Everything on Hawaii Ethics Flashcards
Hawaii Rules of Professional Conduct
Adopted by the Supreme Court of the State of Hawaii to regulate legal practice in the state. Govern lawyers’ daily practice.
ABA Model Rules of Professional Responsibility
Only model standards that have no force or effect in any jdx; they guide and aid drafting of texts like the HRPC that states adopt for actual enforcement.
HRPC Rule 1.3 Requirements for Admission
Requires good character and fitness, including honesty, diligence, financial responsibility, and respect for the law.
Duty of loyalty
A lawyer has a duty of loyalty to his/her client
Concurrent conflict of interest
Occurs if representation of another client, or lawyer’s own personal interest, or lawyer’s responsibilities to a third party are directly adverse to a client, or significantly risk materially limiting lawyer’s representation of a client.
Ignorance of conflict
No excuse unless it arises from short-term legal services under a court, agency, or non-profit program.
Imputed Disqualification
Any group of lawyers that share responsibilities or present themselves to the public as a firm will share each others’ conflicts.
Exceptions:
when conflicts arise from previous gov’t service or work at a previous firm that represented adverse parties, representation by colleagues may be allowed if screened behind an “ethical wall”
Remedies for conflict
Depend on the posture of the case. Lawyer might need to:
1) Reject the representation
2) Advise multiple clients to get separate counsel,
3) Withdraw
Some conflicts may be tolerated if a case by case factual analysis establishes three elements:
1) Lawyer reasonably believes he can represent everyone effectively despite the concurrent conflict;
2) Lawyer consults with each affected client, flagging advantages and risks involved;
3) Client consent, confirmed in writing by the client, or by the lawyer’s recorded transmission to the client following her oral consent.
If a lawyer’s clients are on opposite sides in the same proceeding before a tribunal . . .
it is ALWAYS unreasonable to represent both. This CANNOT be cured with consent.
Opposing a current client in another matter (where the client is represented by different counsel) . . .
is a concurrent conflict, but MAY be ok with consent from all clients.
Representing two clients with inconsistent legal positions, or with competing economic interest, in unrelated matters, is . . .
generally not a conflict and thus does not require consent.
Representing multiple clients in the same matter where their interests are aligned - or lawyer is acting as an intermediary - . . .
raises significant risks that lawyer’s service may become materially limited as a result of the other’s interest.
Examples:
1) Representing a corporation and any of its directors, officers, shareholders, or employees
2) Representing both spouses in drafting wills.
Representation of co-defendants in a criminal case is . . .
ordinarily not allowed without court inquiry and approval
Multiple representation requires
1) proactive disclosure and consent
2) including a warning that attorney-client privileges will not protect client communications if future litigation arises between them.
A lawyer cannot settle claims of multiple clients UNLESS:
1) lawyer fully discloses the claims and participation of each client, and
2) all consent in signed writings
A lawyer cannot take on a new client with interests materially adverse to a former client without . . .
the former client’s consent in writing.
Without this, it would be a violation of lawyer’s duty of confidentiality and loyalty to former client
Clients may consent in advance to future conflicts if . . .
1) they are well-informed, and
2) the type of conflict is familiar.
3) general and open-ended consents are likely to be ineffective
What happens when a lawyer leaves a firm that represented a client adverse to a client at lawyer’s new firm?
Lawyer continues to have a conflict. This conflict is imputed to new colleagues. But, new colleagues may proceed without conflict if:
1) lawyer did not participate in the representation at the old firm and have no material information
2) lawyer is timely and effectively screened off
3) lawyer receives no direct part of the fee, and
4) the former client receives written notice (no consent is needed)
If you worked “personally and substantially” on a “matter”as a government lawyer, you . . .
may not work on that same matter in later private practice without the government’s consent (same is true for “third party neutrals”). Other members of the new firm may work on the matter but only if three conditions are met:
1) you are timely screened, and
2) you do not share any part of the fee in the matter, and
3) your former gov’t employer is informed so it can monitor compliance.
If you are working for the government, you . . .
cannot participate in “matters” in which you personally and substantially participated when in past private practice, unless no one else may act in your stead.
Gifts to lawyer
A lawyer must not solicit a substantial gift from, or draft a legal instrument for, a client who is not your close relative, if it provides a substantial gift to your or your relative
Limiting Liability
A lawyer cannot limit client’s right to report lawyer for ethical violations or to cooperate in disciplinary proceedings. Lawyer cannot limit malpractice liability when he enters into a relationship with client.
Publication of Rights Contracts
Lawyer cannot obtain literary or media rights to accounts related to the representation of client BEFORE the end of proceedings.
Lawyer cannot acquire a proprietary interest in a client’s cause of action EXCEPT for:
a contingent fee arrangement or a lawful lien to secure fees and expenses.
Loans to client are . . .
forbidden, EXCEPT for litigation expenses for an indigent client (pro bono), and the advance of litigation expenses in contingent fee cases.
A lawyer may enter into business with a client or obtain an interest adverse to hers only if:
1) the terms are fair to the client,
2) they are disclosed in understandable writing,
3) lawyer advises the client in writing to consult an outside lawyer before proceeding, and
4) client signs a written consent to the essential terms
A lawyer cannot appear as counsel and witness in the same trial UNLESS:
1) lawyer’s testimony is uncontested, or
2) about lawyer’s legal services rendered, or
3) lawyer’s distinctive value to the case means withdrawal would impose substantial hardship on the client.
Unless a lawyer already has a preexisting sexual relationship,
he cannot have sex with a client.
Close relationships with adversary’s lawyer:
A lawyer cannot directly oppose a party represented by a relative without client consent. Close relations include: immediate family (parent, child, sibling, spouse, or domestic partner)
Organizational Clients
A lawyer must act in the best interest of the entity, even if an officer, employee, or other associated person acts to the contrary.
If a lawyer knows of a violation of law or legal obligation that is likely to result in substantial injury to the organization, the lawyer must:
“Report up” through the highest authority in the company.
If the company authorities do not respond, and lawyer reasonably believes it necessary to prevent substantial injury to the organization, the lawyer may:
“Report out” confidential information without client consent.
Payment for lawyer’s services is:
permitted, but only with informed client consent. And, a lawyer must protect client’s confidences.
Duty of confidentiality to client
General rule: don’t reveal anything related to the representation of a client or use that information against her without her consent.
A person who conveys information to a lawyer unilaterally, without expectation that the lawyer will represent him,
is not a prospective client.
Prospective client and confidenitality
The duty of confidentiality can attach when a prospective client gives a lawyer information BEFORE a lawyer-client relationship is formed, and even if none is ever formed.
To avoid conflicting out everyone in firm, when meeting a prospective client, limit the initial interview to only information necessary to decide whether to take the case, promptly screen yourself from your colleagues, and notify the prospective client of decision.
Once attached, the duty of confidentiality continues . . .
even after formal representation ends.
Distinguish attorney-client privilege from confidentiality
AC privilege is overlapping, but a narrower evidence rule. It may shield attorney’s testimony in judicial proceedings about confidential communications from client for legal advice during relationship.
Exceptions to Duty of Confidentiality
1) Consent
2) Defending yourself
3) If compelled by final court order, or other ethical duties.
4) To uphold the law, you MAY reveal confidences
5) If your services were used to further a client’s crime or fraud that has substantially injured the financial interest or property of another, you MUST reveal information that clearly establishes the criminal or fraudulent act to the extent necessary to rectify its effects.
Attorney Fees
In non-contingent fee cases, agreements must include the fee basis and what expenses the client is responsible for. A timely written agreement is preferable.
In contingent fee cases, fee agreements:
Must
1) be in writing, signed by the client and contain
2) lawyer’s percent; and
3) what expenses will be deducted from the recovery; and
4) whether lawyer’s percent is taken before or after expenses; and
5) what expenses the client must pay if she loses
Limits on Contingent Fees
Lawyer cannot agree to charge or collect fees contingent on the result of representation in CRIMINAL or DOMESTIC RELATIONS cases.
Fees must be ___________
reasonable, taking into account the labor, novelty, difficulty, skill and timing required, result obtained, the experience and abilities of the attorney, risks of the fee arrangement, etc.
Client consent does not make a fee reasonable.
Fee Splitting with Lawyers
1) generally ok to split fees with lawyers in your law firm
2) you MAY split fees with lawyers outside your firm only if the total fee is reasonable, the division is proportional to the work done by each attorney, and all attorneys assume joint responsibility for the representation with written agreement from the client.
Fee Splitting with Non-Lawyers
generally NOT allowed. Exceptions:
1) death benefits paid to a deceased lawyer’s firm or heirs for his work or purchase price of his law firm,
2) salaries paid to non-lawyer employees, and
3) sharing of court-awarded legal fees with a non-profit organization that employed or recommended the lawyer.
Referral Fees
Generally unethical, but a lawyer may pay the usual charges of a qualified lawyer referral service, legal service, or non-profit plan.
Also, a lawyer can agree with other professionals and lawyers to make reciprocal referrals if they are not exclusive and you explain the agreement to the client.
Partnerships with non-lawyers in providing legal services is . . .
prohibited for any practicing lawyer. Non-lawyers cannot be partners, shareholders, officers, own an independent interest in, or control or direct your professional judgment.
A lawyer has a duty to safeguard _________
client’s property by labeling and storing it in a safe
Put money held for the client into a ________
client trust account located in the state where lawyer’s office is. Deposit all advances from the client for your unspent costs, expenses, and unearned fees, and all money received on your client’s behalf.
Do not _____ or _____ client funds with your personal money.
borrow; comingle
If there is a fee dispute or if a third party has a lawful claim over the client’s funds or property in lawyer’s custody, lawyer must . . .
withhold the disputed portion in the client trust account until resolution of the claim.
Duty to keep good records and notify client about changes in account
Lawyer has a duty to keep good records, render accountings, notify client of moneys received on his behalf, and pay promptly money due to him. Records must be kept for 6 years after representation ends.
Duty of competence
A lawyer has a duty to render competent service to client. Competence means using the legal knowledge, skill, thoroughness in preparation reasonably necessary for the representation.
If you don’t know the relevant law, you
CAN’T take on a matter unless you can learn it without undue expense or delay, or you associate with a lawyer competent in the area.
Discipline by the bar
An administrative action through the Office of Disciplinary Counsel to protect the public.
Includes: disbarment, suspension, and public or private admonitions. Usually arises from incompetent service
Malpractice
A civil case brought by a plaintiff for money damages in court. A malpractice plaintiff must prove a breach of a duty of due care.
Duty of diligence
Lawyers have a duty to complete their cases diligently and promptly. Be on the look out for procrastination.
Duty to communicate
Lawyers have a duty to answer client’s reasonable requests for information, and keep client informed about the case so she can effectively participate.
All plea and settlement offers MUST be . . .
conveyed to the client
If a law practice is sold . . .
written notice must be provided to clients, and existing agreements honored unless the client consents to changes.
Accepting representation
A lawyer is free to accept or to reject any case.
Pro bono work
A lawyer should accept 50 hours of pro bono work a year and/or contribute to organizations that serve the needs. Lawyers should accept court appointments.
When must a lawyer reject a case?
When taking it would violate a law or ethical rule. Typical problems are if lawyer is not in the physical or mental shape to take the case - violating the duty of competence to the client.
The client makes decisions about her _________
substantive rights (whether to testify in a criminal case, accepting a plea bargain or settlement, waiving a jury trial)
The lawyer makes decisions on __________
legal tactics (choice of motions). A lawyer may, in consultation with client, agree on reasonable limits to the scope of representation.
Never advise a client in conduct you know is criminal or advise ________
how to act illegally and get away with it! However, a lawyer can discuss the legal consequences of a proposed course of conduct or in good faith test the scope of the law.
You MUST withdraw from a pending case if . . .
fired, or if continuing would violate a law or ethical rule.
If your services were used to commit a crime or fraud, you also may need to . . .
notice your withdrawal and disaffirm any documents.
You MAY withdraw from a case if . . .
your withdrawal will not cause a material adverse effect on the client OR if you convince the court there is good cause. Examples:
1) client who persists in acting illegally
2) client insists on acts with which you disagree or find repugnant
3) client uses your services to commit a crime or fraud
4) client fails to substantially fulfill an obligation to you after being warned
5) your representation will result in an unreasonable financial burden on you
Procedures for withdrawal
To quit, you MUST:
1) provide timely notice to the client, and
2) promptly return: any unspent fee and expense advances, and all property and material papers of the client.
Advertising MUST NOT be:
false or misleading
Claims of legal specialties
A lawyer cannot imply he is a specialist unless he has completed a certification program accredited by the ABA AND has petitioned the Supreme Court for a Hawaii Certificate of Specialization.
Solicitation
Do not seek professional employment for pecuniary gain by initiating a live telephone or real-time electronic contact with a specific person with whom you have no prior professional, personal, or family relationship.
Duty of candor the court
A lawyer cannot engage in conduct involving dishonesty, fraud, or misrepresentation. These duties can trump conflicting duties of confidentiality and loyalty to client.
Duty to present facts and evidence truthfully
A lawyer must not make a false statement of material fact, or offer evidence that he knows is false, to a tribunal.
Client perjury
A lawyer must not knowingly facilitate client perjury. In a civil case, a lawyer must refuse to call a witness if he knows the witness intends to perjure himself.
If a criminal defendants tells you that he intends to testify falsely, what should you do?
1) Counsel him to testify truthfully or not to take the stand. If that fails,
2) try to withdraw from the case. If that fails,
3) tell the judge. The right to counsel and the duty of confidentiality do not shield perjury.
What if, after the proceeding ends, your client tells you that he lied?
Take reasonable remedial measures (counsel him to recant), but your duties end with the proceedings.
You must not counsel or assist any witness to testify falsely or to become _________
unavailable
Duty to produce evidence
A lawyer must no suppress any evidence that she or her client has a legal obligation to reveal or produce, regardless of her duty of loyalty. A lawyer MUST not obstruct access to or tamper with fruits or instrumentalities of a crime
Special duties of prosecutors
Prosecutors have higher ethical obligations than lawyers because they have a duty to seek justice, not just to win cases. Prosecutors have an affirmative duty to timely disclose evidence favorable to the defense that might negate guilt or mitigate a sentence.
Prosecutors must have probable cause.
Duty to state the law truthfully
Be candid about the law and cite to adverse authority if controlling and on point. Knowingly making a false statement of law or presenting frivolous claims or defenses to the court is subject to discipline.
If continued representation would require YOU to commit or assist in committing a crime, you _______ withdraw! If you client persists in criminal acts, but you are not assisting, you _______ withdraw.
1) Must
2) May
Duty of honesty
A lawyer has a duty to behave honestly in all dealings, both in and out of the legal practice.
Documents sent inadvertenly
If you know a document was inadvertently sent to you, you must stop reading and notify opposing counsel. Pending resolution with the other lawyer or court, you must not copy, disseminate the document, or use it to your advantage.
Communication with represented entities
Unless authorized by law or giving a second legal opinion, you must not communicate with a person you know is represented by counsel on the subject of your inquiry without consent of his counsel
For orgs, consent is required for communications with persons with managerial responsibility, or any current employee whose communications might be imputed to the org for criminal or civil liability or constitute an admission on its part.
Dealing with the press
You have a duty not to interfere with a defendant’s right to a fair trial. You and your agents must avoid out of court statements that you reasonably should know have a substantial likelihood of materially prejudicing the case.
Exceptions: matters in the public record or routine booking information, warning the public, informing them of an investigation, and statements required to protect your client from substantial undue prejudice from recent publicity not self-initiated.
Duty to preserve the decorum and impartiality of the tribunal
1) Before trial, you must not talk to any prospective juror about the case or try to influence them about it.
2) During trial, no lawyer can communicate with an empaneled juror about the case. If you are counsel in the trial, you must not communicate with any empaneled juror on ANY subject
3) After the jury is dismissed, you generally should not communicate with them. But you may interview them or answer their questions, as long as it does not harass them or seek to influence their future jury service
Duty to expedite cases
1) You have an affirmative duty to expedite cases.
2) you have a duty to follow valid procedural rules or court orders, unless you are making a good faith challenge to their validity. Do not abuse or obstruct discovery.
You cannot assist others in the . . .
unauthorized practice of law. You cannot allow a suspended or disbarred Hawaii attorney have contact with clients or people dealing with your law office
Policing misconduct
The rules require lawyers to report to “the appropriate professional authority” any other lawyer’s or judge’s violation of the Rules in any legal or non-legal context if it raises a substantial question as to that person’s honesty, trustworthiness, or fitness as a lawyer
If you are under the control or supervision of another attorney who ratifies or orders you to take an action violating an ethical rule, is that ok?
1) No, you are subject to discipline
2) Your supervising partner is also in violation if he ratified the act or knew of it and failed to take reasonable remedial action
Managing partners must also make reasonable efforts to ensure that the conduct of all firm employees or outsourced workers comports with the professional obligations of a lawyer, including non-lawyer assistants.
