MASSACHUSETTS PROFESSIONAL RESPONSIBILITY PROFESSOR ROBERT G. BURDICK BOSTON UNIVERSITY SCHOOL OF LAW

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1 MASSACHUSETTS PROFESSIONAL RESPONSIBILITY PROFESSOR ROBERT G. BURDICK BOSTON UNIVERSITY SCHOOL OF LAW CHAPTER 1: INTRODUCTION, ADMISSION, AND THE SNITCH RULE A. Practical Tips Tip #1: Whenever yu see a reference t a lawyer(s), that shuld be a flag indicating that the examiners might be lking fr sme discussin f prfessinal respnsibility issues. Tip #2: Grups f lawyers (law firms, partnerships, crpratins) implicate a whle additinal bdy f rules. Once yu have identified the lawyer(s), lk t see wh their clients are: Frmer clients Current clients Prspective clients Once yu have identified the client, lk at what the interests are: Objectives Rights B. Admissin t the Massachusetts Bar 1. Supreme Judicial Curt (SJC) The Massachusetts Supreme Judicial Curt ( SJC ) has the exclusive authrity t regulate admissin t the Massachusetts Bar. Can enact requirements fr admissin. Respnsible fr ultimately admitting yu thrugh the Bard f Bar Examiners. The Bard f Bar Overseers, appinted by the SJC, is respnsible fr prcessing applicatins and handling all cases invlving the miscnduct f lawyers and vilatins f the RPC. 2. Criteria t be Admitted t the Massachusetts Bar 1) requirement 2) Knwledge requirement 3) requirement b. Educatin Must have graduated frm an law schl

2 c. Knwledge Must pass (befre bar) MA Bar Exam Exam Tip 1: Additinally, all newly-admitted admitted persns in Massachusetts must, within 18 mnths f admissin, participate in a Practicing with Prfessinalism curse. d. Character applicant fr admissin must shw that she is f gd mral character N hard and fast guidelines Evidence f past cnduct will be cnsidered Obligatin f Example 1: Karen ges t the beach with sme friends frm anther cuntry. Her friends bring a six-pack f beer, unaware that this particular beach is in a municipality that has an rdinance against drinking in public. When the plice cnfrnt them, Karen takes respnsibility fr what happened and is cited and fined fr vilating the rdinance. That was 5 years ag, when Karen was in cllege. Karen des mentin the incident n her law schl applicatin. She des nt mentin it n her bar applicatin. Des Karen have t disclse that infrmatin? Karen shuld identify the situatin and explain it. The incident is unlikely t be a prblem in and f itself. The bigger prblem wuld be if Karen did nt disclse it. Be hnest and accurate C. Rule 8.3 (The Snitch Rule) The legal prfessin is self-regulating; lawyers have a duty t reprt the prfessinal miscnduct f ther attrneys. A lawyer having knwledge that anther lawyer has cmmitted a vilatin f the RPC that raises a substantial questin as t that lawyer s hnesty r fitness t practice law must reprt such miscnduct t the Bar Cunsel s ffice f the Bard f Bar Overseers. Editr's Nte 1: The lecturer paraphrases the abve rule. This rule is crrect as stated here. Exam Tip 2: A lawyer having knwledge that a judge has cmmitted a vilatin f applicable rules f judicial cnduct that raises a substantial questin as t the judge's fitness fr ffice shall infrm the Cmmissin n Judicial Cnduct. Example 2: Attrney Dale represents client Wilma. Wilma is lder and has been a client f Dale s fr sme time. Dale has represented her in a number f matters, including a past will. Wilma cntacts Dale t see if she can red her will. Dale talks t Wilma n the phne, but by the time he gets arund t meeting with her, Wilma has died. Dale decides (because he is a lyal advcate fr Wilma) t write the will based n what she tld him she wanted n the Themis Bar Review, LLC MA Prfessinal Respnsibility

3 phne. He frges her signature and has three peple witness the signing. The date he represents n the will t be the date that Wilma signed it turns ut t be a date in which Wilma was unavailable because she was in a cma. A beneficiary under the ld will, but nt the new will, challenges Dale s creatin f the new will. Dale ges t Sally, anther lawyer, tells her what happened, and asks fr her advice. He als asks her if there is any way t avid disclsing what he did. Here, Sally cannt disclse because Dale came t her as her client. Rule 8.3 prvides an exceptin t the mandatry duty t reprt ther lawyers Sally must prtect Dale s cnfidences. Hwever, she cannt advise him t his act. CHAPTER 2: THE PRACTICE OF LAW A. What is the Practice f Law? Certain actins can nly be perfrmed by a licensed attrney; if perfrmed by smene ther than a licensed attrney, the actins are cnsidered t be the unauthrized practice f law. Bright line: Only an attrney licensed t practice law can appear in curt t represent. Curts will nt allw a lay persn t represent a in curt, regardless f their psitin in the rganizatin. Nn-lawyers may assist in ther aspects f the practice f law, including interviewing clients, investigatins, and rganizing dcuments in anticipatin f litigatin. Nn-lawyers may als draft legal mems and fill in blanks n standardized legal frms. These actins are nt cnsidered t be the unauthrized practice f law. Exam Tip 3: Even thugh these activities are nt unauthrized practice f law, prblems may arise when a nn-lawyer undertakes these activities withut prper versight by an attrney. Example 3: An attrney in Bstn emplyed a paralegal wh engaged in substantial independent immigratin legal practice. The paralegal held himself ut t clients as a licensed attrney. The supervising attrney was sanctined fr failing t exercise apprpriate cntrl ver the paralegal s cnduct. B. Law Firms 1. Basic Rule lawyers in a firm r ther frm f practice must ensure that the RPC are fllwed. This duty is placed n all attrneys, including supervisry and subrdinate attrneys. Whether a grup f attrneys is cnsidered a law firm is a questin f. Cnsider the fllwing factrs: If practitiners share ffice space and equipment persuasive, but typically nt alne sufficient t find a law firm MA Prfessinal Respnsibility 2016 Themis Bar Review, LLC 3

4 If practitiners ccasinally cnsult r assist each ther persuasive, but typically nt alne sufficient t find a law firm If practitiners hld themselves ut t the public in a way that suggests that they are a firm r cnduct themselves as a firm typically wuld be regarded as a firm. Exam Tip 4: A frmal agreement between assciated lawyers wuld als be relevant in determining whether they cnstitute a firm, as wuld mutual access t infrmatin cncerning the clients they serve 2. Obligatins f Supervisrs (Rules 5.1, 5.2, and 5.3) These rules apply nt nly t partners, but als t any persnnel in a law firm. Partners and lawyers wh pssess cmparable managerial authrity in a law firm must make reasnable effrts t ensure the firm has measures in place that give reasnable assurance that all lawyers in the firm cnfrm t the RPC and that the cnduct f all nnlawyers wrking fr the firm cnfrms t the RPC. RPC 5.1(a); RPC 5.3(a) Exam Tip 5: If a subrdinate vilates the rules and the supervisr desn t knw abut it at the time, but finds ut abut it later and des nthing, the supervisr will be deemed t have ratified the cnduct and will be respnsible fr the miscnduct (alng with the subrdinate). Direct supervisrs, as well as partners, can be liable and deemed t have vilated these rules. Lawyers cannt avid liability by rdering r ratifying cnduct by third parties. If a supervisr learns that smene under her supervisin has vilated the ethical rules, the supervisr has an affirmative bligatin t try t the harm, if nt prevent the harm. If the supervisr had the pprtunity t prevent r remedy the harm, she may be sanctined fr a failure t d s. 3. Lawyers wrking with Nn-lawyers A lawyer is nt permitted t frm a partnership r ther business entity with a nn-lawyer if any f the activities f the entity cnsist f the practice f law. RPC 5.4(b). Example 4: Jim, a real estate lawyer, is in a partnership with his wife, Jane. Jim des the purchase and sale negtiatins and drafts. Smetimes he ges t curt t enfrce a particular purchase and sale agreement. Jane is a licensed real estate brker in the state f Massachusetts. She tends t handle the mre direct cntact with buyers and sellers, wrking ut deals, selling prperty, earning a cmmissin. In this partnership arrangement, they share all the prfits and all f the fees Jim files fr divrce. In the negtiatin ver the divisin f the marital prperty, Jim s lawyer says, I dn t think this Themis Bar Review, LLC MA Prfessinal Respnsibility

5 partnership is legal. I think it vilates the rule against lawyers sharing wnership f a law practice with nn-lawyers. The bar des nt want lawyers sharing pwer ver the curse f client-representatin with nn-lawyers. C. Other Rules are nt allwed t practice law while they are functining as. Curt clerks are nt allwed t practice law while they are functining as clerks. Lawyers may prvide ancillary nn-legal services Financial cunseling, psychtherapy, etc. (services that may cmpliment the legal services) May we the client different duties in additin t thse related t legal services Exam Tip 6: The lawyer has the burden f making it clear t the client what is ging n and t warn the client if duties nrmally wed are nt being bserved. CHAPTER 3: FEES A. Rule 1.5 Fees are gverned by Rule 1.5. Tw types f Fees based n the amunt f time the lawyer wrked fr the client based n hw much the lawyer recvers 1. Hurly Fees Tend t be gverned less rigrusly The rule requires that, hwever yu describe the fee that yu plan t charge, yu need t be clear. A recent amendment t Rule 1.5 requires that 'the scpe f the representatin and the basis r rate f the fee and expenses fr which the client will be respnsible shall be cmmunicated t the client in writing.' 2. Cntingent Fees Exam Tip 7: The fee must be reasnable, r nt excessive. A lawyer is being paid a certain amunt (ften a percentage f recvery), when the wrk is dne. Requirements fr enfrceable cntingent fee agreements: Needs t be in Rate must be reasnable MA Prfessinal Respnsibility 2016 Themis Bar Review, LLC 5

6 Terms must be reasnable based n the circumstances Fee cannt be based n factrs stated in the RPC, including: f the lawyer Opprtunity csts Unppularity f the wrk dne What the client received frm the services rendered The methd in which the fee is t be cmputed must be extremely clear. Fr example, the agreement must indicate when and hw litigatin expenses are deducted. Yu cannt use a cntingent fee in tw situatins: defense; and representatin. There is an exceptin fr pst-divrce litigatin (such as alimny). When the lawyer sends the client a final bill at the end f the representatin, the bill shuld be and explain hw the bill was calculated (an accunting). Fees paid in advance (i.e., retainers and payments f expenses) must be placed in a separate client ( IOLTA accunt). These funds may nt be cmingled with the lawyer s wn funds. Strictly enfrced Lawyers are required t prvide written ntice t the bank r ther depsitry in which the trust accunt is maintained, cnfirming that the accunt will hld trust funds. B. Fee-Splitting A lawyer, under certain circumstances, can share fees with anther lawyer. Lawyers in the same law firm, by agreement, may legitimately share r split fees earned by any f them. When sharing a fee with smene nt in yur wn firm: The fee must be reasnable The client must knw abut it The client must have given infrmed written cnsent Editr's Nte 2: The lecturer des nt clearly state these rules. T clarify, the client s cnsent f a fee-splitting agreement between lawyers frm different law firms shuld be in writing. The ntificatin frm the lawyers f the agreement itself des nt need t be in writing. Yu charge a referral fee fr referring a client t anther lawyer Themis Bar Review, LLC MA Prfessinal Respnsibility

7 Hwever, yu can charge a fee fr maintaining a nrmal lawyer referral service. Yu may be able t enter a fee-splitting agreement if yu perfrmed sme legal service fr the client. C. Sale f a Practice f Law (Rule 1.17) A lawyer r legal representative may sell r purchase part r all f a law practice, including gd will, t anther attrney r law firm. Selling lawyer retains bligatins t his frmer clients, and purchasing lawyer takes n all f the seller s legal duties as t current clients, including lyalty and cnfidentiality. Exam Tip 8: Rates cannt change merely because f the sale, but the new lawyer can negtiate new rates with the client. An agreement limiting the selling attrney s right t practice law is unenfrceable. Under the RPC, a lawyer may sell a law practice if the lawyer prvides actual written ntice t each f her clients regarding: The prpsed sale; The terms f any prpsed change in the fee arrangement; The client s right t retain ther cunsel r take pssessin f the file; and The fact that the client s cnsent t the transfer f representatin will be presumed if the client des nt take any actin r des nt bject within 90 days f receipt f the ntice. CHAPTER 4: ADVERTISING, SOLICITATION, AND THE LAWYER-CLIENT RELATIONSHIP A. Advertising It is legal fr lawyers t because it is cmmercial speech prtected by the First Amendment. Advertisements are t specific ptential clients Examples include TV ads, radi ads, newspaper ads, etc. The advertisement cannt be misleading. Sme puffery is kay. If a client wuld be misled, the advertisement vilates this rule. The advertisement cannt cntain anything material (meaning substantially imprtant) which culd mislead thse reading the advertisement and making decisins abut ging t that lawyer. It is permissible fr a lawyer t hld herself ut as an expert in certain circumstances: If the lawyer represents himself in the advertisement t be a specialist in a particular area, that factual representatin must nt be false r misleading. MA Prfessinal Respnsibility 2016 Themis Bar Review, LLC 7

8 Lawyers wh hld themselves ut as specialists will be held t the standard f perfrmance f specialists. A lawyer may nt state r imply in any cmmunicatin that the lawyer is certified by an agency as a specialist unless the cmmunicatin states that: The lawyer has been certified as a specialist by an identified rganizatin apprved by the apprpriate state authrity r accredited by the American Bar Assciatin; r The certifying rganizatin is a private rganizatin, whse standards fr certificatin are nt regulated by a state authrity r the American Bar Assciatin. Stating that the lawyer welcmes particular cases des nt hld the lawyer ut as a specialist. B. Slicitatin Slicitatin ccurs when a lawyer targets a specific individual in a certain way t slicit prfessinal emplyment. Includes face-t-face cntact, telephne calls, real-time electrnic cmmunicatin r targeted Mail is deemed t be and nt impermissible slicitatin. Rule cncerned abut undue influence, ambulance chasers, vulnerable clients. Exceptins A lawyer may cntact t make available her services A lawyer may cntact. Exam Tip 9: Legal services lawyers can als reach ut t witnesses r named plaintiffs in class actins if the client is nt ging t be charged fr thse services. Even if slicitatin is therwise acceptable: The lawyer cannt slicit a persn wh has made it knwn that he did nt wish t be slicited by the lawyer; The lawyer cannt slicit a persn fr a fee the lawyer knws r shuld knw is particularly vulnerable t slicitatin; and Slicitatin may never invlve cercin, duress, r harassment. C. Frming the Lawyer-Client Relatinship 1. Reasnable Client Test There are usually frmal indicatrs f a lawyer-client relatinship, but there are n essential frmal requirements. Example 5: A wman s husband has an peratin. Fllwing the peratin, smething ges wrng and he becmes paralyzed. She talks t a lawyer and Themis Bar Review, LLC MA Prfessinal Respnsibility

9 describes the situatin. She thinks she was talking t a lawyer seeking legal advice abut whether she has a case. The lawyer will later say he thught he said, Srry, nt interested in yur case. She hears, I dn t think yu have a gd case. Relying n that statement, she des nthing until the statute f limitatins passes. Then she talks t anther lawyer. The new lawyer says, I think yu had a great case. Srry abut the statute f limitatins. Maybe instead f suing the dctr, yu shuld sue the lawyer. She sues the first lawyer fr legal malpractice. The curt cncluded that she believed she had been given legal advice, relied n it t her detriment, and was harmed. A lawyer-client relatinship is frmed when a client believes she has spken t an attrney, she has asked fr legal advice, and he has given her legal advice which he shuld assume she will rely n. This test is frm the perspective f the client. Frmatin f a lawyer-client relatinship gives rise t ethical duties t a client under the RPC. 2. Appintment An attrney may be appinted by the curt. Generally, the attrney must accept the appintment and take the case unless ne f three things ccurs: It wuld vilate the rules t represent that client (e.g., cnflict f interest); If the lawyer can make a case that it wuld be a fr her t take the case (burden n the attrney, typically a financial hardship r she desn t have enugh time); r The representatin is t. D. Decisins Made in the Curse f Representatin (Rule 1.2) 1. Rule 1.2 in General In a lawyer-client relatinship, the client determines the f the relatinship, and the lawyer has discretin as t the. 2. Decisin-making in Other Situatins a. Rule 1.2 in particular situatins If a settlement ffer is made, the client must decide whether the ffer will be accepted. The lawyer must cmmunicate all bna fide ffers f settlement t the client. Applies in civil and criminal cases. Exam Tip 10: A lawyer wh agrees t a settlement withut the client s cnsent is subject t discipline. Hwever, the ppsing party may still enfrce the agreement if the lawyer acted with apparent authrity. MA Prfessinal Respnsibility 2016 Themis Bar Review, LLC 9

10 In criminal cases: It is the decisin as t whether t accept a plea ffer r enter a plea. It is the decisin as t whether the client will exercise his Fifth Amendment right t refuse t testify. Editr's Nte 3: Waiving the right t a jury trial is als exclusively the client s decisin. b. Prcedural matters RPC 1.4 lawyer has the authrity t make mst f the decisins relating t the strategy and methds fr achieving the client s gals Example 6: A lawyer gets a call frm ppsing cunsel wh is requesting a cntinuance. The natural inclinatin f the lawyer is t agree t the cntinuance. RPC 1.3 Lawyers cannt agree t prcedural requests if ding s wuld the client. RPC 1.4 lawyer must reasnably cnsult with the client abut the means t accmplish the client s bjectives and keep the client reasnably infrmed abut the status f the matter. Example 7: Yu represent a wman in a divrce actin. Yu file a mtin fr temprary supprt. The case is scheduled fr a particular day. Yu get a call frm ppsing cunsel asking t reschedule. Yur inclinatin is t say yes. Hwever, if the client wuld lse mney, r wuld take a day ff f wrk, that wuld be deemed t be prejudice that wuld require the client s infrmed cnsent. 3. Scpe f Representatin under Rule 1.2(c) A lawyer may limit the bjectives r scpe f the representatin if the limitatin is reasnable under the circumstances and if the client gives cnsent. Editr's Nte 4: The scpe f the representatin must be cmmunicated t the client, in writing, within a reasnable time after beginning the representatin f the client. RPC 1.5(b). Hwever, there are exceptins t the writing requirement fr a single-sessin legal cnsultatin r if a lawyer reasnably expects the ttal fee charged t be under $500. Rule 1.2(d) applies when the client wants advice abut matters that appear t be Themis Bar Review, LLC MA Prfessinal Respnsibility

11 A lawyer can talk t a prspective r current client abut smething that the lawyer recgnizes as being criminal r fraudulent, but a lawyer cannt r the client in ding s. What s the difference between talking abut it and assisting? Nt always clear Smetimes it is in the head f the lawyer whether the lawyer intends t discurage the client. Lawyers als cannt recmmend that a client cnceal a fraud r crime, r assist in such cncealment. CHAPTER 5: CONFLICTS OF INTEREST A. General Rules (Rules 1.7, 1.8, and 1.0) 1. Rule 1.7 (a) A lawyer must nt represent a client if the representatin invlves a cncurrent cnflict f interest. Cncurrent cnflict f interest there is a significant risk that the representatin f a client will be materially limited by the lawyer s ther duties r persnal interests, r the representatin f ne client will be directly adverse t anther client Situatin: One lawyer, tw current clients. If the clients interests and representatins are utterly unrelated, there is n cnflict under RPC 1.7. If the clients are in direct adverse legal cnflict, the lawyer cannt represent bth parties (even if the parties cnsent) A lawyer cannt represent bth the plaintiff and defendant in a, but may be permitted t help the parties negtiate a separatin befre trial. Exam Tip 11: A lawyer rdinarily may nt act as an advcate in ne matter against a persn the lawyer represents in sme ther matter, but representatin in unrelated matters is permitted if the clients interests are nly ecnmically adverse wuld nt rdinarily cnstitute a cnflict f interest The middle-grund is dependent n the clients interests and bjectives. Cnsider whether it virtually impssible fr ne lawyer t advcate fr ne set f interests withut almst necessarily undermining the ther client s interests. MA Prfessinal Respnsibility 2016 Themis Bar Review, LLC 11

12 2. Rule 1.7 (b) If it appears that there is a risk that a representatin will limit the lawyer s ability t fulfill all f his respnsibilities t anther client r a frmer client, RPC 1.7(b) ffers a methd t allw the representatin. Duties that culd be materially limited by a cnflict f interest include: The bligatin t be The bligatin t be diligent and The bligatin t prvide full disclsure t btain infrmed cnsent The bligatin t keep Example 8: A lawyer represents a husband and a wife in settling a landlrdtenant dispute against their landlrd. The wife mentins in passing that she is preparing t file fr divrce. She is nt asking the lawyer t represent her in the divrce, but des nt want the lawyer t tell her husband abut her plans. Because this may affect the current settlement and affects the lawyer s ability t keep cnfidences and render candid legal advice, this is a cnflict f interest. If a reasnable lawyer wuld determine that there wasn t really a cnflict, but it appears n the face that there culd be a cnflict, the lawyer must tell the clients abut what the risks are and ask fr the client s written infrmed cnsent t g further. Objective test! Example 9: One lawyer is apprached by tw business peple wh want t start a restaurant. One f the prspective clients has sme mney that he wants t invest and he wants the restaurant t be named after him. The ther business partner is an expert at managing restaurants. The partners are friends and d nt want t hire tw lawyers. They want the lawyer t draft the partnership agreement. Because this culd lk like a cnflict f interest n its face, the lawyer shuld meet with each partner individually and see if they are n the same page. If s, the lawyer may g ahead if he has infrmed cnsent in writing frm bth partners. In ther wrds, a lawyer may represent a client under RPC 1.7(b) if: The lawyer reasnably believes that she will be able t prvide cmpetent and diligent representatin t each affected client (bjective standard); The representatin is nt prhibited by law; The representatin des nt invlve the assertin f a claim by ne client against anther client represented by the lawyer in the same litigatin r ther prceeding; and Each affected client gives infrmed cnsent, cnfirmed in writing Themis Bar Review, LLC MA Prfessinal Respnsibility

13 3. Aggregate Settlement if a lawyer represents multiple in a persnal injury lawsuit (nt in a class actin), and a settlement ffer is made t any plaintiff, in rder t accept the ffer, every plaintiff must be infrmed abut what the thers have been ffered and must cnsent. RPC 1.8(g). 4. Cnsent Defined (Rule 1.0) Cnsent is infrmed if the lawyer has cmmunicated infrmatin and explanatin abut the risks f the prpsed curse f cnduct and reasnably available alternatives t the prpsed curse f cnduct. Cnsent fr waiving a cnflict must be in writing. Exam Tip 12: Infrmed cnsent is cnfirmed in writing if it either is given in writing by the persn r is a writing that a lawyer prmptly transmitted t the persn cnfirming an ral infrmed cnsent. RPC 1.0(c) B. Cnflicts with Frmer Clients (Rule 1.9) The duty f lyalty t a client extends beynd the duratin f the representatin. Duties t frmer clients may limit a lawyer s ability t represent ther clients r use infrmatin btained in representing the frmer client. The primary cncern is maintaining cnfidentiality. If a new client wants t be represented in the same case r a related case, the lawyer must g back t the frmer client and get infrmed cnsent, cnfirmed in writing. C. Ptential Lawyer-Client Cnflicts (Rule 1.8) A lawyer cannt g int business with a client unless special precautins are taken. Cnditins: All terms must be and reasnable (bjective test); The terms must be clearly and fully disclsed in ; The client must be advised in writing f the desirability f seeking and is given a reasnable pprtunity t seek independent cunsel in the transactin; and The client must give infrmed cnsent, in a writing signed by the client. A lawyer cannt enter int a literary deal with her wn client until the case is cmpletely. Lawyers cannt write wills r trust instruments fr smebdy wh wants t give the lawyer smething f value in the instrument. Can nly write such a will fr yur wn. A lawyer may negtiate with a client t waive future. MA Prfessinal Respnsibility 2016 Themis Bar Review, LLC 13

14 Hwever, the client MUST have her wn. Editr's Nte 5: The lecturer incrrectly suggests that this requirement fr independent cunsel may be waived with written infrmed cnsent. This is incrrect. Prspective legal malpractice liability may nly be waived if the client has actual independent representatin. A lawyer may negtiate a current legal malpractice claim, but the client must be advised in writing t get anther lawyer and given a reasnable pprtunity t seek independent legal cunsel. Editr's Nte 6: The lecturer incrrectly suggests that this requirement may be waived with written infrmed cnsent. Hwever, the nly requirement fr a writing in this situatin is that the client be advised in writing f the desirability f seeking independent representatin. A lawyer cannt give financial assistance t a client, ther than t pay fr curt csts r filing fees, unless it is a legal services client. Plicy we dn t want persnal injury lawyers subsidizing their client s living expenses while a case is pending. The client s fee is being paid by smene ther than the client (i.e., insurance cases) This is permissible, but there must be special precautins. If an insurance cmpany is paying the fee, the party insured is still the lawyer s client, and the lawyer must represent the client s interests. Requirements: Client must be infrmed f the arrangement; Client must give infrmed written cnsent; and The third-party cannt interfere with the representatin in any way. D. Changing Sides and Disqualificatins RPC 1.10 if a lawyer fr a client is disqualified frm representing that client, it is presumed that everyne in that lawyer s law firm is als disqualified due t a breach f cnfidentiality. Screening the firm is nt disqualified if the lawyer with the cnflict is prperly screened Exam Tip 13: In screening cases, the client des nt need t give infrmed cnsent. Instead, if the client is nt satisfied with the screening prcedures, In Massachusetts, he may take the issue t curt. CHAPTER 6: DUTIES THAT LAWYERS OWE TO THEIR CLIENTS A. The Obligatin t Perfrm Cmpetently (Rule 1.1) When a lawyer takes n a case, he is required t cmpetently represent the client. Cmpetence generally means that lawyer already has the necessary legal knwledge and t represent the client in this kind f case Themis Bar Review, LLC MA Prfessinal Respnsibility

15 A lawyer may als accept representatin if the requisite level f cmpetence can be achieved by reasnable preparatin r necessary study. Als requires cmpetent handling and adequate preparatin (what a reasnable lawyer wuld d given the matters at stake, the cmplexity, the time required, and the experience required) A lawyer may als accept representatin if the requisite level f cmpetence can be achieved by assciatin with a lawyer f established cmpetence in the field. RPC 1.1, cmt. 8 a lawyer shuld be aware f changes in the law and its practice, including the benefits and risks assciated with changing relevant technlgy. Exam Tip 14: Massachusetts des nt require lawyers t attend cntinuing legal educatin curses. B. Cmmunicatin t Client (Rule 1.4 The Full Disclsure Rule) 1. Rule 1.4(a) The lawyer must keep the client abut the status f the matter. The lawyer must the client when there are decisin fr the client t make, particularly cncerning the client s bjectives (i.e., sentiment ffers). 2. Rule 1.4(b) Exam Tip 15: The lawyer must reasnably cnsult with the client abut the means t accmplish the client s bjectives, but means are still generally within the lawyer s discretin. Full disclsure, infrmed cnsent rule A lawyer must prvide adequate infrmatin and explanatin abut the material risks t permit the client t make infrmed decisins regarding the representatin (must explain a matter t the extent reasnably necessary) C. Diligence (Rule 1.3) Must act n behalf f a client with reasnable diligence and prmptness Obligatin f lawyers t represent their clients within the bunds f the law Zealus advcacy des nt require the use f ffensive tactics r preclude treating all persns invlved in the legal prcess with curtesy and respect. Lawyers are nt required t pursue every pssible advantage n behalf f their client, but must pursue the client s interests ver thse f ppnents in interest. MA Prfessinal Respnsibility 2016 Themis Bar Review, LLC 15

16 D. Duty f Cnfidentiality (Rule 1.6) 1. Evidence Rule Privilege f Attrney-Client Cmmunicatins Can be invked by r n behalf f a client Purpse is t keep certain cnversatins between the lawyer and the client ut f evidence at trial; used in litigatin Nt as brad as the ethical rule 2. Ethical Rule Cnfidentiality a. In general Much brader than the evidence rule. Anything that an attrney learns abut a client is ptentially prtected by the ethical duty f cnfidentiality. Exceptins t the Presumptin f Cnfidentiality: Infrmed t reveal the infrmatin Need nt be in writing Must prvide adequate infrmatin and explanatin abut the risks f and reasnable available t that client Implied authrity t reveal the infrmatin Disclsure permitted in rder t carry ut the representatin if reasnable under the circumstances r custmary in the prfessinal cmmunity A client s instructins r special circumstances can limit such authrity. If the disclsure wuld be harmful r embarrassing t the client, shuld get infrmed cnsent Disclsure pursuant t a curt rder A lawyer must reveal cnfidential infrmatin cncerning the representatin f a client t cmply with anther law r a curt rder. b. Discretinary disclsures A lawyer has the discretin t disclse infrmatin if he has belief that the infrmatin needs t be disclsed t prevent certain death, bdily harm, wrngful r executin. Objective standard the reasnable lawyer in this situatin The lawyer can nly disclse infrmatin which is abslutely necessary t satisfy the exceptin Themis Bar Review, LLC MA Prfessinal Respnsibility

17 The lawyer has discretin t disclse infrmatin necessary t prevent a r a. Des nt need t be a crime r fraud by the client Must have a reasnable belief that the disclsure is necessary Editr's Nte 7: Lawyers are als allwed t disclse therwise cnfidential cmmunicatins t defend themselves in a dispute with the client r arising ut f the client s representatin, but nly that infrmatin which is necessary t d s c. Mandatry disclsures When a lawyer discvers that a client has utilized his legal services t cmmit a crime r fraud, a duty f disclsure arises t prevent, mitigate, r rectify the crime r fraud. A lawyer must nt knwingly fail t disclse a material fact t a third persn when disclsure is necessary t avid assisting a criminal r fraudulent act by a client E. Duty t Prtect Client Prperty Must hld client trust prperty separate frm a lawyer s wn prperty Subject t discipline fr cmmingling r misapprpriating funds Must depsit int a trust accunt legal fees and expenses that have been paid in advance, t be withdrawn by the lawyer nly as fees are earned r as expenses incurred Exam Tip 16: A lawyer wh knws that the right f the lawyer r law firm t receive a prtin f funds frm a trust accunt is disputed must nt withdraw the funds until the dispute is reslved. F. Duty t Prspective Clients (Rule 1.18) A persn wh cnsults with a lawyer abut the pssibility f frming a client-lawyer relatinship with respect t a matter is a prspective client; attrney-client relatinship is frmed when a prspective client meets with a lawyer t seek legal advice. A lawyer is still bund by the duty f cnfidentiality and the attrney-client privilege nt t disclse any infrmatin discussed with the prspective client. A lawyer is entitled t make an inquiry t determine the scpe f her duty t the prspective client CHAPTER 7: DUTIES THAT LAWYERS HAVE TO OTHER PARTIES A. Negtiatins (Rule 4.1) Rule 4.1(a) a lawyer cannt knwingly make a false statement f fact r t smebdy else. Includes clients, ppsing parties, and ppsing lawyers Scpe within the curse f MA Prfessinal Respnsibility 2016 Themis Bar Review, LLC 17

18 Rule 4.1(b) if a lawyer fails t disclse infrmatin necessary t crrect a crime r fraud that they unwittingly assisted, the lawyer has vilated RPC 4.1(b). Unless prtected by Rule 1.6 Exam Tip 17: Remember that Rule 1.6 des nt prhibit the disclsure f infrmatin if the lawyer needs t disclse that infrmatin t rectify a crime r fraud that the lawyer s services were used t cmmit. B. Cntact with Anther Lawyer s Client (Rule 4.2) 1. General Rule Prhibits a lawyer frm cntacting anther lawyer s client withut permissin frm that client s lawyer. 2. Represented Organizatins a. Cntact with emplyees f a represented rganizatin (Rule 4.2) In the case f a represented rganizatin, withut cnsent f cunsel, cannt talk t certain emplyees. Example 10: A law firm was representing a member f the plice frce f a private university. A wman, alleging that she had nt been prmted based n her gender, filed an emplyment discriminatin case t an administrative agency. During the investigatin, the wman s law firm interviewed many emplyees f the private university. Yu can talk t ther c-wrkers, supervisrs unrelated t litigatin, and emplyees. Withut cnsent f cunsel, yu can t talk t emplyees wh: Have managerial respnsibility in the matter litigated; Are alleged t have cmmitted wrngful acts at issue in the litigatin; r Have authrity n behalf f the rganizatin t make decisins abut the litigatin. Exam Tip 18: When in dubt, yu must check. b. Organizatinal clients in general (Rule 1.13) A lawyer emplyed r retained by an rganizatin represents the rganizatin s gverning bdy. A lawyer must make this relatinship clear when interacting with the rganizatin s cnstituents Must explain the identity f the client fr whm the lawyer acts, whenever the lawyer knws r reasnably shuld knw that the rganizatin s interests may becme adverse t thse f the cnstituents Themis Bar Review, LLC MA Prfessinal Respnsibility

19 Must nt mislead such a cnstituent int believing that the cnstituent may cmmunicate cnfidential infrmatin t the lawyer May represent bth the rganizatin and its cnstituents if n ther cnflict exists C. Talking t Unrepresented Parties 1. In General (Rule 4.3) A lawyer is generally permitted t cmmunicate with a persn nt represented by cunsel. Must nt state r imply that he is disinterested Cannt give The lawyer is allwed t describe what she thinks will happen in curt, and t generally describe what her views f the verall case are. Shuld advise unrepresented party t secure cunsel 2. Respect fr the Rights f Third Persns (Rule 4.4) RPC 4.4(a) a lawyer must nt use means that have n substantial purpse ther than t embarrass, delay, r burden a third persn. RPC 4.4(b) a lawyer wh receives a dcument r electrnically stred infrmatin that was mistakenly sent by the ppsing party must prmptly ntify the sender RPC 4.4(b) des nt require that yu return r destry the dcument unread D. Meritrius Claims and Cntentins (Rule 3.1) Cannt file frivlus lawsuits r assert frivlus claims r defenses Frivlusness is a subjective test if the lawyer acted in, she has nt vilated this rule Exam Tip 19: A lawyer des nt need t have the evidence he needs t prve his case befre he files a case. An actin is als nt frivlus merely because the lawyer believes that the client s psitin ultimately will nt prevail. E. Fairness t Oppsing Party and Cunsel (Rule 3.4) Cannt falsify evidence Mre cmplicated when talking t witnesses These rules d nt address limits n witnesses Hwever, cannt d anything intentinally that a lawyer wuld think wuld false testimny Can nly request that certain peple refrain frm talking t ppsing parties/cunsel, including: Yur wn If yu are representing a cmpany, that cmpany s Yur client s family and agents MA Prfessinal Respnsibility 2016 Themis Bar Review, LLC 19

20 Editr's Nte 8: The lecturer slightly misstates the end f this rule f law. There is n prvisin in RPC 3.4 permitting a lawyer t advise his wn family nt t talk t ppsing cunsel. Instead, the rule allws a lawyer t s advise relatives and agents f the client.. A lawyer cannt destry evidence. A lawyer cannt ask t d what she cannt d as a lawyer. This rule applies t all third parties A lawyer cannt vilate a. Cmes up in the cntext f discvery rules. A lawyer cannt allude t a piece f evidence that the lawyer believes is. A lawyer cannt express abut the vracity f a witness r the guilt r inncence f yur client. They can argue the reasnable inferences t be drawn frm the case, but cannt attempt t testify as a witness A lawyer can nly pay witnesses in limited circumstances: Can pay an expert a Cannt be cntingent n the utcme f the case A lawyer cannt the ther side. Cannt threaten t gain advantage in a civil suit r fr a pecuniary advantage Cannt threaten disciplinary actin against anther lawyer in rder t gain an advantage in negtiatin F. Candr t the Tribunal (Rule 3.3) 1. In General A lawyer cannt make a f fact r law t a judge. N exceptin fr nn-material statements! 2. False Testimny Exam Tip 20: Rule 3.3 requires that yu be mre candid in ex parte hearings than yu might therwise be if the ther side was there t prtect themselves. In ex parte hearings, yu must tell the judge everything that yu knw abut the case that the judge needs t make an infrmed decisin. If a lawyer nly reasnably believes that ne f his witnesses made false testimny, the lawyer has discretin t reveal that t the curt Themis Bar Review, LLC MA Prfessinal Respnsibility

21 May refuse t ffer evidence that the lawyer reasnably believes is false Reasnable belief assessed by prepnderance standard If a lawyer knws that ne f his witnesses ffered false material evidence, the lawyer must take reasnable remedial measures Remedial measures include, if necessary, disclsure t the tribunal. Als must refuse t ffer evidence that the lawyer knws t be false 3. Special Rules fr Criminal Defendants 5th Amendment Rights are cmplicated when defendant wants t lie: If yu find ut befre yu take the case that yur client intends t lie at trial, yu can t take the case. If yu find ut after yu ve taken the case, but befre the client has testified, yu must: Try t talk him ut f lying; and Try t withdraw. Wrst case scenari right befre he testifies, defendant client tells yu he intends t lie Special prcedure yu must tell the judge yu are ging t let the defendant testify withut asking any questins. Exam Tip 21: Remember in a civil case, if yur client lies, yu must fix it, all the way up until final judgment in the case is entered. In a criminal case, if yu find ut after the client has testified that he lied, yu have n bligatin and n right t disclse that infrmatin t the curt. CHAPTER 8: WITHDRAWAL AND DISCIPLINE A. Withdrawal (Rule 1.16) 1. Mandatry Withdrawal Certain situatins require a lawyer t try t withdraw If yu are in a case with a, yu will need the judge s permissin t get ut f the case. Editr's Nte 9: A lawyer appinted by the curt als needs the judge s permissin t withdraw frm a case. Three situatins in which a lawyer is expected t try t withdraw: If a lawyer is impaired in sme way (physically, mentally, emtinally) and can t fulfill his bligatin t the client; The client the lawyer (a client has an abslute right t fire his lawyer); r MA Prfessinal Respnsibility 2016 Themis Bar Review, LLC 21

22 The lawyer believes that cntinuing t represent the client will require her t vilate the rules f prfessinal cnduct. In civil cases client is ging t, has been lying, r lawyer has inadvertently assisted the client in a fraud r crime A cnflict f interest vilates the RPC Lawyer learns the claim is When filing a mtin fr permissin t withdraw, must disclse as little infrmatin as pssible t avid vilating cnfidentiality 2. Permissive Withdrawal Editr's Nte 10: A lawyer may nly withdraw frm representing a client if withdrawal can be accmplished withut material adverse effect n the interests f the client. Situatins in which a lawyer may have the right t withdraw: Client is nt, creating a financial hardship. Must warn the client in this situatin Exam Tip 22: Remember that the lawyer is expected t cntinue t fulfill the bligatins t the client as lng as they are still in the case, regardless f whether the client is paying the lawyer. Client is nt cperating. Examples include nt making appintments r prviding discvery Must warn the client in this situatin The case becmes t the lawyer. The lawyer finds ut that the client did, in the past, engage in criminal r fraudulent behavir using the lawyer s services. 3. After Withdrawal The cnduct was in the past, but the lawyer, t prtect himself, wants t withdraw. Editr's Nte 11: Upn terminatin f representatin, a lawyer shall take steps t the extent reasnably practicable t prtect a client s interests. The client is entitled t receive his case file. Wrk prduct is mre cmplicated: If there is n cntingent fee agreement, the client is entitled nly t that prtin f the lawyer s wrk prduct fr which the client has paid. If there is a cntingent fee agreement, the lawyer must prvide the client cpies f the lawyer s wrk prduct, but the client may pay fr the cpies Themis Bar Review, LLC MA Prfessinal Respnsibility

23 Exam Tip 23: If the lawyer has any mney that has nt yet been used, the lawyer has t return the unused mney. B. Discipline 1. In General Bard f Bar Overseers disciplines lawyers wh vilate the Rules f Prfessinal Cnduct A cmplaint may be filed by After an initial screening prcess, an attrney is assigned t investigate the cmplaint If cmplaint is fund t be withut merit, the prcess ends If cmplaint fund t have merit, mre frmal investigatin triggered It is very imprtant if yu are the subject t ptential bar discipline that yu with the investigatin. Bard f Bar Examiners may initiate their wn investigatins Being in anther state may be grunds fr disbarment in Massachusetts. 2. Sanctins censure r reprimand by bar cunsel; censure by the Bard (published); a perid f time in which the lawyer cannt practice; r lse license cmpletely, must reapply and shw that yu have learned frm yur mistakes. Exam Tip 24: Lk fr questins that specifically identify lawyer behavir. Lk fr the wrd lawyer. Draw a diagram f clients t lawyers frmer clients, current clients, prspective clients, all f whm have certain rights and t whm the lawyer(s) may have certain duties. Under each client, make a list f the interests each client has, particularly lking fr an indicatin that sme f thse interests are in cnflict. [END OF HANDOUT] MA Prfessinal Respnsibility 2016 Themis Bar Review, LLC 23

24 Themis Bar Review, LLC MA Prfessinal Respnsibility