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Professional Responsibility > Essay issues > Flashcards

Essay issues Flashcards

1
Q

Lawyer and client conflict

A

Under the Model Rules and CA Rules, a lawyer must not represent a client if representation may be materially limited by the lawyer’s own interests, unless the lawyer reasonably (subjective and objective) believes he can provide competent and diligent representation to the client; representation is not prohibited by law; and the client gives informed consent confirmed in writing.

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2
Q

Opposing lawyers conflict

A

Under the Model Rules, a lawyer related to another lawyer may not represent a client in a matter in which the other lawyer is representing another party, unless each client gives informed consent.

Under CA Rules, a lawyer cannot represent a client in a matter in which the lawyer knows or reasonably should know that the other party’s lawyer is a relative, lives w/ the lawyer, is a client, or has an intimate relationship w/ the lawyer, unless the lawyer informs the client in writing.

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3
Q

Sexual relations conflict

A

The Model Rules and CA Rules prohibit sexual relations w/ a client, unless a consensual relationship already existed when the attorney-client relationship began. CA expressly excludes the lawyer’s spouse or registered domestic partner for this rule.

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4
Q

Lawyer as witness

A

A lawyer is not permitted to act as an advocate at a trial in which the lawyer is likely to be a necessary witness, unless the testimony relates to an uncontested issue; the testimony relates to the nature and value of legal services rendered in the case; disqualification of lawyer would cause substantial hardship on client (MR only); or the lawyer obtained the client’s informed written consent (CA Rules only).

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5
Q

Acquiring an interest in litigation

A

Under the MR, a lawyer cannot obtain a proprietary interest in the cause of action in which he represents a client, unless the lawyer acquires a lien by law to secure payment of a fee; or contracts for a reasonable contingency fee so long as the case is not criminal or domestic relations.

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6
Q

Financial assistance to client

A

The MR prohibit financial assistance to a client wrt pending or planned litigation, except that a lawyer is permitted to advance litigation costs to the client. Client must repay the costs, unless contingent on outcome of the case.

Under the CA Rules, a lawyer is not permitted to pay the personal or business expenses of a prospective or existing client. However, a lawyer may pay expenses related to the representation w/ client consent; advance litigation costs to the client w/ repayment contingent on the outcome; and lend money to the client if the client promises to repay the loan in writing.

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7
Q

Entering into business transaction w/ client

A

A lawyer must not enter into a business transaction w/ a client or knowingly acquire an adverse interest, unless the terms are fair and reasonable; in writing; the client understands the terms; the client consents in writing; and the client is encouraged to seek counsel and given time to do so.

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8
Q

Agreement to limit malpractice recovery

A

Under MR, lawyers may limit malpractice liability if the client is represented by another lawyer in making the agreement.

Under CA Rules, a lawyer is prohibited from making an agreement limiting malpractice liability to a client.

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9
Q

Conflicting interests between current clients

A

A lawyer must not represent a client if it would be directly adverse to the interests of another current client or if there is a significant risk that the representation will be materially limited by the lawyer’s responsibilities to a current client, unless the lawyer reasonably believes he can provide competent and diligent representation to each affected client; representation is not prohibited by law; representation does not involve representing both sides of the same litigation; and each affected client gives informed consent confirmed in writing (MR) or informed written consent (CA).

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10
Q

Current and former client conflict

A

A lawyer who previously represented a client must not later represent another person in the same or substantially similar matter if that person’s interests are materially adverse to the former client’s interests, unless the former client gives informed consent confirmed in writing (MR) or informed written consent (CA).

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11
Q

Prospective clients conflict

A

A lawyer cannot represent a client w/ interests materially adverse to those of a prospective client in the same or substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to the prospective client, unless both clients give informed consent confirmed in writing (MR) or informed written consent (CA).

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12
Q

Payment from third party

A

Under the MR, a lawyer may not accept payment from a third party for representation, unless the client gives informed consent (informed written consent in CA); there is no interference w/ the lawyer’s judgment; and lawyer-client confidentiality is preserved.

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13
Q

Organization as client

A

A lawyer representing an organization owes duties of loyalty and confidentiality to the organization, not its individual constituents. When speaking w/ the organization’s constituents, the attorney must make clear who he is representing.

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14
Q

Organizational misconduct

A

Upon learning of an action by a person associated w/ the organization that will likely cause substantial injury to the organization, the lawyer must proceed as is reasonably necessary in the best interest of the organizaiton.

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15
Q

Reporting w/in the organization

A

The lawyer must report the matter to higher authority in the organization, unless it is not in the organization’s best interest.

In CA, in taking any action, the lawyer must not reveal client confidential information.

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16
Q

Reporting outside of the organization

A

Under the MR, the lawyer may reveal information to outside authorities to prevent injury if the lawyer reported to the highest authority; the authority refused or failed to act in a timely manner; the misconduct is a violation of law; and the lawyer reasonably believes the violation is reasonably certain to cause substantial injury to the organization.

Under the CA Rules, the lawyer may reveal confidential information to outside authorities only to prevent a criminal act that the lawyer reasonably believes will result in death or substantial bodily harm.

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17
Q

What is the analysis for organizations?

A

Organization as client
Organizational misconduct
Reporting w/in the organization
Reporting outside the organization

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18
Q

Duty of competence***

A

A lawyer is obligated to provide competent representation and must possess the legal knowledge, skill, thoroughness, and preparation reasonably necessary for representation.

A lawyer may accept representation if competence can be achieved by reasonable preparation or association w/ a lawyer who has competence in the field.

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19
Q

Duty of diligence

A

A lawyer must act w/ reasonable diligence and promptness in representing a client. Under CA Rules, a lawyer must not intentionally, repeatedly, recklessly, or with gross negligence fail to act with reasonable diligence in representing a client.

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20
Q

Duty to avoid frivolous claims

A

Lawyers are prohibited from asserting or defending an action unless there is a basis in law and fact. A claim brought to embarrass, delay, or burden a third person is frivolous.

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21
Q

Duty of candor

A

A lawyer must not knowingly make a false statement of law or fact to the court. A lawyer is required to correct a false statement of law or fact previously made.

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22
Q

Duty of fairness to opposing party

A

A lawyer must not unlawfully obstruct another party’s access to evidence or assist another person in doing so.

23
Q

False evidence

A

A lawyer is prohibited from knowingly offering false evidence and may refuse to submit evidence he reasonably believes is false.

24
Q

Learning of false evidence after offered

A

If a lawyer learns of false evidence after it’s been presented, the lawyer must urge the client to correct the false statement and if the client refuses, withdraw if possible. If withdrawal is not allowed, the lawyer must disclose the false evidence to the court (MR). In CA, disclosure cannot include confidential information.

25
Q

Duty of communication***

A

Lawyers have a duty to regularly communicate w/ clients, including informing them about their case, answering questions, and communicating settlement offers.

26
Q

Persons represented by counsel

A

A lawyer is not permitted to communicate w/ a person the lawyer knows to be represented by another lawyer w/o consent.

If the represented person contacts the lawyer, the lawyer must terminate communication upon learning of representation.

27
Q

Organizations represented by counsel

A

A lawyer is prohibited from communicating w/ a constituent of an organization. However, they may communicate w/ a former constituent.

28
Q

Comments on trial

A

A lawyer is prohibited from making a statement he knows will be distributed publicly and will have a substantial likelihood of prejudicing the court proceeding.

MR also prohibit prosecutors from allowing others assisting in case to make prejudicial commentary.

29
Q

Special prosecutor duties

A

A prosecutor must not prosecute a charge he knows is not supported by probable cause.

A prosecutor is requires to timely disclose all exculpatory evidence and information that tends to disprove guilt.

A prosecutor must disclose new, credible evidence creating a likelihood that defendant did not commit the offense.

30
Q

Advertising

A

A lawyer must not make false or materially misleading statements about himself or his services. An advertising requires the name and address, and may also include they are a certified specialist or specialize in an area of law.

31
Q

Solicitation

A

Solicitation of prospective clients is prohibited when a significant motive is the lawyer’s pecuniary gain, unless the person contacted is a lawyer, family member, friend, or a prior professional relationship. However, lawyers are permitted to send general professional announcements to people in the area.

32
Q

Reporting misconduct

A

A lawyer is required to report misconduct by another lawyer when the lawyer has actual knowledge of the misconduct.

*Not required in CA.

33
Q

Mandatory withdrawal

A

A lawyer must withdraw if failure to do so would result in violating ethics rules or other law.

Under CA Rules, a lawyer must withdraw if he knows/should know the client is asserting a claim w/o probable cause for the purpose of harassing or maliciously injuring a person.

34
Q

Permissive withdrawal

A

Under the MR, a lawyer may seek withdrawal if doing so would not materially harm the client.

Under the MR, a lawyer can withdraw, even if harm will result, if the client engages in criminal or fraudulent conduct; lawyer learns that client used his services to commit crime or fraud; or the client has made representation unreasonably difficult.

Under CA rules, a lawyer may seek withdrawal when the client seeks to pursue a criminal or fraudulent act or has used the lawyer’s services to do so; the client insists the lawyer pursue conduct that is criminal or fraudulent; or the client renders it unreasonably difficult for the lawyer to carry out effective representation.

35
Q

Procedure for withdrawal

A

A lawyer must give the client reasonable notice before withdrawing to give the client an opportunity to find new representation.

A lawyer who wants to withdraw when litigation is pending must obtain court approval.

36
Q

Duties upon termination

A

The lawyer must return the client’s papers and property, as well as unearned advanced fees.

37
Q

Fees

A

Under the MR, fees must be reasonable under the circumstances.

Under CA Rules, fees must not be unconscionable.

38
Q

CA fees writing requirement

A

If fees exceed $1,000, the agreement must be in writing; state the fees and serves provided; and signed by both parties, and a copy must be provided to the client.

*A writing is not required if the client is a corporation.

39
Q

Fee splitting

A

Lawyers in the same firm may split fees.

MR - Lawyers in different firms may split fees if the fee is proportion to the services provided by each lawyer; client agrees in writing; and the fee is reasonable.

CA - Lawyers in different firms may split fees if the lawyers enter in a written agreement to divide the fee; client has provided written consent after full disclosure of the fee splitting; and the fee is not unconscionable.

40
Q

Referral fees

A

The MR prohibits referral fees, unless it’s for a legal services plan or approved lawyer referral service.

Under CA Rules, a lawyer may give a gift or gratuity for a referral provided that it was not offered in anticipation of the referral or future referrals.

41
Q

Attorney client privilege

A

Confidential communications between a lawyer and client are privileged if the client intended for it to be confidential and it was for the purpose of seeking legal advice. The client holds the privilege and the lawyer may assert it on his client’s behalf.

42
Q

Exceptions to AC privilege

A

There is no privilege when a communication relates to a client’s future crime or fraud.

In CA, there’s no privilege if the lawyer reasonably believes that disclosure is necessary to prevent a criminal act that will likely result in death or substantial bodily harm.

43
Q

Work product

A

Work product refers to material created by the lawyer in anticipation of litigation. In CA, a writing reflecting a lawyer’s mental impressions is not discoverable under any circumstances. Other work product is discoverable if the court determines that denial will unfairly prejudice the other party will result in an injustice.

44
Q

Duty of confidentiality

A

A lawyer is prohibited from disclosing any information relating to the representation of a client, unless disclosure is authorized by the informed consent of the client or impliedly authorized to carry out representation.

A lawyer must take reasonable precautions to safeguard confidential information from inadvertent disclosure.

45
Q

Exceptions to confidentiality

A

MR allows disclosure to prevent reasonably certain death or substantial bodily harm.

CA Rules allows disclosure to prevent a criminal act reasonably believed to cause death or substantial bodily harm. Before doing so, a lawyer must make a good faith effort to persuade the client to not commit the crime, and if reasonable, he must inform the client of the attorney’s decision to reveal the information.

46
Q

Duty of loyalty***

A

A lawyer owes his client the duty of loyalty, which includes the duty to avoid a conflict of interest.

47
Q

Unauthorized practice of law

A

Under the MR and CA Rules, an attorney may not assist another in the unauthorized practice of law.

48
Q

Hiring disbarred lawyer

A

A lawyer may employ a disbarred lawyer as a clerk or paralegal to assist in certain activities that do not involve the practice of law. However, the lawyer must take care to prevent the disbarred attorney from conducting activities that constitute the unauthorized practice of law.

49
Q

Duty to supervise

A

A lawyer may delegate tasks to their non-lawyer staff. However, the lawyer must closely supervise their work b/c the lawyer remains ultimately responsible for the work product.

50
Q

Threat to file lawsuit

A

Under CA Rules, a lawyer may not threaten to report another person for disciplinary purposes in order to gain an advantage in a litigation.

51
Q

Duty of fairness - discovery request

A

Under the MR, a lawyer must make a reasonably diligent effort to comply with a legally proper discovery request of an opposing party.

52
Q

Legal malpractice

A

A legal malpractice claim requires duty, breach, actual and proximate cause, and resulting damages.

53
Q

Expert witness fee

A

The MR and CA Rules permit lawyers to compensate an expert witness based upon the reasonable rate in the expert’s profession and for reasonable expenses incurred as a result of testifying. Additionally, the CA Rules specifically prohibit compensation that hinges on favorable testimony or the outcome of the case.

54
Q

Gifts to witnesses

A

A gift to an expert witness is generally prohibited b/c it may compromise the witness’s ability to be fair in the current case or future cases.

Professional Responsibility (1 decks)

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