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Professional Responsibility > Final Exam > Flashcards

Final Exam Flashcards

1
Q

Inherent (Judicial) Power

2 Points

A
  1. Ensure Fair and Just Adjudicative Process

2. Maintain Integrity & Viability of Judiciary/System

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2
Q

Pro Bono Representation

Appointment Power & 3 Justifications

A

Compellable under Inherent Authority

  • Lawyers = Officers of the Court
  • Legal Monopoly
  • Ethical Obligations
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3
Q

Compelled Pro Bono Representation

2 Main Factors & 5 Sub-Factors

A

Main Factors

  1. Plaintiff’s Ability to Obtain His Own Counsel
  2. Marketability (Quality of Case)

Subsidiary Factors

  1. Factual Complexity
  2. Ability of Plaintiff to Investigate Facts
  3. Existence of Conflicting Testimony
  4. Plaintiff’s Ability to Present His Claims
  5. Complexity of Legal Issues
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4
Q

Compelled Pro Bono Representation

4 Marketability Requirements

A
  1. Market: Lawyers in Area (Type of Case)
  2. Access to that Market (Prisoner/Incapacitation Issues)
  3. Availability of Fee Arrangements
  4. Reason for Lack of Representation/Denial: A) Indigency or B) Merits
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5
Q

Right to Change Counsel

A

Requires Court Approval (No Absolute Right once Underway)

  • Deniable if Prejudicial to Justice
  • Duty to See Case to Completion (Kriegsman)

Ruskin v. Rodgers: Last minute substitution of lawyer would cause Delay and be Prejudicial.

Kriegsman v. Kriegsman: Inability to pay is not a sufficient reason to withdraw (welfare divorce).

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6
Q

Discharged Lawyer Fees

Theory of Recovery & Limitations

A

Quantum Meruit (Limited by Contract)

  • California Rule: Favorable Resolution of Case (Win)
  • New York Rule: Resolution Unnecessary
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7
Q

Legal Malpractice

Purpose & 4 Theories

A

Misconduct or Negligence
-Private Right of Action (Injury & Compensatory)

  1. Intentional Tort
  2. Breach of Fiduciary Duty
  3. Breach of Contract
  4. Unintentional Tort/Negligence
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8
Q

Malpractice: Negligence
Duty of Care: To Whom It’s Owed
3 Party Types

A
  1. Clients
  2. Non-Clients (Prospectives, Reliance Parties)
  3. Third Party Beneficiaries
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9
Q

Breach of Fiduciary (UPL & Diligence)

A

3 Part Standard????

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10
Q

Malpractice: Negligence
Standard of Care
Two Standards and Inapplicable Distinction

A

Specialist vs. Generalist: Dependent on Lawyer’s Representations

No Urban vs. Rural Distinction

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11
Q

Malpractice: Negligence
Causation
2 Types

A

Actual: But-For or Substantial Factor

Proximate: Foreseeability

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12
Q

Malpractice: Negligence

Damages

A
  1. Direct Damages

2. Consequential Damages (Indirect, but Foreseeable)

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13
Q

Malpractice: 4 Defenses

A
  1. Attorney Reasonably Believed Action was Required by Law/Ethics
  2. Comparative Negligence
  3. Client Insists on Action
  4. Statute of Limitations
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14
Q

Malpractice: Statute of Limitations

3 Exceptions

A

Statute Does NOT Run:

  1. While Lawyer represents client in this or a substantially similar matter
  2. Until Lawyer Discloses Harm or Client Should know CLEARLY indicates malpractice
  3. Until Malpractice Significantly Injures client
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15
Q

Malpractice: Settlement Prohibition

A

Cannot Condition Settlement on Withdrawal of Complaint or Prevent Complaint

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16
Q

Bates v. State Bar of Arizona

SCOTUS 1977

A

ADVERTISING

Holding: Lawyer Advertising = Commercial Speech (Protected under First Amendment)

  • Permissible Limitations
    1. Truthful
    2. Not Misleading
    3. Direct Solicitation

“An advertising diet limitation to such Spartan fare would provide scant nourishment.”

17
Q

Advertising Timing

2 Notes

A

Requires a Buffer (Mail vs. Direct Solicitation)

Targeted Advertising = Acceptable

18
Q

Fee Agreements

6 Prohibited Provisions

A
  1. Preventing Right to Discharge
  2. Obtain Authority to Settle Client’s Case
  3. Charging for General Overhead
  4. Charging More than Direct Costs
  5. Buying Story (Not Mich)
  6. Double Billing
19
Q

Fee Collection Suits

Requirement

A

Withdrawal from Case

Conflict of Interest

20
Q

Lawyer’s Liens & Possessory Liens
3 Requirements & 1 Condition
(Respectively)

A

Lawyer’s Liens (Start of Suit):

  1. Fair and Reasonable Terms
  2. Signed/Writing
  3. Waiver & Notice Requirements
Possessory Liens (Client's File)
-Cannot Prejudice Case
21
Q

Contingent Fee

  1. Basis/Definition
  2. Criminal Cases
  3. Domestic Relations Cases
  4. Reasonability
  5. Easy/Winner Cases
  6. Sliding vs. Static
A
  1. Based on a Condition
  2. Impermissible Always
  3. Impermissible if based on Divorce or Amount of Support
  4. Measured at Time of Commitment
  5. Cannot = Misleading (Inform Client of Strength)
  6. Static (Common) & Sliding (Based Time or Amount)
22
Q

Interim Billing

Definition/Function

A

Removal of money from Trust Account as charges are incurred

23
Q

Retainer

Four Meanings

A
  1. Make Available Fee (Classic)
  2. Hiring Fee
  3. Form of Payment
  4. Lump Sum/Prepayment
24
Q

Three Disciplines

A
  1. Admonishment/Reprimand
  2. Suspension
  3. Disbarment
25
Q

Liability for Non-Legal Actions

Standard

A

Adversely Affects Honesty, Trustworthiness, or Fitness

Rule 8.4

26
Q

Reporting Requirements

A

Obligatory if Known by Lawyer or Judge

Excludes:

  1. Info under ABA R. 1.6
  2. Info Obtained in Lawyers Assistance Programs
27
Q

Attorney-Client Privilege vs. Work Product Privilege

A

Clients vs. Non-Clients

28
Q

Work Product Privilege

A
  1. Information gathered by an Attorney related to Representation
  2. Gathered for Purposes of/in Anticipation of Litigation
  3. Concerns Ordinary Work Product

Excludes: Special Work Product
-Mental Impressions = Always Protected

29
Q

Attorney Client Privilege

A

Communicated or Delivered to Attorney (Direct Result, not Inadvertent).
-Release after Reasonable Period of Time

30
Q

Mandatory Disclosures

A
  1. Cannot Assist Client in Committing Fraud
  2. Purgury Before Tribunal (Nix v. Whiteside)
  3. Material Fact to 3rd Person if necessary to avoid assisting a criminal or fraudulent act by client

Professional Responsibility (3 decks)

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