Deck 1 Flashcards
1
Q
Duty to Reject
A
A lawyer has a duty to reject representation when doing so would violate a rule of ethics or law, or when a lawyers physical or mental condition materially limits the lawyer’s ability to represent the client.
2
Q
Good Cause to Reject Court Appointments
A
1: Likely violation of MRPC
2: Client or Cause is repugnant
3: Unreasonable Financial Burden
3
Q
Requirements for Selling a Firm
A
1: Seller Ceases Practice
2: Written Notice to Clients
3: Entire Practice/area sold to one or more lawyers
4: Clients fees may not increase
4
Q
When may a lawyer share fees with a non-lawyer
A
1: Fees are paid into a deceased lawyers estate
2: Lawyer who purchases the practice of a dead, disabled or disappeared lawyer can pay to that lawyers estate an agreed upon price
3: Fees shared with law firm personnel via a comp or retirement plan
4: Lawyer shares a court awarded fee with a non-profit
5
Q
Scope, Objective and Means- Decisions made by lawyer
A
1: Procedural tactics
2: Limiting scope under reasonable circumstances with client consent.
6
Q
Decisions made by client
A
1: Objectives and Goals
2: Scope (lawyer and client can negotiate)
3: Advanced authorization
4: Acceptance of Settlement
5: Taking an Appeal
6: Criminal Testimony
7: Criminal Jury trial
8: Criminal Plea Bargains
7
Q
Decisions of a Disabled CLient
A
1: Protective action- a lawyer msut take reasonably necessary protective action.
2: Revealing confidential information in seeking a guardian
3: Emergency Legal Assistance- a lawyer may take legal action on behalf of a disabled person in emergency circumstances where they are acting in good faith.
8
Q
Client engaging in crimes or fraud
A
The lawyer is obligated to avoid assisting in crimes or fraud, if the course of action is ongoing, the lawyer must withdraw.
9
Q
Apparent Authority of a Lawyer
A
By retaining a lawyer, the client implies that the lawyer is authorized to act for the client in matters relating to the representation that are reasonably appropriate.
10
Q
Mandatory withdrawal
A
1: Resulting in a violation
2: Lawyers health impairs representation
3: DIscharge
11
Q
Permissive WIthdrawal
A
1: For any reason if no harm done to client
2: Client persists in criminal or fraudulent activity involving the lawyers services
3: Previous services used to perpetrate a crime
4: Repugnant
5: CLient fails to fulfill an obligation (pays) and has received notice
7: Unreasonable financial burden
8: CLient makes representation unreasonably difficult
9: other good cause.
12
Q
Duties upon termination
A
The lawyer must take al reasonable steps to mitigate consequences, such as providing notice, allowing time for alternative counsel, surrendering property to which the client is entitled, and refunding advance payments.
13
Q
Reasonable Fees Factors
A
1: Difficulty of the case
2: Preclusion of other employment
3: Nature of relationship and fee agreement
4: Lawyers expertise
5: AMount at issue and results obtained
6: Fees charged in locality
14
Q
Contingent fees general requirements
A
1: Must be in writing and reasonable
2: Not for criminal cases
3: Not for domestic relations cases
15
Q
Contingent fees writing requirements
A
1: Signature of client
2: Calculation methodology
3: Details of expense deduction
16
Q
Practicing Outside of Admitted Jurisidction
A
1: IN association with local lawyer
2: Pro Hac Vice
3: Mediation and Arbitration
4: Temporary practice arisign from practice in an admitted jurisdiction
17
Q
Splitting Fees: lawyer from a different firm
A
1: Proportionate fees or joint responsibility
2: Clients written consent
3: Fees are Reasonable
18
Q
Modifying a Fee
A
Must be reasonable at the time of modification and agreed to by the client.
19
Q
Retention of Disputed Fees
A
A lawyer may retain the disputed amount in a trust account. Undisputed fees must be given to client.
20
Q
Attorney Client Privilege Elements
A
1: Confidential
2: Communication for the purpose of providing or obtaining legal advice or representation.
3: CLient holds the privilege- only they can waive
4: Indefinite duration.
21
Q
Exceptions to Attorney Client Privilege
A
1: Communications made to aid or enable a crime or fraud
2: Communications relevant to a dispute between a lawyer and client
3: Communications relevant to a dispute between parties who claim through the same decedent.
4: Communications between former co-clients now adverse.
22
Q
Work Product Doctrine
A
Protects documents prepared by a party’s attorney in anticipation of litigation.
23
Q
Discovering Work Product
A
1: requesting party shows substantial need
2: requesting party cannot obtain the information by any other means without undue hardship.
*Mental impressions, conclusions, and trial tactics are always protected
24
Q
Confidentiality- genearl rule
A
A lawyer is prohibited from disclosing related to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized, or a specific exception applies
25
Prohibition of Disclosure of Easily identifiable information
A lawyers use of a hypo is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or situation involved.
26
Prospective Client
A person who consults with a lawyer about the possibility of forming a client-lawyer relationship.
27
Duty of Confidentiality to Prospective Clients
A lawyer who has learned informaitno from a prospective client is not permitted to reveal that information except as permitted by rules with regard to a former client.
28
Acting to Preserve confidentiality
A lawyer must make reasonable efforts to prevent the disclosure of information relating to a client.
29
Factors Measuring Reasonableness of Preservation
1: Sensitivity of information
2: likeihood of disclosure if additional safeguards are not employed.
3: the cost and difficulty of utilizing additional safeguards.
4: extent to which the safeguards would adversely affect lawyers representation.
30
Client AUthorized Disclosure of COnfidential informaiton
1: informed consent
2: impled authority as necessary to carry out representation
3: Within a firm
31
Exceptions to confidentiality
1: Reasonably certain death or substantial bodily harm
2: Substantial Financial Harm to Another based on clients' fraud or crime
3: Securing Legal advice about lawyers' compliance with model rules
4: Controversy between lawyer and client
5: Compliance with court order (lawyer should assert all non-frivolous defenses)
6: Detecting Conflicts of Interest
7: DIsclosure to avoid assisting in a crime
32
Personal Conflicts of interest classifications
1: Familial relation to opposing counsel (not mputed)
2: Sex (not imputed)
33
Personal Conflicts of interests general rule
A lawyer may not represent a client if the representation may be materially limited by lawyers own interests unless: (1) lawyer reasonably believes he/she will be able to provide competent and diligent representation; (2) representation is not prohibited by law; and (3) informed written consent.
34
Lawyers as Witnesses
Lawyers are generally barred from representing clients where they are likely to be a necessary witness.
35
When may a lawyer be a witness?
1: Testimony relates to an uncontested issue
2: testimony relates to the nature and value of legal services
3: DQ would create substantial hardship on client
36
Financial Assistance to clients
Genearlly not allowed except:
1) advancement of litigation costs (including repayment made contingent on outcome)
2) advancing court costs to indigent clients
37
Business K's with a Client
1: Terms must be fair and reasonable to client
2: Client must be advised in writing to seek independent counsel
3: Client consents in writing to full terms
4: Standard commercial transactions that client offers accepted
38
Limitations on Malpractice Recovery
A lawyer is prohibited from prospectively limiting malpractice liability unless the client is represented by an independent lawyer (submissions to arbitration OK)
39
Conflict of Interests Among Clients
A lawyer must not represent a client if doing so involves a concurrent conflict
40
Concurrent Conflicts of Interests
1: Representation of one client would be directly adverse to the interests of another
2: Significant risk that the representation of the client will be materially limited by the lawyers personal interests or responsibilities to another client, former client, or a third person.
41
Bypassing a Concurrent Conflict
1: The lawyer reasonably believes that they will be able to provide a competent and diligent representation of each client.
2: Representation is not prohibited by law
3: representation does not involve a direct conflict in the same litigation or proceeding
4: each affected client gives informed consent in writing.
42
Directly Adverse Clients
In no case may a lawyer represent opposing parties in a lawsuit. Absent informed written consent, a lawyer may not act as an advocate in on matter against a person the lawyer represents in another capacity even if the matters are unrelated.
43
Conflicts in Transactional matters
If a lawyer represents a potential buyer of a business, the lawyer may not represent the seller against the buyer in an unrelated matter without the informed consent of both parties in writing.
44
Conflicts between current and former clients
A lawyer who has previously represented a client must not subsequently represent a different person in the same or substantially related matter in which that person's interests are materially adverse to the interests of the former client absent informed written consent.
45
When are matters "substantially related."
tehy involve the same transaction or legal dispute, or if there is a substantial risk that confidential factual information would materially advance the clients position in the subsequent matter.
46
Information obtained in former representation
A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly rep'd a client in a matter is not permitted to reveal information relating to the representation to the disadvantage of the former client, except where waived by the former client, the info has become generally known, or the rules require.
47
Switching firms: Limits on Lawyer
A lawyer is not permitted to knowingly represent a person in the same or substantially related matter in which a firm with which the lawyer has former associated had previously represented a client whose interests are materially adverse to that person and about whom the lawyer had acquired confidential information absen informed written consent.
48
Switching Firms: Limits on former firm
If a lawyer has terminated association with a firm, the firm is not prohibited from subsequently representing a person with interests materially adverse with those of a client represented by the formerly associated lawyer unless: 1) the matter is the same or substantially related; and 2) any lawyer in the firm has confidential information related to that representation.
49
Conflict: former government lawyers
A former Gov lawyer may not represent a client in a matter which the lawyer personally and substantially participated as a gov lawyer, unless the relevant agency consents in writing.
50
Former Gov Lawyers firm
If a former government lawyer is dq'd from representation, no lawyer in that firm may knowingly undertake or continue representation unless: 1) dq'd lawyer is screened and receives no fees; and 2) written notice is promptly given to the government agency
51
Gov Lawyer Negotiation for Private employment
Not generally permitted to negotiate for employment with any person who is involved as a party or as a lawyer for a party in which the lawyer participates personally and substantially. (EXCEPTION: Law clerks with judicial consent)
52
Responsibility to a third party
A lawyer may not represent a client if there is significant risk that the representation will be materially limited by responsibilities to a third person unless: 1) lawyer reasonably believes they can provide competent and diligent rep; 2) representation is not prohibited by law; 3) client gives informed written consent.
53
Payment from a third party
Not allowed unless: 1) client provides informed consent; 2) no interference with lawyers judgment; and 3) client-lawyer confidentiality is preserved.
54
Lawyers Representation of an Organization
Duty of Loyalty to Organization
55
Duty to Constituents of Organization
Lawyer must explaint the identity of the client (org not employees) where the lawyer knows or should know that the two parties have adverse interests
56
Lawyer of Organization: Reporting misconduct
1: to authority (typically the board)
2: If the highest corporate authority fails to act in a clear violation of the law and the lawyer is reasonably certain that the action or failure to act will substantially injure the organization then the lawyer may report outside.
3: if a lawyer is engaged to investigate a violation of the law or defend the organization, teh lawyer may not reveal information related to that representation.
57
Imputed Conflicts Generally
If one lawyer in a firm is prohibited via conflict of interest, that prohibition is imputed onto the firm as a whole. Not for non-lawyer employees.
58
Bypassing Imputed conflicts
Client may waive if: 1) lawyer reasonably believes they can provide competent and diligent representation; 2) rep is not prohibited by law; 3) rep does not involve the assertion of a claim y one client against another; and 4) the affected client gives informed written consent.
59
Providing waiver notice
1: describe screening process
2: state compliance with confidentiality provisions of MRPC
3: indicate that judicial review may be available
4: provide response to any questions/objections about screening
60
Personal Conflicts Not imputed
Prohibitions based on personal interests that do not present a significant risk of materially limiting representation of a client are not imputed on the firm.
61
Conflicts from a third party neutral
A lawyer may not rep anyone in connection with a matter that the lawyer participated personally and substantially as a neutral unless all parties involved consent. (exception for a partisan arbitrator)
62
Competence
1: Does the lawyer have necessary knowledge?
2: Can the lawyer achieve necessary knowledge through prep?
3: Can lawyer associate with another lawyer to achieve competence?
4: Did the lawyer decline or with draw?
5: Does the emergency exception apply?
If yes to any-- no discipline
if no to all-- discipline
63
Association with another lawyer on a matter
The lawyer should obtain informed consent and reasonably believe that the other lawyer will contribute competent and ethical representation.
64
Duty of Diligence
A lawyer must act with reasonable diligence in representing a client
65
Elements of Diligence
1: Dedication to Client's interests
2: COntrolled work load
3: Reasonable Promptness
4: Pursuing matters to completion
66
Duty of Solo Practitioners
1: prepare a plan that designates another lawyer to review client files, notify each client of lawyers death/disability and determine whether there is a need for immediate protective action.
67
Malpractice Theories
1: Breach of K for not fulfilling a duty
2: Breach of Fiduciary Duty (loyalty, confidentiality, honesty, and fair dealing)
3: Intentional torts
4: Negligence
68
Negligence Malpractice
Duty, Breach, Causation, Damages
69
Liability for Contracts Entered on Clients Behalf
1: Undisclosed Principal- lawyer liable to third person if clients identity was not disclosed to third party
2: COntracts for goods or services normally provided to a lawyer- Liability attaches unless the lawyer disclaims liability or circumstances show that thrid person did not rely on lawyer's credit.
70
Conduct Before a Tribunal
A lawyer may not engage in conduct intended to disrupt a tribunal, including depositions.
71
Duty of Civility and Courtesy
A lawyer must refrain from abusive or unruly conduct, and not respond in kind if a judge abuses them.
72
Avoiding Improper influence
A lawyer must not seek to influence a judge, juror, prospective juror, or other official.
73
Duty to Avoid Frivolous Claims
A lawyer may not bring or defend an issue in proceeding unless there is a basis for doing so in fact or law-- a good faith argument to extend modify or extend law is not frivolous.
74
Providing Criminal Defense
A lawyer may defend the proceeding to require that every element of the case beyond a reasonable doubt.
75
Duty to Expedite Litigation
A lawyer must make reasonable efforts to expedite litigation consistent with their client's interests. Subject to the test of a competent lawyer acting in good faith.
76
Duty of Candor: 3 Prohibitions
1: Knowingly Making or Failing to Correct a false statement of law or fact
2: Knowingly failing to disclose controlling legal authority directly adverse and undisclosed by opposing counsel.
3: Knowingly offering false evidence
77
Duty of Fairness to Opposing Counsel
1: Access to evidence- lawyer must not unlawfully obstruct another party's access to evidence.
2: Inducements to witnesses: no unlawful indicements to witnesses
3: Violation of Rules of Tribunal
4: Discovery- no frivolous discovery requests/failure to provide discovery
5: Undermining evidentiary rules at trial
6: Requesting that a party not give relevant information-- a lawyer cannot ask a non-client to refrain from giving information unless they are family, or their interests will be adversely affected by doing so.
78
Inducing a Witness
Lay Witness: May pay statutory fees and reasonable expenses
Expert Witnesses: May be paid reasonable rate of the industry and reasonable expenses, rates cannot be based on outcome of trial.
79
False Evidence
A lawyer is prohibitted from knowingly offering false evidence, and may refuse to offer evidence that they reasonably believe is false.
80
Correcting False Evidence: Reasonable Remedial Measures
Can include advising the client of duty of candor and urging the clients withdrawal/correction of false evidence. if that fails, the lawyer must take additional remedial measures, if that results in extreme deterioration in lawyer-client relationship then the lawyer must seek withdrawal.
81
False Evidence: Criminal Trials
Lawyer cannot refuse to offer testimony of a client which lawyer reasonably believes but does not know to be false.
82
Withholding Information from the Client
A lawyer may (rarely) be justified in delaying transmission of information to a client where they would be likely to act imprudently to an immediate communication (think psychiatric diagnosis where Doctor indicates that it would be bad)
83
Improper Ex Parte Communications
Lawyer is not permitted to communicate ex parte with persons serving an official capacity in the proceeding (judges, masters, jurors, etc.) unless authorized to do so.
84
Communication with jurors
All out-of-court communications with jurors before and during the proceeding is prohibited. Lawyer can communicate after unless that is unlawful in the jurisdiction, the jurors have indicated that they do not wish to do so, or the communication involves misrepresentation, harassment, duress, or coercion.
85
Truthfulness in statements to others
1: No false statements of fact or law to a third person
2: No misrepresentations
86
Communications with Persons Represented by Counsel
IN representing a client a lawyer is not permitted to communicate about the subject of the representation with a person the lawyers knows is represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is otherwise authorized to do so.
87
Communications Between Parties
Parties to a matter may communicate directly with each other, a lawyer is not prohibited from advising a client concerning a communication that the client is legally entitled to make.
88
Communications with Persons Represented by Counsel
In representing a client, a lawyer is not permitted to communicate about the subject of the representation with a person the lawyer knows is represented by another lawyer in the matter unless the lawyer has the consent of the other lawyer or is otherwise authorized to do so.
89
Dealing with Persons unrepresented by counsel
1: A lawyer is not permitted to state or imply that they are disinterested in a matter which they are interested in.
2: A lawyer is not permitted to give legal advice to an unrepresented person, other than the advice to secure counsel.
90
Receipt of inadvertently sent documents
A lawyer who receives a document or electronically-stored information relating to the representation of the lawyer's client and who knows or reasonably should know that the document was inadvertently sent must promptly notify the sender.
91
Trial Publicity
A lawyer who is participating or has participated in the investigation or litigation of a matter is not permitted to make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing and adjudicative proceeding in the matter.
92
Public Statements About Facts of teh case
A lawyer may state
1: the claim, offense, or defense involved and except when prohibited by law the ID of the person involved;
2: information in the public record
3: that an investigation of a matter is in progress
4: The scheduling or result of any step in litigation
5: A request for assistance in obtaining evidence and information necessary to the case
6: A warning of danger concerning the person involved
7: The identify, residence, occupation and family status of a criminal defendant,
93
Duty to Render Candid Advice
A lawyer is required to exercise independent judgment and render candid advice. A lawyer may refer to moral, economic, social, and political factors relevant to the client.
94
Lawyer as Negotiator
A lawyer has no specific duty to volunteer facts as part of a negotiation that might undermine a clients position. (No lying, but mere puffery is OK)
95
Lawyer as Neutral: Duty to inform unrepresented parties
A lawyer serviing as a third party neutral is required to inform unrepresented party that the lawyer is not representing them.
96
Special Obligations of Prosecutors
1: Avoiding Conflicts with Private Interests
2: No Prosecution without probable cause
3: Advising defendants of right to counsel
4: Not seeking waiver of pre-trial rights
5: Disclosure of evidence that may help defendant
6: No subpoenaing lawyers unless: 1) info sought is not protected; 2) evidence is essential to investigation; and 3) no feasible alternatives
7: Public Statements about pending statements- none unless necessary to serve legitimate law enforcement purpose
97
Prosecutors: Evidence After Conviction
1: Duy to disclose evidence creating a reasonable likelihood that a convicted defendant didn't commit the offense.
2: A prosecutor must seek to remedy a conviction of a defendant in the prosecutor's jurisdiction when new exculpatory evidence is clear and convincing.
3: As long as prosecutors make a good faith argument that new evidence doesn't need revealing they may be fine
98
Specific Property in Accounts
1: Advance Payment of fees- can't be touched until fees are earned
2:
99
Recordkeeping
Lawyer must maintain books and records in accordance with generally accepted accounting practices.
100
Trust Accounts
A clients funds must be kept in a separate account maintained in the state where the lawyer's office is situated, unless the client consents to another location.
101
Dispute over Lawyer's fees
Lawyer is not required to remit to the client funds that the lawyer reasonably believes represent fees owed by the client to the lawyer. (required to remit undisputed funds)
102
Misleading Communications
Even Truthful comms can be misleading if
1: omits a fact needed to make the lawyers communication not misleading
2: substantially likely to lead a reasonable person to believe he must take further action, when it isn't required
3: is substantially likely to lead a reasonable person to form a specific conclusion for which there is no reasonable foundation.
103
Requirements for advertisements
1: Identify the advertiser
2: Name clients only with their consent
3: Limitations of practice and specialization- can identify limitations and specializations (certifications must indicate certifying entity)
104
Firm Names
A firm may be designated by
1: names of all or some of its current members
2: names of deceased members if there is a succession in the firm identity
3: trade names that are not false or misleading.
105
Firm Name No-Go's
1: implying connection to government agency
2: using deceased lawyer who was not a member of the firm
3: using lawyer names of those not associated
4: Names of non-lawyers
5: Names of public or charitable organizations
106
REstrictions on payment for recommending a lawyer
1: No giving anything of value to a person for recommending a lawyer
2: Payment for advertising is OK
107
Payment for Referrals: OK
1: Payment of usual charges of legal service plan or non-profit
2: Reciprocal Referral Agreements if they are not exclusive and the client is informed
108
Solicitation of Clients: Person to Person Contact
prohibited unless the person contacted is: 1) a lawyer; 2) family, close personal, or prior business/professional relationship with the lawyer or firm; or 3) a person who routinely uses that type of legal services.
109
Membership in a Legal Services Org
A lawyer may serve as a director, officer, or member of a legal services org, but must avoid conflicts.
110
Legal Reformation ORgs
1: A lawyer may participate but avoid conflicts.
2: If a client may be materially benefitted the lawyer must disclose that benefit, but not the name of the client.
111
Judicial Duty to Uphold integrity and independence of judiciary
must comply with law, follow precedent and other mandatory authority
112
Judicial Duty to Avoid IMpropriety
Must not use office to advance personal or economic interest of judge or others
113
Judicial Duty of Impartiality
DUties of judicial office take precedence over personal/extrajudicial activity
114
Judicial Impartiality and Fairness
Must perform all duties fairly and impartially; must uphold and apply law despite personal views; good faith mistake as to law or facts not a violation.
115
Ex Parte Communications- Judicial Conduct
Must not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers for a pending matter.
116
Statements on a pending case- Judicial Conduct
must not make if it might reasonbaly affect the outcome or impair fairness of a matter
117
Extrajudicial Activities- Prohibitions
1: Judges are not allowed to participate in activities that will interfere with the proper performance of judicial duties, lead to frequent DQ of a judge, or would appear to a reasonable person to undermine a judge's independence.
2: engage in conduct that would appear to a reasonable person to be coercive.
3: Make use of court resources except for incidental use for activities that concern law.
118
Practice of Law- Judicial Conduct
A full time judge must not practice law, except with regard to self or family members; cannot serve as family member's lawyer
