Attorney Responsibility Flashcards
0
Q
Who promulgates the rules governing lawyers in a state?
A
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.
1
Q
Who regulates the bar association of a state?
A
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.
2
Q
What are the principal forms of civil liability for lawyers?
A
Malpractice, breach of fiduciary duty, and fraud.
3
Q
May Federal agencies regulate lawyer’s conduct?
A
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.
4
Q
What does Rule 11 prohibit?
A
Frivolous advocacy or the filing of a court document that one has reason to know cannot be proven or supported.
5
Q
May other laws regulate the conduct of lawyers if the regulation is not directly related to the practice of law?
A
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.
6
Q
Can a federal treaty governing the conduct of lawyers preempt state rules for lawyers?
A
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.
7
Q
Are the ABA model rules binding?
A
No. States are free to adopt their own sets of rules.
8
Q
What duties does a bar applicant have in the admissions process?
A
An affirmative duty to correct any mistakes or misrepresentations, an affirmative duty to respond to questions, and a duty to not make false statements.
9
Q
Is the character and fitness exam constitutional?
A
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.
10
Q
What are the valid considerations in a character exam?
A
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.
11
Q
What constitutes moral turpitude?
A
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.
12
Q
What considerations are invalid during a character exam?
A
State, federal or national citizenship; residency; political views.
13
Q
What are appropriate penalties for attorney misconduct?
A
Disbarment, suspension, probation, censure or admonishment, and fees and costs of the discipline process. Discipline cannot include money damages or incarceration.
14
Q
What activities may subject a lawyer to attorney discipline?
A
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.
15
Q
What are the procedures in place when an attorney goes through the disciplinary process?
A
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.
16
Q
What law or rule governs a disciplinary proceeding against an attorney?
A
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.
17
Q
What is a collateral finding of discipline?
A
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.
18
Q
What are the duties of a partner and other persons of comparable managerial authority?
A
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.
19
Q
What are the duties of an immediately supervising lawyer?
A
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.
20
Q
What duty does a subordinate have to follow the directions of a supervisor?
A
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.
21
Q
Can firms be disciplined?
A
No. Only individual lawyer’s may be disciplined. Depending on the circumstances, however, all the lawyer’s in a particular firm may be disciplined.
22
Q
When is a lawyer required to report misconduct?
A
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.
23
Q
What rules govern attorney-client privilege or civil litigation?
A
Assume that the federal rules of evidence and of civil procedure govern the question unless told otherwise.
24
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.
25
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.
26
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.
27
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.
28
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.
29
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.
30
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.
31
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.
32
What are a lawyer's pro bono aspirational goals?
50 hours of work for free or reduced fees for persons of limited means.
33
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.
34
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.
35
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.
36
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.
37
What are the limitations on trade names?
They cannot imply any connection with a government agency or a public or charitable legal services organization.
38
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.
39
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.
40
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).
41
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.
42
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.
43
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.
44
When "should" an attorney take on a client?
When the matter is pro bono or provides advocacy for the defenseless, oppressed or unpopular.
45
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.
46
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.
47
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.
48
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.
49
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).
50
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.
51
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.
52
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.
53
What are the limitations on limiting the scope of an engagement?
The client must give informed consent confirmed in writing.
54
Who decides the objectives of representation?
The client, so long as the objective is lawful.
55
Who decides whether to settle a case?
The client.
56
In a criminal case, who decides whether or not to plead guilty, waive a jury trial, or testify?
The client, although the lawyer may not allow the client to testify if he has reason to know the client plans to commit perjury.
57
Who decides what tactics should be used to meet an objective?
The lawyer, but he must consult with the client about the tactics he plans to use.
58
What is required of attorneys under the duty to communicate?
The lawyer must communicate with the client so that the client can make informed decisions that belong to the client.
The lawyer must keep the client reasonably informed about the status of the matter.
The lawyer must respond timely to requests for information.
The lawyer must inform the client about ethical limitations on his conduct.
59
What are the exceptions to the duty to communicate?
A lawyer may delay providing information to a client if the client is likely to act imprudently, and a lawyer may withhold information from a client if under a court order to do so
60
What are the two ways a lawyer may acquire competence in a subject matter?
Through study or association with co-counsel. Although in an emergency, a lawyer may give assistance as needed and then gain competence or turn the matter over to a competent lawyer.
61
What must be proven in a legal malpractice case?
Duty, Breach, Causation, Damages.
The client must prove that "but for" the incompetent or unethical representation, the client would have achieved it's desired outcome.
In a criminal case, a majority of jurisdictions require the client to prove that he was actually innocent.
A client who settles may still bring a claim against a lawyer.
A client's waiver of malpractice and negligence claims is valid only if the client had been advised by an independent attorney or the waiver occurs after the malpractice has occurred.
62
Can a third party sue a lawyer for malpractice?
Only when that person would have been an intended beneficiary of the lawyer's services, such as a beneficiary of a will.
63
What does the duty of diligence require of an attorney?
An attorney is required to prosecute the case promptly without unnecessary delay, even if personal or family matters may present scheduling conflicts.
An attorney is also responsible to actively carry on the relationship until terminated. Solo practitioners should have contingency plans in the event of death or disability.
64
What is protected by the attorney-client privilege?
Communications between a client or the client's agent and a lawyer or lawyer's agent made in confidence, for the purpose of securing legal advice, and not for the purpose of furthering a crime or fraud.
65
When may a lawyer divulge confidential information or information protected by the AC privilege?
To prevent reasonably certain death or bodily harm.
To prevent or rectify substantial financial injury achieved through the client's fraud or where the lawyer's services were used in furtherance of the crime or fraud.
When the lawyer seeks advice about his ethical duties from another lawyer in relation to a client matter.
To defend against civil or criminal claims against the lawyer.
Under a court order, disclosure of optionally disclosable information becomes mandatory.
Reporting to highest authority in organization to prevent harm to the client.
To remedy any false testimony the lawyer has offered.
66
How may the AC privilege be waived?
If the client chooses to waive the privilege; if the client or agent discloses the information; raising an advice of counsel defense; suing lawyer for malpractice waives the privilege for privileged information at issue.
67
Does the privilege survive death?
Yes.
68
What information is considered confidential?
All information relating to the representation, including publicly available information. Some states consider any embarrassing or detrimental information confidential.
69
What is opinion or core work product?
A lawyers mental impressions and strategies. Core work product is protected from discovery unless the opposing party shows an extraordinary need.
70
What is qualified work product?
Lists of witnesses or other information not bearing on principal strategy. Subject to disclosure if the party shows a substantial need or undue hardship.
71
What is direct adversity?
Suing or negotiating against a current client.
72
What is a conflict of interest in general?
Where representation of a current client would be materially limited by a lawyer's duty to someone else.
It is a conflict of interest to be adverse to a current client even if the adversity is unrelated to what you do for the current client.
73
May a lawyer represent two economic competitors?
Representation in two non-adverse matters is not a conflict in itself, but advising one how to compete against the other is a conflict if they are both current clients.
74
What must a lawyer do to get client consent in the event of a possibly adverse representation?
Reasonably believe he can competently represent each client; obtain informed consent, confirmed in writing.
75
What is the hot potato rule?
A lawyer may not drop one client abruptly to take on an adverse matter.
76
What are the requirements for business transactions with clients?
The transaction must be 1) fair and reasonable; 2) disclosed in writing; 3) client is advised to seek independent counsel; 4) client has reasonable opportunity to seek independent counsel; 5) client gives informed written consent.
77
When may a lawyer solicit gifts or inheritances from a client?
Relatives of the lawyer.
78
When may a lawyer draft a document providing for a gift to the lawyer or any relative of the lawyer?
If the client is a relative.
79
What is required to constitute informed consent?
Informing the client of implications, disadvantages, etc, of the waiver of the conflict.
80
What constitutes independent judgment?
A candid assessment, independent of outside influences, referring to social or moral factors (optional).
A lawyer may seek out advice from other specialists in providing independent judgment.
81
When must a lawyer keep a client's funds in a separate account?
When the client pays a retainer or advances costs for the matter. Non-refundable retainers don't need to be separated.
82
When should an attorney deposit client funds in an IOLTA Trust account?
When the amount is small and the money will only be in the account for a short period so that the interest generated would not exceed the cost of opening the account.
This is considered a "taking" for 5th Amendment purposes, but the compensation is so small that no compensation is owed.
83
When should a lawyer deposit client funds in an interest bearing account?
When the interest paid will exceed the costs of opening the account?
84
What should an attorney do with disputed funds?
Keep them in the client trust account. Even if the client unfairly and unreasonably contests ownership of funds, the lawyer must promptly initiate a legal proceeding to determine who owns the funds.
85
What is a lawyer's duty to client property?
The lawyer must keep the property safe and separate from the lawyer' sown property.
A safe deposit box is a typical method for achieving this.
A lawyer's duty or interest to her client cannot also violate another duty, such as if the lawyer acts as an escrow agent.
86
What are the requirements of attorney fee arrangements?
Fees must be reasonable based on time and labor required; skill required; customary market rate; results obtained; experience; reputation; ability.
Scope of representation and fee shall be communicated to client in writing.
Contingent fees must state whether expenses will be deducted before or after contingency is calculated and a written document will be presented to the client at the end of the representation accounting for the final fee dispersal.
87
When may a lawyer split fees?
If the client gives informed written consent, the total fee is reasonable, and each lawyer's fee is proportional to the services they performed or if each lawyer assumed joint responsibility for the representation.
88
When is a court or tribunal's permission needed to terminate an ACR?
Once the lawyer has made an appearance.
If the tribunal orders the lawyer to continue, the lawyer must do so even if the ethics rules suggest that the lawyer withdraw.
89
When may a client terminate an ACR?
The client has a right to terminate an attorney at any time, subject to a requirement that a tribunal approve in the event of on-going litigation.
90
Under what circumstances must a lawyer terminate an ACR?
Continuing would breach ethics or law.
Lawyer's physical or mental condition materially impairs the lawyer's ability to carry out the representation.
The lawyer is discharged.
91
Under what circumstances may a lawyer end and ACR?
Termination can be done without material adverse effect on the interest of the client.
Client persists in conduct the lawyer reasonably believes is criminal or fraudulent.
Client has used lawyer's services to perpetuate a crime or fraud.
Client insists on action repugnant to the lawyer and lawyer has a fundamental disagreement.
Client has breached an obligation or duty to the lawyer and the client was given reasonable warning that the lawyer would withdraw if breach was not remedied.
Representation would unduly burden the lawyer financially or client has rendered ACR unreasonably difficult.
Other good grounds.
92
Under what circumstances will termination be implied upon completion of the objectives of representation?
If the engagement letter provides and the lawyer has not engaged in repeated representations for the client over time. If there have been repeated representations, completion of a single task may not end the ACR.
Typically, a written termination letter will signal the end of an ACR.
93
When does termination of an ACR by operation of law occur?
Death or incapacity of a lawyer; death or incapacity of a client; court ordered termination; when a lawyer changes firms (client has right to decide who will continue to represent her).
94
When is a motion for substitution of counsel required?
When a lawyer and client agree that withdrawal is appropriate and a case is pending, a court may require a substitution of counsel.
95
When is a contested motion to withdraw required?
When the lawyer and client do not agree on withdrawal or termination of the ACR.
The lawyer must bring this motion in a manner that will not prejudice the client's interests.
96
What duties does a lawyer have upon terminating an ACR?
Comply with tribunal rules.
Notify client and new counsel of upcoming deadlines.
Surrender information and documents in client's file promptly (may not withhold info until payment at ABA).
Return unearned fees.
97
What duties does a lawyer have after terminating an ACR?
Maintain confidentiality.
Forward any communications to client or successor counsel relating to scope of ACR.
Maintain a duty of loyalty, and avoid conflicts of interest that are created by the receipt of former client's confidential information.
A minority suggests that the duty of loyalty prevents a lawyer from attacking work product made in the course of a previous ACR.
98
When may a lawyer obtain literary publishing rights from a client?
After conclusion of the matter but never before.
99
What types of financial assistance may a lawyer provide a client?
Advancement of court costs and litigation expenses where repayment is contingent on success.
Court costs and fees for indigent clients.
100
When may a lawyer negotiate an aggregate settlement?
When each client gives informed signed written consent and the lawyer's disclosure states the existence and nature of the claims and settlements for all participants.
A lawyer does not need to disclose these terms of the settlement is for a criminal case that does involve a guilty or nolo contendre plea.
101
When may a lawyer limit or settle a malpractice liability?
A lawyer may limit malpractice liability if the client is represented by independent counsel regarding the limitation.
A lawyer may settle a malpractice case after the client is advised in writing to seek independent counsel and is given a reasonable opportunity to do so regarding the settlement.
102
Under what circumstances may a lawyer have a sexual relationship with a client?
Only when the relationship predates the ACR.
103
When may an attorney have a proprietary interest in an ongoing litigation?
Never, except that a lawyer may transact with a client for a lien or for contingency fees.
104
When must a lawyer serving in a pro bono or legal services capacity refrain from taking action?
When the attorney knows that the action will be adverse to his client. If there is a question, the attorney must perform a conflicts check.
If the attorney knows that a client may benefit, he shall disclose the fact.
105
When may a lawyer take on a client that is adverse to a former client?
So long as the new matter is not the same or substantially related to the matter that the lawyer previously handled for the former client.
106
What will a court consider when analyzing whether a matter is the same or substantially related?
The danger that the former client's confidences will be used against the client, similarity of legal issues, whether the facts disclosed in the previous matter would be useful against the former client.
107
May a lawyer take on a client that was adverse to a client represented by a former firm?
As long as the lawyer was screened off, or so long as the matter is not the same or substantially related to the matter the lawyer's old firm worked on.
108
Under what circumstances may a lawyer formerly employed by the government participate in other matters?
As long as the lawyer did not personally and substantially participate in the matter as a government employee.
That lawyer may also not take an adverse position to a person whom the lawyer had obtained confidential information while employed by the gov't.
109
Under what circumstances may a current gov't lawyer participate in another matter?
When they did not participate personally and substantially.
These lawyers may also not negotiate for private employment with a party in a matter in which the lawyer is participating personally and substantially.
110
Under what circumstances may a neutral arbitrator participate in another matter?
As long as they didn't participate personally and substantially in a matter in which that the new client was also involved in.
But may do so if all parties provide written consent.
111
When may a neutral arbitrator negotiate for private employment?
Only if the arbitrator did not participate personally and substantially. Law clerks may negotiate, but after giving notice to their supervisor.
112
When is a former arbitrator's conflicts imputed to other lawyers at the firm?
The former arbitrator's disqualification is imputed to the firm unless the arbitrator is screened, enjoys no portion of the fees and timely notice is given to the parties and the appropriate tribunal.
113
When may conflicts of interest arise with third parties?
When the third party is paying for the representation (such as an insurer) and the lawyer may feel that he has to divulge client confidences or allow the third party to make client decisions.
Personal or familial relationships with opposing counsel are also conflicts if they materially limit the lawyer's ability to represent the client.
114
When are a lawyer's conflicts imputed to a firm?
A lawyer's conflict will not be imputed to the firm if the conflict arises from a personal interest of the disqualified lawyer and does not present a significant risk of materially limiting the representation of the client by other members of the firm.
115
When will a conflict from a lawyer's previous place of employment not be imputed to a firm?
The disqualified lawyer is timely screened including from participating in the fee;
and written notice is promptly given to the affected former client including a description of the screen, a statement that the lawyer and firm are complying with the screen, a statement that review may be available, and an agreement to respond to written inquiries about the screen, and certificates of compliance are given to the former client upon request and at the conclusion of the screen.
116
When may a firm take a client that is adverse to the client of a departed lawyer?
The new matter is not the same or substantially related to that which the firm represented the departing client.
All lawyers remaining in the firm have no confidential information material to the new matter.
117
May imputed conflicts be waived?
Yes.
118
How does an attorney's duty to not make false statements affect negotiations?
Statements about price or value are not considered factual representations.
The law of fraud, however, still governs the lawyer's conduct. If the lawyer makes a false statement or materially misleading omission, or fails to disclose a fact that the client is legally required to disclose, the lawyer may be liable under a fraud theory.
119
How would an attorney satisfy his duty to disclose material facts to avoid assisting a crime or fraud?
1) withdraw from representation;
2) make a noisy withdrawal and disaffirm any prior express or implied representations made to third or opposing parties;
3) lawyer may reveal specific client confidences when necessary to prevent assisting the crime or fraud.
120
What are a lawyer's duties to third parties?
The lawyer shall never use means that have no substantial purpose other than to embarrass, delay or burden a third person;
a lawyer shall never use methods of obtaining evidence that violate the legal rights of a third person;
A lawyer who receives a document relating to the representation of the lawyer's client and knows or should reasonably know that the document was inadvertently sent shall promptly notify the sender.
121
What are a lawyer's duties to represented persons?
A lawyer shall not communicate directly with a person who he knows is represented by another lawyer about the subject of representation without the consent of the other lawyer or other legal authority.
122
What are an attorney's duties to unrepresented parties?
A lawyer shall not state or imply that they are disinterested;
If the lawyer knows that the third party misunderstands the lawyer's role, the lawyer shall take reasonable steps to correct the misunderstanding;
If the lawyer knows that the interests of the unrepresented non-client are possibly adverse to the lawyer's client, the lawyer shall not give legal advice to the unrepresented non-client other than the advice to secure counsel.
123
What is required of an attorney in order to satisfy his duty of candor to the tribunal?
Reveal governing law in jurisdiction even if unfavorable;
Not offer evidence that the lawyer knows to be false, even if presented by a criminal defendant;
Remedy false presentations of evidence, which trumps the duty I confidentiality.
124
What are an attorney's duties to opposing counsel?
Not obstruct access to evidence or material with potential evidentiary value;
Not falsify evidence or offer witnesses improper inducements;
Not oppose or make frivolous discovery demands;
Not refer to matters the lawyer does not believe are supportable by admissible evidence;
Not request a non-client to refrain from giving information to another party unless the lawyer believes the person's interests will not be adversely affected by refraining from giving the information.
125
What are an attorney's duties to preserve tribunal impartiality and decorum?
Shall not engage in acts intending to disrupt the courtroom;
Shall not engage in improper contacts with, or attempt to inappropriately influence, anyone associated with the tribunal (judge, staff, jurors)
126
What may an attorney convey to the public about a trial?
Basic facts such as the claim and information in the public record such as scheduling and time and place of arrest.
A lawyer shall not make statements that will have a substantial likelihood of materially prejudicing an adjudicative proceeding.
127
When may a lawyer who is an advocate at a trial also serve as a witness?
When their testimony concerns an uncontested issue; or the nature of legal services provided; or when disqualification of the lawyer would work a substantial prejudice to the client.
A lawyer at the same firm as the advocate may substitute as an advocate in the event of the third scenario.
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What are the duties of a prosecutor?
Refrain from prosecuting claims they know are not supported by probable cause;
Make reasonable efforts to ensure that an accused has been advised of the right to counsel;
Shall not seek to obtain waivers of important rights (such as a preliminary hearing) from unrepresented accuseds;
Shall make a timely disclosure of exculpatory materials;
Shall not heighten public condemnation of the accused;
Shall disclose post-conviction evidence that creates a reasonable likelihood that a convicted defendant did not commit the offense for which he was convicted to an appropriate authority or to the defendant if the conviction was obtained in the prosecutor's jurisdiction;
If the prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor's jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.
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What is the duty of a lawyer serving as an advocate in a non-adjudicative proceeding?
Shall disclose that he is participating in a representative capacity and owes a duty of candor to the non-adjudicators body.
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What are an attorney's duties to his client when requested to evaluate the client at the request of a non-client?
He must get the client's authorization before revealing confidential information and must obtain the client's informed consent if the evaluation will materially and adversely affect the client.
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May an attorney recommend or enter a settlement agreement that restricts her right to practice?
No. Rule 5.6:
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May a lawyer reveal client confidences to protect himself from liability?
Yes, under the self-defense exception to the attorney-client privilege created under Meyerson.
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Is drafting a bill considered "representation" or "involvement in a matter" for purposes of conflict of interest?
No.
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What are the limitations on soliciting clients for legal insurance providers?
The provider cannot solicit persons it knows are in need of legal services in a particular matter that are covered by its insurance plan.
