NCA Professional Responsibility cheat sheet
NCA Professional Responsibility · Keep the key ideas within reach.
Professional Responsibility: Core Duties and Decision Rules
A conflict of interest exists when representation of one client is directly adverse to another client, or when a significant risk exists that representation will be materially limited by responsibilities to a third person or the lawyer's own interests.
Under concurrent-conflict rules, a lawyer may represent a client despite a conflict only if the lawyer reasonably believes competence is not impaired, the representation is not prohibited by law, the representation does not involve asserting a claim against another client in the same litigation, and each affected client gives informed consent confirmed in writing.
Former-client conflicts bar representation materially adverse to the former client in the same or a substantially related matter without informed consent, and bar use of information relating to the former representation to the former client's disadvantage.
Imputation rule: a conflict of one lawyer in a firm is imputed to all lawyers in the firm unless the personally disqualified lawyer is screened from the matter and receives no part of the fee, and written notice is given to the affected client.
A lawyer may not represent a client if the representation will result in violation of the rules or law, or if the lawyer's physical or mental condition materially impairs the ability to represent the client.
Duty of competence requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary; duty of diligence requires reasonable promptness and adequate communication.
Confidentiality under the professional-responsibility rules is broader than the attorney-client evidentiary privilege: it covers all information relating to the representation, not only communications.
Permissive disclosure of confidential information is allowed to prevent reasonably certain death or substantial bodily harm, to prevent a client from committing a crime or fraud reasonably certain to result in substantial financial injury, and to respond to allegations in a controversy between lawyer and client.
Fee rules: fees must be reasonable; contingent fees are prohibited in criminal matters and in domestic-relations matters where the fee is contingent on securing a divorce, alimony, or property settlement.
Professional Responsibility: Candor, Fairness, and Practice Management
Candor to the tribunal prohibits knowingly making a false statement of fact or law, failing to correct a prior false statement, and offering evidence the lawyer knows to be false; a lawyer must remedy such situations, including by disclosure to the tribunal if necessary.
A lawyer must not knowingly counsel or assist a client in conduct the lawyer knows is criminal or fraudulent, but may discuss the legal consequences of proposed conduct and may assist in a good-faith test of the law's validity.
Ex parte communication with a represented person is prohibited when the lawyer knows the person is represented by counsel, absent consent of that counsel or authorization by law or court order.
A lawyer may not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, and the prohibition extends to agents and employees of the represented party.
Truthfulness in statements to others bars knowingly false statements of material fact or law, and bars statements implying improper influence over a tribunal or official.
Safekeeping property rule: client funds must be held in a trust account, commingling with lawyer funds is prohibited, and disputed portions must be kept separate until the dispute is resolved.
Advance fee payments: retainers paid in advance are generally client property until earned, and unearned portions must be refunded; flat fees may be treated as earned on receipt only if the agreement so provides and the client is informed.
Supervisory responsibility: a lawyer with managerial authority must make reasonable efforts to ensure the firm has measures giving reasonable assurance that all lawyers conform to the rules, and a lawyer is responsible for another lawyer's conduct if the lawyer orders or ratifies it with knowledge.
Advertising and solicitation: truthful, non-misleading communications are permitted; in-person or live telephone solicitation of a prospective client is prohibited when the motive is pecuniary gain, unless the recipient is a lawyer or a close family member or the contact is a prior professional relationship.