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aba professional conduct (2014) > I. Client-Lawyer Relationship > Flashcards

I. Client-Lawyer Relationship Flashcards

1
Q

What does the competency duty require?

A

Legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.
MRPC Rule 1.1 (2014).

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2
Q

What are the relevant factor to determine a lawyer employed the requisite knowledge and skill?

A

(1) The relative complexity and specialized nature of the matter;
(2) The lawyer’s general experience;
(3) The lawyer’s training and experience in the field in question;
(4) The preparation and study the lawyer is able to give the matter; and
(5) Whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question.
MRPC 1.1, comment 1 (2014).

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3
Q

Must a lawyer already posses the specialized training in the field or prior experience in the field to accept a case within that field?

A

No. A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar. A lawyer can provide adequate representation in a wholly novel field through necessary study.
MRPC 1.1, comment 2 (2014).

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4
Q

May a lawyer ever give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required?

A

Yes. A lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required where referral to or consultation or association with another lawyer would be impractical.
MRPC 1.1, comment 3 (2014).

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5
Q

What factors are central to determining your attention and preparation is adequate for that particular case?

A

(1) What is at stake—major litigation and complex transaction ordinary require more extensive treatment than matter of lesser complexity and consequence.
(2) The scope of representation.
MRPC 1.1, comment 5 (2014).

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6
Q

What constitutes competent handling of a particular matter?

A

(1) Inquiry into and analysis of the factual and legal elements of the problem;
(2) Use of methods and procedures meeting the standards of competent practitioners.
(3) Adequate preparation.
MRPC 1.1, comment 5 (2014).

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7
Q

What must a lawyer do prior to retaining or contacting lawyers outside the lawyer’s own firm for assistance?

A

(1) Obtain informed consent from the client;
(2) Must reasonably believe that the other lawyers’ services will contribute to the competent and ethical representation of the client.
MRPC 1.1, comment 6 (2014).

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8
Q

What factors are considered when determining the reasonableness to retain or contract with other lawyers outside their own firm?

A

(1) The circumstances, including the education, experience, and reputation of the nonfirm lawyers;
(2) The nature of the services assigned to the nonfirm lawyer;
(3) The legal protections, professional conduct rules, and ethical environments of the jurisdictions in which the services will be performed, particularly relating to confidential information.
MRPC 1.1, comment 6 (2014).

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9
Q

What must lawyers from more than one law firm do under the Model Rules of Professional Conduct before providing legal services to clients?

A

The lawyers ordinary should consult with each other and the client about the scope of their respective representations and the allocation or responsibility among them.
MRPC 1.1, comment 7 (2014).

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10
Q

What is required to maintain requisite knowledge and skill?

A

(1) A lawyer should keep abreast of changes in the law and its practice (including the benefits and risks associated with relevant technology),
(2) Engage in continuing study and education and comply with all continuing legal education required to which the lawyer is subject.
MRPC 1.1, comment 8 (2014).

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11
Q

How does the Model Rules of Professional Conduct define “reasonable”?

A

Reasonable, when used in relation to conduct by a lawyer, denotes the conduct of a reasonably prudent and competent lawyer.
MRPC 1.0(h) (2014).

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12
Q

What is the scope of an attorney’s representation of a client?

A

A lawyer shall:
(1) abide by a client’s decisions concerning the objectives of representation, and
(2) shall consult with the client as to the means by which they are to be pursued.
MRPC 1.2(a) (2014).

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13
Q

Who makes the decision on whether to settle a civil action?

A

The client.

MRPC 1.2(a) (2014).

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14
Q

Who makes the decision on the plea being entered in a criminal matter?

A

The client.

MRPC 1.2(a) (2014).

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15
Q

Who makes the decision on whether to pursue a jury trial in a criminal matter?

A

The client.

MRPC 1.2(a) (2014).

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16
Q

Does a lawyer necessarily endorse their client’s actions?

A

No. A lawyer’s representation of a client does not constitute an endorsement of the client’s political, economic, social or moral views or activities.
MRPC 1.2(b) (2014).

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17
Q

What standard applies for limitations on the scope of the representation imposed by the lawyer?

A

A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.
MRPC 1.2(c) (2014).

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18
Q

What is a lawyer’s role when a client requests assistance in an illegal or fraudulent act?

A

A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent. A lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine he validity, scope, meaning or application of the law.
MRPC 1.2(d) (2014).

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19
Q

What deferences do the model rules suggest clients and lawyers make regarding decision making?

A

Clients normally defer to the special knowledge and skill of their lawyer with respect to the means to be used to accomplish their objectives, particularly with respect to technical, legal and tactical matters.
Lawyers usually defer to the client regarding such questions as the expense to be incurred and concern for third persons who might be adversely affected.
MRPC 1.2, comment 2 (2014).

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20
Q

When can a lawyer rely on advanced authorizations?

A

At the outset of a representation, the client may authorize the lawyer to take specific action on the client’s behalf without further consultation. Absent a material change in circumstance, a lawyer may rely on such an advance authorization. The client may revoke such authority at any time.
MRPC 1.2, comment 3 (2014).

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21
Q

What policy justifies the professional rule regarding implied endorsement of a client’s behavior?

A

Legal representation should not be denied to people who are unable to afford legal services, or whose cause is controversial or the subject of popular disapproval.
MRPC 1.2, comment 5 (2014).

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22
Q

If a lawyer gives a client an honest opinion regarding the legal consequence of an illegal act, is the lawyer culpable under the Model Rules of Professional Conduct?

A

No. The fact that a client uses advice in a course of action that is criminal or fraudulent of itself make a lawyer a party to the course of action.
MRPC 1.2, comment 9 (2014).

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23
Q

What course of action must a lawyer take if she or he discovers the client is using her or his work for illegal or fraudulent purposes?

A

A lawyer may not continue assisting a client in conduct that the lawyer originally supposed was legally proper but then discovers is criminal or fraudulent.
MRPC 1.2, comment 10 (2014).

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24
Q

What must a lawyer do if the client expects assistance not permitted by the Model Rules of Professional Conduct?

A

The lawyer must consult with the client regarding the limitations on the lawyer’s conduct.
MRPC 1.2, comment 13 (2014).

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25
Q

What must a lawyer do if she or he intends to act contrary to the client’s instructions?

A

The lawyer must consult with the client regarding the limitations on the lawyer’s conduct.
MRPC 1.2, comment 13 (2014).

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26
Q

How does the Model Rules of Professional Conduct define “fraudulent”?

A

Fraud or fraudulent denotes conduct that t is fraudulent under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive.
MRPC 1.0(d) (2014).

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27
Q

How does the Model Rules of Professional Conduct define “informed consent”?

A

Informed consent denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about he material risks of an reasonably available alternatives to the proposed course of conduct.
MRPC 1.0(e) (2014).

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28
Q

How does the Model Rules of Professional Conduct define “knows”?

A

Knowingly, known, or knows denotes actual knowledge of fact in question. A person’s knowledge may be inferred from circumstances.
MRPC 1.0(f) (2014).

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29
Q

What is the standard applied to a lawyer’s work and work product?

A

A lawyer shall act with reasonable diligence and promptness in representing a client.
MRPC 1.3 (2014).

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30
Q

What can limit a lawyer’s duty of diligence and promptness?

A

A lawyer is not bound to press for every advantage that might be realized for a client. The lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved int eh legal process with courtesy and respect.
MRPC 1.3, comment 1 (2014).

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31
Q

What should a lawyer do to fulfill her or his duty of diligence and promptness?

A

A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor.
MRPC 1.3, comment 1 (2014).

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32
Q

What professional shortcoming is the most widely resented in the legal profession?

A

Procrastination.

MRPC 1.3, comment 3 (2014).

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33
Q

What are the negative effects of procrastination?

A

(1) A client’s interests often can be adversely affected by the passage of time or changes in conditions;
(2) A client’s legal position could be destroyed by a statute of limitation; and
(3) Unreasonable delay can cause a client needless anxiety and undermine confidence in the lawyer’s trustworthiness.
MRPC 1.3, comment 3 (2014).

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34
Q

Can a lawyer grant the opposing party a postponement and maintain their duty to act with reasonable promptness?

A

Yes. A lawyer may agree to a reasonable request for a postponement that will not prejudice the lawyer’s client.
MRPC 1.3, comment 3 (2014).

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35
Q

Can a lawyer arbitrarily not carry a client’s matter to conclusion?

A

No. Unless the relationship is terminated, a lawyer should carry through to conclusion all matters undertaken fro a client.
MRPC 1.3, comment 4 (2014).

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36
Q

When is a lawyer’s duty fulfilled when the scope is limited to a specific matter?

A

A lawyer employed to resolve a specific matter remains the lawyer to the client until the matter has been resolved.
MRPC 1.3, comment 4 (2014).

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37
Q

What must a lawyer do who has served a client for several different matter to ensure the relationship has ended?

A

If a lawyer has served a client over a substantial period in a variety of matters, the client somethings may assume that he lawyer will continue to serve on a continuing basis unless the lawyer gives notice of withdrawal. Doubt about whether a client-lawyer relationship still exists should be clarified by the lawyer, preferably inwrapping, so that the client will not mistakenly suppose the lawyer is looking after the client’s affairs when the lawyer has ceased to do so.
MRPC 1.3, comment 4 (2014).

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38
Q

Does a lawyer have an obligation to appeal a trial judgment?

A

Whether the lawyer is obligated to prosecute the appeal for the client depends on the scope of the representation the lawyer has agreed to provide to the client.
MRPC 1.3, comment 4 (2014).

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39
Q

What must sole-practitioners do to prevent neglect of their client’s matters in the event of their death or disability?

A

The duty of diligence may require that each sole practitioner prepare a plan, in conformity with applicable rules, that designates another competent lawyer to review client files, notify each client of the lawyer’s death or disability, and determine whether there is a need for immediate protective action.
MRPC 1.3, comment 5 (2014).

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40
Q

What five things must every lawyer due to fulfill their communication duties?

A

(1) Promptly inform the client of any decision or circumstance with respect to which the client’s informed consent is required;
(2) Reasonably consult with the client about the means by which the client’s objectives are to be accomplished;
(3) Keep the client reasonably informed about the status of the matter;
(4) Promptly comply with reasonable requests for information; and
(5) Consult with the client about any relevant limitations not he lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Model Rules of Professional Conduct or by law.
MRPC 1.4(a) (2014).

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41
Q

What is the standard of understandability for communications between a lawyer and her or his client?

A

A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
MRPC 1.4(b) (2014).

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42
Q

Why is reasonable communication between a lawyer and her or his client necessary?

A

Reasonable communication between the lawyer and the client is necessary for the client effectively to participate in the representation.
MRPC 1.4, comment 1 (2014).

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43
Q

When can a lawyer make a decision regarding a matter requiring a client’s consent?

A

A lawyer may make a decision regarding a matter requiring a client’s consent if prior discussions with the client have resolved what action the client wants the lawyer to take.
MRPC 1.4, comment 2 (2014).

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44
Q

Must a lawyer always receive a client’s informed consent before taking an action on her or his behalf?

A

No. In some circumstances—depending on both the importance of the action under consideration and the feasibility of consulting with the client—the exigency of the situation may require the lawyer to act without prior consent.
MRPC 1.4, comment 3 (2014).

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45
Q

If a lawyer acts without a client’s informed consent, what duty does the lawyer owe the client?

A

(1) The lawyer must act reasonably to inform the client of actions the lawyer has taken on the client’s behalf; and
(2) The lawyer must keep the client reasonably informed about he status of the matter, such as significant developments affecting the timing or the substance of the representation.
MRPC 1.4, comment 3 (2014).

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46
Q

What must a lawyer do if a client makes a reasonable request for information the lawyer cannot fulfill promptly?

A

The lawyer—or a member of her or his staff—must acknowledge receipt of the request and advice the client when a response may be expected. A lawyer should promptly respond to or acknowledge client communications.
MRPC 1.4, comment 4 (2014).

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47
Q

What factors are considered to determine if a lawyer’s communications with her or his client are adequate?

A

The guiding principal is that the lawyer should fulfill reasonable client expectations for information consistent with he duty to act in the client’s best interests, and the client’s overall requirements as to the character of representations.
MRPC 1.4, comment 5 (2014).

48
Q

Ordinarily, what is the standard for information must be provided?

A

The information to be provided is that appropriate for a client who is a comprehending and responsible adult.
MRPC 1.4, comment 6 (2014).

49
Q

What is the standard for information provided to corporate clients?

A

Corporate lawyers should address communications to the appropriate officials of the organizations.
MRPC 1.4, comment 6 (2014).

50
Q

When may a lawyer temporarily withhold information from a client?

A

A lawyer may be justified in delaying transmission of information when the client would be likely to react imprudently to an immediate communication.
MRPC 1.4, comment 7 (2014).

51
Q

When must a lawyer withhold information from a client?

A

Rules or court orders governing litigation may provide that certain information supplied to the lawyer may not be disclosed to the client. A lawyer must comply with these rules or court orders.
MRPC 1.4, comment 7 (2014).

52
Q

What standard applies to fees?

A

A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expense.
MRPC 1.5(a) (2014).

53
Q

What factors are considered to determine the reasonableness of a fee?

A

(1) The time and labor required;
(2) The novelty and difficulty of the questions involved;
(3) The skill requisite to perform the legal services properly;
(4) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(5) The fee customarily charged in the locality for similar legal services;
(6) The amount involved and the results obtained;
(7) The time limitations imposed by the client or by the circumstances;
(8) The nature and length of the professional relationship with the client;
(9) The experience, reputation, and ability of the lawyer or lawyers performing the services; and
(10) Whether the fee is fixed or contingent.
MRPC 1.5(a)(1)-(8) (2014).

54
Q

When shall the scope of representation and basis or rate of fee and expense be communicated?

A

The scope of representation and basis or rate of fee and expense shall be communicated to the client before or within a reasonable time after commencing the representation.
MRPC 1.5(b) (2014).

55
Q

How shall the scope of representation and basis or rate of fee and expense be communicated?

A

The scope of representation and basis or rate of fee and expense is preferably communicated in writing.
MRPC 1.5(b) (2014).

56
Q

When can the scope of representation and basis or rate of fee and expense be communicated after a reasonable time?

A

When the lawyer will charge a regularly represented client on the same basis or rate.
MRPC 1.5(b) (2014).

57
Q

How must contingent fee agreements be structured?

A

A contingent fee agreement shall:
(1) be in writing signed by the client;
(2) shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal;
(3) litigation and other expenses to be deducted from the recovery;
(4) whether litigation and other expenses are to be deducted before or after the contingent fee is calculated; and
(5) the agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party.
MRPC 1.5(c) (2014).

58
Q

What must a lawyer provide upon conclusion of a contingent fee matter?

A

The lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.
MRPC 1.5(c) (2014).

59
Q

Over which matters can a lawyer not enter into a contingent fee relationship?

A

(1) Any fee in a domestic relations matter where the payment is contingent upon
(a) securing of a divorce or
(b) upon the amount of alimony or support, or
(c) an associated property settlement; and
(2) contingent fee for representing a defendant in a criminal case.
MRPC 1.5(d) (2014).

60
Q

When can a division of a fee be made between lawyers who are not in the same firm?

A

Only if:
(1) The division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation;
(2) The client agrees to the arrangement, including the share each lawyer will receive;
(3) The agreement is confirmed in writing; and
(4) The total fee is reasonable.
MRPC 1.5(e) (2014).

61
Q

Generally, what is the minimum requirement when establishing a fee agreement with a new client?

A

Generally, it is desirable to furnish the client with at least a simple memorandum or copy of the lawyer’s customary fee arrangements that states:
(1) the general nature of the legal services to be provided,
(2) the basis, rate or total amount of the fee, and
(3) whether and to what extent the client will be responsible for any costs, expenses, or disbursements in the course of the representation.
MRPC 1.5, comment 2 (2014).

62
Q

What are the relevant factors used to determine the reasonableness of contingent fee relationships?

A

Contingent fees are subject to the reasonableness standards in MRPC 1.5(a). In determining whether a particular contingent fee is reasonable, or whether it is reasonable to charge any form of contingent fee, a lawyer must consider the Rule 1.5(a) factors that are relevant under the circumstance.
MRPC 1.5, comment 3 (2014).

63
Q

Can a lawyer require advance payment of a fee?

A

Yes. A lawyer may require advance payment of a fee, but is obliged to return any unearned portion.
MRPC 1.5, comment 4 (2014).

64
Q

Can a lawyer accept property in payment for service?

A

Yes. A lawyer may accept property in payment for services, such as an ownership interest in an enterprise, providing this does not involve acquisition of a proprietary interest in the cause of action or subject matter of the litigation.
MRPC 1.5, comment 4 (2014).

65
Q

What standard applies to lawyers to prevent predatory bargaining practices?

A

An agreement may not be made whose terms might induce the lawyer improperly to curtail services for the client or perform them in a way contrary to the client’s interest.
MRPC 1.5, comment 5 (2014).

66
Q

What domestic matter a lawyer and client agree to a contingent fee relationship?

A

MRPC 1.5(d) does not preclude a contract for a contingent fee for legal representation in connection with the recovery of post-judgment balances due under support, alimony, or other financial orders.
MRPC 1.5, comment 6 (2015).

67
Q

What is a division of fee under the Model Rules of Professional Conduct?

A

A division of fee is a single billing to a client covering the fee of two or more lawyers who are not in the same firm.
MRPC 1.5, comment 7 (2014).

68
Q

What does a division of fee facilitate?

A

A division of fee facilitates association of more than one lawyer in a matter in which neither alone could serve the client as well, and most often is used when the fee is contingent and the division between a referring lawyer and a trial specialist.
MRPC 1.5, comment 7 (2014).

69
Q

How does the division of fee requirements affect lawyers who performed the work while affiliated with the firm but are no longer affiliated with that firm?

A

MRPC 1.5(e) does not prohibit or regulate division of fees to be received in the future for work done when lawyers were previously associated in a law firm.
MRPC 1.5, comment 8 (2014).

70
Q

How does the Model Rules of Professional Conduct define “Confirmed in writing”?

A

Confirmed in writing, when used in reference to the informed consent of a person, denotes informed consent that is given in writing by the person or a writing that a lawyer promptly transmits to the person confirming an oral informed consent. If it is not feasible to obtain or transmit the writing at the time the person gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter.
MRPC 1.0(b) (2014).

71
Q

How does the Model Rules of Professional Conduct define “Firm”?

A

Firm or law firm denotes a lawyer or lawyers in a law partnership, professional corporation, sole proprietorship, or other association authorized to practice law; or lawyers employed in a legal service organization, or the legal department of a corporation or other organization.
MRPC 1.0(c) (2014).

72
Q

How does the Model Rules of Professional Conduct define “writing”?

A

Writing or written denotes a tangible or electronic record of a communication or representation—including handwriting, typewriting, printing, photostating, photography, audio, or video recording—and electronic communications. A signed writing includes an electronic sound, symbol, or process attached to or logically associated with a writing and executed or adopted by a person with the intent to sign the writing.
MRPC 1.0(n) (2014).

73
Q

When may a lawyer reveal information relating to the representation of a client?

A

A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted under the Model Rules.
MRPC 1.6(a) (2014).

74
Q

When can a lawyer reveal a client’s confidential information?

A

A lawyer may reveal information relating to the extent lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;
(3) to prevent, mitigate, or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;
(4) to secure legal advice about the lawyer’s compliance with the Model Rules of Professional Conduct;
(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client;
(6) to establish a defense to a criminal charge or civil action claim against the lawyer based upon conduct in which the client was involved,
(7) to respond to allegations in any proceeding concerning the lawyer’s representation of the client;
(8) to comply with other law or a court order; or
(9) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.
MRPC 1.6(b) (2014).

75
Q

What standard must lawyers meet to protect their client’s confidential information?

A

A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.
MRPC 1.6(c) (2014).

76
Q

What is the fundamental principle in the client-lawyer relationship?

A

In the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation.
MRPC 1.6, comment 2 (2014).

77
Q

What legal doctrines are related to client-lawyer confidentiality?

A

The principle of client-lawyer confidentiality is given effect by related bodies of law: the attorney-client privilege, the work product doctrine, and the rule of confidentiality established in professional ethics.
MRPC 1.6, comment 3 (2014).

78
Q

Can a lawyer reveal information that could reasonably lead to the discovery of information relating to the representation of the client by third persons?

A

No. MRPC 1.6(a) (2014) prohibits lawyers from disclosing information that could reasonably lead to the discovery of information relating to the respiration of a client.
MRPC 1.6, comment 4 (2014).

79
Q

What is the implied disclosure right for information relating to the representation of a client?

A

Except to the extent that the client’s instruction or special circumstances limit the authority, a lawyer is impliedly authorized to make disclosures about a client when appropriate in carrying out the representation.
MRPC 1.6, comment 5 (2014).

80
Q

May lawyers within the same firm disclose information relating to the representation of a client to each other?

A

Lawyers in a firm may, in the course of the firm’s practice, disclose to each other information relating to a client of the firm, unless the client has instructed that particular informant be confined to specified lawyers.
MRPC 1.6, comment 5 (2014).

81
Q

What precautions should a lawyer take to preserve confidentiality?

A

When transmitting a communication that include information relating to the representation of a client, the lawyer must take reasonable precautions to prevent eh information from coming into the hands of unintended recipients. This duty doe snot require that the lawyer use special security measures if the method of communication affords a reasonable expectation of privacy.
MRPC 1.6, comment 19 (2014).

82
Q

Generally, can a lawyer represent clients with a concurrent conflict of interest?

A

No. Except as provided in MRPC 1.7(b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest.
MRPC 1.7(a) (2014).

83
Q

How does the Model Rules of Professional Conduct define “Substantial”?

A

Substantial when used in reference to degree or extend devotes a material matter of clear and weighty importance.
MRPC 1.0(l) (2014).

84
Q

How does the Model Rules of Professional Conduct define “Reasonably believes”?

A

Reasonable belief or reasonably believes denotes the lawyer believes the matter in question and that the circumstances are such that the beliefs is reasonable.
MRPC 1.0(i) (2014).

85
Q

When does a concurrent conflict of interest exist?

A

A concurrent conflict of interest exists if:
(1) The representation of one client will be directly adverse to another client; or
(2) There is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person, or by a personal interest of the lawyer.
MRPC 1.7(a) (2014).

86
Q

Under what circumstance may a lawyer represent clients when a potential conflict of interest is possible?

A

Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:
(1) The lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(2) The representation is not prohibited by law;
(3) The representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation; and
(4) Each affected client gives informed consent, confirmed in writing.
MRPC 1.7(b) (2014).

87
Q

What are two essential elements int eh lawyer’s relationship to a client?

A

(1) Loyalty
(2) Independent Judgment
MRPC 1.7, comment 1 (2014).

88
Q

What do the rules require to resolve conflict of interest problems?

A

A lawyer must:
(1) Clearly identify the client or clients;
(2) Determine whether a conflict of interest exists;
(3) Decide whether the representation may be undertaken despite the existence of a conflict (i.e., whether the conflict is consentable);
(4) If it is consentable, consult with he clients affected and obtain their informed consent, confirmed in writing.
MRPC 1.7, comment 2 (2014).

89
Q

What must a lawyer do to accept a client if doing so will create a conflict of interest?

A

The lawyer must decline to represent the client, unless the lawyer obtains the informed consent of each client.
MRPC 1.7, comment 3 (2014).

90
Q

What must a lawyer do if a conflict of interest arises during the course of representing the client?

A

The lawyer ordinary must withdraw from the representation, unless the lawyer has obtained the informed consent of the client.
MRPC 1.7, comment 4 (2014).

91
Q

What factors determine if a lawyer can represent any client if two or more clients are involved?

A

Whether the lawyer may continue to represent any of the clients is determined both by the lawyer’s ability to comply with duties owed to the former client and by the lawyer’s ability to represent adequately the remaining client or clients, given the lawyer’s duties to former clients.
MRPC 1.7, comment 4 (2014).

92
Q

Can a lawyer represent two clients who are adversaries?

A

Generally no.
(1) Lawyers cannot represent two adversaries within the same matter.
(2) Further, without informed consent from both parties, a lawyer cannot represent two adversaries in completely unrelated matters.
(3) Still, it is not considered a conflict of interest if the only conflict is an economic interest in unrelated litigations. Therefore, a lawyer can represent both clients in the unrelated matters without informed consent.
MRPC 1.7, comment 6 (2014).

93
Q

When can a material limitation create a conflict of interest?

A

A conflict of interest exists if there is a significant risk that a lawyer’s ability to consider, recommend, or carry out an appropriate course of action for the client will e materially limited as a result of the lawyer’s other responsibilities or interests.
MRPC 1.7, comment 8 (2014).

94
Q

What are the critical question to determine if a material limitation creates a conflict of interest?

A

The critical questions are:
(1) The likelihood that a difference in interest will eventuate?
(2) If so, whether it will materially interfere with the lawyer’s independent professional judgment in considrering alternative or foreclose courses of action that reasonably should be pursued on behalf of the client?
MRPC 1.7, comment 8 (2014).

95
Q

May lawyers with a family connection represent adverse clients?

A

A lawyer related to another lawyer ordinarily may not represent a client in a matter where that lawyer is repressing another party, unless each client gives informed consent. This disqualification is not imputed to other members of either lawyer’s firm.
MRPC 1.7, comment 11 (2014).

96
Q

Can a lawyer have a sexual relationship with her or his client?

A

A lawyer is prohibited from engaging in sexual relationship with a client unless the sexual relationship predates the formation of the client-lawyer relationship.
MRPC 1.7, comment 12 (2014).

97
Q

When may a third-party or co-client pay for the client’s representation?

A

A lawyer may be pad from a source other than the client if the client is informed of that fact and consents and the arrangement does not compromise the lawyer’s duty of loyalty or independent judgment to the client.
MRPC 1.7, comment 13 (2014).

98
Q

What factors typically determine consentability?

A

Consentability is typically determined by considering whether the interests of the clients will be adequately protected if the clients are permitted to give their informed consent to representation burdened by a conflict of interest.
MRPC 1.7, comment 15 (2014).

99
Q

What factors are relevant to determine if a non litigation conflict is a significant, material limitation?

A

(1) Duration and intimacy of a lawyer’s relationship with the client or clients involved;
(2) The functions being performed by the lawyer;
(3) The likelihood that disagreements will arise; and
(4) The likely prejudice to the client from he conflict.
MRPC 1.7, comment 26 (2014).

100
Q

What factors are important to determine whether there is a conflict in common representation?

A

(1) Client-lawyer confidentiality;
(2) Each client has the right to be informed of anything bearing not he representation that might affect that client’s interests;
(3) Each client’s has an independent right to loyalty and diligent representation.
MRPC 1.7, comments 30-33 (2014).

101
Q

Does an organization’s or corporation’s lawyer necessarily represent the organization’s or corporation’s agents or affiliated organizations?

A

No. A lawyer who represents a corporation or other organization does not, by virtue of that representation, necessarily represent any constituent or affiliated organization, such as a parent or subsidiary.
MRPC 1.7, comment 34 (2014).

102
Q

How does the Model Rules of Professional Conduct define “Confirmed in writing”?

A

Confirmed in writing denotes informed consent that is given in writing by the person or a writing that a lawyer promptly transmits to the person confirming an oral informed consent. If it is not feasible to obtain or transmit the writing at the time the person gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter.
MRPC 1.0(b) (2014).

103
Q

How does the Model Rules of Professional Conduct define “Tribunal”?

A

Tribunal denotes a court, an arbitrator in a binding arbitration proceeding or a legislative body, administrative agency or body acting in an adjudicative capacity. A legislative body, administrative agency or other body acts in an adjective capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a binding legal judgment directly affecting a party’s interests in a particular matter.
MRPC 1.0(m) (2014).

104
Q

What three factors are necessary for a client to be able to enter into a business transaction with a client?

A

(1) The transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;
(2) The client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and
(3) The client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role int he transaction, including whether the lawyer is representing the client in the transaction.
MRPC 1.9(a) (2014).

105
Q

When can a lawyer use information relating to representation of a client to the disadvantage of a client.

A

Only as permitted or required by these rules.

MRPC 1.8(b) (2014).

106
Q

Can lawyers solicit gifts from their clients?

A

No. Lawyers may not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial give unless the lawyer or other recipient of the gift is related to the client.
MRPC 1.8(c) (2014).

107
Q

Can a lawyer negotiate for the media rights of a based in substantial part on information relating to the representation?

A

Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating tot he representation.
MRPC 1.8(d) (2014).

108
Q

When can a lawyer provide financial assistance to her or his client?

A

(1) A lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and
(2) A lawyer representing an indigent client may pay court costs and expense of litigation on behalf of the client.
MRPC 1.8(e) (2014).

109
Q

When can a lawyer accept composition for representing client from one other than the client?

A

When:
(1) The client gives informed consent;
(2) There is no interference with he lawyer’s independence of professional judgment or with he client-lawyer relationship; and
(3) Information relating to representation of a client is protected as required by Rule 1.6.
MRPC 1.8(f) (2014).

110
Q

What condition must a lawyer representing two clients in the same matter meet in order to settle a criminal proceeding?

A

In a criminal case, an aggregated agreement ass to guilty or nolo contoured please unless each client gives informed consent in writing by the client.
MRPC 1.8(g) (2014).

111
Q

What condition must a lawyer representing two clients in the same matter meet in order to settle a civil proceeding?

A

A lawyer who represent two or more clients shall not participate in making a aggregate settlement of the claims unless each client gives informed consent, in a writing signed by the client.
MRPC 1.8(g) (2014).

112
Q

What must a lawyer induce in a disclosure for aggregate settlement of claims or an aggregated agreement as to guilty or nolo contoured pleas?

A

The lawyer’s disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement.
MRPC 1.8(g) (2014).

113
Q

Can a lawyer and a client agree to limit the lawyer’s malpractice liability?

A

No. A lawyer shall not make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless the client is independently represented in making the agreement.
MRPC 1.8(h)(1) (2014).

114
Q

Can a lawyer settle a malpractice claim if the former client is unrepresented?

A

No. A lawyer shall not settle a claim or potential claim for legal malpractice with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith.
MRPC 1.8(h)(2) (2014).

115
Q

What proprietary interest in the cause of action or subject matter may a lawyer acquire?

A

The lawyer may:
(1) Acquire a lien authorized by law to secure the lawyer’s fee or expenses; and
(2) Contract with a client for a reasonable contingent fee in civil cases.
MRPC 1.8(i) (2014).

116
Q

When can a lawyer have sexual relationships with her or his client?

A

A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between hem when the client-lawyer relationship commenced.
MRPC 1.8(j) (2014).

aba professional conduct (2014) (8 decks)

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