KEY WORDS AND PHRASES
Subject to Discipline—asks whether the conduct described would subject the lawyer to discipline under the provisions of the ABA Model Rules of Professional Conduct or whether the judge would be subject to discipline under the ABA Model Code of Judicial Conduct.
May or Proper—asks whether the conduct is professionally appropriate in that it:
a. would not subject the lawyer or judge to discipline; and
b. is not inconsistent with the Preamble, Comments, or text of the ABA Model Rules of Professional Conduct or the ABA Code of Judicial Conduct; and
c. is not inconsistent with generally accepted principles of the law of lawyering.
Subject to Litigation Sanction—asks whether the conduct would subject the lawyer or the lawyer’s law firm to sanction by a tribunal such as contempt, fine, fee forfeiture, disqualification, or other sanction.
Subject to Disqualification—asks whether the conduct would subject the lawyer or the lawyer’s law firm to disqualification as counsel in a civil or criminal matter.
Subject to Civil Liability—asks whether the conduct would subject the lawyer or the lawyer’s lawn firm to civil liability, such as claims arising from malpractice, misrepresentation, and breach of a fiduciary duty.
Subject to Criminal Liability—asks whether the conduct would subject the lawyer to criminal liability for participation in, or aiding and abetting criminal acts, such as prosecution for insurance and tax fraud, destruction of evidence, or obstruction of justice.
CHAPTER 2: JUDICIAL AND PROFESSIONAL REGULATION OF LAWYERS
I. Admission to the Bar
A. Becoming a lawyer
1. Moral fitness—There must be a rational connection with the applicant’s fitness or capacity to practice law.
2. Sources of information used in a determination of the moral fitness of a particular candidate:
a) Information from the applicant himself—Each jurisdiction requires the applicant to submit information about himself by way of a formal written application.
1) No False Information—Applicant must not lie or fail to disclose information—this includes knowingly making a false statement of material fact OR any failure to disclose a fact that is necessary to correct a misapprehension known by the person to have arisen in the matter, or fail to respond to a lawful demand for information from an admissions or disciplinary authority (unless the information cannot be revealed due to the duty of confidentiality). Rule 8.1(a) and (b) (p.97)
2) Applicant’s Fifth Amendment Rights May be Invoked
b) Information from Others—A lawyer who supplies information in connection with the application of another who is applying for admission to the bar must do so only if the lawyer has a good faith belief that the applicant is qualified to practice law. The lawyer must not
1) knowingly make a false statement of material fact,
2) fail to disclose a fact necessary to correct misapprehension known by the person to have arisen in the matter, or
3) knowingly fail to respond to a lawful demand for information (unless the information cannot be revealed due to the duty of confidentiality). Rule 8.1(a)
II. Professional Discipline (and Maintaining a License) Once One is Admitted to the Bar
A. Types of Professional Misconduct
1. Crimes of dishonesty and moral turpitude—when a lawyer commits a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects. Rule 8.4(b)
2. Acts involving fraud or deceit—when a lawyer engages in conduct involving dishonesty, fraud, deceit, or misrepresentation, the lawyer may be disciplines for dishonest conduct even if such conduct does not rise to the level of a violation of civil law. Rule 8.4(c)
3. Violation of the Rules of Professional Conduct—when a lawyer violates, attempts to violate, or knowingly assists or induces another to violate the Rules. Rule
h a supervisory lawyer’s reasonable resolution of the ethical problem
An ethical problem is NOT an “arguable” question if it can reasonably be answered only one way in the exercise of professional judgment. Where there is more than one reasonable course, a lawyer with supervisory authority may assume responsibility for making the decision, and subordinates may follow that lawyer’s direction.
5. Complying With Partner/Supervisory Obligations—See Rule 5.1 and Rule 5.3
CHAPTER 3: BEGININNG THE LAWYER CLIENT RELATIONSHIP; RESULTING FIDUCIARY DUTIES
I. The Fiduciary Duty
II. Formation of the Client-Lawyer Relationship
A. Methods of Creating the Relationship—Law of Contract
1. When Can You Say “No”?
2. When You Must Say “Yes”
3. Difference in Your Obligations Before and After Formation
a) MR 1.16
B. Consequences of Forming the Relationship
1. Fiduciary Relationships—the 5 Cs
2. Implications of Being in a Firm or Other Legal Association
a) MR 1.10
3. Inability to Withdraw in Some Circumstances (Ch. 11)
4. Fee Arrangements (Ch. 10)
A. Maintaining The Attorney-Client Relationship
1. Competence—A lawyer must provide competent representation to her client; defined as the effective use of his legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. Rule 1.1
a) When A Lawyer Is Not Initially Competent—If a lawyer lacks the necessary knowledge or experience to competently handle a legal matter, he may: