Professionalism in the Real World

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Relevant and practical, Professionalism in the Real World walks the reader through the application of the "Model Rules of Professional Conduct" in everyday situations. The authors provide countless humorous and heartening real-life examples of the ethical missteps of the unwary attorney.

Lisa Penland and Melissa Weresh offer useful advice and checklists throughout the book that point the lawyer in the right ethical direction from the early stages of client engagement to appeals. Students and new practitioners alike will greatly benefit from this essential guide.

Reviews

"Using the Model Rules of Professional Conduct as their guide, they provide straightforward advice on how to respond to the most common ethical questions that arise during the everyday practice of law."

       — Reprinted with permission, "The Champion Magazine", May 2012.

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Table of Contents

CONTENTS

CHAPTER 1. ETHICAL AND PROFESSIONAL SOURCES OF INFLUENCE


I. Ethical and Procedural Rules
A. Competence
B. Diligence and Timeliness
C. Communication with Clients
D. Fairness
E. Truthfulness
F. Confidentiality

II. Professionalism Standards

III. Personal Integrity

IV. Relationship between These Sources and Legal Communication


CHAPTER 2. GENERAL CONSIDERATIONS

I. General Considerations Applicable to All Communication
A. Choosing the Method of Communication
B. Know Your Audience
C. Planning Your Communication
D. Watch Your Tone
E. Be Truthful
F. Keep Confidences (and More) Confidential

II. General Considerations for Written Communication
A. Firm Names and Letterheads
B. Pay Attention to Structure
C. Seek Clarity, Avoid Ambiguity
D. Once Written, Forever for All the World to See
E. Special Confidentiality Issues Related to E-Mail and Faxes

III. Letters
A. Planning
B. Format
C. Appearance

IV. Electronic Communications
A. Choosing Electronic Communication
B. E-mail Considerations
C. Instant Messaging and Text Messaging
D. Sending an Electronic Communication
E. Web Sites
F. Blogs and Electronic Social Networks

V. Telephone Communications

VI. Contacting Potential Clients and Advertising

VII. Communication with Clients with Diminished Capacity

VIII. Attorney Communication with Organizational Clients


CHAPTER 3. COMMUNICATING CONFLICTS OF INTERESTS

I. Identifying and Communicating Conflicts with Existing Clients
A. General Conflict Rules
B. Lawyer's Participation in Business Transactions
C. Other Situations Where the Lawyer Must Obtain Informed Consent from an Existing Client

II. Duty to Communicate with Former Clients

III. Special Considerations Pertaining to Representation of an Organization: Communication with Constituent Nonclients


CHAPTER 4. PRETRIAL ADVOCACY

I. The Engagement
A. The Engagement Communicates Competence and a Supportable Claim
B. Client Engagement Letters

II. The Informal Investigation

III. Communications with the Client

A. Initial Advice Letters
B. Duty to Communicate with Clients: Informed Consent
C. Duty to Communicate with Clients: Other Circumstances

IV. Demand Letters

V. Honest Communications with the Court

A. Honest Communication in Court Submissions: Federal Rule of Civil Procedure 11
B. ABA Model Rules: Applicable to All Communications with the Court

VI. Initial Pleadings: The Complaint/Petition and the Answer
A. The Complaint and Answer: Format
B. The Complaint: Contents
C. The Answer: Contents
D. Mechanics of Communicating the Pleadings

VII. Discovery Conference and Communication of Disclosures
A. Mandatory Discovery Conference
B. Communication of Disclosures

VIII. Discovery
A. Ethical Considerations of Communication During Discovery
B. Discovery: Generally
C. Effect of Attorney Signature on Discovery Documents
D. Interrogatories
E. Requests for Admissions
F. Requests for Physical and Mental Examinations
G. Requests for Production
H. Inadvertent Receipt of Documents
I. Depositions
J. Failure to Make Disclosures or Cooperate in Discovery

IX. Pretrial Motions

CHAPTER 5. TRIAL ADVOCACY

I. Trial Preparation
A. Preparation of the Trial Brief
B. Pretrial Conferences
C. Communication with Witnesses
D. Client Meetings
E. Courtroom Decorum: Generally

II. Jury Selection and Relations with Jurors

III. Opening Statement

IV. Examination of Witnesses

A. General Considerations
B. Direct Examination
C. Direct Examination of Expert Witnesses: False Testimony
D. Cross-Examination

V. Presentation of Evidence

VI. Trial Motions and Objections

VII. Closing Argument


CHAPTER 6. APPELLATE ADVOCACY

I. Pre-Appeal Considerations
A. Communicating with the Client before the Appeal<
B. The Notice of Appeal
C. Transmittal of the Record

II. The Appeal
A. Appellate Briefs
B. Appeal Conferences
C. Oral Argument
D. The Judgment

III. Post-Appeal Considerations
A. Post-Opinion Motions
B. Petitions for Certiorari

CHAPTER 7. TRANSACTIONAL LAWYERING

I. The Engagement
A. The Engagement Communicates Competence
B. Organizational Clients and Clients with Diminished Capacity
C. Client Engagement Letter

II. Communication Regarding Conflicts

III. Research and Investigation

A. Communications Must Be Truthful
B. Communications with Represented Persons
C. Communications with Unrepresented Persons
D. Communications Regarding Inadvertently Received Documents

IV. Advising the Client
A. Duty to Communicate Candidly and Fully
B. Duty to Provide Consultative and Explanatory Communications
C. Duty to Provide Informative Communication
D. Duty to Refrain from Advising Clients to Engage in Criminal/Fraudulent Conduct
E. Duty to Communicate with Clients of Conflicts and Disclosures
F. Duty to Communicate Potential Constituent Wrongdoing
G. Duty to Communicate about Lawyer Limitations

V. Drafting and Negotiating
A. Communicate to Client Desirability of Being the Drafting Attorney
B. Communicate the Deal in the Most Legally Effective Manner
C. Communications with Opposing Counsel and Other Parties

Index