Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

PR 2017 > Final Exam > Flashcards

Final Exam Flashcards

1
Q

Formation of Attorney-Client Relationship

A

Togstad: “Attorney client relationship created when an individual seeks and receives legal advice, form an attorney, in circumstances in which a reasonable person would rely on such advice.”
- To prevent, draft and submit a turn down letter.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Benham’s Turndown Letter

A
  1. Date you gave the advice;
  2. Made out to all potential clients of case;
  3. Brief Synopsis of contact and issues considered;
  4. Plain statement that you’re not taking the case;
  5. Statement that this letter is not an opinion on the merits (or not comprehensive of all claims).
  6. Statement suggesting they seek further legal advice immediately;
  7. Warning on applicable statute of limitations for all possible claims.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Model Rule 1.1

A

Duty of Competence: “Requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Model Rule 1.3

A

Duty of Diligence: Lawyer must act diligently and promptly in the representation of a client.
- Issues of procrastination, or failure to meet SOL invoke 1.3.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Model Rule 2.1

A

Duty of Candor: Lawyer mandated to give candid advice on the Lawyer’s legal opinions of a Client’s case. It is discretionary whether the lawyer wants to included considerations outside of the law in making his determination of the case.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Model Rule 1.4

A

Duty to Communicate: Lawyer must inform the client promptly of any decisions which require a client’s informed consent. Lawyer decides the means of achieving a client’s objectives, but must reasonably consult the client on those means. Matters (status, relevant conduct) should be explained to give the Client an ability to participate intelligently.
- Issues of a Lawyer not wanting to tell a client an unpalatable fact on their case.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Duty of Competence

A

Model Rule 1.1 Competence requires:

  1. The requisite ability to take a case;
  2. Adequate conduct in the representation on thoroughness and preparation.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Ineffective Assistance of Counsel

A

6th Amendment provides all who have been accused of a crime that can result in imprisonment, the right to effective counsel.

  • Padilla v. Kentucky -
    Client’s 6th Amendment rights extends to an attorney informing the client of possible immigration consequences to a plea agreement.
  • Jones v. Barnes -
    6th Amendment does not grant the right for a Client to compel an attorney to raise a non-frivolous argument on appeal.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Strickland Case

A

To prove Ineffective Assistance:

  1. Lawyer’s error must be very SERIOUS (more than a 1.1 violation); AND
  2. A Defendant must be able to show that there is a REASONABLE PROBABILITY that, but for the Lawyer’s error, the result of the case would have been different.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Model Rule 1.2

A

Scope of Representation & Allocation of Authority: The client decides the objectives (i.e. goals) of their representation. Lawyer decides the means (although must consult client) by which the Client’s objectives are pursued.

  • ex. Criminal Case:
    1. Client decides (a) whether to plea, (b) whether to waive jury trial, and (c) whether to testify.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Lawyer’s Fiduciary Duties

A

To fulfill his duties: “A lawyer must comply with obligations concerning his client’s confidences and property, avoid impermissible conflicts of interest, deal honestly with the client and not employ advantages arising from the cline-lawyer relationship in a manner that is adverse to the client.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Restatement Explanation on Model Rule 1.2

A
  • Concerning A Lawyer’s ability to decide the means: “Except for decisions reserved to clients, and in the absence of an agreement on the matters, a lawyer may take any lawful measure within the scope of representation that is reasonably calculated to advance a client’s objective.”
  • Unless agreed to, “A lawyer should make decisions that involve technical legal and strategic considerations difficult for a client to assess.”
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Model Rule 1.4

A

Client’s with Diminished Capacity:

  • Lawyer should treat the relationship with the client as if they are normal as much as possible.
  • (b) provides lawyer’s the needed flexibility to assume a more paternalistic role to protect the client from some harm.

Rule statement: A lawyer should, as far as reasonably possible, treat a client with diminished capacity as a normal client. However, given the circumstance, a lawyer is provided the flexibility to assume a more parental protective role over the client.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Model Rule 8.1

A

Bar Admission & Disciplinary Matters:
Prohibits applicants, and lawyers connected to applicants, from (a) KNOWINGLY making false statements in application, and (b) FAILING TO DISCLOSE A KNOWN fact or KNOWINGLY FAIL TO RESPOND to a lawful demand for facts.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Danger Disciplinary Zones

A
  1. Felonies - (including crimes of moral turpitude (i.e. fraud, theft, or crimes involving dishonesty)).
  2. Dishonesty - Particularly recent or repeated dishonest conduct or false statements in s BAR application.
  3. Substance Abuse - Can result in denial of BAR application. (Can NOT result in denial in TX).
  4. Misconduct during law school - Applicant bears the burden of proof, by clear & convincing evidence, to support his claim to having the requisite character of fitness.
    - No Statute of Limitations of BAR discipline.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

5th Amendment on 8.1 admissions

A

If relied upon, a person should do so openly and not use the right of nondisclosure as a justification for failure to comply.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

Disciplinary Weight of Model Rules

A

ABA Model Rules are only a models, carry limited Governmental authority, and are only advisory to the State’s highest Court for formation of their own rules.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

Model Rule 8.4

A

Misconduct of Lawyers

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

Types of Misconduct Under 8.4

A

(a) Knowingly assist in violation of MRPC;
(b) Commission of criminal act which reflects adversely on Lawyer’s trustworthiness, or fitness as a lawyer;
- Look at the degree and grade of crime as defined by the legislature to determine if sanctionable. (i.e. crimes of dishonesty and violence will always carry sanctions).
(c) Conduct involving dishonesty, fraud, deceit, or misrepresentation;
(d) Conduct prejudicial to Justice;
(g) Conduct knows or reasonably should know is harassment or discrimination based on race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status IN CONDUCT RELATED TO THE PRACTICE OF LAW.
- (g) is not the law in TX!

  • Burden of proof in disciplinary action is by a preponderance of the evidence.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

Types of Misconduct that are Subject to Discipline

A

A) Misconduct in the representation of clients; AND

B) Misconduct unrelated to the practice of law that has bearing not the Lawyer’s fitness to practice law.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

Model Rule 8.3

A

Duty to Report Misconduct: If the misconduct of a Lawyer or Judge, “raises a substantial question as the that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects,” a Lawyer must report to the appropriate professional authority (i.e. BAR Disciplinary Authority).

  • Objective Standard: “Reasonable lawyer must have a firm opinion the the conduct more likely than not occurred.”
  • No Duty to Report If: (a) conduct would reveal confidential info protected by 1.6, (b) Conduct is learned from participation in an “approved lawyer assistance program,” or (c) the lawyer is representing another lawyer concerning the discipline of such misconduct.
22
Q

Model Rule 5.1

A

Responsibilities Partners/Supervisory Lawyers:

  • (a) & (b) - Partners & Supervisory Lawyers shall make reasonable efforts to ensure all lawyers of the firm conform with the MRPC.
    • Liability is possible irregardless of if the Lawyer reported the misconduct.–
  • (c) - Lawyer shall be responsible for another Lawyer’s violation if:
    1. Lawyer orders, or WITH KNOWLEDGE ratifies the other lawyer’s conduct; OR
    2. Lawyer is a partner, or one with comparable managerial authority in the firm, KNOWS of the conduct at a time when consequences can be avoided or mitigated, but fails to do anything about it.
    • Reporting to State BAR is sufficient.–
23
Q

TX Model Rule 8.03

A

Reporting Professional Misconduct:
Distinction from MRPC, in that if TX lawyer knows the Lawyer who committed misconduct to be “impaired by chemical dependency,” the Lawyer may report to an approved peer assistance program rather than BAR disciplinary authority.

24
Q

Model Rule 5.2

A

Responsibilities of Subordinate Lawyer (i.e. Associates):

  • Following orders is not an excuse, UNLESS;
    • The SUpervisor’s interpretation of the rules was a reasonable resolution of an arguable question of professional duty (i.e. close calls).
  • If interpretation is so wrong as to be unreasonable, then the subordinate can be disciplined for following the order. (To ensure reasonability (a) do research, and (b) seek other advice).
25
Q

Weider Case

A

Associates fired for reporting, or threatening to report, misconduct to discipline authority, will be protected by receipt of the ability to bring a suit for wrongful discharge.

26
Q

Rule 1.6

A

Duty of Confidentiality:

(a) - Lawyer shall not reveal information relating to the representation of a client, unless the client (i) gives informed consent, (ii) the disclosure is impolitely authorized in order to carry out the representation, or (iii) the disclosure is allowed by (b).
(b) - Lawyer may reveal, if reasonably believed necessary, for reasons 1-7.

27
Q

MRPC v. TRDP 1.6 Distinction

A 
TX = Mandatory to report Serious Bodily Injury or death, under 1.05(e)
MRPC = Discretionary to report SBI or Death, under 1.6(b)(1).
28
Q

(ii) Impliedly Authorized

A

Comment 16: Duty to dissuade client, limit the scope of the disclosure to the minimal amount necessary to prevent the harm, and only to as few people as possible.

29
Q

“Shall not reveal info related to the representation of the client”

A

Information relating to the matter on which the lawyer is representing the client. Personal info from client, including info learned from discovery. Info learned of in prior representation, and notes, memos, drafter by lawyer, related to the matter.

30
Q

Breach of Confidentiality: Lawyer Discipline

A

Could be subject to

(i) discipline;
(ii) tort claim for negligent/intentional breach of duty;
(iii) disqualified from representation;
(iv) enjoined from court.

31
Q

1.6(c): Stored Communications

A

Lawyer must act competently in safeguarding related information:
Factors in determining a lawyer’s reasonableness: (not limited to) sensitivity, likelihood of disclosure, cost of additional safeguards, difficulty of implementing other safeguards, extent that safeguards would interfere w/ lawyer’s representation.

32
Q

TX 1.05(c)(7)

A

Lawyer permitted to disclose to DEA that client may be selling cocaine.

33
Q

Rule 1.7

A

Conflict of Interests: Current Clients

  • Shall not represent in:
    (i) direct adversity;
    (ii) materially limited by representations;
    (iii) Unless, (a) reasonably believe can provide competent & diligent representation, (b) not prohibited by law, (c) not both sides of the v., and (d) client’s give written informed consent.
34
Q

1.7(a)(1): Direct Adversity

A

3 Types:

(1) Lawyer represents 2 parties o opposite sides of same litigation. (Client v. Client)
(2) Lawyer represented a client in an earlier case, and sues same client in a later case.
(3) Lawyer represents client in one case, but will have to cross-examine the same client in another.

35
Q

1.7(b)(1): Reasonable Belief

A

Factors:

  • Conflicting representations related or unrelated?
  • Divergent interests?
  • Both current clients, or one former?
  • Lawyer have a professional bond or loyalty to one?
36
Q

3 Leg’s of Case

A

(1) Liability
(2) Damages
(3) Collectability
- Keep in mind when examining conflicts of interests, at least in determining the client’s interests. -

37
Q

Rule 1.10

A

Imputation of Conflicts:
- General Rule: If one lawyer in a firm is barred by 1.7 or 1.9 from woking on a matter, none of the other lawyers in the firm are permitted to work on the matter either.

38
Q

Cuyler v. Sullivan

A

If ∆’s are jointly represented, and no-one objects at trial, a resulting conviction may nevertheless be overturned, “if the conflict significantly affected the representation.”

39
Q

1.7 Rule Statement

A

A lawyer shall not represent a client when the representation creates a concurrent conflict of interest, due to either directly adverse interests or there being a significant risk that the lawyer’s representation will be materially limited. However, a concurrent conflict of interest may be overcome only if the lawyer reasonably believes to be able to still provide competent and diligent representation, the conflict is not otherwise prohibited by law, the lawyer is not on both sides of the v, and all affected clients give written informed consent. Certain circumstances involving a lawyer’s personal interests, such as economic, business, or marriage interests, can also create conflicts that must meet these stated requirements to be overcome.

40
Q

Rule 1.18 Statement

A

(a) A prospective client is one who discusses with a lawyer, the possibility of forming a client-lawyer relationship with respect to a specific matter.
(b) A lawyer shall not use or reveal confidential information learned from a prospective client, regardless of if a relationship is formed.
(c) A lawyer shall not represent a client with interests that are materially adverse to a prospective client in a related matter. Further, if the lawyer receives any information that is significantly harmful to another client, the lawyer could be disqualified from representation.
(d) However, representation may be continued if the lawyer either receives written informed consent from both clients, or the lawyer takes reasonable measures on the spot to timely screen themselves and provides written notice of the conflict and the screen to the client.
- Comment 2: A Client’s unilateral communication to a lawyer = insufficient.

41
Q

Rule 1.9 Statement

A

Even after an attorney-client relationship has ended, a lawyer is still obligated to retain client confidences.
(a) A lawyer, who has formally represented a client, shall not represent another client in the same or substantially the same matter, whose interests are materially adverse. Comment 3 states that matters are substantially related when they involve the same legal dispute or require a lawyer to rely on a previous client’s confidences in their representation.
(b - Deals w/ moving firms) A lawyer shall not represent someone in the same or substantially related matter, where the lawyer’s previous firm represented someone with materially adverse interests and disclosed confidential information material to the matter.
- However, such conflicts as (a) and (b), can be overcome if the former client gives written informed consent.
(c) A lawyer or firm who has formally represented a client shall not use the information to the client’s disadvantage, unless it has become general knowledge, or the ethics rules in the jurisdiction require it.

The distinction b/w (a) & (b) is that (a) applies when you personally represented a client, and (b) when your firm represented the client.

42
Q

Rule 8.1 Statement

A

An applicant to the bar, or a lawyer in connection to an application or disciplinary matter, shall not knowingly fail to disclose material fact, fail to disclose known mistakes, or knowingly fail to respond to a demand for information from a disciplinary authority.

43
Q

Rule 8.3 Statement

A

A lawyer who knows that another lawyer, or judge, has committed a violation of professional conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness to practice law, or a judge’s fitness for office, shall inform the appropriate professional authority. However, one need not report if it would reveal confidential information under 1.6, or the information was learned in an approved lawyer assistance program.

44
Q

Rule 5.1 Statement

A

(a) A partner shall make reasonable efforts to ensure a firm has effective measures in giving reasonable assurance that all lawyers conform to the Professional conduct rules.
(b) A lawyer with direct supervisory authority, shall make reasonable efforts to see that the other lawyer conforms to the rules of precessional conduct.
(c) A lawyer is responsible for another’s violation if, the conduct was ordered, ratified with knowledge, or if they have managerial capacity and knew of the conduct at the time the consequences could be avoided or mitigated but they did nothing. However, reporting to a disciplinary authority is sufficient to avoid liability under (c).

45
Q

Rule 5.2 Statement

A

A lawyer is bound by the rules of professional conduct, even if ordered to act. However, if the ordered conduct was in accordance with a reasonable resolution of an arguable professional duty, then the subordinate is not liable.

46
Q

Rule 1.1 Statement

A

To fulfill their duty of competence, a lawyer shall provide competent representation by having the legal knowledge, skill, thoroughness, and preparation for the representation.
- Comment 1 Knowledge factors: Complexity, specialized nature, the lawyer’s training and experience, preparation, and consulting or associating with a ore experience attorney are all factors that go to a lawyer’s knowledge.
- Comment 2 Skill: Issue spotting is one of the most key skills a lawyer can have.
Although strikingly similar, competence is not identical to a lawyer’s duty of diligence.

47
Q

Rule 1.3 Statement

A

In fulfilling their duty of diligence, a lawyer shall act with reasonable diligence and promptness in their representation. Procrastination is the most resented failure of diligence that is seen in many representations. A lawyer shall take any and all legal and ethical measures to vindicate a client’s cause.

48
Q

Rul 2.1 Statment

A

A lawyer is required to give candid advice to a client. However, in giving such advice, a lawyer may refer to other factors beyond the law, such as economic, social, moral, or political factors, in giving their legal opinion of a case.

49
Q

Rule 1.4 Statement

A

To meet their duty to communicate with clients, a lawyer shall maintain communication and promptly inform the client of any circumstance which requires informed consent, concerns their means of representation, the status of their case, to promptly comply with reasonable info. requests, and any relevant limitations upon the lawyer’s conduct. The communication should explain the matter in a way that permits the client to participate intelligently.

50
Q

Rule 1.10 Statement

A

Rule 1.10, broken down, provides that when a lawyer is disqualified from representation, the other lawyers in the firm are too disqualified, unless the conflict is based on a lawyer’s personal interests, and there is no significant risk of material limitation. Comment 3 helps by stating that if the conflict does not raise a question as to the lawyer’s loyalty, or ability to protect confidences, then the new firm, or same lawyer, is probably not disqualified from the representation.
The rule also provides that a lawyer’s duty of loyalty and confidentiality travel with them when changing firms. This means a firm may represent someone who is materially adverse to one of the firms former clients, unless the matter is the same or substantially related to the representation and any lawyer has protected material information on the matter. However, a firm or lawyer may be overcome an imputed conflict. If lawyer is disqualified, the lawyer may be timely screened (asap) and written notice provided to any affected former client, to overcome the disqualification. If a firm is disqualified, but meets the requirements of 1.7 (Don’t stat if already done!): the lawyer reasonably believes representation can still be provided, representation is not prohibited by other law, not on both sides of the v., and all clients give written informed consent, the firm may overcome the disqualification by screening a providing prompt written notice to all affected clients.

51
Q

Can you screen current client conflicts?

A

NO! Even if you have left a firm, the relationship with a former client must be terminated for screening to be a resolution.

52
Q

Rule 1.13 Statement

A

Generally, when you represent an organization you’re representing the company who acts through it’s constituents. These conflicts generally arise when the interests of the person communicating with the lawyer is contrary to the interest of the company.

PR 2017 (1 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions