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Prof'l Responsibility > Doodees > Flashcards

Doodees Flashcards

1
Q

What is the included in the Duty to Communicate?

A

A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the decision, and shall

(1) promptly inform of decision requiring client’s informed consent
• must inform of SETTLEMENT OFFERS; and for JOINT CLIENTS, must inform each client of settlement offer and make sure the clients agree on the division of the settlement before accepting

(2) reasonably consult about means
(3) keep client reasonably informed about status of matter
(4) promptly comply w/ reasonable requests for information
(5) consult client about limitations on lawyer’s conduct

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2
Q

What should a lawyer do with settlement offers for joint clients?

A

for JOINT CLIENTS, must inform each client of settlement offer and make sure the clients agree on the division of the settlement before accepting

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3
Q

What are some things included in the fees and other duties?

A
  • financial integrity
  • other duties to the profession
  • duties to 3d parties
  • duties to the adversary
  • duties to the court
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4
Q

Noncontingent fees

difference b/w ABA and CA?

A

ABA Rules = fees must be reasonable

(1) shall be communicated to the client preferably in writing
- exception = regular client on same basis/rate
(2) before/within a reasonable time after commencing representation
(3) any changes in basis/rate must be communicated to the client

CA Rules = fees cannot be unconscionable
(1) writing required
Exceptions:
-

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5
Q

Arbitration to Settle Fee Disputes

A

ABA Rules = encouraged
- ABA encourages attys to submit to arbitration to settle fee disputes but does not require arbitration

CA Rules = required if client requests
- CA requires an atty to submit to arbitration to settle fee disputes if a client requests it

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6
Q

ABA Model Rules: Contingent Fees

A

Contingent fees are agreements in which the lawyer and client agree that the lawyer’s fee will be paid out in any recovery the client receives

(1) must be in writing;
(2) signed by the client; and
(3) state the method by which the fee is to be determined
- percentage to lawyer
- expenses to be deducted from recovery
- expenses deducted before/after contingent fee calculation; and
- EXPENSES CLIENT WILL BE LIABLE FOR regardless of the outcome

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7
Q

CA Rules: Contingent Fees

A

(1) must be in writing;
(2) signed by the client;
(3) state tha lawyer’s percentage is NEGOTIABLE
(4) state the method by which the fee is to be determined
- percentage to lawyer
- expenses to be deducted from recovery
- expenses deducted before/after contingent fee calculation; and
- how NON-COVERED EXPENSES WILL BE PAID

Charging liens allowed

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8
Q

When are Contingent Fees prohibited?

A

(1) Domestic relations cases
- ABA Rules = prohibited
- CA Rules = OK unless it encourages breakup of otherwise salvageable marriage

(2) Criminal cases
- ABA Rules = prohibited
- CA Rules = silent on the subject

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9
Q

Contingent Fees: Termination before Recovery (in quantum meruit)

A

If the atty-client relationship is terminated before the judgment is awarded in favor of the client, an atty may recover fees IN PROPORTION to the work completed by the atty prior to termination

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10
Q

Fee Splitting with Attys

A

Within firm = OK

ABA Rules (for outisde firm) = permitted only if

(1) total fee reasonable
(2) written disclosure and consent; and
(3) proportional to work done (in quantum meruit) - or some other proportion if each lawyer assumes joint responsibility for the representation

CA Rules (for outside firm) = permitted only if

(1) total fee reasonable; and
(2) written disclosure and consent

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11
Q

Fee Splitting w/ Non-attys

A

General rule = prohibited
- considered a duty to both uphold the dignity of the profession and a duty to protect the public

Exceptions

  • death benefits - paid to a deceased lawyer’s heirs for her work
  • EEs - through compensation or pension benefits
  • non-profit organization that employed/recommended atty (may share ct awarded legal fees)
  • qualified lawyer referral services
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12
Q

Referral Fees

A

ABA Rules = prohibited
- lawyer may also not pay a “referral” fee to any other lawyer. that is to say that a lawyer may only be paid a portion of a fee when the lawyer has actually done some portion of work on the case

CA Rules = permitted if
(1) arrangement disclosed to the client; and
(2) no extra amount charged to client
in CA, a referral is not a per se violation of ethical rules, so long as the arrangement is disclosed to the client and no extra amount is charged to the client

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13
Q

Duty to accept representation

A

No duty to accept representation - gen rule is that atty has no duty to accept representation; an atty is free to accept/reject any case

Exceptions:
• court appointed - atty has an ethical duty to accept representation if the atty was appointed by the ct unless this is good cause
good cause?
- violate law/ethical rule
- unreasonable financial burden; or
- personal feelings

• defenseless/oppressed - an atty should accept the cases of the defenseless/oppressed if the only reason to refuse is selfish

• pro bono work
- ABA encourages 50 hrs of pro bono work per year for indigent clients

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14
Q

Duty to Reject Representation

A

Duty to reject representation
• violates law or ethical rule

• π’s motive = harass or maliciously injure

• frivolous claim/defense
- exception: law against lawyer’s position- good faith effort to change the law w/ representation OK

• lawyer incompetent - lawyer w/o prior experience in a field of practice may still take a case as long as the lawyer either

(1) becomes educated w/o undue expense/delay to the client; or
(2) associates w/ counsel competent in the area

  • personal feelings - would prevent effective representation
  • atty’s mental/physical condition - will materially impair representation
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15
Q

Mandatory Withdrawal

A

Court permission required in litigation - an atty MUST ask for the ct’s permission to withdraw if the matter is already in litigation

reasonable for mandatory withdrawal

  • atty’s mental or physical condition
  • violate law or ethical duty
  • harass/delay
  • client fires atty
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16
Q

Permissive Withdrawal

A

Court permission required in litigation - an atty MAY ask for the ct’s permission to withdraw if the matter is already in litigation

Reasons for permissive withdrawal
• client consents; or
• no material adverse effect on client

However, even if the withdrawal will adversely affect the client, the atty may withdraw if there is good cause.

  • failure to pay fees/expenses - warning required before withdrawal
  • criminal/fraudulent conduct by client
  • client’s object morally repugnant/imprudent
  • unreasonable financial burden on atty
  • prior legal services used to commit crimes/fraud
  • client freely assents to atty’s withdrawl
  • client will not cooperate
17
Q

Procedure for permissive withdrawal

A

(1) timely notice;
(2) reasonable opportunity to find another lawyer; and
(3) must promptly return
- unspent advances for fees and expenses
- material papers (for continuing representation w/ another lawyer)
- client’s property

18
Q

Scope of Representation

A

Atty’s decisions = MEANS
- an atty has the authority to make most of the decisions relating to the means and methods by which the client’s objectives and goals will be achieved

Client's decisions = ENDS
- client has the authority to make any decisions regarding the ends (i.e. the objective and goals) of the litigation
• decision to sue in civil cases
• accepting settlement offers
• pleas in criminal cases
• jury trial waiver in criminal cases
• testify in criminal cases
• decision to appeal

Agreements to limit scope - OK if reasonable under the circumstances and informed client consent

19
Q

Duties of Prosecutors

A

(1) make timely disclosure of potentially exculpatory to defense
- negate the guilty of the accused or mitigate the offense; or
- mitigate sentencing

(2) refrain from making public statements w/ substantial likelihood of heightening public condemnation of the accused
(3) to seek justice
(4) higher ethical obligations - than criminal defense or civil attys
(5) must have probable cause to prosecute

20
Q

Duty to Preserve the Impartiality of the Tribunal

A

(1) Conduct prejudicial to the administration of justice
(2) Stating/implying an ability to improperly influence gov agency/ official

(3) Communications w/ jurors
• pre-trial = communications w/ jury panel prohibited
• during trial = communications during trial prohibited unless official court proceedings
• post trial = communications permitted unless:
- prohibited by law or court order
- desire not to communicate made known to lawyer; or
- communication involves misrepresentation, coercion, duress, or harassment

21
Q

Chicanery at Trial

A

During trial, a lawyer shall not

(1) refer to irrelevant/inadmissible material
(2) assert personal knowledge of contested facts - except when testifying as a witness; OR
(3) state personal opinion as to
- justness of cause
- credibility of a witness
- culpability of civil litigant; or
- guilt or innocence of an accused

22
Q

Duty to Expedite Cases

A

ABA Rules = atty has an affirmative duty to expedite cases

CA Rules = atty must not delay cases to harass an adversary or for the atty’s personal gain or convenience

23
Q

Discovery Abuse

A

In pretrial procedure, a lawyer shall NOT

(1) make a frivolous discovery request; or
(2) fail to reasonably comply w/ discovery requests of adversary

24
Q

Dealings w/ the Press

A

(1) must avoid public statements w/ substantial likelihood of materially prejudicing case

(2) prosecutors - must not make comments that have a substantial likelihood of heightening a public condemnation of the accused
Exceptions:
- public records
- public warnings
- statements required to protect client from substantially undue prejudice from recent publicity not self-initiated

25
Q

Duty of Fair Dealings & Honesty to the Public

A

A lawyer has a duty to act in UPRIGHT, HONEST manner in all aspects of her life.

Where there are no explicit rules, an atty must act to promote public confidence in the integrity and efficiency of the legal system and profession

26
Q

Duties to the Adversary

A
  1. duty not to speak w/ parties represented by counsel
  2. duty to return material mistakenly delivered
  3. duty to avoid deception
  4. must not violate legal rights or delay, burden, or embarrass
27
Q

Duty not to speak with parties represented by counsel

A

when the counsel is not present OR the atty is aware that communications are without consent of the party’s counsel

  • “with a person” - duty extends to all persons represented by legal counsel not just parties (ABA)
  • second legal opinion exception - this restriction does not apply to clients seeking a second legal opinion where the first atty is absent
  • employee - in situations where a lawyer seeks to have communications w/ an EE of an entity represented by counsel, the lawyer must obtain consent from the organization’s counsel
  • former EE - consent of the org is not required butt he atty must respect atty-client privileges
  • CA Rules re “employee” - in CA, ppl who
    (1) regularly consult w/ or supervise;
    (2) can bind the corp w/ their statements; and
    (3) whose statements may be imputed to the organization
    ARE CONSIDERED THE CLIENTS
28
Q

Duties to the Court

A

(1) Duty of candor & fairness
(2) Duty to present facts and evidence truthfully
(3) Duty to Produce Evidence
(4) Ex-Parte Proceedings
(5) Duty to uphold the law
(6) Duty to be candid about the law

29
Q

Duty to Prevent Client Perjury

A

Atty must not knowingly assist client perjury

  • reasonable belief, not knowledge = all rules are permissive

CIVIL case = must refuse to call client as witness

CRIMINAL case - criminal ∆s have both 5th Am. right to testify on their own behalf and 6th Am. right to the effective assistance of counsel
• reasonable remedial measures = 3 steps
(1) counsel client to not testify/testify truthfully
(2) permissive withdrawal
(3) split authority on step 3 if 1 & 2 fail
- ABA Rules = must disclose perjury
- CA Rules = allow ∆ to testify in narrative fashion but the atty cannot further the deception

Scope of Duty = Duty ends with proceedings
- so if the atty learns of the client’s perjury after the fact and the proceedings are still ongoing, the atty must still take reasonable remedial measures

30
Q

What are the 3 remedial measures for client perjury in criminal case?

A

(1) counsel client to not testify/testify truthfully
(2) permissive withdrawal
(3) split authority on step 3 if 1 & 2 fail
- ABA Rules = must disclose perjury
- CA Rules = allow ∆ to testify in narrative fashion but the atty cannot further the deception

31
Q

What can you do if the client is going to perjure in a civil case?

A

Must refuse to call client as witness

32
Q

Scope of duty to prevent client perjury

A

Scope of Duty = Duty ends with proceedings
- so if the atty learns of the client’s perjury after the fact and the proceedings are still ongoing, the atty must still take reasonable remedial measures

33
Q

Duty to be candid about the law

A

(1) Duty to cite adverse authority from controlling jurisdiction and directly on point
- a lawyer shall not knowingly fail to disclose to the tribunal legal authority in the controlling jxn known tot he lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel

(2) Duty to prevent frivolous claims/defenses
- violates the duty of candor and fairness so withdrawal is mandatory
- also a Rule 11 violation (civ pro)

Prof'l Responsibility (5 decks)

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