BarMax Flashcards
When a lawyer-client relationship forms, the lawyer is bound by all duties of professional responsibility to that client. This is true whether or not ___________.
The lawyer realizes that a client-lawyer relationship has formed
The general duty is that an attorney has no obligation to accept a client other than _______.
A court-appointed client
An attorney has an ethical duty to accept representation if the attorney was appointed by the court unless there is good cause to decline the representation. Good cause can exist for:
1) lack of competence,
2) improper conflict of interest, or
3) unjust financial burden
Pro Bono Word - ABA vs. CA
ABA: encourages 50hrs
CA: not in rules, but bar. Does encourage & support pro bono work
ABA
A lawyer must reject representation if:
1) the representation would cause the lawyer to violate any rules of professional conduct
[ABA = actual knowledge ; CA = knows or reasonably should know]
OR
2) if the lawyer’s physical or mental condition renders it unreasonably difficult to carry out the representation effectively
ABA
A lawyer must reject representation if:
1) _________
OR
2) if the lawyer’s physical or mental condition renders it unreasonably difficult to carry out the representation effectively
the representation would cause the lawyer to violate any rules of professional conduct
[ABA = actual knowledge ; CA = knows or reasonably should know]
ABA
A lawyer must reject representation if:
1) the representation would cause the lawyer to violate any rules of professional conduct
[ABA = actual knowledge ; CA = knows or reasonably should know]
OR
2) _______
if the lawyer’s physical or mental condition renders it unreasonably difficult to carry out the representation effectively
CA:
In addition to ABA rules, a lawyer must decline representation if:
1) malicious harassment
2) frivolous claims
Contingent Fee: ABA vs. CA
ABA: 1) writing signed by the client, 2) state method by which fee will be determined
CA: 1) writing signed by client & lawyer, 2) state how work not covered by contingent fee will be paid
CA Contingent Fee Requirements
1) writing signed by client & lawyer,
2) state how work not covered by contingent fee will be paid
ABA contingent Fee Requirements
1) writing signed by the client,
2) state method by which fee will be determined
A contingent fee is not permitted in what matters?
Domestic Relations Matters: divorce, alimony, property settlement
Or
Criminal Matters
Fee Rules: ABA vs. CA
ABA: can’t make agreement for, charge, or collect an unreasonable fee or unreasonable amount for expenses
CA: not unconscionably high
CA allows referral fees, so long as they ____
Meet the requirements of fee sharing
A lawyer shall not give anything of value to a person for recommending the lawyer’s services, but may give ______.
A nominal gift
A lawyer has a duty to ________ about the case, comply with reasonable requests for information, and consult with a client if the client expects assistance not in accordance with the ethics rules.
Keep clients informed
A lawyer has a duty to keep clients informed about the case, comply with _________, and consult with a client if the client expects assistance not in accordance with the ethics rules.
Reasonable requests for information
A lawyer has a duty to keep clients informed about the case, comply with reasonable requests for information, and consult with a client if the client expects assistance ________.
not in accordance with the ethics rules
A lawyer shall provide competent representation to a client. Competent representation requires:
The knowledge, skill, thoroughness, and preparation reasonably necessary for the representation
CA: A lawyer is subject to discipline if the lawyer ___________ fails to perform legal services with competence.
intentionally, recklessly, or repeatedly
CA: A lawyer is subject to discipline if the lawyer intentionally, recklessly, or repeatedly __________.
fails to perform legal services with competence
A lawyer shall act with reasonable _____ and promptness in representing a client.
Diligence
A lawyer shall act with reasonable diligence and ______ in representing a client.
Promptness
A lawyer shall not knowingly:
1) make a ___________ to a tribunal or fail to correct a false statement of material fact or law previously made by the lawyer,
2) fail to disclose to the tribunal legal authority from the controlling jurisdiction, or
3) offer evidence that the lawyer knows to be false
false statement of fact or law
A lawyer shall not knowingly:
1) make a false statement of fact or law to a tribunal or __________,
2) fail to disclose to the tribunal legal authority from the controlling jurisdiction, or
3) offer evidence that the lawyer knows to be false
fail to correct a false statement of material fact or law previously made by the lawyer
A lawyer shall not knowingly:
1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made by the lawyer,
2) fail to disclose to the tribunal _________, or
3) offer evidence that the lawyer knows to be false
legal authority from the controlling jurisdiction
A lawyer shall not knowingly:
1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made by the lawyer,
2) fail to disclose to the tribunal legal authority from the controlling jurisdiction, or
3) offer evidence that _______
the lawyer knows to be false
A lawyer must not communicate directly or indirectly with a non-client about a legal matter when the lawyer knows the non-client is represented by another lawyer in the matter, unless ______.
The lawyer has consent of that party’s lawyer
When communicating with an unrepresented party adverse to her client, a lawyer may not:
1) represent herself as disinterested in the matter,
2) seek any privileged or confidential information, or
3) give legal advice other than the advice to secure counsel
ABA: A lawyer may not use legal means that have no substantial purpose other than to ______________.
CA: A lawyer may not use means that have no substantial purpose other than to delay or prolong the proceedings or cause needless expense.
embarrass, burden or delay; or methods of obtaining evidence that violate a person’s legal rights
ABA: A lawyer may not use legal means that have no substantial purpose other than to embarrass, burden or delay; or methods of obtaining evidence that violate a person’s legal rights.
CA: A lawyer may not use means that have no substantial purpose other than to _________.
delay or prolong the proceedings or cause needless expense
Inadvertent Receipt of Privileged Information - ABA vs. CA
ABA: A lawyer who receives privileged information and knows or should know that it was inadvertently sent must promptly notify the sender. The rule does not say that the lawyer cannot read or use the information.
CA: A lawyer who receives privileged information and knows or should know that it was inadvertently sent must refrain from examining the document any more than is necessary to determine that it is privileged, promptly notify the sender, AND return the document to the sender.
ABA: A lawyer who receives privileged information and knows or should know that it was inadvertently sent must __________.
CA: A lawyer who receives privileged information and knows or should know that it was inadvertently sent must refrain from examining the document any more than is necessary to determine that it is privileged, promptly notify the sender, AND return the document to the sender.
promptly notify the sender. The rule does not say that the lawyer cannot read or use the information.
ABA: A lawyer who receives privileged information and knows or should know that it was inadvertently sent must promptly notify the sender. The rule does not say that the lawyer cannot read or use the information.
CA: A lawyer who receives privileged information and knows or should know that it was inadvertently sent must ___________.
refrain from examining the document any more than is necessary to determine that it is privileged, promptly notify the sender, AND return the document to the sender.
A lawyer may not make any known false statement of law or fact, must correct any material false statement of fact or law previously made, and must disclose controlling legal authority directly adverse to client’s position.
CA adds that a lawyer may not ______.
knowingly misquote any legal authority
A lawyer may withdraw evidence based on a ________.
Exception: A lawyer may not refuse to let a criminal defendant testify solely based on a reasonable belief that the defendant will give false testimony. A criminal defendant’s constitutional right to testify prevails.
a reasonable belief that the evidence is false
A lawyer may withdraw evidence based on a reasonable belief that the evidence is false.
Exception: A lawyer may not refuse to let a criminal defendant testify solely based on_______.
a reasonable belief that the defendant will give false testimony. A criminal defendant’s constitutional right to testify prevails
7 ABA factors considered when considering reasonableness/unconscionability of attorney’s fees:
1) complexity of the matter (time & labor required / novelty & difficulty of case / skill required)
2) effect on other employment
3) market (local custom)
4) AIC
5) turnaround time
6) lawyer’s expertise (experience, reputation, ability)
7) lawyer/client relationship
8) whether fee is fixed or contingent
3 additional factors considered in CA for fee reasonableness:
1) fraud or overreaching
2) failure to disclose material facts
3) relative sophistication
Under ABA, what must be communicated to client before or within a reasonable time after the start of representation?
1) scope of representation
2) rate of fee
3) expenses for which client will be responsible
In CA, fee agreements between clients and lawyers must generally be in writing if ___.
It is **reasonably foreseeable*8 that fees for services could total more than $1,000
In CA, when fees of more than $1,000 are foreseeable, any unwritten agreement is ________.
voidable by the client
In CA, when fees of more than $1,000 are foreseeable, any unwritten agreement is voidable by the client. The lawyer may _______.
Still collect a reasonable fee
4 Exceptions to CA Writing Requirement for Fees
1) less than $1,000
2) emergency situation
3) routine work for regular client
4) corporate client or business organization
