MARYLAND PROFESSIONAL CONDUCT PROFESSOR RUSSELL MCCLAIN UNIVERSITY OF MARYLAND SCHOOL OF LAW

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1 MARYLAND PROFESSIONAL CONDUCT PROFESSOR RUSSELL MCCLAIN UNIVERSITY OF MARYLAND SCHOOL OF LAW Exam Tip 1: The Maryland Bar Exam tests n the Maryland Lawyers Rules f Prfessinal Cnduct, nt the ABA Mdel Rules. Exam Tip 2: There is always at least ne questin devted t Prfessinal Cnduct n the Maryland Bar Exam (ften, there is mre than ne). Smetimes, the Bar Examiners will take questins devted t anther tpic and embed a Prfessinal Cnduct discussin therein. Thus, in every questin, be n the lkut fr ethical issues. CHAPTER 1: REGULATION OF THE PRACTICE OF LAW A. Admissin t Practice Any persn wh wants t practice law must have a t practice. T practice law, a persn must first: Graduate frm an accredited law schl Pass the bar Pass a review The first step in admissin t the bar f any jurisdictin is t fill ut a bar applicatin. It is the ethical respnsibility f any applicant t: Tell the truth Disclse facts necessary t avid being misleading Respnd t all lawful Nte 1: Remember t cnsider what is mitted, as this infrmatin can ften be as imprtant as what is included in a statement. But an applicant may assert B. Unauthrized Practice f Law It is a misdemeanr t practice law in a state withut a license. An ut-f-state attrney (i.e., ne wh is licensed t practice in anther jurisdictin and has nt been disbarred) wh wants t practice law in Maryland must make a request f the curt, in a particular case, t appear pr hac vice. Such a lawyer may practice law nly in that and nly and that practice must be in assciatin with in Maryland

2 C. Regulatin after Admissin An attrney cmmits prfessinal miscnduct if she: Vilates the Rules f Prfessinal Cnduct Cmmits a crime that invlves r demnstrates an unfitness t practice law Examples: Rbbing a bank, cmmitting a fraud Engages in cnduct, even if nt criminal, that is Examples: Lying n a jb applicatin, submitting a fake résumé Frustrates the administratin f justice Interferes with the administratin f justice by acting with unlawful bias Suggests the ability t imprperly influence a gvernment fficial Assists a in vilating Miscnduct is a vilatin even if it ccurs Example 1: Yu are admitted t practice law in Maryland. Yu g t Pennsylvania and cmmit a bank rbbery. That is a vilatin. Example 2: If yu are a lawyer admitted t practice in Maryland and Califrnia, and yu g t Califrnia and cmmit malpractice, Maryland culd determine that yu cmmitted prfessinal miscnduct. Respnsibility fr miscnduct cmmitted by thers: A lawyer is subject t discipline fr miscnduct cmmitted by anther persn if the lawyer: the miscnduct the miscnduct with knwledge f that specific cnduct when the cnsequences f miscnduct can be avided (usually arises in the cntext f supervising attrneys) Partners at law firms can be liable fr the actins f in the firm. Required t make reasnable effrts t ensure that all lawyers and nn-lawyers in the firm cmply with the Rules f Prfessinal Cnduct. This is mre than just withhlding rders f miscnduct; this includes training emplyees f the firm t ensure cmpliance. Example 3: A lawyer has a paralegal. The lawyer is t busy, and as a result he dumps a lt f the wrk n the paralegal. The paralegal ends up being verladed and lets things fall t the side. The lawyer is respnsible fr that miscnduct Themis Bar Review, LLC MD Prfessinal Cnduct

3 Subrdinate attrneys Can be held respnsible fr vilatins f the Rules even if a supervising attrney Exceptin: If there is an arguable ethical duty, the subrdinate lawyer is nt independently respnsible fr a vilatin if the supervising attrney reached a reasnable reslutin f the arguable ethical questin. Clleague attrneys If ne lawyer is aware f a secnd lawyer s miscnduct, he must reprt the miscnduct t the apprpriate authrity if the miscnduct raises a questin regarding the r fitness f the secnd lawyer. CHAPTER 2: LAWYER INDEPENDENCE, PRACTICE MANAGEMENT A. Lawyer Independence Remember: Lawyers must exercise. Lawyers must nt allw t hld any psitin that may affect the cnduct f the practice f law. Nn-lawyers may nt: with lawyers Cannt even be in a partnership with lawyers if any f the activities invlve the practice f law in a law firm Hld any psitin f authrity that wuld allw the nn-lawyer t the prfessinal activities f lawyers in the firm Lawyers may prvide law-related services (e.g., law and accunting in a tax cntext), even if thse services culd be perfrmed by a nn-lawyer withut being the unauthrized practice f law. Remains subject t the Rules f Prfessinal Cnduct even when perfrming. Cntractual restrictins n practice A lawyer may nt enter int the fllwing kinds f agreements if they Partnership r ther emplyment-related agreements that wuld restrict the lawyer s ability t practice after the relatinship is terminated. Settlement agreements fr client cntrversies MD Prfessinal Cnduct 2016 Themis Bar Review, LLC 3

4 Example 4: A lawyer cannt ask anther lawyer t settle a case if the secnd lawyer agrees nt t practice law in a particular area f law anymre. B. Selling a Law Practice A lawyer may sell her practice if: The practice has been in existence at least years She is selling the She gives prper ntice t her clients, wh get 60 days t bject t being transferred t the buyer f the practice C. Lawyer Discipline 1. Prfessinal discipline: Prfessinal enfrcement f miscnduct Prfessinal discipline is impsed n a lawyer by the state disciplinary authrity, even thugh anyne with knwledge f a vilatin may initially bring a cmplaint. The accused lawyer is entitled t due prcess: ntice, cunsel, and an pprtunity t be heard. If the cmmittee finds that the charges are warranted, it will recmmend apprpriate sanctins (e.g., private r public censure, suspensin frm practice, disbarment). The lawyer has the right t seek review f the cmmittee s decisin by the in the state. (MD Curt f Appeals) 2. Malpractice: Private enfrcement f miscnduct There is a difference between and. Sanctins are intended t the lawyer (fr vilating the disciplinary rules), while malpractice damages are intended t injured clients. A malpractice actin is brught in and is prsecuted by the injured client. A mere vilatin f the ethical rules generally will nt be sufficient t supprt a malpractice claim. Malpractice claims can be based n a variety f different legal theries including: fr nt fulfilling a duty Breach f the between the lawyer and the client Intentinal trt Respndeat superir Themis Bar Review, LLC MD Prfessinal Cnduct

5 CHAPTER 3: FORMATION AND TERMINATION OF THE ATTORNEY-CLIENT RELATIONSHIP A. Acceptance r Rejectin f Clients A lawyer usually has n duty t representatin f any client, and generally has the right t any client. Has a representatin when: Accepting the client wuld r the ethical rules; r The lawyer lacks the ability t effectively represent the client Curt appintments Lawyers shuld nt attempt t avid the appintment unless there is. Justifiable reasns t decline a curt appintment: The representatin wuld cause the attrney t vilate the Rules r ther law The representatin wuld result in a The representatin wuld be an unreasnable financial burden n the attrney The curt-appinted lawyer s ethical respnsibilities are as thse f lawyers privately retained. B. Terminatin f the Lawyer-Client Relatinship An attrney may withdraw frm representatin when circumstances allw, but has a duty f t lessen any adverse impact upn the client. A lawyer must withdraw when: Failure t d s wuld result in vilating r ther law A lawyer s physical r mental cnditin materially impairs the ability t represent the client The client discharges the lawyer A lawyer may withdraw when: N will cme t the client as a result f the withdrawal. Even if harm will cme t the client: The client persists in criminal r fraudulent behavir The lawyer discvers that the client has used the lawyer t a crime r fraud Example 5: Yu are representing a publicly traded cmpany. Yu are wrking n their disclsure dcuments, and yu find ut later that the client lied in the materials which have nw been disseminated t the public. The client has used yu t cmmit the fraud, and there is an bligatin t withdraw frm representatin. MD Prfessinal Cnduct 2016 Themis Bar Review, LLC 5

6 There is a fundamental disagreement between the lawyer and the client The client has been given reasnable warning that the lawyer will withdraw unless the client meets an bligatin wed t the lawyer The representatin will result in an n the lawyer The client has made representatin unreasnably difficult fr the lawyer Other exists A lawyer may nt withdraw if the curt rders the lawyer t cntinue representing the client. Requirements fr withdrawal: A lawyer must give the client befre withdrawing. In the case f pending litigatin, the curt must apprve any withdrawal. The lawyer must return all client s papers and prperty. The lawyer must return any fees. C. Advertising and Slicitatin Advertising is lawful but there are restrictins. Any cmmunicatin a lawyer makes must be truthful and nt misleading. A cmmunicatin is false r misleading if it: Cntains a misrepresentatin a fact necessary t make the statement nt materially misleading as a whle Is likely t create an a lawyer can achieve (e.g., I always win r cme t the winners ) Exam Tip 3: Advertising and slicitatin is tested ften. Be n the lkut fr anything that is cmmunicated either publicly r individually. States r implies that a lawyer can achieve results by unethical r means the lawyer s services t that f anther, unless the cmparisn can be substantiated Lawyers may state the areas in which they practice. Nte 2: There is a key distinctin between Maryland s Rules and the ABA Mdel Rules. In Maryland, a lawyer may nt call herself a specialist. Every advertisement must cntain f the lawyer respnsible fr its cntent. The lawyer must keep f the advertisement Themis Bar Review, LLC MD Prfessinal Cnduct

7 1. Slicitatin (targeted cmmunicatins) Live slicitatin including phne calls, nline chatting, r in-persn cmmunicatin is, unless the persn slicited: Is als a Has a clse relatinship with the lawyer, including: A family relatinship A clse persnal relatinship A prir prfessinal relatinship Exam Tip 4: Lawyers may nt d thrugh thers the things that they cannt d themselves. Example 6: A lawyer may nt give a friend 100 business cards and ask the friend t hand them ut at accident scenes. Exceptin 1: Live slicitatin is permitted if the lawyer s mtive is nt fr gain. Example 7: A lawyer is interested in representing clients pr bn; i.e., nt interested in making mney ff f the clients r the representatin. Exceptin 2: This rule des nt apply t a situatin where a lawyer participates in a legal services plan that slicits membership frm persns. A lawyer may nt slicit (live r nt), if: The lawyer knws r shuld knw that the prspective client s mental, physical, r emtinal state wuld prevent the persn frm making a reasnable decisin abut emplying a lawyer The prspective client has asked t be left alne The slicitatin invlves cercin, duress, r harassment If a lawyer knws that a persn is in need f legal services, any slicitatin (live r nn-live) must be labeled n the utside envelpe, if any, and at the beginning and end f any message. CHAPTER 4: FEES Exam Tip 5: Tested ften. If yu see a lawyer ding anything related t mney r fees, be suspicius. All fees charged by an attrney must be, as determined by cnsideratin f the fllwing factrs: f the case MD Prfessinal Cnduct 2016 Themis Bar Review, LLC 7

8 Preclusin f ther emplyment The time limits impsed by the client r the matter Fairness Lcal custms The amunt invlved and the results btained The nature and length f any prir attrney-client relatinship between the lawyer and client The type f fee (i.e., fixed, cntingent, prepaid, hurly) The expertise f the attrney A. Cntingent Fees Nte 3: When the attrney s fee exceeds the client s stake in the case, it is generally an unreasnable fee. Cntingent fee agreement must be and include: The client s The used t calculate the fee Whether litigatin and ther expenses will be deducted frm any recvery (and if s, when they will be deducted) Exam Tip 6: A recent essay questin tested whether a fee was prper. There, a lawyer agreed t represent a client fr a percentage f the recvery. He did nt cmmunicate what that percentage was. Ultimately, after a victry, the lawyer tk 50% f the recvery and then tk expenses ut f the client s half. This is unreasnable. Exam Tip 7: Als lk ut fr lawyers wh start ut as either hurly r cntingent, and switch t the ther. B. Fee sharing NO REFERRAL FEES!!! Lawyers may nt give anything f value t anyne in exchange fr a referral Fees may be shared amng lawyers in the, including any retired members f the firm. Fees may nt be shared amng lawyers wh are nt in the same firm, unless: The fee represents the prtin f wrk dne by each lawyer r all lawyers assume fr the matter The client is ntified and agrees t the fee sharing The is reasnable Generally, lawyers may nt share fees with, except: In the case f deceased attrney, lawyers may pay: Themis Bar Review, LLC MD Prfessinal Cnduct

9 Retirement benefits The purchase price f the deceased lawyer s practice Firm persnnel may be paid frm fees thrugh cmpensatin r retirement plans, even if the arrangement invlves prfit sharing A lawyer may share curt-awarded legal fees with a rganizatin that emplyed, retained, r recmmended emplyment f the lawyer in the matter. Lawyers may enter int reciprcal referral agreements with nn-lawyers, but: The agreement must be and The lawyer must infrm the client f the nature f the agreement C. Client Funds Mney r prperty Exam Tip 8: Tested ften. Exam Tip 9: Depsited the funds in the perating accunt shuld raise sme flags. Must be depsited int a bank accunt (IOLTA). Client funds and lawyer funds must never be (i.e., nt in the same accunt) Accunt recrds must be maintained fr years. Once the lawyer has earned the fee, he must frm the accunt. CHAPTER 5: LAWYER-CLIENT RELATIONSHIP A. Frmatin f the Relatinship The lawyer-client relatinship begins when the client reasnably believes the relatinship exists. A writing is t frm a lawyer-client relatinship (e.g., the relatinship can be frmed verbally). B. Scpe, Objective, and Means f Representatin The client sets the f representatin. The client has ver settlement discussins. The lawyer must cmmunicate all bna fide settlement t the client. A lawyer wh enters int a settlement withut having cmmunicated with the client (r withut having the client s authrity) is subject t discipline, but the ppsing party still MD Prfessinal Cnduct 2016 Themis Bar Review, LLC 9

10 may enfrce the agreement if the lawyer acted with authrity. In criminal cases, it is the client wh decides whether t: Testify Waive a jury trial Enter a guilty plea The lawyer generally determines the used t achieve the client bjectives. Must cnsult with the client regarding the bjectives If the lawyer is representing a client with diminished capacity, she must maintain an rdinary lawyer-client relatinship as much as is pssible. If the client cannt act in his wn interest, the lawyer may take reasnably prtective actin, including seeking appintment f a guardian The lawyer may nt cunsel a client t engage in a crime r C. Duties Owed t the Client Once a lawyer agrees t represent a client, he becmes a and an f the client. A lawyer has a duty f in representatin. A lawyer must have the requisite necessary t effectively handle a client s matter, either thrugh r. A lawyer shuld cnsider this when deciding whether t accept representatin. Example 8: If yu are nt a bankruptcy attrney, yu may nt have the cmpetence t accept representatin f a bankruptcy client. On the ther hand, a general litigatin matter with sme bankruptcy issues may be within yur capabilities with a little preparatin (perhaps withut billing that preparatin time t the client). A lawyer shuld maintain cmpetence thrugh cntinuing legal educatin A lawyer has a duty f in representatin. This means the lawyer must: Be t the client s interests Cntrl his lad s as t ensure that all matters are handled prperly Act and nt be dilatry A lawyer has a duty f cmmunicatin in representatin. The lawyer must: Themis Bar Review, LLC MD Prfessinal Cnduct

11 Keep the client f the status f the case Infrm the client f all bna fide settlement ffers Exceptin: A lawyer may delay sharing infrmatin with a client if the client is likely t react imprudently. A lawyer wes duties f lyalty and cnfidentiality t the client. A lawyer wh represents an rganizatin, such as a crpratin, wes the duties f lyalty and cnfidentiality t the, nt its individual cnstituents, such as fficers, directrs, r emplyees. A. Duty f Cnfidentiality A lawyer is t keep cnfidential. Infrmatin relating t the representatin f a client is made up f three subsets f infrmatin: Attrney-Client Privilege Attrney Wrk Prduct All ther infrmatin relating t the client s representatin, whatever the surce Attrney-client privileged cmmunicatin: (i) A cmmunicatin (ii) between privileged persns (iii) that is intended t be cnfidential, and (iv) is fr the purpse f facilitating the giving f. The client hlds the privilege, and is the nly ne wh may it. The lawyer is bligated t assert the privilege n the client s behalf t prtect the client s interests. The privilege exists until it is, and can survive the client s death. Attrney wrk prduct: Infrmatin prepared in anticipatin f litigatin and includes any mental impressins f an attrney. All ther infrmatin relating t the representatin f a client includes infrmatin frm third parties, bservatins, and ther surces. Attrneys are required t assert the abve privileges cncerning cnfidential infrmatin s lng as the assertin f the privilege is nt frivlus. A lawyer may discuss aspects f a case as a s lng as the persn t whm the lawyer is speaking will nt be able t ascertain the identity f the client r the situatin invlved. MD Prfessinal Cnduct 2016 Themis Bar Review, LLC 11

12 The lawyer may reveal cnfidential infrmatin: 1) When the client gives infrmed ; 2) When cnsent t disclse is ; r 3) Permissive: when disclsure is necessary (and nly t the extent necessary) t: Prevent reasnably certain r substantial bdily harm Prevent harm resulting frm past r future client crimes r fraud, when the client has used the lawyer s services in furtherance theref (Nte: Disclsure may be if necessary t avid participating in the crime r fraud.) Secure legal advice abut the lawyer s cmpliance with the Address a dispute that puts the lawyer s cnduct at issue Crrect a fraud cmmitted n the curt Cmply with a law r a curt rder (but lawyers shuld assert privileges and may have t appeal a law r curt rder befre revealing cnfidential infrmatin) T prve a client s capacity t execute a r transfer T prtect an B. The Organizatin as Client Even if representing bth the rganizatin and its cnstituents, the ultimate duty is wed t the. A lawyer may represent bth and its (e.g., fficers, sharehlders, emplyees, etc.) s lng as n ther exists. When dealing with an rganizatin s cnstituents, a lawyer must explain the identity f the client fr whm the lawyer acts (e.g., I represent the rganizatin ) whenever it is r becmes apparent that the rganizatin s interests are thse f the cnstituents with whm the lawyer is dealing. Upn learning f an actin (e.g., intentin r refusal t act) by a persn assciated with the rganizatin that will likely cause substantial injury t the rganizatin, the lawyer must prceed as is reasnably necessary t act in the f the rganizatin. May include reprting the miscnduct t in the rganizatin If the highest authrity fails r refuses t respnd t this miscnduct (and that miscnduct is a clear vilatin f law), and the lawyer believes that the vilatin is reasnably certain t result in t the rganizatin, then the lawyer may reveal infrmatin relating t the representatin, and t the extent the lawyer reasnably believes necessary t prevent the substantial injury Themis Bar Review, LLC MD Prfessinal Cnduct

13 CHAPTER 6: CONFLICTS OF INTEREST CURRENT CLIENTS Exam Tip 10: This is a frequently seen tpic n the Bar Exam. A. Cncurrent Cnflicts f Interest Lawyers we clients a duty f and prfessinal judgment. As such, lawyers are required t avid cnflicts f interest. Mst times, even when a lawyer has a cnflict f interest, the lawyer still may cntinue if the affected client gives. Lawyers wh cannt avid the cnflict are disqualified frm representatin. Tw majr questins t cnsider when addressing cncurrent cnflicts f interest: 1) Is there a cnflict? 2) May the lawyer represent the client anyway? 1. Is there a cnflict? Cnflict if: Direct between tw clients; r Exam Tip 11: If there is a questin where a lawyer represents mre than ne persn- think cnflicts. Any f the fllwing wuld result in a significant risk f materially limiting the lawyer s ability t represent a client: The lawyer s interest The lawyer s respnsibilities t anther client, a frmer client, r a third persn. Example 9: Bb is represented by Lawyer n an emplyment cntract. Sal is Bb s neighbr and cmes t Lawyer A t sue Bb. Lawyer can t take Sal s case because Lawyer is representing Bb. 2. May the lawyer represent the client anyway? If there is a cncurrent cnflict, the lawyer may represent the client ntwithstanding the cnflict nly if ALL fur f the fllwing are established: 1) The lawyer reasnably believes he can still and effectively represent the affected clients 2) The representatin is 3) The matter des nt require the lawyer t represent adverse clients in the same litigatin (e.g., lawyer may nt represent bth plaintiff and defendant in the same matter) MD Prfessinal Cnduct 2016 Themis Bar Review, LLC 13

14 Exam Tip 12: One recent questin had plaintiffs wh had been invlved in a car accident and wanted t sue the truck driver. The tw plaintiffs apprach a lawyer t sue. While yu might fcus n the trts claims, be careful nt t ignre that the passenger might have a cause f actin against the driver, causing a cnflict. If the passenger actually sues the driver, the lawyer can t represent them bth. 4) Each client gives, cnfirmed in writing. Nte 5: If even ne f these elements has nt been met, the cnflict is. B. Cnflict Prhibitins fr Current Clients A lawyer may nt d any f the fllwing: 1. Enter int a business transactin with a client (r knwingly acquire an adverse interest t a client), unless: The terms are fair and reasnable The terms are fully disclsed in s that the client can understand the terms The client is advised in writing t seek The client gives Exceptin t the business transactin prhibitin: standard cmmercial transactins, where a lawyer acquires prducts r services marketed by the client t the public. Exam Tip 13: The business transactin prhibitin was tested n the July 2009 Bar Exam. The questin included an issue that invlved a lawyer wh tk a lan frm a client, which is a business transactin. This was an ethical vilatin because the lawyer did nt fllw all f the applicable standards. 2. Use infrmatin relating t the representatin f a client t the f the client Example 10: If a lawyer knws that a client plans t develp certain prperty, the lawyer may nt buy that prperty in rder t sell it t the client at a prfit. 3. Slicit a gift frm a client, unless the lawyer and client are 4. Negtiate fr prir t the cnclusin f the representatin 5. Prvide financial assistance t a client Exceptin: A lawyer may pay expenses fr pr bn clients Themis Bar Review, LLC MD Prfessinal Cnduct

15 6. Accept mney t pay fr representatin frm anyne except the client, unless the client gives infrmed cnsent, and there is n interference with the lawyer s independent prfessinal judgment and/r the lawyer-client relatinship 7. If representing tw r mre clients, make an settlement f the claims f r against the clients 8. Settle a legal malpractice claim with a frmer client r unrepresented frmer client, if the client is nt infrmed in writing f the advisability f retaining, and given a reasnable pprtunity t seek representatin by anther lawyer in making the agreement 9. Make an agreement prspectively limiting malpractice liability t a client 10. Obtain a interest in the cause f actin r subject matter f litigatin in which a client is represented, except when the fee is n the amunt f recvery r t secure payment f a fee thrugh a n recvery 11. Have sexual relatins with a client CHAPTER 7: CONFLICTS OF INTEREST FORMER AND PROSPECTIVE CLIENTS, IMPUTATION A. Cnflicts Invlving Frmer Clients The duties f and cnfidentiality t a client extend beynd the duratin f the representatin and can limit a lawyer s ability t represent ther clients r use infrmatin btained in representing that client. When a lawyer has represented a client, she cannt represent a secnd client in the r a substantially related matter if the secnd client s interests are t the first client s interests. A matter is substantially related if it invlves the same transactin r legal dispute, r invlves a substantial risk that, factual infrmatin nrmally btained in the prir representatin wuld advance the client s psitin in the subsequent matter. Example 11: Lawyer represents Prfessr in handling his financial affairs. Subsequently, Prfessr s wife wants a divrce. She appraches Lawyer t represent her in the divrce. Lawyer has a cnflict because he has infrmatin frm the first matter that can be used against Prfessr in the secnd. Once a cnflict is discvered, the same rules apply with respect t infrmed cnsent. Lk t see the lawyer reasnably believes she can represent the affected clients and if the representatin prhibited by law. Just as with current clients, any ptential cnflict must be disclsed and agreed upn in writing. Just as with current clients, a lawyer may nt use infrmatin relating t the representatin t the disadvantage f the client. MD Prfessinal Cnduct 2016 Themis Bar Review, LLC 15

16 1. Judges/Arbitratrs Thse wh substantially participated in a matter as an arbitratr, mediatr, r judge may nt: Represent anyne in that matter withut the written infrmed cnsent f all the parties Negtiate emplyment with any party r lawyer in the matter 2. Gvernment Lawyers A frmer gvernment lawyer wh substantially participated in a matter may nt represent any persn in that same matter, unless the gvernment gives written infrmed cnsent. A frmer gvernment lawyer wh btained infrmatin frm the gvernment abut a persn may nt later represent a private client against that persn, if the infrmatin culd be used t the persn s. A lawyer wh frmerly participated in a matter as a nn-gvernment lawyer may nt participate in that matter as a lawyer. A gvernment lawyer is nt generally permitted t negtiate fr private with any persn wh is invlved as a party r lawyer fr a party in a matter in which the lawyer is participating substantially. B. Imputed Disqualificatin General Rule: When ne lawyer in a law firm has been disqualified, that disqualificatin is imputed t ther members f the firm. FIRM X L/C L/C I I I I I L/C L/C I I I I I L/C Represents Lawyer wh wrked n a client s matter and received infrmatin = = Disqualified, unless an exceptin applies I = Represents Lawyer wh did nt wrk n a client s matter and received n infrmatin = Imputed Themis Bar Review, LLC MD Prfessinal Cnduct

17 Exam Tip 14: A questin n the February 2010 Exam asked abut representatin f a client by a lawyer in a breach f cntract matter (referenced earlier). The attrney s partner had represented the ther cntracting party in what is nw a breach f cntract dispute. Applicants shuld recgnize that, nt nly is the partner is disqualified, but the attrney in the firm is als disqualified and may nt take n a case that is adverse t the ther client s interest. The cnflict is nt imputed t the rest f the firm where: The cnflict is based n a f the lawyer; r The cnflict arises frm the lawyer having sexual relatins with a client. FIRM X L/P = Lawyer whse disqualificatin is based n the lawyer s L/P NI NI persnal interest NI = N imputatin NI NI NI Changing firms: When lawyers mve frm ne firm t anther, their cnflicts f interest can affect the ld and new firms: If a lawyer acquired infrmatin abut a client at an ld firm, that lawyer s disqualificatin is imputed t a new firm, unless the (mving) lawyer (i) is frm the matter and (ii) gets f the fee. Client must be infrmed. MD Prfessinal Cnduct 2016 Themis Bar Review, LLC 17

18 FIRM X FIRM Y NI NI L/C L/C L/C L/C S C R E E N / N O F E E NI NI If all f the lawyers at the first firm with the direct cnflict leave, that first firm n lnger has a cnflict, either. When a disqualified frmer judge, mediatr, r arbitratr jins a firm, the firm is prhibited frm representing anyne in the matter unless (i) the lawyer is frm the matter; (ii) the lawyer gets n part f the fee; and (iii) the parties and the are given ntice. When a disqualified frmer gvernment lawyer jins a firm, the firm is prhibited frm representing anyne in the matter unless (i) the lawyer is frm the matter, (ii) the lawyer gets n part f the fee, and (iii) the gvernment is given ntice. C. Cnflicts Invlving Prspective Clients Prspective Clients: Thse clients with whm a lawyer meets nce fr an initial cnsultatin, but whse representatin the lawyer des nt accept can still cause cnflicts. A lawyer may nt represent a client with interests materially adverse t thse f a prspective client in the same r matter if the lawyer received infrmatin frm that prspective client that culd be significantly harmful t that persn in the matter. The disqualificatin is nt imputed t the lawyer s firm if: The lawyer wh received the infrmatin tk measures t avid expsure t mre disqualifying infrmatin than was reasnably necessary t determine whether t represent the prspective client; The disqualified lawyer is frm any participatin in the matter and gets n part f the fee; and is prmptly given t the prspective client Themis Bar Review, LLC MD Prfessinal Cnduct

19 L/(C) FIRM X S C R E E N / N O F E E NI NI Ntice t prspective client (C) CHAPTER 8: CONDUCT OF ATTORNEYS IN LITIGATION A. Candr tward the Tribunal A lawyer must nt make a false statement f t the curt. A lawyer is als required t a false statement previusly made t that curt by the lawyer. A lawyer must disclse cntrlling legal authrity knwn t the lawyer even if that law is directly adverse t the psitin f the client if nt disclsed by ppsing cunsel. A failure t disclse can be the equivalent f an affirmative. Imprper fr a lawyer t fail t crrect a curt s errneus understanding f a fact In an ex parte prceeding (e.g., applicatin fr a prtective rder), a lawyer must infrm the tribunal f all knwn t the lawyer that will enable the tribunal t make an infrmed decisin, whether r nt the facts are adverse. A lawyer must avid assisting a client in a cmmitting a r fraudulent act, and may be required t disclse infrmatin if that is the nly way t avid a fraud frm being cmmitted n the curt. Example 12: A lawyer has prepared his client t testify. The client gets n the stand and suddenly changes his stry and lies in curt. The lawyer takes a break and cnfrnts the client, wh admits that he lied n the stand. The lawyer has a duty t disclse the lie r ensure that the client disclses it. If the client refuses t admit t the curt that he lied, the lawyer may have t disclse it if that is MD Prfessinal Cnduct 2016 Themis Bar Review, LLC 19

20 the nly way t avid perpetrating a fraud n the curt. Withdrawal frm representatin may be anther ptin fr the lawyer, althugh it may nt be sufficient if withdrawing wuld nt prevent the fraud frm being cmmitted. B. Truthfulness in Statements t Others A lawyer must nt knwingly make a false statement f material fact r law t. A lawyer may be required t disclse cnfidential infrmatin t a third persn in extreme cases when disclsure is necessary t avid assisting a client in cmmissin f a r act. Disclsure shuld nt be the first ptin. The attrney shuld withdraw frm representatin first and ntify the third party. C. The Lawyer s Cnduct in Litigatin Must be civil and shuld nt be Must nt engage in cnduct intended t disrupt a tribunal Must nt seek t a judge, jurr, prspective jurr, r ther fficial D. Litigatin Standards Frivlus claims: A lawyer must avid making frivlus arguments r claims Federal Rule f Civil Prcedure 11 / MD Rule 3.1: Impses sanctins fr frivlus actins Every claim must have a that is nt frivlus. Applies t discvery requests and respnses An actin is frivlus if the lawyer is unable either (1) t make a gd faith argument n the merits f the actin taken r (2) t supprt the actin taken by a gd faith argument t change existing law. In criminal prceedings, a lawyer may defend aggressively t ensure that is prved, even if there is n basis fr challenging the element. Under Maryland law, lawyers making frivlus claims can be sanctined r even. Expedience: A lawyer must litigatin. Deliberate delay r dilatry cnduct is a vilatin f this rule. Evidence: Lawyers must allw their adversaries t have access t evidence. May nt r evidence Must nt ask a persn ther than a client t refrain frm vluntarily giving relevant infrmatin t anther party unless: Themis Bar Review, LLC MD Prfessinal Cnduct

21 The persn is a relative, emplyee, r agent f the client; and The lawyer reasnably believes that the persn s interests will nt be adversely affected. If a lawyer receives a dcument that was sent inadvertently, the lawyer must. Under the Maryland Rules, there is n requirement t. At trial, a lawyer may nt allude t facts that the lawyer des nt reasnably believe are supprted by evidence. Witnesses: Generally, a lawyer may nt pay a witness, but a lawyer may pay: An expert witness s expenses fr testifying and the expert s fees Nn-expert witness. Fees are nt permissible fr nn-expert witnesses. Lawyer as witness: A lawyer may nt be an advcate and a witness in the same case, unless: The testimny relates t an issue; The testimny relates t the nature and value f legal services rendered in the case; r Disqualificatin f the lawyer wuld result in substantial hardship n the client. E. Cmmunicatins in the Curse f Representatin A lawyer may nt cmmunicate with any judge r ther fficial persn (including a jurr) in a tribunal. A lawyer may nt cmmunicate abut the subject f the representatin with a persn the lawyer knws t be represented by anther lawyer in the matter, unless the lawyer has the f the ther lawyer r is authrized t d s by law r curt rder. Des nt prevent the parties frm cmmunicating directly If the lawyer is cmmunicating with a persn unrepresented by cunsel: May nt imply that she is disinterested (e.g., must disclse I represent the plaintiff in this matter ); Must crrect any misunderstanding the persn has abut the lawyer s interest; and May nt give that third party legal advice, except t advise the party t, nce the lawyer recgnizes that the persn s interests may be adverse t the lawyer s client. A lawyer may nt make any abut a case that the lawyer knws is substantially likely t materially prejudice the adjudicatin f the case. MD Prfessinal Cnduct 2016 Themis Bar Review, LLC 21

22 May make a statement t damages frm an imprper public statement by ppsing cunsel May state nn-prejudicial facts abut the case if they are nt likely t prejudice the utcme f the case Example 13: Can make statements abut the status f a case, such as whether the curt denied a summary judgment mtin r whether the parties settled A. Special Rules fr Prsecutrs A criminal prsecutr must: Assert charges nly when they are supprted by Ensure that the defendant is accrded all f his rights, including the right t cunsel Nt attempt t btain a waiver f imprtant pretrial rights frm Take special precautins t prevent and reverse the cnvictin f inncent defendants Avid cnflicts with private interests Disclse ptentially evidence Seek justice rather than victry [END OF HANDOUT] Themis Bar Review, LLC MD Prfessinal Cnduct