Model Code: The Legal Profession
Model Code: The Legal Profession
Model Code: The Legal Profession
1.2d Scope Of Representation And Allocation Of Authority Between Client And Lawyer
(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or
fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may
counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the
law.
Parsons Technology: A software product, designed to assist users in filling out basic legal forms, is challenged as an
unauthorized practice of law in Texas. The court had little trouble determining that this interactive software-which did
everything but hold itself out as being a virtual lawyer-was in violation of Texas unlawful practice rules.
Mustafa: Mustafa converted funds from the moot court program for his personal use. The court decided that too short of
a time passed since the misconduct, and Mustafa has failed to establish that he has good character required for admission to
the bar.
Attorney-Client Relationship:
2.1 Advisor
In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In
rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and
political factors, that may be relevant to the client's situation.
1.2b/c Scope Of Representation And Allocation Of Authority Between Client And Lawyer
(b) A lawyer's representation of a client, including representation by appointment, does not constitute an
endorsement of the client's political, economic, social or moral views or activities.
(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the
client gives informed consent.
Togstad: An attorney told Togstad that she had no cause of action but that he would talk to another attorney to confirm.
When Togstad did not hear back she thought there was no cause of action, but there was and the statute of limitations ran.
The court awarded Togstad damages and said that the attorney was negligent in giving advice that the Togstads did not have a
cause of action without adequate factual investigations and in failing to inform Togstad of the upcoming expiration of the
statute of limitations.
Lewis: A solo practitioner charged with violating his oath and duties as an attorney by negligently and improperly
conducted the administration of an estate without any previous probate experience and without associating or consulting a
sufficiently experienced attorney; by obtaining a loan from a client without the client’s written consent; and by failing to
maintain complete and accurate records of funds belonging to a client. He was sanctioned by the court for competence and
diligence because all of his problems” appear to be a direct or indirect result of his complete lack of familiarity with probate
law.”
1.4 Communication
(a) A lawyer shall:
o (1) promptly inform the client of any decision or circumstance with respect to which the client's informed
consent, as defined in Rule 1.0(e), is required by these Rules;
o (2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;
o (3) keep the client reasonably informed about the status of the matter;
o (4) promptly comply with reasonable requests for information; and
o (5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that
the client expects assistance not permitted by the Rules of Professional Conduct or other law.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions
regarding the representation.
1.14 Client With Diminished Capacity
(a) When a client's capacity to make adequately considered decisions in connection with a representation is
diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as
reasonably possible, maintain a normal client-lawyer relationship with the client.
(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical,
financial or other harm unless action is taken and cannot adequately act in the client's own interest, the lawyer may
take reasonably necessary protective action, including consulting with individuals or entities that have the ability to
take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator
or guardian.
(c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking
protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information
about the client, but only to the extent reasonably necessary to protect the client's interests.
Jones: Respondent presented his appointed attorney with a list of claims on which to base his appeal. His attorney found
these to be untenable, and proceeded to argue the appeal on different grounds. When they lost, respondent claimed
ineffective assistance of counsel. The Sixth Amendment’s “effective assistance of counsel” standard does not require a court-
appointed attorney to argue every non-frivolous point raised by his client. No defendant has a constitutional right to compel
appointed counsel to press non-frivolous points requested by the client, if counsel, as a matter of professional judgment,
decides not to present those points.
Confidentiality Rules:
1.6 Confidentiality Of Information
• (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed
consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by
paragraph (b).
• (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably
believes necessary:
o (1) to prevent reasonably certain death or substantial bodily harm;
o (2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial
injury to the financial interests or property of another and in furtherance of which the client has used or is
using the lawyer's services;
o (3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is
reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of
which the client has used the lawyer's services;
o (4) to secure legal advice about the lawyer's compliance with these Rules;
o (5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client,
to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the
client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of
the client; or
o (6) to comply with other law or a court order.
Belge: A lawyer was told by his client that he killed a person and he told the attorney the location of the body. The lawyer
went to the location and saw body and did not notify anyone. The court said that lawyer violated 2 public health laws—decent
burial and notification of death. The court found that client confidentiality protected Belge.
Privilege Rules:
FRE 502 Attorney-Client Privilege and Work Product; Limitations on Waiver
The following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by
the attorney-client privilege or work-product protection.
• (a) Disclosure Made in a Federal Proceeding or to a Federal Office or Agency; Scope of a Waiver. When the disclosure is
made in a federal proceeding or to a federal office or agency and waives the attorney-client privilege or work-product
protection, the waiver extends to an undisclosed communication or information in a federal or state proceeding only if:
o (1) the waiver is intentional;
o (2) the disclosed and undisclosed communications or information concern the same subject matter; and
o (3) they ought in fairness to be considered together.
• (b) Inadvertent Disclosure. When made in a federal proceeding or to a federal office or agency, the disclosure does not
operate as a waiver in a federal or state proceeding if:
o (1) the disclosure is inadvertent;
o (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and
o (3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal
Rule of Civil Procedure 26 (b)(5)(B).
• (c) Disclosure Made in a State Proceeding. When the disclosure is made in a state proceeding and is not the subject of a
state-court order concerning waiver, the disclosure does not operate as a waiver in a federal proceeding if the
disclosure:
o (1) would not be a waiver under this rule if it had been made in a federal proceeding; or
o (2) is not a waiver under the law of the state where the disclosure occurred.
• (d) Controlling Effect of a Court Order. A federal court may order that the privilege or protection is not waived by
disclosure connected with the litigation pending before the court — in which event the disclosure is also not a waiver in
any other federal or state proceeding.
Upjohn: An internal audit revealed illegal payments made to foreign officials in exchange for business. The IRS issued a
summons for internal questionnaires sent to managerial employees. Petitioner maintained those documents were protected by
the attorney-client privilege and attorney work product, Corporate counsel represent the corporation, not merely the “control
group” of officers and directors. Any employee capable of making a decision that would substantially affect the corporation’s
legal position must be granted this privilege. The work-product doctrine protects oral statements made to attorneys, which
necessitates a showing of undue hardship on the part of the party-opponent who seeks that information.
Perez: Truck driver Perez was involved in fatal school bus accident; gave a full statement to his company’s lawyers who
then turned the information over to the DA resulting in charges against Perez. Perez sues for breach of fiduciary duty. The court
found that the company’s lawyers should have clarified that they didn’t represent Perez (and in fact couldn’t because their duty
to the company formed a conflict). Perez, being an employee of the company, was reasonable to think they were going to
represent him. The fact that a 3rd party was present did not absolve them; Perez can tell his business, but lawyer can’t.
Neville:
Analytica:
International Longshoremen’s:
Cromley:
Attorney Supervision:
• 5.1
• 5.2
• 5.3
Ohralik:
Shapero:
Primus:
Niesig :
Fordham:
Cuyler:
Meredith:
Overview:
1.1
1.2
1.3
2.2
2.3(C)
2.4
2.5
Ex parte Communications
2.9
Disqualification
Liljeberg
2.11