Attorney Responsibility Flashcards
Who promulgates the rules governing lawyers in a state?
In most states, the Supreme Court. In California, however, the legislature has issues these rules under the State Bar Act. The CA Bar is a corporation, and all licensed members are required to be part of the corporation.
Who regulates the bar association of a state?
The Supreme Court of that State, or the highest judicial authority of that state.
When a legislature attempts to regulate the bar, there is a potential separation of powers issue under that state’s constitution.
What are the principal forms of civil liability for lawyers?
Malpractice, breach of fiduciary duty, and fraud.
May Federal agencies regulate lawyer’s conduct?
Yes. Often a statute, such as Sarbanes-Oxley, will enable an agency, such as the SEC, to promulgate an ethics code for lawyers practicing before the agency.
What does Rule 11 prohibit?
Frivolous advocacy or the filing of a court document that one has reason to know cannot be proven or supported.
May other laws regulate the conduct of lawyers if the regulation is not directly related to the practice of law?
Of course. For example, the FTC may regulate lawyers who engage in debt collection practices against their clients if those lawyers violate relevant law or regulation.
Can a federal treaty governing the conduct of lawyers preempt state rules for lawyers?
Yes. For example, a treaty allowing Australian lawyers to represent Australian citizens residing in the U.S. would trump state unauthorized practice of law rules.
Are the ABA model rules binding?
No. States are free to adopt their own sets of rules.
What duties does a bar applicant have in the admissions process?
An affirmative duty to correct any mistakes or misrepresentations, an affirmative duty to respond to questions, and a duty to not make false statements.
Is the character and fitness exam constitutional?
Yes, so long as it provides the applicant with a right to a hearing. States also consider a lawyer’s rehabilitation during the character exam.
What are the valid considerations in a character exam?
Criminal conduct; concealment of bad acts; advocating for unlawful or violent overthrow of the government (lawyers may advocate for peaceful or lawful changes in government); refusal to take an oath of allegiance to laws or constitution; acts of moral turpitude.
What constitutes moral turpitude?
Dishonesty and fraud; theft; concealment of improper conduct; conduct prejudicial to justice; suggesting that you have improper influence over judges and gov’t officials; assisting a judge or official in violating ethical rules. Acts of moral turpitude in any place outside the jurisdiction of admission may be sanctionable.
What considerations are invalid during a character exam?
State, federal or national citizenship; residency; political views.
What are appropriate penalties for attorney misconduct?
Disbarment, suspension, probation, censure or admonishment, and fees and costs of the discipline process. Discipline cannot include money damages or incarceration.
What activities may subject a lawyer to attorney discipline?
Criminal conduct; acts of moral turpitude; violations of ethics rules; assisting other lawyers or judges in committing disciplinable offenses; using others to commit offenses on their behalf.
What are the procedures in place when an attorney goes through the disciplinary process?
The lawyer will receive a written complaint; an opportunity to respond; a hearing; and an appeal right. The lawyer has a due process right at these proceedings but no 5th amendment right against incrimination. The lawyer has an affirmative duty of candor at these proceedings.
What law or rule governs a disciplinary proceeding against an attorney?
The site of the bad conduct. If a violation occurred before a court or tribunal, that entity’s rules govern in all proceedings related to that violation, even if the discipline is being imposed by another jurisdiction.
What is a collateral finding of discipline?
If a lawyer is sanctioned by the state bar of one jurisdiction, another state bar may sanction that lawyer without opening a separate investigation.
Federal court bars will open an independent investigation of the conduct in question, rather than relying on the state bar’s finding alone.
What are the duties of a partner and other persons of comparable managerial authority?
They must ensure that measures or internal policies and procedures give reasonable assurance that the firm’s lawyers are conforming to the ethics rules.
They must also ensure that any non-lawyers they supervise behave in a way that is compatible with the lawyer’s ethical duties.
Partners are responsible for the ethical breaches of lawyers or non lawyers if the order or ratify the violation, or fail to mitigate the breach at a time when the partner could have done so.
What are the duties of an immediately supervising lawyer?
They must take reasonable steps to ensure that the supervised lawyer is conforming to the ethics rules.
They must also take steps to ensure that any non-lawyers are acting in ways that are compatible with the supervising lawyer’s ethical duties.
What duty does a subordinate have to follow the directions of a supervisor?
Only to the extent the order is not a violation of an ethical rule. Subordinates are bound by ethics rules notwithstanding a supervisor’s orders.
In a disciplinary proceeding, however, a subordinate can raise an affirmative defense that they were following orders of a supervisor if the supervisor’s orders were a reasonable resolution of an arguable question of ethics.
Can firms be disciplined?
No. Only individual lawyer’s may be disciplined. Depending on the circumstances, however, all the lawyer’s in a particular firm may be disciplined.
When is a lawyer required to report misconduct?
When a breach of an ethical rule raises a substantial question about a lawyer’s honesty, trustworthiness or fitness to practice.
Lawyers are required to report a judge’s breach of the rules of judicial conduct that raises a substantial question as to the judge’s fitness for office.
Reporting does not require divulging client confidences, but the lawyer should ask the client for permission to reveal the bad conduct.
The reporting duty doesn’t apply to conduct that a lawyer learned through participation in a lawyer’s assistance program, such as “Alcoholics Anonymous for lawyers,” or other related problems.
What rules govern attorney-client privilege or civil litigation?
Assume that the federal rules of evidence and of civil procedure govern the question unless told otherwise.
What are a lawyers duty to obey the law?
Do not commit or counsel criminal conduct or fraud.
A litigator may disobey an obligation of a tribunal but only openly and on an assertion that no valid obligation exists.
A lawyer may counsel a client to break a law for purposes of obtaining standing to challenge the legitimacy of a law if there is a good faith basis for that challenge.
What is the unauthorized practice of law?
Application of legal principles and judgment; regarding a person’s particular situation; as traditionally recognized as the practice of law.
A lawyer may not engage or facilitate the unauthorized practice by of law by non-lawyers outside of the jurisdiction where they are licensed.
UPL is any practice of law that is not permitted by the state or federal regulatory scheme.
What is not considered unauthorized practice of law?
Handling one’ sown legal affairs; non-lawyers acting under a licensed lawyer’s supervision; non-lawyers helping others fill out legal forms or filling in the blanks on legal docs; incidental businesses (service of process, escrow).
A lawyers ethical duties apply to the provision of incidental services if they are not distinct from the provision of legal services, or if the lawyer fails to inform the recipient that the services are not the practice of law and that protections of the attorney-client relationship do not apply.
What are the exceptions to practicing where one is not admitted?
Pro hac vice; out-of-state ADR arising from a matter originated in a licensed jurisdiction; work in a non-admitted jurisdiction that is reasonably related to practice in an admitted jurisdiction, but only so long as the lawyer does not open an office or maintain a systematic and continuous presence in the non-admitted jurisdiction; in-house attorneys.
When may a lawyer share fees with non-lawyers?
Payment of fees to a lawyer’s estate after his death; purchase of another lawyer’s practice (resulting in a retired lawyer getting paid); use of firm fees for employee retirement plans; sharing court awarded fees with non-profits.
What are the implications of a lawyer’s duty to remain financially independent?
Cannot allow a paying non-client to interfere with judgment relating to client’s matter; cannot operate a for profit partnership with non-lawyers where any part of the partnership practices law or where non-lawyers have managerial responsibility over the lawyer’s professional judgment.
What are the limitations to a lawyer contract away his services?
A lawyer may not agree to restrict his practice as part of a settlement; a lawyer may covenant not to compete in exchange for retirement benefits; a lawyer may restrict his practice as part of the lawful sale of a law practice.
What conditions must be met when selling a law practice?
The selling lawyer must cease to practice in the current area of law or the current geographical area; the entire practice or practice area must be sold; clients must be given written notice of the proposed sale, the right to retain other counsel and take possession of the file, and consent is presumed if no action was taken within 90 days; fees may not be increased because of the sale.
What are a lawyer’s pro bono aspirational goals?
50 hours of work for free or reduced fees for persons of limited means.
What are the Constitutional limits on regulation of lawyer advertising?
Advertising is commercial speech and regulation is subject to intermediate scrutiny.
False or misleading communication is prohibited.
A lawyer may truthfully communicate the fields of law he practices.
States may ban ads by lawyers that result in coercion, harassment and duress. The ban on in-person solicitation falls under this category.
What is required of attorney advertising?
The ad must include the name and address of the lawyer or firm responsible for the content of the ad; cannot be false or misleading; and state that the material is an attorney advertisement.
Some states require attorneys to keep copies of the ad for later investigation.
What is required of in person solicitations?
Lawyers shall not solicit in person unless the person is also a lawyer or the person is a family, personal or professional connection.
This rule applies to conversations, telephone calls, and real time electronic communications.
What are the limitations on firm letterheads?
Cannot be false or misleading; may state a partnership or organization if true, may use the names of deceased partners.
A firm may not use the name of a lawyer holding public office if the lawyer is not practicing there.
A firm may use the name of a lawyer not practicing there if the lawyer now provides free legal services in the public sphere.
What are the limitations on trade names?
They cannot imply any connection with a government agency or a public or charitable legal services organization.
What are the limitations on the geographic use of names?
Firms may use the same name across geographic locations, but must indicate when lawyers in an office aren’t license in that jurisdiction.
What are the prohibitions on referrals?
Cannot pay people a per-client fee for referring clients; cannot take gov’t employment or appointment by judge after making a political contribution for the purpose of obtaining the appointment; cannot permit the referrer to direct manage the lawyer’s judgment; cannot pay a referring lawyer an amount not proportional to his work.
What are the permitted forms of attorney referrals?
Lawful referral by non-profit agency; referral by legal services plans; non-exclusive, fully-disclosed cross referrals between lawyers or other professionals (although client must be informed about nature of agreement and fees cannot be split because of referral).
Does the duty of confidentiality and privilege apply to prospective clients?
Yes. Lawyers must also protect a prospective client’s property and will be disqualified from representing an adverse party if they received confidential information.
Under what circumstances will receipt of a prospective client’s confidential information not be imputed to a firm for purposes of disqualification?
The lawyers who learned the info only learned enough to consider whether to take the client; the lawyers were timely screened or walled-off; the lawyers who learned the information don’t share fees from the adverse matter; and written notice is given to the prospective client.
When must an attorney accept a client?
When the client is appointed by the court, unless the appointment will cause undue financial hardship; the client or matter is repugnant to the point of affecting the lawyer’s performance; or representing the client likely leads to a breach of law or ethics.
When “should” an attorney take on a client?
When the matter is pro bono or provides advocacy for the defenseless, oppressed or unpopular.
When may a lawyer not take a client?
The representation requires unethical conduct (such as pure harassment, a frivolous matter, or unconsented conflicts (which may include personal interests and commitments)); the representation would counsel or assist the client in commuting a crime or fraud; or the lawyer would be incompetent as to the skill or subject matter of the case.
When is the attorney client relationship (ACR) created?
Contract approach: once lawyer accepts a signed agreement from a client.
Reasonable expectations approach: whether the client reasonable expects that they have hired a lawyer or are reasonably relying on that lawyer representing them.
What are an attorney’s responsibilities to a disabled client?
To treat the client as normally as possible under the circumstances. Clients may be unable to make some decisions but competent to make others. If the client has a conservator, the lawyer must take direction from the conservator.
Can the presence of a friend or a family member during a consultation with a client waive the attorney-client privilege and breach the duty of confidentiality?
Yes.
What duties does an attorney have to organizational clients?
The lawyer represents the entity, and must ensure that no individual employee believes that he represents the employee before the corporation; the lawyer must explain the identity of his client when he reasonably knows the org’s interests are adverse to someone with whom he is dealing; the lawyer must observe the rules of the org or governing law to determine who is his ultimate supervisor or to whom to report; an in-house lawyer may reveal the org’s confidential info if he believes there is a violation that will result in substantial injury to the org (does not apply to outside lawyers).
What are the requirements for an in house counsel to a publicly traded company regarding reporting violations?
Sarbanes Oxley requires lawyers to report to the chief legal officer and, if futile, then report to the board of directors or authorized committee.
If the violation is not adequately addressed by the entity, the lawyer may report to the SEC in order to prevent or rectify violation of the law.
What are the limitations on representing multiple clients in the same matter?
The attorney must consider whether there is a conflict of interest that the clients cannot waive (and must get their informed written consent); and the lawyer must share material information while protecting confidentiality and asserting the privilege against any non-client.
If these clients later commence a dispute, none may assert the privilege against the otre regarding communications made during the joint representation.
What are the rules governing representing an insured and insurer?
Insurer may select counsel and pay fees for insured; some states allow lawyer to represent both while some states consider only the insured person the client.
What are the limitations on limiting the scope of an engagement?
The client must give informed consent confirmed in writing.
