MPRE（职业道德考试）
MPRE概述MPRE Overview
简介Introduction
The Multistate Professional Responsibility Examination (MPRE) is required for the bar exams of 49 U.S. states and the District of Columbia, including the most popular jurisdictions, New York and California. These two states are known for allowing LL.M. graduates to take the bar exam. California, in particular, allows licensed Chinese lawyers to take the exam directly, even without any law degree, as was the case for me.
Multistate Professional Responsibility Examination (MPRE)，适用美国49个州和华盛顿地区的司法考试，包括人气最旺的纽约和加州。这两个州以允许LLM参加考试著称，其中加州允许中国律师直接参加考试，哪怕像我一样没有任何法学学历。
Currently, Wisconsin is the only state that does not require the MPRE, and a very small number of states allow the substitution of a passing grade in a law school professional responsibility course for an MPRE score.
目前只有Wisconsin州不需要MPRE考试，还有极个别的州允许用在法学院修读的职业道德课程成绩来替代MPRE成绩。
The MPRE is just a small appetizer on the path to passing the bar exam. The score ranges from a low of 50 to a high of 150, while New York and California only require scores of 85 and 86, respectively. This is a very achievable score, and typically, two weeks of preparation is sufficient to pass. I have had students score over 140.
MPRE只是通过司考路上的一道小菜，满分150分，最低分50分，纽约和加州却分别只要求85、86分。这是一个很容易的分数，通常准备2周就可以通过。我有学员能考到140分以上的分数。
However, not everyone passes, so it should not be taken lightly. For instance, one of my students scored below 70 in August 2023, which is why I decided to remake the MPRE course. I strive to make the Chinese materials more detailed, ensuring a higher likelihood of passing after completing my course.
但也并不是所有人都可以通过，不能轻敌。我的学员就有在2023年8月考了不到70分的，这也是我选择重置MPRE课程的原因。我力争把中文教材讲的更细一点，这样学完我的课程通过的把握就更大。
考试内容和形式Exam Content and Format
The MPRE consists of 60 questions, 10 of which are unscored pretest questions (candidates do not know which ones they are). The exam is 120 minutes long, which is more generous than the MBE, so time is generally sufficient.
MPRE一共60个题，其中有10题是不算分测试题（考生不知道哪些是测试题），120分钟，比MBE要宽裕，时间是足够的。
The MPRE must be taken at a Pearson VUE testing center in the U.S. or its territories, but you do not have to take it in the state where you intend to practice. For example, I took the California Bar Exam, but I took the MPRE in Seattle, Washington.
MPRE必须去美国本土的皮尔逊考试中心考，但不必去打算执业的州考试。比如我考加州Bar，MPRE却是在华盛顿州西雅图考的。
The closest MPRE testing centers [for candidates in Asia] are in Saipan and Guam (which are geographically close to each other). A direct flight from Hong Kong to Saipan takes only 5 hours, and the time difference is just 2 hours. This U.S. territory does not even require a U.S. visa (unless you have been previously denied one); you only need to apply for an eTA. Therefore, theoretically, it is possible to obtain a California law license without ever having a U.S. visa.
MPRE最近的考点在塞班岛、关岛（这两个岛地理上很近）。香港直飞塞班只需要5个小时，时差更是只有2个小时。该美国领土甚至不需要美国签证（但被 美国拒签过则需要），只需要申请eTA，所以理论上有可能出现没有美签却能拿到加州律师资格的情况。
There are no prerequisites for registering for the MPRE, nor do you need to provide any supporting documents. You simply need to fill out your information on the website and pay the $185 fee.
报考MPRE没有任何前置条件，也不需要提供任何材料。只需要在网站上填写信息、交纳185美金即可。
You can take the MPRE before or after taking the bar exam, and even before starting an LL.M. program. When I registered for the MPRE, I had no law degree (and I still don't), nor did I have any license to practice law.
可以在考bar之前或者之后考MPRE，可以在读LLM之前考。我报名MPRE的时候就没有任何法学学历（我现在依然没有），也没有任何律师执业资格。
Although you can register for the MPRE very early, you must pay attention to the validity period of the score. Currently, New York only accepts MPRE scores achieved within 4 years, whereas California has no time limit (the score remains valid indefinitely). An MPRE score can be reported to multiple states. Currently, reporting to the first state (selected during registration) is free, and reporting to additional states costs $30 each.
虽然可以很早报考MPRE，但要注意有效期，目前，纽约州只承认4年内考出的MPRE成绩，但加州没有限制（一直有效）。一份MPRE的成绩可以报送给多个州，目前第一个州（注册的时候选择）是免费的，报送给额外的州收取30美金。
The exam is exclusively computer-based (though you do not need to bring your own computer), timed by the system, and you can start as soon as you arrive and are seated. Candidates arrive at the testing center at different times, and the exam questions vary from person to person.
只能机考（但不需要自己带电脑），机器计时，随到随考。大家抵达考场的时间不尽相同，考题也不尽相同。
You must bring, and only need to bring, two forms of ID to the exam (you do not even need the registration confirmation email). Providing a passport plus a credit card (with your English name printed on the front and your signature on the back) is sufficient. The secondary ID can also be a photo student ID, driver's license, green card, or identity card. IDs entirely in Chinese require notarization or a certified translation.
考试要带且只需要带两个ID（连报名确认邮件都不需要），提供护照+信用卡（正面印有英文名，背面签名）即可。第二个ID也可以是带相片的学生卡、驾照、绿卡、身份卡等，纯中文ID需要公证或淘宝翻译下。
Except for your passport, almost no personal belongings are allowed into the testing room (unless special accommodations have been requested in advance). You do not need paper or pens for the exam (though a whiteboard, marker, and earplugs may be provided). There are lockers outside the testing room where you can store your phone and other personal items.
除了护照，几乎没有任何个人物品可以带进考场（提前申请特殊安排除外）。考试不需要纸和笔（但可能会提供写字板、记号笔、耳塞）。考场外会有存包柜，手机等个人物品可以寄存。
考试季和给分Exam Seasons and Scoring
The MPRE is administered in March, August, and November each year. For specific registration dates, please refer to the official website: https://www.ncbex.org. I have also demonstrated the registration process in my video.
MPRE在每年的3/8/11月考，具体报名时间请参考官网：https://www.ncbex.org，我在视频中演示了报名方法。
The score scaling varies slightly across different exam seasons, but there is no significant pattern.
不同季节的调分略有不匀，但没有显著规律。
Passing the MPRE is nothing to be particularly proud of. In some exam seasons, among several 500-person group chats and candidates who messaged me privately, no one reported failing the MPRE, and the passing scores were exceptionally high.
通过MPRE也没有任何可以值得骄傲的。有几个考试季，在数个500人的大群和私聊我的考生中没有任何人通报挂掉了MPRE，高分通过的人也高得特别离谱。
However, in other exam seasons, there were a few isolated failures, very few people in the groups scored over 110, and even students I considered excellent received relatively low scores. This is why I believe the score scaling is uneven.
但其他一些考试季会有零星几个挂的，群里110分以上的寥寥无几，我心目中的优秀学员也给分较低。这就是为什么我认为调分不均。
Some states only require a score of 75 to pass the exam. In short, the purpose of the MPRE mechanism is likely just to ensure that students are exposed to this subject, rather than to weed anyone out.
有一些州甚至只需要75分就算是通过这个考试。总而言之，MPRE的机制可能只是让学生必须接触下这门课，没打算筛选谁。
必修教材Required Materials
In addition to my Chinese textbook and videos, you must complete and thoroughly understand the following question bank:
除了我的中文教材和视频，一定要把下面这本题库刷完、吃透：
Strategies and Tactics for the MPRE, 8th Edition
Strategies and Tactics for the MPRE, 8th Edition
Recent students have indicated that the above book is no longer sufficient for the exam, so it is recommended to register for UWORLD (Themis) and practice their questions. Currently, the handouts, videos, and question banks from various prep companies are free.
近期学员表示上面这本书已经不足以应付考试，建议注册UWORLD (Themis)并刷题。目前各机构的讲义、视频和题库都是免费的。
The following two original rule texts are for reference only; do not memorize them:
下面的两个规则原文用于查阅，不要去背：
不考州法State Law is Not Tested
Like the MBE, the MPRE does not test state law. Both the ABA Model Rules and the Model Code of Judicial Conduct are similar to the MPC in criminal law; they are merely recommendations or templates provided by the American Bar Association for states to draft their own professional conduct rules, and they have no binding authority on their own.
和MBE一样，MPRE不考州法。ABA律师守则和法官守则都类似于刑法的MPC，只是全美律协对各州制订执业道德准则的建议，或者说模板，其本身并没有任何强制力。
If you haven't studied state professional responsibility rules by the time you take the exam, congratulations, you won't get confused. If you unfortunately have already studied them, you need to strictly distinguish between them and forget about state law when taking the MPRE.
如果你考试的时候还没有学州职业道德，那么恭喜你不会弄混。如果你不幸已经学了，那么需要严格区分开来，并在考MPRE时忘掉州法。
Strictly distinguishing between the ABA rules and California rules is also very helpful for the bar exam. The mandatory professional responsibility essay question in California requires discussing the ABA and California rules separately. However, the differences between them are not significant, and it only takes about an hour to learn the answering techniques related to California law. The vast majority of other states do not test professional responsibility in essay questions.
将ABA规则和加州规则严格区分开来对考bar也是很有帮助的。加州必考的职业道德写作题需要将ABA和加州职业道德分开论述，不过，它们之间的区别并不大，只需要大约一个小时学会可能和加州法有关的答题套路即可。其他绝大部分州不考职业道德写作题。
法律职业的有关规定 3-6题Regulation of the Legal Profession (3-6 Questions)
管理机构Regulatory Authorities
The regulation of lawyers' professional conduct is governed by state courts, and the ultimate authority to interpret the rules of professional conduct rests with the state supreme court. State rules of professional conduct and the ABA rules are largely similar, but as mentioned earlier, there are some differences. When taking the MPRE, we only memorize the ABA rules.
管理律师职业道德的是各州法院，对职业规范条例的最终解释权归州最高法院。州律师职业道德条例和ABA都是大同小异的，但如前文所说，会有一些区别，在考MPRE的时候，我们只记ABA的规则。
Most states require lawyers to be members of the state bar association and require that lawyers not have committed violent crimes or acts involving moral turpitude. Such acts do not necessarily have to result in a court conviction, nor do they even have to be criminal offenses. The violations of ABA rules we study for the MPRE do not all constitute "moral turpitude." Only those crimes or acts that reflect adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects (such as fraud, dishonesty, serious violence, etc.) constitute moral turpitude. However, when disciplining a lawyer or denying admission to the bar, the degree of rehabilitation is a factor that the bar association must consider.
大多数州都要求律师是律师协会的成员，并要求律师不能有暴力犯罪（violent crime）或道德败坏的行为（moral turpitude），该行为不一定要被法院定罪，甚至不一定要是刑事犯罪。我们在MPRE学习的违反ABA规则的情形并不全是“道德败坏”的。只有那些反映出律师在诚实、可信度或作为律师的适当性方面存在严重缺陷的犯罪或行为（如欺诈、不诚实、严重暴力等）才构成道德败坏。但在处罚律师或者拒绝接纳律师的时候，改过自新的程度（rehabilitation）是律师协会需要考虑的因素。
Lawyers may be required to make limited disclosures of past conduct to determine whether there have been acts of moral turpitude, such as submitting a clean criminal record or declaring whether there has been a refusal to pay child support.
可以要求律师对过去的行为进行有限的披露以决定是否有道德败坏的行为，比如提交无犯罪记录，申报是否有拒绝支付抚养费的情况等。
It is unconstitutional to deny admission to the state bar solely because the applicant joined a violent political party, or solely because the applicant is not a U.S. citizen or not a resident of the state.
仅仅因为加入暴力政党，或者仅仅因为申请人不是美国公民、不是该州的公民就拒绝接纳成为该州律师是违宪的。
The state bar cannot require an applicant to answer whether they have "ever been a member of an organization that advocates the violent overthrow of the United States government," as this question is unrelated to protecting the government's legitimate interest, which is whether the applicant can become a qualified lawyer. [Baird v. State Bar of Arizona, 401 U.S. 1 (1971)]
州律协不能要求申请人必须回答“是否加入过曾经打算暴力颠覆合众国政府的组织”，这个问题和保护政府合法的利益，即申请人能否成为一名合格的律师无关。[Baird v. State Bar of Arizona, 401 US 1 (1971)]
When answering questions, you usually consider whether the lawyer (prosecutor, judge) has violated professional conduct rules. As long as there is a violation, choose "subject to discipline" or "violated professional conduct rules." The four options typically consist of two indicating a violation and two indicating no violation. Even if you can determine the conclusion, you must choose between two very similar reasons.
做题是通常考虑律师（检察官、法官）是否违反了职业道德，只要违反就选“会被惩戒”或者“违反了职业道德”。4个选项通常都是两个违反两个不违反，即使你能判断出结论，也要在两个看起来都很像的原因中选一个。
Blindly choosing "subject to discipline" is a poor strategy, as questions increasingly feature situations that do not violate professional conduct rules. However, if you really cannot determine whether there is a violation, the probability of a violation is still relatively higher, so it is recommended to choose the one with the more appropriate reason among the two violation options.
无脑选惩戒是糟糕的方法，因为题目中越来越会出一些不违反职业道德的情况了。但如果你实在无法判断是否违反职业道德，违反的可能性还是相对大一些，建议在两个违反中选一个理由更合适的。
跨区执业Multijurisdictional Practice
As a general rule, lawyers are prohibited from practicing law across state lines (multijurisdictional practice).
律师原则上禁止跨州执业。
A is a New York lawyer. If he appears in a California state court without permission, it is a typical violation of professional ethics.
甲是纽约州律师，如果他不经允许就在加州的州法院出庭是典型违反职业道德的行为。
Each federal court has its own separate admission requirements. There are four federal district courts located in New York State; becoming a New York lawyer does not necessarily mean one can appear in any of these four federal courts, and even being admitted to appear in one does not mean one can appear in the other three. The admission requirement for the U.S. Supreme Court is that, after practicing in any state for three years, one must be sponsored by two lawyers already admitted to practice before the Supreme Court, pay a fee, and take an oath. At the very least, it does not require an additional exam like some federal courts do. Once admitted to the Supreme Court, you certainly do not need to separately obtain a Washington D.C. bar license or a temporary admission (pro hac vice) to appear before the Supreme Court—provided someone is willing to hire you as counsel for a case that has reached the Supreme Court.
每个联邦法院都有单独的准入要求。有四个联邦法院坐落在纽约州，成为纽约州的律师，并不必然意味着就可以在这四个联邦法院的任何一个出庭，甚至已经有资格在其中一个出庭，也并不意味着就可以在另外三个出庭。联邦最高法院的准入资格是，在任何一个州执业三年后，由两个已经有资格在最高法院出庭的律师担保，缴纳费用并宣誓。至少，它不像某些联邦法院一样要参加额外的考试。在最高法院准入后，你当然不需要单独获得华盛顿地区的律师证或者临时资格证（pro hac vice），就可以在最高法院出庭了：如果有人愿意聘请你作为已经到达最高法院的案子的代理人的话。
Even if A does not appear in court in California, A cannot establish an office or other systematic and continuous presence for the practice of law in California, nor can he hold out to the public or otherwise represent that he is admitted to practice law in that jurisdiction.
即使甲不在加州出庭，甲也不能再加州开设办公室或其他系统性、持续性的法律业务实体，更不能对公众宣称或以其他方式表示自己在该司法管辖区具有执业资格。
What we need to remember are the exceptions. In the following situations, multijurisdictional practice does not violate professional ethics:
我们要记的是例外，以下几种情况，跨区执业不违反职业道德：
When practicing temporarily in another state, a lawyer must also comply with the professional ethics rules of that state.
在外州临时执业时，也要遵守外州的职业道德规定。
A is a New York lawyer. When he temporarily handles matters in California that are reasonably related to New York law, he must comply with the professional ethics rules of both New York and California.
甲是纽约州律师，他在加州临时处理和纽约州法律合理关联的事项时，需要同时遵守纽约州和加州对律师的职业道德的管理规范。
If a lawyer establishes a continuous presence in a state where they are not admitted, it is usually required that the lawyer is providing advice to their sole employer/client (e.g., in-house counsel). If they wish to represent their client in court in that state, they must apply for temporary admission (pro hac vice).
如果律师在他不执业的州长期驻守，通常要求律师必须是为他唯一的客户提供建议（公司法务）。如果他想要代表他的客户在该州出庭，必须申请临时资格证（pro hac vice）。
If New York lawyer A wants to practice long-term in California, he needs to pass another exam (which may be easier than the regular bar exam). In this case, if A violates professional ethics in New York, California also has the right to discipline him, and vice versa. If A commits perjury in another state or even overseas, or if he is also a foreign lawyer and is disciplined by a foreign bar association, both New York and California can discipline him.
纽约州律师甲如果想在长期在加州执业，需要再通过一个考试（比普通的bar要容易一些）。这种情况下，如果甲在纽约州违反了职业道德，加州也有权利处罚，反之亦然。如果甲在其他州甚至海外犯了伪证罪，或者他也是海外的律师并被海外的律师协会处罚，那么纽约和加州都可以处罚。
Disciplining a lawyer must comply with the constitutionally guaranteed procedural due process. However, disciplinary results from other states, or criminal convictions by a court, can usually be applied as undisputed conclusions, because similar or stricter procedural due process was already observed when those disciplines (or judgments) were rendered.
处罚律师需要遵循宪法保障的程序性的程序公平（procedural due process），但其他州的处罚结果，或者法院定罪判决，通常可以当作没有争议的结论适用，因为做出这些处罚（判决）时已经遵守过了类似或者更严格的程序公平。
At a disciplinary hearing, a lawyer may invoke two rights to refuse to testify:
在处罚听证会上，律师可以援引两个权利拒绝作证：
非法执业Unauthorized Practice of Law (UPL)
As long as a lawyer does not practice across jurisdictions, they naturally will not face unauthorized practice of law issues themselves, but a lawyer must not assist or acquiesce in the unauthorized practice of law by others. The most frequently tested topic is the boundary between lawyers and non-lawyer employees.
律师只要不跨区，当然不会有非法执业的问题，但律师不能鼓励和默许其他人非法执业。最常考的是，律师和非律师员工的边界。
Non-lawyers may interview witnesses, collect evidence, review court documents, and conduct initial interviews with clients (but cannot provide legal advice); insurance adjusters may even negotiate before a lawyer approves the final settlement agreement.
非律师可以采访证人、收集证据、查阅法庭文件、与客户的初步面谈（但不能提供法律建议）；保险调查员甚至可以在律师批准最终和解协议之前进行谈判。
A lawyer may hire a suspended lawyer, but must treat them as a non-lawyer. For example, the lawyer must personally review and supervise any legal documents drafted by the suspended lawyer, and cannot allow them to provide legal advice directly to clients.
律师可以雇佣被暂停执业的人，但必须把他当作非律师一样对待，比如必须亲自把关他起草的任何法律文书，也不能允许他直接对客户提供法律意见。
A lawyer must not form a partnership with a non-lawyer if any of the activities of the partnership consist of the practice of law.
律师不能和非律师合伙从事法律业务（practice of law）。
A lawyer cannot partner with a non-lawyer accountant to provide legal services, nor can they partner with a suspended lawyer.
律师不能和非律师的会计师合伙提供法律服务，也不能和被暂停执业的律师合伙。
A lawyer can work for a law firm or for a corporation—but cannot provide legal services to third parties on behalf of the corporation. A lawyer also must not allow a non-lawyer to direct or regulate their professional judgment.
律师可以为律所工作，也可以为公司工作——但不能为了公司给其他人提供法律服务。律师也不能让非律师影响他的专业判断。
If a bank employs a lawyer to provide legal advice to customers seeking trust services, this constitutes assisting the bank in the unauthorized practice of law, and the lawyer's professional judgment is easily influenced by non-lawyers in this situation. The correct approach is that a lawyer employed by a bank may only provide legal services to the bank itself.
银行聘用律师给前来咨询信托服务的人提供法律意见，这是在帮助银行非法执业，而且律师在这种情况下容易被非律师影响专业判断。正确的做法是，银行聘用的律师只能给银行提供法律服务。
A lawyer may advise clients and allow them to represent themselves (pro se); representing oneself does not constitute the unauthorized practice of law.
律师可以给客户建议，并让他们自己代表自己（pro se），自己代表自己不是非法执业。
分配律师费Division of Legal Fees
The ABA generally prohibits lawyers from sharing legal fees with other lawyers, unless:
ABA通常不允许律师与其他律师分享律师费。除非：
Lawyer A opens his own solo practice. He only takes cases and then refers them to lawyers in other firms, collecting a 30% referral fee without doing any work other than bringing in the client. This is prohibited by the ABA. However, Lawyer A could join a large firm as a partner, take cases, assign them to his colleagues, and take a cut. The practical effect is almost the same, but it does not violate professional ethics. After A retires, the firm, in appreciation of his contributions, decides to share 30% of its future profits with him—even though he does no work. This is also permissible.
甲律师自己开所，他只接案子然后分给其他所的律师做并收取30%的推荐费，自己除了拉客户不做任何事情，这是ABA不允许的。但甲律师可以去大所当合伙人，然后只接案子分给同事并从中抽成，这样效果几乎一样却不违反职业道德。甲退休后，律所为了感谢他的贡献，决定把未来30%收益分给甲律师——而他不用做任何事情，这也是允许的。
Lawyer A specializes in pre-litigation negotiation for traffic cases. After signing a 30% contingency fee agreement with a client, if the case proceeds to trial, he refers it to another firm. In this situation, he must inform the client about the fee division, the division must be in proportion to the work performed (or he must assume joint responsibility), and he must obtain the client's written consent.
甲律师擅长交通案件的诉前谈判，他与客户签订30%的风险代理后，如果案件拖到开庭，他就会转给其他所。这种情况他需要告诉客户律师费的分配、该分配要合乎工作量的比例（或者承担共同责任），他还需要拿到客户的书面同意。
Sharing fees with nonlawyers is even more strictly regulated and is generally prohibited, unless:
与非律师分享费用就更严格了，原则上不允许，除非：
Sometimes lawyers do not pay fees directly to others but instead make reciprocal referral arrangements. A lawyer may make a reciprocal referral agreement with another lawyer or a nonlawyer professional, but such an arrangement cannot be exclusive or indefinite. It must be reviewed periodically to ensure compliance with professional ethics, and the client must be informed of the arrangement.
有时候律师并不是直接给其他人费用，而是做互相推荐的安排。律师可以和其他专业人员（nonlawyer professional）作出互相推荐的安排（reciprocal referral agreement），但这种安排不能是排他的、无限期的，要定期检查是否符合职业道德，客户也要被告知这种安排。
A lawyer cannot simply pay an accountant to refer clients to him.
律师不能光付钱给会计，让会计给他推荐客户。
A lawyer may enter into a mutually beneficial arrangement with an accountant, such as referring all clients needing accounting services to the accountant, while the accountant refers all clients needing legal services to the lawyer. This arrangement cannot be exclusive or indefinite, and clients must be informed of it. The lawyer must also periodically review the arrangement and cannot allow it to interfere with the lawyer's professional judgment.
律师可以和会计作出互利互惠的安排，比如将所有需要会计服务的客户推荐给会计，而会计将所有需要法律服务的客户推荐给律师。这种安排不能排他的、无限期的，客户也要被告知这种安排。律师还要定期对这种安排进行检视，不能让这种安排影响律师的职业判断。
A lawyer cannot make such an arrangement with a restaurant owner, because a restaurant owner is not a professional.
律师不能和餐馆老板作出这样的安排，因为餐馆老板不是专业人员。
By a fortiori reasoning, it is also ethical for lawyers to make similar arrangements with each other. For example, Lawyer A refers all civil cases to Lawyer B, and Lawyer B refers all criminal cases to Lawyer A.
举重以明轻，律师之间作出类似安排也是符合职业道德的，比如甲律师将所有的民事案件推荐给乙律师，而乙律师将所有的刑事案件推荐给甲律师。
Although professional ethics do not restrict a law firm from paying nonlawyer employees from legal fees (otherwise it would be impossible to hire anyone), and may even allow compensation based on a profit-sharing arrangement of the firm's overall profits, a nonlawyer cannot serve as a corporate director or officer of the firm, nor can a nonlawyer be allowed to direct or control the lawyer's professional judgment.
虽然职业道德并不限制律所给非律师员工分律师费（否则没有办法雇人），甚至可以基于律所整体利润的分成。但非律师不能担任律所的管理人员，也不能让非律师影响律师的职业判断。
A law firm can have nonlawyers handle the hiring of other nonlawyer staff, bookkeeping, purchasing, scheduling, filing, etc. It can also allocate 10% of its revenue for nonlawyer employee bonuses, or even agree to pay a specific nonlawyer directly based on profit sharing. However, it obviously cannot grant nonlawyers classic partnership rights such as voting or auditing the firm's books.
律师事务所可以让非律师负责招聘其他非律师人员、记账、采购、预约、归档等，也可以规定10%的收入用于给非律师雇员发奖金，甚至可以约定某个非律师直接按照利润分成，但显然不能给非律师表决、查账等经典的合伙人权利。
We can arrange for a nonlawyer to serve as a "manager" because it is a very broad title. However, a nonlawyer cannot serve as an "officer" or "partner."
我们可以安排非律师担任“manager”，因为这是一个非常广泛的称呼。但非律师不能担任“officer”或者“partner”.
竞业限制Restrictions on Right to Practice
A lawyer cannot restrict another lawyer's future right to practice, with the exception of an agreement concerning benefits upon retirement.
律师不能限制其他律师未来的执业范围，但退休条款例外。
A lawyer also cannot restrict their own future right to practice, except in connection with the sale of a law practice.
律师也不能限制自己未来的执业范围，除非是在买卖律所的过程中。
Lawyer A requires Lawyer B not to take cases in the city after leaving the firm and pays B a non-compete compensation. Lawyer B happily agrees. Both Lawyer A and Lawyer B will be subject to discipline. However, if "leaving the firm" is changed to "retirement" and "non-compete compensation" is changed to "retirement benefits," the arrangement would be proper.
甲律师要求乙律师离职后不得再在本市接案子并支付乙竞业限制补偿金，乙律师欣然同意，甲乙律师都要被惩戒。但如果把“离职”换成“退休”，把“竞业限制补偿金”换成“退休金”则是合适的。
Lawyer A performs exceptionally well in a case. One clause in the settlement agreement between the parties stipulates that A may not represent other clients in suing the opposing party in the future. If the lawyer agrees to this settlement agreement, the lawyer will be subject to discipline. If the parties insist on settling on these terms, the lawyer must withdraw from the case. Whether the settlement clause itself is valid is left to contract law.
甲律师在某案件中表现过于亮眼，双方和解协议中一条是甲不得在未来代理其他客户起诉该对方当事人，如果律师同意了这个和解协议，律师会受到惩戒。如果双方执意如此和解，律师必须退出这个案子。至于该和解条款是否有效留给合同法去调整。
Law firm A packages and sells its criminal case department and promises not to handle criminal cases for the next 5 years. This does not violate professional ethics, but whether the non-compete clause is valid is still left to contract law.
甲律所将自己的刑事案件部门打包出售，并承诺未来5年不涉足刑事案件。这并不违反职业道德，但竞业限制的条款是否有效依然留有合同法去调整。
律师和客户的关系 5-8题Lawyer-Client Relationship (Questions 5-8)
律师-客户关系的形成Formation of the Lawyer-Client Relationship
A lawyer-client relationship is formed when a client requests the lawyer to represent them, and the lawyer's conduct leads the client to reasonably believe that the lawyer has accepted the representation. Generally, the formation of this relationship does not require a written agreement.
客户要求律师进行代理，而律师的行为让客户能够合理相信律师已经接受了客户的委托，律师-客户的关系即形成。一般委托关系的形成不需要书面。
A client consults a lawyer about taking their case 5 days before the statute of limitations expires. The lawyer is noncommittal but asks the client to leave their materials. A few days later, a reasonable client would believe that the lawyer has accepted the case; therefore, a lawyer-client relationship exists.
客户离起诉期还剩5天的时候咨询律师是否可以接他的案子，律师不置可否却让客户留下了材料，又过了几天，一个合理的客户这时会认为律师已经接受了他的案子，所以律师-客户关系是存在的。
A lawyer may decline to accept a case they do not like, which usually does not raise ethical issues. Conversely, if accepting a case would cause the lawyer to violate professional ethics (e.g., the lawyer is unfamiliar with the practice area, and taking the case would result in incompetence), the lawyer must decline the representation.
律师可以拒绝接受他不喜欢的案件，通常不会有职业道德的问题。反之，如果接下案件会导致律师违反职业道德（比如律师并不熟悉这一块业务，接下案件会导致他不胜任），那么律师必须拒绝接受案件。
If a lawyer declines a case, the initial consultation is still subject to professional ethics, such as the duty of confidentiality.
如果律师拒绝接受案件，前期的咨询也必须遵守职业道德，比如不得泄密。
It is not an ethical violation for a lawyer to say, "I am not familiar with this area and cannot take your case." However, if the lawyer casually mentions that there are 35 days left to appeal, when in fact only 5 days remain, causing the client to miss the deadline, the lawyer's clearly incompetent advice violates professional ethics.
律师说我不熟悉这个领域，不能接你的案子，这并不违反职业道德。但如果律师随口说上诉期还有35天，但其实上诉期只剩下5天导致客户错过了上诉，律师明显不胜任建议违反了职业道德。
If a court appoints a lawyer to a case, the lawyer generally must accept it unless there is good cause.
如果法院给律师指派案件，律师通常要接受，除非有好的理由（good cause）。
"Good cause" includes situations where accepting the case would violate professional ethics, impose an unreasonable financial burden on the lawyer, or where the lawyer's repugnance toward the client or the case would impair their ability to represent the client.
“好的理由”包括接下这个案子会违反职业道德，会给律师带来不合理的财务负担，或者律师对客户或案件的反感会影响他的代理能力。
The lawyer is responsible for the orderly conduct of litigation strategy and may choose the tactics and methods. However, decisions that substantially affect the client's rights must be made by the client personally. These major decisions include whether to accept a settlement agreement, whether to appeal, and, in criminal cases, what plea to enter, whether to waive a jury trial, and whether the client will testify.
律师负责诉讼策略的有序进行，律师还可以选择诉讼策略、方式方法，但实质影响客户权利的决定必须由客户亲自作出。包括是否接受和解协议、是否上诉，以及刑事案件中的辩诉交易、豁免陪审团审判、亲自出庭作证这些重大决定，都必须由客户亲自作出。
A lawyer may limit the scope of representation in a case if the limitation is reasonable under the circumstances and the client gives informed consent, provided that it does not prejudice the client.
只要有合理的理由并获得客户的知情同意（informed consent），律师可以在某个案件中限缩自己的执业范围，但不得因此给客户带来损害（prejudice）。
If a client requests Lawyer A to only cross-examine witnesses and Lawyer B to only handle opening statements and closing arguments, the correct option is that a lawyer may limit the scope of their representation.
客户如果要求甲律师只负责盘问证人，乙律师只负责开场和总结陈词，正确的选项是律师可以限缩自己的执业范围。
If a trial is scheduled for the next day and the lawyer has not prepared an opening statement, and thus tells the client they are limiting the scope of representation and asks the client to find another lawyer at the last minute to prepare the opening statement, this is clearly an ethical violation.
第二天就要开庭了，律师却没有准备开场陈词，于是对客户表示要限缩自己的执业范围，让客户临时去找其他律师准备开场陈词，这显然是违反职业道德的。
收费Fees
A lawyer's fee must be "reasonable." The factors considered in determining reasonableness are numerous, including the lawyer's experience and the opportunity cost of taking the case, which can make the fee very high. Therefore, exam questions generally do not ask candidates to judge whether a specific fee amount is reasonable.
律师的收费要“合理”（reasonable），是否合理考虑的因素过多，包括律师的经验、律师接下该案可能丧失的其他收益，这可以非常高，所以一般题目不会让考生判断一个收费是否合理。
Contingent fees being higher, more urgent cases commanding higher fees, and higher fees for winning: these are all explicitly permitted by the ABA. However, note that they must not conflict with the contingent fee rules discussed below.
风险代理收费更高、越紧急的案子收费越高、胜诉收费更高：这些都是ABA明文允许的。但要注意不能和下文风险代理的规则冲突。
A lawyer may charge fees in advance but must refund any unearned portion at the end of the representation. Furthermore, any unearned fees must be kept in a client trust account until earned. The trust account is a very important aspect of legal ethics and differs significantly from the Chinese system, so it is emphasized here in advance.
律师可以提前收费，但必须在案子结束后退还没有使用的费用。并且必须在结案之前把没有使用的费用放在信托账户中，信托账户是律师职业道德中非常重要、又和中国的制度很不一样的地方，这里预先强调一下。
Lawyer A charges a non-refundable $500 fee as a true retainer to secure their availability for the client, which is permissible. Since this money is non-refundable and not tied to any unperformed legal services, it can be deposited directly into the firm's operating account. Subsequently, they agree on an hourly rate of $100, and the client pays an advance of $2,000 for 20 hours. Lawyer A must place this $2,000 in a client trust account. After working n hours, Lawyer A may withdraw 100n dollars from the trust account. Upon conclusion of the case, Lawyer A must return any remaining funds to the client.
甲律师收费500美金不退的费用作为客户签约的占位费，这是允许的。甚至如果这个钱不退也不涉及任何未完成的法律服务，可以直接存入公司运营账户。随后又约定一小时工资是100美金，客户预先交纳了20小时、2000美金的费用。甲必须将这2000美金放在信托账户中。甲工作n小时后，可以从信托账户中取出100n美金。结案后，甲必须将剩余的钱还给客户。
More commonly, fees are billed based on invoices. In China, we generally expect clients to pay before work begins, but in the US, the reverse is more common, especially in the medical industry.
更常见的是按账单收费，在中国我们一般希望客户先给钱再做事，但在美国反过来更常见，尤其是医疗行业。
Treating the illness first and then mailing the bill home is standard practice for hospitals; asking for the price in advance is impossible because the condition, treatment, and medication plan are unknown. Similar practices are common in the legal profession: an hourly rate is agreed upon in advance, but the exact number of hours cannot be estimated beforehand, and the bill is sent to the client after the case concludes. Sometimes, it can also be agreed that different levels of lawyers have different multipliers; for example, a partner's hourly rate might be 1.5 to 2 times that of an associate. For the client, this billing method ensures every penny is well spent; if the case is resolved easily, the resulting legal fees will not be excessive. Otherwise, if a flat fee is agreed upon and the case is resolved at lightning speed the next day, the client might feel the legal fees were not worth it. Unlike the medical industry, a lawyer will at least tell you their hourly rate, whereas doctors usually do not know how much the medications and treatments they prescribe will ultimately cost the client.
先治病再把账单寄到家里是医院的常规操作，提前问价格是不可能的，因为不知道病情、治疗和用药方案。在律师行业类似的操作也很常见，提前约定一个小时费率，具体要多少个小时无法事前预估，结案后把账单寄到客户家里。有时候还可以约定不同等级的律师要乘以不同的倍数，比如合伙人的小时收费是普通律师的1.5-2倍。对客户来说，这样收费是把每一分钱都用在刀刃上，如果案件轻松解决，产生的律师费不会太多。否则如果约定一次性收费结果第二天光速解决，客户会觉得律师费花的很不值。和医疗行业不同的是，律师至少会告诉你他们一个小时的费用，而医生通常不知道自己开的药物和治疗项目会导致客户最终收到多少钱的账单。
A lawyer's fee is $100 per hour. The lawyer asks the client to pay $1,000 in advance and agrees that the service will end after 10 hours of work. In reality, the lawyer expects the case to require at least 100 hours. The lawyer should explain the situation and the reason for this fee arrangement in advance; otherwise, the fee is unreasonable.
律师的费用为每小时100美元，律师让客户先缴纳1000元，并约定工作10小时后服务结束。实际上，律师预计客户至少要花费100个小时。律师应当提前说明情况和为什么要这么收费，否则收费就是不合理的。
A lawyer may charge a true retainer fee as compensation for reserving their time for the client.
律师可以收占位费（true retainer fee），作为律师给客户预留时间的费用。
Even if the client decides to terminate the representation the day after paying the true retainer, the retainer fee does not need to be refunded.
哪怕客户支付占位费后第二天就决定解除代理，占位费也可以不用退还。
Similar to China, a lawyer cannot "acquire a proprietary interest in the cause of action or subject matter of litigation," with exceptions for contingent fees and attorney's liens.
和中国一样，律师不能“牟取当事人争议的权益”，但风险代理和抵押权除外。
Lawyer A really likes a client's antique and may agree to accept the antique as legal fees. However, if the antique is part of the subject matter of the litigation, such an agreement would be improper. In this situation, the lawyer could consider: 1) placing a lien on the antique (if permitted by state law) so that if the client cannot pay the legal fees, the antique can be used to settle the debt; or 2) purchasing the antique at a fair price after the case concludes.
甲律师很喜欢客户的一件古董，他可以约定以这件古董作为律师费。如果古董是争讼的标的之一，如此约定就不合适。在这种情况下，律师可以考虑1、在古董上面设置一个抵押权（如果州法允许的话），客户如果付不起律师费就用古董抵债；或者2、可以在案件结束后以合适的价格购买古董。
Agreeing to take a portion of the client's personal injury settlement or award as legal fees is permissible. This is a typical contingent fee arrangement and is not restricted by the rule against acquiring a proprietary interest in the subject matter of litigation.
约定以客户获得的伤害赔偿金的一部分作为律师费是可以的，这是典型的风险代理，不受“不能谋取争讼的权益”这一规定的限制。
Contingent fees are generally permitted, except in criminal cases and domestic relations matters where the fee is contingent upon the securing of a divorce or upon the amount of alimony or support.
风险代理（contingent fee）通常是被允许的。刑事案件、促进离婚的案件（securing of a divorce）、赡养费和支持费（alimony or support）的案件除外。
The US does not have a separate category for "administrative litigation"; cases suing the government can be handled on a contingent fee basis.
美国没有将“行政诉讼”单独分类，起诉政府的案件是可以风险代理的。
Not all divorce-related cases prohibit contingent fees. If a client asks a lawyer to save their marriage, and both parties agree that the legal fee will only be paid if the court denies the divorce, this does not violate professional ethics.
并非所有离婚案件都不允许风险代理，如果客户要求律师保住自己的婚姻，并且双方同意法院判不准离婚才支付律师费，不违反职业道德。
Similarly, not all cases involving alimony prohibit contingent fees. If a court has already determined the amount of alimony and the client merely asks the lawyer to represent them in enforcing the judgment (collecting the awarded amount), a contingent fee is permissible.
也并非所有和赡养费有关的案件都不允许风险代理，如果法院已经裁定赡养费的数额，客户仅仅要求律师代理强制执行（支付判决数额），可以风险代理。
A contingent fee agreement must be in writing and must state:
风险代理的合同必须书面，且必须列明
Upon conclusion of a contingent fee matter, the lawyer must provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.
在结案之后，还需要书面给客户告知案件的结果，如果获得了损害赔偿，要告知客户损害赔偿的计算方法。
Therefore, cases other than those involving contingent fees do not strictly require a written representation agreement.
所以，风险代理以外的案件并没有签订书面代理合同的要求。
Aside from legal fees, a lawyer shall not solicit any substantial gift from a client, nor prepare an instrument giving the lawyer or a person related to the lawyer any substantial gift, including a testamentary gift, unless the lawyer or other recipient of the gift is related to the client.
除了律师费以外，律师不可以找客户索取值钱的礼物（substantial gift），也不能帮忙起草客户赠与、遗赠给律师自己或律师亲戚的文书，除非客户是律师的亲戚。
Note that there is no rule prohibiting a lawyer from accepting a gift from a client.
注意，并没有规定律师不能收受客户的礼物。
A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that:
律师不可以给客户提供财务帮助，除非
A lawyer paying litigation expenses for a client and stating that repayment is only required if the case is won does not violate professional ethics, even if the case itself does not permit a contingent fee. Contingent fee cases can, of course, also include this arrangement, but it must be disclosed in writing from the outset.
律师帮客户支付诉讼费用，并表示赢了官司才需要偿还，这不违反职业道德，即使案件本身不允许风险代理。风险代理的案件当然也可以作出这种安排，但必须一开始就书面告知。
A lawyer paying litigation expenses for a client and stating that repayment is not required even if the case is won violates professional ethics.
律师帮客户支付诉讼费用，并表示赢了官司也不需要偿还，这违反职业道德。
In the previous example, if the client is indigent, it would not violate professional ethics.
在上例中，如果是贫穷的客户，就不违反职业道德
通知义务Duty of Communication
A lawyer must:
律师必须：
In a criminal case, a plea bargain offer from the prosecutor must be promptly communicated to the client. Even if the lawyer believes the offer is highly unreasonable, the lawyer cannot reject it on their own, unless the client has previously indicated to the lawyer what kind of offers can be rejected outright.
在刑事案件中，检察官开出的认罪协商（plea bargain）要约一定要及时告知客户，即使律师认为很不合理，也不能自行拒绝，除非客户已经预先告诉律师什么样的要约可以直接拒绝。
If a client asks the lawyer to teach them how to launder money, the lawyer must refuse and inform the client that their advice is limited by law and professional ethics. If the client insists, the lawyer must decline or withdraw from the representation.
客户要求律师教他如何洗钱，律师应当拒绝，并告诉客户自己的建议是受到法律和职业道德限制的。如果客户执意要求，律师应当拒绝代理。
A lawyer may delay transmission of information if the client would be likely to react imprudently to an immediate communication. Of course, if a court order prohibits the lawyer from disclosing certain information to the client, the lawyer must comply.
律师可以适当延迟信息的披露——如果立刻披露会导致客户鲁莽行事的话。当然，如果法庭禁止律师将某些信息披露给客户，律师也必须遵守。
For a minor or a person with diminished capacity, the lawyer must, as far as reasonably possible, maintain a normal client-lawyer relationship. When necessary, even without the client's direction, the lawyer may take reasonably necessary protective action to protect the client's interests.
对于未成年人或能力受限（diminished capacity）的人，律师在合理的范围内与客户保持沟通与合作。在必要时，即使没有客户指示，律师也可以自行采取保护性措施保护客户的利益。
分歧Disagreements
As mentioned earlier, the client is responsible for the substantive objectives, and the lawyer is responsible for the means. However, the boundary between the two is sometimes not so clear. A lawyer may advise the client to modify their substantive objectives, and clients often question the lawyer's means. Undoubtedly, the lawyer must respect the client's actual objectives. Regarding the means, professional ethics do not dictate that the lawyer must insist on their own way or must follow the client's suggestions, unless following the client's suggestion is itself illegal or violates professional ethics. If the disagreement between the client and the lawyer is so significant that it cannot be resolved, either the client may discharge the lawyer, or the lawyer should voluntarily withdraw from the case.
前文说过，客户负责实质诉求，律师负责方式方法。但有时候二者界限不是那么分明。律师可以建议客户修改实质诉求，客户也经常会质疑律师的方式方法。毫无疑问，律师必须尊重客户的实际诉求。对于方式方法，职业道德没有规定律师必须坚持自我，或是必须遵循客户的建议，除非遵循客户的建议本身是违法或者违反职业道德的。如果客户和律师之间的分歧大到无法解决，要么客户开除律师，要么律师应当主动退出案件。
It is explicitly provided that if the client insists that the lawyer act illegally or in violation of professional ethics, the lawyer must withdraw from the case.
明确规定的是，如果客户坚持律师违法或者违反职业道德，律师必须退出案件。
A client insists they are innocent, but the evidence seems unfavorable to them. The prosecutor offers a relatively lenient plea agreement: by pleading guilty, the client will receive immediate probation and only need to perform 100 hours of community service. If the plea agreement is rejected and the client is convicted by a jury, the minimum sentence is 10 years in prison, and the judge has no authority to sentence below 10 years. Even if the lawyer sincerely believes the client is innocent, the lawyer may advise the client to accept the plea agreement. Of course, the ultimate decision of whether to accept the plea agreement must be made by the client.
客户坚持自己无罪，但证据似乎对客户不利。检察官提出了比较轻微的认罪协议，只用承认有罪，可以直接判缓刑，只需要进行100个小时的社区服务。如果拒绝认罪协议而被陪审团定罪，最低的刑期是10年监禁，法官无权在10年以下量刑。即使律师真诚相信客户无罪，他也可以建议客户接受认罪协议。当然，最终是否接受认罪协议应当由客户自己决定。
A client suggests that the lawyer conduct discovery to obtain certain materials from the opposing party, but the lawyer believes it is unnecessary. In this situation, the lawyer may insist on their own means or consider the client's opinion. Of course, if the lawyer is simply unwilling and the client repeatedly insists, the lawyer may withdraw from the case (or be discharged by the client). However, if the client's purpose in filing this request is merely to harass the opposing party and cause unnecessary trouble, the lawyer must either refuse to do so or withdraw from the case; otherwise, it is a violation of professional ethics.
客户建议律师向对方取证获取某个材料，但律师认为没有必要。在这种情况下，律师可以坚持自己的方式方法，也可以参考客户的意见。当然如果律师就是不愿意，客户又一再坚持，他也可以退出案件（或者被客户开除）。但如果客户提交这个令状的目的仅仅是骚扰对方，给对方增加不必要的麻烦，律师要么拒绝这么做，要么退出案件，否则是违反职业道德的行为。
律师-客户关系的终止Termination of the Client-Lawyer Relationship
Once a case is before a court, changing lawyers requires the court's permission. Even with good cause, or even in situations where withdrawal is mandatory, if the court does not grant permission, the lawyer must continue to actively represent the client.
案件到达法院后，更换律师必须要有法院的批准。即使有好的理由，甚至律师必须退出的情形，如果法院不批准，律师也只能继续积极代理。
Zhang San knows he will definitely be convicted, so he continuously fires his lawyers to delay the proceedings. Although criminal procedure does not stipulate a 'maximum of one lawyer change,' after he does this a few times, the court will no longer allow him to change lawyers. Similarly, if a lawyer wishes to withdraw from the litigation to buy more time for the client (as the court must give a new lawyer some preparation time), the court is not obligated to allow it, especially when everyone is prepared for trial the next day.
张三知道自己一定会被定罪，所以不停地开除自己的律师以拖延诉讼，虽然刑事诉讼没有规定“最多换一次律师”，但如果他这么做了几次之后，法院就不会再允许他更换律师。同样，如果律师自己希望以退出诉讼来为客户争取更多的时间（法院必须给新的律师一些准备时间），法院也不是一定要允许，尤其是大家都准备好第二天就开庭的情况下。
A client discharging a lawyer is the most common termination scenario. In this situation, the lawyer is usually paid based on the amount of work performed (quantum meruit), but if a flat fee or a maximum fee was agreed upon, the fee based on the work performed cannot exceed the agreed maximum fee.
客户开除律师是最常见的终止情形。在这种情况下，律师通常是按照工作量收费，但如果约定了一次性收费或者最大收费，按工作量收费也不能超过约定的最大收费。
Lawyer A usually charges $300 per hour, and he takes a criminal case for a flat fee of $3,000. When the client discharges the lawyer, if Lawyer A has worked for 5 hours, he can charge $1,500 based on his hourly rate; but if he has worked for 20 hours, he can only collect the originally agreed $3,000.
甲律师通常每小时收300美金，他以3000美金的一次性收费接了一个刑事案件。客户开除律师时，甲律师如果工作了5个小时，他可以按照小时费率收取1500美金，但如果他工作了20个小时，也只能收原本约好3000美金。
The situation is similar for contingency fees, with the only difference being that if the client ultimately does not recover any damages, the lawyer cannot claim quantum meruit compensation. However, if the client ultimately recovers damages, the discharged original lawyer can only claim compensation based on quantum meruit, rather than the originally agreed percentage. According to ABA Formal Opinion 487 and the principle that the total fee must be reasonable, the client is not required to pay two full contingency fees.
对风险代理来说情况是类似的，唯一的区别是如果客户最终没有拿到赔偿金，律师也无法主张合理工作量收费。但如果客户最终拿到了赔偿金，被解雇的原律师只能主张基于合理工作量（quantum meruit）的报酬，而不是原定的分成比例。根据ABA正式意见487号（ABA Formal Opinion 487）及总费用必须合理的原则，客户不需要支付两份完整的风险代理费。
The second situation is mandatory withdrawal, which includes:
第二种情况是律师必须主动退出代理，包括
When answering professional responsibility questions, law or court orders should be placed at the highest level. Violating the law or a court order is definitely a violation of professional ethics. Conversely, if the law or a court order conflicts with professional ethics, the former prevails. Even if a lawyer disagrees with a certain law or court order, they should comply first and seek remedies through other channels later (such as an appeal).
做执业道德题时应当把法律或者法院命令放在最高的位置。违反法律、法院命令的情况一定是违反执业道德的。相反如果法律、法院命令与职业道德相冲突，以前者为准。律师即使不同意某条法律、法院命令，也应当先行遵守，之后用其他途径救济（比如上诉）。
The third situation is permissive withdrawal, which includes:
第三种是律师可以主动退出代理的情形，包括
If the client insists that the lawyer teach them how to launder money, the lawyer must withdraw from the representation. If the lawyer merely reasonably suspects that the client is using their advice to launder money, the lawyer may, but is not required to, withdraw. If the lawyer discovers that the client has already used their services to launder money, the lawyer may, but is not required to, withdraw.
如果客户执意要求律师教自己洗钱，律师必须退出代理。如果律师只是合理怀疑客户用自己的建议洗钱，律师可以，但不是必须退出代理。如果律师发现客户已经用自己的服务洗完了钱，律师可以，但不是必须退出代理。
The lawyer asks the client to cooperate with discovery, but the client delays and is unwilling to cooperate. If this continues even after the lawyer threatens to withdraw, the lawyer may withdraw from the representation.
律师要求客户配合取证，但客户迟迟不愿意配合，在律师威胁要退出代理后依然如此，律师可以退出代理。
A lawyer cannot raise fees mid-representation. If a question implies that a lawyer unilaterally increases an already agreed-upon fee, you should select the option stating that the lawyer breached their fiduciary duty. However, the ABA does provide that if the representation imposes an unreasonable financial burden on the lawyer, the lawyer may terminate the representation.
律师不可以中途涨价，如果题目暗示律师单方面上涨已经约定好的律师费，要选律师违反了诚信义务。但ABA的确规定了如果给律师的财务带来不合理的困难（unreasonable financial burden on the lawyer），律师可以终止代理。
Item 1 seems to make it incredibly easy for a lawyer to voluntarily withdraw, because as long as there is no material adverse effect on the client's interests, the lawyer can withdraw directly without even needing any of the reasons in items 2 through 7. It should be noted that if withdrawal would have a material adverse effect on the client's interests, the lawyer may still withdraw as long as any of the conditions in items 2 through 7 are met (such as the client persisting in a crime, fundamental disagreement, failure to pay legal fees, etc.), according to MRPC 1.16(b). Therefore, these specific circumstances are very important and frequently appear in answer choices.
第1条看起来让律师主动退出代理无比容易，因为只要对客户的利益不带来负面影响，甚至不需要有2-7条中任何一条，就可以直接退出代理。需要注意的是，如果退出会对客户的利益带来负面影响，只要满足第2至7条中的任何一项（如客户坚持犯罪、根本性分歧、不付律师费等），根据 MRPC 1.16(b) 的规定，律师依然可以退出代理。因此，这些具体情形非常重要，经常会在选项中出现。
To reiterate, regardless of the reason for withdrawing from a case, once the case is before a court, the lawyer must first obtain the court's permission. Even for mandatory withdrawal situations, such as when continuing the representation would violate the law, the lawyer should first disclose this to the court. The court will balance the lawyer's professional ethics against judicial efficiency before deciding whether to allow the lawyer to withdraw or to make other appropriate arrangements.
再次强调无论用什么理由退出案件，在案件到达法院后都必须先取得法院的允许。哪怕是继续代理会违反法律这种必须退出的事由，也应该先披露给法院，法院会在律师职业道德和司法效率之间进行平衡，再决定是允许律师退出还是作其他妥善安排。
Upon termination of representation, a lawyer must take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled, and refunding any advance payment of fee or expense that has not been earned or incurred.
律师要确保自己终止代理不会对客户造成损害（prejudice），包括需要提前合理的时间给出通知，并让客户有合理的时间找新的律师。律师需要退还未使用的费用，也需要退还客户所有的资料和财产。
Can a lawyer retain client files to secure the payment of legal fees? The ABA allows a lawyer to retain papers relating to the client to the extent permitted by other law (state law).
律师是否可以通过留置客户资料来确保客户支付律师费？ABA允许留置客户的材料确保客户费用，但以州法规定的程度为限。
保密义务 3-6题Duty of Confidentiality (Questions 3-6)
证据法中的保密特权Evidentiary Privileges
We systematically introduced the attorney-client privilege and work product in Evidence law. This is also tested on the MPRE. First, we must distinguish between evidentiary privilege and the ethical duty of confidentiality. The former emphasizes that a court cannot compel a lawyer to testify or use privileged materials as evidence in a case; the latter emphasizes that a lawyer will be subject to discipline if they disclose confidential information. Sometimes, materials that cannot be used in court may be properly disclosed by a lawyer without facing discipline; but more often, materials that can be used in court must still be kept confidential by the lawyer.
我们在证据法中系统介绍了律师-客户特权和（attorney-client privilege）和律师的工作成果（work product）。这同样也是MPRE的考点，我们首先要区分的就是证据法中的保密特权和律师职业道德中的保密义务。前者强调法庭不能强迫律师作证，或者将保密的材料用作案件的证据；而后者强调律师如果泄露了保密的资料，会受到惩戒。有时候法庭不能用的材料，律师可以适当对外披露而不会受到惩戒；但更多时候是法庭能用的材料，律师也必须保密。
A lawyer consulting another lawyer about an ethical issue in a case falls under an exception to information disclosure, so the lawyer will not be disciplined. However, both can invoke the attorney-client privilege to refuse to testify in court.
律师就一个案件中的职业道德问题咨询另外一个律师，这属于信息披露的例外，律师不会因此受到惩戒。但他们都可以援引律师-客户特权拒绝向法庭作证。
If a lawyer in a divorce case accidentally learns from a third party that the client is having an extramarital affair, this is not protected by the attorney-client privilege because the information was not communicated by the client; nor is it protected by the work-product doctrine because it was learned accidentally. If the court compels the lawyer to testify on this issue, the lawyer cannot invoke the attorney-client privilege or the work-product doctrine under evidence law (though there may be other tools allowing them to refuse to answer). Regardless, this falls under the ethical duty of confidentiality, and the lawyer cannot voluntarily disclose it to a third party, otherwise they will be subject to discipline.
律师在离婚案件中偶然从第三方得知客户在婚姻中有外遇，这不受律师-客户特权保护，因为不是客户告诉他的信息；也不受工作成果保护，因为是他偶尔得知的。如果法庭强制律师就这个问题作证，律师不能援引证据法中的律师-客户特权和工作成果理论（或许有其他工具可以让他拒绝回答这个问题）。无论如何，但这是律师职业道德规范中的保密内容，律师不能主动披露给第三方，否则会受到惩戒。
For the benefit of students who have not yet studied the MBE subjects, I will reintroduce the attorney-client privilege and the work-product doctrine here.
为了照顾还没有学习过MBE的同学，我会在这里重新介绍律师-客户特权和工作成果理论。
The attorney-client privilege refers to confidential communications between a lawyer and a client made for the purpose of obtaining or providing legal advice, which cannot be used as evidence in court.
律师-客户特权是指律师和客户之间为了获取或提供法律建议而进行的保密交流，不能用作法庭证据。
A "client" does not have to be a signed client; preliminary consultations are also privileged. For corporate clients, this usually refers to communications with corporate executives. If it involves ordinary corporate employees, communications are also privileged if they meet the following three conditions:
“客户”不用是签约的客户，前期咨询也是保密的。对公司客户来说，通常指的是和公司高管之间的交流。如果是公司一般的官员，满足下列三个条件的交流也是保密的：
Privileged communications are not limited to just the client and the lawyer. If a third party present is considered an agent of either party, the communications remain privileged, including but not limited to interpreters, employees, experts, necessary caregivers, etc. However, if they allow an unrelated third party to be present, the communication will be deemed non-confidential.
保密的交流不仅限于客户和律师两个人之间，如果在场的第三人被视为双方任何一个人的代理，他们之间的交流也都是保密的，包括且不限于翻译、雇员、专家、必要的护理人员等。但是，如果他们允许无关的第三人在场，则交流会被认为不是保密的。
Lawyer A and his client discuss a case at a noisy party. Their voices can easily be heard by third parties, and indeed are heard by a third party. They cannot prevent the third party from testifying about the content of their conversation, because the setting cannot convince the court that they intended the conversation to be confidential.
甲律师和他的客户在一个嘈杂的派对上讨论案情，他们说话的声音很容易被第三人听到，也确实被第三人听到了。他们不能阻止第三人就他们谈话的内容作证，因为该场合不能让法庭相信他们希望在保密的情况下谈话。
We can see that the criterion for whether the privilege applies is whether they intended the conversation to be confidential, not whether it was actually overheard.
我们看到是否纳入特权的判断标准是他们有没有希望让谈话保密，而不是实际上有没有被人听到。
If the lawyer and client converse in a very private setting but are unfortunately eavesdropped upon, the information obtained through eavesdropping is also inadmissible.
如果律师和客户在很私密的场所交谈但是不幸被窃听，窃听所得也是不能使用的。
The holder of the attorney-client privilege is the client, not the lawyer. If the client wishes, they can testify about what they said to the lawyer, and the lawyer's objection will be to no avail. Conversely, the client is presumed to object to the disclosure of information. If the lawyer, without the client's consent and without invoking the attorney-client privilege, directly reveals in court what the client said to them, this evidence is generally inadmissible, and the lawyer will likely be subject to discipline.
律师-客户特权的所有人是客户，不是律师。如果客户愿意，他可以作证他和律师说了什么，律师的反对是无济于事的。反过来，客户默认反对信息的披露。如果律师既没有经过客户同意，也没有援引律师-客户特权，而是在法庭上直接透露了客户对他说的话，这个证据通常不能使用，而且律师很可能会受到惩戒。
The client's consent includes being the first to reference the content of their conversation with the lawyer. If the client takes the initiative to testify about what was said between them and the lawyer, the lawyer can then be called to the witness stand by the opposing party to testify about the content of their conversation.
客户的同意包括首先引用他和律师之间谈话的内容。如果客户率先作证他和律师之间说了什么，那律师就可以被另一方传唤到到证人席上就他们的谈话内容作证。
If a client converses with a lawyer in the presence of an unrelated cousin, their conversation is generally considered unprotected. If the court subpoenas the client, the lawyer, or the cousin, they all must testify about the content of the conversation.
客户在一个无关的表妹在场的情况下和律师交谈，通常认为他们的谈话不受保护。如果法院传唤客户、律师或者表妹，他们都应当就谈话内容作证。
Generally speaking, basic information such as the client's identity (name) and fee arrangements are not covered by the attorney-client privilege.
通常来说，客户的信息（名字）、费用安排等基本信息不是律师-客户特权的内容。
However, a court cannot compel a lawyer to disclose the name of a client who consulted them about a hit-and-run offense that day, because revealing the client's name implicitly discloses the information that the client consulted about a hit-and-run offense.
但是法院不能强迫律师披露当天咨询过他交通肇事罪的客户的名字，因为泄露客户的名字隐含了客户当天咨询过交通肇事罪的信息。
Like in China, the attorney-client privilege is permanent and survives even the death of the client.
和中国一样，律师-客户特权是永久的，即使客户死亡了也不例外。
There are some exceptions to the attorney-client privilege, including:
律师-客户特权有一些例外。包括
However, if they have not fallen out, the content of conversations between joint clients and the lawyer, whether individually or together, is protected by the privilege.
但是如果没有闹翻，共同客户无论是单独还是一同和律师谈话，其内容都是受到保密特权保护的。
If a lawyer is also an accountant, the client's accounting issues that are unrelated to law are not necessarily covered by the attorney-client privilege. Similarly, a lawyer's purely business advice, although not prohibited from being given, is not covered by the attorney-client privilege.
律师同时也是会计，客户和法律无关的会计问题并不必然列入律师-客户特权。同理，律师的纯商业建议，虽然并不禁止作出，但不列入律师-客户特权。
If a lawyer sues a client for unpaid legal fees, the lawyer's claim would not be secured if they were not allowed to disclose their communications with the client. Therefore, not only will the court admit the lawyer's testimony, but the lawyer will also not be disciplined. We previously introduced that client information and fee arrangements are generally not protected by the attorney-client privilege, but a lawyer can disclose even more information in a dispute with a client: including workload, work content, and work progress, if these are helpful to the lawyer's claim.
律师起诉客户要求支付律师费，如果不允许律师披露他和客户的沟通，律师的债权得不到保障，所以不仅法院会采纳律师的证词，律师也不会被惩戒。我们前面就介绍过客户的信息和费用安排一般并不在律师-客户特权的保护范围内，但律师在于客户的纠纷中可以披露更多的信息：包括工作量、工作内容、工作进度，如果这些对律师的主张有帮助的话。
If a document is originally discoverable, it does not become privileged simply because the party hands it over to a lawyer. However, materials prepared in anticipation of litigation are not discoverable unless the opposing party can demonstrate a substantial need for the materials and undue hardship in obtaining them: this is the work-product doctrine. Under this doctrine, even if the opposing party proves undue hardship, the lawyer's own legal opinions and litigation strategies are absolutely protected from disclosure.
一个文件如果本来是可以被取证发现的，并不会因为当事人把他提交给律师就列入特权范围了。但为了诉讼准备的材料是不可以被披露的，除非对方能证明对该材料有实质性需要（substantial need）且取得这个材料十分困难（undue hardship）：这就是工作成果理论（work-product doctrine）。在这个理论下，即使对方证明取证困难，律师自己的法律意见和诉讼策略也是绝对不可披露的。
The definition of work product is materials prepared in anticipation of litigation; they do not necessarily have to be prepared by a lawyer.
工作成果的定义是为了诉讼准备的材料，并非一定要是律师准备。
A party's account books are materials that are ordinarily easily discoverable by the opposing party in litigation, so they do not fall within the scope of privilege just because the party submits them to a lawyer. However, if the party writes an email to the lawyer explaining the suspicious nature of a particular transaction in the account books, this email is covered by the privilege.
当事人的账簿本来是诉讼中很容易被对方取证的材料，所以并不会因为当事人将它提交给律师就列入保密特权的范围。但如果当事人给律师写邮件介绍账簿中某一笔交易的可疑之处，这封邮件是被列入保密特权的。
A lawyer's conversation with a third party during an investigation is not confidential under the attorney-client privilege, but it constitutes work product. Therefore, unless the opposing party can prove that this third party can no longer be found, it should not be disclosed to the court. However, even if it is difficult to obtain, the lawyer's evaluation of this conversation, as well as notes and internal discussion drafts regarding what litigation goals the lawyer hopes to achieve using this conversation, are absolutely immune from disclosure.
律师在调查过程中和第三方人员的对话不是律师-客户特权的保密内容，但属于工作成果，所以除非对方能证明这个第三方人员已经无法找到，否则不应当被披露给法庭。但即使很难获得，律师对这次对话的评价，以及律师希望能利用这个对话达到什么诉讼目的的笔记、内部讨论文稿是绝对免于披露的。
职业道德中的保密义务Duty of Confidentiality in Professional Ethics
The previous section discussed what kinds of communications in the attorney-client relationship should not be disclosed to the court. The effect is that a witness can refuse to testify about these communications, or even if they do testify, the court should exclude them.
上一节说的是在律师-客户的关系中，什么样的沟通不应当披露给法院，其效果是证人可以拒绝就这些沟通作证，或者即使作证了，法院也应当排除。
This section discusses that a lawyer should not voluntarily disclose client information to anyone else, not limited to the court, nor should they use confidential information to the disadvantage of the client. The effect is that if the duty of confidentiality is violated, the lawyer may be disciplined or face civil liability. It is generally understood that the ethical duty of confidentiality is broader than the attorney-client privilege in evidence law.
这一节说的是律师不应当主动泄露客户信息给任何其他人，不仅限于法院，也不应该利用保密的信息将客户置于不利的地位。其效果是，如果违反了保密义务，律师会被惩戒，或者承担民事责任。通常认为，职业道德中的保密义务比证据法中的律师-客户特权要更广。
A lawyer feels uneasy because the client is too brutal, so without the client's consent, the lawyer testifies that the client personally confessed to being the murderer. This violates both evidence law and professional ethics. From an evidence law perspective, this testimony falls under the attorney-client privilege and must be excluded—and if the jury has already heard this statement, a mistrial may need to be declared, requiring a new jury to be empaneled for a retrial to remedy the prejudice caused by the testimony, which brings enormous costs to the court, the prosecutor, and the defendant. All three parties are highly likely to report the lawyer's misconduct to the bar association. From a professional ethics perspective, the lawyer has violated both the duty of confidentiality and the duty of loyalty, and will most likely be disciplined as a result. Furthermore, if the client suffers damages, they can also claim civil compensation against the lawyer.
律师觉得客户太残暴而良心不安，所以在没有客户的同意下就作证说客户亲口向他承认自己是凶手，这同时违反了证据法和职业道德。从证据法来讲，该证词落入律师-客户特权而必须被排除——而如果陪审团已经听到了这句话，或许要宣布审判无效（mistrial），必须组成新的陪审团重新审理才能弥补证词带来的伤害，这给法院、检察官和被告本人都带来了巨大的成本。三方都很可能将律师的不当行为提交给律师协会。从职业道德来说，律师同时违反了保密义务和忠实义务，大概率会因此受到惩戒。此外，客户如果受到损失，也可以对律师主张民事赔偿。
A client privately tells their lawyer that they are about to go bankrupt, and the lawyer immediately shorts the client's stock in the market. A large number of suspicious short positions causes the client's stock price to plummet, resulting in huge losses. There is no evidence law issue here because the case has not gone to court. However, the lawyer is clearly using confidential information to the disadvantage of the client, which violates the ethical duty of confidentiality. The lawyer's short-selling behavior conflicts with the client's interests, so the lawyer also violates the duty of loyalty (conflict of interest). Finally, trading on insider information also violates relevant laws.
客户私下底跟律师说自己即将破产，律师立刻到市场上做空客户的股票。大量可疑的空头让客户股价暴跌，蒙受巨大损失。这里没有证据法的问题，因为案件还没有到法院。但律师显然是利用保密的信息将客户置于不利的地位，这违反了职业道德中的保密义务。律师做空的行为和客户的利益相悖，所以律师也同时违反了忠实义务（利益冲突）。最后，利用内幕信息进行交易还同时违反了有关法律。
The behaviors observed and physical evidence handled by a lawyer do not fall under the attorney-client privilege because they are not communications between the lawyer and the client. However, they do fall under the duty of confidentiality.
律师看到的行为、接触到的物品不属于律师-客户特权，因为这些不是律师和客户的沟通。但这些落在保密义务。
The client takes out the murder weapon on the spot and hands it to the lawyer. If the case goes to trial, what the lawyer saw does not fall under the attorney-client privilege, and the lawyer may even need to proactively turn the weapon over to the prosecutor/police, though they do not necessarily have to disclose the client's name. However, what the lawyer saw falls within the scope of the duty of confidentiality.
客户当场把作案凶器掏出来交给律师。如果案件进入审理阶段，律师的所见并没有落入律师-客户特权，律师有可能还需要主动把凶器交给检察官/警察，但不一定要披露客户的名字。但律师所见落入保密义务的范围以内。
Simply put, a lawyer cannot voluntarily disclose a client's past illegal acts, although the lawyer must not assist the client in engaging in further illegal acts.
简单地说，律师不能主动披露客户的违法行为，虽然律师不得协助客户进一步从事违法行为。
The duty of confidentiality also includes the lawyer's obligation to properly safeguard client information. Whether the safeguarding is proper depends on the sensitivity of the materials and the methods of safeguarding.
保密义务还包括律师要妥善保管客户的信息，是否妥善取决于材料的保密程度和保管的手段。
Leaving a client's bidding documents wide open on a busy front desk is obviously not a proper method of safeguarding.
将客户的标书敞开放在人来人往的前台办公桌上显然就不是妥善的保管手段。
The testing points for the duty of confidentiality mainly focus on its several exceptions.
保密义务的考点主要是若干例外。
When a lawyer investigates and gathers evidence from a priest, telling him that the client is a Christian to gain his favor is a reasonable disclosure.
律师向一个神父调查取证时，告诉他自己的客户是基督徒以博得对方好感，这是合理的披露。
If a lawyer sues a client, a client sues a lawyer, or a client files a complaint against a lawyer leading to a disciplinary hearing, the lawyer may proactively disclose evidence favorable to themselves; even if it is the client's confidential information, it does not violate the duty of confidentiality.
律师起诉客户，客户起诉律师，或者客户投诉律师导致律师被听证，律师可以主动披露对自己有利的证据，即使是客户的保密信息也不违反保密义务。
A mob boss mentions that he will make a certain testifying witness disappear, and previously, every time he said this, the witness would die a tragic death at home. The lawyer may disclose this information to the police, prosecutor, judge, or the witness, but he is not required to do so—especially if he doesn't want to die a tragic death himself.
黑帮老大提出会让出庭作证的某个证人消失，此前每次这么说之后证人都会惨死在家里。律师可以将这个信息披露给警察、检察官、法官或者证人，但他也不是必须这么做——如果他自己不想惨死的话。
When a lawyer moves to a new law firm, they disclose the names of all their clients to screen for potential conflicts of interest with the new firm's clients (for example, lawyers in the same firm cannot simultaneously represent both sides of the same case). This is appropriate.
律师跳槽的新的律所，他披露了自己所有客户的名字以筛查和新的律所的客户是否有利益冲突（比如，同一家律所的律师不能同时代理同一个案件的双方），这是合适的。
Note that under Rule 1.6, there is no situation where a lawyer must disclose information to the outside world; it is always may or may not disclose, even to prevent death or substantial bodily harm. However, other rules (such as Rule 3.3 Candor toward the Tribunal) impose mandatory disclosure obligations. For example, if a lawyer knows that a client has committed perjury in court, the lawyer must take reasonable remedial measures, including, if necessary, disclosure to the tribunal.
注意，没有任何一种情形是律师必须对外披露，永远都是可以，也可以不披露，即使是为了防止死亡或严重的身体伤害。但其他规则（如 Rule 3.3 对法庭的坦诚）规定了强制披露义务。例如，如果律师知道客户在法庭上作了伪证，律师必须采取合理的补救措施，必要时包括向法庭披露。
The fact that "information is already public" is not in itself an exception under the ABA Rules. For current clients, the ABA protects "information relating to the representation," which is very broad and does not automatically lose protection just because it has entered the public record. Therefore, even if certain information has already appeared in a public trial, public court judgment, or other public sources, the lawyer, in principle, still cannot voluntarily disclose it.
“信息已经公开”本身不是ABA规则下的例外。对当前客户而言，ABA保护的是和代理有关的信息（information relating to the representation），范围很广，不会因为信息已经进入公开记录就自动失去保护。所以，即使某个信息已经出现在公开庭审、公开裁判文书或者其他公开来源中，律师原则上依然不能主动对外披露。
利益冲突 6-9题Conflicts of Interest (6-9 Questions)
忠实义务Duty of Loyalty
Conflicts of interest are the most heavily tested topic on the MPRE and are almost guaranteed to appear in California professional responsibility essays. A lawyer must be loyal to the client, and the lawyer's professional conduct must be in the client's best interest, which includes the duty to avoid conflicts of interest (this is the most commonly used rule statement in professional responsibility essays).
利益冲突（conflict of interest）是MPRE最大的考点，也是加州职业道德论文几乎必考的点。律师必须对对客户忠实，律师的职业行为必须要为客户的利益考虑，这就包括了律师必须要避免利益冲突（这句话是职业道德论文最常用的回答句式）。
If a lawyer discovers a conflict of interest before taking a case, the lawyer must decline the representation. If the lawyer discovers a conflict after taking the case, and the client does not give informed consent, the lawyer must withdraw from the representation. The vast majority of conflicts of interest can be resolved with the client's informed consent. Therefore, we will focus on the remaining three categories: nonconsentable conflicts of interest, conflicts that only require notice to the client without needing consent, and situations where no conflict exists.
如果律师在接案之前就发现了利益冲突，他不应该接这个案件。如果他在接案之后发现了利益冲突，而客户没有被告知后同意（informed consent），律师应当退出案件。绝大部分利益冲突可以在客户被告知后同意解决。所以我们重点学习剩下三类：无法解决的利益冲突，通知客户即可、无需客户同意的利益冲突，和没有利益冲突。
无法解决的利益冲突Nonconsentable Conflicts of Interest
Nonconsentable conflicts of interest include:
无法解决的利益冲突包括：
It is a global consensus that a lawyer cannot simultaneously represent both opposing parties in the same litigation.
律师不能同时接双方的代理是全球共识。
Different lawyers in the same law firm representing the plaintiff and the defendant in the same case, or cases with directly adverse interests, are also generally considered nonconsentable conflicts. For example, if Lawyer A represents a client in a patent application, Lawyer B from the same firm should not take a case seeking to invalidate that patent.
同一家律所的不同律师代理原被告双方的案件，或者利益有直接冲突的案件通常也认为是无法解决的利益冲突。比如甲律师代理某个客户的专利申请，同律所的乙律师不应该接起诉该专利无效的案件。
A lawyer-husband can, of course, represent his wife, because the sexual relationship existed before the client-lawyer relationship commenced.
律师丈夫当然可以代理妻子的案件，因为性关系发生在律师-客户关系成立之前。
In contrast, a mandatory arbitration clause is permissible if the client gives informed consent after fully understanding the pros and cons of arbitration.
作为对比，客户在充分了解仲裁优缺点的前提下给出了知情同意（Informed Consent），强制仲裁条款是允许的。
When presiding over a case, a judge obviously cannot discuss with a party's lawyer whether the judge could join their firm as a partner after resigning. However, a law clerk, after notifying the judge, may discuss with a party whether they can work at a certain law firm after their clerkship. In fact, judicial clerkships serve as a stepping stone for many junior lawyers.
法官在审理案件时，显然不能和一方的当事人律师讨论自己辞职后是否能去他的律所担任合伙人。但书记员在取得法官同意后可以和当事人讨论自己辞职后是否能去某个律所工作。事实上法官的书记员是很多初级律师的晋升跳板。
需要客户被告知后同意的利益冲突Conflicts of Interest Requiring Client's Informed Consent
The vast majority of conflicts of interest can be resolved by informing the client and obtaining their informed consent, confirmed in writing. The client's consent must be fully informed and in writing. A client may revoke their consent at any time. If a lawyer requests a client to consent to a future conflict of interest, the lawyer must exercise even greater caution than when requesting consent to a present conflict.
绝大多数利益冲突可以通过告知客户并取得书面同意（informed consent, confirmed in writing）解决。客户的同意要是充分被告知的、书面的。客户可以随时撤回他的同意。如果律师请求客户同意未来可能发生的利益冲突，要比一般的请求客户同意利益冲突更加谨慎。
Asking a client to pre-consent to all possible future conflicts of interest at the time of signing is obviously an unreasonable, unconscionable clause, but the ABA does not completely prohibit lawyers from asking clients to consent to future conflicts. When answering questions, we consider the extent to which the client reasonably understood the material risks that the waiver entails.
让客户签约时就预先同意未来可能发生的一切利益冲突显然是不合理的霸王条款，但ABA并没有完全禁止律师要求客户同意未来的利益冲突。做题时，我们考虑客户在多大程度上合理地了解并放弃了可能涉及的重大风险。
The following are classic situations that require informing the affected clients of the conflict of interest and obtaining their consent:
以下案件是经典的需要告知利益冲突相关客户并获得其同意的情形：
Representing multiple clients with conflicting interests in a civil case, representing two clients with conflicting interests in different cases (including transactional matters, but excluding unnamed members of a class action), situations conflicting with the lawyer's own interests, accepting compensation from a third party, using a former client's confidential information to their disadvantage in a new lawsuit, or opposing a former client in a new lawsuit that is substantially related to the prior representation even without confidential information, etc.
民事案件同时代理多个利益有冲突的客户、在不同的案件中代理两个利益相冲突的客户（包括非诉业务，但未命名的集体诉讼客户不在此列）、和律师自身利益相冲突的情况、律师从第三方接受律师费、利用前客户的保密信息在新的诉讼中将前客户置于不利地位、或者即使没有保密信息但却在和前诉讼实质相关的新诉讼中站在前客户的对立面等。
It should be noted that these conflicts of interest must not affect the lawyer's own professional judgment. The lawyer must reasonably believe that they will be able to provide competent and diligent representation to each affected client; otherwise, the conflict cannot be resolved even with the client's consent.
需要注意的是，这些利益冲突不能影响律师自己的专业判断。律师要能合理相信自己能够为即使是利益有冲突的客户提供称职和尽责的代表，否则即使获得了客户的同意也无法解决。
If the lawyer wins the case, they will earn $10,000 in attorney's fees from the client, but the lawyer's shares in the opposing company will lose $100,000 in value. There is no evidence that the positive effect of winning on the lawyer's reputation would outweigh their loss in shares. In this situation, it is hard to believe that the lawyer can properly handle the conflict of interest, and it is best to withdraw from the representation.
如果律师胜诉，可以获得客户1万元律师费，但律师在对方公司持有的股份会损失10万美元。没有证据表明胜诉对律师声誉的正面效果能覆盖他在股份中的损失。这种情况下，很难相信律师能够妥善处理利益冲突，最好要退出代理。
When a lawyer represents multiple clients concurrently, the clients will have common interests but inevitably some disagreements. The lawyer must ensure impartiality regarding their disagreements. If the lawyer cannot resolve the disagreement within the bounds of professional ethics, they must withdraw from representing at least one of the clients. When clients turn against each other, the lawyer usually must withdraw from representing all of them.
律师同时代理多个客户时，客户们有一致的利益，也肯定会有分歧。律师要确保在他们的分歧之间不偏不倚，如果律师无法在职业道德内解决该分歧，他必须停止代理其中至少一个客户。在客户反目成仇时，律师通常要退出双方代理。
Communications among co-clients are not privileged if they later turn against each other, so the lawyer must obtain their written consent regarding potential future conflicts of interest from the outset.
共同客户之间的沟通在客户反目成仇时不是保密的，所以律师必须一开始就获得他们关于未来可能会利益冲突的书面同意。
If A's father pays A's attorney's fees, the ABA does not absolutely prohibit this as long as the lawyer obtains A's prior consent. It is important to note that in this situation, A is the client, not A's father. The lawyer must not allow A's father to interfere with the lawyer's professional judgment, nor may the lawyer disclose confidential information to the father.
甲的父亲替甲支付律师费，律师只要预先获得甲的同意，ABA并不绝对禁止这种情况。需要注意这种情况下甲是客户，甲的父亲不是。律师不能让甲的父亲影响自己的职业判断，也不能把保密的信息泄露给父亲。
Insurance companies sometimes hire lawyers for their insureds. The lawyer may represent both the driver and the insurance company, but their interests are not always aligned. For example, if the driver was driving under the influence, the insurance company might not be obligated to provide coverage. The lawyer must inform both the insured and the insurance company of the existence of this conflict from the outset and obtain their respective written consents.
保险公司有时候会为客户聘用律师，律师同时代理驾驶人和保险公司，但他们之间的利益并非总是一致，比如驾驶人如果酒驾，保险公司或许不用承保。律师必须一开始就告知车主和保险公司这种冲突的存在，并分别获得他们的书面同意。
When a lawyer represents multiple clients and they settle for an aggregate amount, each client must know and consent to how the total amount is distributed among the specific clients. This inevitably infringes on the privacy of other clients, so clients must also pre-consent to their own settlement amounts being known by the other clients. The same applies to aggregated plea agreements for multiple defendants in criminal cases.
律师在代理集体诉讼时，如果最终以一个总数和解，那每个客户都必须知晓并同意这个总数是如何分配到每个具体的客户的。这不可避免地会侵犯其他客户的隐私，所以客户还需要预先同意他们自己的和解金会被其他客户知晓。刑事案件中多名被告人的集体认罪协商同理。
As the saying goes, 'People worry not about scarcity, but about uneven distribution.' If each client did not know the settlement amounts of the other clients, the lawyer might find it easier to facilitate a settlement, which could also be more beneficial to all clients. Unfortunately, a lawyer cannot operate this way, unless the clients have all waived this right in advance.
“不患寡而患不均”，如果每个客户并不知道其他客户的和解金额，或许律师能更容易促成和解，也对所有客户都更有利。可惜律师并不能这么操作，除非客户们都预先放弃了这个权利。
A lawyer generally should not represent multiple defendants in the same criminal case, but it is not entirely impossible if fully informed consent is obtained. If both defendants are willing to plead guilty, they have the right to know the other defendant's plea agreement.
律师通常不应该代理同一个刑事案件中的多个被告，但在取得充分同意的情况下也不是完全不可能。如果两个被告都愿意认罪，他们有权利知道另外一个被告的认罪协议。
After leaving a government agency, a lawyer must not represent a client in a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consent. If the lawyer acquired certain confidential government information during their tenure, they also may not use this confidential information in subsequent litigation; this restriction is absolute, and the government agency's consent cannot waive this conflict.
律师从政府机关离职后不得代理之前实质参与过的案件，除非获得政府机关的同意。如果他在任职期间获得了某些保密信息，他也不可以在后续的诉讼中利用这些保密信息，这条限制是绝对的，政府机构的同意不能豁免该冲突。
After denying an environmental permit to a company, a public official resigns and becomes a lawyer. They certainly cannot represent the company to challenge their own prior decision, unless they obtain the environmental department's consent. However, if they were not involved in the decision to deny the permit, or if their involvement was limited to merely scheduling a date for the denial hearing (no personal and substantial participation), they most likely can represent the company to sue the environmental department.
在拒绝给企业发放环保许可后，公务员辞职成为了一名律师，他当然不可以代表企业起诉自己当初的决定，除非取得环保部门的同意。但是，如果他没有参与过拒绝发放环保许可的决定，或者他的参与仅止于给拒绝发放的听证会安排一个日期（没有实质参与），他大概率可以代表企业起诉环保部门。
Similarly, after a lawyer ceases to serve as a judge or law clerk, they must not represent a client in a matter in which they participated personally and substantially, unless all parties to the proceeding give informed consent.
类似地，律师不再担任法官、书记员后，不得代理之前实质参与过的案件，除非获得所有当事人的同意。
Whether a lawyer enters into a business transaction with a client or acquires an ownership, possessory, security, or other pecuniary interest adverse to a client, the lawyer must do more than merely obtain the client's written consent. The following requirements must be met:
律师无论是和自己当事人交易，还是获取与客户利益相冲突的财产或利益，做的都比仅仅获得客户的书面同意要更多，需要满足：
However, standard commercial transactions are not subject to this rule. If a client is suing McDonald's, it does not mean the lawyer needs the client's written consent just to eat at McDonald's. But it would be different if the lawyer intended to acquire a significant amount of McDonald's shares.
但常规的市场行为不在此列，客户如果和麦当劳对簿公堂，不代表律师连在麦当劳用餐都需要客户书面同意。但如果律师打算持有一定麦当劳的股份就不一样了。
A similar rule applies when a lawyer discusses settling a claim or potential claim for malpractice with an unrepresented client or former client. Before settling with a client who is not represented by independent counsel, the lawyer must advise the client in writing of the desirability of seeking independent legal counsel and give the client a reasonable opportunity to seek such advice.
类似的还有律师事后与客户讨论和解（settle）自己潜在的执业过失。与没有独立第三方律师代理的客户谈和解之前，必须书面提示客户获得独立的法律建议，还要给客户合理的时间寻求独立的法律建议。
A lawyer includes a clause in a contract stating that if the lawyer commits any malpractice in the future, the client may not sue the lawyer. The contract also notes that the client should consult independent third-party counsel regarding this, and the lawyer repeatedly reminds the client to seek third-party counsel. However, the client trusts the lawyer deeply and insists on agreeing to this clause without independent legal representation. The lawyer has still violated professional ethics. Note that prospectively limiting malpractice liability cannot be cured merely by advising the client to seek independent counsel; the client must actually be independently represented. Only when the malpractice cause of action has already arisen and the parties are discussing a subsequent settlement can the requirement for independent representation be substituted by advising the client in writing to seek independent counsel.
律师在合同中注明，如果律师未来有任何执业过失，客户不得起诉律师。合同中同时注明，客户应当就此咨询独立第三方律师，律师再三提醒客户就此寻求第三方律师，但客户非常相信律师，执意在没有独立律师代理的情况下同意了这个条款。律师依然违反了执业道德，注意事先免除执业过失是不可以通过告知就豁免第三方独立律师的要求，只有过失事由已经产生、谈论事后和解时，才可以通过书面告知客户豁免这个要求。
Generally, a lawyer's own conflict of interest is imputed to their law firm, meaning that if one lawyer has a conflict of interest, the entire law firm also has a conflict of interest.
一般来说，律师自己的利益冲突会波及（impute）到律所，也就是一名律师有利益冲突，整个律所也就都有了利益冲突。
Without the former client's consent, lawyers in the same firm cannot oppose the former client in a subsequent, substantially related matter, even if the subsequent matter is handled by a different lawyer.
如果前客户不同意，同一个律所的律师不能在后续但实质相关的诉讼中反对前客户，即使后续诉讼由不同的律师代理也不行。
被告知即可的利益冲突Conflicts Resolved by Notice
Conflicts of interest that can be resolved merely by notice typically occur when a lawyer's conflict of interest is imputed to the law firm. Three conditions must be met:
被告知即可的利益冲突通常发生在律师的利益冲突波及（impute）到律所的情况。需要满足3点：
This generally occurs due to a lawyer changing firms or a law firm merger, including situations where a lawyer leaves government service to enter private practice. There is no need to memorize this by rote.
一般都是因为律师转所或者律所合并造成的，包括从政府离职担任律师的情形。对此我们不用死记硬背。
When a lawyer moves to a new firm, she suddenly discovers that a client she previously represented is the opposing party in a case handled by her new firm, and the case is substantially related to the matter she previously handled. Normally, the firm would be imputed with the conflict due to the new lawyer's arrival. However, the firm can resolve this by notifying the lawyer's former client that the new lawyer will be screened from the case team and will not receive any portion of the fee from this case. In this way, even if the former client objects, it will be to no avail.
律师转到新所时，突然发现她曾经代理过的客户是新律所某案件的对方当事人，而且还和她之前代理的案件实质相关。通常，该律所会因为新律师的加入被波及，但律所可以通过通知该律师的前当事人，新律师会被排除在案件团队之外，且不会从这个案件中获得任何收益。这样即使前当事人反对也无济于事。
When a judge resigns and joins a law firm, the firm is representing a client in an appeal, and the judge happens to have been the trial judge for that case. Normally, the firm would be imputed with the conflict due to the judge's arrival. However, the firm can provide written notice to the opposing party and the appellate court stating that the former judge will be screened from the case team and will not receive any portion of the fee from this case. As long as this procedure is completed, any objection from the opposing party will be to no avail.
法官辞职来到律所时，该律所正在代理一桩上诉案件，该法官恰好是一审法官。通常，该律所会因为法官的加入被波及，但律所可以书面通知对方当事人和上诉法庭：离职法官会被排除在案件团队之外，且不会从这个案件中获得任何收益。只要完成这个程序，对方当事人反对也无济于事。
However, it is important to note that if the lawyer has not changed firms, this approach is not permissible. When representing a former client, lawyers in the same firm have more or less acquired some confidential information, or at least understand the litigation strategy. It would be unfair to allow the same firm to oppose the former client in a substantially related matter or a matter where such confidential information could be used.
但要注意的是，如果律师没有转所，这么操作是不行的。在代理前客户的案件时，同一个律所的律师多多少少获取了一些保密信息，至少对诉讼策略是了解的，允许同一个律所在实质相关的诉讼或者可能会用到保密信息的诉讼中站在前客户的对立面是不公平的。
A law firm strictly divides its lawyers into two teams that do not share case information or fees with each other, solely to allow one team to oppose a former client on appeal. Unless the former client gives written consent, this arrangement cannot resolve the imputed conflict.
律所将律师们严格分为两个团队，互相不分享案情，也不分享收益，这样做只是为了能让另外一个团队在上诉时站在前客户的对立面。除非前客户书面同意，否则这样做也无法解决被泼及的问题。
There is another situation where "conflict resolution by notice" applies: when a prospective client discloses confidential information during a consultation, but the firm wants to represent the opposing party.
还有一种情况适用“通知即解决利益冲突”，即潜在客户在咨询时透露了保密的信息，但律所又想代理他的对立面。
A wants to file for divorce, so he consults the only few top-tier matrimonial law firms in the state and discloses personal information. If the imputed firms were completely barred by conflicts of interest, his wife would be unable to obtain the same level of legal services. In this situation, one of the firms gives written notice to A stating that: 1. the lawyer who conducted the consultation took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to take the case; 2. the lawyer will be screened from the case team; and 3. the lawyer will not receive any portion of the fee from this case. In this scenario, A's objection will be to no avail.
甲想起诉离婚，于是咨询了该州仅有的几家在婚姻方面非常出色的律所并泄露了个人信息。如果被波及的律所完全被利益冲突困住，他的妻子将无法获得同等水平的法律服务。这时其中一家律所书面通知甲：1、负责咨询的律师在咨询时采取了合理措施，避免接触到比决定是否接案所需更多的保密信息，2、该律师会被排除在案件团队之外，3、该律师不会从这个案件中获取任何收益。那么甲的反对就无济于事。
没有利益冲突No Conflict of Interest
If a lawyer has a conflict of interest arising from a personal relationship, it will not be imputed to the law firm.
如果律师是因为私人关系产生的利益冲突，那么不会波及（impute）到律所。
Lawyer A engages in sexual relations with a client during the representation. Although he violates professional ethics, other lawyers in the firm do not have a conflict of interest and can continue to represent the client in the case.
甲律师在代理客户的过程中和客户发生了性关系，虽然他违反了执业道德，但律所的其他律师并没有利益冲突，可以继续代理该案件。
During the representation of a client, Lawyer A discovers that another lawyer in the same firm is the wife of the opposing party. If there is no significant risk of materially limiting Lawyer A's judgment, there is no conflict of interest.
甲律师在代理客户的过程中，发现同所另外一名律师是对方当事人的妻子，如果没有影响甲律师判断的显著风险，就没有利益冲突。
During the representation of a client, Lawyer A suddenly feels that the opposing company has great prospects, so he uses his own money to purchase a large amount of the opposing company's stock. Although he has a conflict of interest, the professional judgment of other lawyers in the firm representing the client in this case will not be affected. If Lawyer A withdraws from the representation at this point and lets other lawyers take over, the client does not need to consent to this transaction.
甲律师在代理客户的过程中突然觉得对方公司前景特别好，于是用自己的钱购买了大量对面公司的股票，虽然他有了利益冲突，但律所的其他律师代理该案件的专业判断并不会受到影响。如果甲律师此时退出代理，让其他律师接手，客户并不需要同意这笔交易。
Finally, remember that if the situation does not fall under the types of conflicts of interest specified in the professional ethics rules, and the fact pattern explicitly tells you that there is no significant risk of the lawyer's professional judgment being affected, then you can conclude that no conflict of interest exists.
最后要记得如果不是职业道德条款中规定存在利益冲突的类型，题目也明确告诉你律师的职业判断没有受到影响的显著风险（significant risk），那么可以认为没有利益冲突存在。
Opposing a former client in a matter that is not substantially related does not seem to require the former client's consent, as long as the former client's confidential information is not used.
在并不实质相关的案件中站在前客户的对立面似乎并不需要取得前客户的同意，只要不利用前客户保密的信息。
企业和雇员的利益冲突Conflicts of Interest Between an Organization and Its Constituents
A corporate lawyer's client is the organization, not its executives, and certainly not its ordinary employees. When there is no conflict of interest, a lawyer may represent both the organization and its constituents, which is no different from representing multiple clients. However, if the interests of the organization and the constituent become adverse, the lawyer must clearly explain that their client is the organization, not the constituent, and that their conversations will not be kept confidential from the organization. If the conflict of interest between the organization and the constituent is irreconcilable, the lawyer should advise the constituent to seek independent legal counsel.
企业律师的客户是企业，不是高管，更不是普通员工。在没有利益冲突的时候，律师可以同时代表企业和个人，这和同时代表多名客户并没有什么两样。但如果企业与个体的利益不一致，律师必须清楚地说明他的客户是企业，不是个体，且他们之间的谈话也不会对企业保密。如果企业与个体的利益冲突大到不可调和，律师应当建议该个体寻求独立的法律帮助。
An employee comes to the company lawyer for advice and asks the lawyer to keep what they are about to say confidential. The lawyer should inform the employee that they represent the company's interests, and if the information revealed by the employee is detrimental to the company, the lawyer must report it to the company. If the employee cannot accept this, they should consult another lawyer.
员工来找公司律师咨询，并希望律师就他将要说的内容保密。律师应当告诉他自己是代表公司的利益，如果员工给他透露的内容对公司不利，律师应当向公司报告。如果员工无法接受，应当咨询其他律师。
A lawyer discovers that a company executive has engaged in financial fraud. When the lawyer approaches the executive to verify the facts, it is best to inform them right from the start that the lawyer represents the company's interests, not the executive's, because at this point, the conflict of interest between the executive and the company may already be irreconcilable.
律师发现公司某高管存在财务造假的行为，律师找该高管核实时，最好一开始就告诉他自己代表的是公司利益，而不是高管的利益，因为此时高管和公司的利益冲突或许已经大到不可调和。
If a lawyer discovers that an employee is harming the organization's interests, the lawyer has a duty to report the matter to a higher authority within the organization, and ultimately to the highest authority. If the highest authority remains unresponsive, the lawyer may choose to disclose the information to regulatory authorities outside the organization, but the disclosure is limited to the discovery of:
律师如果发现企业员工损害企业的利益，律师有责任向更高级别的机构上报，并最终上报到最高管理机构。如果最高管理机构依然无动于衷，律师可以选择向企业以外的监管机构披露，但披露的内容仅限于发现的
Reporting up to the highest authority of the organization is the lawyer's duty, but reporting out (external disclosure) is not. The lawyer may, but is not required to, disclose externally.
层报到企业的最高管理机构是律师的义务，但对外披露不是。律师可以，但不是必须对外披露。
The ABA rules provide that a lawyer may disclose externally even if it breaches the duty of confidentiality. Furthermore, external disclosure does not violate the lawyer's duty of loyalty, because the lawyer's client is the organization, and the organization's interests include the interests of its shareholders and the public interest in compliant operations, which are not necessarily the same as the interests of the highest authority.
ABA规定即使违反了保密义务，律师依然可以对外披露。此外，对外披露并不违反律师的忠实义务，因为律师的客户是企业，企业的利益包括股东的利益和合规运营的公共利益，而不一定就是最高管理机构的利益。
A company lawyer discovers that an accountant has embezzled and misappropriated company funds. The lawyer should demand that the finance department stop and correct the accountant's behavior. If the finance department is unresponsive, the lawyer may report up to the highest authority (the board of directors, CEO, etc.). If the highest authority remains unresponsive, the lawyer may consider reporting the matter to relevant external agencies.
公司律师发现会计侵占并挪用公司财务，律师应当向财务部门要求会计停止并纠正行为。如果财务部门无动于衷，律师可以上报到最高机关（董事会、首席执行官等），如果最高机构依然无动于衷，律师可以考虑向有关机构举报。
However, if the lawyer was hired specifically to investigate an alleged violation of law within the organization, the lawyer may not disclose the information externally, even if the investigation confirms that a violation occurred.
但如果律师本来就是被雇佣来调查企业内部可能的违法行为，即使调查后确实发现了违法行为，也不得向外披露。
A lawyer is hired by a company to investigate the embezzlement of company funds by the finance department. Even if the lawyer discovers the embezzlement and the company remains unresponsive, the lawyer may not disclose this to relevant external authorities.
律师被公司雇佣来调查会计部门挪用公司财务事宜，即使律师查到后公司无动于衷，律师也不可以向公司以外的有关部门披露。
A company lawyer may simultaneously serve as a corporate director. However, when a lawyer serves as a director, the attorney-client privilege applies only when they are providing legal advice in their capacity as legal counsel; it does not apply if they are merely participating in business decisions as a director. If serving as a director would compromise their ability to exercise their duties as the company's lawyer, they must either resign from the board or cease acting as the company's lawyer.
公司律师可以同时担任公司董事（directors），但律师兼任董事时，只有在其作为法律顾问提供法律意见时，律师-客户特权才适用；如果其仅作为董事参与商业决策，则不适用特权。如果担任董事会影响他行使公司律师的职责，他要么从董事会辞职，要么不再担任公司律师。
胜任和失职 3-6题Competence and Malpractice (3-6 Questions)
胜任Competence
A lawyer should not represent a client in a matter for which they are not competent. There are many factors to consider in determining competence, and there is no need to memorize them one by one. What needs to be remembered are the three exceptions to the competence rule: emergency situations, timely study, and association with a competent lawyer.
律师不应当代理自己不胜任（competent）的案件。是否胜任考虑的因素很多，不需要挨个去记。需要记住的是胜任规则的三个例外：紧急情况、及时学习和合作。
Although newly admitted Lawyer A has never handled a criminal case, they can represent a client in filing a motion to suppress a confession due to the lack of a Miranda warning, and subsequently move for an acquittal due to lack of evidence—this is basic general knowledge that any lawyer should possess.
刚执业的甲律师虽然从来没有代理过刑事案件，但可以代理客户因为没有收到米兰达警告要求排除认罪供述，进而无证据开释的申请——这是任何一个律师都应该知道的基本常识。
A lawyer is rear-ended while riding in a taxi. Although they have never handled a traffic accident case, they may give the driver some appropriate advice. However, once the emergency has passed, they should advise the driver to consult a competent lawyer.
律师在乘坐出租车时被追尾，虽然他从来没有代理过交通事故，但是他可以给司机一些适当的建议，但在紧急情况结束后应当建议司机咨询胜任的律师。
The client has already pleaded guilty, and the lawyer only needs to represent them in a mitigation defense (sentencing defense). Although the lawyer is not competent at the time, there is still a week before the hearing. The lawyer can either use this week to study sentencing defense techniques or associate with a lawyer who is experienced in sentencing defense. Satisfying either of these two conditions will prevent a violation of the competence rule.
客户已经认罪，律师仅需要代理的是罪轻辩护（量刑辩护）。虽然律师当时并不胜任，但是离开庭还有一周时间。律师要么可以利用这一周时间学习量刑辩护的技巧，也可以与熟悉量刑辩护的律师合作。满足两个要求其一就不违反胜任规则。
A lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, and should comply with continuing legal education (CLE) requirements set by the state bar association.
律师应当跟进科技的进步，也应当按照州律师协会的要求参加继续教育（Continuing Legal Education）。
勤勉尽职Diligence and Promptness
Promptness means a lawyer should actively represent a client's case, while diligence means a lawyer should advocate zealously for the client's interests. A lawyer must conduct factual and legal research regarding the client's matter.
勤勉（promptness）说的是律师应当积极代理客户的案件，尽职（diligence）是指律师应当为客户的利益绞尽脑汁（zealously）。律师必须对客户的问题进行事实和法律研究（factual and legal research）。
It is easy to identify situations where a lawyer lacks diligence and promptness. Examples include taking on too many cases and handling each one hastily, missing an appeal deadline, or failing to pursue a better option for the client out of convenience. Sometimes, a lawyer may be unsure whether a client still wishes to retain them—for instance, if the client has paid but has not been in contact for a long time, while new actions could be taken. In such exam questions, promptly contacting the client to inquire about their intentions is always the better answer. Other examples of a lack of diligence and promptness include choosing to notify a client by regular mail about an extremely urgent matter, or calling a client about an important issue and shelving the matter just because the client's secretary says the client is unavailable.
我们很容易判断出律师不够勤勉尽责的情况，比如让自己案子很多，每个案子都草草了事，比如错过了上诉期限，又比如有更好的办法却嫌麻烦不给客户争取。有时候律师并不确定客户是否还愿意聘请自己，比如明明付了钱却很久不联系，客户或许可以采取新的行动。遇到这种题时及时联系客户询问意向总是更好的答案。有时候明明十万火急的事情律师却选择寄平信通知客户，或者重要的事情打电话给客户，客户的秘书说客户不在就把事情搁置了，这都属于不够勤勉尽职的情形。
Diligence and promptness do not mean that a lawyer must pursue every single opportunity advantageous to the client, nor do they mean 'supporting whatever the opposing party opposes and opposing whatever the opposing party supports.' A lawyer has professional discretion in determining the means by which a matter should be pursued, and may even agree to a reasonable extension of time as long as it does not prejudice the client's interests.
勤勉尽职不代表律师要争取每一个对客户有利的机会，也不代表“凡是对方反对的就要支持，凡是对方支持的就要反对”。律师在处理问题的方式上会有自主权，甚至律师可以在不损害客户利益的情况下合理延期。
The ABA also requires solo practitioners to prepare a plan in advance in the event of their death or disability, such as designating another competent lawyer to temporarily take over clients' files if such circumstances arise.
ABA还要求个人执业（solo practice）的律师必须要为自己失去行为能力或死亡时作出预先安排，比如制定另外一名胜任的律师在这种情况发生时暂时接手客户的案子。
失职和民事责任Malpractice and Civil Liability
Most MPRE questions test whether a lawyer has violated professional ethics, the consequence of which is professional discipline. Very few questions test whether a lawyer should bear civil liability. These are two distinct issues. The handling body for ethical violations is the disciplinary committee, the prosecuting party is the bar association or disciplinary counsel, and the focus of the case is whether the lawyer should be disciplined. The adjudicating body for civil liability is a civil court, the plaintiff is the injured client or a third party, and the focus of the case is whether the lawyer must pay damages. We apply basic contract and tort law to resolve issues of a lawyer's civil liability, utilizing theories such as breach of contract, intentional torts, negligence, and causation.
MPRE的题大多考的是律师有没有违反职业道德，其后果是被惩戒。极少的题会考律师要不要承担民事责任。这是两个不同的问题。违反职业道德行为的处理机构是惩戒委员会，原告是律师协会，案件的焦点是律师是否要被惩戒。民事责任的审理机构是民事法院，原告是受到损失的客户或第三方，案件的焦点是律师是否要进行赔偿。我们用朴素的合同法和侵权法解决律师的民事责任问题，其理论有违约、故意侵权、过失侵权、因果关系等。
Generally speaking, a lawyer's violation of professional ethics does not necessarily result in civil liability; conversely, a lawyer's ordinary negligence that causes loss to a client constitutes civil malpractice (negligence), even if it does not violate professional ethics.
通常来说，律师违反职业道德并不必然导致他要承担民事责任；反过来，律师一般的过失对客户造成了损失即使不违反职业道德，也属于民事上的过失侵权。
For example, a lawyer knows an alibi is false but still chooses to submit it to the court, resulting in the client's acquittal. The lawyer will obviously be disciplined, but the client has not suffered any loss and has instead benefited greatly from the lawyer's unethical conduct; therefore, there is no issue of civil liability. As can be seen, a violation of professional ethics is not itself a cause of action for the client, but it may be used in some civil lawsuits as evidence of the lawyer's breach of the standard of care.
律师明知一份不在场证明是虚假的，依然选择提交给法庭，客户因此脱罪。律师显然会被惩戒，但客户不仅没有受到损失，反而因为律师违反职业道德的行为受益匪浅，所以不会有民事责任的问题。可以看到，律师违反职业道德本身并不是客户的诉由，但可以在一些民事诉讼中用来证明律师有过失。
Suppose a lawyer fails to depose a certain witness, and that witness's testimony turns out to be crucial, ultimately leading to the client losing the case. We must look at whether a reasonably competent lawyer would have deposed the witness under the circumstances. If the lawyer argues that this was a litigation strategy, we must consider whether a reasonably competent lawyer would deem such a strategy valid. Of course, even if there is an issue of negligence here, it is hard to say that the lawyer violated professional ethics by deciding not to depose a particular witness based on their own judgment, as long as the lawyer did not lack diligence or competence.
律师没有对某个证人进行取证，结果该证人的证词非常关键，最终导致客户败诉。我们要看一个普通胜任的律师在这种情况下是否会对证人进行取证。如果律师辩称他使用的是诉讼策略，我们要看一个普通胜任的律师是否会认为这种诉讼策略有效。当然，这里即使有过失的问题，律师基于自己的判断不对某一个证人进行取证很难说违反了职业道德，只要律师没有不勤勉、不胜任等问题。
Finally, just as a lawyer is not exempt from discipline when their ethical violation benefits the client, a lawyer is also not exempt from discipline even if they promptly make the client whole for any losses.
最后，正如律师违反职业道德让客户受益不会被免于惩戒，律师及时弥补了客户的损失也不会被免于惩戒。
Purchasing malpractice insurance is a good way for lawyers to avoid bearing astronomical damages for negligence to clients, but the ABA does not mandate that lawyers carry such insurance. In fact, only a very few states require lawyers to carry malpractice insurance, and only a minority of states require lawyers to disclose to clients whether they are insured.
购买保险是律师避免因过失对客户承担天价赔偿的好办法，但ABA对律师购买保险并没有强制规定。事实上，只有极少数州要求律师必须购买保险，也只有少数州要求律师必须告诉客户自己是否投保。
诉讼活动 5-8题Litigation Activities (5-8 Questions)
禁滥用程序Meritorious Claims and Contentions
A lawyer must not bring frivolous lawsuits or proceedings.
律师不可以提出没有意义（frivolous）的诉讼或者程序。
If a client asks a lawyer to file a lawsuit based on a certain cause of action, and the lawyer knows that this cause of action has no legal basis, the lawyer should persuade the client to abandon it. If the client insists on proceeding, the lawyer must withdraw from the representation. Of course, a clever lawyer might be able to find other viable causes of action and persuade the client to adjust their litigation strategy.
如果客户要求律师提出基于某个诉由的诉讼，而律师知道这个诉由没有任何法律依据，律师应当说服客户放弃，如果客户执意要这么做，律师应当退出代理。当然，聪明的律师或许可以找到其他有胜算的诉由，并说服客户调整诉讼策略。
It is improper for a lawyer to initiate a proceeding knowing there is no legal basis, solely for the purpose of delay. However, a lawyer may challenge an express legal provision if there is a good faith, reasonable legal argument that the law is unconstitutional or violates higher law. Even if past precedents are unfavorable to the client, the lawyer may attempt to advocate for the client from other angles not discussed in those precedents.
律师明知道没有任何法定理由，只是为了拖延而提出一个程序，这是不合适的。但是，律师可以挑战明文的法律规定，如果有善意的、合理的法律依据认为该法律违宪或者违反上位法。即使过去的判例已经对客户不利，律师也可以尝试从判例没有讨论过的其他方面为客户争取。
The Supreme Court also frequently overrules its own past decisions. Therefore, even if the Supreme Court has settled a certain issue, it is not unchallengeable as long as the lawyer genuinely believes in good faith that the precedent is outdated.
最高法院也经常推翻自己过去的决定。所以，哪怕是最高法院对某个问题有定论，只要律师真心相信该判例已经过时，也并非不能挑战。
There is a difference between a frivolous case and a case that is bound to be lost. This is especially true for a criminal defense lawyer; even if they firmly believe the client will be convicted, they must exhaust all meaningful procedures to help the client avoid conviction. A defense lawyer's demand that the prosecutor prove every element of the crime beyond a reasonable doubt is absolutely not a frivolous request.
无意义的案件和必然会输的案子是有区别的。尤其是辩护律师，即使坚信客户会被定罪，也必须穷尽任何有意义的程序帮助客户脱罪。辩护律师要求检察官将每一种犯罪要素都举证到排除一切合理怀疑的程度绝对不是无意义的请求。
A lawyer must also make reasonable efforts to expedite litigation and may not maliciously delay proceedings purely for the client's financial benefit.
律师还应当加速（expedite）案件的审理，不可以纯粹为了客户的经济利益恶意拖延诉讼。
Suppose a lawyer knows the client is bound to lose, so the longer the delay, the later the judgment will be enforced against the client. If the lawyer repeatedly requests court continuances claiming scheduling conflicts, but the actual purpose is to delay the litigation, the lawyer will be disciplined—even if the delay serves the client's interests.
律师知道客户必然会败诉，所以越拖延客户就会越晚被执行。如果律师一次次以自己时间安排不开要求法庭延期，而实际上是为了拖延诉讼，律师会被惩戒——即使拖延符合客户的利益。
If a key witness favorable to the client is expected to be abroad at the time of trial, and the lawyer requests a one-week continuance from the court to allow this key witness to testify, this is a reasonable request.
如果预计开庭时一个对当事人有利的关键证人在国外，律师为了让这个关键证人出庭作证要求法院延期一周，这是合理的诉求。
Note, however, that a defendant in a criminal case has a constitutional right to decide whether to plead guilty or not guilty. If the defendant insists on pleading not guilty, the defense lawyer must comply and cannot unilaterally change it to a guilty plea.
但注意，刑事案件的被告人有宪法权利决定自己是无罪答辩还是有罪答辩。如果被告人坚持无罪辩护，辩护人必须听从，而不是擅自改成有罪答辩。
In a criminal case, the burden of proof lies with the prosecutor. Even if the lawyer feels the evidence is overwhelming and cannot find a single flaw, emphasizing to the jury that the prosecutor must prove guilt beyond a reasonable doubt is still an effective defense strategy. Among 12 jurors, someone might discover a reasonable doubt that even the lawyer failed to notice. The lawyer does not need to initiate frivolous procedures (e.g., a psychiatric evaluation) and cannot engage in passive defense (saying nothing at all). As long as the lawyer fulfills the not-guilty defense according to the client's wishes, it meets the requirements of professional ethics.
刑事案件举证的责任在检察官，律师哪怕觉得证据非常充足，找不出一丝瑕疵，跟陪审团强调检察官必须排除一切合理怀疑才能给被告人定罪也是一种有效辩护策略。12个陪审员，说不定能有人能发现律师也未能发现的合理怀疑。律师不必提出没有意义的程序（比如，精神鉴定），也不能消极辩护（一言不发）。只要按照客户的要求完成无罪辩护，就符合职业道德的要求。
对法庭诚实Candor to the Tribunal
A lawyer owes a duty of candor to the tribunal (including arbitration panels), which includes not knowingly misrepresenting facts or law, and promptly correcting material errors of fact or law previously made. Under MRPC 3.3(a)(2), a lawyer must disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.
律师对法庭（仲裁庭）有诚实的义务（duty of candor to the tribunal），这包括不得故意扭曲事实和法律，或者在发现事实或法律错误后及时更正。根据 MRPC 3.3(a)(2)，律师应当对法庭披露直接不利于己方且对方未披露的约束性判例或法律。
A lawyer must even disclose adverse precedent, including decisions from the same court and higher courts in the controlling jurisdiction. Of course, the lawyer may argue why the precedent does not apply to their client's case.
律师甚至应当披露对当事人不利的判例，包括该院和上级法院的判例。当然，律师可以指出判例为什么不适用于自己的客户。
A lawyer is not required to disclose precedent that is not binding on the court, such as decisions from courts in a neighboring state.
律师不必披露对该院没有约束力的判例，比如相邻州法院的判例。
If a lawyer knows their client is guilty, they cannot directly state to the jury that the client is innocent. However, they can move to exclude evidence adverse to the client and, in the absence of evidence, move for a directed verdict of acquittal without going to the jury. They may also argue to the jury that the prosecutor has failed to meet the burden of proof beyond a reasonable doubt.
律师如果明知当事人有罪，他不可以直接对陪审团说当事人无罪。当然，他可以要求法庭排除对客户不利的证据，并在没有任何证据时绕过陪审团直接申请无罪开释。他也可以对陪审团说检察官的举证责任没有达到合理怀疑的程度。
A lawyer is generally not required to volunteer facts adverse to their client, with the exception of ex parte proceedings. Another exception applies to prosecutors; a prosecutor's duty is to seek justice, not merely to convict, so they must disclose evidence favorable to the defendant to the defense.
律师不用主动披露对当事人不利的事实，但单方面（ex parte）的程序例外。还有一个例外是检察官，检察官的义务是维护正义而不是给被告人定罪，所以对被告人有利的证据也应当披露给对方。
When applying for a temporary restraining order in an ex parte proceeding where the opposing party is not present, a lawyer must disclose known facts that are adverse to their position. This requirement also applies to civil actions seeking a default judgment.
律师在申请临时禁制令（temporary restraining order）时，如果对方不在场，律师应当披露已知的、对自己不利的事实。这个要求同样适用于申请缺席判决（default judgement）的民事诉讼。
A lawyer must not offer evidence that the lawyer knows to be false. If a lawyer discovers that false evidence has been offered to the court, the lawyer must take reasonable remedial measures:
律师不得将明知是错误的证据提交给法院。如果律师在证据已经提交到法院后发现是虚假的，律师必须：
Between the duty of confidentiality and the duty of candor to the tribunal, the ABA considers the duty of candor to the tribunal to be paramount.
在保密义务与对法庭诚实的义务之间，ABA认为对法庭诚实的价值更高。
The lawyer's duty to inform the tribunal of false evidence concludes at the end of the proceeding. If the client informs the lawyer that they previously provided false materials after the case has concluded and the time for appeal has expired, the lawyer has no duty to disclose this to the tribunal.
律师告知法庭虚假证据的义务到案件结束时就终止了。如果案件结束、对方也没有上诉后当事人告诉律师之前提供了假材料，律师没有义务披露给法庭。
Not being required to volunteer adverse facts does not mean a lawyer may intentionally conceal them during lawful discovery by the opposing party.
不用主动披露对当事人不利的事实不代表律师可以在对方合法取证时蓄意隐瞒。
A lawyer shall not counsel or assist a client in conduct that obstructs justice, such as destroying evidence, bribing or threatening jurors, witnesses, or judges, or intentionally failing to comply with court orders.
律师不得协助或建议（shall not counsel or assist）客户破坏司法公正的行为，比如毁灭证据、贿赂或威胁陪审团、证人、法官，或者蓄意不遵守法庭命令等。
A lawyer may not unlawfully obstruct a witness's testimony, nor may they induce a witness to commit perjury.
律师不可以干扰证人合法作证，更不能引诱证人作伪证。
A lawyer may not pay a lay witness any compensation other than reimbursement for travel, loss of time, and lodging expenses. However, a lawyer may pay an expert witness a reasonable fee. Under no circumstances may a lawyer pay a witness a contingency fee (e.g., paying only if the case is won), as this creates a strong incentive for the witness to commit perjury.
律师不可以给一般证人除了交通、误工、住宿补贴以外的报酬，但可以给专家证人合理的报酬，无论如何，律师不可以给证人风险报酬，比如胜诉了才给钱，这样客户有很强的动机作伪证。
A lawyer may arrange a testimony rehearsal for a witness and may point out inconsistencies between Testimony A and Testimony B during the rehearsal. However, the lawyer may not instruct the witness to only state Testimony A and conceal Testimony B, nor may they tell the witness things the witness does not know and have them testify according to the lawyer's version.
律师可以给证人安排作证预演（rehearsal），也可以指出在预演过程中证词A和证词B的矛盾之处，但不可以要求证人只说证词A而隐瞒证词B，更不能将证人并不知道的事情告诉证人并让其按照律师的说法作证。
If a prosecutor applies to subpoena the defendant's psychiatrist to testify, the defense lawyer may invoke the psychotherapist-patient privilege to request the court to quash the subpoena or exclude the relevant testimony, but the lawyer may not encourage the psychiatrist to buy a plane ticket abroad to avoid being subpoenaed.
检察官申请传唤被告的心理医生作证，律师可以援引心理医生-客户特权要求法庭驳回检察官的申请，或者排除有关证词，但不得怂恿心理医生购买机票去国外以避免被传唤。
对对方公平Fairness to Opposing Party and Counsel
A lawyer also owes a duty of fairness to the opposing party and counsel, the primary aspect of which is the prohibition against concealing evidence.
律师还要公平对待对方的律师和当事人（duty of fairness to opposing party），主要内容是不得隐瞒证据。
Discovery is a crucial part of civil litigation, the essence of which is the ability to obtain desired evidence from the opposing party—this is also the biggest difference from Chinese civil procedure. During this process, a lawyer must not instruct the client to destroy, alter, or conceal evidence. A lawyer may argue within the legal framework that certain evidence is outside the scope of discovery, such as confidential information protected by attorney-client privilege, work product, or irrelevant material. However, these arguments must be legally justifiable and cannot be made merely to obstruct the opposing party's access to evidence.
披露证据是民事诉讼重要的一环，其精髓是可以从对方当事人处获得想要的证据，这也是和中国的民诉最大的不同。律师在这个过程中不得指示当事人销毁、篡改、隐瞒证据。律师可以在法律的框架下提出某个证据不在披露的范围内，比如属于律师-客户特权的保密内容，或者属于工作成果，或者与案件无关。但律师提出这些论点必须是站得住脚的，不能是仅仅为了阻挠对方取证。
A lawyer must not engage in chicanery at trial, which includes not alluding to personal experiences that have not been introduced as evidence, nor expressing their personal opinions.
律师不得在审判中诡计多端（chicanery at trial），这包括律师不应当引用没有被引入证据的个人经历，也不应当表达自己的个人观点。
"Accidentally" mentioning evidence that has already been excluded is very poor courtroom etiquette. Completely erasing the jury's prejudice would require a new trial, which imposes enormous costs on both parties and the court. A more common practice is for the judge to instruct the jury to disregard the lawyer's statement, but words spoken cannot be unsaid; regardless of the judge's instructions, prejudice has already been formed. This is why we often see lawyers using such tricks in legal dramas.
“不小心”提到某个已经被排除的证据是非常糟糕的法庭礼仪。完全抹去陪审团的偏见必须要重新组成新的审判，这给双方和法庭都带来巨大的成本。更常见的操作是法官指示陪审团忽略律师说的话，但说过的话就像泼出去的水，无论法官怎么指示，偏见都已经形成。这也是为什么我们经常在律政剧中看到律师使用这样的诡计。
A lawyer may argue "he is lying" or "he is innocent," but should not say "I do not believe what he says" or "I believe he is innocent," because these are the lawyer's personal opinions. A lawyer also should not say, "I happened to be on that street that night, and there were hardly any cars," unless they are testifying as a witness.
律师可以说“他在撒谎”“他是无罪的”，但不要说“我不相信他说的话”，或者“我相信他是无罪的”，因为这是律师个人的观点。律师也不应该说：“那天晚上我刚好在那条街上，根本就没什么车”，除非他是作为证人在作证。
A lawyer may not request a person other than a client to refrain from voluntarily giving relevant information to another party unless:
律师不可以让无关的第三方拒绝给对方提供信息，除非
A lawyer may threaten criminal charges to gain an advantage in a civil matter, provided that the criminal matter is closely related to the civil matter. A lawyer may not threaten to report someone to the bar association to gain an advantage. Furthermore, threats of physical violence, verbal abuse, and the like are prohibited.
律师可以威胁采取刑事措施以为了在民事诉讼中获得有利地位，但要求刑事措施必须与民事诉讼密切相关。律师不得以举报给律师协会作为威胁。此外武力威胁、辱骂等是禁止的。
In a civil lawsuit, a lawyer may inform the opposing party, "If you do not promptly reimburse the embezzled company funds, I will report the crime of embezzlement to the prosecutor." However, the lawyer cannot threaten to "report an indecent assault from two years ago," nor can they threaten to "report the opposing counsel to the bar association for assisting in perjury." Of course, if the opposing counsel has assisted in perjury, the lawyer may report it to the bar association at any time; they just cannot use it as leverage in the civil litigation.
律师可以在民事诉讼中告知对方当事人“如果不及时将挪用公司的钱补上，就会向检察官举报挪用公款罪”，但不能以“举报两年前的猥亵行为”作为威胁，也不能以“向律师协会举报对方律师协助伪证”作为威胁。当然，如果对方律师有协助伪证的行为，己方律师可以随时举报到律师协会，只是不能以此作为民事诉讼的筹码。
不当接触Improper Contact
A lawyer must not improperly contact judges or jurors.
律师不能不当接触法官、陪审员。
A lawyer must not communicate ex parte with a judge regarding the substance of a case. The proper approach is to have the opposing party present during oral communications, and to copy the opposing party on written communications.
律师不能和法官单方面（ex parte）沟通案情的实质内容。正确的做法是沟通的时候就要让对方在场，书面沟通要抄送对方。
Example: A lawyer emails a judge requesting sanctions against the opposing party and copies the opposing counsel. This is not an ex parte communication.
律师给法官发电子邮件要求惩戒对方当事人并抄送给了对方律师，这不是单方面沟通。
A lawyer should not communicate with jurors or prospective jurors, but may investigate their backgrounds.
律师不应该和陪审员、潜在的陪审团接触，但可以调查陪审员的背景。
Example: A lawyer may search for information about (prospective) jurors online, such as viewing their social media accounts. However, the lawyer must not "send a friend request," communicate with jurors or their family members, or even sit with them at a restaurant.
律师可以在网络上搜索（潜在）陪审员的信息，比如浏览陪审员的社交网络账号。但律师不能“发送好友请求”，不能和陪审员及其家人沟通，甚至不应该在餐馆坐在一起。
After the jury is discharged, a lawyer may contact jurors under limited circumstances, provided that:
陪审团解散后，律师可以在有限的情况下接触陪审员，但必须满足：
律师作证Lawyer as Witness
A lawyer generally must not act as an advocate at a trial in which the lawyer is likely to be a necessary witness. If the lawyer is a necessary witness, it is best not to represent the client in the case. However, there are the following exceptions:
律师通常不能在自己代理的法庭上作证，如果律师是必要的证人，他最好不要代理这个案子。但是有如下例外：
Example: Another lawyer in the same firm testifying is not restricted by this rule, but one must be mindful of other conflicts of interest. For instance, if the client's testimony conflicts with the testimony of the lawyer or another lawyer in the firm, it is obviously appropriate to withdraw from the case.
同一个律所的律师作证不受这个规则限制，但需要注意是否有其他利益冲突，比如客户的证词和律师或律所里的其他律师的证词有冲突，那显然退出这个案子才是合适的。
A judge, however, is absolutely prohibited from testifying as a witness at a trial over which the judge presides.
法官则绝对不能在自己主持的庭审中作证。
发表评论Trial Publicity
A lawyer must not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge or other legal officer.
律师不得恶意（故意或鲁莽）发表虚假的陈述，尤其是和司法官员的资格、品行相关的言论。
A lawyer should not make statements that have a substantial likelihood of materially prejudicing an adjudicative proceeding. A prosecutor should not make statements that have a substantial likelihood of heightening public condemnation of the accused, and should exercise reasonable care to prevent police from doing so.
律师不应该发表给庭审带来显著偏见的言论（materially prejudicing the case）。检察官不应该发表可能会增加被告人负面影响的言论（heightening public condemnation of the accused），也应当避免警察这么做。
Example: The following statements are likely to cause material prejudice: 1. The character, credibility, reputation, or criminal record of a party, suspect, or witness; 2. The identity of a witness; 3. The expected testimony of a party or witness; 4. The possibility of a plea of guilty; 5. The existence or contents of any confession, admission, or statement given by a defendant or suspect, or that person's refusal or failure to make a statement; 6. The performance or results of any examination or test, or the refusal or failure of a person to submit to an examination or test; 7. The physical evidence expected to be presented; 8. Any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration; 9. Information that the lawyer knows or reasonably should know is likely to be inadmissible as evidence and would create a substantial risk of prejudicing an impartial trial; 10. The fact that a defendant has been charged with a crime, unless there is included therein a statement explaining that the charge is merely an accusation and that the defendant is presumed innocent until and unless proven guilty.
下列言论是可能带来显著偏见的：1. 当事人、嫌疑人或证人的性格、可信度、声誉或犯罪记录；2. 证人的身份；3. 当事人或证人的预期证词；4. 达成认罪协议的可能性；5. 嫌疑人、被告人作出了供述，或拒绝作出供述，或供述的内容；6. 鉴定结果，或者当事人拒绝鉴定；7. 将要展示的物证；8. 关于嫌疑人、被告人有罪或无罪的意见，如果嫌疑人、被告人可能被判监禁以上刑罚的话；9. 任何可能或已经被排除的、会对当事人带来偏见的证据；10. 仅仅陈述被告人被指控某个罪名也有可能会带来偏见，除非同时声明直到法院定罪之前，任何人都是无辜的。
However, the following statements are generally permitted:
但以下言论通常是可以发表的：
In a criminal case, a lawyer may also state the following:
在刑事案件中，律师还可以公开以下内容：
Example: A defense attorney offers a $1 million reward for clues related to the case and the real culprit. Although the lawyer's posture makes the client look innocent, this is still permitted.
辩护人悬赏100万美金寻找案情有关的线索和真凶。虽然律师的姿态让客户看起来很无辜，但依然是允许的。
Example: A lawyer wants people who purchased a certain drug during a specific period to contact him to join a class action lawsuit, and informs the public that the drug may have issues. Such a notice is generally appropriate as long as it does not intentionally misrepresent material facts.
律师希望在某段时间购买某个药的人联系他加入集体诉讼，并告诉大家这个药有可能存在问题。这种通告只要不在重要事实上故意虚假陈述，通常是合适的。
与非客户的交流 1-4题Communication with Persons Other Than Clients (Questions 1-4)
诚实Truthfulness
A lawyer must always be truthful to clients, opposing parties, and third parties. Questions involving a lawyer's intentional deception almost certainly indicate an ethical violation. The only exception is puffery during negotiations.
律师对当事人、对方、第三方始终要保持诚实。看到律师故意欺骗的题目几乎一定违反职业道德。唯一的例外是在协商时虚张声势。
For example, a lawyer hired by a seller knows the house has a leaky roof but fails to disclose this material fact to the buyer. Although disclosure would lower the selling price for the client, non-disclosure may constitute fraud and violates professional ethics.
卖家聘请的律师明知道房屋漏水，却没有对买房披露这个重要事实。虽然披露会导致自己客户卖不起价，但不披露涉嫌欺诈，属于违反职业道德。
During settlement negotiations, a lawyer tells the opposing party that their client can pay a maximum of $100,000, and the opposing party agrees to the settlement. In fact, the lawyer's client could pay up to $1,000,000. Although the lawyer lied, this is considered puffery in settlement negotiations and does not violate professional ethics.
律师谈和解协议时跟对方说自己的客户最多只能出10万，对方同意了和解。事实上，律师的客户最多可以出到100万。虽然律师说了谎，但这是在和解协商中的虚张声势（puff），不违反职业道德。
During settlement negotiations, a lawyer suspects the opposing client's injuries are not severe. Knowing the opposing client is an avid racing enthusiast, the lawyer falsely claims to have a video of the opposing client participating in a race after the accident. This violates professional ethics. Puffery allows for posturing regarding estimates of value or willingness to settle, but a lawyer may not make false statements of material fact.
律师谈和解协议时猜想对方客户受伤并不严重，考虑到对方客户是个狂热的赛车爱好者，谎称自己有对方在事故发生后依然参加赛车比赛的视频。这违反了职业道德。虚张声势允许对某个事项的估值或者和解意愿进行拉扯，但不能对实质性的事实（material fact）进行虚假陈述。
与对方当事人沟通Communication with Opposing Parties
If the opposing party is represented by counsel, a lawyer may not communicate directly with that party. This means the opposing counsel must either be present or consent, or in extremely rare cases, a court order authorizes the communication. The opposing party's own consent to the communication is not sufficient.
如果对方当事人有律师代理的话，己方律师不可以直接和对方当事人沟通。也就是要么对方律师在场，要么对方律师同意，或者极为罕见的情况下，法院批准了这种沟通。对方当事人自己同意被沟通是不够的。
Therefore, even if the opposing party approaches the lawyer directly, it is not allowed. The lawyer must inform the party to communicate with their own counsel first and obtain consent before any substantive negotiations can begin.
所以哪怕对方当事人直接找上门来也不行，律师应当告知他预先和他自己的律师沟通并取得同意，才能开始实质性协商。
Where permitted by law, a lawyer may serve documents directly on the opposing party.
法律允许的情况下，可以直接向对方当事人送达文件。
However, a lawyer may encourage their own client to communicate directly with the opposing party; this does not violate professional ethics.
但律师可以怂恿自己的当事人直接和对方当事人沟通，这不违反职业道德。
If the opposing party is a corporate client, the no-contact rule does not apply to everyone associated with the matter. It only applies to: 1) persons who supervise, direct, or regularly consult with the organization's lawyer concerning the matter; 2) persons with authority to obligate the organization with respect to the matter; or 3) persons whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability. Former employees are generally not subject to this restriction.
如果对方当事人是企业客户，禁止沟通的原则并不适用于任何与事件相关的人。它仅适用于：1) 监督、指导或定期与企业律师就该事项进行咨询的人；2) 有权就该事项使企业承担义务的人；3) 其作为或不作为可能归咎于企业从而使企业承担民事或刑事责任的人。前员工通常不受此限。
Just as eating at McDonald's is not considered transacting with an opposing client, a lawyer suing McDonald's ordering food there is generally not considered direct communication with the opposing party—provided the purpose of ordering is not to investigate matters related to the litigation.
正如去麦当劳吃饭不算是和对方客户交易一样，起诉麦当劳的律师在麦当劳点餐通常也不算和对方当事人直接交流——如果点餐的目的不是为了调查和诉讼有关的事项的话。
If the opposing party is unrepresented, a lawyer may communicate with them but must not state or imply that the lawyer is disinterested—meaning the lawyer must make it clear that their interests are adverse. Furthermore, the lawyer should not give legal advice to the unrepresented person, as there is a clear conflict of interest.
如果对方当事人没有律师，己方律师可以和对方当事人沟通，但不能装作自己利益不相关——也就是必须要让对方知道来者不善。律师更不应该给对方当事人提供法律建议，因为有明显的利益冲突。
A lawyer contacts the opposing party and introduces themselves as an "Officer of the Court." While a lawyer is indeed an officer of the court, this statement is still inappropriate. Introducing oneself this way is clearly intended to mislead the party into believing the lawyer is a neutral figure, thereby lowering their guard. The most recommended practice is to inform the party that the lawyer is acting in the interest of their own client, which is likely adverse to the party's interest, and to advise the party to seek independent legal counsel.
律师接触对方当事人说自己是“法院的工作人员”（Officer of the Court），律师的确是法院的工作人员，但这句话依然是不合适的。律师如此介绍自己显然想让对方误以为自己是一个中立的角色，从而放下戒心。最推荐的做法是告诉对方自己是为了己方当事人的利益，这个利益很有可能与对方的利益相悖，并建议对方寻求独立的法律建议。
误发的邮件Inadvertently Sent Emails
A lawyer who receives an email that was clearly sent inadvertently must promptly notify the sender.
律师收到明显误发的邮件应当及时通知发送方。
Why not use a cake delivered to your door? Notification aside, the lawyer may still want to use it. Letting the court decide whether the inadvertently sent evidence can be used is the best approach to avoid violating both the duty of diligence and the rules of fairness. However, if this option is not available, the exam tends to favor the position that the evidence cannot be used directly.
送上来的蛋糕岂有不用的道理？通知归通知，该用还是要用，让法院决定误发的证据能否使用是既不违反勤勉尽职又不违反公平规则的最佳方法，但如果没有这个选项，考试时倾向于不能直接使用这个证据。
律师的不同角色 2-5题Different Roles of a Lawyer (2-5 Questions)
建议人Advisor
Clients are entitled to straightforward and honest advice, even if such advice involves facts and choices the client may be reluctant to face.
客户有权获得坦率、诚实的建议，即使这些建议涉及客户不愿面对的事实和选择。
A lawyer is not limited to giving legal advice; they may also provide moral, economic, social, and political advice.
律师并非只能给法律建议，也可以给道德、经济、社会、政治的建议。
A client receives a poor settlement offer. Although the lawyer believes the outcome of litigation would be better, they advise the client to accept the settlement to avoid a public judgment that could harm the client's business reputation. This does not violate professional ethics. Of course, the final decision on whether to accept the settlement must be made by the client.
客户拿到一个糟糕的和解协议，虽然律师认为诉讼的结果会更好，但他建议客户为了避免公开的判决影响商誉而接受这个和解协议。这不违反职业道德。当然，最终是否接受和解协议的决定必须由客户作出。
When providing non-legal advice, a lawyer is still subject to professional ethics rules, unless they make it clear from the outset that they are not advising in their capacity as a lawyer. Naturally, they must still adhere to general ethical standards required of lawyers, such as honesty, good faith, and law-abiding behavior.
律师给非法律建议的时候依然要受到职业道德的规范，除非他一开始就表明自己不是以一个律师的身份在给建议。当然，他依然要遵守诚实、善良、守法等律师需要遵守的一般道德。
Accountant A refers a client to Lawyer B, who is also an accountant. Lawyer B signs an accounting services contract with the client. In this situation, Lawyer B does not need to comply with the professional ethics rules regarding the sharing of legal fees; for example, they may pay Accountant A a referral fee. However, if Lawyer B advises the client to evade taxes, this constitutes dishonest and illegal conduct prohibited by legal professional ethics and is subject to discipline by the bar association.
甲会计将客户推荐给乙律师，乙律师同时也是会计，他和客户之间签订了会计服务合同。此时他不必遵守律师职业道德中关于分配律师费的规定，比如他可以给甲会计支付推荐费。但是如果他建议客户偷税漏税，这属于律师职业道德中禁止的不诚信和违法的行为，是可以被律师协会惩戒的。
A lawyer does not have to wait until asked to provide advice; when appropriate, a lawyer may volunteer advice. Of course, in exam questions, this must be strictly distinguished from the solicitation of business discussed later. Typically, if it involves an existing client, the tested issue may be that 'a lawyer may volunteer advice.'
律师并非只有在问起来的时候才能给建议，在合适的时候，律师也可以主动给建议。当然，这类题我们要严格和后文招揽业务的行为区分开来。通常，如果是老客户，考点或许在“律师可以主动提供建议”。
调查人Evaluator
A lawyer may, at the client's request, evaluate a matter affecting a client for the use of someone other than the client. In such cases, the lawyer's evaluation must be compatible with other aspects of the lawyer-client relationship, and the lawyer must disclose the findings truthfully, even if the truthful disclosure is adverse to the client. In this situation, the lawyer is impliedly authorized to disclose confidential information to carry out the evaluation. Therefore, the lawyer should inform the client from the outset about their duties to the third party to avoid any unrealistic expectations. In particular, if the lawyer reasonably believes that the evaluation is likely to affect the client's interests materially and adversely, the lawyer must obtain the client's informed consent before conducting the evaluation.
律师可以在自己客户的要求下，对客户的业务进行调查并披露给第三方。在这种情况下，律师调查的事项必须符合律师与客户之间关系的其他方面，且必须做到如实披露，即使如实披露对自己的客户不利。在这种情况下，律师还应当合理披露保密的内容。所以，律师应当一开始就告诉客户自己对第三人的义务，避免客户有不切实际的幻想，尤其是如果律师合理怀疑评估结果会对客户造成重大不利影响时，应当获得客户的知情同意（informed consent）后再开始评估。
A client intends to sell a parcel of land to a third party and asks their lawyer to issue a title report confirming there are no title defects. If the lawyer discovers a title defect, they must truthfully disclose this fact to the third party.
客户打算出售一块土地给第三人，并要求律师为这块土地没有权属瑕疵出具报告。如果律师发现权属有瑕疵，他必须如实将情况披露给第三人。
False disclosure often also involves criminal issues. When the duty of candor conflicts with the duty of confidentiality, it is best for the lawyer to withdraw from the representation. In securities cases, under the Sarbanes-Oxley Act (SOX), a securities lawyer who discovers a material violation must "report up the ladder." "Reporting out" to the SEC is permissive rather than mandatory, and is limited to specific circumstances (such as preventing substantial financial injury, preventing perjury, etc.).
虚假披露通常还涉嫌犯罪问题。诚实和保密义务相冲突时，律师最好退出案件。在证券案件中，根据SOX法案，证券律师在发现重大违规时必须“向上报告”（report up the ladder）。向SEC“向外报告”（report out）是允许的（permissive）而非强制的，且仅限于特定情况（如防止重大财务损失、防止伪证等）。
If the lawyer commits malpractice during the evaluation, the client or the third party may sue the lawyer for civil damages.
如果律师调查中出现失职，客户或者第三人可以对律师主张民事赔偿。
If the land has a defect that the lawyer should have discovered but failed to, the third party may claim damages against the lawyer. If the land clearly has no defect, but the lawyer mistakenly believes it does, the client may also claim damages against the lawyer for the loss of the sale.
如果土地有瑕疵，律师本应当发现却没有发现，第三方可以向律师主张损失。如果土地明明没有瑕疵，律师却误以为有瑕疵，客户没有卖出土地的损失也可以向律师主张。
谈判人Negotiator
A lawyer may engage in appropriate puffery during negotiations. Although a lawyer is not obligated to correct the opposing party's misunderstandings, they must not actively affirm such misunderstandings. In criminal cases, prosecutors have a duty to disclose material facts to the defense. While a lawyer generally has no affirmative duty to inform the opposing party of relevant facts, they must disclose material facts if necessary to avoid assisting a criminal or fraudulent act by a client.
律师可以在谈判时适当的虚张声势。律师虽然不必更正对方的误解，但也不能主动肯定对方的误解。在刑事案件中，检察官有义务披露给辩护人重要的事实。虽然律师通常没有主动告知对方相关事实的义务，但如果为了避免协助客户犯罪或欺诈，律师必须披露重大事实。
If the opposing party miscalculates their lost wages and your lawyer does not point it out, the settlement agreement remains valid. However, if your client (who is also a material witness) dies, and the lawyer conceals this fact and reaches a settlement, the settlement agreement will be invalidated. Similarly, if the prosecution's only evidence is destroyed, and the prosecutor conceals this fact but still reaches a plea agreement with the defendant, the plea agreement will also be invalidated.
如果对方将误工损失计算错误而己方律师没有提醒，和解协议依然有效。但如果己方当事人（同时也是重要证人）去世，律师隐瞒并达成了和解，和解协议会被作废。同理如果检方唯一的证据被毁，检察官隐瞒这个事实依然和被告人达成了认罪协议，认罪协议也会被作废。
裁判人Third-Party Neutral
A lawyer may serve as a mediator or arbitrator. When serving as an arbitrator, a lawyer must comply not only with legal ethics but also with the ethical rules for arbitrators, which includes ensuring that the parties do not mistakenly believe the arbitrator represents their interests.
律师可以担任调解员、仲裁员。在担任仲裁员时，律师不仅要遵守律师职业道德，同样还要遵守仲裁协员的道德，这包括不能让当事人误以为仲裁员代表他们的利益。
Just as a lawyer communicating with an unrepresented opposing party must make it clear that their interests are adverse, a lawyer serving as a mediator or arbitrator must inform unrepresented parties that they are acting as a neutral adjudicator to facilitate a resolution for both sides, rather than representing either party's interests. The lawyer must also ensure that both parties understand that, although they are a lawyer, neither party is their client; therefore, their communications are not protected by attorney-client privilege or the duty of confidentiality. On the contrary, a lawyer acting as a third-party neutral should avoid ex parte communications with either party.
正如律师和对方未被代理的当事人沟通时需要让对方知道自己的利益和对方相悖一样，律师如果作为调解员、仲裁员，需要让未被代理的当事人知道自己是维护双方的利益并居中裁判，而不是维护某一方的利益。律师还要让双方当事人知道自己虽然是律师，但双方都不是自己的客户，所以沟通不受到律师-客户特权或者保密义务的约束，恰恰相反，作为裁判人的律师应当避免和任何一方单独沟通。
Just as a former judge cannot represent a party in a matter they previously adjudicated, a lawyer who has served as a mediator or arbitrator in a matter cannot subsequently represent one of the parties in the same matter, unless all parties give informed consent, confirmed in writing. However, a partisan arbitrator is not subject to this restriction.
和法官辞职后不能又代理自己裁判过的案件一样，律师如果在某案中担任调解员、仲裁员，不能之后又担任其中一方的代理人，除非其他当事人都表示书面同意。但非中立的仲裁员（partisan arbitrator）不受此限。
If the arbitration tribunal's rules allow each party to select a partisan arbitrator, and the two partisan arbitrators then jointly select a chief arbitrator, the partisan arbitrator may continue to represent the party who selected them in the matter after the arbitration concludes.
如果仲裁庭的规定是双方当事人各选择一个非中立的仲裁员（partisan arbitrator），再由双方的仲裁员共同选择一名主仲裁员，那么非中立的仲裁员可以在仲裁结束后代表选中他的当事人继续参与该案件。
公诉人Prosecutor
Unlike in China, there is frequent personnel mobility among prosecutors (e.g., State's Attorneys, District Attorneys), lawyers, and judges in the United States. Both lawyers and prosecutors must first pass the bar exam; the only difference is whether they are employed by a law firm or the government. It is commonplace for lawyers to jump between government and private practice. Eventually, the most outstanding among them may be appointed or elected as judges, and judges also frequently resign to return to practice as lawyers.
和中国不一样的是，美国的检察官（prosecutor, State’s Attorney, District Attorney）、律师、法官之间的人员流动非常频繁，律师和检察官都要先通过司法考试，区别只是被律所还是被政府雇佣而已，律师在政府和律所之间跳槽是司空见惯的。最后，他们中的优秀者会被遴选或选举成为法官，法官也经常辞职当回律师。
In addition to complying with the general ethical rules for lawyers, the core testable concept is that a prosecutor's duty is to seek justice, not merely to convict. Therefore, during the prosecution stage, if a prosecutor discovers evidence that tends to negate the guilt of the accused or mitigates the offense, they must disclose it to the defense. After a conviction, if a prosecutor discovers new, credible evidence creating a reasonable likelihood that a convicted defendant did not commit the offense, they must disclose this evidence to the appropriate court or authority. If the conviction was obtained in the prosecutor's jurisdiction, they must also disclose it to the defendant and the defense counsel. Furthermore, for defendants within their jurisdiction, if there is clear and convincing evidence establishing that the defendant did not commit the offense, the prosecutor must seek to remedy the conviction.
检察官除了要遵守一般律师的职业道德，考点的核心在于检察官的职责是维护正义，而不是给被告人定罪。所以，在起诉阶段，检察官如果发现了被告人无罪、罪轻的证据，必须披露给辩护人。被定罪之后，如果检察官发现新的可以证明被告人无辜的证据，必须向有关机构披露这些证据。如果是在检察官的辖区内被定罪的，还必须向被告人、辩护人披露。不仅如此，对辖区内的被告人，如果这些证明无辜的证据清晰可信（clear and convincing evidence），检察官必须设法撤销定罪。
Conversely, a defense attorney's duty is to zealously defend the accused and seek their acquittal, rather than to "seek justice" in the same sense as a prosecutor.
但反过来，辩护人的职责就是给被告人脱罪，而不是维护正义。
In addition to upholding substantive fairness, prosecutors must also ensure certain procedural fairness. This includes:
除了要维护实质公平，检察官还需要保证一定的程序公平。这包括：
A prosecutor believes there is no probable cause for a case but believes that more evidence will be discovered after filing charges to establish probable cause. If the prosecutor proceeds to charge the defendant anyway, this violates prosecutorial ethics.
检察官认为一个案子并没有相当的理由，但他相信起诉后可以发现更多的证据以构成相当的理由，于是他还是起诉了被告，这违反检察官职业道德。
If a prosecutor negotiates a plea agreement and sentence directly with the defendant in the absence of defense counsel, or asks the defendant to cooperate with the investigation before their counsel arrives, this violates the general ethical rule for lawyers: prohibiting direct communication with a represented party without their lawyer present. It also violates prosecutorial ethics: a prosecutor must not seek to obtain a waiver of constitutionally protected rights, such as the right to remain silent, from an unrepresented accused.
趁辩护人不在，检察官单独和被告商量认罪协议和刑期，或者在辩护人来之前要求被告配合调查，这违反了一般律师的职业道德：禁止在律师不在场时和对方当事人直接沟通。这还违反了检察官的职业道德：不应该让被告放弃宪法保护的沉默权。
妥善保管资金和财产 1-4题Safekeeping Funds and Property (1-4 Questions)
信托账户Trust Accounts
The client trust account is a system quite different from that in China. A lawyer must keep unearned legal fees and other funds deposited by the client separate in a lawyer trust account. Unless a specific sum has been confirmed as earned by the lawyer, it must absolutely not be commingled, nor can client funds be withdrawn from the trust account for the use of the lawyer or the law firm.
客户信托账户（client trust account）是和中国十分不同的制度。律师必须将客户没有用完的律师费，包括客户存放在律师处的其他资金分开存放在律师信托账户中，除非某笔款项已经确认归律师所得，否则绝对不可以混到一起，更不能从信托账户中提取客户的资金供律师、律所使用。
In the United States, it is said that the fastest way to get disbarred is to misappropriate client trust funds.
在美国，传说中被吊销律师执照（disbar）最快的方式就是挪用客户的信托资金。
The only exception where commingling is permitted is that a lawyer may deposit their own funds into a client trust account for the sole purpose of paying or avoiding small bank service charges on that account.
唯一可以混到一起的情况是律师可以将自己的钱存在客户信托账户中以支付或避免小额账户管理费。
If a client pays $5,000 in advance for court costs, the lawyer must place this money in the client trust account. When court costs are incurred, the lawyer can transfer funds or write a check directly from this account to the court. If there are remaining funds at the end of the litigation, the lawyer should refund them to the client directly via transfer or check. For exam purposes, the money here can and only can be used for these specific purposes. No matter how difficult or urgent the lawyer's situation is, they cannot take or borrow money from it, not even for an overnight loan.
客户预先将5000美金的法院费用支付给律师，律师必须将这笔钱放在客户信托账户中。当法院产生费用时，律师可以直接从这个账户中转账或者写支票给法院。诉讼结束时如果还有剩余的费用，律师应当直接从中转账或者写支票退给客户。在做题时，这里的钱能且仅能用作这两种用途，无论律师遇到多么困难或紧急的情况，都不可以从中拿钱、借钱，哪怕只是隔夜拆借。
Depositing and then withdrawing is also prohibited. If a lawyer receives $5,000 repaid by a friend late at night, worries it is unsafe at home, has no other bank cards on hand, deposits it into the client trust account, and withdraws it the next day, this constitutes commingling personal funds with client funds and violates professional ethics.
先存后取也不行，律师深夜收到了朋友还的5000美金，担心放在家里不安全，手头又没有别的银行卡，于是先存到了客户信托账户，第二天取了出来。这是把私人资金和客户资金混在一起，违反职业道德。
However, if the client funds are only $1,000, and the bank charges a monthly account maintenance fee of $19.99 for accounts under $6,000, the lawyer may deposit $50 to cover the monthly maintenance fees.
但如果客户资金只有1000美金，而银行规定少于6000美金的账户会收取每个月19.99美金的账户管理费，律师可以存入50美金用于支付每个月的管理费。
For large amounts of client funds, the lawyer should open a separate interest-bearing account for the client, and the interest generated belongs to the client. For general clients, their legal fees are usually pooled by the law firm into a single account. Although the combined interest may be substantial, it is uneconomical to refund the interest to each client individually. In this case, the interest should be donated to charitable organizations as prescribed by state law.
对于客户大额的钱，律师应当单独为客户开一个有利息的账户，产生的利息归客户。对于一般的客户，他们的律师费通常被律所汇集在一个账户，虽然加在一起的利息可能数额巨大，但如果将利息分别退给每个客户是不经济的。此时应当将利息捐赠给州法规定的慈善机构。
Every state has established an Interest On Lawyer Trust Account (“IOLTA”) program and requires that the interest generated in lawyer trust accounts be donated to the state to pay legal fees for those in need. In 2001, Washington State collected over $200 million from this program. The Supreme Court held that this does not constitute a taking under the Fifth Amendment [Brown v. Legal Foundation of Washington, 538 U.S. 216 (2003)].
每个州都设立了Interest On Lawyer Trust Account (“IOLTA”) 项目并规定律师信托账户中产生的利息应当捐赠给州并用来给需要的人支付律师费。2001年，华盛顿州从这个项目中收取的费用超过2亿美金。最高法院认为这并不构成第五修正案的征收[Brown v. Legal Foundation of Washington, 538 U.S. 216 (2003)]。
Disputed assets should be held until the dispute is resolved before being disposed of, which includes disputes involving third parties. However, claims unrelated to the client funds are not included—and the lawyer cannot act as an adjudicator of the dispute.
有争议的资产应当等到争议解决之后再行处置，这包括第三方的争议。但和客户资金无关的债权不在此列——律师也不能自行充当争议的裁判者。
A client pays $9,000 in advance, and the lawyer's final bill is $6,000. The client disputes $3,000 of the bill. The lawyer may transfer $3,000 to their own account or the firm's account, and the disputed $3,000 must be handled after the dispute is resolved. However, the lawyer must immediately refund the remaining $3,000 and cannot withhold the undisputed $3,000 as leverage for negotiation.
客户预先支付了9000美金，律师最后的账单是6000美金。客户对其中的3000美金有异议。律师可以将3000美金划到自己账户/律所账户，有争议的3000美金在争议解决后再处置。但律师必须立刻退回剩下的3000美金，不能将没有争议的3000美金留置作为谈判的筹码。
We learned about 'endorsement' in negotiable instruments law, but in practice, few people have actually done it. In the United States, endorsing a check is a common practice. After the losing party writes a check to the lawyer, the lawyer can directly endorse the check and hand it over to the client, allowing the client to deposit it into their own account. However, an endorsement can only transfer the entire amount of the check, not a portion of it. In a contingency fee arrangement, if the client deposits the check, the lawyer would then have to ask the client for payment, causing extra trouble for the lawyer. Therefore, depositing the check into the trust account, deducting the legal fees, and transferring the remaining funds to the client is a more advantageous method for the lawyer, as the lawyer can directly withdraw the agreed-upon legal fees from the trust account.
我们在票据法中学过“背书”，但实际上很少有人操作过。在美国，支票的背书是常见的操作，败诉方写支票给律师后，律师可以直接把支票背书后转交给客户，这样客户就可以存入自己的账户了。但支票的背书只能转让支票的全部金额，不能转让一部分。如果是风险代理，客户存好支票后律师还得找客户要钱，给律师带来额外的麻烦。所以存入信托账户、将律师费扣除后剩下的钱转给客户是对律师比较有利的方法，律师可以直接从信托账户取出约定的律师费。
After the losing party's $10,000 is deposited into the lawyer's account, a third-party creditor writes to the lawyer, providing ample evidence that the client owes them $10,000, and demands that the lawyer transfer the $10,000 directly to the creditor. The lawyer should ignore this letter; the lawyer is not an adjudicator between the third-party creditor and the client, and the third-party claim should be resolved through other channels. However, if the third party has established a statutory lien, a court attachment, or holds a letter of protection signed by the client regarding these funds, the lawyer must wait until the court issues a judgment or the dispute is resolved before disposing of the funds.
败诉方的1万美金打到律师账户后，第三方债权人给律师写信并提供了充足的证据证明客户欠他1万美金，并要求律师将1万美金直接打给债权人。律师应当对这封信置之不理，律师不是第三方债权人和客户之间的裁判者，第三方债权应当另寻渠道解决。但是，如果第三方在这笔钱上设立了法定留置权、法院抵押，或者有客户签署的保函（letter of protection），律师就应当等到法院判决下来之后再行处置。
Sometimes the client and the lawyer have a joint interest in a sum of money. The lawyer must still place these funds in the client trust account and may only withdraw their portion once the respective ownership of the lawyer and the client becomes clear.
有时候客户和律师对一笔资金有共同的利益，律师依然应当将这笔钱放置在客户信托账户，待律师和客户各自的权属清晰后可以取出自己的部分。
账目和其他财产Accounts and Other Property
A lawyer must keep clear records, promptly notify the client of incurred fees, and retain these records for five years after the termination of the representation.
律师应当记录清晰的账目，并将产生的费用及时通知给客户，并在案件结束后还要保留5年。
A lawyer must appropriately safeguard other property of clients and third parties. Upon request, the lawyer must promptly render a full accounting. When receiving property in which a client or third person has an interest, the lawyer must promptly notify them.
律师应当妥善保管客户和第三方的其他资产。在他们要求时，律师应当及时提供账目明细（full accounting）。当律师收到所有权归客户或第三方的财产时，也必须立即通知他们。
The ABA provides that securities must be kept in a safe deposit box at a safe deposit institution (usually a bank).
ABA规定，证券（securities）必须保管在的保险箱租赁机构（通常是银行）的保险箱中（safe deposit box）。
For other property, an office safe may also be considered a proper place for safekeeping.
对于其他财产，办公室的保险箱也可以认为是妥善的保管地。
市场和商业 2-5题Marketing and Commercial Speech (2-5 Questions)
广告Advertising
The Constitution guarantees a lawyer's right to advertise, but advertisements must not contain false or misleading content, must not create unjustified expectations, and must not imply that the client should take action when no action is needed.
宪法保障律师打广告的权利，但广告不应该有虚假、误导内容，不应该让客户有不合理的期待，也不应该在客户什么也不需要做的时候暗示客户采取行动。
If a lawyer has never appeared in court, their advertisement should not feature scenes of them arguing vigorously in a courtroom.
一个律师从来没有出过庭，那么他的广告就不应该有出现在法庭上据理力争的画面。
A lawyer advertises "All consultations are $50," but when the client arrives, they find that the $50 fee only applies to a few very rare and simple cases. This is a misleading advertisement.
律师广告说“咨询费一律50美金”，结果客户去了发现50美金的咨询费只适用于几种非常少见的简单案件，这是误导性质的广告。
A lawyer advertises that the average settlement for their last three traffic cases was $1 million, but in reality, these three cases were highly unusual, and typical traffic case settlements are under $100,000. Although the lawyer's statement is true, clients might mistakenly believe that all traffic case settlements are this high. This constitutes misleading advertising or creates unjustified expectations.
律师宣传自己最近三个交通案子平均和解金为100万美金，但其实这三个案子都非常罕见，一般的交通案件和解金不到10万美金。虽然律师说的都是真的，但客户可能会误以为交通案件的和解金都是这么多，这属于误导或者让客户产生不合理的期待。
A lawyer's advertisement must include contact information (such as a website, phone number, email, or office address) and the name of at least one lawyer, so that a specific person responsible for the advertisement can be identified.
律师的广告必须要有联系信息（如网址、电话、邮箱或办公地址）和至少一个律师的名字，这样才能找到对广告负责的具体的人。
A lawyer may quote a client's praise in an advertisement, but must obtain the client's prior consent.
律师可以在广告中引用客户对他的赞美，但必须预先取得客户同意。
Lawyers generally cannot share legal fees with nonlawyers, but advertising is an exception; this includes paying for design, editing, and filming costs to prepare the advertisement. In addition, a lawyer may pay the usual charges of a legal service plan or a regular lawyer referral service.
律师通常不能和非律师分享律师费，但广告是例外的，这包括为准备广告支付的设计、剪辑、拍摄等费用。此外律师也可以为常规的律师推荐服务和套餐付费。
A lawyer cannot agree to pay a doctor for referring clients, but may pay a local directory website (like the Yellow Pages) so their name can be searched, and may also purchase legal plans like Chinalawinfo.
律师不能和医生约定推荐客户并给医生支付费用，但可以给当地的生活服务目录网页（yellow page）支付费用让自己的名字能够被大家搜到，也可以购买诸如北大法宝这样的法律套餐。
A lawyer may also enter into a mutually beneficial arrangement with a doctor (the lawyer refers clients to the doctor, and the doctor refers clients to the lawyer), but such an arrangement must not involve compensation, must not be exclusive, must not be permanent, and the client must be informed of the existence and nature of the referral agreement.
律师也可以和医生作出互利互惠的安排（律师给医生推荐客户、医生给律师推荐客户），但这种安排必须是无偿的、非排他的、非永久的，且必须向客户披露该推荐协议的存在和性质。
A lawyer may state their fields of practice, but if a lawyer advertises that they are a certified specialist in a field, they must actually be certified as a specialist by an organization approved by the ABA or the state bar association, and the name of the certifying organization must be clearly identified in the advertisement. If a lawyer is admitted to engage in patent practice before the United States Patent and Trademark Office, they may use the designation "Patent Attorney"; if they frequently handle admiralty cases, they may use the designation "Proctor in Admiralty".
律师可以表明自己的执业领域，但是如果律师宣传自己是该领域的认证专家，他必须的确被ABA或者州律协认可的机构认证为该领域的专家，而且要在广告中注明被认证的机构。律师如果被允许在联邦专利和商标局执业，他可以宣称自己是专利律师（patent attorney），如果经常做海事案子，也可以宣传自己是海事律师（Proctor in Admiralty）。
A lawyer may state that they practice immigration law, but if they want to claim to be a "certified specialist" in immigration law, they must actually be certified by an immigration law organization approved by the ABA or the state, and must identify the certifying organization.
律师可以说自己专注于移民法（practice immigration law），但如果他要说自己是移民法认证专家（certified specialist），他必须真的被ABA或者州认可的移民法机构认证为专家，而且要注明认证机构。
招揽Solicitation
Unlike advertising, solicitation is generally prohibited, and doing so through employees, agents, or partners is also prohibited. Solicitation is an offer to provide legal services directed to a specific person through live, person-to-person contact for pecuniary gain.
和广告不同，招揽业务是被原则上禁止的，也禁止通过员工、代理或者合作伙伴这么做。招揽是为了金钱利益进行的实时、面对面（live person-to-person contact）对特定的人（specific person）提供法律服务的要约。
Lawyers in China might solicit traffic accident clients in orthopedic wards, solicit visitation clients at the gates of detention centers, or solicit various clients at courthouse entrances: in the United States, all of these are prohibited.
中国的律师可以在骨科病房招揽交通事故的客户，可以在看守所门口招揽律师探视的客户，可以在法院门口招揽各种客户：在美国这都是被禁止的。
Debt relief is a common business in the US, where debt relief specialists negotiate with clients' creditors to forgive as much debt as possible; otherwise, if the client files for personal bankruptcy, the creditors will get nothing. A debt relief specialist and a lawyer sign a reciprocal referral agreement: the specialist refers clients needing legal services to the lawyer, and the lawyer refers clients in deep debt crises to the specialist. This is originally an ethical, mutually beneficial arrangement. However, if the debt relief specialist solicits business through door-to-door or telemarketing methods, the nature changes; the lawyer is then suspected of soliciting clients through an agent, which is prohibited by professional ethics.
消债是美国常见的一种业务，消债专家与客户的债权人协商尽可能地免除各种债务，否则客户申请个人破产债权人将拿不到一分钱。消债专家和律师签订互相推荐客户的协议，消债专家将需要法律服务的客户推荐给律师，律师将深陷债务危机的客户推荐给消债专家。这本来是符合职业道德的互利互惠的安排。但是如果消债专家通过上门或电话推销的方式招揽业务，性质就变了，此时律师涉嫌通过代理招揽客户，这是被职业道德禁止的。
However, remember the exceptions to the solicitation rule, which include:
但要记得招揽原则的例外，包括：
After Attorney Li was framed by the police for perjury, it caused a nationwide sensation, and lawyers from all over contacted his family hoping to serve as his defense attorney for free. As long as they could become Attorney Li's defense attorney, they would not have to worry about lacking criminal cases in the future. These lawyers are not soliciting with the hope that Attorney Li will eventually become a paying client, so the solicitation is ethical.
李律师被警察诬陷伪证罪后引起了全美轰动，各地的律师纷纷联系他的家属希望免费担任辩护人。只要能成为李律师的辩护人，后续就不愁没有刑事案件了。这些律师并不是以招揽的方式希望李律师最终成为他们的付费客户，招揽就是合乎职业道德的。
A lawyer drafted a will for A. Three years later, the state amended its trust law, and disposing of the estate through a trust could save a significant amount of taxes. The lawyer may call A to ask if they want to dispose of the estate using a trust.
律师为甲撰写了遗嘱，3年后该州修改了信托法，用信托处分遗产可以节省一大笔税，律师可以致电甲询问是否需要用信托的方式处分遗产。
Of course, solicitations directed to the persons meeting the criteria in item 3 above, or responses to a client's inquiry, do not need to be labeled as advertising material.
当然，对满足上述第3条的人员进行招揽，或者是对客户提出问题的回复不用标注广告材料。
An insurance company solicits business from a group of accountants: as long as they pay a certain monthly fee, whenever a client sues an accountant for negligence, the insurance company will hire a lawyer to represent them. Now, Attorney A wants to become a cooperating lawyer for this insurance company, representing accountants who are actually sued. Attorney A does not personally participate in the solicitation, does not control the insurance company, and the people solicited are merely protecting against future legal disputes, not being solicited because they have already been sued by clients. Therefore, Attorney A's cooperation with the company does not violate professional ethics.
某保险公司对一群会计招揽业务：只要每个月支付一定的费用，每当客户起诉会计过失时，由保险公司请律师进行代理。现在，甲律师希望成为该保险公司的合作律师，代理实际上被起诉的会计的案件。甲律师本人不参与招揽、没有控制这家保险公司、被招揽的人只是防止未来的法律纠纷，并非已经被客户起诉了才被招揽的。那么甲律师与该公司合作不违反职业道德。
律所形式Forms of Law Firms
Lawyers must bear unlimited liability for their own malpractice. The business form that offers the most protection for lawyers is the Limited Liability Partnership (LLP); under this structure, lawyers who are not at fault do not bear unlimited liability.
律师必须为自己的执业过失承担无限责任。最保护律师的商业形式是有限合伙（Limited Liability Partnership），在这种制度下，没有过失的律师不承担无限责任。
Law firms are usually named after senior partners, but they can also use trade names. A law firm's name must not be misleading and must not imply a connection with a government agency or a public or charitable legal services organization. The names of retired or deceased partners may be retained, but the name of a lawyer who takes a long-term leave of absence to hold public office cannot.
律所通常以高级合伙人的名字命名，但也可以用商标命名。律所的名称不能具有误导性，不能暗示与政府或慈善法律服务机构有关联。已经退休或者去世的合伙人名字可以保留，但长期脱产转做公职的律师不行。
Zhang San, Li Si, Wang Wu, and Wang Liu partnered to open the 'Zhang Li Wang Wang' law firm. After Zhang San retires or passes away, they can continue to use this name. If Li Si later becomes a prosecutor, they must remove Li's name, for example, renaming it to 'Zhang Wang Wang' law firm. When Li Si returns, they can add Li's name back. They cannot call it 'Zhang Li Wang Zhao' law firm if none of the partners is surnamed Zhao. Conversely, lawyer Zhang Si, who is not a partner, cannot imply that he is a partner, even if he shares a surname with one of the partners.
张三、李四、王五和王六合伙开了“张李王王”律师事务所，张三退休或去世后，他们可以继续用这个名字，李四后来成为了检察官，他们必须把李的名字去掉，比如叫“张王王”律师事务所，等李四回来后可以再把李加上。他们不能叫“张李王赵”律师事务所，如果合伙人中没有任何人姓赵的话，反过来，不是合伙人张四律师就不能暗示自己是合伙人，即使他和其中一名合伙人同姓。
A law firm can also operate without using any lawyer's name, such as 'New Generation Law Firm,' but it cannot be called 'New York State Law Firm.' The top 10 law firms globally by revenue are, without exception, named after their (former) partner(s).
律所也可以不用任何律师的名字，就叫“新生代律师事务所”，但不能叫“纽约州立律师事务所”。全球收入前10的律所无一例外都是以（前）合伙人（们）的名字命名的。
Zhang San and Li Si share an office but actually practice independently. They must not imply to the public that they are a partnership.
张三和李四共享一个办公室，实际上分别独立执业。他们不能对外暗示是一个合伙律所。
Interstate and international law firms can advertise uniformly, such as by using the same letterhead. However, if a specific office address appears on the letterhead, all lawyers listed on that letterhead must be licensed to practice at that location, or at the very least, those who are not licensed to practice there must be clearly indicated.
跨州、跨国律所可以统一宣传，比如用相同的抬头纸。但如果抬头纸上出现了某个办公室的地址，那抬头纸上的律师都必须是在这个地址可以执业的律师，至少不能执业的律师要清晰标注。
In the 'Zhang Li Wang Wang' law firm, Zhang San is only licensed to practice in New York, while the others are licensed in California. If they want to use letterhead with a California office address, they must either list only the names of Li Si, Wang Wu, or Wang Liu, or if Zhang San's name is included, it must clearly state that Zhang San is only licensed to practice in New York. Of course, if only the firm name 'Zhang Li Wang Wang Law Firm' appears without any individual lawyers' names, it is not as complicated.
“张李王王律师事务所”中的张三只能在纽约州执业，其他人都可以在加州执业，如果他们要用有加州办公室地址的抬头纸，要么只出现李四、王五或者王六的名字，如果要出现张三的名字，必须清晰指出张三只能在纽约州执业。当然，如果只出现“张李王王律师事务所”，而没有任何律师的名字，就不用这么麻烦。
A lawyer may sell a law practice and cease practicing in a certain geographic area, a specific field of practice, or cease practicing entirely. Clients have the right to be notified, retrieve their files, and retain other counsel. If a client consents to the new lawyer taking over, the attorney's fees cannot be increased. If a client does not respond within 90 days, they are presumed to have consented to the new lawyer taking over their matters.
律师可以出售律所，并停止在某一地区、某一领域执业，或者完全停止执业。客户有权得到通知、取回材料、更换律师。如果客户同意新的律师接手，律师费不得增加。如果客户在90天之内不表态，视为同意新的律师接手自己的业务。
法官的行为 1-4题Judicial Conduct (Questions 1-4)
正直的品格Integrity and Character
The chapter on judges is rather tedious and detailed, but it is actually not tested very heavily. If you feel the return on investment is low, you can just memorize the most important points and keep a general impression of the rest. Judges must comply with the law and the Code of Judicial Conduct (CJC).
法官这一章过于琐碎枯燥，但实际上并不怎么考察，如果你觉得性价比不高，可以只记忆最重要的知识点，其他的留个印象即可。法官需要遵守法律和司法行为准则（Code of Judicial Conduct）。
The character requirements for judges are higher than those for ordinary lawyers; judges should not engage in any conduct that undermines public confidence in the judiciary. An ordinary lawyer might not be disciplined for behavior or even crimes unrelated to honesty, but a judge can be. The standard is whether the judge's conduct creates an 'appearance of impropriety.'
对法官品格的要求比对一般的律师更高，法官不应该有任何有损司法公信力的行为。一般的律师或许不会因为和诚信无关的举止甚至犯罪而被惩戒，但法官可以。判断的标准是法官是否不应该以这样的姿态出现在公众面前（appearance of impropriety）。
If a judge drives drunk and runs a red light, even though this has nothing to do with honesty or the performance of judicial duties, they may still be disciplined.
法官酒驾并闯了红灯，虽然这跟诚信和履行法官的职责没有任何关系，但依然可能被惩戒。
If a judge uses court letterhead for personal debt collection, the judge will be disciplined.
法官用法院抬头纸用于私人催债，法官会被惩戒。
A judge must perform judicial duties impartially, competently, and diligently. A judge's judicial duties take precedence over all other activities.
法官必须公正、胜任和勤勉地履行司法职责。法官的司法职责优先于其它一切活动。
A judge must hear and decide any cases assigned to them, unless disqualification is required. A judge must also maintain competence, but this differs from a lawyer's competence; because a judge cannot choose which cases to hear, they only need to conduct sufficient research and give adequate consideration to the case before making a decision to meet the standard of competence. A judge also needs to work with other judges to maintain the normal operation of the court, which includes administrative matters. A judge must put court matters first and insist on handling cases impartially. A judge must ensure that the parties' claims are heard and avoid any bias or improper influence.
法官必须审理任何分给他的案子并作出决定，除非是应当回避的案件。法官同样要维持胜任，但和律师的胜任不同，因为法官不能决定自己审理什么样的案子，所以他只需要在作出决定之前对案件进行足够的研究和充分的考量就达到胜任的标准。法官还需要和其他法官一道维护法院正常运作，这包括一些行政事项。法官要将法院的事情放在第一位，并坚持秉公办案。法官要保证当事人的诉求被听到，并避免任何偏见和不当影响。
A judge shall not accept any gifts, loans, bequests, or other things of value if acceptance would lead a reasonable person to question the judge's independence, integrity, or impartiality.
如果接受礼物、借款、遗赠其他有价值的物品会使得一个合理的人怀疑法官的独立性、正直性或公正性，那么法官不得接受这些礼物。
法官的言论Statements by Judges
A judge should not make statements that might affect the outcome of a case, impair fairness, or interfere with a trial, and a judge should require court staff to observe the same standard. However, a judge may make the following statements:
法官不应该发表可能影响案件结果、损害公平或干扰庭审的言论，法官应当约束法院的其他工作人员遵守同样的标准。但法官可以发表下列言论：
审理案件Adjudicating Cases
A judge must avoid ex parte communications with a party. As mentioned earlier, lawyers should not communicate with a judge ex parte, but there are the following exceptions:
法官要避免和一方当事人单方面接触（ex parte communications）。参考前文律师不应当和法官单独接触，但有以下例外：
A judge may discuss a case with other judges within the court, but must avoid receiving factual information related to the case from them. More generally, a judge may only obtain facts from the parties and should not independently investigate facts.
法官可以和院内的其他法官讨论案情，但要避免从其他法官处获得和案件相关的事实。更一般地，法官只能从双方当事人处获得事实，而不应该自行取证。
If both lawyers' examinations of a witness are very perfunctory, can the judge ask the witness questions themselves? A judge may question a witness to clarify facts, but must remain neutral and cannot act as an advocate for either party in place of the lawyer. If the witness has already left, the judge absolutely cannot question the witness privately after the hearing.
双方律师对证人的盘问都非常敷衍，法官能不能自己来问证人一些问题？法官可以为了澄清事实而询问证人，但必须保持中立，不能代替律师成为一方的辩护人。如果证人已经离开，法官绝对不可以庭后单独去询问证人。
However, if a judge wishes to obtain legal advice from outside the court (e.g., consulting a legal expert), the judge must give advance notice to the parties of the expert to be consulted and the subject matter of the advice, and afford the parties an opportunity to respond after receiving the advice, but the parties' consent is not required.
但如果法官想从院外获得法律意见（比如咨询某法律专家），他必须预先将拟咨询的专家和问题通知双方，并在获得意见后给双方回复的机会，但无需征得双方当事人同意。
Whether consulting judges within the court or outside experts, the judge must ultimately make the decision themselves. The difference is that consulting other judges within the court does not require notifying the parties.
无论是咨询院内的法官还是院外的专家，最终做决定的一定要是法官本人。区别是咨询院内的其他法官并不需要让当事人知晓。
A judge should not disclose or use nonpublic information acquired in a judicial capacity outside of court.
法官不应该泄露或在法庭外利用庭审中获得的非公开信息。
行政职责Administrative Responsibilities
A judge must cooperate with other judges and court officials in the administration of court business.
法官必须与其他法官和法院官员合作，推进法院业务的管理。
In exercising administrative appointment powers, a judge should make appointments impartially and on the basis of merit, and should avoid nepotism, favoritism, and unnecessary appointments.
在行使行政任命权时，法官应客观公正地行使任命权，并基于能力和素质进行任命，应避免任人唯亲、恩惠主义和不必要的任命。
Often, a chief judge may appoint clerks and other staff members; this falls under the judge's administrative responsibilities.
很多时候，法院院长可以任命书记员和其他工作人员，这就是法官的行政职责。
回避Disqualification
If there are any factors that cause bias, the judge's best option is to disqualify themselves. Situations requiring disqualification include the following:
如果有任何导致自己产生偏见的因素，法官最佳的选择是回避（disqualify himself）。回避的情况包括下面一些：
If a judge witnessed a murder firsthand, even if they do not testify, they should not preside over the case.
法官亲眼目睹了一起凶杀案，即使他不作证，也不应该审理这个案子。
After a judge is transferred to an appellate court, they should not hear a case they previously presided over at the trial level.
法官调任上诉法庭后，他不应该审理自己曾经一审过的案件。
If a judge, while serving as a state prosecutor (or while campaigning for a judicial office), explicitly promised, "I will absolutely never sentence anyone to death," then they should not preside over capital cases after becoming a judge.
法官在担任州检察官期间（或者在竞选法官期间）明确承诺“我绝对不会判处任何人死刑”，那他就不应该在担任法官后审理适用死刑的案件。
If a judge owns stock in the plaintiff corporation and the outcome of the case would affect the stock's value, they obviously must disqualify themselves. If the judge merely holds a mutual fund, and the fund's basket of stocks happens to include the plaintiff's stock, but the outcome of the case will not substantially affect the fund's value, the judge is not required to disqualify themselves.
法官如果持有原告的股票，案件结果会影响股票价值，那他显然应当回避。如果法官只是持有某种基金，该基金中的一篮子股票恰好包括原告的股票，但案件结果不会显著影响基金价值，则法官不是必须要回避。
In the above situations, the judge must disclose the circumstances to the parties and allow them to discuss, outside the presence of the judge, whether to waive the right to request disqualification (remittal of disqualification). If the parties do not waive it, the judge must disqualify themselves. It should be noted that a judge who has a bias or prejudice concerning a party or a lawyer, or personal knowledge of relevant facts of the case (situations 1 and 2), must disqualify themselves, and the parties' waiver of disqualification is ineffective. A judge must also disqualify themselves in any situation where their impartiality might reasonably be questioned.
上述情况法官必须将情况披露给当事人，并且让当事人在法官不在场的时候讨论是否要放弃申请回避的权利（remittal of disqualification）。如果当事人不放弃，法官必须要回避。需要注意的是对当事人或律师有偏见或了解到了案件的相关事实的法官（情形1和2）必须要回避，当事人放弃申请回避的权利也无济于事。任何法官的公正性可能受到合理质疑（impartiality might reasonably be questioned）的情况，法官也必须回避。
A judge holds a large amount of the plaintiff's stock, so they disclose this to both parties and ask on the spot whether they request disqualification. Out of politeness, both lawyers waive the right to request disqualification, and the judge records this and proceeds with the trial. This is improper; the judge should first leave the courtroom to allow the lawyers and parties to fully discuss before deciding whether to request disqualification.
法官持有大量原告的股票，所以他披露给双方并当场询问是否要求回避。双方律师碍于面子都放弃申请回避的权利，法官记录在案后继续开庭。这是不合适的，法官应当先退出法庭，让双方律师和当事人充分讨论后再决定是否申请回避。
Before retiring, a judge received an invitation to join a law firm. Although the judge does not intend to join the firm, they should disclose this matter to both parties before presiding over a case involving that firm, and ideally continue to hear the case only if neither party requests disqualification.
法官在退休前收到了某律师事务所加入的邀请，虽然法官没有打算加入该律师事务所，但是他在审理和该事务所有关的案件之前应当把此事披露给双方，并最好能在双方都不申请回避的情况下继续审理案件。
In an emergency, a judge may first make a ruling on a case where grounds for disqualification exist. However, the judge must disqualify themselves and transfer the case to another judge once the emergency has passed.
紧急情况下，法官可以先对有回避情形的案子作出决定。但必须在紧急情况消失后自行回避，转给其他法官。
A judge should keep informed about their own financial status, as well as that of their spouse (or domestic partner) and children, to avoid unknowingly having a conflict of interest.
法官应当随时知晓自己、配偶（伴侣）和子女的财务状况，避免发生了利益冲突却不自知。
社会角色Social Roles
A judge should not voluntarily interact with legislative or executive bodies, unless the judge is requested to appear at a hearing, or it concerns the judge's own personal matters.
法官不应当主动去和立法、行政机构互动，除非是法官被要求出席听证会，或者与法官自己的私人事务有关。
It is appropriate for a judge to negotiate with the board of education regarding school districting for their own child, as long as the judge does not use their judicial position and power as leverage.
法官去教育局协商自己孩子的学区房问题，只要不以法官的身份和权利作为筹码，这种协商就是合适的。
A judge must not voluntarily testify as a character witness, except when duly summoned by a subpoena. Even so, a judge should not encourage any party to subpoena them as a character witness.
法官不能主动充当品格证人，除非是被依法传唤。即使是这样，法官也不应当鼓励任何当事人将他作为品格证人传唤。
A judge must not hold membership in any discriminatory organization. A judge shall require lawyers in proceedings before the judge to refrain from manifesting bias or prejudice, or engaging in harassment, based upon attributes including race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, against parties, witnesses, lawyers, or others.
法官不能加入任何歧视性的组织。法官应要求在他面前进行诉讼的律师不得基于种族、性别、宗教、国籍、族裔、残疾、年龄、性取向、婚姻状况、社会经济地位或政治立场对当事人、证人、律师或其他人进行人身攻击或骚扰。
However, a judge's own religious belief is a lawful exercise of the right to freedom of religion.
但法官自己信教是合法行使宗教自由权利。
A judge must not disclose nonpublic confidential information acquired in a judicial capacity.
法官不能披露在案件中接触到非公开的保密信息。
A judge may engage in financial investments for themselves or their family members, but a judge generally must not serve as an officer of a business entity or as a trustee, unless the business or trust is solely for the purpose of managing investments for the judge or the judge's family.
法官可以进行投资，也可以为家人投资，但法官通常不能在企业任职或者担任信托管理人（trustee），除非这个企业或信托的目的仅仅是为了帮助法官自己或者家人投资。
A judge's extrajudicial activities, including financial investments, must not:
法官在司法职责以外的活动，包括金融投资，不得
A judge may accept gifts of little intrinsic value or gifts from family members. For other valuable gifts, acceptance must not lead a reasonable person to question the judge's independence, integrity, or impartiality. A judge must report and publicly disclose accepted gifts.
法官可以收受价值微小的礼物或者家人赠送的礼物，对于其他有价值的礼物，收受不得让一个合理的人怀疑他的独立性、正直性或公正性。法官必须申报并公开收受的礼物。
A judge may accept a promotional voucher given by a roadside McDonald's. A judge may also enjoy standard interest rate discounts when taking out a loan. However, if the loan manager says, 'Since you are a judge, I will give you an additional 0.2% discount,' it would be inappropriate to accept this extra discount.
法官可以接受路边麦当劳送的代金券。也可以贷款时享受一般的利率优惠，但如果贷款经理说：我看你是法官，所以利率又给额外优惠了0.2%，接受这个额外的利率优惠就不合适了。
A judge must not practice law or act as a representative in other cases, nor can they do so for family members. Of course, a judge may represent themselves (pro se), and may, without compensation, give legal advice to and draft or review documents for a member of the judge's family. Unless expressly authorized by law, a judge must not act as an arbitrator or a mediator or otherwise perform judicial functions outside of their judicial duties.
法官不可以在其他案件中担任律师或代理人，家人也不行。当然，法官可以自己代表自己（pro se），也可以在无报酬的情况下为家人提供法律建议、起草或审查法律文件。除非法律明确授权，法官也不得兼任仲裁员、调解人或法官职责以外的其他司法职能。
A judge may write a letter of recommendation for others in two situations: 1. when a judicial appointment requires the judge's opinion, and 2. when the judge writes a recommendation based on personal knowledge. A judge must not use official court letterhead for a recommendation letter, unless the judge indicates that the reference is personal and there is no likelihood that a reasonable person would believe the judge is exerting pressure by reason of the judicial office.
法官在两种情况下可以为他人撰写推荐信：1、司法任命需要法官出具意见时，2、法官根据个人经验撰写的推荐信。法官不得用法院抬头纸撰写推荐信，除非法官注明推荐信是个人意见，并且一个合理的人不会相信这是在行使法官的公权利。
The law permits a judge to receive reasonable compensation for extrajudicial activities, unless such compensation creates a reasonable doubt as to the judge's independence, integrity, or impartiality. A judge may accept honoraria, stipends, salaries, royalties, or other compensation for speaking, teaching, publishing, and other extrajudicial activities, provided the compensation is reasonable and commensurate with the task performed. A judge is required to publicly report such compensation.
法律允许法官在审判活动以外获得合理的报酬，除非这种报酬让人们产生损害法官的独立性、正直性或公正性的合理怀疑。法官可以接受演讲、教学、出版以及其他非审判活动中的荣誉奖金、津贴、薪水、版税或其他报酬，只要该报酬是合理的且与所执行的任务相符。法官需要公开这些报酬。
竞选Campaigns and Elections
Federal judges are generally appointed, but some state judges are elected. The general principle is that judicial campaigns should be kept separate from political campaigns, except for appointments.
联邦法官的法官通常都是被任命的（appointive），但也有一些州的法官是民选的（elective），大原则是，法官竞选应当和政治竞选分开，但任命除外。
If a judge wishes to run for governor, they must first resign from judicial office. However, if the governor wishes to appoint an attorney general, a judge applying for this position is not required to resign first.
法官如果想要竞选州长，他必须先辞职。但州长如果想要任命一个总检察长，法官报名这个职位不需要先辞职。
A judge or a judicial candidate must not:
法官或法官的竞选人不得：
The period of 'participating in a public election' may begin a certain amount of time prior to the partisan primary election and end after the election; the exact timeframe is determined by state law.
“公开竞选时”可以提前到党派初选之前的一段时间到选举结束，具体提前多久由州法决定。
A judge should not endorse or oppose a gubernatorial candidate, even if the candidate is her husband—she should even prevent her husband from leading the public to believe that the judge is endorsing him. However, when running for office, the judge may endorse or oppose other candidates running for the same judicial office.
法官不应该支持或者反对某个州长候选人，哪怕州长候选人是她的丈夫也不例外——她甚至应该阻止丈夫让公众以为法官在为他背书。但他在竞选时可以支持或者反对同样和他竞选某个法官职位的候选人。
Two candidates for a judicial office may come from the Republican or Democratic parties, respectively, and receive support from their respective parties. This is commonplace for other political offices, and judges in public partisan elections are no exception.
某个法官职位的两个候选人分别来自共和党或者民主党，并分别获得两个党派的支持。这在其他政治职位上司空见惯，公开竞选的法官也不例外。
A judge running for election may establish a campaign committee to raise funds, but a candidate for an appointive judicial office may not. A candidate seeking an appointive judicial office may communicate with the appointing authority and may seek endorsements from individuals or organizations other than partisan political organizations, but may not seek or accept partisan endorsements, nor publicly identify their partisan affiliation.
竞选的法官可以设立竞选委员会来筹款，但被任命的法官不可以。希望被任命的法官可以与任命机构沟通，也可以寻求来自党派以外的人或组织的背书（endorsement），但不可以获得党派背书，也不可以表明自己的党派身份。
律师的社会责任 1-2题Lawyer's Responsibilities to Society (1-2 Questions)
对律所To the Law Firm
Partners in a law firm must make reasonable efforts to ensure that all lawyers and non-lawyers in the firm comply with the rules of professional conduct. Similarly, a supervising lawyer must ensure that everyone on their team complies with the rules of professional conduct.
律所的合伙人必须要作出合理的努力让所里的律师、非律师都要遵守职业道德规范。同理，主管律师也应当确保他的团队中的所有人都要遵守职业道德规范。
In exam questions, if a supervising lawyer directly orders a subordinate to violate professional ethics, or knows of a subordinate's violation but fails to take remedial action, the supervising lawyer will definitely be subject to discipline.
题目中如果遇见上级律师直接命令下级违反职业道德，或者知道下级律师违反职业道德却不采取措施，是一定会被惩戒的。
If a subordinate lawyer knows that an action violates professional ethics, they will still be subject to discipline even if acting in obedience to a superior's order. However, if there is an arguable question as to whether an action violates professional ethics, and the subordinate lawyer acts in accordance with a supervisory lawyer's reasonable resolution of the question, the subordinate is not responsible; the supervising lawyer is responsible.
下级律师如果明知道违反职业道德，那么即使是为了服从上级命令也依然会被惩戒。但是，如果对是否违反职业道德有争议，下级律师仅仅根据上级的合理指示履行职责，那么即使违反了职业道德，也由上级律师负责。
If a partner allows a new cashier unrestricted access to accounts, resulting in the theft of client funds, the partner will be subject to discipline for gross negligence in supervision.
合伙人让新来的出纳可以任意操作账户，导致客户资金被盗，合伙人会因为监管重大过失（gross negligence）被惩戒。
对法律界To the Legal Profession
A lawyer must uphold the integrity of the legal profession. A lawyer must report to the appropriate professional authority in the following two situations; otherwise, the lawyer themselves will violate professional ethics:
律师要维护整个法律界的尊严。律师遇到以下两种情况时必须举报给相关机构，否则律师自己也会违反职业道德：
Judges are subject to similar rules. If a judge has knowledge that another judge or a lawyer has committed a violation of the rules of professional conduct that raises a substantial question regarding their honesty, trustworthiness, or fitness as a judge or lawyer, the judge must inform the appropriate authority. If a judge does not have actual knowledge but receives information indicating a substantial likelihood that another judge or a lawyer has committed misconduct, the judge must take appropriate action. Appropriate action may include, but is not limited to, communicating directly with the judge or lawyer involved, communicating with their supervisor, or reporting the suspected misconduct to the appropriate disciplinary authority.
法官也有类似规定。如果一个法官得知另一位法官或律师违反了职业道德，这种违反行为对他们的诚实、可信度或作为法官或律师的能力构成了重大问题，那么他必须向相关机构报告。如果法官并非实际知情，但收到信息表明另一法官或律师可能存在不当行为的重大可能性时，必须采取适当行动。适当行动可以包括但不限于直接与涉事法官或律师沟通，与他们的上级沟通，或向相应的纪律机构举报疑似的不当行为。
Lawyer A learns that Lawyer B frequently pays a $500 kickback to people who refer clients, resulting in Lawyer B having far more clients than Lawyer A. Lawyer A may report Lawyer B out of jealousy, because Lawyer B has indeed violated professional ethics, and the motive for reporting is irrelevant. Of course, Lawyer A is also not required to report Lawyer B, because paying referral fees does not necessarily raise a substantial question as to honesty, trustworthiness, or fitness as a lawyer. However, if Lawyer A discovers that Lawyer B committed perjury, or that Judge C accepted a bribe, Lawyer A must report this to the appropriate authority; otherwise, Lawyer A will be subject to discipline.
甲律师了解到乙律师经常给推荐客户的人返还500美金，导致乙律师的客户要远远多于自己，甲律师可以因为嫉妒举报乙律师，因为乙律师的确违反了职业道德，而举报是不问动机的。当然甲律师也可以不举报乙律师，因为给推荐人返佣并不与诚信和是否适合继续做律师有关。如果甲律师发现乙律师作伪证，或者丙法官受贿，则必须举报给相关机构，否则甲律师自己也会被惩戒。
However, a lawyer's duty of confidentiality supersedes the duty to report.
但律师的保密义务要高于举报义务。
Lawyer A hires Lawyer B to represent him in a legal malpractice suit and tells Lawyer B that he assisted a client in committing perjury. Lawyer B must keep Lawyer A's information confidential rather than reporting it to the bar association.
甲律师聘请乙律师为自己的执业过失诉讼代理人，并告诉他自己协助客户作了伪证，乙律师必须为甲律师保密而不是举报到律师协会。
A lawyer certainly must not bribe a judge. A lawyer should not make political contributions to government officials or judges in exchange for legal engagements. If a law firm has already done so, the lawyer should decline such engagements.
律师当然不可以贿赂法官。律师不应当在竞选时赞助政府官员或法官换取案源，如果律所已经这么做了，律师应当拒绝这样的业务。
对公众To the Public
Lawyers are encouraged to provide free legal services (pro bono services) to the poor. The ABA recommends that every lawyer provide at least 50 hours of pro bono publico legal services per year. These services should be provided to persons of limited means or to charitable, religious, civic, community, governmental, and educational organizations in matters that are designed primarily to address the needs of persons of limited means.
律师鼓励为贫穷的人提供免费的法律服务（pro bono services），ABA的推荐是每个律师每年提供至少50个小时的免费服务，这些服务应该提供 给无力支付法律费用的人，或者慈善、宗教、公民、社区、政府和教育组织中能力有限的人。
Lawyers are encouraged to provide services in unpopular matters or to underserved populations.
律师鼓励去无人问津的领域提供服务。
A lawyer may appear at a legislative hearing to assist legislators in drafting better laws, but if the lawyer is appearing in a representative capacity on behalf of a client (such as a corporation), the lawyer must disclose that fact in advance.
律师可以出席议会听证会，以协助立法者更好的立法，但如果律师是为企业的利益出席的听证会，他必须事前进行披露。
A lawyer testifies before a state legislature that an increase in the local payroll tax has actually led to a massive loss of employees. Although what he says is true, he fails to inform the legislature that he was paid and sent to testify by a corporation that hired him. The lawyer will be subject to discipline.
律师在州议会作证说辖区内工资税的提高反而导致了员工大量流失。虽然他说的是事实，但是他没有告诉州议会是雇佣他的企业付费派他来作证的，律师会被惩戒。
A lawyer must not intentionally commit a crime or encourage illegal conduct. If a client does not express an intent to commit a crime or fraud, the lawyer may explain the law. Even if the client has an illegal intent, the lawyer may discuss the legal consequences of any proposed course of conduct with a client, as long as the lawyer does not assist or direct the client in committing a crime or fraud.
律师自己不可以故意违法犯罪，也不可以鼓励违法犯罪。如果客户没有表示违法犯罪的意图，律师可以就法律进行解释。即使客户有违法意图，律师也可以向其解释法律后果，只要不协助或指导其犯罪即可。
Zhang San asks his lawyer whether he can conceal a certain income. The lawyer's answer should be no, rather than telling Zhang San that the probability of being caught is very low and the maximum fine is only $1,000.
张三问律师自己是否可以瞒报某项收入，律师的回答应该是不可以，而不是告诉张三瞒报被发现的概率很小，且罚金最多也才1000美金。
Zhang San merely asks his lawyer about the statutory prison sentence and sentencing factors for murder. As long as Zhang San does not express an intent to commit murder, the lawyer may answer the question.
张三仅仅是问律师谋杀的法定刑期和量刑情节。只要张三没有表露出杀人的意图，律师就可以进行回答。
A lawyer may serve as a director, officer, or member of an organization or association, even if the organization's purposes conflict with the interests of the lawyer's existing clients. However, if a situation arises where there is a conflict of interest with the lawyer's practice, the lawyer should avoid voting or taking action within the organization.
律师可以担任组织、协会的高管，即使组织的目的和既有客户冲突。但是如果遇到与律师的业务有利益冲突的情形时，律师应当避免在组织中投票或行动。
While serving on the board of an environmental association, a lawyer happens to represent a corporation in its environmental assessment application. If the association intends to oppose the corporation's application, the lawyer must decline to participate in any of the association's decisions regarding the matter, regardless of whether it would benefit the lawyer's client.
律师在环保协会任职时，恰好代理了某企业环境评估的申请。如果协会要反对企业的环境评估申请，律师应当拒绝参与协会的任何决定：无论是否对自己的客户有利。
A lawyer may serve as a member or officer of a law reform organization, even if the reform may affect the interests of a client of the lawyer. However, when the lawyer knows that the interests of a client may be materially benefitted by a decision in which the lawyer participates, the lawyer must disclose that fact but need not identify the client.
律师可以担任法律改革组织的成员或高管，即使该改革可能会影响律师的客户利益。但是如果律师知道自己参与的决定将对客户利益有实质性的好处时，律师必须披露这个事实，但不得透露客户的身份。