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GA BAR: MBE + GA Essay/Distinctions > GA Essays – Professional Ethics > Flashcards

GA Essays – Professional Ethics Flashcards

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1
Q

What entity governs the admission to practice law in Georgia?

The Practice of Law

A

Admission to practice law in GA is governed by the Supreme Court of GA.

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2
Q

What are the requirements for admission to practice law?

The Practice of Law

A

“SEC” – Requirements include: (1) School - must graduate from an ABA accredited law school; (2) Exam - must pass the bar exam/attorney exam; and (3) Character - Must receive a certification of character and fitness.

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3
Q

Some behavior is prohibited during the application process to practice law; what are the three things applicants are prohibited from doing?

The Practice of Law

A

(1) An applicant may not knowingly make a false statement in connection with the application.
(2) An applicant may not fail to disclose a fact necessary to correct a misapprehension known to have arisen in the matter.
(3) An applicant may not fail to respond to a lawful demand by an admissions authority in connection with the application (unless the fact is protected by the rules governing confidential communications).

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4
Q

When is a lawyer subject to discipline for the unauthorized practice of law in a jurisdiction where the lawyer is not licensed?

The Practice of Law

A

In GA, a lawyer is subject to discipline for practicing law in another state where doing so violates the regulation of the legal profession in that state.

  1. A GA lawyer that is practicing in a state where the lawyer is not licensed to practice may face sanctions under the state where she is not licensed to practice and professional discipline in GA.
  2. A lawyer licensed to practice in a different state that is not licensed to practice in GA cannot establish an office or other systematic and continuous presence in GA for the purpose of practicing law.
  3. A lawyer licensed to practice in a different state that is not licensed to practice in GA cannot hold out to the public that the lawyer is admitted to practice in GA.

Exceptions: An out-of-state lawyer can practice when:
* (1) An out-of-state lawyer has received temporary (pro hac vice) admission; OR
* (2) An out-of-state lawyer is associated with a lawyer who actively participates in the matter.

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5
Q

When is a lawyer subject to discipline for assisting non-lawyers in the unauthorized practice of law?

The Practice of Law

A
  1. In Georgia, a lawyer cannot assist a person who is not admitted in the state in the unauthorized practice of law.
  2. In GA, a lawyer who does assist a nonlawyer in the unauthorized practice of law is subject to (1) civil penalties; (2) Criminal Penalties; (3) Professional Discipline.
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6
Q

When does violating the GA Professional Ethics Rules constitute professional misconduct?

The Practice of Law

A

Rule Violations: It constitutes professional misconduct to violate or attempt to violate any of the GA rules, OR to knowingly assist or induce another to violate the rules.

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7
Q

What do the GA rules say about a lawyer who commits a felony, and what is that lawyer required to do upon conviction?

The Practice of Law

A

It is professional misconduct for a lawyer to be convicted of a felony. In GA, a lawyer convicted of a felony has an affirmative duty to inform the State Bar of the felony conviction.

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8
Q

What do the GA rules say about a lawyer who commits a misdemeanor, and what is the lawyer required to do upon conviction?

The Practice of Law

A

It is professional misconduct for a lawyer to be convicted of a misdemeanor involving moral turpitude, when the underlying conduct relates to the lawyer’s fitness to practice law.

In GA, a lawyer convicted of such a misdemeanor has an affirmative duty to inform the State Bar of the conviction.

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9
Q

What do the GA rules say about a lawyer who commits a criminal act?

The Practice of Law

A

In GA, it is professional misconduct to commit any criminal act (conviction is not necessary) that relates to the lawyer’s fitness to practice law or reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer, provided the lawyer has admitted to the act in court.

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10
Q

What are acts of sleaziness that a lawyer is subject to discipline for in GA?

The Practice of Law

Aside from Felony, Misdemeanor of Moral Turpitude, or Criminal Acts

A

In GA, a lawyer is subject to discipline for:
*Engaging in professional conduct involving dishonesty, fraud, deceit, or misrepresentation.
*Failing to pay a final judgment for money collected as a lawyer within 10 days after the time appointed in the order.
*Stating or implying an ability to influence improperly a government agency or official.
*Stating an ability to achieve results by means that violate the GA rules.
*Achieving results by means that violate the GA Rules or other law.
*Knowingly assisting a judge or judicial officer in conduct that is a violation of the applicable Rules of Judicial Conduct or other law.

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11
Q

When is a GA lawyer subject to discipline for another lawyer’s conduct?

The Practice of Law

A

A lawyer is subject to discipline for another lawyer’s conduct if the lawyer:
* (1) ordered the misconduct;
* (2) ratified the misconduct with knowledge of the specific misconduct;
* (3) is a partner or manager in a law firm who knows of the misconduct of another lawyer over whom the lawyer has direct supervisory authority, at a time when the consequences could be avoided or mitigated but the lawyer fails to take reasonable remedial actions.

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12
Q

When is a GA lawyer subject to discipline for a non-lawyer employee’s conduct?

The Practice of Law

A

A lawyer with direct supervisory authority over a non-lawyer must make reasonable efforts to ensure non-lawyer’s conduct is compatible with the lawyer’s professional obligations.

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13
Q

What are the duties of a subordinate lawyer to avoid being subject to discipline for misconduct?

The Practice of Law

A
  1. When a subordinate lawyer’s duty is clear, the subordinate lawyer must conform to the Rules even if the supervisory lawyer directs otherwise.
  2. When a subordinate lawyer’s duty is arguable, the subordinate lawyer will not face discipline if the subordinate acts in accordance with the supervisors reasonable resolution of the issue, even if it turns out that the supervisor’s interpretation is incorrect.
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14
Q

Is a GA lawyer subject to discipline only for misconduct that occurs in GA?

The Practice of Law

A

No. A lawyer admitted in GA is subject to discipline for misconduct that occurs anywhere.

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15
Q

When should a GA lawyer inform the appropriate professional authority that another lawyer has violated the GA rules?

The Practice of Law

A

In GA, if a lawyer

  • knows that another lawyer has violated the GA rules and
  • that conduct raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer,
  • the lawyer who knows of the misconduct should inform the appropriate professional authority
  • but is NOT obligated to do so and is not subject to professional discipline for failing to do so.

Note that the Model Rules are stricter than GA

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16
Q

What are the GA rules for sharing fees?

The Practice of Law

Answer includes Division within law firm and Fees with Nonlawyers

A
  1. Division of fees within a law firm is permissble.
  2. A lawyer may not share fees with a nonlawyer and cannot form a partnership or professional corporation with a nonlawyer.
  3. A nonlawyer cannot hold an ownership interest in a law firm.
  4. A nonlawyer cannot serve as manager or director of a law firm.
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17
Q

What requirements must a lawyer fulfull in the purchase or sale of a law practice.

The Practice of Law

A

In the purchase or sale of a law practice, a lawyer must provide written notice to clients doing the following:
* Obtain Consent from the client (which may be presumed if the client does not object within 90 days of receiving notice)
* Acknowledging Existence of the proposed sale
* Informing clients of their Right to retain other counsel
* Including Terms of any proposed changes to the fee arrangement and
* Sale of the firm.

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18
Q

What restrictions on practice (non-compete agreements) are a GA lawyer prohibited from agreeing to?

The Practice of Law

A

A GA lawyer may not:
* Be a party to an agreement that restricts the ability to practice after leaving a firm, OR
* Agree not to represent others in connection with settling a claim on behalf of a client.

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19
Q

What is the process/procedure for enforcing professional discipline on a lawyer.

The Practice of Law (Cats Go In For Supper)

A
  1. Complaint – is typically filed by the client, but sometimes filed by another attorney
  2. Grievance Counsel - complaint first goes to a grievance counsel, which decides whether to dismiss the complaint or whether to refer it for futher review
  3. Investigative Panel - decides what preliminary discipline to recommend, and whether to refer the matter for further review.
  4. Formal Complaint Process - In the formal complaint process, a special master conducts a hearing, considers evidence, and prepares a report for the review panel
  5. Supreme Court of GA - imposes the final discipline, if any, that will be conferred.

“Cats (Complaint) Go (Grievance Counsel) In (Investigative Panel) For (Formal Complaint Process) Supper (Supreme Court)”

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20
Q

Under what laws (theories) can a lawyer be sued for malpractice?

The Practice of Law

A

Malpractice theories include (1) Breach of contract, (2) Intentional Tort; and (3) Negligence.

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21
Q

Whar are the negligence elements in an action for lawyer malpractice?

The Practice of Law

A

Negligence elements in a malpractice action include:
* (1) Duty - a GA attorney has the duty to exercise competence and diligence of lawyers
* (2) Breach - GA requires a complaint for malpractice to be accompanied by an expert affidavit that states at least one act of negligence that occurred under the facts as alleged in the complaint
* (3) Causation - Plaintiff must show that but for the lawyer’s breach, the injury would not have occurred
* Harm - Plaintiff must show actual damages, and may not bring a malpractice claim while the underlying matter is still pending.

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22
Q

Is a lawyer required to accept the representation of a client?

Ethical Issues in Client Development

A

A lawyer does not have a duty to accept representation of any client, but a lawyer may avoid a court appointment only when there is good cause:
* The lawyer is not competent
* The representation would result in a conflict of interest with another client or a former client
* Acceptance would be unreasonably burdensome to the lawyer.

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23
Q

When does a GA lawyer have a duty to reject representation of a client?

Ethical Issues in Client Development

A

A GA lawyer has a duty to reject representation of a client if it would:
* (1) result in violation of the GA rules or other law, OR
* (2) when the lawyer’s physical or mental condition materially impairs the lawyer’s ability to do the work.

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24
Q

When does the attorney-client relationship begin?

Ethical Issues in Client Development

A

The attorney-client relationship begins when the client reasonably believes the relationship exists.

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25
Q

When is a statement made by a GA lawyer (in an advertisement) misleading?

Ethical Issues in Client Development

A

A lawyer cannot make false or misleading statements about the lawyer or the services. The GA rules specifically provide that a statement is misleading if it:
* (1) contains a material misrepresentation of fact or law or omits a fact necessary to make the statement considered as a whole not materially misleading;
* (2) is likely to create an unjustified expectation about the results the lawyer can achieve;
* (3) compares the lawyer’s services with other lawyer’s services unless the comparison can be factually substantiated
* (4) Fails to include the name of at least one lawyer responsible for its content;
* (5) Contains any information regarding contingent fees without a conspicuous disclaimer that they are not always permitted and that court costs and other expenses of legal action usually must be paid by the client; OR
* (6) contains the language “no fee unless you win or collect” or any similar phrase without an explanatory disclaimer.

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26
Q

Can a GA lawyer hold herself out as a specialist or say that her practice is limited to a particular field?

Ethical Issues in Client Development

A

A lawyer can say that his or her practice is limited to a particular field, and can hold himself or herself out as a specialist through experience, specialized training or education, or certification by a recognized and bonafide professional entity.

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27
Q

What information is required to be disclosed on all advertisements directed to potential GA clients?

Ethical Issues in Client Development

A

An advertisement must include:
* Name, Address, and Phone number of each lawyer or firm paying for the ad;
* That lawyer will Refer the matter to other attorneys (if applicable);
* Use of any Non-lawyer spokesperson, portrayl of lawyer or client by an Actor; or Paid testimonial or endorsement;
* Label of “Advertisement” if it resembles a pleading, notice, or other legal document

Think NAP-R; NAP-L

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28
Q

How many years must a GA lawyer retain a copy of their advertisements?

Ethical Issues in Client Development

A

A GA lawyer must retain a copy of all advertisements for 2 years from the date of the last dissemination.

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29
Q

For firm names, a firm name must NOT be…

Ethical Issues in Client Development

A

Misleading

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30
Q

When is a trade name allowed as a firm name?

Ethical Issues in Client Development

A

A trade name is allowed so long as it:
* (1) does not imply a connection with a government agency or a public or charitable legal services organization;
* (2) includes the name of at least one lawyer practicing under the firm name; and
* (3) otherwise complies with the rules regarding lawyer advertising.

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31
Q

When can the name of a lawyer holding public office not be used in a firm name?

Ethical Issues in Client Development

A

The name of a lawyer holding public office shall not be used in the name of the firm during any substantial period in which that lawyer is not actively participating in the firm.

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32
Q

What is the general rule for a lawyer regarding soliciting employment from a non-lawyer?

Ethical Issues in Client Development

A

A lawyer cannot solicit professional employment through direct personal contact or live telephone contact with any nonlawyer.

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33
Q

A GA lawyer is allowed to provide written communications to prospective clients UNLESS…

Ethical Issues in Client Development

A

Written communications to prospective clients unless:
* The lawyer knows the person does not want to receive communications;
* Communication involves coercion, duress, fraud, overreaching, harassment, intimidation, or undue influence
* Communication relates to personal injury or wrongful death actions (or otherwise relates to an accident or disaster involving the recipient or a relative) within 30 days of the occurrence;
* The lawyer knows or should know that the recipient’s physical, emotional, or mental state is such that he or she cannot exercise reasonale judgment in hiring a lawyer.
* Any written communication to a prospectice client who is not a close friend, a relative, or a former client, must be marked “Advertisement” if it is for the purpose of obtaining professional employment.

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34
Q

What factors are considered to determine whether a lawyer’s fee meets the Reasonable requiremet?

Ethical Issues in Client Development

A

A lawyer’s fee must be reasonable. Factors to consider include:
* Preclusion from other employment
* Expertise
* Time and labor
* Customary fee in the community
* Amount sought
* Results obtained
* Difficulty of the case
* Skill that is required

Think “PET CARDS”

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35
Q

When are contingent fee arrangements NOT allowed?

Ethical Issues in Client Development

A

Contingent fee arrangements are not allowed in:
1. Domestic Relations cases in which the fee is contingent on obtaining a divorce OR on recovering an amount of support (e.g., spousal, alimony)
2. The representation of a defendant in a criminal case.

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36
Q

In a contingent fee arrangement, what is required?

Ethical Issues in Client Development

A

Contingent fee arrangements must be
* (1) in writing and
* (2) must include explanation of the basis for computing the fee, whether and which costs will be deducted from the recovery, and whether such costs will be deducted before or after computation of the contingent fee.

The lawyer must also furnish a written statement explaining the outcomeof the matter;
* if there is a recovery, the statement must explain the amount payable to the client and how it was computated.

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37
Q

Can lawyers in the same firm share fees?

Ethical Issues in Client Development

A

Lawyers in the same firm may share fees freely.

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38
Q

When can lawyers from different firms share fees?

Ethical Issues in Client Development

A

When lawyers from different firms share fees, there are three requirements:
* (1) Either the proposed fee split is proportionate to the services rendered by each lawyer or (with client consent) the lawyers assumed joint responsibility for the matter
* (2) The client is advised of the proposed fee split and does not object; and
* the total fee charged must be reasonable

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39
Q

Are referral fees allowed?

Ethical Issues in Client Development

A

Referral fees are not allowed, except a lawyer can pay charges fom a bar-operated lawyer referral service.

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40
Q

Who does a retainer amount belong to and where must they be placed?

Ethical Issues in Client Development

A

Retainers belong to the client and must be placed in a client trust account that is separate from all other monies and either pays interest to the client or is structures as an IOLTA (interest on lawyer trust account) operated by state courts or state bar.

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41
Q

Lawyers who commingle funds with business accounts or who borrow or withdraw from a trust account will be subject to discipline.
* When can a lawyer’s funds enter the client trust account and when can a lawyer withdraw funds from the client trust account for deposit in the lawyer’s own account?

Ethical Issues in Client Development

A
  • No funds belonging to a lawyer can be placed in a client trust account except amounts used to pay bank charges.
  • A lawyer must withdraw funds from an account once they undisputabely belong to the lawyer; otherwise, disputed funds must remain in the account until resolution.
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42
Q

When is a lawyer required to mitigate any adverse impact on a client?

Ethical Issues in Client Development

A

Regardless of whether termination is voluntary or required, a lawyer has a duty to mitigate any adverse impact on a client.

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43
Q

When do the GA rules require a lawyer’s mandatory withdrawal from a case?

Ethical Issues in Client Development

A

A GA lawyer must withdraw from representing a client when:
* (1) Violation of the GA rules would result from the representation;
* (2) Attorney’s health materially impairs the attorney’s ability to represent;
* (3) Client discharged the lawyer, unless ordered by the court to continue representation

Think: “VAC”

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44
Q

When do the GA rules require a lawyer’s permissive withdrawal from a case?

Ethical Issues in Client Development

A

A GA lawyer may withdraw from representing a client when:
* (1) Criminal or fraudulent course of action insisted on by the client;
* (2) Repugnant or imprudent course of action insisted on by the client;
* (3) Other good cause exists;
* (4) Unreasonable burden to the lawyer (financial or difficulty)
* (5) Client fails to perform an obligation despite reasonable warning from the lawyer
* (6) Harmless to client;
* (7) Services used by client to perpretrate crime or fraud

Think: “CROUCH-S”

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45
Q

What is the procedure for termination of the attorney-client relationship?

Ethical Issues in Client Development

A
  1. Permission from a court
  2. Opportunity to obtain new counsel
  3. Return client property, papers, and fees
  4. Notice of withdrawal (mandatory or permissive) to the client

Think: PORN

46
Q

In the lawyer-client relationship, what types of decisions are controlled by the client?

Lawyer-Client Relationship

A

In the lawyer-client relationship, decisions made by the client include:
* (1) the scope of the representation
* (2) whether to settle a matter
* (3) In a criminal case, whether to testify, whether to demand/waive the right to a jury trial, and whether to enter a plea.

Client controls the objectives of representation

47
Q

In the lawyer-client relationship, what types of decisions are controlled by the lawyer?

Lawyer-Client Relationship

A

In the lawyer-client relationship, the lawyer decides the means of the representation, which includes:
* (1) the strategy and tactics for achieving objectivies; but,
* (2) the lawyer must reasonably consult with the client about choices

48
Q

How is a lawyer required to treat a client with diminished capacity? What actions are a lawyer allowed to take?

Lawyer-Client Relationship

A

To the extent possible, a lawyer must maintain an ordinary attorney-client relationship with a client with diminished capacity.

The lawyer may take reasonably necessary protective action IF the client:
* Has diminished capacity;
* Is at risk of substantial physical, financial, or other harm; and
* Cannot adequately act in his/her best interest

A lawyer taking action is impliedly authorized to reveal information about the client, but only as needed to protect the client’s interest.

49
Q

What factors are used to determine whether a lawyer is competent in a matter?

Lawyer-Client Relationship

A

Whether a lawyer is competent in a matter depends on many factors, including:
* (1) Nature of the matter;
* (2) Experience of the lawyer;
* (3) Training in the particular field; and
* (4) Study the lawyer can devote to the matter.

Think: “NETS”

50
Q

What options does a lawyer who lacks competence in a matter have?

Lawyer-Client Relationship

A

A lawyer who lacks competence in a matter has three options; the lawyer can:
* (1) Become competent without unreasonable delay;
* (2) Associate with competent counsel; or
* (3) Decline the representation

Think: “BAD”

51
Q

Must a lawyer act with diligence and promptness?

Lawyer-Client Relationship

A

A lawyer must act with reasonable diligence and promptess in representing a client.

52
Q

What is required for a lawyer to act with reasonable diligence?

Lawyer-Client Relationship

A

Diligence is:
* (1) Being committed to the client’s cause despite a personal inconvenience; BUT a diligent lawyer need not press for every possible advantage, and should not employ offensive tactics on behalf of a client.
* (2) Lawyer must control her workload to be sure all matters are handled competently.

53
Q

What is required for a lawyer to act with promptness?

Lawyer-Client Relationship

A

Acting with promptness means acting without unreasonable delay during the representation.

54
Q

When must a lawyer keep a client informed of the status of their matters?

Lawyer-Client Relationship

A

Lawyers are obligated to keep clients informed of a matter’s status and to respond to reasonable requests for information.

55
Q

When must settlement offers be communicated to the client?

Lawyer-Client Relationship

A

Settlement offers must be communicated promptly to the client, unless the lawyer and client have discussed and agreed otherwise.

56
Q

When are the four steps to determining whether a lawyer can procced when there is a conflict of interest?

Conflicts of Interest

A
  1. Is there a Conflict?
  2. Is the Conflict Consentable?
  3. Has the Client received notice?
  4. Has the Client Consented?

Shortened: Conflict? Consentable? Client received notice? Consent?

57
Q

What makes something a conflict of interest?

Conflicts of Interest

Step 1: “Is there a conflict”

A

A conflict occurs in two ways: when there is
* (1) Direct Adversity, meaning working for one client will directly hurt the personal or pecuniary interests of another client; or
* (2) Material Limitation, meaning there is a significant risk that representation will be limited by a duty owed to another

58
Q

If there is a Conflict, when is the conflict consentable by the client?

Conflicts of Interest

Step 2: Is the conflict consentable?

A

Client consent to a conflic tof interest is permissble, UNLESS the representation:
* (1) is forbidden by law (including the GA rules);
* (2) involves the assertion of a claim by one client against another in the same or substantially related proceeding; or
* (3) makes it reasonably unlikely that the lawyer will provide adequate representation to one or both of the affected clients.

59
Q

If there is a conflict of interest, and consent is allowed, when has the client been given sufficient notice?

Conflicts of Interest

Step 3: Has the client received notice?

A

A client has been given sufficient notice of a conflict of interest when the client has:
* (1) consulted with the lawyer in a manner reasonably sufficient to let the client appreciate the significance of the situation;
* (2) received written information about the material risks and available alternatives; and
* (3) been given the opportunity to consult with independent counsel

If each affected client after this has given informed consent in writing, then the representation may proceed. (step 4)

60
Q

Can a lawyer obtain a proprietary interest in the subject matter of the representation?

Conflicts of Interest

A

A lawyer cannot obtain a proprietary interest in the subject matyer of the representation, EXCEPT when:
* There is an attorney lien/interest granted by law to secure payment of fee; or
* It is a part of a permissible contingent fee arrangement.

61
Q

Can a lawyer provide financial assistance to a client in connection with pending or contemplated litigation?

Conflicts of Interest

A

A lawyer cannot provide financial assistance to a client in connection with pending or contemplated litigation, EXCEPT:

  • A lawyer may advance court costs and litigation expenses even if repayment is contingent on the outcome;
  • A lawyer may pay court costs and litigation expenses when the client is indigent.
62
Q

When can a lawyer enter into a business transaction with a client?

Conflicts of Interest

A

A lawyer cannot enter into a business transaction with a client UNLESS there are three writings, including:
* the Terms of the transaction and the lawyer’s role must be fair to the client and fully diclosed in writing that can be reasonably understood by the client;
* Independent advice – the client has been advised in writing of the desirability of seeking independent counsel (and given a reasonable opportunity to do so);
* Informed Consent – the client gives informed consent in writing signed by the client

63
Q

Can a lawyer negotiate for literary or media rights for an account related to the represenation? If so, When?

Conflicts of Interest

A

A lawyer may not negotiate for literary or media rights for an account related to the representation before the conclusion of the representation.

64
Q

What are the rules regarding whether a lawyer can draft an instrument that makes a substantial gift from the client to the lawyer or when the lawyer can accept gifts from clients?

Conflicts of Interest

A
  1. A lawyer cannot draft an instrument that makes a substantial gift from the client to the lawyer or a party related to the lawyer unless the donee is related to the client.
  2. A lawyer may accept an unsolicited gift from a client IF doing so meets general standards of fairness.
65
Q

What is the rule regarding what a lawyer cannot do with information learned during the representation of a client?

Conflicts of Interest

A

A lawyer cannot use information learned during the representation to the disadvantage of client without informed consent from the client.

66
Q

When may a lawyer accept payment for representation from one who is not the client?

Conflicts of Interest

A

A lawyer may accept payment for representation from one who is not the client if:
* (1) the client gives informed consent;
* (2) there is no interference with the lawyer’s independent professional judgment or the attorney-client relationship; and
* (3) Confidential Information is protected.

67
Q

Is a sexual relationship between a lawyer and client allowed in GA?

Conflicts of Interest

A

No. Georgia case law makes clear that a sexual relationship between a lawyer and client creates a conflict of interest.

68
Q

Can a lawyer who previously represented a client in a matter represent another person in the same or a substantially related matter?

Conflicts of Interest

New Representation Materially Adverse to Former Client

A

A lawyer who previously represented a client in a matter cannot represent another person in the same or a substantially related matter when that person’s interests are materially adverse to the interests of the former client, UNLESS the client gives informed consent.

  • Same Matter - means identical subject (same transaction, same lawsuit, same document)
  • Substantially related - means it is reasonable to expect the lawyer learned confidences in the prior representation that could be used adversely to the former client in the new representation
  • Materially Adverse - materially adverse if the subsequent use of the former client’s confidences would be harmful to the former client’s interests.
69
Q

May a lawyer, lawyer’s present firm, or lawyer’s former firm who formerly represented a client use information related to the representation to the disadvtanage of the former client?

Conflicts of Interest

Use of Information Learned in Former Representation

A

A lawyer (or a lawyer’s present or former law firm) who formerly represented a client may not use information relating to the representation to the disadvantage of the former client

Except when:
* (1) the GA rules would allow revelation of the confidences; or (2) when the information has become generally known.

Also, a lawyer (or a lawyer’s present or former law firm) who formerly represented a client may not reveal information relating to the representation,
* except when the Rules woild allow revelation of the confidences.

70
Q

When is a lawyer who switches law firms prohibited from representing a new person in the same or substantially related matter as a matter that the lawyer’s former law firm represented a party in?

Conflicts of Interest

Lawyer Switching Firms

A

A lawyer whose former law firm previously represented a client in a matter cannot represent another person in the same or substantially related matter when that person’s interests are materially adverse to the interests of the former client IF:
* the lawyer acquired material confidential information about that former client, UNLESS
* the former client gives informed written consent

71
Q

When may a lawyer’s former law firm represent a person with materially adverse interests to those of a client who was represented by the formerly associated lawyer but is not currently represented by the the former firm?

Conflicts of Interest

Lawyers Switching Firms

A

A lawyer’s old law firm may represent a person with interests materially adverse to those of a client represented by a lawyer formerly associated with the firm but not currently represented by the old firm.

EXCEPT:
* When the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; AND
* any lawyer remaining in the firm has material confidential information about the matter, then the prior law firm is disqualified absent informed written consent.

72
Q

Who does a lawyer representing an organization owe duties to?

Conflicts of Interest

Organization as Client

A

A lawyer representing an organization owes duties to the organization and not the individual constituents.

73
Q

When must a lawyer representing an organization let its officers, empoyees, members, constituents, etc., know the identity of the client?

Conflicts of Interest

Organizaion as a Client

A

In working with officers, directors, employees, members, owners, and other constituents, the lawyer must explain the identity of the client when the lawyer knows or should know that the organization’s interests are or may become adverse.

74
Q

When must a lawyer disclose a clear violation of the organization’s legal obligation up the chain of command? When to the appropriate external authorites?

Conflicts of Interest

Organization as a Client

A

Upon learning of a course of conduct that is either:
* A violation of the organization’s legal obligation; or
* A violation of the law that can be imputed to the organization; and
* will likely cause substantial injury to the organization,

The lawyer must proceed in the organization’s best interest. This means, the lawyer should first report up the chain of command, and if there is no correction of a clear violation of the law, the lawyer must disclose to the appropriate external authorities.

75
Q

Can a lawyer represent both an organization and its constituents?

Conflicts of Interest

Organization as a Client

A

A lawyer may represent both an organization and its constituents if there is no conflict of interest.

76
Q

Is a lawyer’s conflict of interest imputed to other lawyers? If so, how can the imputed disqualification be waived?

Conflicts of Interest

Organization as a Client

A

A lawyer’s conflict of interest IS imputed to all lawyers in the same Law Firm.

A client can waive the imputed disqualification if the client gives informed written consent after:
* (1) consultation with the lawyer;
* (2) receiving adequate written information about the material risks; and
* (3) having been given an opportunity to consult with independent counsel.

77
Q

What does Attorney-Client Privilege apply to?

Confidentiality

A

Attorney-client privilege applies to (1) confidential; (2) communication between the lawyer and client, (3) for the purposes of seeking legal advice.

Presence of Third Parties?
* Communication in the presence of (or through) a representative of the client or the lawyer does not destroy the privilege.

See Exceptions

78
Q

What are the exceptions to Attorney-Client privilege?

Confidentiality

A

Attorney-client privilege does not apply to communications between the lawyer and client regarding:
* Future crime or fraud;
* Disputes between the lawyer and client; and
* Estate disputes

NOTE, Future Crime (about past crimes doesn’t defeat privilege)

79
Q

May a lawyer disclose information relating to the representation of a client? Are there exceptions?

Confidentiality

A

A lawyer may not disclose information relating to the representation of a client UNLESS
* (1) the client consents to the disclosure,
* (2) the lawyer is impliedly authorized
* (3) or the disclosure is allowed by the GA rules (see flashcard on exceptions to confidentiality)

The duty to keep confidences applies regardless of the source of the information.

Note for Prospective Clients: Even if no attorney-client relationship arises, a lawyer is generally not permitted to reveal information learned in consultation with a prospective client.

80
Q

What do the GA rules permit a lawyer to disclose information relating to the representation of a client?

Confidentiality Exceptions

A

A lawyer does not have to keep confidential information relating to the representation of the client IF:
* Informed Consent from the client;
* Impied authority to disclose information to carry out representation;
* Discussions within a law Firm;
* To prevent substantial financial loss or harm from ongoing Criminal conduct;
* To prevent serious Ijury or death;
* To Defend the lawyer in a controversy with the client;
* To Secure Advice about the lawyer’s compliance with the rules;
* To comply with other Law or court order.

Think: “Can I Fly Coach In Delta Air Lines?”

81
Q

What are the general rules of conduct in litigation?

Ethical Issues in Litigation

A
  • No conduct intended to disrupt any proceeding of a tribunal;
  • Refrain from asbusive or hostile conduct;
  • Avoid the improper influence of a judge, juror, or propsectuve juror
  • No advancing a claim or defense that is unwarranted under existing law (though, a good-faith argument for extension or change of the law if allowed)
  • No taking action when lawyer knows it only serves to harrass or embarrass or cause undue delay.
82
Q

When does the duty of candor apply in legal proceedings?

Ethical Issues in Litigation

A

The duty of candors applies to any phase of a proceeding before a tribunal through the conclusion of the matter (defined as when a final judgment is affirmed or when the time for review/appeal has passed).

83
Q

How does the duty of candor apply when making statements of the law?

Ethical Issues in Litigation

A

A lawyer cannot knowingly make a false statement of law to the court, and a lawyer MUST disclose adverse authority that is controlling if opposing counsel has not done so.

84
Q

How does the duty of candor apply when making statements of fact in proceedings?

Ethical Issues in Litigation

A

A lawyer cannot knowingly make a false statement of fact to the court, and must not offer evidence the lawyers knows to be false.
* BUT, a lawyer is not obligated to disclose adverse facts unless it is an ex parte proceeding OR it is necessary to avoid assisting the client in a crime or fraud

85
Q

What are the rules for fairness to opposing party and counsel?

Ethical Issues in Litigation

A
  • No obstucting another party’s access to evidence
  • No unlawfully altering, destroying, or concealing a document or other item with potential evidentiary value (and not doing so through others)
  • No payment to witness contingent on the content of testimony or outcome of the matter, except that it is okay to pay a non-expert witness for travel expenses and to pay an expert witness a reasonable fee for the expert’s services
86
Q

What are the rules RE: a lawyer knowingly offering false evidence/preventing client from perjury?

Ethical Issues in Litigation

A

A lawyer may not knowingly offer false evidence and may properly refuse to introduce evidence the lawyer reasonably believes to be false.

BUT, in a criminal defense matter, the lawyer must honor a client’s decision to testify unless the lawyer knows the testimony will be false:
* If the client plans to give false testimony, the lawyer should attempt to dissuade the client from doing so, and seek to withdraw if the client refuses;
* If the lawyer only reasonably believes but does not know the defendant’s testimony will be false, the lawyer must let the client testify (GA goes not allow for narrative testimony).

87
Q

What is the rule for communicating with judges or jurors outside the presence of the other party?

Ethical Issues in Litigation

A

A lawyer cannot communicate with judges or jurors outside the presence of the other party or its counsel.

Except: for “housekeeping” matters and emergencies authorized by law.

88
Q

What is the rule for a lawyer’s truthfulness in Statements to Others?

Ethical Issues in Litigation

A

A lawyer may not knowingly make a false statement of material fact to any third person in representing a client.

This includes a duty not to make misleading statements of fact to the opposing party, though there are exceptions for statements made in negotiations.

89
Q

Can a lawyer communicate with represented persons (client of other side)?

Ethical Issues in Litigation

A

A lawyer cannot have communication about the representation with a person the lawyer knows to be represented by another lawyer in the matter UNLESS:
* the lawyer has consent from that other lawyer or
* is authorized to do so by law or court order.

In communicating with a represented organization, the lawyer cannot speak with a constituent that:
* works with the organization’s lawyer on the matter;
* has the power to bind the organization on the matter; OR
* can have his or her action imputed to the organization for criminal or civil liability purposes.

90
Q

Can a lawyer make extra-judicial statements that could prejudice the proceeding?

Ethical Issues in Litigation

A

A lawyer cannot make extra-judicial statements that the lawyer knows or should know will be disseminated to the public and will have a substantial likelihood of materially prejudicing the proceeding.

GA does NOT have an exception allowing a lawyer to discuss the facts of a case.

90
Q

Can a lawyer communicate with unrepresented persons? What must a lawyer do to comply with the rules in such a communication?

Ethical Issues in Litigation

A

A lawyer can communicate with unrepresented persons (like witnesses), subject to limitations:
* The lawyer cannot state or imply that the lawyer is disinterested;
* If the lawyer knows or should know that the person misunderstands the lawyer’s role, the lawyer msut make reasonable efforts to correct it;
* the lawyer cannot give legal advice to the person, except advise to secure counsel.

91
Q

What are the rules for prosecutors regarding bringing charges?

Ethical Issues in Litigation

A
  1. Prosecutors must only bring charges when supported by probable cause.
  2. Prosecutors must ensure that accused defendants are accorded all constitutional due process rights.
  3. Prosecutors must timely disclose any exculpatory evidence or other evidence that tends to disprove guilt.
92
Q

What are the rules for a lawyer serving as an advocate in a trial at which the lawyer is a witness?

Ethical Issues in Litigation

A

A lawyer cannot serve as an advocate in a trial at which the lawyer is likely to be a necessary witness, EXCEPT when:

  • testimony is about an uncontested issue;
  • testimony is about the nature and value of legal services rendered in the case; and
  • when disqualification woild be a substantial hardship to the client

Note: If a lawyer is disqualified under this rule, another lawyer in the same firm can act as advocate unless there is a conflict of interest.

93
Q

What is the rule requiring Judges to uphold integrity and independence of the judiciary?

Judicial Ethics

A

Judges shall personally observe such standards of conduct so that the integrity and independence of the judiciary is preserved.

94
Q

What are the rules regarding a judge’s obligation to avoid impropriety?

Judicial Ethics

A
  1. Judges shall comply with the law and shall always act in a manner that promotes public confidence in the judiciary.
  2. Judges shall not allow personal relationships to influence judicial conduct or judgment.
  3. Judges should not testify voluntarily as a character witness.
95
Q

What should a Judge NOT be swayed by in making decisions?

Judicial Ethics - Impartiality

A

Judges shall not be swayed by partisan interests, public clamor, or fear of criticism.

96
Q

How should judges treat those within the courtroom?

Judicial Ethics

A

Judges must require order and decorum in proceedings over which they preside.

Judges shall be patient, dignified, and courteous to litigatns, jurors, witnesses, lawyers, and others with whom they deal in their official capacity.

97
Q

What rule must judges follow re: bias and prejudice?

Judicial Ethics

A

Judges shall not by words or conduct manifest bias or prejudice based on race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic statuts.

98
Q

May a judge obtain the advice of another judge regarding the court proceeding?

Judicial Ethics

A

Judges may obtain the advice of a disinterested judge on the law applicable to a proceeding before the court, IF:
* the judge gives notice to the parties of the person consulted and the substance of the advice,
* and affords the parties reasonable opportunity to respond.

99
Q

What is the rule for fairness, promptness, and efficiency that judges must follow?

Judicial Ethics

A

Judges shall dispose of all judicial matters fairly, promptly, and efficiently (in that order).

100
Q

Can a judge criticize jurors for their verdict?

Judicial Ethics

A

Judges shall not commend or criticize jurors for their verdict other than in a court order or opinion in a proceeding,
* but may express appreciation to jurors for their service to the judicial system and the community.

101
Q

Can judges make public comments about proceedings?

Judicial Ethics

A

Judges shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness.

102
Q

What should a judge do if they receive information indicating a substantial likelihood that another judge or a lawyer has commited a violation of professional conduct?

Judicial Ethics

A

Judges who receive information indicating a substantial likelihood that another judge or a lawyer has committed a violation of professional conduct rules should take appropriate action.

Judges having knowledge that another judge or lawyer has committed a violation of professional conduct rules that raises a substantial question as to the other judge’s or lawyer’s fitness for office shall inform the appropriate authority.

103
Q

When should a judge disqualify themselves?

Judicial Ethics - Impartiality

A

Judges shall disqualify themselves in any proceeding in which their impartiality might reasonably be questioned, including but not limited to instances when:
* (1) the judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge, of disputed evidentiary facts concerning the proceeding;
* (2) the judge served as a lawyer or witness in the matter of controversy
* (3) the judge or the judge’s spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person or any other member of tje judge’s family residing in the judge’s household is a party to the proceeding, or is acting as a lawyer in the proceeding.
* (4) The judge received aggregate campaaign contributions that raise a reasonable question of s judge’s impartiality from one now appearing in the matter.

104
Q

When can a judge not engage in an outside activity?

Judicial Ethics - Extrajudicial activities

A

A judge cannot engage in an outside activity when doing so would cast doubt on the judge’s capacity to decide impartially any issue that may come before him.

105
Q

May judges speak or write on things concerning the legal system and the administration of justice?

Judicial Ethics - Extrajudicial activities

A

Judges may speak, write, lecture, teach, and participate in other activities concerning the legal system and the administration of justice.

106
Q

When may a judge serve as an officer, director, or non-legal advisor of educational, religious, charitable, fraternal, or civic organizations?

Judicial Ethics - Extrajudicial activities

A

Judges may serve as officers, directors, trustees, or non-legal advisors of educational, religious, charitable, fraternal, or civic organizations not conducted for the economic or political advantage of their members, subject to the following limitations:
* Judges shall not serve if it is likely that the organization will be engaged in proceedings that would ordinarly come before them;
* Judges shall not solicit funds for any educational, religious, charitable, fraternal, or civic organization;
* Judges shall not give investment advice to such an organization, but they may serve on its board of directors or trustees.

107
Q

When should a judge refrain from financial and business dealings?

Judicial Ethics - Financial Activites

A

Judges should refrain from financial and business dealings with lawyers, litigants, and others that
* tend to reflect adversely on their imparitiality,
* interfere with proper performance of their judicial duties, or
* exploit their judicial positions.

108
Q

What should a judge manage their investments to minimize?

Judicial Ethics - Financial Activities

A

Judges should manage their investments and other financial interests to minimize the number of cases in which they are disqualified.
* As soon as they can do so without serious financial detriment, they should divest themselves of investments and other financial interests that might require frequent disqualification.

109
Q

Can judges accept substantial gifts?

Judicial Ethics - Financial Activities

A

Neither judges nor members of their families residing in their households should accept a substantial gift, favor, or loan from anyone
EXCEPT FOR:
* ordinary social hospitality;
* something from a relative,
* a wedding or engagement gift;
* a loan from a lending institution in its regular course of business on the same terms generally available to persons who are not judges, or
* a scholarship or fellowship awarded on the same terms applied to other applicants).

110
Q

Should judges serve as fiduciaries?

Judicial Ethics - Financial Activities

A

Judges should not serve as fiduciaries EXCEPT:
* for the estates or trusts of members of their families (and even then only if such service will not interfere with the proper performance of their judicial activities)

111
Q

Can a judge make speeches or endorse a candidate for public office?

Judicial Ethics - Political Actvities

A

A judge shall not make speeches for a political organization or candidate or publicly endorse a candidate for public office.

GA BAR: MBE + GA Essay/Distinctions (3 decks)

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