Different Roles of the Lawyer Flashcards
Candid Advisor
A lawyer has a duty to render candid advice to his/her clients.
- If a lawyer knows that a client proposes conduct that will likely result in substantial legal consequences and the conduct is related to the representation, the lawyer is REQUIRED to advise the client about those consequences.
Lawyer’s truthfulness in statements to others
Lawyer may not
- make known false statement of material fact or law
- make misrepresentation that (i) affirms or incorporates known false statement (ii) is partially true but misleading or (iii) is false due to an omission
- fail to disclose material fact necessary to avoid assisting client’s crime or fraud (arises only in extreme cases)
Lawyer may
- convey exaggerated belief, opinion, or judgment in negotiation
- make subjective statement not considered material fact—(eg: price or value estimate of subject of transaction; party’s desired settlement of claim)
- withhold relevant facts that undermine client’s position
Statements to Jury
- In addressing the jury (such as during closing arguments), a lawyer is prohibited from stating a personal opinion as to the culpability of a civil litigant.
Third-Party Evaluation
As an evaluator, a lawyer represents his/her client by preparing an evaluation of a matter affecting the client for use by someone other than the client.
An attorney MUST give CANDID ADVICE to a third party – (truth)
- An attorney must tell the Client before communicating UNFAVORABLE information.
Client Instructs Attorney for Limited Evaluation
- If a client has instructed a lawyer to perform a limited evaluation for use by someone other than the client, any material limitation MUST be described in the lawyer’s evaluation report.
Negotiator for Client
Negotiator – represent & advocate client’s position in negotiations with nonclients
MAY
1) engage in “PUFFING”—state an exaggerated belief, opinion, or judgment—to negotiate a favorable outcome for the client.
- NOT false statements of material fact
2) make subjective statement not considered material fact—eg:
- price or value estimate of subject of transaction
- party’s desired settlement of claim
- (telling OC that client authorized you to accept any settlement offer exceeding 700k when they actually athorized any offer over 600k)
3) WITHHOLD relevant facts that UNDERMINE client’s position
- no duty to volunteer facts that might undermine a client’s position
Lawyer may NOT
1) make known false statement of material fact or law
2) make misrepresentation that
- (i) affirms or incorporates known false statement
- (ii) is partially true but misleading or
- (iii) is false due to an omission
3) fail to disclose material fact necessary to avoid assisting client’s crime or fraud (arises only in extreme cases)
Neutrals (Mediator, Arbitrator, etc.)
Neutral as to third parties, not clients
- In addition to his practice, Larry also serves as a mediator in water disputes. In this capacity, Larry must remain neutral.
Subsequent Representation in Connection with the Matter – Generally, an attorney who personally and substantially participates as an arbitrator may not represent anyone in connection with the matter arbitrated UNLESS ALL parties to the proceeding give informed, written CONSENT.
- However, this restriction does not apply to an arbitrator selected as one member of a multi-member arbitration panel. (not prohibited from subsequently representing such party)
Prosecutors
Avoiding Conflicts With Private Interests
- A prosecutor must avoid representation of a private client that would result in a conflict with the prosecutor’s obligation to seek justice on behalf of the public.
No Prosecution Without Probable Cause
- A prosecutor must not prosecute a charge that the prosecutor knows is not supported by probable cause.
Advising of Right to Counsel
- Must make reasonable efforts to assure defendants are advised of their right to and the procedure for obtaining counsel and have been given reasonable opportunity to obtain counsel.
- Permitted – Lawful questioning of an uncharged suspect who has knowingly waived Miranda rights to counsel and silence
Not Seeking Waiver of Pre-Trial Rights
- A prosecutor must not attempt to obtain a waiver of important pre-trial rights from an unrepresented accused, such as the right to a preliminary hearing.
- This rule does NOT apply to an accused appearing PRO SE with the approval of the tribunal
Disclosure of Evidence That May Help Defendant
Pretrial & trial
- Prosecutor MUST timely disclose to DEFENSE all evidence or information known to prosecutor that tends to negate guilt of accused or mitigates offense
Sentencing
- Prosecutor MUST disclose to DEFENSE & TRIBUNAL all unprivileged mitigating information known to prosecutor, unless relieved of responsibility by protective order of tribunal
Restrictions on Subpoenaing Lawyers A prosecutor is not permitted to subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes that:
- (i) the information sought is not protected from disclosure by any applicable privilege;
- (ii) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and
- (iii) there is no other feasible alternative to obtain the information.
no subpoena of a lawyer, in order to destroy attorney-client privilege
Public Statements About Pending Cases
- MUST refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused. (Except statements necessary to inform the public, serve a legitimate law enforcement purpose)
- A prosecutor must also exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under the Model Rules.
New Evidence After Conviction –
Duty to Disclose
- Prosecutor MUST disclose to tribunal newly discovered credible evidence creating reasonable likelihood that convicted defendant did not commit offense
- UNLESS Safe Harbor – prosecutor makes good faith, independent judgment that evidence does not require action (safe harbor rule)
if Within Prosecutor’s Jurisdiction:
- disclose such evidence to defendant unless court authorizes delay and
- investigate, or make reasonable efforts to cause investigation, to determine whether defendant committed offense
Clear and convincing
- A prosecutor MUST seek to remedy a conviction of a defendant in the prosecutor’s jurisdiction when the new exculpatory evidence is clear and convincing.
Investigations
- Prosecutors must be objective when investigating leads without regard to whether the leads favor the prosecutor’s case
APPEARANCES BEFORE LEGISLATIVE AND ADMINISTRATIVE BODIES
Lawyers may provide law-related services (e.g., legislative lobbying) on behalf of their clients, including representing a client before a legislative body (e.g., Congress) or administrative agency in nonadjudicative proceedings.
- Under the Model Rules, lawyers who do so MUST DISCLOSE that their appearance is in a REPRESENTATIVE capacity if the client may materially benefit from the lawyer’s participation.
- But the Model Rules DO NOT REQUIRE the lawyer to disclose the name of the client represented.
Safekeeping Property
A lawyer has a fiduciary duty to reasonably safeguard property belonging to a client or third party that is in the lawyer’s possession in connection with a representation. A lawyer generally satisfies this duty by:
- 1) holding the property SEPERATELY from the lawyer’s own property
- 2) keeping a complete ACCOUNTING of the property and
- 3) promptly DELIVERING the property to the client or third party when delivery is due under the circumstances.
Advance Payment of Legal Services vs. Retainer
- Advance Payment – Payment for legal services before lawyer renders services; Lawyer must return any unearned fees when representation ends
- Retainer – Money paid solely to ensure lawyer’s availability to represent client; Lawyer’s property once paid
Client Trust Account
- Accordingly, a lawyer must deposit legal fees and expenses that the client has paid in advance into a client trust account,
- The lawyer can only withdraw fees as earned or expenses as incurred.
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1) Seperate from Lawyers own Property
- A lawyer generally cannot deposit his/her own funds into a client trust account
- EXCEPTION—can use their own funds to pay the trust account’s bank service charges when they become due.
3) If multiple persons claim interests in property held by the lawyer,
- the property must be kept separate until the dispute is resolved.
Type of Dispute
Fee dispute with CLIENT – Lawyer MUST
- promptly notify client that lawyer received property
- keep disputed fee separate in client trust account until dispute is resolved and
- promptly distribute undisputed funds to client and/or lawyer
Third party’s claim – Lawyer must promptly:
- notify client & third party that lawyer received property
- distribute undisputed property to client, lawyer, and/or third party and
- upon client’s or third party’s request, render full accounting regarding property
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Lawyer as Escrow Agent — (i.e., one who temporarily holds in trust property to be transferred between the parties upon conclusion of a transaction—(e.g., buyer and seller)
- A lawyer who acts as escrow agent is not functioning solely as the client’s legal representative.
- The lawyer is instead acting as a fiduciary for, and owes a duty to, ALL parties to the transaction
- in such cases, depositing funds in a SEPERATE escrow account from escrow accounts used by OTHER CLIENTS is likely necessary to properly safeguard the property from claims by other clients.
Advertising
Restrictions on Advertising
May not be FALSE
- False – contains a material misrepresentation of fact or law.
May not be MISLEADING
- 1) omits a fact needed to make the lawyer’s communication considered as a whole not materially misleading
- (“Over 25 years of experience” ommitting the word “combined”)
- 2) is substantially likely to lead a reasonable person to believe that he/she must take further action when, in fact, no action is required
- (“You may have a claim! Call now or risk forfeiture!”)
- 3) is substantially likely to lead a reasonable person to form a specific conclusion for which there is no reasonable factual foundation
- (“I’m not capable of losing” or “My services are 50 percent cheaper than the customary attorney fees in town”)
Unverifiable self-promotion
- “There can be no doubt. When it comes to trusts and estates, I am the greatest lawyer ever.”
Expertise and Fields of Practice
- A lawyer CAN state her fields of practice. – “I want to be your tax lawyer.”
- A lawyer CAN call herself a specialist. – “specializes in DUI defense.”
- A lawyer CANNOT call herself a “CERTIFIED specialist” UNLESS the name of the certifying organization is CLEARLY IDENTIFIED AND the organization:
- (1) is approved by an appropriate state authority OR
- (2) has been accredited by the ABA
- Patent Lawyer – If a lawyer is admitted to practice before the US Patent and Trademark Office, the lawyer can call herself a “Patent Attorney.”
- Admiralty – If a lawyer is engaged in admiralty practice, the lawyer can call herself “Proctor in Admiralty,” or designate her practice “Admiralty”
Disclosure of location of offices
- Permitted
Names of client
- Can use names of regularly represented clients if obtain clients’ CONSENT
Identification of Advertiser
- Must include name & contact information of at least one lawyer or law firm responsible for content
No implication of a PARTNERSHIP unless one really exists
- Lorraine and Larry share office space and an assistant, but they practice independently. The door on their office says “Smith and Johnson.” NOT permissible
Firm Names and Letterhead (Applies to websites and social media as well)
Firm’s Name CAN consist of
- Names of current members,
- Names of DECEASED members where there has been succession in firm’s identity
- Name Can’t be FALSE or MISLEADING
- If a firm uses a trade name that includes a geographic name—“The Phoenix Legal Group” (“We’ll rise from the ashes defending you!”)—the communication must include a statement that it is NOT a PUBLIC legal aid organization.
Firm name CANNOT IMPLY a CONNECTION with:
- Government Agency
- A lawyer who was never associated with the firm (dead or alive)
- A non-lawyer
- A public or charitable legal services organization
Firm CANNOT use the name of a lawyer holding PUBLIC OFFICE
- Reeks of corruption
- The name of a lawyer holding a public office is not permitted to be used in the name of a law firm, or in communications on its behalf, during any substantial period in which the lawyer is not actively and regularly practicing with the firm
Real-time Direct Contact to solicit business for PECUNIARY GAIN is PROHIBITED
- In-person,
- on the telephone, and
- synchronous electronic communication (e.g., zoom)
Solicitation PERMITTED when:
- 1) Lawyer is NOT seeking pecuniary gain OR
- 2) Solicitation is made to
- Another Lawyer
- Person who has family, close personal, or prior business/professional relationship with lawyer or law firm
- Person who routinely uses the lawyer’s type of legal services
Mail and NON real-time electronic communications
Generally permitted, but:
- Cannot involve coercion, duress, or harassment; and
- Cannot be to someone who has said they don’t want to be solicited.
Reasonable Restrictions
- Florida enacted a 30-day restriction on contact with accident victims.
- New York courts ruled that an outright ban on pop-up ads was unconstitutional (unreasonable)
ALL forms of communications are considered Advertising.
- e.g. business cards
Referrals / Endorsement
No Payment for Recommending a Lawyer Lawyers generally are PROHIBITED from giving anything of value to an individual for RECOMMENDING the lawyer’s services.
- A lawyer is NOT prohibited from charging a potential client a fee to refer the potential client to another lawyer, so long as the referral fee is reasonable.
Recommendation
- Recommendation is an endorsement of a lawyer’s credentials, abilities, competence, character, or other professional qualities.
- Directory listings and group advertisements that list lawyers by practice area, without more, do not constitute impermissible recommendations.
Payment for advertising is allowed
- Watch for Internet-based client generators: E.g., “divorce.com”
- No payments for percentage of fees, but, Payment for advertisement (ad rates) are okay
Payment for Client Leads is allowed
- A lawyer may also pay others for generating client leads, such as Internet-based client leads, as long as the lead generator does not RECOMMEND the lawyer, any payment to the lead generator is consistent with Rules 1.5(e) (division of fees) and 5.4 (professional independence of the lawyer), and the lead generator’s communications are consistent with Rule 7.1 (communications concerning a lawyer’s services).
Payment for Certain Referrals Is Permitted (limited circumstances)
Payment of usual charges of LEGAL SERVICE PLAN or NOT-FOR-PROFIT or QUALIFIED LAWYER REFERRAL SERVICE
- Qualified referral services are consumer-oriented organizations that provide unbiased referrals to lawyers with appropriate experience in the subject matter of the representation and afford other client protections, such as complaint procedures or malpractice insurance requirements.
- A legal service plan is a pre-paid or group legal service plan or a similar delivery system that assists people who seek to secure legal representation. A lawyer referral service, on the other hand, is any organization that holds itself out to the public as a lawyer referral service. A qualified lawyer referral service is one that is approved by an appropriate regulatory authority as affording adequate protections for the public.
Reciprocal Referral Agreement – Agreement in which lawyer refers clients to other lawyer or nonlawyer professional (e.g., realtor) in exchange for that person referring clients to lawyer. Agreement is IMPROPER if:
- the agreement is EXCLUSIVE
- the agreement INTERFERES with the lawyer’s professional judgment
- the agreement is for an INDEFINITE duration or
- the client is not informed of the existence and nature of the agreement.
Group Legal Service Plans
General Rule: A lawyer is generally prohibited from soliciting professional employment through live person-to-person or other real-time contact if pecuniary gain is a significant motive. But a lawyer may make such real-time contact with a group legal services plan REPRESENTATIVE to discuss the terms of the lawyer’s participation in that plan as a legal services provider.
- This is because the lawyer is only communicating directly with the plan representative—not with individual plan members seeking legal services.
A lawyer may NOT participate in a prepaid or group legal services plan if
- (1) the lawyer owns or directs the plan
- (2) Lawyer solicits members on the plan’s behalf or
- (2) the plan solicits persons known to need legal services in a particular matter.
Lawyer activity in improving the legal system >
Membership in a Legal Services Organization
Membership in a Legal Services Organization
- A lawyer may serve as a director, officer, or member of a legal services organization, apart from the law firm in which the lawyer practices, even if the organization serves persons having interests that are adverse to a client of the lawyer.
Lawyer must avoid conflicts
- The lawyer, however, is NOT PERMITTED to knowingly participate in a DECISION or ACTION of the organization if such participation would be incompatible with the lawyer’s obligations to a client or could have a material adverse effect on the representation of a client of the organization whose interests are adverse to a client of the lawyer.
Reform Activites of Legal System affecting client Interest
A lawyer MAY serve as a director, officer, or member of an organization involved in reform of the law or its administration
- even if such reform may affect the interests of a client
Must avoid conflict of interest
- In determining the nature and scope of participation in such activities, the lawyer must be careful to avoid any conflict of interest or other violation of the Model Rules.
Client may be materially benefitted
- When the lawyer knows that the interests of a client may be materially benefitted by a decision in which the lawyer participates, the lawyer must disclose that fact but need not identify the client.
Lawyer activity in improving the legal system >
Pro Bono
These services are to be performed without a fee or an expectation of a fee to:
- persons of limited means or
- charitable, religious, civic, community, governmental and educational organizations designed to address the needs of persons of limited means.
Voluntary (i.e., not mandatory) – Lawyers are encouraged to render 50 hours of pro bono legal work each year.
- Failure to comply with this aspirational rule does not subject a lawyer to discipline.
Special conflicts rules apply (conflicts between your pro bono + legal services work / your regular work)
- Conflicts rules do not apply unless the lawyer is AWARE of the conflict.
“Special Material Benefit Disclosure” rule—this is the situation where a decision in the pro bono matter will benefit one of lawyer’s other clients.
- if Lawyer knows that a client’s interests would benefit materially by a decision in which the lawyer participates, the lawyer must disclose that fact BUT need not identify the client.
Lawyer activity in improving the legal system >
Limited Legal Services
Legal services organizations, courts, and certain nonprofit organizations have established programs (e.g., legal-advice hotlines, advice-only clinics, or pro se counseling programs) in which lawyers provide short-term limited legal services, such as advice or the completion of legal forms, to help persons to address their legal problems without further representation by a lawyer.
- A client-lawyer relationship is established in these programs, but there is no expectation that the lawyer’s representation of the client will continue beyond the limited consultation.
Screening for Conflicts of Interest not Feasible
- Because this type of program operated under circumstances where it was not feasible for a lawyer to systematically screen for conflicts of interest, the attorney is not subject to discipline
Must secure client’s consent to limited relationship
- A lawyer who provides such short-term limited legal services must secure the client’s informed consent to the limited scope of the representation.
- If a short-term limited representation would not be reasonable under the circumstances, the lawyer may offer advice to the client but must also advise the client of the need for further assistance of counsel
For the lawyer’s firm
- A lawyer’s participation in a short-term limited legal services program will not prohibit the lawyer’s firm from undertaking or continuing the representation of a client with interests that are adverse to a client being represented under the program.
