MICHIGAN PROFESSIONAL CONDUCTs3.amazonaws.com/mythm-vids-prod/MI.Niehoff.ProfConduct.pdfhusband, and...

MICHIGAN PROFESSIONAL CONDUCT PROFESSOR LEONARD NIEHOFF

UNIVERSITY OF MICHIGAN LAW SCHOOL

CHAPTER 1: REGULATING LAWYERS

A. Basics

• The set of rules governing the conduct of Michigan lawyers is found in the Michigan Rules of Professional Conduct (MRPC), which are largely based on the ABA’s Model Rules of Professional Conduct, with some important differences.

• The Michigan Supreme Court has exclusive authority over the regulation of lawyers and the practice of law.

B. Admission to the Legal Profession

• The Michigan Supreme Court can only impose requirements for admission to the bar that have a ______________________________________________ to an applicant's fitness or capacity to practice law.

o The U.S. Supreme Court has held that some requirements, like U.S. citizenship or ________________________ residency, do not satisfy this standard.

o Michigan’s requirements all satisfy this standard.

• Requirements for admission to the bar:

o Age—at least _______________ years old o Education—an undergraduate education from an accredited institution and a law degree

from a “_____________________________________ and qualified” law school

An applicant’s law school may ask the Board of Law Examiners to approve the school as reputable and qualified.

o Knowledge of the law:

Pass the Michigan Bar Exam and the MPRE; or If an applicant has already been admitted to practice in another state or country, he or

she can apply for a license in MI without taking the bar exam. This applies when:

• The attorney has been licensed in another state for at least ____________________ of the five years preceding the application;

• The attorney intends to practice in an institutional setting, such as serving as in-house counsel; or

• A lawyer from another country wants to serve as a special legal consultant.

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o Character—the applicant must be a person of “good _____________________ character” and has the burden of demonstrating such character.

Generally accomplished by providing references and submitting to a background check The Standing Committee on Character and Fitness decides whether the applicant has

made an adequate showing of good moral character. Reasons for rejection can include:

• ______________________________ to furnish the necessary background information

• Commission of a crime of _____________________________________ (e.g., perjury, bribery, murder, rape)

• Rule 8.1: An applicant to the bar or a lawyer writing a reference for an applicant cannot make any ________________________ statements of fact, or fail to disclose a fact necessary to correct a misunderstanding that has arisen, or fail to respond to a lawful demand for information from the Committee (certain exceptions: e.g., an applicant can invoke the Fifth Amendment).

o Rule 8.1 also requires that an applicant let the Committee know, in writing, if any of the information provided in the application material ____________________________ or ceases to be true.

Example 1: A bar applicant was convicted in his youth of public urination. This occurred in a small community and no record existed. It is unlikely he would not be admitted because of his conviction for a minor youthful indiscretion, but it is likely he would be rejected if he was found to have failed to disclose this conviction.

C. Regulation after Admission

• Under the MRPC, there are a variety of forms of misconduct for which an attorney can be disciplined (see the outline for the full list).

• Highlights/common areas of discipline:

o Rule 8.4(a): an attorney is subject to discipline for violating the MPRC or knowingly assisting or inducing another to do so.

Also subject to discipline for violating the rules through the acts of ___________________________________________

Example 2: If an attorney is prohibited from contacting a represented party without counsel present, the attorney cannot have a private investigator contact the represented party. Or if the rules prohibit solicitation, the attorney cannot have an intermediary solicit the client on the attorney’s behalf.

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o Rule 8.4(b): an attorney is subject to discipline for engaging in conduct that involves _______________________________________, fraud, deceit, misrepresentation, or a violation of criminal law.

Exam Tip 1: You can violate both 8.4(a) and 8.4(b) at the same time. Many bar questions fall into this category, so be sure to discuss both rules if relevant.

Key caveat: 8.4(b) applies only “when such conduct reflects adversely on the lawyer's honesty, ______________________________________________, or fitness as a lawyer.”

Example 3: An obscure provision of the Michigan Penal Code made it a crime to play the Star Spangled Banner in a public place as a dance tune. A lawyer, as part of his Fourth of July celebration, broadcast the song to a public assembly and broken into an inspired dance, and was promptly arrested and convicted. This is a criminal conviction but likely does not reflect adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer.

The wrongful conduct does not have to occur while the attorney is ________________________________________ as an attorney.

Example 4: If a lawyer robbed banks in her free time, it would reflect badly on her honesty, trustworthiness, and fitness as a lawyer, even though the conduct did not occur while acting as a lawyer, and the lawyer would be subject to discipline.

Conduct might violate both 8.4(b) and another provision of 8.4.

Exam Tip 2: A given act of lawyer misconduct can violate more than one rule, and frequently does.

D. Disciplinary Process

1. Complaint ("request for investigation") is filed with the Attorney Grievance Commission.

o If the client files complaint, this has the effect of ___________________________________ the attorney-client privilege and attorney-client confidentiality.

o The lawyer cannot sue the filer for torts like defamation or malicious prosecution.

2. Attorney Grievance Commission screens complaints.

o May decide the case should go no further o May request additional information from the attorney or the filing party or both o May decide that the case should proceed; if so, a formal complaint is filed.

3. Formal complaint is filed with the Attorney Discipline Board

The formal complaint must allege all the _______________________________ for discipline.


4. Panel conducts a hearing.

o Conducted in public o Due process protections apply (right to counsel, right to call witnesses, right to cross-

examine adverse witnesses) o The attorney may invoke the ________________________ Amendment, if appropriate.

5. Types of Discipline

o Reprimand o Temporary ________________________________________ for at least 30 days o Probation o Restitution o ___________________________________________ o Some punishments can be combined. o Disbarment is ___________________________________ (reinstatement is not automatic),

although a disbarred lawyer can apply for reinstatement after five years.

E. Reporting Misconduct of Other Attorneys

• Rule 8.3: requires attorneys to report the misconduct of other attorneys

Exam Tip 3: Any bar exam question that involves one lawyer knowing about another lawyer's misconduct will raise a Rule 8.3 issue.

• The Rule is framed in ___________________________________ terms: if the reporting obligation is triggered, a lawyer who knows of the other lawyer's conduct must report it.

• But, in order for this obligation to be triggered, the reporting lawyer must:

o Have ___________________________________ knowledge; o The conduct must be a violation of the MRPC; and o The violation must raise a ___________________________________ question as to the

lawyer's honesty, trustworthiness, or fitness to practice law.

Example 5: The only time, in 35 years of practice, that Professor Niehoff felt compelled to report was when opposing counsel was actively involved in a case—appearing in court, conducting discovery, conferring with the judge—despite being suspended from the practice of law at that time.

F. Conviction of a Crime

• When a lawyer is convicted of a crime, the lawyer, prosecutor, and defense attorney must notify the grievance administrator and the board of the conviction.

• Such notice must be in writing and given within 14 days of the conviction.


CHAPTER 2: STRUCTURE AND REGULATION OF “PRACTICING LAW”

A. Authorized/Unauthorized Practice of Law

• A Michigan law license does not allow attorneys to practice in other states. • What is the practice of law?

o Obvious examples:

Appearing in ______________________________________________ Legal advice in exchange for a fee

o Law-related work as a summer intern or law clerk, pre-admission, is not seen as practicing law.

• Rule 5.5: A lawyer licensed in another state, and not in Michigan, is prohibited from setting up an office or establishing a systematic and continuous presence in MI.

o An out-of-state lawyer can practice temporarily in MI if:

The lawyer ___________________________________ with a local lawyer actively involved in matter;

The lawyer gets permission from the court on a pro hac vice basis; The practice relates to a mediation or arbitration and the services relate to practice in

lawyer's jurisdiction; or The service _____________________________ out of a lawyer's practice in his or her

home jurisdiction.

Example 6: A lawyer is licensed to practice in Florida. Her client lives in Florida, but vacations in Michigan. Her client decides she wants to divorce her husband, and the lawyer flies to Michigan to confer with the client, discuss strategy, etc. Assuming these activities constitute the "practice of law", they do not likely violate the rule, because they grow out of the lawyer's authorized practice of law in Florida.

o In-house lawyers or government lawyers working in multiple states are permitted to do full-time work in Michigan, even if not admitted, as long as:

They only provide legal services to the employer (or an affiliate); and The work they are doing does not require pro hac vice permission from the court.

B. Affiliation in a "Law Firm"

• The MRPC define a law firm more broadly than the classic conceptions of law firms.

o Can include __________________________________ departments of corporations and organizations

o Two lawyers practicing under the same roof are not necessarily a firm, but lawyers will be treated as a law firm if they:


___________________________________ themselves out to the public as a law firm; Enter an agreement that gives the practice the ________________________________

of a law firm (i.e., fee sharing); or Exchange confidential client information.

• Rule 7.5: Law firm names cannot be __________________________________.

Example 7: Calling a law firm the "Law Offices of Clarence Darrow and Niehoff" may be good for business, but is prohibited.

C. Pro-bono Services

• A lawyer is not subject to __________________________________ for failing to provide pro-bono services.

• Can include working on law reform activities, other types of pro-bono work

D. Non-legal Services

• Some lawyers will also provide tax preparation, financial planning, and other activities which do not fall under the "practice of law" governed by Rule 5.7.

Example 8: Jane is an attorney for Bruce’s small business and in that context prepares the tax returns for the business. Under Rule 5.7, the MRPC applies to Jane’s preparation of the tax returns, just as it applies to all of her other work for the business.

If Jane prepares Bruce’s estate plan and his personal tax returns, these activities will be treated as the practice of law unless Jane makes it clear that she is not acting as his lawyer when she prepares his taxes.

• The question of what work is the "practice of law" is critical, including for attorney-client privilege issues.

E. Limitations on Association with Non-Lawyers

• Although a lawyer may provide both legal and non-legal services, lawyers may NOT partner with non-lawyers in a business that will, among other things, engage in the practice of law (Rule 5.4(b)).

Example 9: Two lawyers, three accountants, and four financial planners form a partnership that will provide all of the above services, including legal services. MRPC 5.4(b) __________________________________ this arrangement.

• The policy reason is that we do not want non-lawyers (not subject to the Rules) to be in a position in which they might be able to affect the professional judgment of the lawyers.

• Rule 5.4(d): prohibits lawyers from practicing in professional corporations where non-lawyers might be able to exercise ___________________________________________ over their judgment.


• Rule 5.4(a): generally prohibits lawyers from sharing ____________________________ with non-lawyers (subject to a few exceptions).

F. Responsibilities Between and Among Members of a Law Firm

Exam Tip 4: These issues are tested frequently on the bar exam.

1. Responsibility for the Misconduct of Lawyers and Non-lawyer Employees in a Firm (Rules 5.1 and 5.3)

o An attorney is subject to discipline for misconduct committed by another lawyer or a non-lawyer employee if the attorney __________________________________ the conduct.

o A lawyer is subject to discipline for misconduct committed by another lawyer or a non-lawyer employee if the lawyer has knowledge of the specific conduct and __________________________________________ it.

o A partner, manager, or direct supervisor who learns of misconduct by a lawyer or non-lawyer employee, at a time when the consequences of the misconduct could be ________________________________ or mitigated, but fails to take reasonable __________________________________ action, is subject to discipline.

o Partners must make reasonable efforts to ensure that the firm has measures in place that give reasonable assurances that lawyers and non-lawyer employees will conduct themselves in a manner that conforms to the MRPC.

"Reasonable" measures or efforts generally require a firm to have system in place to inform lawyers and non-lawyer employees regarding changes to the ethics rules, a system in place for dealing with conflicts of interest, and a system for emphasizing and preserving client confidentiality.

2. Supervisory Attorney Obligations

Exam Tip 5: Michigan Bar frequently asks about obligations of supervisory attorneys. Even if a supervisory attorney lacked knowledge of misconduct, the question becomes whether a system was in place with adequate procedures to avoid misconduct.

o Direct supervision: a supervisory lawyer must make reasonable, ________________________________ efforts to ensure that a supervised lawyer or non-lawyer’s conduct conforms with the MRPC.

Exam Tip 6: Often questions will involve a situation where a non-lawyer was not properly instructed on confidentiality requirements. A supervisory lawyer may be subject to discipline for failing to provide adequate direct supervision, as well as potentially for the failure to establish adequate policies and procedures.

o Non-lawyers: not directly subject to the MRPC o Lawyers who are being supervised (i.e., new associate) are subject to the MRPC. But the

Rules recognize two separate scenarios for a supervised lawyer:


A supervised lawyer is told to do something that is plainly wrong (e.g., "press the client to commit perjury").

• In this circumstance, a supervised lawyer is subject to discipline (no "Nuremburg defense" or "only following orders").

A supervisory attorney’s guidance reflects a reasonable resolution of an _________________________________ question of professional duty.

• In this circumstance, the supervised lawyer cannot be subject to discipline for following the supervisory attorney's instructions.

Example 10: Reasonable people could disagree as to whether a document falls under the attorney-client privilege. The supervisory attorney instructs the associate to withhold the document. The court later finds that the document should have been produced. Even if the supervisory attorney is found in violation of the Rules and subject to discipline, the supervised attorney cannot be disciplined for following the supervisory attorney's instructions.

G. Attorney Fees

1. General Rules

o Rule 1.5: requires that, at the beginning of the relationship with a new client, a lawyer must __________________________ disclose and establish an understanding of the fee that the client will pay.

Preferably this will be done in writing.

o The fee must be _____________________________________ and cannot be excessive.

Exam Tip 7: Watch out for issues that suggest that a fee is excessive or unreasonable.

o Rule 1.5(a) sets out factors in determining if a fee is reasonable (e.g., the time and labor required, the difficulty of the questions). The outline includes the full list.

o Key: a fee is not rendered reasonable simply because the client agreed to pay it.

2. Contingent Fee Agreements

o The maximum allowable contingent fee for any personal injury claim is ____________________________ of the amount received.

o Contingent fees, like all other fees, must be ______________________________ and cannot be excessive.

o Contingent fee agreements must be in ____________________________________ and must state how the fee will be calculated.

o When the matter concludes, the lawyer must provide a written statement detailing:

The outcome;


The amount the client will receive; and The __________________________ for determining that amount.

o Contingent fee agreements are prohibited in:

____________________________ cases; and Domestic relations cases (i.e., divorce).

3. Sharing of Fees between Lawyers from Different Firms

o Michigan: a division of fees between lawyers from different firms can be done if:

The client is advised and does not object to the participation of all lawyers involved; and The total fee is _______________________________________.

• Note: this differs from the ABA Rule, which requires that the client consent in writing, and that the share of all parties be disclosed.

o Fee splitting does not constitute a prohibited “true referral fee.”

"True referral fee": a payment by one lawyer to another lawyer for doing nothing but referring the client is prohibited.

• This prohibition applies even if the person doing the referring is not a lawyer.

H. Sale of Law Practice

• A lawyer can sell a law practice, but a lawyer cannot enter into an agreement that ____________________________ their right to practice in the future.

CHAPTER 3: LAWYER ADVERTISING AND SOLICITATION

A. Advertising

• Advertising: widely _________________________________ statements about the services a lawyer or law firm offers (e.g., television ads, billboards, newspaper ads).

o Solicitation: communications targeted to a ________________________________ group or individual, and which give rise to different concerns and limitations.

• Advertising is protected First Amendment speech; courts have struck down rules that generally prohibited all advertising.

• Michigan generally allows lawyer advertising, subject to certain limitations:

o Rule 7.1: prohibits any communication about the lawyer’s services that is __________________________, fraudulent, misleading, or deceptive, which means:

No material misrepresentations of fact No omissions of material facts


It cannot create an _______________________________________ expectation that a lawyer will achieve certain results.

It cannot compare a lawyer's services with other lawyers, unless the comparison can be _________________________________ substantiated.

o Rule 7.1 applies to ALL communications about a lawyer’s services, including advertising and solicitation.

o Rule 7.2: a lawyer or law firm must keep a copy or a recording for _________________________________ years after its last dissemination, as well as a record of when and where it appeared.

o Rule 7.2(c): prohibits a lawyer or law firm from giving anything of _________________________________ in exchange for recommending the lawyer or law firm’s services.

There is an exception for paying others for the service of preparing advertisements for the lawyer’s use.

o Rule 7.2(d): requires the advertisement include the name and contact information for at least one lawyer responsible for the content of the advertisement.

o Rule 7.4: allows a lawyer to indicate that he or she practices only in specific fields (e.g., "Attorney John Doe handles only dog bite cases for the past 20 years")

But this is subject to the same limitations—cannot be _________________________________ or create unjustified expectations.

B. Solicitation

• Solicitation: more targeted than "advertising”; aimed at a narrow group or an individual • Rule 7.3(a): a lawyer may not solicit potential employment from a prospective client if

_________________________________ gain is a significant motive for the lawyer doing so.

o What kinds of contact constitute a solicitation?

The classic example is an ambulance-chasing lawyer. Includes contact in person, by telephone, by telegraph, by

_________________________________, or other communication (e.g., e-mail) that is directed to a specific recipient

o Exceptions—such contact does not constitute solicitation:

A lawyer offers to represent a client for some motive other than _________________________________ gain (i.e., pro bono representation).

A lawyer has a ____________________________________ relationship with the potential client (i.e., family member, current client, or former client).

Letters or circulars which are addressed to persons who are not known to need legal services (e.g., a lawyer new to a town sending a letter to the entire town).


Shapiro v. Kentucky Bar Association: the Supreme Court held that letters sent to potential clients that a lawyer knows face a _________________________________ problem are protected by the First Amendment if all the statements are truthful and not deceptive.

• New Michigan statute puts a __________________________-day moratorium on sending such letters.

o Not clear at this point how it will be interpreted, enforced, or whether its constitutionality will be challenged

o "Stop contacting me": a lawyer may not solicit any potential client who has stated they do not wish to be contacted.

o A lawyer may never engage in any form of solicitation that rises to the level of coercion, _________________________________, or harassment.

o Solicitation is subject to Rule 7.1 and cannot be false, fraudulent, misleading, or deceptive. o If solicitation is through written communication, it must be retained for

_________________________________ years.

CHAPTER 4: ATTORNEY-CLIENT RELATIONSHIP

A. Formation of an Attorney-Client Relationship

• When does the relationship formally begin?

o Some clear examples—hiring of in-house counsel, signing of a formal _________________________________ agreement

o Initial consultation, or early conversations, but retention does not result:

The general rule under Rule 1.18 is that even if no _______________________ retention occurred, the initial meeting creates an attorney-client relationship in a limited sense.

• The duty of confidentiality attaches to that first discussion. • If the lawyer receives sufficiently detailed information, he or she may be barred

from representing an adverse party under the conflict of interest rules.

Example 11: If Professor Niehoff consults with a lawyer about possibly representing him in the sale of his business, and lots of confidential information is revealed in the course of that conversation, such as the lowest price that would be accepted, the lawyer should not be able to represent someone who wants to buy the business.

• Fletcher case—the parties’ actions and the reasonable perceptions of the prospective client will determine whether an attorney-client relationship has been formed; it does not depend on the execution of a formal retainer agreement.


• A lawyer has no obligation to ___________________________________________ the representation of any client, and a lawyer should decline if the lawyer cannot handle the matter ____________________________________, diligently, or without running into a conflict of interest.

• Appointed lawyers—a lawyer is required to accept an appointment, unless:

o The representation would violate the MRPC; o The lawyer would face an unreasonable financial burden; or o The cause or the client is so ___________________________________________ to the

attorney as to impair the lawyer-client relationship or the lawyer’s ability to represent the client effectively.

Note—Rule 1.2: a lawyer’s representation of a client does not constitute an endorsement of the client or of the client’s views, conduct, or cause.

B. Scope and Objectives of the Relationship

• The lawyer and client must discuss the scope and objectives of the representation.

o The lawyer must then keep the client reasonably informed about the matters' progress.

• Broad, general rule—the client determines the ________________________________ of the representation, but the lawyer determines the means, methods, and ___________________________________________ for best achieving those objectives.

o Rule 1.2 generally supports this framing. o An attorney must promptly advise the client of major developments (settlement offers,

mediation evaluation, plea bargains, etc.).

The client then must decide whether to accept any such offers. A lawyer who accepts an ___________________________ without the client's approval

is subject to discipline, and if the acceptance is enforced against the client, the lawyer faces a potential malpractice claim.

• Exceptions to the general rule:

o Although the client has control over the ultimate goals, the attorney can refuse to allow his or her services to be used in certain circumstances.

For instance, an attorney is required to refuse to perform services if the lawyer’s services would be used to facilitate the commission of a _____________________________________________ or fraud.

o Although the attorney guides the means, methods, and strategies, the attorney is also obligated to communicate with the client:

The means/strategies chosen may affect the cost of the representation.


The means/strategies chosen may affect the entire tenor of the representation (e.g., the means chosen may be the difference between an ugly, contentious divorce, and a more congenial approach).

Rule 1.2: the client controls certain decisions of major significance, even though they may be more involved with methods and strategies (e.g., the decision as to whether a client will testify in criminal case, or whether to _________________________________ the right to a jury trial).

• Clients with diminished capacity

o Rule 1.14: an attorney must maintain a _________________________________________ relationship with the client to the extent reasonably possible.

o If an attorney reasonably concludes that the client cannot adequately act in his or her own interests, the attorney can seek to have a guardian appointed or take other protective action.

This is an extraordinary step—Rule 1.14 permits this only where the attorney has concluded that the client is incapable in acting in his or her own interest, and the rule never ______________________________________ that the attorney take such measures.

CHAPTER 5: CONFLICTS OF INTEREST

A. Underlying Concerns

• A lawyer must have the latitude to exercise his or her __________________________________ judgment, and must not feel constrained by conflicting loyalties.

• Conflicting loyalties can arise by:

o Other clients; o Third-party interests; and o A lawyer's personal interests.

B. Current Clients (Rule 1.7)

• Rule 1.7(a): A lawyer must not represent a client if the representation would be ___________________________________________________ to a current client.

Example 12: Attorney Jones represents Huge Motors, Inc. Harvey, a former Huge Motors employee, wants to retain Attorney Jones to sue Huge Motors. This is a direct conflict of interest.

o A lawyer can proceed with the representation if:

The lawyer reasonably believes that the new representation will not adversely affect his or her relationship with the existing client; and


All clients give ___________________________________________ to the representation.

• In most cases of a direct conflict, the attorney will not be able to satisfy these criteria.

Example 13: In the example above, it's an understatement to say that representing Harvey would adversely affect the relationship with Huge Motors. Moreover, Huge Motors is extremely unlikely to consent to the representation.

• However, a direct conflict is not always fatal.

Example 14: Attorney Jones represents Huge Motors, Inc. in a case against Acme Industries. As part of the litigation, Attorney Jones wants to serve a subpoena on a third party, Auto Parts, Inc. Auto Parts is also a client of Attorney Jones in other matters. Because the subpoena is technically compulsory process, it could be argued that this is a direct conflict. But Attorney Jones could also reasonably conclude that this would not adversely affect the relationship with either client, and both clients would likely waive any conflict.

o Rule 1.7(a) does NOT require that the representations involve the same _______________________________________ of the law; they can involve completely different areas of substantive work.

Example 15: Attorney Jones represents Huge Motors in many types of matters, and represents Auto Parts solely in the field of intellectual property. If Huge Motors wants to sue Auto Parts for breach of contract, Attorney Jones cannot escape the conflict because he only represents Auto Parts in IP cases. If you're suing one client on behalf of another, there is a direct conflict, even if the representations involve different areas of law.

o Rule 1.7(a) is also NOT limited to litigation. Negotiating a contract on behalf of one client, as against another, can create a conflict.

• Rule 1.7(b): Non-direct conflict, but other material limitations

o A lawyer may not represent a client who:

Wants to take a position that the lawyer finds so morally _________________________ as to compromise the representation;

Wants to sue a business in which the lawyer has a stake; or Opponent is represented by the attorney’s ____________________________________.

• All potentially could compromise an attorney's judgment, loyalty, and independence.

o Representing multiple individuals to form a partnership:


Individuals may have the same agenda and the same interests, but in some circumstances, different agendas, interests, and goals could raise serious concerns about whether the lawyer can represent all without compromising the representation of some.

• Becomes a very fact-specific analysis

o For waiver of conflicts under 1.7(b):

The lawyer must _________________________________ believe the representation will not be adversely affected; and

All clients must give _____________________________________________ consent.

o A lawyer is required under Rule 1.7(b) to also consider potential future conflicts.

Even if the conflict does not exist at the time the representation begins, the rule treats the representation as conflicting if a conflict is likely to arise.

C. Rules 1.8 and 1.13—Transactions with Clients and Corporate Clients

1. Rule 1.8

o Deals with certain transactions with current clients which the rules specifically delineate as creating conflicts of interest

o A lawyer may not acquire a _________________________________________ interest in the cause of action or the subject matter of litigation in which the client is represented.

o A lawyer may _______________________________________ court costs or litigation expenses to a client, but the lawyer may not provide or guarantee financial assistance to the client with respect to pending or contemplated litigation.

Exception: Indigent clients are not obligated to repay costs or expenses.

o Lawyers may not enter into _____________________________________ transactions with clients unless:

The terms are ______________________________________ and reasonable, and fully and understandably disclosed to the client in writing;

The client is given a reasonable opportunity to seek the advice of _______________________________________________________ counsel;

The client gives consent in writing.

o A lawyer may not prepare instruments that give the lawyer, or someone related to the lawyer, a substantial _________________________________ from the client (e.g., a will or trust with the lawyer named as a beneficiary)

Exception: the client is ______________________________ to the donee


o Rule 1.8(d): Prohibits a lawyer from negotiating or entering into an arrangement for literary or ___________________________ rights relating to the representation of a client or prospective client, if the arrangement is made before the representation is completely over.

o Rule 1.8(f): Prohibits a lawyer from accepting payment for representation of the client from someone ____________________________________ than the client, unless:

The client consents after consultation; There is no interference with the lawyer's independent judgment; and The information is protected as ____________________________________.

Exam Tip 8: Exam writers seem to enjoy testing on Rules 1.8(d) and 1.8(f). One common scenario under Rule 1.8(f) is where parents pay for the representation of a child. The parent provides the funds, but the child is the actual client.

2. Rule 1.13

o A lawyer representing a legal entity, such as a corporation or organization, represents the ______________________________ itself, and not its officers, directors, or employees.

o A lawyer must explain to the constituents of an entity (managers, directors, etc.) that he represents the entity and not the individual whenever the lawyer thinks it may help to avoid a misunderstanding.

o An attorney may represent both the entity and a constituent, provided that it does not create a conflict of interest under Rule 1.7.

o When an attorney learns that a constituent of an entity has done, is doing, or is planning to do something that is likely to cause significant harm to the entity, including:

Violation of a _____________________________ obligation to the organization or a violation of the law that might be imputed to the organization; and

The violation is likely to cause substantial injury to the organization.

o The attorney must proceed in a manner that serves the best interest of the client—the organization (complicated because second-guessing the constituent may put the entire representation at risk).

A lawyer should proceed cautiously, working through multiple options:

• Ask the individual to _______________________________________ the problematic course of conduct

• Report the concern up the chain of authority • If the highest authority insists on pursuing conduct that is

____________________________________________ to the entity, then the attorney may potentially reveal confidential information if he concludes that doing so would serve the best interests of the client organization.


CHAPTER 6: CONFLICTS OF INTEREST (CONT’D)

A. Former Clients (Rule 1.9)

• The lawyer's duty to maintain confidentiality survives the ______________________________________________ of the lawyer-client relationship.

• Rule 1.9(c): A lawyer who has formerly represented a client in a matter may not reveal information related to that representation, or use confidential information related to that representation to the _______________________________________ of the former client.

o Subject to limited exceptions, such as where information has become generally known or where ethics rules allow or require revealing the confidential information

• Rule 1.9(a): A lawyer who has previously represented a client in a matter must not subsequently represent another person in the _____________________ or a substantially related matter in which the person's interests are _____________________________________________ adverse to the interests of the former client, unless the former client waives the conflict.

• Rule 1.9(b):

Example 16: Attorney Smith formerly worked at the firm of Billum, Billum, & Billum. While Attorney Smith was at Billum, the firm represented Jane in a contract dispute with John. Attorney Smith learned confidential information about Jane through that representation. Attorney Smith has now moved on to the firm of Bigger, Bigger, & Bigger. Bigger has a substantially similar case for a client that is adverse to Jane. Under Rule 1.9(b), Attorney Smith cannot represent Bigger's client, unless Jane consents.

The concern is that Attorney Smith will use confidences he learned about Jane against her.

B. Imputed Disqualification (Rule 1.10)

Exam Tip 9: Frequently tested on the Michigan Bar Exam

1. General Principle

If one lawyer may not represent a client due to a conflict, this prohibition applies to _____________________ other lawyers in the same firm.

2. General Exceptions

o Another lawyer at the firm may engage in the representation if the client _________________________________________ the conflict by consenting after consultation.

o The prohibition does not apply if the conflict arises because of something personal to the conflicted lawyer (i.e., the conflict is due to a personal relationship with the opposing counsel, or a strong dislike for the former client, or a particular philosophical opposition to the client's position).


3. What Qualifies as a Firm?

Lawyers who share space and conduct business similar to a firm (i.e., fee sharing) or hold themselves out as a firm may qualify as an informal firm under this rule.

4. Rule 1.10(b)—"Wall” or “Screen”

Example 17: Same facts as Example 16. Are other members of Bigger, Bigger, & Bigger prohibited from representing Jane under imputed disqualification? Under Rule 1.10(b), other lawyers may handle the matters if they set up a "wall” or “screen.”

o The firm must:

__________________________________________ the disqualified lawyer from any participation in the matter;

Ensure that the lawyer does not receive any part of the ____________________________________ paid in the matter; and

Give prompt written notice to the appropriate _______________________________________ to enable it to ascertain whether the rule is being followed.

o Rule 1.11: applies a similar approach to government attorneys who join private firms. o Rule 1.12: applies a similar approach to _____________________________________, law

clerks, arbitrators, and mediators who join private firms.

5. Impact on the Firm the Lawyer Left

Example 18: Attorney Smith has moved from Billum firm, to Bigger firm, and Jane has come with Attorney Smith to Bigger. A new client comes to Billum, who wishes to sue Jane. Can Billum (the former firm) handle this case? Rule 1.10(c) says "yes."

o Rule 1.10(c): The former firm may represent a new client who is adverse to the former client of the former affiliated attorney, unless:

The matter is the same or ________________________________________ related to the matter in which the attorney represented the former client; and

There is still a lawyer at the former firm who has _________________________________________ information related to the former representation.

C. Lawyer as a Witness

• Rule 3.7(a): prohibits a lawyer from acting as an advocate at a trial where the lawyer is likely to be a ________________________________________________, unless:

o The testimony relates to an __________________________________________ issue;


o The testimony relates to the nature and value of the legal services rendered; or o Disqualification of the lawyer would work an undue hardship on the client.

• This disqualification is not __________________________________________ to other members of the lawyer’s firm.

CHAPTER 7: DUTIES ATTORNEYS OWE TO A CLIENT

A. Classic Duties

• Competence • Diligence • Communication • Safekeeping of the client's property • _________________________________________________

B. Competence

• Rule 1.1: A lawyer must provide competent representation to the client.

o A lawyer must have and exercise the legal knowledge, skill, thoroughness, and preparation that are __________________________________________ necessary to handle the matter.

Typically requires only the proficiency of a general practitioner, but certain circumstances may require a higher level of expertise (e.g., complex patent and antitrust case the first day after passing the bar exam)

o A lawyer does not need to be competent on the first day of representation, provided that the lawyer has the _____________________________________ and ______________________________________ to become competent after reasonable preparation (i.e., consulting with other lawyers, research, CLE classes).

o If a lawyer discovers he or she lacks competence or cannot obtain the necessary competence, he or she has a duty to ___________________________________________ from the representation, and advise the client to retain a competent attorney.

o A client cannot consent to less than competent representation.

Example 19: Attorney Jones charges $25 to draft an estate plan and does an incompetent job. Attorney Jones cannot defend his incompetence on the grounds that he could not possibly give competent representation for such a small fee.

o What if necessity gets in the way of competent representation?

Example 20: Professor gets a call from a friend that the friend is being detained by the police two blocks away from Professor's office. Professor calls his criminal attorney friend, but gets no answer. Professor walks over to the site


of the incident and provides brief, emergency representation despite no criminal law knowledge.

o Rule 1.1 comments permit a lawyer to give advice, even if lacking competence. The advice must be:

Limited to that which is __________________________________________ necessary under the specific circumstances; and

It must be ______________________________________________________ for the lawyer to consult with or refer the client to a competent lawyer.

C. Diligence

• Rule 1.3: An attorney must act with reasonable diligence and promptness. • An attorney must:

o Zealously advocate for the client; o Control the workload so they have sufficient time for handling the case; o Avoid ____________________________________________; and o Follow the representation through to completion, unless an adequate reason for withdrawal

exists.

D. Communication

• Rule 1.4: Duty to keep the client reasonably _______________________________________________________ along the way

E. Safekeeping of Client's Property

• Rule 1.15: Requires an attorney to hold the property of a client in connection with the representation __________________________________________________ from the lawyer's own property.

F. Confidentiality

• Rule 1.6: An attorney has an ethical obligation to maintain confidentiality as to:

o Confidences: all communications covered by the attorney-client privilege.

A-C privilege attaches to confidential communications between a lawyer and a client made for the purpose of seeking and providing _____________________________ advice.

• "Lawyer" includes the lawyer’s representatives, such as a secretary or legal assistant, and "client" can include client representatives, such as a guardian or translator.

If a communication is shared with individuals other than such necessary representatives, the privilege and confidentiality are destroyed.


The privilege attaches to communications with prospective clients as well as clients who have formally retained the lawyer.

The privilege belongs to the client; only the _________________________ can waive it. The privilege survives the termination of the attorney-client relationship.

o Secrets: information which meets the following criteria:

The lawyer gained the information in the relationship and either:

• The client has _______________________________________ the lawyer to keep the information confidential;

• Disclosure would ______________________________________ the client; or • Disclosure would be _________________________________________ to the client.

Example 21: During representation, Lawyer learns from a family member of Client that Client was institutionalized as a teenager for a suicide attempt. This is not a "confidence" because it was not between Lawyer and Client, but it might still constitute a "secret."

o If something qualifies as a confidence or secret, the lawyer must not reveal or use it to the disadvantage of the client, or use it to the lawyer's own advantage (unless the client consents).

o Exceptions:

The client has ____________________________________________ after consultation; The Rules require or permit disclosure (e.g., disclosure is necessary to correct perjured

testimony); Disclosure is required by law or court order; The client used the lawyer's services in furtherance of a crime or fraud, and disclosure is

necessary to _____________________________________________ the consequences of the client's actions;

The client intends to commit a crime; or A dispute has arisen between the lawyer and the __________________________. Also, where the testamentary intent of the decedent is at issue

Example 22: Attorney drafted a will for Ms. McQueen, who has passed away. Attorney may be permitted to testify as to conversations with Ms. McQueen in order to clarify ambiguities. The rationale is that the client would happily waive, if alive, in order to ensure the intent is fulfilled.

Exam Tip 10: Watch out for questions that combine confidentiality with other issues, such as: (i) A supervisory attorney failing to ensure that a non-lawyer sufficiently protected client confidences; (ii) A former client conflict issue that turns on whether the attorney received confidential information; or


(iii) The lawyer knows the client committed perjury only because of the confidential information.

These tend to be common issues on the bar exam.

CHAPTER 8: DUTIES TO THE COURT, THIRD PARTIES, AND THE PROFESSION

A. Responsibilities to Third Parties

• Rule 4.1: A lawyer must not ________________________________________ make a false statement to a third person.

Exam Tip 11: It is important to understand the nuances of Rule 4.1, as it is frequently tested on the Michigan Bar Exam.

o An attorney can run afoul of this rule by:

Remaining silent under circumstances where a ____________________________________________ impression is created;

Making a partially true, but ________________________________ statement; or Affirming a statement, made by someone else, that the lawyer knows to be false.

o Exception: non-statements of fact

Example 23: Lawyer confers with the client regarding settlement. The client is willing to pay up to $100,000 to resolve the dispute. During negotiations, the lawyer is permitted to express skepticism that the client will pay even $50,000, despite knowledge that the client will pay more.

In these circumstances, statements are simply not viewed as "statements of fact." But, Rule 4.1 still prohibits outright fraud.

• Rule 4.2: A lawyer must not communicate about the subject matter of the representation with a person whom the lawyer knows to be represented by counsel in the matter.

o Exceptions:

If the lawyer has the _____________________________________________ from the attorney representing the party;

When the law authorizes contact; or

Example 24: A plaintiff is suing a municipality for injuries sustained on one of the city’s buses. Because the plaintiff has the right to petition the government for redress, Rule 4.2 does not prohibit the plaintiff’s lawyer from addressing the city counsel and arguing for improved policies regarding bus safety

Talking with the represented party about things other than the ________________________________________________ of the representation.


Example 25: Singularly unhappy neighborhood. Attorney Smith lives next door to Jones, who lives next door to Mushman. Mushman hires Smith to bring a complaint against Jones for crossing Mushman's property line. Jones hires an attorney of her own. Smith cannot talk to Jones about the property dispute, but they can discuss other neighborly issues (e.g., a yapping dog).

o Organizations

Example 26: Lawyer is suing Huge Motors Inc., which is represented by counsel. Can she talk to employees of Huge Motors?

The underlying concern is that talking to a represented individual undermines the benefit of being represented. The worry is that the attorney might induce or coerce an individual into making admissions or giving up information.

Accordingly, Rule 4.2 prohibits contact with organizational representatives who might be in a position to know ____________________________________________ information or whose admissions could be _______________________________________________ to the represented entity (agency theory).

• This includes managers or anyone else whose conduct or statements can be imputed to the organization.

Separate counsel for an employee: If an employee's counsel grants permission, no permission from the entity attorney is needed.

Former employees: an attorney may not ___________________________________________ a former employee to disclose any attorney-client confidential communications to which they were privy when employed by the entity.

• Unrepresented person: the concern is that the person might not understand the role of the attorney.

o Rule 4.3: Prohibits a lawyer from stating or ________________________________________ to an unrepresented person that the lawyer is ____________________________________.

If it is apparent that an unrepresented person is under the misimpression that a lawyer is disinterested, the lawyer must correct that misimpression.

• Rule 4.4: A lawyer must not use means that have no substantial purpose other than to embarrass, delay, or burden a third person.

o The emphasis is on NO substantial purpose, other than the achieving of embarrassment, delay, or burden.

B. Responsibilities to the Court

• Rule 3.1: Prohibits a lawyer from bringing frivolous claims and making frivolous contentions


o A claim is NOT frivolous if a ________________________ argument exists for extension, modification, or even reversal of existing law.

o Criminal defendants may require the prosecution to prove every element of a case.

• Rule 3.2: Prohibits a lawyer from delaying litigation for the sake of delay • Rule 3.4: Prohibits certain conduct in the litigation process. These rules fall into five general

categories:

o No concealing evidence: a lawyer cannot unlawfully ________________________________, obstruct access, and in general, a lawyer should not ask anyone other than the client to refrain from giving information.

o No lying in court: a lawyer cannot falsify __________________________________, counsel a witness to testify falsely, or offer an inducement for false testimony.

o No disobeying the Rules o No "screwing around" with discovery: a lawyer should not make frivolous discovery

requests or fail to comply with legitimate requests. o No "cutesy stuff" in court: a lawyer should not allude to irrelevant evidence, assert personal

knowledge of facts as if a witness, etc.

Exam Tip 12: These rules are often tested on the exam. Take a look at the specific rules within these categories, spend some time with each, and know these rules well.

• Rule 3.3(a): a lawyer must not knowingly make a false statement of law or fact to a tribunal, and must _______________________________ any such false statements.

o A lawyer must disclose to the tribunal any ________________________________ legal authority that the lawyer knows about that is directly adverse to the client and that the opposing lawyer failed to disclose (though free to argue that the authority is distinguishable or should not be considered).

• Client Perjury

o Rule 3.3: a lawyer cannot offer evidence that the lawyer knows to be _________________________________. If the lawyer later learns offered evidence was false, the lawyer must take reasonable, ___________________________________ measures, which may include disclosure to the court.

Knowledge: A lawyer can give the client the benefit of the doubt if uncertain. But, a lawyer cannot ignore an obvious falsehood, and the lawyer's knowledge can be inferred from the circumstances.

• A lawyer is deemed to "know" that which seems _____________________________ from the circumstances.

Reasonable remedial measures:


• A lawyer should start by trying to persuade the witness to recant the testimony. • If the witness is a client, the lawyer should withdraw if doing so would fix the

perjury (difficult to see how it would fix perjury). • If necessary, the lawyer must __________________________________________

the falsehood to the court, even if that requires the attorney to disclose a communication protected by the duty of confidentiality.

• Rule 3.6: Should not engage in trial publicity (full list in outline) that has substantial likelihood of prejudicing the proceeding (e.g., references to inadmissible evidence, creating substantial risk of prejudice).

• Rule 3.8: Imposes special responsibilities on a ______________________________ (full list in outline)

o Prosecutors are not just officers of the court, but also representatives of the state and the people.

o Certain provisions go well beyond other rules (e.g., the obligation to make sure a defendant is informed of the right to counsel and the obligation to disclose exonerative evidence).

o New revision to this rule requires prosecutors to disclose to the court any new, credible, and material evidence that creates a reasonable likelihood that a convicted defendant is __________________________________________________.

o A prosecutor must also seek to _________________________________ a conviction if he or she knows of clear and convincing evidence that the defendant is innocent of a crime.

CHAPTER 9: TERMINATION OF REPRESENTATION/WITHDRAWAL

A. Termination

• When an attorney's work is complete, it is advisable for the attorney to send a communication to the client, ensuring that they agree and understand that the representation is over.

B. Withdrawal—Rule 1.16

1. Mandatory Withdrawal (Rule 1.16(a))

A lawyer must end representation when:

o The client ___________________________________________ the lawyer; o The lawyer develops a _________________________________________ or physical

condition that materially impairs his or her ability to represent the client; or o The representation would constitute a violation of the ethics rules or a violation of the law.

2. Permissive Withdrawal (Rule 1.16(b))

A lawyer may withdraw in the following situations:

o Where the lawyer can withdraw without ___________________________________ adverse effect on the interests of the client;


o Where the client persists in conduct involving the lawyer's services which the lawyer reasonably believes is _____________________________________________ or fraudulent;

o Where the client has already used the lawyer’s services to perpetrate a crime or fraud; o Where the client insists on pursuing an objective that the lawyer finds

_____________________________________ or imprudent; o Where the client has failed to fulfill an obligation to the lawyer that the lawyer has warned

the client about; o Where the representation would result in an unreasonable

____________________________________ burden on the lawyer; o Where the representation has been rendered unreasonably difficult by the client; or o Where some other _________________________________ for withdrawal is shown.

C. Duties upon Termination

• A lawyer must always take reasonable steps to mitigate the impact of withdrawal on the client. • Give ________________________________________________________ notice • Allow time for retention of a new lawyer • Make files and papers available to the new lawyer • Refund any advance payment that has not been earned

D. Continuing Representation

• Rule 1.16(c): a lawyer must continue the representation where the court has ordered the lawyer to do so, even if good cause for withdrawal exists.

Exam Tip 13: Watch for issues where withdrawal is intermixed with other issues. For example, withdrawal plays a role where a client commits perjury or a conflict of interest develops.

[END OF HANDOUT]

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