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Legal Ethics > Ethics > Flashcards

Ethics Flashcards

1
Q

when is an attorney/client relationship formed?

A

1) a person manifests to a lawyer the intent that the lawyer should provide legal services to them
2) if lawyer fails to manifest lack of consent, and the lawyer knows or should know reasonably that the person is relying on them for legal services

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2
Q

when does an attorney/client relationship not begin until?

A

the person asked the lawyer to provide legal services and the lawyer agreed

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3
Q

do opinions of a lawyer count as a attorney/client relationship?

A

no

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4
Q

once the attorney/client relationship is formed what does the attorney come of the client?

A

a fiduciary agent

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5
Q

once the lawyer is a fiduciary agent of the client, what duties does the attorney owe the client?

A

1) competence
2) confidentiality
3) diligence
4) honesty
5) loyalty

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6
Q

do client have to be actual people?

A

no they can be corporations, associations, unions etc)

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7
Q

what does competent representation require? Rule 1.1

A

1) legal knowledge
2) skill
3) thoroughness
4) preparation reasonably necessary for representation

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8
Q

what is an example of when competence issues can arise?

A

attorney takes on more work than she can handle effectively (In re Pegram)

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9
Q

what if the client is assigned through the court to an attorney who’s work load prevent them from giving competent representation?

A

the lawyer should request that the court not make any new appointments (ABA opinion 06-441)

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10
Q

in a client lawyer relationship what should the lawyer for the most part not reveal?

A

anything related to the representation of the client

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11
Q

when is the lawyer allowed to reveal any confidential information? 1.6

A

1) client gives them informed consent

2) the lawyer finds it reasonably necessary

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12
Q

what would make a lawyer find it reasonably necessary to reveal confidential information? 1.6(b)

A

1) to prevent reasonably certain death or substantial bodily harm
2) to prevent a client from committing a crime or fraud
3) to prevent, mitigate or rectify substantial injury to financial interest or property that resulted from the client’s commission
4) to establish a claim on behalf of the lawyer in a controversy between the client and the lawyer

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13
Q

regarding confidentiality, when a lawyer is representing a married couple what does a lawyer need to do?

A

cater to one of the clients as long as he informs the other client as to what he’s doing

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14
Q

what does Attorney/Client privilege protect?

A

confidential communications between a client and her attorney from disclosure

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15
Q

does attorney client privilege apply after the attorney is no longer representing the client?

A

yes

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16
Q

why do our rules require lawyers to protect private/confidential information from our clients?

A

1) preserving the image that lawyers are reliable and loyal to their clients
2) honors the autonomy and privacy of a client

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17
Q

According to the control group test, in a corporation, who does attorney/client privilege protect?

A

communication with decision-makers (directors etc.)

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18
Q

what is the rationale about only communicating with decision makers in the control group test?

A

1) only they can cause the company to act on the lawyer’s advice
2) expansive privilege would make it easy for corporations to shield themselves from discovery
3) allows corporations and judges who could and could not exercise privilege

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19
Q

is the control test still followed?

A

no it was replaced with the subject matter test in 1970

20
Q

who does attorney/client privilege protect in a corporation according to the subject matter test?

A

other employee’s communication with company lawyers if made in relation to their employment and at the direction of their superiors

21
Q

what are the exceptions to the non-disclosure rule?

A

1) self-defense legal claims of attorney
2) waiver by client
3) crime/fraud exception
4) fiduciary exception

22
Q

who manages the conduct of the trial?

A

the lawyer has and must have full authority

23
Q

if a client has other possible claims they can file, is it the lawyers duty to inform the client even if they did not bring such claims?

A

Yes (Nichols v. Keller)

24
Q

is it the lawyer’s duty to inform the client of a reasonable settlement offer?

A

Yes (Moores v. Greenberg)

25
Q

what are the guidelines to assist attorney for an incompetent client?

A

1) doesn’t deprive a developmentally-disabled person the right to make all decisions
2) primary duty is to protect the client’s rights, including the rights to make decisions on certain matters
3) advocate any decision made by the developmentally-ill person
4) if possible inform the court of the need for a guardian or litem

26
Q

what is required of an attorney regarding communication? 1.4

A

1) inform clients of any decision or circumstance with respect to client’s informed consent
2) consult with the client about the means by which the client’s objectives are accomplished
3) reasonably inform the client of the status
4) promptly comply with reasonable requests for information
5) consult with the client about any limitations on the lawyer’s conduct
6) explain to the client about making informed decisions

27
Q

when must a lawyer withdraw from representation?

A

1) when representation will result in a violation of the rules or law
2) lawyer’s physical or mental condition impairs the ability for the lawyer to represent the client
3) the lawyer is discharged

28
Q

when can a lawyer withdraw from representation?

A

1) when it can be accomplished without material adverse effect on the interest of the client
2) when a lawyer reasonably believes the client is taking a course of action that’s criminal or fraudulent
3) client used lawyer’s services to perpetrate a crime or fraud
4) client insists on taking action that the lawyer disagrees with fundamentally
5) client fails substantially to fulfill an obligation to the lawyer
6) representation will result in unreasonable financial burden on the lawyer
7) client is delinquent in paying fees

29
Q

when is communication with someone prohibited?

A

when the person is being represented by another lawyer

30
Q

must the lawyer have knowledge that the person is being represented by another lawyer?

A

Yes

31
Q

when is communication with a person who is being represented by another lawyer NOT prohibited?

A

if the other lawyer consents or it’s authorized by law or a court order

32
Q

is it a violation if the lawyer engages in forbidden communication through a third party (like an investigator or the lawyer’s own client)?

A

Yes

33
Q

are clients free to talk to each other?

A

Yes

34
Q

how should the scope of representation and the basis or the rate of the fee and expenses be communicated with the client?

A

preferably in writing, before or within reasonable time after commencing the representation

35
Q

how must a contingent fee be communicated with a client?

A

in writing signed by the client, stating the method by which the fee is determined

36
Q

when can an attorney not charge by contingency?

A

1) in criminal cases

2) domestic cases

37
Q

when are lawyer from different firms allowed to divide fees?

A

1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility
2) the client agrees to the arrangement including the amount that each will receive and it’s confirmed in writing
3) fee is reasonable

38
Q

why can’t contingent fees be charged in domestic cases?

A

1) state has an interest that the family keeps as much money as possible
2) less wealth spouse will not need a contingency fee to afford representation
3) lawyer might have financial interest in the case that will lead to a recommendation not in the interest of the parties

39
Q

why can’t contingency fees be charged in criminal cases?

A

fee contingent on acquittal could lead lawyer to advise against accepting plea offer

40
Q

when does a concurrent conflict of interest exist?

A

1) representation of one client will be directly adverse to another client
2) significant risk that lawyer will be limited by the responsibilities to another client

41
Q

is a lawyer allowed to enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client?

A

for the most part no

42
Q

what are the exception when a lawyer IS allowed to enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client?

A

1) transaction is fair and reasonable for the client and are fully disclosed and transmitted in writing that can reasonably be understood by the client
2) client is advised in writing and given the opportunity to seek the advice of independent counsel
3) client gives informed consent in writing, signed by the client

43
Q

is a lawyer allowed to provide financial assistance to a client in connection with pending or contemplated litigation?

A

for the most part no

44
Q

when is a lawyer allowed to provide financial assistance to a client in connection with pending or contemplated litigation?

A

1) may advance court costs and expenses of litigation where repayment is contingent on the outcome
2) may pay court costs for an indigent client on behalf of the client

45
Q

is the lawyer allowed to accept compensation from anyone else besides the client?

A

for the most part no

46
Q

when can a lawyer accept compensation from someone other than the client?

A

1) client gives informed consent

2) no interference with lawyer’s independence of professional judgment or with the attorney/client relationship

Legal Ethics (5 decks)

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