ABAModelRulesofProfessionalConduct

1、aba model rules of professional conducti. rule 1.0 terminologya. belief; confirmed in writing; firm cal 1-100(b)(1); fraud; informed consent cal 3-310(a); knowingly; partner cal 1-100(b)(5); reasonable; reasonable belief; reasonably should know; screened; substantial; tribunal; writing cal 3-310(a)i

2、i. rule 1.1 competencea. competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation cal 3-110i. legal knowledge and skill - consult or learn new field; reasonable preparation; in emergency keep assistance limitedii. thorough

3、ness and preparation factual and legal inquiry; what is at stakeiii. keep abreast of changes and engage in cleiii. rule 1.2 scope of representation & allocation of authority between client and lawyera. client makes decisions regarding representation and means; lawyer may act under implied author

4、ity; clients decision to settle; clients decision whether to enter plea, waive a jury or testifyb. representation is not endorsement of clients views or activitiesc. lawyer may limit scope of representation if reasonable & with informed consent of clientd. no counseling to engage in or assist in

5、 fraud; discuss consequences; good faith effort to determine law cal 3-200(b) & 3-210i. may require lawyer to withdraw (rule 1.16)iv. rule 1.3 diligencea. reasonable diligence and promptness requirement cal 3-110(b), b&p code 6128 (delay)i. zealous advocacy; control workload; carry matters t

6、o conclusionv. rule 1.4 communicationa. lawyer shall cal 3-500, 3-510, b&p 6068(m)i. inform client of matters requiring informed consent (settlement)ii. reasonably consult with client re the means by which to accomplish the clients objectivesiii. keep client reasonably informed re status of matt

7、er promptly comply with reasonable requests for infoiv. consult re limitations on lawyers conductb. explain to extent reasonably necessary to permit informed decisions by clienti. fulfill reasonable client expectationsvi. rule 1.5 feesa. no unreasonable fees or unreasonable amounts for expenses base

8、d on factors:i. time, labor, novelty, difficulty, skill requisite; likelihood of precluding other employment; fees customarily charged in locality; amount involved and results obtained; time limitations; nature and length of professional relationship; reputation, experience and skill of lawyer; fixe

9、d or contingent fee cal 4-200b. fee basis to be communicate before/within reasonable time of commencement of representation (preferably in writing)c. contingent fee must be communicated in writing, signed by client, with particulars b&p 6146, 6147, 6147.5, 6148i. contingency fees not permitted f

10、or domestic relations or criminal representationd. division of fees outside the firm permitted only ifi. division is proportional to work done or joint responsibility is assumed; client agrees and agreement confirmed in writing; and fee is reasonable cal 2-200e. aba opinion a lawyer may not bill for

11、 more time than she actually spends on a matteri. may not charge for general overhead expenses; only may recoup expenses reasonably incurred in connection with clients matter as long as charge reflects lawyers actual costvii. rule 1.6 confidentialitya. lawyer shall not reveal confidential informatio

12、n relating to the representation unless the client gives informed consent or disclosure is impliedly authorized cal 3-100b. information may be revealed to reasonably believed extent necessary to:i. prevent reasonably certain death or substantial bodily harm1. mcclure v. thompson (oregon)a. counsel r

13、easonably believed that disclosure was necessary to prevent further criminal acts regarding the seemingly ongoing crime of the missing childreni. past conduct is totally privilegedii. prevent client from committing crime or fraud resulting in substantial injury to financial interests or property (en

14、ron exception)iii. prevent, mitigate or rectify substantial injury to financial interestsiv. secure legal advice re compliance with rulesv. establish claim or defense re controversy between lawyer and clientvi. comply with court orderc. city of reno (nevada)i. attorney client privilege not waived wh

15、en using email1. clients reasonable expectation of privacyii. lawyer must disclose if she uses inadvertently disclosed information viii. rule 1.7 conflict of interest: current clientsa. no representation if concurrent conflict of interest cal 3-310i. conflict of interest if1. representation of one c

16、lient will be directly adverse to another client; or2. significant risk that representation of one client will be materially limited by lawyers responsibilities to another client, a former client, a third person, or a personal interest of the lawyerb. may represent despite concurrent conflict of int

17、erest ifi. lawyer able to provide competent and diligent representation to each client; representation is not illegal; representation is not a claim by one client against another in the same litigation; and each client gives informed consent confirmed in writingix. rule 1.8 conflict of interest: cur

18、rent clients: specific rulesa. no business transaction with client (or pecuniary interest adverse to client) unless cal 3-300i. transaction is fair and reasonable to client and fully disclosed in writing; client advised in writing of desirability of seeking independent legal counsel (and reasonable

19、time); and client gives informed consent in signed writing1. not an arms length transactionb. no use of information to disadvantage of client unless informed consent and permitted by these rulesc. no gift solicitations nor preparation of instrument giving the gift to lawyer or her relative unless th

20、e lawyer/recipient is related to client (close familial relationship) cal 4-400d. no agreement re media rights prior to conclusion of representatione. no financial assistance from lawyer to client except:i. advance court costs and expenses (repayment may be contingent); and lawyer may pay court cost

21、s and expenses on behalf of indigent clientf. no acceptance of payment from one other than client unless: cal 3-310i. informed consent, no interference with independence or relationship, confidential information is protected per rule 1.6g. no aggregate settlement of claims without informed consent i

22、n signed writing with lawyers disclosure of all claims involvedh. no agreement to limit lawyers liability for malpractice unless client independently represented; no settlement of malpractice claim with unrepresented client unless advised in writing of desirability of independent counsel (and given

23、reasonable time) cal 3-400i. no proprietary interest in the cause of action or subject matter of litigation except lien to secure fees or to contract re contingency fee in civil casej. no sexual relations with clients unless consensual sexual relationship existed when client-lawyer relationship comm

24、enced cal 3-120i. all prohibitions above imputed to firm except (j)k. generally cal 3-320, 4-300x. rule 1.9 duties to former clientsa. no representation of a person in same or substantially related matter as former client if persons interests are materially adverse to the interests of the former cli

25、ent (unless informed consent confirmed in writing) cal 3-310b. no representation of a person with same or substantially related matter if firm previously represented a client whose interests are materially adverse to the that person; and about whom the lawyer gained confidential information c. after

26、 representing a client a lawyer shall noti. reveal information relating to the representation to the disadvantage of the former client (unless info generally known); orii. reveal information except as permitted or required by these rulesd. determine that client is former based on clients viewpoint r

27、easonable belief standardxi. rule 1.10 imputation of conflict of interesta. firm may not represent client if individual lawyer may not represent per 1.7 conflict of interest or 1.9 duties to former votes unless based on personal interest and no risk of material limitation existsb. may represent mate

28、rially adverse interests when a client has terminated an association with the firm unlessi. matter is the same or substantially related and any firm lawyer has protected information cal 3-3101. disqualification may be waived by clientxii. rule 1.11 special conflict of interest for current and former

29、 government officers and employeesa. former officer of employeei. continuing duty of confidential informationii. no representing a client in connection with a matter the lawyer participated in personally and substantially unless government agency gives informed consent confirmed in writingb. imputat

30、ion to new firm unlessi. lawyer screened, lawyer not to receive any part of fee; and written notice is given to appropriate government agencyc. may not represent a person in a claim against a person about whom the lawyer has confidential information obtained while working for government (under gover

31、nment authority) if the private clients interests are adverse to and could be used to the material disadvantage of that personi. information is not available to publicii. firm may continue representation if lawyer is screened and no feed. current officer or employeei. subject to 1.7 conflict of inte

32、rests and 1.9 duties to former clientsii. shall not participate in matter in which lawyer participated personally and substantially while in private practice (unless governments informed consent); iii. nor negotiate for private employment with person involved as a party or lawyer for party in a matt

33、er in which lawyer is participating personally and substantially 1. except if law clerk to judgexiii. rule 1.12 former judge or other third party neutrala. no representing anyone in connection with a matter in which the lawyer participated personally and substantially as a judge, officer, law clerk,

34、 arbitrator, mediatori. unless all parties give informed consent confirmed in writingb. no negotiating for employment with person involved in a proceeding in which lawyer is participating personally and substantiallyi. law clerk to judge may negotiate for employment only after lawyer has notified ju

35、dge/officerc. imputation to firm unlessi. lawyer timely screened and no fee; and written notice to the parties and any appropriate tribunal (to ascertain compliance)d. partisan arbitrator on a panel is not prohibited from subsequently representing that partyxiv. rule 1.13 - organization as a clienta

36、. lawyer represents the organization acting through its duly authorized constituents cal 3-600b. if lawyer knows of a violation of legal obligation likely to result in substantial injury to the corporation, lawyer shall proceed as is reasonably necessary on the best interest of the organizationi. in

37、cludes referring the matter to higher authority within the organizationc. if highest authority fails to address an action or refusal to act that is clearly a violation of law and the lawyer reasonably believes the violation is reasonably certain to result in substantial injury to the organizationi.

38、lawyer may reveal information regardless of rule 1.6, but only to the extent necessary to prevent substantial injury to the organizationii. does not apply to information relating to a lawyers representation to investigate or defend an alleged violationd. if lawyer is discharged because of actions pe

39、r (b) and (c), or lawyer withdraws, she shall proceed to assure that the organizations highest authority is informed of the lawyers discharge or withdrawale. must explain the identity of the client to any of the organizations directors, officers, employees, members, shareholders or others when lawye

40、r knows that the organizations interests are adverse to the constituentsf. dual representation permitted per 1.7 consent of appropriate official (or shareholders) other than the one who is to be representedxv. rule 1.14 client with diminished capacitya. maintain a normal client-lawyer relationship a

41、s far as reasonably possibleb. may take reasonably necessary protective action (consulting or seeking appointment of guardian ad litem)i. confidential information is protected but lawyer has implied authorization to reveal information only to the extent necessary to protect clients interestsxvi. rul

42、e 1.15 safekeeping of propertya. hold client property and funds separately from lawyers (separate account); and complete records to be retained for five years after termination of representation cal 4-100i. own funds may only be deposited in trust for bank service feesii. deposit fees un advance in

43、trust account and withdraw only as earned/incurredb. upon receipt of funds promptly notify client and promptly deliver entitled funds to client along with full accounting if requestedc. keep disputed funds separate until resolution and promptly distribute all undisputed portions xvii. rule 1.16 term

44、inating representationa. mandatory withdraw if cal 3-700i. representation will violate rules or lawii. lawyers condition will materially impair his ability to representiii. lawyer is dischargedb. permissive withdraw ifi. accomplishable without material adverse effect on interests of clientii. client

45、 persists in fraudulent course of conduct involving lawyers servicesiii. client has used lawyers services to perpetrate crime or fraudiv. fundamental disagreement/lawyer finds action repugnantv. client fails to fulfill obligation re services (warning required)vi. representation will result in unreas

46、onable financial burden on lawyer or has been rendered unreasonably difficult by clientvii. other good causec. comply with law re notice or permission from tribunald. protect clients interest via notice, time to employ other counsel, surrender papers and advance feesxviii. rule 1.17 sale of law prac

47、ticea. seller ceases to practice in area or jurisdiction; notice given to clientsi. consent presumed if no action within 90 days cal 2-300b. fees may not increase by reason of sale xix. rule 1.18 duties to prospective clienta. prospective client if discusses possibility of representationi. determine

48、 is attorney-client relationship exists based on clients reasonable expectationb. lawyer shall not use or reveal information learned in consultationc. no representation of a client with an interest materially adverse to the potential clients in the same or substantially related matter if info receiv

49、ed by lawyer that could be harmfuli. imputation to firmd. exception representation is permissible despite disqualifying information ifi. both client and prospective client offer informed consent confirmed in writing; or lawyer took reasonable steps to avoid exposure to more disqualifying information

50、 then was necessary to determine whether or not to represent; and1. lawyer screened and written notice given to prospective clientxx. rule 2.1 advisora. in rendering advice al lawyer may refer to the law and to other considerations that may be relevant to clients situationi. moral, economic, social

51、and political factorsxxi. rule 2.3 evaluation for use by third personsa. lawyer may provide information to client for use by someone other than the client if compatible with other aspects of attorney-client relationshipb. no such evaluation if its likely to affect the clients interests materially an

52、d adversely unless client gives informed consentc. such evaluations are protected by confidentiality rule 1.6xxii. rule 2.4 lawyer as a third party neutrala. lawyer as such when assisting people who are not clients in resolving a matter between them cal 1-710b. inform unrepresented parties that the

53、lawyer does not represent themi. explain the difference if party does not understand the lawyers rolexxiii. rule 3.1 meritorious claims and contentionsa. shall not bring or defend a proceeding or claim unless there is a basis in law and fact that is not frivolous cal 3-200i. includes good faith argu

54、ment for an extension, modification or reversal of existing lawii. nevertheless defend to require that every element of the case is established in criminal proceedingxxiv. rule 3.2 expediting litigationa. lawyer shall make reasonable efforts to expedite litigation consistent with the interests of th

55、e client cal 3-110xxv. rule 3.3 candor toward tribunala. lawyer shall not knowinglyi. make a false statement of fact or law to the tribunal or fail to correct a false statement previously made by lawyer cal 5-200ii. fail to disclose legal authority in the jx known to the lawyer and directly adverse

56、to the position of lawyers client1. aba test “is the decision that has been overlooked one that the court should clearly consider in deciding the case?”a. legitimacy and consistency in the jx as a concerniii. offer false evidence or fail to take remedial measures of false evidence offered by lawyer,

57、 lawyers client or witness called by lawyer (includes informing the tribunal)b. lawyer shall take reasonable remedial measures if knows a person intends to engage in fraudulent conduct related to the proceedings (includes disclosure to tribunal)c. such duties continue to conclusion of proceeding (tr

58、umps 1.6 info)xxvi. rule 3.4 fairness to opposing party and counsela. lawyer shall not i. obstruct access to evidence or alter/destroy, nor counsel another to do the same; falsify evidence; disobey obligation under rules of tribunal; make frivolous discovery request or fail to comply with legally proper discovery request; allude to irrelevant matters at trial