Rules of Professional Conduct: Core Duties and Conflicts
The Organizing Duties
Most professional responsibility questions reduce to a handful of duties: competence and diligence, communication, confidentiality, loyalty (conflicts), candor to tribunals, fairness to opposing parties, and safekeeping of property. Learn the duty each rule protects, because the answer often follows from naming the duty before reading the options.
Conflicts in Three Steps
For a conflict question, first identify whose interests are at stake (current client, former client, third party). Second, classify the conflict: concurrent conflicts generally require informed consent confirmed in writing, and some conflicts - such as representing both sides of the same litigation - are nonconsentable. Former-client conflicts ask whether the new matter is substantially related to the prior representation and materially adverse to the former client. Third, check imputation: if one lawyer is disqualified, the firm usually is too, unless the disqualified lawyer is screened and did not acquire material confidential information.
Confidentiality Versus Privilege
Confidentiality is broader than the attorney-client privilege. Confidentiality covers all information relating to the representation; privilege covers confidential communications made for legal advice. Permissive disclosure is narrow: to prevent reasonably certain death or substantial bodily harm, to prevent a client's crime or fraud that threatens financial interests (with limits), to secure legal advice, or to respond to allegations in a dispute. A question that offers "disclose to protect the client's reputation" is a trap.
Fees, Trust Accounts, and Candor
Fee agreements must be communicated, and contingent fees in criminal and most domestic-relations matters are prohibited. Client funds belong in trust, separate from the lawyer's money, with records kept. Candor to a tribunal forbids offering false evidence and requires correcting a fraud on the court, even if that means revealing information the client would prefer to keep.
Worked Example
A lawyer represents a partnership and is asked to represent one partner against the others. Concurrent conflict: the partner's interests are adverse to the entity client, consent from all affected clients would be required, and the adversity is direct, so the safest answer is to decline unless every affected client gives informed consent confirmed in writing.