Professional Responsibility New York Bar Exam Preparation Condensed Revision Notes

REGULATING LAWYERS: PROCESS & PUNISH.

-RULES GOV. CONDUCT OF NY ATTORN. FOUND IN NY RULES OF PROFES. CONDUCT

- COMPLAINTS RE NY ATTORN. INVESTIGATED BY GRIEVANCE COMMITTEE OF 1 OF 4 DEPARTS. OF APPELLATE DIVISION

4 TYPES OF DISCIPLINES:

1) ADMONITION (ADM. FOR CONDUCT, SLAP ON THE WRIST); 2) PUBLIC OR PRIVATE CENSURE (REMAINS ON FILE, CAN B PUBLIC); 3)  SUSPENSION (COURT TO ISSUE) - LAWYER IN LEGAL FIRM CAN’T SHARE IN LEGAL FEES EARNED WHILE SUSPENDED; 4) DISBARMENT (COURT TO ISSUE) – LICENSE TAKEN AWAY

IN ADDITION, TO DISCIPLINARY, SUBJECT TO MALPRACTICE CLAIMS BY CLIENTS/ 3RD PARTIES > SUPREME COURT

-VIOLATION OF NY RULE OF PROFES. CONDUCT =SOME RELEVANT EVIDENCE OF MALPRACTICE (CIVIL SIDE)

REGULATION AFTER ADMISSION:

SELF-REG. PROFESS., TWO-PRONGED DUTY WHEN KNOWLEDGE OF ANOTHER LAWYER’S VIOLATION> SUBSTAN. QUEST. OF DISHONESTY, TRUSTWORTHINESS, & FITNESS AS LAWYER.

DUTY: 1. REPORT KNOWLEDGE OF VIOLATION TO GRIEVANCE CIOMMITTEE OR COURT; 2. COOPERATE IN INVESTIGATION

E.g. senior lawyer=fraudulent billing regularly. Must report to grievance, may get fired, threat is not sufficient to refrain from report.

1 LAWYER LEARNS OF ANOTHER’S VIOLATION OF RULE DURING REPRESENT. OF CLIENT= DUTY OF CONFIDENTIALITY TRUMPS DUTY TO REPORT, LAWYER MAY NOT REVEAL INFO W/O CLIENT’S CONSENT

MULTI-JURIS. PRACTICE:

IMPOSED BY OTHER STATE= PERMITS RECIPROCAL DISCIPLINE IN NY - SAME MISCONDUCT

ADMITTED IN NY=CAN BE DISCIPL. BY NY’S DISCIP. AUTH. FOR ANY MICOND. -. NO “DOUBLE JEOPARDY” = DISCIPLINED IN NY + OTHER STATE ADMITTED IN

CHOICE OF LAW:

L ADMITT. IN STATE OF COURT: COURT PROCEED. -> RULES OF JURIS. WHERE COURT SITS; OTHER MATTER (e.g. transactional) IF NY = NY RULES; NY+ OTHER STATE -> WHERE L PRINCIPALLY PRACTICES UNLESS PREDOMINANT EFFECT IN OTHER STATE.

E.g. L licensed in NY & NJ; principal NY. While repress. Client in NJ – misconduct. NY may discipline, but NJ b/c misconduct in connection w proceed. In NJ. Miscond. sale of home in NJ= investing. NY auth; rules of NJ apply b/c predominant effect in NJ.

RESTRICT. ON LAWYERS

L CANNOT AID A NON-L IN UPL (UNAUTH. PRACT. OF LAW)

L CANNOT ENTER NON COMPETE AGREEMENTS ( agr. That restricts right of L to practice after termination of p/ship; employment/similar)

E.G. L leaves practice to open own, signs agr. Not to compete. Both violated & subject to misconduct.

EXCEPT: 1) BENEFITS & RETIREMENT (NOT-COMPETE=LOSS OF RETIREMENT BENEFITS =OK); 2) SALE OF LAW PRACTICE (AG. NOT TO COMPETE AFTER BUYING)

L CANNOT SETTLE MATTER WHICH RESTRICTS RIGHT TO PRACTICE IN FUTURE. E.G. L =can’t settle if restricts from future acts against same company representing diff. clients.

III. LAWYER-CLIENT RELATIONSHIP

DECISION-MAKING (DM) CLIENT’S = SUBSTANT. LEGAL IMPORT (C MAKES FINAL CALL): 1)COMMENC. ACT.; 2) SETTLING CASE 3) PLEA AGREEM. FOR CRIMINAL D 4) APPEAL 5) EELECT. JURY TRIAL 6)TESTIFY IN CRIM. CASE

L DM= STRATEGY, PROCEDURE, TACTICS W/O C’S CONSENT 1) DISCOVERY METHODS TO USE 2) GRANTING ADJOUNRMENTS THAT DO NOT PREJUDICE RIGHTS OF C (whether to allow more time)

E.g. if defend. Asks to settle= L follows C’s instructions

E.g. plaintiff= lost; L learns of misconduct of attorn. L= 1) reports the attorney; 2) follows client’s instruction

IF INCAPACITY-> L HAS GUARDIAN APPOINTED FOR C. IN NY, L = UNILATERAL ACTION (reason. necess. Protect. Act.) & APPOINT GUARD IF 1) DIMINISHED CAPACITY; 2) RISK OF SUBSTANT. PHYSICAL, FINANCIAL, OTHER HARM 3)CANNOT ADEQ. ACT IN OWN INTEREST

ACCEPT & WITHDRAW FROM REPRESENT: L=RIGHT TO REJECT ALL CASES, ALTHOUGH SHOULD DO PRO-BONO. MUST WITHDRAW: 1) L KNOWS REP.=RULE/ LAW VIOLATION 2) L = PHYSICAL/MENTAL DISABILITY (SUBSTANCE ABUSE) 3) C FIRES L 4) L KNOWS C WANTS REPRESENT. TO SOLELY HARRASS / MALICIOUSLY INJURE ANOTHER

L MAY WITHDRAW: 1) C INSIST PRESENT -> FRIVOLOUS CLAIM / DEFENSE 2) L REASON. BELIEVES CRIMINAL AND FRAUDULENT 3) C DELIBERATE DISREGARD, C HAS $ BUT REFUSES TO PAY L 4) C USES SERVICE TO PERPETRATE CRIME/ FRAUD 5) L’S EMPLOYMENT= VIOLATION OF LAW / DISCIP. RULE 5) INABILITY TO WORK W CO-COUNSEL = C’S BEST INTEREST>WITHDRAWAL OF L 6) C INSISTS ACT. L’S FUNDAMENTAL DISAGREEMENT 7) C FAILS TO COOP. 8) WITHDRAWAL CANNOT HAVE MATERIAL ADVERSE EFFECT ON C

COMPETENCE : L = ONLY CASES IN WHICH COMPETENT= PHYSCIAL & MENTAL COMP & COMP IN SUBSTANTIVE LAW & SUFFICIENT TIME TO DEVOTE

OVERCOME LACK OF COMP: ASSOC. W COMP. L WHO ASSISTS OR BECOME COMPETENT IN AREA

L CAN LIMIT SCOPE OF REPRESENT OF C IF REASONABLE & C > INFORMED CONSENT

L MUST TELL C OF ADDITIONAL RIGHTS TO PURSUE W OTHER L IF SCOPE LIMITED

COMM ABOUT LEGAL SERV. – ADVERT & SOLICITATION:

FIRM NAME = MUST NOT MISLEAD: e.g. Aaabest Law Firm = NO, trade names not permitted NY

SPECIALIZATION: MAY PUBLICLY IDENTIFY 1/MORE AREAS IF: CERTIFIED BY PRIVATE ORGANISATION APPROVED BY ABA OR ANOTHER STATE; L STATES CERTIFICAT. NOT RECOGNISED BY ANY NY AUTH. (B/C NY DOES NOT CERTIFY Ls AS SPECIALIST)

• ADVERTISING: PUBLIC/PRIVATE COMMS BY L W PRIMARY PURPOSE FOR RETAINING L OF L FIRM

EXCEPT: COMMS TO EXIST. CLIENTS & OTHER L

COMPUTER-ACCESS. COMMS: ADS THROUGH WEBSITES (blog is primary purpose=retain client), EMAILS, POP-UPS,CHAT ROOM, INSTANT MESSAGING, LIST SERVES, LINKEDIN

ATTORN. ADVERT. MUST INCLUDE:

1. a)NAME, PRINCIPAL L OOFFICE ADD, TEL NO OF L (TEL NO CAN CONTAIN DOMAIN NAME, NICKNAME, MONIKER, MOTTO THAT DOES NOT VIOLATE RULES
2. b) WORDS/STATEMENTS= CLEARLY LEGIBLE & CAPABLE OF BEING READ BY AVERAGE PERSON & UNDERSTOOD IF SPOKEN ALOUD

c) LABEL “ATTORNEY ADVERTISING” MUST BE ON 1ST PAGE OF DIRECT EMAIL / HOME PAGE OF WEBSITE/ SUBJECT LINE EMAIL

MAY INCLUDE (if true & not mislead.): EDUCATIONAL BACKGROUND & DEGREES; DATE OF ADMISS. TO BAR & AREAS OF PRACTICE; PUBLIC OFFICES & TEACHING POSITIONS ; MEMBERSHIPS IN BAR ASSOC. & PROFESS. ORGANISATIONS; FOREIGN LANGUAGE FLUENCY (MUST FLUENT); NAMES OF REG. REPRESENTED CLIENTS IF CONSENTED IN WRITING; ACCEPTABLE CREDIT ARRANGEMENTS; LEGAL FEES, CONTINGENT FEE RATES, RANGE OF FEES (FIRM SHALL ABIDE), HOURLY RATES & FIXED FEES; BONA FIDE PROFESS. RATINGS (UNBIASED AND NONDISCRIMINATORY).

IF RULES OK + ADISCLAIMER “Prior results do not guarantee a similar outcome” MAY ALSO CONTAIN: STAT/NTS ABOUT RESULTS L CAN ACHIEVE; STAT/NTS THAT COMPARE L’S SERVICES W OTHER L (MUST FACTUALLY SUPPORTED); TESTIMONIALS / ENDORSEMENTS OF C’S OR FORMER C’S; STAT/NTS DESCRIB./CHARACTERIS. QUAL. OF L’S SERVICES

ADS MAY NOT:

PAID ENDORSEMENT/ TESTIMONIAL W/O DISCLOSING COMPENSATION; ACTORS W/O DISCLOSURE

DOMAIN NAMES: CAN USE DOMAIN W/O L’S / L FIRM’S NAME IF: ALL PAGES = CLEAR & CONSPICUOUS ACTUAL NAME; L=NO WAY ATTEMPTS TO PRACTICE LAW USING DOMAIN NAME; DOMAIN DOES NOT IMPLY RESULTS (WINBIG.COM)

MISLEADING: OMIT FACT NECESSARY TO MAKE L’S COMM; SUBSTANT. LIKELIHOOD OF REASONABLE PERSON’S FORMULATION SPECIF. CONCLUSION ABOUT L/SERVICES / RESULTS W/O FACTUAL FOUNDATION. E.g. “ I’ve never lost a case” = b/c substant. Likelihood of reasonable person formulating specific conclusion, no reasonable factual foundation

TV &RADIO: APPROVED BY L, INCL. NAME, ADDRESS, TEL NO, & KEPT FOR AT LEAST 3 YRS FOLLOWING INITIAL DISSEMINATION

COMPUTER-ACCESSED COMMS: RETAIN FOR AT LEAST 1 YR

1. L SHALL NOT ENGAGE IN SOLICITATION (ADS @ SPECIF. PERSONS, THEIR FAM / LEGAL REPS) W PRIMARY PURPOSE OF RETENTION OF L FIRM/L & SIGNIF. MOTIVE GAIN BY IN PERSONS COMMS; LIVE-TELEPHONE COMMS; REAL-TIME/ INTERACT. COMP-ACCESS. COMMS (INCL. CONVERSATIONAL COMMS & CHAT ROOMS, NOT WEBSITES, POP-UPS OR EMAILS) UNLESS CLOSE FRIEND/ RELATIVE/ FORMER C / EXIST. C

EXCEPT: NO SOLICITAT. IN ANY FORM IF RECIPIENT MADE KNOWN DESIRE NOT TO BE SOLICITED; COMM = FALSE/MISLEADING; INVOLV. COERCION, DURESS, HARRASSMENT; L INTENDS/EXPECTS & DOES NOT DISCLOSE SERVICES WILL BE PERFORMED BY OTHER L NOT AFFILIATED W SOLICITING L AS PARTNER, ASSOCIATE/ COUNSEL

1. TARGETED MAIL: MAY SEND DIRECT MAIL TO GROUPS OF PEOPLE LIKELY TO NEED LEGAL SSERVICES (e.g. everyone arrested at Occupy Wall Street Demonstration); SELF-EMAILING BROCHURES TO HAVE “ATTORNEY ADVERT.” IF EMAIL – SUBJECT LINE; IF RETAINER AGREEMENT= WORDS “DO NOT SIGN” ON C’S SIGNATURE LINE; PROVISIONS APPLY TO L NOT ADMITTED IN NY WHO SOLICIT RETENTION BY NY RESIDENTS. IF SPECIFIC RECIPIENTS: MUST FILE @ TIME OF DISSEMINATION W ATTORN. DISCIPLINARY COMMITTEE OF JUDIC. DEPART. WHEREIN PRINCIPAL OFFICE. IF SPECIFIC OCCURRENCE (PLANE CRASH) MUST DISCLOSE HOW LEARNED RECIPIENT’S ID & NEED FOR LEGAL SERVICES. LIST OF NAMES AND ADDRESS KEPT FOR 3 YRS. IF PERSONAL INJURY/ WRONGFUL DEATH MATTERS =NO SOLICITATION BEFORE 30TH DAY AFTER INCIDENT, EXCEPT WHEN FILING IS REQUIRED <30 DAYS = NO UNSOLICITED COMMS BEFORE 15TH DAY AFTER INCIDENT.

E.G. plane crashes. L wants to send an ad w services to families of victims. L must: 1) File letter w Grievance community; 2) Wait 30 days after crash before mailing; 3) Disclose how L learned ID; 4) Keep list of recip. For 3 years

IF IMPROPER SOLICITATION= CANNOT ACCEPT EMPLOYMENT RESULTING

1. DUTY OF CONFIDENTIALITY: L MAY NOT KNOWINGLY DISCLOSE CONF. INFO, USE SUCH INFO TO DISADVANTAGE OF C OR FOR ADVANTAGE OF L / OTHER PERSON (ANOTHER C / FRIEND)

CONF. INFO= GAINED DURING/RELATING TO REPRESENT. OF C THAT IS: PROTECTED BY CLIENT-ATTORN. PRIVILEGE/ EMBARRASSING OR DETRIMENTAL TO C / INFO C REQUESTED TO BE KEP CONFIDENT. DUTY IS BROADER THAN OBLIGATION TO PRESERVE ATTORNEY CLIENT PRIVILEGE, WHICH ONLY ADDRESSES CONFIDENT. COMMS B/W ATTORN & CLIENT FOR LEGAL ADVICE.

E.G.  C tells about 3 murders committed 2 yrs ago, where buried + asks to represent = do nothing, confidential b/c past crime & privileged communication. 2 months later, C tells a friend= waived privilege= still do nothing, confidential comm b/c detrimental / embarrassing to C

EXCEPT:

MAY REVEAL IF L BELIEVES NECESSARY: 1) PERMITTED / REQUIRED BY LAW, RULES, COURT ORDER; 2) OBTAIN LEGAL/ ETHICAL ADVICE FOR L (USE HYPOTHETICALS IS OK TO PROTECT ID); 3). PREVENT C FROM COMMITTING ANY CRIME; 4) PREVENT REASONABLY CERTAIN DEATH/ SUBSTANTIAL BODY HARM. ALLOWS L TO DISCLOSE C COLFIDENCES TO PROTECT 3RD PARTIES AS CHILDREN FROM SERIOUS RISK/ HARM IN EXTRAORDINARY CIRCUMSTANCES. E.G. BARBRI PENS;

5) WITHDRAW WRITTEN/ORAL OPINION/REPRESENTATION WHEN BASED ON MATERIALLY INACCURATE INFO/ USED TO FURTHER CRIME/FRAUD

6) MAY REVEAL IF DISCLOSURE NECESSARY TO COLLECT A FEE OR DEFEND HIMSELF FROM ACCUSATION OF WRONGFUL CONDUCT(MALPPRACTICE CASE, GRIVANCE, CRIMINAL PROSECUTION)

7) C > INFORMED CONSENT OR DISCLOSURE IMPLIEDLY AUTH. TO ADVANCE BEST INTERESTS OF C.

NOTE: IF L REPRESENTS BEFORE TRIBUNAL & KNOWS THAT C INTENDS TO ENGAGE, IS ENGAGING OR HAS ENGAGED IN CRIMINAL / FRAUDULENT CONDUCT RE PROCEED. MUST TAKE REASONABLE REMEDIAL MEASURES & IF NECESS. DISCLOSE TO TRIBUNAL EVEN IF CONFIDENT. INFO

WHEN C LIES BEFORE TRIBUNAL: 1. L ASK C TO CORRECT HIS TESTIMONY & 2. WARN CLIENT OF CONSEQ. OF PERJURY & 3. IF C =NO CORRECTION AFTE 1 & 2, L MUST CORRECT C’S PERJURY

NOTE: L MAY REFUSE TO GIVE EVIDENCE OTHER THAN TESTIMONY OF D IN CRIMINAL MATTER, WHERE L REASONABLY BELIEVES C’S TESTIMONY IS FALSE.

1. PROSPECTIVE CLIENTS: PERSON WHO DISCUSSES POSSIBILITY OF FORMING A C-L RELATIONSHIP IS ENTITLED TO DUTY OF CONFIDENTIALITY.

NOT ENTITLED TO DUTY OF CONFIDENT.: 1. COMMUNICATED INFO UNILATERALLY W/O REASONABLE EXPECTATION THAT L IS WILLING TO DISCUSS POSSIBILITY OF FORMIN C-L RELATIONSHIP. 2. SPOKE TO L SOLELY TO DISQUALIFY HIM. E.g. Carmela tells Tony > “I want a divorce”. Tony speaks to all attorn. To disqualify them taking a case. Carmela  -> Alfredo, can he take a case? YES, Tony spoke to Alfredo to disqualify him.

1. SAFEGUARDING MONEY & PROPERTY OF CLIENTS AND OTHERS
2. RETAINER: 2 TYPES – 1. ADVANCED PAYMENT (BELONGS TO CLIENT, TRUST ACCOUNT); 2. GENERAL RETAINER (BELONGS TO ATTORNEY, GOES TO L’S ACC – FOR L TO BE AVAILABLE)
3. SEPARATE ACCOUNTS: L MUST DEPOSIT MONEY IN & WITHDRAW FROM PROPER ACC.
4. TWO ACC. L MUST HAVE: 1. OPERATING (FIRM’S/ L’S ACC, E.G. ONLY L’S MONEY); 2. CLIENT TRUST (ONLY C’S MONEY)

GENERAL RULE OF C’S TRUST: HAVE ONE, USE IT, KEEP RECORDS, DON’T MIX UP W OPERATING ACC.

SPECIFIC RULES: 1. BANK ACC. MUST BE IN BANK IN NY STATE; 2. FUNDS TO MAINTAIN ACC. ARE ONLY FUNDS THAT L CAN PUT IN C TRUST ACC.; 3. FUNDS MUST BE PLACED IN BANK THAT PROVIDES DISHONORED CHECK REPORTING IF CHECK BOUNCES ( COPY OF REPORT MAILED TO L & AFTER 10 DAYS SENT TO DISCIPLINARY COMMISSION TO TAKE ACTION. L CANNOT DEPOSIT ADDITIONAL SUMS IN THE ACC FROM HIS OWN FUNDS.

1. COMMON C TRUST ACC PROBLEMS: E.G. Denny> no money to pay rent. Uses C trust + promissory note to pay x 3 back. Prob: CONVERSION. ; Denny +new C, gives retainer. Denny->trust acc. Begins work +bills first week. Denny should transfer from C trust to operating acc w/n reasonable time after sending invoice.

e.g. C DISAGREES W L’S FEE: ; MUST KEEP DISPUTED MONEY IN C’S TRUST ACC UNTIL RESOLVED. L SHOULD: 1. PUT WHAT HE IS OWED + NOT DISPUTED TO OPERATING ACC. 2. PAY C WHAT HE IS OWED; 3. DISPUTED $ REMAINS IN C’S TRUST UNTIL RESOLVED

VII. LITIGATION RESPONSIBILITIES:

1. TRIAL PUBLICITY – RESTRAINTS ON PUB. STAT/NTS RE ADJUDICATIVE PROCEED.
2. NO STATEMENT MAY BE MADE BY L IF SUBSTANT. LIKELIHOOD OF MATERIALLY PREJUDICING A PROCEEDING. E.G. a) CHARACTER, REPUTATION/CRIMINAL RECORD; b) ID OF WITNESS / EXPECTED TESTIMONY; c) POSSIBILITY OF GUILTY PLEA, EXIST. OF CONFESSION, OPINION AS TO GUILT/INNOCENCE OF DEFENDANT/SUSPECT d) INFO L KNOWS/SHOULD KNOW WILL BE INADMISSIBLE AS EVIDENCE; e) FACT THAT D IS CHARGED W CRIME UNLESS MERELY ACCUSATION & D PRESUMED INNOCENT
3. L MAY ORDINARILY STATE W/O ELABORATION: a) DRY FACTS; b) WARNING OF DANGER; c) INFO TO AID IN APPREHENSION OF ACCUSED

RIGHT OF REPLY: IF 1 L MAKES STAT/NT W SUBSTAN. PREJUD. EFFECT, ANOTHER L MAY MAKE STAT/NTS TO MITIGATE THE EFFECT OF STAT/NT THAT SUBSTANTIALLY PREJUDICED C.

E.G. ADA tells press murder took place, D is likely guilty & will plead so. D’s L in response “innocent until proven “ & D is upstanding member of community. ADA: allowed where took lace, but opinion on guilt/plea NOT. D’s counsel: ALWAYS allowed “innocent until proven guilty” + stat/nts on character permitted to mitigate ADA’s stat/nts of opinion on guilt / pleas

1. NON-MERITORIOUS CLAIMS & CONTENTIONS:

CLAIM MUST HAVE: BASIS IN LAW, BASIS IN FACT, NOT FRIVOLOUS

CRIMINAL PROCEED: L FOR D IN CRIMINAL PROCEED. MAY DEFEND EVEN IF KNOWS D IS GUILTY & MAKE PROSEC. PROVE THEIR CASE (NOT FRIVOLOUS, BUT CAN’T DO IN CIVIL CASE)

VIII. CONFLICT OF INTEREST: BASIC RULE – L SHALL NOT REPRESENT IF WILL INVOLVE DIFFERING INTERESTS  OR SIGNIFICANT RISK THAT L’S PROFESSIONAL JUDGEMENT WILL BE AFFECTED BY L’S FINANCIAL, BUSINESS, PROPERTY, OR OTHER PERSONAL INTEREST.

IF ABOVE, CAN ONLY ACCEPT IF: 1) L CAN COMPETENTLY REPRESENT ALL AFFECTED CLIENTS AND 2) REPRESENT. NOT PROHIBITED BY LAW AND 3) REPRESENT. NOT INVOLVE ASSERTION OF A CLAIM BY 1 C AGAINST ANOTHER AND 4) EACH C GIVES INFORMED CONSENT TO CONFLICT IN WRITING.

E.g. mother (driver) & child (backseat) -> car collides w john = serious injuries to mother & child. L can’t represent both mother and child b/c issue of competently representing the child (child must bring claim against mother -> may be at fault) issue of assertion Of claim of one against another = conflict of interest

E.g. D1 & D2 blame one another for possession of cocaine. L cannot competently represent both b/c/ accus. Of eachother. NOTE: IN CRIMINAL CASE > ALMOST NEVER ACCEPTABLE FOR L TO REPRESENT MULTIPLE Ds!)

RULE OF IMPUTATION: 1 L’S CONFLICT IS IMPUTED TO ALL L’S IN FIRM, EVEN IF L IS IN ANOTHER OFFICE

1. L AS WITNESS: L SHALL NOT REPRESENT C IF HE IS LIKELY TO BE WITNESS ON SIGNIF. FACT UNLESS: 1. TESTIMONY RELATES TO UNCONTESTED MATTER OR 2. SOLELY TO VALUE OF LEGAL SERVICES OR 3. TO MATTER OF FORMALITY (SIGNING A WILL/ WINTESSING) OR 4. DISQUALIFICATION WILL IMPOSE SUBSTANT. HARDSHIP ON C OR 5. TESTIMONY IS AUTH. BY TRIBUNAL -à NOT IMPUTED TO OTHER L’S IN FIRM, BUT L MAY NOT ACT AS AN ADVOCATE BEFORE TRIBUNAL IN CASE WHERE L2 IN L1’S FIRM IS WITNESS ON SIG. ISSUE BY OTHER PARTY & APPARENT TESTIMONY WILL BE PREJUDICIAL TO C B/C L1/PARTNER1 SHOULD NOT TEAR APART L2/PARTNER2

MEDIA RIGHTS RE TO SUBJECT MATTER OF REPRESENT: PRIOR TO CONCLUSION OF C’S MATTER à L PROHIBITED FROM ENTERING / NEGOTIATING ANY ARRANGEMENT & GET ANY INTEREST IN LITERARY OR MEDIA RIGHTS THAT IS RELATED TO SUBJECT MATTER OF REPRESENTATION.

E.G.  C hires L to represent in civil suit. L agrees, but requires 35% of profits from literary /media proceeds re incident. NOT PERMISSIBLE, cannot be negotiated prior to conclusion of matter.

1. L CANNOT GET PROPRIETARY INTEREST THAT IS SM OF REP UNLESS: 1) LIEN TO SECURE L’S FEES & EXPENSES ( IF L DOES WORK FOR C + FIREDà CAN IMPOSE LIEN) AND 2) K W C FOR REASONABLE CONTINGENT FEE IN CIVIL MATTER

NOTE: DOMESTIC RELAT. à L RETAINER AGREEMENT MAY INCLUDE SECURITY INTEREST, CONFESSION OF JUDGEMENT, LIEN ON REAL PROP/TY OR OTHER TO SECURE L’S FEE ONLY IF 1. PRIOR NOTICE TO C OF SIGNED RETAINED AGREEMENT AND 2. TRIBUNAL APPROVES AND 3. NOTICE TO ADVERSARY AT CONCLUSION

BUT CAN’T FORECLOSE ON LIEN ON MATERIAL RESIDNECE IF SPOUSE WHO CONSENTED 1. REMAINS TITLEHOLDER; 2. PRIMARY RESIDENCE.

E.G. C hires L to represent in civil suit. L agrees, but requires 33% contingency fee based on amounts he’ll recover. OK, b/c l can contract for reasonable contingency fee in civil matter.

E.G. C refuses to pay L. L-> clause in retainer agreement granting L security interest in property. NOT PERMISSIBLE, unless provided to C & court approved security interest.

1. FINANCIAL ASSIST. TO C

CONTEMPLATED / PENDING LITIGATION = L CANNOT ADVANCE/ GUARANTEE FINANCIAL ASSIST. ( DOESN’T APPLY TO DRAFTING A WILL ETC, LITIGATION ONLY)

L MAY: ADVANCE COURT COSTS+ EXPENSES OF LITIG. WHEN: 1) REPAYMENT IS CONTINGENT ON OUTCOME; 2) INDIGENT OR PRO-BONO C

E.G. C ASKS TO BORROW MONEY TO FEED HIS HUNGRY CHILD (NO FOOD FOR 3 DAYS). NO, NOT COURT COST/EXPENSE OF LITIGATION

L IN CONTEMPLATED / PENDING LITIG. MAY NOT ADVANCE . GUARANTEE ASSISTANCE FOR C’S BAIL, MEDICAL BILLS, RENT.

1. FEE PAYMENT BY 3P:

L CANNOT ACCEPT FOR REPRESENTATION, OR A/NG OF VALUE RE REP. FROM ANY1 OTHER THAN C UNLESS:

1. C GIVES INFORMED CONSENT; 2. NO INTERFERENCE W L-C RELATIONSHIP; 3. NO CONFIDENTIAL INFO PROVIDED TO P à WILL SEE THIS ISSUE WHEN C IS INSURED BY INSURANCE COMPANY + WHEN REP. MINOR & PARENT PAYS L FEES

-à EVEN IF INSURANCE COMPANY PAYS, INSURED IS C.

E.G. L reps. C in auto litig. Insurance company pays L fees &  instructs L not to do legal research etc.. L =ignore insurance company, insured is the C!

SEX. RELATIONS W C: L CANNOT DEMAND SEX. RELATIONS ( INTERCOURSE, TOUCHING INTIMATE PART OF L / OTHER PERSON FOR SEX. AROUSAL, GRATIFICATION / ABUSE) FOR REPRESENTATION.

L CANNOT COERCE, INTIMIDATE/ UNDUE INFLUENCE TO SEX. RELATIONS INCIDENT

DOMESTIC RELAT. CASE: NO SEX. RELAT. DURING REP OF C. EVEN IF NOT DOMESTIC RELATIONS/ SEX PREDATES REP à MAY STILL BE CONFLICT OF INTEREST

1. BUSINESS TRANSACTIONS W C: L CANNOT ENTER BUSINESS TRANSACTIIONS IF DIFFER. INTERESTS & C EXPECTS PROFESSIONAL JUDGEMENT THEREIN FOR THE BENEFIT OF C à L CANNOT PREPARE LEGAL DOCS THAT GIVE L A PERSONAL INTEREST E.G. C HIRES L FOR BUSINESS START-UP & WANTS LOAN FROM L à L CANNOT GIVE $ & DRAFT PROMISSORY NOTE FOR LOAN

UNLESS: 1. TRANSACT. = FAIR & REASONABLE & TERMS DISCLOSED IN WRITING (TO BE REASONABLY UNDERSTOOD BY C); 2. C ADVISED & GIVEN OPPORTUNITY IN WRITING TO SEEK FOR INDEPENDENT L; 3. C àINFORMED CONSENT TO TERMS & L’S ROLE IN TRANSACT.