Chapter 3: Ethics Flashcards
Ethics
Standards by which conduct is measured; usually measured by a code
Objective of professional ethics for legal assistants
- Maintain high levels of competence
2. Refrain from unauthorized practice of law
T/F: Lawyers cannot pay referral fees to private parties
True
T/F: Lawyers cannot have direct contact with a person thought to have a need for legal services prior to any professional relationship w/that person
True
T/F: A lawyer cannot make a false statement of material fact or law to a court
True
T/F: a lawyer cannot knowingly offer false evidence
True
T/F: a lawyer cannot knowingly fail to disclose material facts to a court when necessary to prevent a client from committing fraud or some other criminal act
True
T/F: if a lawyer has uncovered a former case or statute that go against the client, the lawyer is not required to disclose these facts to the court
False; pg 175
T/F: a lawyer cannot impede opposing counsel’s access to evidence
True
T/F: a lawyer can offer an illegal inducement to a witness in exchange for a witness’s testimony
False
T/F: a fact witness can, in most cases, be paid a fixed statutory fee
True; a fact witness can be paid statutory fee + expenses within the boundaries established by law or court rule (pg 175)
T/F: An expert witness can be paid a contingent fee for their testimony
False
T/F: a lawyer is not required to keep a client informed about their case
False; lawyer must keep a client reasonably informed about the status of their case
T/F: a lawyer cannot have contact with an opposing party
True; the only time a lawyer can make contact is when opposing counsel makes an agreement to have contact in advance; this is pretty rare
T/F: a lawyer can give legal advise to an unrepresented person
False; aside from telling them to seek counsel, smart lawyers don’t give out legal advise to unrepresented persons
Attorney client privilege and client confidentiality are …
Not the same
T/F: client confidentiality continues after the attorney-client relationship ends
True
Confidentiality of Information
A lawyer cannot disclose information concerning the representation of a client unless the client consents or unless the disclosure is necessary to carry out representation
T/F: an exception to the confidentiality rule is if a lawyer is establishing his defense against criminal charges
True
T/F: a lawyer cannot break the client confidentiality rule, even if the client intends to commit a future criminal act
False, pg 176
T/F: a clients perjured testimony given without the lawyers prior knowledge is also excepted from the confidentiality protection
True
The Confidentiality rule includes the following:
- Discussing the case with others at the firm not working on the case
- Discussing the case to opposing counsel beyond what is needed to accomplish the objective
- Confirming to third parties that the client is represented by the firm, unless that fact is made a matter of public record
- Phone calls where identifying information can be overheard
- Permitting client files to be seen in plain view
A lawyer cannot represent opposing parties unless:
- The lawyer believes that representation will not affect either party adversely
- Each party consents
T/F: a lawyer can require a client to prospectively agree to limit the lawyer’s malpractice liability in a case
False
T/F: a lawyer cannot negotiate media/literary rights to a portrayal based on his or her representation in a case
True
T/F: a lawyer cannot provide financial assistance to a client in a pending claim, except court costs can be advanced in a contingency fee
True
T/F: a lawyer is reasonably allowed to represent a client, even though the lawyer is closely related to opposing counsel
False
T/F: a lawyer cannot advise or assist a client in fraudulent or criminal conduct
True
Contingent fee
A percentage of the total amount collected on behalf of a client. Usually used in personal injury, property damage, and debt collection
T/F: fees can be divided between a paralegal and a lawyer
False; pg 179
T/F: if a lawyer is unavailable, a paralegal can discuss fees with a client
False; a non-lawyer cannot discuss fees ever
Champerty
an illegal agreement in which a person with no previous interest in a lawsuit finances it with a view to sharing the disputed property if the suit succeeds.
T/F: A lawyer can file a lawsuit that is unwarranted under existing law
False. Unless there is a “good faith” argument that can be made to support changing existing law, such a lawsuit would be considered a “frivolous claim”
Discovery request
“Discovery, in the law of the United States and other countries, is a pre-trial procedure in a lawsuit in which each party, through the law of civil procedure, can obtain evidence from the other party or parties by means of discovery devices such as a request for answers to interrogatories, request for production of documents, request for admissions and depositions. “
Property of the Client (Attorney Trust Account Provision)
Money, property, and other assets belonging to the client must be separate from the lawyers own property. Clients must be notified immediately about the receipt of property/money
T/F: A lawyer must not represent a client, or must withdraw representation if that representation will result in a violation of the rules of professional conduct
True; if the laywer’s physical or mental condition impairs the ability to represent the client, this would be an example where representation should be withdrawn. If the court orders the lawyer to continue representation, the lawyer must do so. The client also needs to receive reasonable notice that representation is withdrawn so he/she can seek alternative counsel
T/F: If the client pressures counsel to assist in illegal conduct, the lawyer is not required to withdraw representation
False; if the client is going to knowingly do something illegal or that will force the lawyer to violate professional conduct, the lawyer should withdraw representation
T/F: If the lawyer learns that a client is guilty, he or she may withdraw representaiton
False; lawyers have a duty to protect the rights of all clients without regard to guilt or innocence
UPL
Unauthorized Practice of Law; no common definition across states, however a violation of UPL statute is generally a criminal offense
Practice of Law:
Any act that involves the giving of legal advise or opinions to others or involves representing others in legal matters
Examples of “practice of law”
- accepting cases
- setting legal fees
- giving direct legal advise (to clients or otherwise)
- negotiate legal matters on behalf of clients
- represent clients in court settings
T/F: If a lawyer is not present, the paralegal can give direct legal advise to a client
False; would be considered an unauthorized practice of law
Aside from practicing law, legal assistants can perform virtually all other tasks for lawyers, as long as these three criteria have been met:
- all work by the legal assistant is being properly supervised by a licensed attorney
- the supervising attorney maintains a direct relationship with the client
- the supervising attorney assumes full responsibility for the work product
Consequences for a paralegal who violates UPL:
- criminal prosecution
- civil liability to client
- termination of employment
Jailhouse Lawyer
a person permitted to provide legal services to inmates as long as 1) the inmate requests it, 2) no other legal services are reasonably available, and 3) the legal services are related solely to post-sentencing matters
T/F: Jane finds out that her relative, Attorney Drake, has passed the bar and is working in real estate law. Jane gets divorced. Jane asks Drake to be her divorce lawyer. Drake states that he is a specialist in real estate law and can’t help her. Is this permissible?
False; lawyers cannot state that they are a specialist unless he/she is a patent lawyer. This provision is used to prevent lawyers from portraying themselves as specialists
T/F: Attorney Arnold Schwarzenegger decides to open a firm named “Schwarzenegger and Associates”. He is then elected to public office and is not able to actively work at the firm, but still has several lawyers handling cases. Is this permissible?
False; a lawyer cannot use a firm name, letterhead, or other professional designation that provides misleading information. The name of a lawyer holding public office cannot be used in the name of a firm during any period when the lawyer is not actively practicing with the firm. Sorry, Ah-nold.
When is it okay for a paralegal to sign their name on firm stationary?
- Non-lawyer status is clear
2. Letter does not contain direct legal advise or violates any other ethics rule (including UPL)
NALA Code of Ethics
Set of 10 canons for paralegals
Legal Assistant/Paralegal NALA definition
“A legal assistant or paralegal is a person qualified by education, training or work experience who is employed or retained by a lawyer, law office, corporation, or government agency who performs specifically delegated substantive legal work for which a lawyer is responsible.
NALA Canon 1
A paralegal must not perform any of the duties that attorneys only may perform, nor take any actions that attorneys may not take
NALA Canon 2
A paralegal may perform any task which is properly delegated and supervised by an attorney, as long as the attorney is ultimately responsible to the client, maintains a direct relationship with the client, and assumes professional responsibility for the work product.
NALA Canon 3
A paralegal can’t do the following:
- engage or encourage unauthorized UPL
- set fees, give legal advice, represent a client in a court agency unless otherwise allowed by the court, etc.
- engage or conduct actions which would assist or involve the attorney in a violation in professional ethics or give the appearance of professional impropriety
NALA Canon 4
A paralegal must use discretion and professional judgement commensurate with knowledge and experience but must not render independent legal judgement in place of an attorney
NALA Canon 5
A paralegal must disclose his or her status as a paralegal at the outset of any professional relationship with a client, attorney, a court, or administrative agency
NALA Canon 6
A paralegal must strive to maintain the integrity and a high degree of competency through education and training with respect to professional responsibility (including continued education, etc.)
NALA Canon 7
A paralegal must protect the confidences of a client and must not violate any rule or statute now in effect or hereafter enacted controlling the doctrine of privileged communications between a client and attorney
NALA Canon 8
A paralegal must disclose to his or her employer or prospective employer any pre-existing client or personal relationship that may conflict with the interests of the employer or prospective employer and/or their clients
NALA Canon 9
A paralegal must do all other things incidental, necessary, or expedient for the attainment of the ethics and responsibilities as defined by statute or rule of court
NALA Canon 10
A paralegal’s conduct is guided by bar associations’ codes of professional responsibility and rules of professional conduct
T/F: It is advisable to use the term “legal aide” when introducing yourself to a client, versus the term “paralegal”
False; alternative titles may confuse clients or lead them to believe that you are a type of lawyer
T/F: If a paralegal is asked to give legal advise to a non-client, they may do so because they have not been paid/an attorney-client relationship has not been established
False; a paralegal can never give legal advise under any circumstances
T/F: A lawyer may only communicate with an opposing party concerning representation when opposing counsel has given their consent prior
True; no other contact may be made regarding the case unless opposing counsel agreed beforehand
T/F: A paralegal’s time may be billed to a client only when it constitutes the performance of legal services
True; can only be legal services, not administrative tasks
