Exam Prep Flashcards
Who regulates attorneys?
1) States regulate all aspects of the practice of law.
2) Attorneys have an ethical obligation to aid in regulating lawyers.
In what aspects do states regulate the practice of law?
1) Admissions - how to be admitted
2) Disciplinary system
Articulate the concept of the rule of lawyers regulating lawyers.
There is a duty to report serious ethical misconduct of other attorneys/judges. “substantial questions of honesty, trustworthiness, and fitness.”
Who can restrict practicing law within a certain jurisdiction?
A state may restrict the practice of law to those who are members of the bar of the state.
What is the exception to a state’s right to restrict a lawyer’s right to practice?
An attorney can appear in a jurisdiction via Pro Hac Vice.
What is Pro Hac Vice?
Allows an attorney to appear in a jurisdiction if not admitted with the discretionary permission of the court. The client/attorney has no right to assert in the court.
What are the permissible standards for admission to a state’s bar?
It must have a reasonable relation for fitness to practice law.
1) Educational/Test qualifications are allowed.
2) May limit to those of good moral character.
What are not permissible standards for admissions to a state’s bar?
1) Citizenship qualifications are not allowed (can’t deny non-U.S. citizens or citizens of other states)
2) On account of political beliefs
What are the exceptions to the political beliefs admission rule?
A state can deny a lawyer that:
1) refuses to make an allegiance to the Constitution.
2) is actively affiliating with an organization, knowing of the illegal activities, and intends to further those illegal activities.
3) gives false answers, conceals information, or refuses to answer legitimate questions.
Who has the duty to prevent the unauthorized practice of law?
The state bar
What is the unauthorized practice of law?
General rule of thumb: What a non-lawyer does what a lawyer gets paid to do.
A) Only an attorney can appear in court.
B) Only an attorney can draft legal documents.
C) Only an attorney can give legal advice.
What are the responsibilities of an attorney in preventing the unauthorized practice of law?
A) Can’t split legal fees with non-attorneys.
B) Can’t enter into partnership with non-attorneys if any part of the partnership deals with law.
What exceptions are there to only attorneys appearing in court?
1) Pro se representation: an individual can represent themselves in court.
2) Students can appear in court under state student practice laws.
What exception is there for pro se representation?
A corporation cannot represent itself pro se.
What exceptions are there to only attorneys being able to draft legal documents?
1) A non-attorney can draft their own documents.
2) A non-attorney can fill in the blanks on a template created by an attorney.
What exceptions are there to the rule against splitting fees with non-attorneys?
An attorney is permitted to:
1) pay to the estates of attorneys.
2) pay into the employee’s pension plans.
3) share court awarded attorney fees with a non-profit that employed or recommended the attorney.
Can attorneys share court awarded attorney fees with non-profits?
Yes, if the non-profit recommended the attorney.
When can a lawyer enter into a partnership with a non-lawyer?
If no part of the partnership deals with the law.
When is there an exception for an attorney to help a non-attorney/non-client with legal advice?
If it’s the non-attorney’s own case.
Can an attorney practice in a jurisdiction where he/she is not admitted?
No. Unless the issue arises from the jurisdiction where the attorney is admitted or the attorney has pro hac vice.
When can an attorney’s conduct bring rise to discipline?
a) a violation of the disciplinary rules in the state.
b) a criminal act reflecting adversely on the attorney’s honest and trustworthiness.
c) conduct involving dishonesty, fraud, or deceit.
d) conduct prejudicial to the administration of justice (i.e., improperly influence of a tribunal.)
e) assisting a judge in a violation of the judicial code.
What other duties are there to ensure compliance with a state bar’s rules?
1) Duty to make reasonable efforts to supervise subordinates (lawyers and non-lawyers) and make sure subordinate lawyers and non-lawyers comply with codes of professional responsibility.
2) Duty to make independent judgements (when given instructions from a superior).
When is it okay to follow a supervisor’s instructions regarding the code of professional ethics?
When it is a debatable ethics question so long as the conduct is reasonable.
When is an attorney responsible for ethical violations of another attorney or non-attorney subordinate?
1) if the attorney orders or ratifies the conduct, and
2) the attorney is in a supervisory position and knows of unethical conduct and does not act.
What is the attorney’s duty to accept representation?
Trick question, there is no duty to accept representation!
What if the representation will result in violation of the law or the disciplinary rule?
The fact that the client asks doesn’t require rejection; you can explain that it’s not allowed and still take them on as a client.
Is there a duty to reject representation?
Yes, if the 1) potential clients insists on representation that will result in a violation of the law or disciplinary rule, or 2) demands representation which will require filing a frivolous claim or defense, or 3) the attorney is not competent to handle the matter.
Is it frivolous to make a claim or defense when there is a law on the books?
No - can fight the law in court.
What are the exceptions to rejecting representation for incompetence?
1) If there is an emergency and there is no other way to protect the client.
2) if the attorney reasonably believes that s/he can become competent through adequate study.
3) if the attorney has co-counsel to handle that part of the matter.
When a matter is in litigation, does withdrawal require court permission?
Yes, at all times.
What are the circumstances where an attorney must withdraw?
1) when rep would require a violation of law or disciplinary rule.
2) the client’s purpose is obviously to harass or delay.
3) when the attorney’s mental/physical health makes it difficult to continue the case.
4) when the client fires the attorney.
What are the circumstances where an attorney may withdraw?
1) Client pursues a course of action that the attorney believes to be criminal or fraud.
2) When the client uses attorney services to pursue criminal act or fraud.
3) If the client insists on pursuing a course of action that the attorney finds repugnant.
4) If the client doesn’t pay their bill and the attorney has given a warning.
5) If the attorney’s representation with result in a financial burden or is rendered difficult by the client.
6) With client’s approval.
What are the requirements when an attorney withdraws?
1) Must give timely notice and allow the client to get another attorney.
2) Must give funds back to client that are not used or expended.
3) Must return all client’s papers that client needs to pursue the matter.
What are the 4 duties to the client to prevent conflicts?
Duty to:
1) avoid conflicts of interest among current clients,
2) between the interest of the client and the attorney,
3) organization and individual,
4) and past clients.
What are the general conflicts rules?
1) An atty may not rep a client if the rep of the client may be materially limited by the atty’s responsibilities to another client, or to a 3rd person, or by the atty’s own interests.
2) If one atty in an office is disqualified, all attys in the office are also disqualified.
What is the exception to the conflicts rule?
1) If the atty reasonably believes that the representation will not be adversely affected; and
2) the client consents.
What are the exceptions to the conflicts disqualification rule?
1) Disqualification b/c of the atty’s own person interests and rep would not interfere w/rep by other attys in the firm; or
2) Screening is performed.
What is “screening”?
When 1) a disqualified atty is screened and apportioned no part of the fee; and 2) the former client is notified; and 3) certification of compliance is provided.
What is the conflicts rule amongst current clients?
A) Atty may not sue a current client, even in an unrelated matter.
B) Atty may rep multiple ptys in a suit so long as the atty can rep all effectively and reasonably believes it so and all clients consent to the rep.
C) Atty rep’ing multiple ptys shall not participate in aggregate settlement or guilty pleas unless clients give consent in writing of being informed of all agreements.
D) Atty may act as a neutral 3rd pty (i.e., neg a settlement) and remain neutral.
What are the rules to balance an atty’s interest and a client’s interests?
A) Atty cannot solicit a substantial gift from the client or prepare an instrument to give an atty or person related to an atty a substantial gift unless a client is a family member.
B) An atty shall not give financial assistance to client in connection with contemplated or pending litigation. Atty may pay ct. costs or litigation expenses for an indignant client or if getting paid on an emergency basis.
C) Biz deals between attys and clients are always suspect.
D) the atty cannot (prior to completion of rep) obtain the client’s literary or media rights.
E) Atty will not acquire a proprietary interest in the client’s cause of action.
F) Atty shall not act as an advocate at a trial where the atty is likely to be called as a witness.
G) No sex with client unless a consensual relationship existed when rep. existed.
What are the exceptions to attys being unable to acquire a proprietary interest in the client’s cause of action?
1) A lien to secure the atty’s fees or expenses.
2) A contract for a reasonable contingency fee.
What exceptions are there to an atty appearing in ct. as a witness when advocating for a client in the same case?
1) if testimony relates entirely to an uncontested issue; or
2) if the nature and value of legal of legal services provided; or
3) if the disqualification of the atty would be a substantial hardship to the client.
What are the rules with representing an organization?
1) Atty does not rep the directors or officers, employees, shareholders, etc. and must let that be known.
2) If rep is paid for by someone other than the client, the client must consent and the rep can’t be interfered with.
3) Atty may rep an entity and an individual if both consent (someone other than the individual in the entity).
4) If an atty for the entity believes the entity is violating the law, the atty shall act reasonably as necessary to protect the entity.
What steps must an atty take when s/he believes the entity they are rep’ing is violating law?
1) Ask for reconsideration on the matter.
2) Refer the matter to higher authority in the org.
3) If the highest authority fails to take timely, appropriate action, atty may report info to authorities outside the org as reasonably necessary to prevent harm to the entity.
What are the rules re: conflicts with past clients?
A) An atty who has formerly rep’ed a client in a matter shall not thereafter rep another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.
B) An atty shall not knowingly rep a person in the same or a substantially related matter in which a firm with which the atty was formerly associated had previously rep’ed the client….(rest is same as (A)).
C) An atty who has formerly rep’ed a client in a matter or whose present or former firm…shall not thereafter use info to the disadvantage of the former client or reveal info relating to the rep except as allowed by the rules.
Does an atty have a duty of competence to their client?
Yes.
Can an atty contractually limit malpractice liability?
No - an atty can be subject to discipline for attempting to contractually limit malpractice liability UNLESS client is rep’ed by another atty in the matter.
When can an atty settle a malpractice claim with their client?
Only after advising in writing that the client consult another attorney.
Is there a duty to follow the client’s instructions?
Yes.
What is the general rule re: following client’s instructions?
The client controls the ENDS (objectives), atty controls the MEANS.
What does the client control?
Whether to: A) sue in civil cases. B) accept a settlement in civil cases or whether to plead guilty in criminal cases C) waive a jury trial in criminal cases D) testify in criminal cases E) to appeal
Does the atty have a duty to keep the client informed?
Yes.
When can an attorney have say on the client’s objectives?
An atty may limit the objectives of rep if it is reasonable under the circumstances and the client gives informed consent.
What is the rule for an atty rep’ing a client with disabilities?
1) The atty must try to create a normal atty-client relationship and
2) the atty may seek appointment of a guardian from a ct.
Is there a duty to protect client confidences?
Yes.
What info is protected as confidential?
Anything the atty learns during the course of rep or possible rep from client or from others must be confidential.
What duties does an atty have with regard to confidential information?
Attys may not disclose it or use it to the client’s detriment, except as authorized by law. Attys have an affirmative duty to prevent the inadvertent or unauthorized disclosure of a client’s info.
