Class 5 - Professional Discipline Flashcards
Terms
“Guilt” = Criminal liability “Discipline” = Bar “Liable” = Civil liability
ABA Rule 5.5 (a) & (b)
Can’t practice law in a jurisdiction in violation of that jurisdiction’s regulations
Attorney that is not admitted shall not:
- Establish office or other systematic …; or
- Hold out to public or represent that is admitted to practice in that jurisdiction
ABA Rule 1.1 - Competence
Attorney shall provide competent representation to a client which requires
Legal knowledge, Skill, Thoroughness, and
Preparation reasonably necessary for representation.
[NOTE: Experience is not listed. See Comments 2 and 4.]
ABA Rule 1.3 - Diligence
Attorney shall act with reasonable diligence and promptness
ABA Rule 5.1 (a) & (b) - Duty of Supervisors
Partner shall make reasonable efforts to make sure the firm has measures giving reasonable assurance all lawyers conform to rules of professional conduct
Supervising attorney shall make reasonable efforts to ensure associate conforms to rules of professional conduct
ABA Rule 5.1 (c) & 5.3 - Duty of Supervisors
An attorney is responsible for another attorney’s or non-attorney’s violation if:
Attorney orders or with knowledge ratifies the other’s conduct; or
Partner or attorney who has direct supervisory or comparable managerial authority and knows of conduct at time when consequences can be avoided or mitigated but fails to take reasonable remedial action
ABA Rule 5.2 - Duty of Subordinate
Being told to act in violation of rules is no excuse
Subordinate does not violate rules if she acts in accordance with supervisory lawyer’s reasonable resolution of an arguable question of professional duty
ABA Rule 1.4 - Communication
Attorney shall promptly inform client of any decision which requires client’s informed consent
Attorney shall reasonably consult with client about means of accomplishing client’s objectives
Attorney shall keep client reasonably informed of the status of the matter
Attorney shall promptly comply with client’s reasonable requests for information
Attorney shall consult with client about any relevant limitation on attorney’s conduct when the attorney knows that client expects assistance not allowed by law
Attorney shall explain a matter to the extent reasonably necessary to permit the client to make an informed decision
ABA Rule 1.14 - Clients with Diminished Capacity
Maintain normal client-attorney relationship, as reasonably possible
If attorney reasonably believes client is at risk of substantial physical, financial or other harm unless action is taken and can’t adequately act in client’s own interest, attorney may take reasonably necessary protective action…
When taking protective action the attorney is impliedly authorized to reveal information protected by 1.6 (confidential)
ABA Rule 1.8 (h) - Limiting Liability to Client
Attorney can’t prospectively limit her liability to the client unless client is independently represented in making that agreement
Attorney can’t settle claim or potential claim for malpractice unless she informs client in writing that client may seek advice of an independent lawyer and client is given reasonable opportunity to seek that advice
ABA Rule 1.2 - Scope of Representation
Attorney shall abide by client’s decisions concerning objectives of representation and shall consult with client regarding the means by which the objectives are to be pursued.
Attorney shall abide by client’s decision to settle in a civil matter.
Attorney shall abide by client’s decision in criminal matter as to a plea to be entered, whether to waive jury trial, and whether the client will testify.
ABA Rule 1.2 - Scope of Representation: 2 Exceptions
1.2(c) & (d):
Attorney may limit scope of representation if limitation is reasonable under the circumstances and client gives informed consent
Attorney shall not counsel client to engage in criminal or fraudulent conduct but can discuss legal consequences of proposed conduct
ABA Rule 5.4 (a) - Sharing Fees with Non- Lawyers
Attorney may not share legal fees with non-attorney except:
Payment to dead attorney’s estate
Non-attorney may be included in a compensation or retirement plan, or
Attorney may share court-awarded legal fees with a nonprofit org that employed or recommended employment
ABA Rule 5.4 (b) & (d) - Relationships with Non-Lawyers
Attorney can’t form partnership with non-lawyer if any of part of the partnership practices law
Attorney can’t practice if non-lawyer owns any interest in company
Attorney can’t practice if non-lawyer is officer of company
Attorney can’t practice if non-lawyer has right to direct or control professional judgment of attorney
