?
·         Informed consent – agreement by a person of proposed conduct after lawyer has informed them of material risks and reasonably available alternatives (both advantages & disadvantages). Must be reasonably adequate explanation, will vary depending on client’s experience and whether they are represented by other counsel

Confidentiality
1.6 Confidentiality of Information
·         Lawyer SHALL NOT reveal info relating to representation of (AN EXISTING) client if confidentiality attaches unless there’s an exception. Even information subsequently made public is still confidential if related to the representation. Applies to disclosures that COULD lead to discovery of information by a 3rd party
·         Exceptions are (a) informed consent or (b) permitted, not mandatory, lawyer has discretion. (b) Exceptions are:
o   (1) To prevent reasonably certain death or substantial bodily harm (death penalty not reasonably certain, must be suffered imminently or be a present & substantial threat of harm)
o   (2) To prevent client from committing crime or fraud that is reasonably certain to result in substantial injury to the financial interest or property of another & in furtherance of which the client has used or is using lawyer’s services
o   (3) to prevent, mitigate or rectify (after the act) substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services
o   (4) to secure legal advice about the lawyer’s compliance with these rules
o   (5) to establish a claim or defense on behalf of lawyer in controversies between lawyer & client, to establish a defense to a criminal charge or civil claim against the lawyer, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client
o   (6) to comply with other law or a court order
o   (7) to detect & resolve conflicts of interest arising from lawyer’s change in employment or changes in the composition or ownership of a firm
·         Other notes:
o   If the lawyer chooses to reveal, they only reveal to the extent reasonably necessary.
o   Comment 5 says unless clients limit, lawyers can reveal when they have implied authority – what the client would reasonably expect their lawyer to do
§  Admitting a fact that cannot be disputed
§  Make disclosure that facilitates satisfactory conclusion of a matter
§  May share confidential info with lawyers within the firm
o   Test:
§  Does confidentiality attach?
§  Is there an exception?
§  Can you exercise discretion to reveal? (Never required to reveal, must exercise judgment)
1.18 Duties to PROSPECTIVE Client
·         Lawyer SHALL NOT use or reveal information from a PROSPECTIVE client
·         Lawyer that has learned information from prospective client SHALL NOT represent a client with interests materially adverse to the prospective client in the same or substantially related matter if that information could be significantly harmful to that person in the matter
·         If lawyer is disqualified from representation, no lawyer in their firm can participate in the manner unless exceptions are met:
o   Both affected client & prospective client give informed consent confirmed in writing
o   The lawyer who received the information took reasonable measures to avoid exposure to more disqualifying info, timely screened, receives no portion of the fee and written notice is given to prospective client
·         Can ONLY apply in a firm with 2 or more attorneys!!
·         Whether an attorney/client relationship has been formed is determined by the reasonable expectation of the prospective client

Candor & Attorney-Client Communications
1.2 Scope-Representation & Allocation of Authority Between Lawyer & Client
·         Client is responsible for the goals & objectives of the relationship, lawyer is responsible for the means by which the goals are achieved
·         Lawyer can limit scope of representation with informed consent – limitation must be reasonable and must provide clients with the alternatives
·         Lawyer cannot help a client commit criminal or fraudulent conduct but lawyer can discuss legal consequences of conduct – can advise – not assist
1.4 Communication
·         A lawyer SHALL
o   Promptly inform the client of any decision requiring client’s informed consent
o   Reasonably consult with client about the means to accomplish client’s objectives
o   Keep client reasonably informed about status of the matter
o   Promptly comply with reasonable requests for information (must reply to emails/calls by the end of the day)
o   Consult with client about any relevant limitation on the lawyer’s conduct when the lawyer knows that client expects assistance not permitted by the rules or other law
o   Promptly explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding representation
·         Mistakes need to be disclosed if they are a significant development affecting the timing or the substance of the representation (comment 3)
1.13 Working for a Corporation/Organization
1.16 Withdrawal/Terminating Representation
3.3 Candor Toward the Tribunal
·         No false statements to court

·         A lawyer cannot represent someone in a substantially related matter which the person’s interests are materially adverse to a former client UNLESS former client gives informed consent in writing (same with former clients represented by a former firm)
·         A lawyer cannot use information related to the representation to the disadvantage of a former client (except where permitted)
·         A lawyer cannot reveal info related to the representation (except where permitted)
1.10 Imputation of Conflicts of Interest
·         When one lawyer is disqualified for conflict, all lawyers in the firm are disqualified
·         Exceptions:
o   Other lawyers not disqualified if the conflict was personal to the lawyer (sibling
o   When there is a conflict, must screen the lawyer
o   Must be timely (screen is in place before lawyer starts working for the firm)
o   Must be effective, no information can get to screen lawyer
o   No participation in the matter allowed by the lawyer
o   Lawyer cannot receive any fees from that matter (salary and partner share of profits ok)
o   Do not need client consent, the firm just needs to provide notice
1.11 Special Conflicts of Interest for former & current government lawyers
·         A former government lawyer cannot represent a client in connection with a matter where the lawyer participated personally and substantially UNLESS the appropriate government agency gives informed consent in writing
·         If former government lawyer disqualified, no lawyer in their firm can represent in the matter UNLESS
·         The disqualified lawyer is timely screened & gets not portion of the fee
·         Written notice is promptly given to the government agency
·         A former government lawyer with confidential information cannot represent a private client with adverse interests
·         A current government lawyer cannot participate in a matter where the lawyer personally and substantially participated in private practice unless the government agency gives informed consent
·         A current government lawyer cannot negotiate for private employment with a party or lawyer for a party in a matter that the lawyer is participating personally and substantially (except a lawyer servicing as a law clerk to a judge)
·         Personal & substantial is determined by client contact and passing of confidential information