Kaptest Quiz 2 Flashcards
If a lawyer represents a husband and a wife to create mirror wills, and he gets their informed consent to the possible conflict of interest, and the wife tells the attorney to draft her will differently than they had agreed, what must the attorney do?
He has a duty to share that information with the husband. He should’ve explained to both of them that information from one client will be shared with the other, and there’s no duty of confidentiality between the two of them
If a judge has an attorney come before him that he has an abiding loathing for, is it possible for the judge to ask both parties for a waiver to allow that attorney to appear before the judge?
No, because the loathing is a personal prejudice, so a judge cannot waive disqualification in that instance
If a client has diminished capacity, what is the lawyer empowered to do?
Take protective action that is reasonably necessary to help the client. Ie: consult with family members, arrange for a guardian, etc.
Lawyers are permitted to make public statements about judges, but those statements must not be what?
Ones that the lawyer knows are false, or made with reckless disregard to their truthfulness
If a lawyer finds out that a prosecutor is investigating him and hoping to take evidence to a grand jury, is the attorney permitted to reveal information about his clients in order to defend himself against the possibility of an indictment?
Yes, he can reveal confidential information if he reasonably believes it is necessary to defend himself from the allegations of criminal conduct. He does not have to wait for the indictment before he can reveal this information to defend himself
Is a judge allowed to accept reasonable compensation for a permitted extra judicial activity?
Yes, as long as it is commensurate with the task he performed
If a lawyer has a client with diminished capacity, but the lawyer doesn’t believe that the client is at risk of substantial harm, how must he treat that client?
He must maintain a normal client lawyer relationship as far as reasonably possible since there is no reason here to take protective action
If a lawyer volunteers for a legal services organization, that is working to change bylaws, and the bylaws would adversely affect one of the lawyer’s clients, is the lawyer permitted to vote for the bylaw?
No, because that would be a violation of the lawyer’s duty of loyalty to the client
Is a lawyer allowed to behave belligerently and theatrically during a deposition in order to protect his client and distract his adversaries?
No, that is conduct that is intended to disrupt a tribunal because it is only done to distract the adversary and disrupt the proceeding.
If you find out while representing a client, that her ex-husband, who is a lawyer, had a drug and alcohol problem, are you allowed to reveal that to the state bar?
No, because that information is confidential since it relates to the representation of the wife
If a lawyer’s client confessed to the lawyer that he committed a murder that someone else was already in prison for, and the attorney asked the client if he could reveal that information to allow the innocent person to go free, and the client said no, is there any situation where the attorney would still be allowed to reveal that information?
Yes, under the exception for certain death or substantial bodily harm if the lawyer is reasonably believing that the convicted man faces certain death or substantial bodily harm
If a lawyer represents a client to sell an office building, and the lawyer gets a text from the client telling him not to tell the buyer that there’s asbestos in the building, but the lawyer discloses this to the buyer anyway, is the lawyer subject to discipline?
Yes, because the lawyer is required to consult with the client when he knows the client expects assistance that isn’t permitted by the rules of professional conduct
If a prosecutor has any evidence that would tend to negate the guilt of the defendant, even if the evidence is not strong, and it would only slightly negate the guilt, must the prosecutor disclose it to the defense?
Yes
Is a party allowed to contact the other party directly?
Yes
Are judges allowed to commend or criticize jurors for their verdicts?
No
Is it permissible for a lawyer to receive property as his fee?
Yes
If a lawyer agrees to take property as his fee, what rules must a lawyer abide by?
The applicable rules of conduct regarding a business transaction with the client because this type of arrangement has the essential characteristics of a business transaction. So this requires that the terms of the agreement be fair and reasonable
If a lawyer believes that his client’s case will definitely lose, what does the lawyer have a duty to do?
He has a duty of candid advice, so he must tell the client that the case will almost certainly lose. This is true even if he has a good faith argument for the case
If a prosecutor has gone to the media and made unduly prejudicial statements, what can the lawyer do for his client?
He has a limited right to reply to those statements in order to mitigate the effects of the prosecutor’s statements, but he can’t make any statement that exceeds the necessity to reply
If a client confesses to his attorney that he actually committed a murder that somebody else got the death penalty for, is the attorney permitted to reveal that information without his client’s consent?
Yes but only because of the exception that the lawyer reasonably believes it’s necessary to prevent the death of that person that is on death row
Once a client dies, is the lawyer permitted to reveal information that he confidentially got from the client?
No
If the opposing side does not cite a case that is directly on point from a different jurisdiction (and is adverse to you), are you as the attorney required to do so?
No, you only have to disclose adverse authority from courts whose decisions are controlling
If a client hires you to defend him in a discrimination case, and he gives you an inter-office memo that he wrote previously, and asks you to keep it confidential, does the attorney-client privilege apply to that document?
No, because it is a pre-existing document
Is it permissible for a client to request his attorney not to share information about his case with anyone, including people who work in the attorney’s firm like secretaries and assistants?
Yes, attorneys have implied authority to reveal details of the case as needed to those that work with the attorney. This includes consulting with a colleague about strategy, asking a law clerk to research an issue, having an assistant photocopy a file. But a client can override that implied authority by specifically asking the lawyer not to share information with anyone that would usually be covered by the implied authority
Are a lawyer and a client allowed to enter into a fee agreement where the lawyer will provide services up to a certain amount of money, and once that money is gone, the two will revisit the situation?
Yes, as long as the lawyer adequately explains the situation to the client, including all risks of having to bargain in the middle of the proceeding. This is a dangerous route to go, but the model rules do not prohibit it
If a lawyer is hired to write a report for a third-party on behalf of the client, and the report ends up being bad, so it will adversely affect the interests of the client, can the attorney deliver the report to that third-party?
No, if the report is adverse to the client’s interests, the attorney can only deliver it to the third-party if he has the client’s informed consent
Is the lawyer allowed to prepare an instrument for a client that is a distant relative that gives the attorney money?
No, the only way that an exception would apply would be if the person was a close relative. Distant relatives do not count
Would an attorney be permitted to sit down with the opposing party and have drinks, if he happened to see the party at a golf course, and not talk about anything related to the case?
Yes
Is a judge permitted to write anonymous blog postings that criticize his colleagues and the court system?
No, because that reflects adversely on his temperament which would erode public confidence in the judiciary and create the appearance of impropriety
For purposes of disqualification, does the CJC treat spouses and domestic partners equally?
Yes, so even if the disqualification issue relates to a domestic partner of a relative of the judge, that still counts
What are the situations that a non-compete agreement among lawyers is allowed?
Situations involving retirement or the sale of a practice
Do the model rules address whether or not an attorney can keep paperwork of a client until a client pays his bill?
No, that is left completely up to the law of the state where the lawyer is practising whether or not that is permitted
Is it permissible for an attorney to have a client sign an agreement at the outset of the representation that any malpractice issue will go to arbitration?
Yes, that is OK because arbitration benefits both the lawyer and the client by being more efficient and less costly. The only requirement is that the client must be informed about the advantages and disadvantages of arbitration before signing
What is a reverse contingent fee?
When the contingent fee is based on what the lawyer saves the client
Can a reverse contingent fee be used in a divorce proceeding?
No, because that is still a contingent fee based on the amount of a property settlement for a domestic relations matter
Is email considered to be real time electronic contact?
No, it is considered to be an asynchronous method of communication
If an attorney intends to provide legal services on a pro bono basis, but then ends up later being compensated for his work, does that still count as pro bono?
Yes
If an attorney knows that his client wants to offer false testimony, and he first tried to talk him out of it, but that doesn’t work, then he attempts to withdraw, but that is not possible, what are his two choices after that?
He can either disclose the untruth to the tribunal, or allow the client to testify in a narrative way so that the attorney is not offering the testimony
What does it mean to allow a client to testify in a narrative way?
To say to them, “tell us all about what happened after that“ instead of asking pointed questions
What are the rules surrounding acquiring a lien on a judgement to secure your fees from a client?
This is permitted by the model rules only if it is authorized by the law of the relevant jurisdiction
What are the rules about lawyers charging for expenses, like things such as photocopying?
They can only charge reasonable amounts for these expenses. It’s OK for them to just pass along the actual cost to the client, and if he chooses to mark up expenses, those charges are only permissible if the amounts are reasonable and the client agrees to them in advance
If a lawyer represents codefendants in a case, and ends up having to withdraw because the joint representation failed, does he have to withdraw from representing both of them or just one of them?
Both
Can a lawyer enter a business transaction with a client to purchase a home that is completely independent from anything that the lawyer is representing the client for?
Yes, but a lawyer cannot enter a business transaction with a client unless the terms are fair and reasonable to the client, and fully disclosed and transmitted in writing and the client must be advised to seek independent counsel and given a reasonable opportunity to do that, then the client must give informed consent in writing
What are the rules about lawyers granting extensions for the opposing party?
Lawyers can refuse to grant an extension or other courtesy for any reason or no reason at all within the bounds of the law. They are encouraged to be civil and courteous, but no rule requires them to grant extensions on request
Is it permissible for an attorney to decline a court appointment because it is in an area of law that he doesn’t normally practice and he doesn’t feel that he is competent to represent that person?
Not if he could have become competent through preparation and study
Are attorneys allowed to accept substantial but unsolicited gifts from clients that are not their relatives?
Yes, as long as they do not draw up the transfer documents themselves
When an attorney sells his practice, what must he do?
Agree to not practice in the same area anymore, sell the entire practice to one lawyer or firm, and notify all of the clients about the sale IN WRITING, and not charge greater fees
When an attorney represents the plaintiff, and begins drawing up the complaint, if he fails to cite adverse authority that is applicable in the jurisdiction, is he subject to discipline?
Not at that stage, because a lawyer is not required to cite legal authority that is directly adverse to her client’s position in her initial filing motion. This duty doesn’t attach until opposing counsel has failed to cite the authority
If someone came to a lawyer thinking that they might get sued, and not realizing that someone else related to the case was sitting in the waiting room, so the person told the lawyer he was at fault for the incident, and the person in the waiting room overheard the conversation then told the pertinent person, who tried to call her to testify in court to what she overheard the first person saying to the lawyer. Can the prospective client of the lawyer object to the disclosure of her communications to the lawyer?
Yes, because the first person can assert attorney-client privilege to protect confidential information that was overheard by an eavesdropper even if that person was not a party to the action. By this method the prospective client can assert the attorney-client privilege to prevent the eavesdropper from disclosing this confidential communication
What is the rule regarding fees when there has been a sale of a law practice?
Fees that are charged to the clients shall not be increased by reason of the sale. Existing arrangements regarding fees and the scope of the work have to be honoured by the purchaser
If a judge doesn’t understand some of the difficult factual issues related to a case, is he permitted to research them to bring himself up to speed?
No, he cannot consider information that was not presented at trial or judicially noticed
If an attorney represents a person that has a guardian, who must the attorney listen to when it comes to major decisions for the representation?
The guardian. So they are the ones that decide whether or not to accept a settlement
What courts are included in the courts of a controlling jurisdiction that must be cited if adverse authority is present?
Any court including trial courts in that jurisdiction
Is it a conflict of interest for a lawyer acting as a mediator to negotiate for employment with a lawyer that is representing one of the parties to the mediation?
Yes
Is there ever a situation where an attorney can send his paralegal to test the opposing party’s conduct in an undercover situation?
Only if you have permission of the other attorney, or the law in that jurisdiction allows it. Some jurisdictions consider contacts by “testers“ to be a legitimate investigative technique and thus permissible
Is it permissible for a trial court judge who used to be the director of a nonprofit program to write up a direct mail fundraising appeal for the organization and sign it with her name but not her judicial affiliation?
No, because judges cannot use their names, influence, or official proceeds to promote private or public causes or to use their influence to solicit funds even for a non-partisan social cause
Who is the client of an in-house ethics council and thus the person that the lawyer owes legal duties to?
The corporation itself, so if one of the corporation’s employees does something unethical, the lawyer owes a duty to communicate this to the senior management of the firm so they can make a decision about how best to proceed
If a district attorney asked a grand jury to indict someone for bribery and racketeering and they didn’t have probable cause to believe that person actually committed the crimes, and they don’t intend to prosecute that person but they just want to use the indictment as leverage to get that person to testify against his friends, is that proper conduct?
No, because the district attorney didn’t have sufficient evidence to support an indictment and prosecutors in criminal cases must refrain from prosecuting a charge that they know is not supported by probable cause
If an attorney is representing a number of clients for being part of a drug cartel, and a grand jury is considering whether to indict the clients, and the lawyer gets a subpoena to produce documents to the grand jury that relate to the sources of funds for his fees and expenses, so he files a motion to squash the subpoena, that is overruled, so the lawyer produces the documents and his clients are indicted. Is he subject to discipline?
Yes, because he did not consult with his clients about the possibility of an appeal of the judge’s order. Lawyers can reveal confidential information in response to a court order, but the lawyer must consult with his client about the possibility of an appeal of these orders. The client may or may not authorize the appeal, but the lawyer’s duties require that he consult with the client about that possibility before turning over the information
If a father goes to a lawyer and asks the lawyer to represent his daughter and says that he will pay for the representation, but asks the lawyer to tell the daughter that the lawyer is doing it pro bono, is that OK?
No, because the daughter must give informed consent to her father paying for the representation. Anytime a third-party is going to pay a lawyer to represent a client, the client must give informed consent to the arrangement
If a lawyer is serving as a mediator to one party that is unrepresented and another party that is represented, and the lawyer employs a caucus procedure where he meets privately with each side to discuss possible settlement, and while meeting with the unrepresented party, that person asked him what he should do, is it proper for the attorney to answer the question truthfully with the best interest of the parties in mind?
No, because the unrepresented party may not understand that the lawyer is not representing him so the lawyer has a clear duty to explain the difference between his role as a mediator and the role of a lawyer. That party should not be looking to the mediator for partisan legal advice
If a prosecutor is not sure, but she think she might have probable cause to charge a defendant with something, is she permitted to do that?
Yes, the rules preclude her from prosecuting a charge that she KNOWS is not supported by probable cause, so if you think you have probable cause, that is not the same as KNOWING you don’t and thus it is allowed
If an attorney is going to withdraw from representation because the client refuses to pay him, what does the attorney have to do?
He must provide adequate warning that he will be withdrawing, so that the person can get other counsel
If during the course of representing a client, the client tells the lawyer about something completely unrelated to the representation, is that protected by attorney-client privilege?
No, attorney-client privilege is there to promote honest communication with the lawyer, so statements made that are not related to the legal services are not protected
If an attorney has his law clerk interview witnesses, are those notes protected by the attorney-work product even though it was the law clerk that made them?
Yes because the clerk is the lawyer’s agent, so he counts as a lawyer in this situation
If a lawyer is representing a client that is going up against a corporation, is it OK for the lawyer to seek out a former employee of the corporation and to ask him about advice that the company’s lawyers gave the company for similar claims in the past?
No, a lawyer is allowed to speak directly with a former employee, but he can’t use methods that violate the rights of third parties. Getting privileged information about the company’s lawyer’s advice in other cases invaded the company’s privilege, and the former employee did not have authority to waive that privilege, so that would subject this attorney to discipline
Is it proper for a judge to joke with an attorney before him saying, “you’re so young, I don’t believe you’re a lawyer!”
No, because judges may not show bias based on age in the performance of their judicial duties by either words or conduct
If a judge knows that a lawyer cooperated with an investigation against the judge, is he permitted to refuse to appoint that lawyer to take cases in his court?
No, a judge is not allowed to retaliate against anyone that he knows or suspects cooperated in an investigation against him.
If a client defends against a charge by claiming that he relied on the advice of his attorney, what does that do?
It essentially waives the attorney-client privilege