5 - Attorney Ethics and Paralegal Ethics Flashcards
ethics
rules or standards of behavior to which members of an occupation, profession or other organization are expected to conform
agent
1 - a person authorized to act for another; a representative
2 - a power or force that produces an effect
attorney in fact
one authorized to act in place of another; often in a business transaction
power of attorney
1 - a document that authorizes another to act as one’s agent or attorney in fact
2 - the authority itself
sanctions
1 - penalty or punishment imposed for unacceptable conduct
2 - permission or approval
integrated bar association (mandatory bar association, unified bar association)
a state bar association to which an attorney must belong in order to practice law in the state
Model Rules of Professional Conduct (MRPC)
the current set of ethical rules governing attorneys recommended by the ABA; these rules revised the ABA’s earlier rules found in the Model Code of Professional Responsibility (MCPR)
probable cause
1 - a reasonable belief that a specific crime has been committed and that the accused committed the crime
2 - a reasonable belief that a location contains items relevant to a crime
3 - a reasonable belief that good grounds exist to bring civil proceedings against someone
multidisciplinary practice (MDP)
a partnership consisting of attorneys and non-legal professionals that offers legal and non-legal services
paralegal code
rules and guidelines governing ethical issues involving paralegals
meritorious
having merit; having a reasonable basis to believe that a person’s claim or defense will succeed
letter of non-engagement
a letter sent to a prospective client that explicitly states that the law office will not be representing them
statute of limitations
a law stating that civil or criminal actions are barred if not brought within a specified period of time; action is time-barred if not brought within that time
time-barred
1 - prevented or barred from bringing a civil or criminal action because of the passage of a designated period of time without commencing the action
2 - being unable to sue because of the statute of limitations
retainer
1 - the act of hiring or engaging the services of someone, usually a professional
2 - an amount of money (or other property) paid by a client as a deposit or advance against future fees, court costs, and related expenses of providing services
bundled legal services
all tasks needed to represent a client; all-inclusive legal services
collaborative law
a method of practicing law in which the attorneys refuse to continue representing the parties if they cannot settle their dispute through mediations or another method of alternative dispute resolution (ADR)
alternative dispute resolution (ADR)
a method or procedure for resolving a legal dispute without litigating the dispute in a court or administrative agency
informed consent
agreement to let something happen after receiving a reasonable explanation of the benefits and risks involved
competent
1 - using the knowledge, skill, thoroughness, and preparation that are reasonably necessary to represent a particular client
2 - having the legal capacity to give testimony because the person understands the obligation to tell the truth, has the ability to communicate, and has knowledge of the topic of his or her testimony
dilatory
causing delay; often without merit or justification
minimum-fee schedule
a bar association list of the lowest fees an attorney can ethically charge for specific kinds of legal services
fee caps
a maximum amount or maximum percentage that can be charged as a fee in a case
fee-splitting (fee sharing, division of fees)
1 - the division or splitting of a single client’s fee between two or more attorneys who are not in the same firm
2 - the division or splitting of a fee between an attorney and a non-attorney
forwarding fee (finder’s fee, referral fee)
a fee received by one attorney from another to whom the first attorney referred a client
block billing
grouping multiple tasks under a single time charge rather than describing each task separately and assigning the actual time associated with each task; enters total time spent working blocks of tasks without itemizing the time spent on specific tasks for the case
double billing
fraudulently charging a client twice for the same service
padding
adding something without justification; adding unnecessary material in order to make something larger
time padding
inflating a client’s bill by charging for time that was not spent
task padding
inflating a client’s bill by charging for tasks that were not performed
client security fund
a fund (often run by a bar association or foundation) used to compensate victims of designated kinds of attorney misconduct
pretexting
using online deception as a pretext to obtain information from another person
attestation clause
a clause stating that you saw (witnessed) someone sign a document or perform other tasks related to the validity of the document
insider trading
improperly using or passing on to others any non-public information you learn about in the office in order to trade in the shares of a company
pirated software
software that has been placed (loaded) in a computer that is not authorized by the terms of the purchase or lease of the software
spoliation
intentionally destroying, altering, or concealing evidence
Federal Rules of Civil Procedure (FRCP)
the rules that govern the mechanics of resolving a dispute by a US district court, which is the main federal trial court
commingling
mixing what should be kept separate (depositing client funds into an account that also contains funds used for general operating expenses of the office)
material
1 - serious and substantial
2 - important enough to influence the decision that was made
confidential
1 - pertaining to information that others do not have a right to receive
2 - pertaining to all information related to the representation of a client whatever its source, including the fact that someone is a client
privileged
protected by a privilege so that disclosure is prohibited or limited
attorney-client privilege (ACP)
a client or client’s attorney can refuse to disclose any confidential (private) communication between them if the purpose of the communication was to facilitate the provision of legal services to the court
work-product rule
notes, working papers, memoranda, or similar things prepared by or for an attorney in anticipation of litigation are not discoverable by an opponent, absent a showing of substantial need; they are protected by privilege
discoverable
pertaining to information or materials an opponent can obtain through deposition, interrogatories, or other discovery methods
encrypt
convert text into a code that renders the text incomprehensible until it is reconverted to a readable format by a recipient with the right software
legal malpractice
1 - malpractice committed by an attorney
2 - attorney negligence, which is the failure to exercise the reasonable care expected of an attorney in good standing
adverse interest
a goal or claim of one person that is different from or opposed to the goal or claim of another person
concerrent representation
the simultaneous representation of more than one current client who have adverse interests in the same litigated matter, in different litigated matters, in a negotiation, or in a transactional matter
co-plaintiffs
two or more plaintiffs who bring a suit in the same civil case
co-defendants
two or more defendants who are sued in the same civil case or who are prosecuted in the same criminal case
transactional matter
anything involving a transaction such as entering a contract, incorporating a business, closing a real estate sale, or planning an estate
successive representation
an attorney’s representation of a current client who is opposing a former client of this attorney
overreaching
taking unfair advantage of another’s naivete or other vulnerability, especially by the deceptive means
undue influence
improper persuasion, coercion, force, or deception
bias
1 - an inclination, tendency, or predisposition to think or act in a certain way
2 - prejudice for or against something or someone
3 - a danger of prejudgment
positional conflict
a conflict of interest that exists:
1 - if an attorney asserts inconsistent legal positions while representing two current clients in separate, unrelated cases and
2 - if success on behalf of a client in one case will harm or disadvantage the current client in the other case
tainted
having or causing a conflict of interest; contaminated
vicarious conflict
a conflict attributed to every attorney in a law office solely because of an actual conflict caused by one of the attorneys in the office
vicarious disqualification (imputed disqualification)
the disqualification of every attorney in a law office from representing a client solely because of an actual conflict caused by one of the attorneys in the office
imputed
attributed to
screening
steps taken by a law office to isolate a tainted worker from involvement in a case in order to avoid vicarious disqualification of the office from representation of a client in that case
quarantined
isolated or kept apart from a case because of a conflict of interest in connection with that case
Chinese wall (ethical wall, cone of silence)
screening that prevents a tainted worker (attorney, paralegal, or other non-attorney) from having any contact with the case of a particular client in the office because the tainted worker has created a conflict of interest between that client and someone else; once the Chinese wall is set up around the tainted worker, the latter is referred to as a quarantined worker
conclusive presumption
an assumption or inference of fact that a party will not be allowed to dispute or rebut
rebuttable presumption
an assumption or interference of fact that can be overcome (rebutted) by sufficient contrary evidence but that will be treated as accurate if it is not rebutted
career client list
a confidential list of every client or matter you worked on in any law office (as a paid employee or volunteer) from the beginning of your legal career to the present time; the list is used to help determine whether any of your future work might create a conflict of interest
conflicts check
finding out whether a conflict of interest exists that might disqualify a law office from representing a prospective client or from continuing the representation of a current client
lateral hire
a person hired from another law office
disinterested
1 - not working for one side or the other in a controversy
2 - not deriving benefit if one side of a dispute wins or loses
3 - objective
anti-contact rule (no-contact ruke)
an advocate must not contact an opposing party without permission of the latter’s attorney
ex parte communications
communication with the court in the absence of the attorney for the other side
solicitation
1 - an appeal or request for clients or business
2 - an attempt to obtain something by persuasion or application
pecuniary
relating to money (pecuniary interest is financial interest)
ambulance chasing
appeaching accident victims (or anyone else who might have a legal problem or claim) to encourage them to hire a particular attorney; if the attorney uses someone else to do the soliciting, called a runner; if this other person uses deception or fraud in the solicitation, sometimes called a capper or steerer
real-time
occurring now; happening as you are watching; able to respond or otherwise interact immediately or within seconds
barratry
the crime of stirring up quarrels or litigation; persistently instigating lawsuits, often groundless ones; the illegal solicitation of clients
runner
1 - one who solicits business, especially accident cases
2 - an employee who delivers and files papers
whistleblower
an employee who reports employer wrongdoing, usually to a government agency
wrongful discharge
terminating an employee for a reason that is illegal or a violation of public policy
cause of action
1 - a legally acceptable reason for bringing a suit; a rule that constitutes a legal theory for bringing a suit
2 - the facts that give a person a right to judicial relief; when you ‘state a cause of action’ you list the facts that give you a right to judicial relief against the alleged wrongdoer
motion to dismiss
a request, often made before the trial begins, that the judge dismiss the case because the parties have reached a settlement or because of a serious procedural deficiency
at-will employee
an employee who can be terminated for any reason that does not violate public policy; an employee with no union or other contractual protection
public policy
the principles inherent in the customs, morals, and notions of justice that prevail in a state; the foundation of public laws; the principles that are naturally and inherently right and just
gratuitous
1 - pertaining to what is performed or given without duty or obligation to do so
2 - free
diversity of citizenship
the disputing parties are citizens of different states and the amount in controversy exceeds $75000; this diversity gives subject-matter jurisdiction to a US district court
notice of appearance
a formal notification to a court by an attorney that he or she is representing a party in the litigation
cured
corrected; removed a legal defect or error
good cause (cause, just cause, sufficient cause
a legally sufficient ground; a justifiable reason
letter of disengagement
a letter sent to a client formally notifying them that the law office will no longer be representing a client
Model Rule 5.3
the rule in the ABA Model Rules of Professional Conduct governing the responsibility of different categories of attorneys for the conduct of paralegals and other non-attorney assistants in a law office
tickler (come-up system)
a paper or computer system designed to provide reminders of important dates
ratify
1 - to adopt or confirm a prior act or transaction, making one bound by it
2 - to give formal approval
remedial
1 - corrective; intending to correct
2 - providing a remedy
appellate brief
a document that a party files with an appellate court (and serves on an opponent) in which the party presents arguments on why the appellate court should affirm (approve), reverse, vacate (cancel), or otherwise modify what a lower court has done
memorandum of law (memo, legal memorandum)
a written explanation of how one or more rules might apply to the facts of a client’s case
complaint
1 - a plaintiff’s first pleading, stating a cause of action against the defendant (petition)
2 - a formal criminal charge
pleading
a formal litigation document filed by a party that states or responds to the claims and defenses the parties have against each other; major pleadings are the complaint and answer
closing
the meeting in which a transaction is finalized (example - meeting to complete a real estate sale or other transaction)
depositions
1 - a method of discovery by which the parties and their prospective witness are questioned by the opposing party before trial at a location other than the courtroom; the purpose of discovery is to assist parties in trial preparation by allowing each side to uncover facts from the other side
2 - a post-trial method of discovery by which the winning party seeks to uncover facts that will help it enforce the judgment it obtained against the losing side
deponent
a person who is questioned in a deposition
transcripts
a word-for-word account of what was said
execution
1 - signing a document and meeting other requirements needed to finalize the document and make it legal
2 - carrying out or performing some act to its completion
3 - carrying into effect the orders in a judgment
4 - a command or writ to a court officer (sheriff) to seize and sell the property of the losing litigant in order to satisfy the judgment debt (general execution, writ of execution)
instrument
a formal written document that gives expression to or embodies a legal act or agreement (a contract, deed, will, lease, or mortgage)
second chair
an assistant to the lead attorney in a trial; the assistant; usually another attorney sits at the counsel’s table in the courtroom
subpoenas
1 - to command that someone appear at a certain time and place
2 - a command to appear at a certain time and place
outsourcing
paying an outside company or service to perform tasks usually performed by one’s own employees
