FOR TEST Flashcards
May a lawyer enter into a contingent payment agreement for a criminal case?
NO. 1.5(d) states that contingent fees are not permitted in criminal matters, or domestic relations where the fee is contingent upon settling a divorce or alimony.
Hypo: A lawyer was arrested for securities fraud and while out on bail attended an alumni event. At his table were two judges who were not presiding over his case and did not discuss the details of the lawyer’s case with him.
Are the judges subject to discipline under the RULES?
Yes, because they failed to avoid the appearance of impropriety.
A judge’s conduct creates an appearance of impropriety if it would cause a reasonable person to think that the judge either: (1) violated the Code or (2) engaged in other conduct “that reflects adversely on the judge’s honesty, impartiality, temperament, or fitness to serve as a judge.”
Comment 5 says: Perceived misconduct can be as important as actual misconduct because even if the judge is not violating any rule, the public’s confidence in the judiciary can be eroded if a reasonable person thinks the judge is engaging in misconduct.
If a defense attorney knows of a case that is not widely cited but still controlling in the jurisdiction and was not cited by the opposing side, is the lawyer obligated to bring it to the attention of the court?
Yes, if the lawyer knows about legal authority in the controlling jurisdiction and the opposing side does not bring it up, the lawyer must bring the legal authority to the attention of the court.
See 3.3(a)
HYPO: A lawyer was hired to help a client incorporate her microbrewery business. The lawyer drafted the articles of incorporation and then researched alcohol permits and licensing. The lawyer drafted a memo reflecting her research and billed the client for it. The client refused to pay for the hours spent drafting the memo.
Is the client required to pay for the hours drafting the memo?
No. The scope of a lawyer’s representation is defined by the client and the lawyer and may be limited
If a client hires a lawyer for a limited purpose, the client is agreeing to pay the lawyer only for that limited work. See id. at r. 1.5(b). If the lawyer exceeds that purpose without the client’s consent, the client may refuse to pay for the unrequested work.
The lawyer exceeded the scope and these tasks were not implicitly authorized in connection with the drafting of the articles of incorporation.
What is not a valid reason for a lawyer to decline an appointment for a criminal defendant by a judge?
Generally, a lawyer may not avoid a court’s representation appointment unless the lawyer can show good cause to decline the appointment.
Good cause might exist if the representation would likely result in the lawyer’s violating ethical rules, would unreasonably financially burden the lawyer, or if the client or the cause is so repugnant to the lawyer as to likely impair the lawyer-client relationship.
See 6.2
Can a lawyer decline court-appointed representation for a criminal defendant if the lawyer has no experience in criminal law and procedure?
Yes. The lawyer MUST decline representation if the representation cannot be done competently.
See 1.1
If a lawyer specializes in a specific area of law is the lawyer permitted to advertise that she is a specialist in that area of law?
Yes. A lawyer may state that she does or does not practice in a certain area of law, including that she is a specialist in that area of law.
The statements cannot be false or misleading
7.2, 7.4(2)
However, a lawyer is prohibited from stating that she is a “CERTIFIED” specialist unless she is actually certified in that jurisdiction.
Under what two circumstances may a lawyer state in an advertisement, website, or biography that she is a certified specialist?
(1) the lawyer has been certified as a specialist by an organization approved by an appropriate state authority or accredited by the ABA and
(2) the name of the certifying organization is clearly identified in the communication.
See 7.4
HYPO: a woman consulted a lawyer about divorcing her husband for having an affair. She did not hire the lawyer or otherwise pursue the divorce. A few years later, a woman forward with a paternity suit against the husband. the husband, not knowing his wife consulted the lawyer about divorcing him, asked the lawyer to represent him.
May the lawyer ethically represent the husband?
Remember SAME or SUBSTANTIALLY RELATED and SIGNIFICANTLY HARMFUL TO PROSPECTIVE CLIENT and received disqualifying information.
Yes. Subject to a few narrow exceptions, a lawyer may not represent a client with interests materially adverse to a prospective client in the SAME or a SUBSTANTIALLY related matter if the lawyer received information from the prospective client that could be significantly harmful to the prospective client.
In this scenario, the issue is not the same but a potential divorce suit will be substantially related to the divorce suit against the husband for having an affair. However, if the wife did not communicate any information during her consultation that could harm the wife, this would not be an issue.
See. 1.18
What are the exceptions to representing a client that has a connection to a prospective client?
- informed consent by the affected client and prospective client.
- the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and
(i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and
(ii) written notice is promptly given to the prospective client.
May lawyer B of the firm represent a prospective client who has an adverse interest to another client of the firm, if Lawyer A received disqualifying information about the prospective client.
Yes BUT the disqualified lawyer has been timely screened from participating in the matter and will not receive any fee related to the matter.
If these two elements are not satisfied, NO LAWYER IN THE FIRM MAY REPRESENT THE CLIENT with adverse interest to the prospective client.
May a lawyer say this statement in a retainer agreement?
“The lawyer’s representation does not include representation in connection with any appeal that may arise in connection with this matter.”
Yes, a lawyer may limit the scope of representation with the client’s informed consent.
An Appeal is a separate phase or part of a case that can be handled by a different attorney without necessarily harming the client’s interests. An agreement limiting a lawyer’s representation to handling matters only through trial is a reasonable limitation on the scope of representation consistent with Rule 1.2(c).
HYPO: Client asks L to litigate a malpractice claim that has 18 months until SOL runs out. L doesn’t have experience but conducts research. The client repeatedly contacts the L to get an update and the L says he is researching the matter. 17 months go by and the L finally drafts a complaint and the client signs off on it (two weeks before SOL is set to run out).
Is the lawyer subject to discipline under the ABA?
Yes because the lawyer did not act with REASONABLE DILIGENCE, which created unnecessary risks of jeopardizing the client’s rights. Even in light of the lawyer’s need to conduct additional research due to his lack of experience with medical-malpractice claims, this delay is unreasonable.
Even if the client’s interests are not affected substantially by the unreasonable delay, the client could still be worried and lose trust in her lawyer.
See 1.3
When is a lawyer permitted to enter into a reciprocal referral agreement with another professional?
- the arrangement is not exclusive
2. the clients are informed of the agreement being referred.
If a judge was pulled over for a DUI and subjected to a fine but not a criminal charge on his record, is he subject to discipline under the ABA?
Yes. As part of maintaining the integrity of the judiciary and avoiding even the appearance of impropriety, Rule 1.1 requires all judges to comply with the law.
May states enact requirements that lawyers must meet in order to be admitted to the bar?
Yes, so long as it is RATIONALLY RELATED to an applicant’s fitness to practice law.
A lawyer represented a physician in purchasing an interest in a medical practice. Seven years later, the same medical practice asked the lawyer to represent it in its merger with another medical group.
May the lawyer represent the medical practice?
Yes. A lawyer who has represented a client in a matter must not later represent a different client in the same or substantially related matter if that client’s interests are materially adverse to the former client’s interests.
Rule 1.9
Here, the lawyer would not be able to represent the medical practice in the same initial transaction, but the merger here is not the same or substantially related to the initial purchase transaction. The merger is a new matter so, the lawyer may represent the medical practice.
When is a lawyer not permitted to withdraw representation when good cause exists?
Right before trial and when a court orders the representation to continue.
Withdrawing representation immediately before trial would prejudice the client.
May a lawyer make an agreement with a client that prospectively limits his liability to malpractice?
Yes, but the client must be independently represented in connection with the agreement before signing the agreement.
When MUST a lawyer withdraw representation of a client?
If continuing the representation would violate the ABA rules or the law.
When entering into a business agreement with a client, does the agreement need to be favorable to the client?
NO. The agreement only needs to be 1. fair and reasonable and 2. fully disclosed in writing.
The client must also be given an opportunity to seek independent counsel on the transaction
Client must give informed consent in writing.
May a lawyer use information relating to a client?
Yes, only if the client gives informed consent.
In negotiations with a third party, may a lawyer state the value of the subject of a transaction?
Yes.
The rules prohibit a lawyer from knowingly:
- make a false statement of material fact or law to a third person or
- fail to disclose material facts to a third person if disclosure is necessary to avoid assisting the client in a criminal or fraudulent act (unless disclosure is prohibited by Rule 1.6)
However, this rule recognizes that certain types of statements made during negotiations, like price estimates or the value of the subject of a transaction, are not ordinarily taken as statements of material fact.
When may a lawyer accept payment for the representation of a client from a third party?
- with the client’s informed consent
- the client’s confidential information is protected
- the payment does not interfere with the representation of the client.
HYPO: a lawyer represents a corporation. the lawyer was talking with an employee of the corporation and the employee informed the lawyer that he was having an affair. After the representation of the corporation ended, the employee’s wife found about the affair. The employee asked the lawyer if the information about the affair was privileged.
Is the information privileged?
No. Attorney-client privilege only pertains to communications made in furtherance to the representation.
If the employee is speaking in the role of the corporation’s representative about a legal matter, the person’s communications will be protected, but only if it is in FURTHERANCE of the representation.
If a lawyer is serving as a mediator, arbitrator, or neutral third party, must the lawyer disclose that she is not representing either party?
Yes, but only if the parties are not represented by independent counsel.
If only one party is represented, the lawyer must disclose that she is not representing the unrepresented party.
May a mediator in a divorce settlement later represent the wife in the substantially related matter, if both parties give informed consent?
Yes. The lawyer may later represent one party even if the mediator participated personally and substantially in the prior matter so long as both parties give informed consent.
