CLEC cheat sheet

Confidentiality under Model Rule 1.6 is broader than the attorney-client privilege: it covers all information relating to the representation regardless of source, whether or not it is privileged, and whether learned before or after retention.

Privilege protects confidential communications between client and lawyer made for the purpose of obtaining legal advice; the presence of a third party generally destroys privilege but not the Rule 1.6 duty.

Rule 1.6(a) permits disclosure only with informed consent, implied authorization to carry out the representation, or an exception under 1.6(b); the lawyer must make reasonable efforts to prevent unauthorized access or disclosure.

Rule 1.6(b)(1) allows disclosure to prevent reasonably certain death or substantial bodily harm; 1.6(b)(2) to prevent the client committing a fraud or crime that the lawyer reasonably believes is reasonably certain to result in substantial financial injury.

Rule 1.6(b)(6) permits disclosure to comply with law or a court order, and 1.6(b)(3) to prevent, mitigate, or rectify substantial financial injury from a client's crime or fraud in which the lawyer's services were used.

Rule 1.6(c) requires reasonable efforts to safeguard information; the duty survives termination of the representation and continues after the client's death.

The duty of confidentiality attaches at the prospective-client consultation stage under Rule 1.18, even if no representation results.

A lawyer may reveal information to secure legal advice about compliance with the Rules (1.6(b)(4)) or to detect and resolve conflicts from a change of employment (1.6(b)(7)).

Disclosure under an exception is permissive, not mandatory, except where law requires; the lawyer should disclose no more than reasonably necessary.

Rule 1.7(a)(1) covers concurrent conflicts from a direct adversity between clients; 1.7(a)(2) covers material limitation on the lawyer's responsibilities to another client, a former client, a third person, or the lawyer's own interests.

A concurrent conflict may be cured by informed consent confirmed in writing only if the lawyer reasonably believes competent and diligent representation is possible, the representation is not prohibited by law, and no client is asserting a claim against another client in the same matter.

Rule 1.9 prohibits representation adverse to a former client in the same or a substantially related matter where the former client's information could be used to its disadvantage; former-client conflicts require informed consent confirmed in writing.

Imputation under Rule 1.10 disqualifies the entire firm when one lawyer is personally disqualified, unless the personally disqualified lawyer is screened and has no fee apportionment, or the prohibition is based on a former government lawyer's Rule 1.11 situation.

Rule 1.8 lists specific prohibitions: business transactions with a client, use of client information to the client's disadvantage, soliciting substantial gifts, literary rights, and third-party payor interference.

A lawyer may not acquire a proprietary interest in the cause of action or subject matter of litigation, except a lien to secure fees or expenses under Rule 1.8(i).

Rule 1.8(a) business transactions require terms fair and fully disclosed, client advised in writing to seek independent counsel, and informed consent confirmed in writing.

Sexual relations with a client are prohibited under Rule 1.8(j) unless the relationship predates the lawyer-client relationship.

Advance waivers of future conflicts are permissible only if the client gives informed consent and the waiver is sufficiently specific; open-ended waivers are generally ineffective.

Rule 1.1 requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary; a lawyer may take on a matter in a new field if the lawyer studies it or associates with competent counsel.

Rule 1.3 requires reasonable diligence and promptness; the duty continues through appeal and until the matter is concluded, and a lawyer may not neglect a matter even if the client fails to pay.

Rule 1.4(a) requires keeping the client reasonably informed, promptly complying with reasonable requests for information, and explaining the matter to the extent reasonably necessary for informed decisions.

Rule 1.4(b) requires explaining a matter to the extent reasonably necessary to permit the client to make informed decisions about the representation.

Rule 1.4(a)(3) requires keeping the client reasonably informed about the status of a matter; 1.4(a)(2) requires reasonable consultation about the means by which objectives are pursued.

Rule 1.4(a)(5) requires consultation about any limitation on the lawyer's conduct, such as a client's insistence on a course that would violate the law or the Rules.

Competence includes technological competence: a lawyer must understand the risks and benefits of relevant technology, including e-discovery and metadata, or associate with someone who does.

A lawyer's mental impairment, substance abuse, or physical condition that materially impairs competence may constitute a violation of Rule 1.1 and 1.16(a)(2).

Rule 1.16(a) requires withdrawal where representation will result in a violation of law or the Rules, or where the lawyer's physical or mental condition materially impairs the representation.

Rule 1.5(a) lists reasonableness factors: time and labor, novelty and difficulty, skill required, preclusion of other employment, customary fee, whether the fee is fixed or contingent, time limitations, amount involved and results, experience, and whether the fee is fixed or contingent.

Contingent fees must be in writing signed by the client and must state the method of calculation, including whether expenses are deducted before or after the percentage is computed and whether the percentage changes on appeal.

Contingent fees are prohibited in domestic relations matters and in criminal cases under Rule 1.5(d).

Fee agreements must be communicated to the client in writing before or within a reasonable time after commencing the representation, except for a regularly represented client on the same basis.

A division of fees between lawyers not in the same firm requires the client's informed consent confirmed in writing, the division to be proportionate to services performed or each lawyer to assume joint responsibility, and the total fee to be reasonable.

Rule 1.15 requires client funds to be held in a trust account, separate from the lawyer's own funds, with complete records and prompt notification and delivery of funds to which the client is entitled.

Earned fees belong to the lawyer, but disputed funds must remain in trust until the dispute is resolved; the undisputed portion may be withdrawn.

Advance fee retainers (funds held in trust) remain client property until earned; a true retainer (fee for availability) is earned on receipt but must still be reasonable.

Rule 1.15(d) requires that upon receiving trust funds, the lawyer promptly notify the client and deliver any funds or property to which the client is entitled.

Rule 3.3(a)(1) prohibits knowingly making a false statement of fact or law to a tribunal or failing to correct a prior false statement; 3.3(a)(2) prohibits failing to disclose directly adverse legal authority in the controlling jurisdiction.

Rule 3.3(a)(3) prohibits offering evidence the lawyer knows to be false; if the client insists on testifying falsely, the lawyer must seek withdrawal and, if that fails, may disclose to the tribunal only the fact of the client's perjury.

Rule 3.4 prohibits unlawfully obstructing another party's access to evidence, falsifying evidence, counseling a witness to testify falsely, and knowingly disobeying a rule of a tribunal.

Rule 4.2 prohibits communication about the subject of the representation with a person the lawyer knows is represented by another lawyer, absent consent of that lawyer or authorization by law.

Rule 4.3 requires a lawyer dealing with an unrepresented person to make clear the lawyer's role and not to give legal advice other than to secure counsel.

Rule 3.5 prohibits improper influence on judges, jurors, and officials, including ex parte communications and communicating with a juror after discharge about the case.

Rule 4.1 prohibits knowingly making false statements of material fact or law to a third person and requires disclosure of material facts to avoid assisting a client's crime or fraud.

Rule 3.8 requires prosecutors to refrain from prosecuting without probable cause, disclose exculpatory evidence, and timely disclose evidence that negates guilt or mitigates the offense.

Rule 4.4 prohibits using means with no substantial purpose other than to embarrass, delay, or burden a third person, and requires prompt notification of inadvertently received documents.

Rule 7.1 prohibits false or misleading communications about the lawyer or the lawyer's services; a communication is misleading if it omits a fact necessary to make the statement as a whole not materially misleading.

Rule 7.2 permits advertising through written, recorded, or electronic communication but prohibits giving anything of value to a person for recommending the lawyer's services, with exceptions for advertising, referral services, and non-profit organizations.

Rule 7.3 governs solicitation: in-person, live telephone, or real-time electronic contact with a prospective client is prohibited when the significant motive is pecuniary gain, unless the person is a lawyer or has a prior relationship.

Solicitation communications must include the words 'Advertising Material' on the outside envelope and at the beginning and end of recorded or electronic communications.

Rule 7.4 governs communications of fields of practice and specialization; a lawyer may not state or imply certification as a specialist unless certified by an approved organization.

Rule 8.1 requires an applicant for bar admission to refrain from knowingly making a false statement of material fact or failing to disclose a fact necessary to correct a misapprehension.

Bar admission misconduct includes failure to respond to lawful demands for information from a disciplinary authority and false statements in connection with the admission process.

Rule 7.5 restricts firm names: a lawyer may not use a trade name, a name misleading about the firm's identity, or a name implying a connection with a government agency or a lawyer not in the firm.

Rule 8.1(a) prohibits knowingly making a false statement of material fact in connection with a bar admission application; 8.1(b) prohibits failing to disclose a fact necessary to correct a misapprehension.

Rule 8.4(b) prohibits committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness; 8.4(c) prohibits conduct involving dishonesty, fraud, deceit, or misrepresentation.

Rule 8.4(d) prohibits conduct prejudicial to the administration of justice; 8.4(e) prohibits stating or implying an ability to influence improperly a government agency or official.

Rule 8.4(g) prohibits knowing discrimination or harassment in the practice of law on specified bases; the rule is subject to First Amendment challenges in some jurisdictions.

Rule 8.3(a) requires a lawyer who knows of another lawyer's violation of the Rules that raises a substantial question as to honesty, trustworthiness, or fitness to report the violation to the appropriate professional authority.

Rule 8.3(c) prohibits disclosing information protected by Rule 1.6 in a report; the reporting lawyer may disclose only information necessary to the report.

Rule 8.3(b) requires a lawyer who knows of a judicial violation raising a substantial question as to fitness to report to the appropriate authority.

Discipline may include disbarment, suspension, probation, reprimand, restitution, and limitations on practice; the sanction depends on the seriousness of the misconduct and aggravating and mitigating factors.

Rule 8.4(a) prohibits violating or attempting to violate the Rules, knowingly assisting another to violate them, or using the acts of another to commit a violation.

Reporting obligations under Rule 8.3 are triggered by knowledge, not mere suspicion; a lawyer may report without the client's consent where the report concerns the client's own misconduct.

Rule 5.1 requires a partner or lawyer with managerial authority to make reasonable efforts to ensure the firm has measures in place giving reasonable assurance of conformity with the Rules.

Rule 5.1(b) requires a supervisory lawyer to make reasonable efforts to ensure a subordinate lawyer conforms to the Rules; 5.1(c) makes a lawyer responsible for another's conduct if the lawyer orders or ratifies it with knowledge.

Rule 5.2 provides that a subordinate lawyer does not violate the Rules if acting at the direction of a supervisory lawyer on a debatable issue, but the subordinate must still exercise independent judgment.

Rule 5.3 requires a lawyer with managerial authority over nonlawyer assistants to make reasonable efforts to ensure their conduct is compatible with the professional obligations of the lawyer.

A lawyer is responsible for a nonlawyer's conduct under Rule 5.3(c) if the lawyer orders, ratifies, or has direct supervisory authority and fails to take reasonable remedial action.

Rule 5.4 prohibits a lawyer from sharing fees with a nonlawyer, forming a partnership with a nonlawyer if any activity is the practice of law, and permitting a nonlawyer to direct professional judgment.

Rule 5.5 prohibits unauthorized practice of law, including practicing in a jurisdiction where the lawyer is not admitted and assisting a nonlawyer in the unauthorized practice.

A law firm must implement conflict-checking systems, confidentiality safeguards, and docketing controls to satisfy Rule 5.1's managerial duty.

Rule 5.2 does not shield a subordinate who knows the action is a clear violation; the defense applies only to a debatable question of professional duty.