1. Competence (1.1)
   1. Skills, knowledge, thoroughness and preparation
      1. Spell these out in a problem - son in a train accident
         1. Think about technology competence
            1. data privacy and cybersecurity
            2. internet research
            3. electronic discovery
         2. remember confidentiality and leaks
   2. Minimum Standard
      1. analyze precedent, evaluate evidence, draft legal documents
         1. Not a specialist
            1. Except: tax, bankruptcy, patent, maritime law
      2. can be a new area of law through necessary study
      3. If complex or a specialized issue for which you do not have skills or time to dedicate, refer it out. Otherwise, Ok. This is always an objective standard - what would a reasonable lawyer have done in similar circumstances.
   3. Become competent
      1. Reasonable preparation
         1. complex transactions usually require more extensive treatment
      2. Teaming up with someone competent
         1. cannot be negligent; think about fee sharing
            1. recall problem in textbook: Mary v. Fred
         2. need client consent
   4. Diligence (1.3)
      1. workload + neglect (reasonableness std.)
   5. Consequences
      1. malpractice - duty, breach, causation and damages
         1. 1.1 is used to show incompetence (duty + breach). Still need to prove causation and damages
         2. Malpractice Insurance - cannot prospectively limit unless client has independent counsel advising him of risks
      2. ineffective assistance of counsel
         1. Strickland Test - "But For" test
      3. Discipline
2. Candid Communication (1.4)
   1. informed consent
      1. confidentiality and conflicts
   2. consult about client's objectives
      1. client decides objectives, lawyer decides means [1.2(a)]
      2. settlement, plea, appeal, testify, bench or jury trial [1.2(a)]
         1. do not counsel or assist in criminal or fraudulent activity [1.2(d)]
            1. HTGAWM; marijuana
   3. status of matter
3. Confidentiality (1.6)
   1. strict prohibition against use and disclosure
      1. scope
         1. relating to rep.
         2. info client comm. led to
         3. any form (written, electronic, verbal)
         4. any source (client, third party, lawyer's investigation)
         5. anything you discover
      2. E1: consent
         1. informed consent - material risks + alternatives
      3. E2: impliedly authorized
         1. consulting other lawyers + ethics hotline/ethical advice + fill out a form
   2. E3: Permissive Disclosures
      1. reasonably certain death or substantial bodily harm
         1. judgment call on whether client means it
      2. prevent future financial crimes or fraud
         1. involve lawyer's services
      3. rectify past financial crimes or fraud
         1. involve lawyer's services
      4. self-defense - proceeding (fee dispute, disciplinary action, malpractice)
      5. comply with law or court order
         1. challenge to protect client
      6. resolve conflicts of interest when moving firms
      7. lawyer has choice on whether to disclose, may still have to withdraw because 1.2(d)
         1. If an organization, remember reporting up duties (1.13(b) and (c))
   3. Unlawful Obstruction (3.4(a))
      1. cannot hold on to or hide fruits or instrumentalities of a crime just because your client gave them to you
         1. can hold on to temporarily to examine but must hand it over to authorities (depending on which state you live in)
   4. Privilege
   5. Inadvertent or Unauthorized Disclosures
      1. reasonable efforts to prevent
         1. Factors
            1. more sensitive the information, the more steps you should take to protect it
         2. examples: security protocols, passcodes, private wi-fi and client servers, disclaimer, etc.
         3. connect to technology competence
      2. breach
         1. inform client
         2. incident response plan - stop breach and ensure no further breach happens
         3. supervisory obligations
      3. recipient duties (4.4)
         1. notify sender - look at the document only to the extent needed to determine if it is confi.
   6. connect to conflict of interests. 1.7(a)(2), 1.18, 1.9(c)
   7. confidentiality is broader
   8. Any disclosure of confidential information is not open-ended. A lawyer may reveal information to the extent the lawyer reasonably believes necessary to prevent whatever harm the exception is designed to avoid.
4. Conflict of Interest (1.7, 1.18, 1.8, 1.9)
   1. Current Clients
      1. Direct Adversity
         1. two clients suing each other
         2. Nonconsentable conflict
         3. unrelated matters: representing and suing the client
         4. cross-examining current client
         5. two clients negotiating and not a scribe OR unrelated matters
         6. Consentable
      2. Material Limitation
         1. check for loyalty to someone else that will limit your competence, independent judgment, ability to advocate
         2. other client
         3. former client
         4. third person
         5. personal interest of the lawyer
      3. Can overcome conflict (otherwise must withdraw): competent, not prohibited by law, not facing each other in litigation, informed consent confirmed in writing (can be an advance waiver but see Sheppard Mullin v. J-M Manufacturing)
         1. Imputation applies; screening will not cure a concurrent conflict of interest. If personal conflict and no material limitation, no imputation.
   2. Former Clients (successive conflicts)
      1. 1.9
         1. Is this a FC?
            1. facts matter + client's perspective
         2. same or substantially similar
            1. same case or transaction
            2. risk that confi. info obtained in prior representation would materially advance current client's position
            3. TC Theatre Corp.: if you can show substantial rship between the subject matter of the former and subsequent rep., court will assume that during first case, confidences were disclosed.
            4. Silver Chrysler: if the lawyer has left old firm + minimal work at old firm - rebuttable presumption of confi
            5. Goldberg: lawyer who advised FC client has left firm. Firm can continue with rep. against FC because you can show no confi info is left at firm. Thus, not a substantially related matter. Davis says otherwise.
            6. passage of time
         3. materially adverse
            1. suing former client
            2. attacking work created for FC
         4. Need FC consent in writing to continue; consider CC consent because of 1.7(a)(2)
            1. Imputation applies; screening will not cure if you are still working at the same firm.
            2. if you have left firm and moved to a new firm, you are tainted but screen will cure FC conflict for new firm; if you do not have any confi info, no FC conflict, no screen, nothing.
      2. 1.7(a)(2)
         1. material limitation due to loyalty to FC
   3. Prospective Clients
      1. materially adverse
         1. same analysis as FC
      2. same or substantially related
         1. same analysis as FC
      3. significantly harmful
         1. Views on settlement issues including price and timing
         2. personal account of the situation and PC's strategic thoughts on how to handle it
         3. sensitive personal information
   4. Need PC (and *CC) consent or screen impacted lawyer and notify PC about screening procedures
      1. No imputation because no representation.
5. Formation of A/C Rship
   1. formal v. informal = care what the client thinks
   2. Kurtenbach Test
      1. Did the client seek advice from the lawyer?
      2. Was it within the lawyer's area of competence?
      3. Did the lawyer either directly or implicitly, agree to give the requested advice?
   3. Togstad - unintentional client
      1. send non-engagement letter or DISCLAIM
         1. Disclaim with internet forums - social media, chat rooms, blogs, law firm websites
   4. PC
      1. consults lawyer about the possibility of forming a/c rship
         1. owe confidentiality to learned information (remember Flatt v. Superior Court)
            1. limit consultation so that you aren't over-exposed
   5. Ask who is the client?
      1. You are the organization's lawyer
      2. when someone else is paying
6. Fees (1.5)
   1. Fixed or Hourly
      1. CYA - in writing: basis of fee, costs and expenses, lawyer and client duties, scope, etc.
   2. Contingency
      1. No Fee, No Recovery - element of risk or loss
      2. Written Agreement
         1. lawyers %, expenses deducted from recovery and whether lawyer's recovery is before or after expenses are deducted
      3. Prohibited in criminal cases and family matters (dissolution and child custody)
   3. Dividing Fees
      1. Non-firm Lawyers
         1. OK with client consent + joint responsibility or fees divided in proportion to work done + total fee is reasonable
      2. Non-lawyers
         1. Prohibited - except if compensating staff or with non-profit
   4. Other Fee Issues
      1. Third party funders - 1.8(f)
         1. independent judgment + consent + confidentiality
      2. Business Transactions - 1.8(a)
         1. Equity for fees
         2. selling a house or property to client/vice-versa
7. Supervisory Rules (5.1-5.3)
   1. managerial authority
      1. reasonable efforts to ensure lawyers conform to the rules
   2. responsible for other's misconduct if
      1. order the misconduct
      2. ratify it
      3. learns about it and does nothing
   3. subordinate lawyers
      1. responsible for own misconduct
      2. can rely on supervisor's advice if arguable question of professional duty
8. Regulation & Discipline (5.5, 8.3, 8.4,)
   1. complaint + trial = discipline
      1. disbarred, suspension, public or private reprimand
         1. reciprocal discipline
   2. reporting obligation
      1. reasonably certain - fitness, honesty or trustworthiness to practice law
      2. subject to confidentiality
   3. general misconduct rule (8.4)
      1. Lawyer 24-7
         1. violate or assist someone else in violation the rules
         2. criminal acts, dishonesty, fraud, deceit, misrepresentation - reflect poorly on lawyer's honesty and fitness to practice law
   4. practice law
      1. Licensed in each state
         1. pro hac vice, admitted counsel, ADR, or related activities (5.5(c))
         2. in house counsel, registered military spouse certified foreign lawyer, supervised paraprofessionals
      2. unauthorized practice of law
         1. practice of law
            1. performing court services
            2. preparing legal documents
            3. giving legal advice
         2. Not UPL
         3. UPL
         4. filling in blanks, scribe, or pro se
         5. legal staff, paralegal, recent law grad, practicing in another state
9. Withdrawal (1.16)
   1. Mandatory
      1. would lead to violation of rules
         1. conflicts or counseling or assisting in crimes/fraud
      2. physical or mental impairment
         1. connect to competency
      3. client fires attorney
         1. absolute right
   2. Permissive
      1. with material adverse effect
         1. closer to trial; more likely MAE
      2. using lawyer's services to commit crime/fraud
      3. used lawyer's services to commit crime/fraud
      4. client is repugnant, fundamental disagreement,
      5. substantially fails to fulfill an obligation
         1. give warning and notice about withdrawing
      6. unreasonable financial burden or unreasonably difficult
      7. other good cause
   3. Procedural steps
      1. Notice to client and court
         1. if court appointed or before a tribunal, court can refuse
      2. time to hire new counsel
      3. return client property/files
      4. return unearned fees
10. Connect to scope of representation (lawyers can limit scope but still need to be competent)
11. Reasonableness
12. Bring up if you see legal staff, paralegals, or associates doing something unethical. That could reach Supervising Attorney.
13. remember even after withdrawal or termination of rship, confidentiality continues
14. Fiduciary, Contractual and Agency Rship.