Kaptest Quiz 2 Flashcards
1
Q
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?
A
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
2
Q
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?
A
No, because the loathing is a personal prejudice, so a judge cannot waive disqualification in that instance
3
Q
If a client has diminished capacity, what is the lawyer empowered to do?
A
Take protective action that is reasonably necessary to help the client. Ie: consult with family members, arrange for a guardian, etc.
4
Q
Lawyers are permitted to make public statements about judges, but those statements must not be what?
A
Ones that the lawyer knows are false, or made with reckless disregard to their truthfulness
5
Q
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?
A
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
6
Q
Is a judge allowed to accept reasonable compensation for a permitted extra judicial activity?
A
Yes, as long as it is commensurate with the task he performed
7
Q
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?
A
He must maintain a normal client lawyer relationship as far as reasonably possible since there is no reason here to take protective action
8
Q
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?
A
No, because that would be a violation of the lawyer’s duty of loyalty to the client
9
Q
Is a lawyer allowed to behave belligerently and theatrically during a deposition in order to protect his client and distract his adversaries?
A
No, that is conduct that is intended to disrupt a tribunal because it is only done to distract the adversary and disrupt the proceeding.
10
Q
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?
A
No, because that information is confidential since it relates to the representation of the wife
11
Q
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?
A
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
12
Q
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?
A
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
13
Q
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?
A
Yes
14
Q
Is a party allowed to contact the other party directly?
A
Yes
15
Q
Are judges allowed to commend or criticize jurors for their verdicts?
A
No
16
Q
Is it permissible for a lawyer to receive property as his fee?
A
Yes
17
Q
If a lawyer agrees to take property as his fee, what rules must a lawyer abide by?
A
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
18
Q
If a lawyer believes that his client’s case will definitely lose, what does the lawyer have a duty to do?
A
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
19
Q
If a prosecutor has gone to the media and made unduly prejudicial statements, what can the lawyer do for his client?
A
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
20
Q
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?
A
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
21
Q
Once a client dies, is the lawyer permitted to reveal information that he confidentially got from the client?
A
No
22
Q
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?
A
No, you only have to disclose adverse authority from courts whose decisions are controlling
23
Q
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?
A
No, because it is a pre-existing document
24
Q
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?
A
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
25
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
26
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
27
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
28
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
29
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
30
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
31
What are the situations that a non-compete agreement among lawyers is allowed?
Situations involving retirement or the sale of a practice
32
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
33
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
34
What is a reverse contingent fee?
When the contingent fee is based on what the lawyer saves the client
35
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
36
Is email considered to be real time electronic contact?
No, it is considered to be an asynchronous method of communication
37
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
38
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
39
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
40
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
41
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
42
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
43
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
44
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
45
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
46
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
47
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
48
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
49
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
50
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
51
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
52
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
53
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
54
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
55
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
56
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
57
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
58
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
59
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
60
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
61
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
62
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
63
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
64
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
65
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
66
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
67
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
68
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.
69
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
70
If there is a dispute between an attorney and his client about his fees, the attorney has to immediately do what?
– Promptly distribute the undisputed portion of the funds
– suggest to the client an appropriate way to resolve the dispute, such as arbitration
- hold the funds in abeyance until the dispute is resolved
71
Would it be proper for a foreperson on a jury to call her own attorney to get advice on the law if she doesn’t understand it?
No, the lawyer would be subject to discipline if she answered the foreperson’s questions while knowing that the foreperson was a member of an empaneled jury. The rule is that a lawyer may not communicate ex parte with a juror during a trial unless authorized by the court or law. This applies to all lawyers, not just the ones involved in the trial
72
Are judges permitted to endorse or publicly support political candidates?
No
73
Is a judge permitted to vote in political elections?
Yes
74
What are the things that judges are not allowed to do when it comes to political activities?
- Contribute to political campaigns
– endorse candidates
– make speeches on behalf of political organizations
75
If a lawyer represents a defendant charged with battery, that has been diagnosed with a severe developmental disability, and the prosecution offers a plea deal that the defendant wants to accept, but the lawyer reasonably believes his diagnosis is preventing him from acting in his own best interest, so the lawyer rejects the plea agreement, is that proper conduct?
Yes, because he reasonably believes it was necessary to protect the defendant’s interests. Usually an attorney has to follow a client’s wishes about plea agreements, but if he’s dealing with a client that has diminished capacity he can take reasonably necessary protective action when he feels the client is risking major physical, financial, or other harm because of that diminished capacity
76
If someone comes to see a lawyer about a possible representation, and in the course of the conversation discusses information about another unrelated legal matter, can the attorney reveal information about the unrelated matter?
No, because a lawyer is prohibited from revealing information that he learns in consultation with a prospective client so no information from that conversation can be revealed
77
Is it proper for a prosecutor to say in her closing arguments, “I’ve never prosecuted a more despicable or guilty human being.“?
No, because the prosecutor injected her own opinion, and lawyers are not allowed to state a personal opinion about the justness of a cause or the guilt or innocence of an accused person in court
78
When an attorney attempts to settle a malpractice claim with a client, what are the rules about that?
A lawyer cannot settle a real or potential malpractice claim with an unrepresented client without advising the client in writing to seek independent counsel and giving the client an opportunity to do that
79
If a lawyer gets confidential client information that suggests there will be substantial injury to another’s financial interests that is the direct result of the client using the lawyer’s services to commit a crime or fraud, is it up to the attorney whether or not he reveals that information, or must he reveal it?
He must reveal it
80
Does it count for an attorney to get informed consent confirmed in writing from a client if the attorney orally gets consent from a client, and then sends an email to confirm the oral conversation?
Yes that’s fine
81
If a judge holds shares in a mutual fund, and a case is assigned to his court where one of the parties to the case is a corporation that the judge knows his mutual fund owns some shares in, should the judge be disqualified?
Ordinarily not, because a well diversified mutual fund doesn’t usually suffer significant harm if one of the many companies whose stock it holds loses a case with a particular judge. Generally the judge would not be held to have an economic interest in one of the parties because his interest would be de minimus. But if the judge’s investment in the mutual fund could be substantially affected by the outcome of the case, then the judge would have more than a de minimus interest and would be disqualified
82
Is it proper for third parties to use the model rules as a basis for a cause of action against an attorney?
No. A violation of the model rules can be used as evidence of negligence in a malpractice suit, but the model rules do not create a cause of action. An intended third-party beneficiary can sue a lawyer for malpractice, but not for violating the model rules
83
If a judge has formed low opinions about the merits of the case or the lawyers or parties involved in a case due to watching them poorly perform in his court, just because the extra judicial source rule applies, does that mean that the judge absolutely does not have to recuse himself?
No, it is important that the judge, despite those feelings, believes that he is still able to render fair judgements
84
If a lawyer represents a plaintiff that was fired from her job because of her race, so she filed suit against her former employer who is a corporation, and after filing suit the lawyer gets a text message from an employee of the corporation that works in the mail room saying he has information to suggest that the attorney’s client did get fired because of her race. Would it be wrong for the lawyer to arrange to meet this employee to learn what he knows?
No, under the circumstances the lawyer is not prohibited from meeting with the employee. Generally lawyers are prohibited from contact with an employee of a represented corporation if the employee is one that supervised, directed, or regularly consulted with the corporation’s lawyer about the matter, or had authority to obligate the corporation regarding the matter, or whose act or omission in connection with the matter could have been imputed to the corporation for liability. Here, the mailroom employee does not fall into any of those categories, so the contact with the lawyer would be proper
85
If you make a knowingly false statement on your bar application, and then many years go by without anyone finding out, does that mean that you are no longer responsible for that?
No, you are still subject to discipline regardless of how much time passes since the incident
86
If an attorney is representing a corporation and through that representation she finds out about an impending law change, then she tells one of her other clients about the law change so that they can take advantage of it early, is that OK?
Yes, as long as the attorney did not use any information relating to her representation of the corporation to the corporation’s disadvantage.
87
Once a client has died, how can the attorney still get waiver of the attorney client privilege?
Through the deceased person’s personal representative
88
A prosecutor must not subpoena a lawyer in a grand jury or other criminal proceedings to present evidence about a past or present client unless what?
- the prosecutor reasonably believes that the information is not privileged
- the information is essential to the investigation or prosecution
- there is no other feasible alternative to get that information
89
If a judge agrees to be the featured speaker at a dinner to raise money for his son’s highschool baseball team that includes using his title in connection with the event, would that be permissible?
No, because the event does not concern the law, legal system, or the administration of justice. The reasoning is that they don’t want judges to use their title and prestige to raise money for projects that have nothing to do with the law or judicial system.
90
What are the circumstances that allow a judge to confer with other judges about a case?
So long as the judge makes reasonable efforts not to receive factual information that is not part of the record, and the judge does not abrogate his responsibility to decide the matter
91
If a judge is presiding over a case where the defendant is represented by a very large law firm that has offices in 20 cities around the country, and the judge’s nephew is a partner in that firm but works in a far away locale, is the judge disqualified from hearing this case?
Yes if the nephew’s interest in the law firm could be substantially affected by the outcome of the case. This applies to anyone that the judge has a third-degree of relationship with
92
What are the things that a lawyer is subject to discipline for doing in relation to what he says in an opening or closing argument?
- He cannot state a personal opinion about the justice of the cause
– he cannot talk about the credibility of the witness
– or the guilt or liability of a party
– and he cannot assert that he has personal knowledge of the facts and issues
93
Is a judge allowed to encourage lawyers in her court to do pro bono work by providing lists of available programs?
Yes as long as a judge doesn’t employ coercion or pressure for the lawyers to participate.
94
Who does the attorney-client privilege belong to?
Only the client. But the lawyer has the authority to claim attorney client privilege on behalf of the client as well as an ethical duty to do it unless the client has waived the privilege and authorized disclosure
95
If a client comes to an attorney and says that they are worried about the expense of hiring the attorney, but their case will likely be lucrative, can the attorney agree to represent the client for no money upfront and just promise that “they can work out a reasonable fee at some point in the future?”
No because the client must be informed of the fees before or within a reasonable time after representation begins.
96
If there’s a question that involves a lay witness asking to be paid for his testimony and/or an expert witnesses asking to be paid a percentage of the outcome of the case, what is the very tricky thing that has to be remembered?
The comments to the model rules say that both of those arrangements are improper in most common law jurisdictions, but the actual text of the rules just says that a lawyer can’t offer a witness an inducement that is prohibited by law. So it’s important to know what the local law is to know if that fee schedule would be permitted
97
Is it permissible for an attorney to withdraw from representation if the client has rendered representation unreasonably difficult?
Yes, that counts as being part of the catchall of “other good causes” reasons for permissive withdrawal
98
Is it necessary that a lawyer be convicted of a crime before he can be disciplined for a criminal act?
No, the lawyer doesn’t have to be convicted, it is the actual commission of the criminal act that constitutes the misconduct
99
If an attorney is with his friends in his home and he calls into question whether a candidate for the attorney general position has met the statutory requirements for that job and says that he heard a rumor that the candidate wasn’t licensed to practice law in that state for the amount of years that are mandated by statute, and when he was asked whether he had investigated it, he said he didn’t need to check the facts because it had to be true. In actual fact the candidate had been licensed to practice law for the required period. Would the attorney be subject to discipline?
Yes, because his statement was false and it was made with a reckless disregard for its truth. This rule applies to statements that are made regarding the qualifications or integrity about a judge, a judicial candidate, or a public legal officer like an attorney general or even a candidate for that kind of office
100
If a defendant was acquitted of murder, and afterward the prosecutor met with the media on the courthouse steps and when the media asked if he was happy with the verdict, the prosecutor said, “no he got away with murder.“ Would the attorney be subject to discipline for this?
No, because the trial was over at the time of the statement. So the statement would not have a substantial likelihood of materially prejudicing an adjudicative proceeding on the matter. Here the prosecutor could not appeal the verdict, so there was no chance that it would prejudice any proceeding
101
If a lawyer is representing a client that he reasonably believes has a severe mental disorder that affects his ability to make rational personal and business decisions, is it OK for the lawyer to consult with another attorney regarding what professional obligations the lawyer has to his client and in so doing reveal privileged information?
Yes, because the lawyer can disclose this information to obtain advice regarding his professional obligations when he’s trying to figure out what his own responsibility is under the model rules.
102
If a lawyer participates in a prepaid legal services plan and he manages the plan, is that permissible?
No
103
Could an attorney say in his closing arguments, “I believe my client did not violate any of the plaintiff’s rights. I know my client personally, and I believe he’s a good officer and would never violate a person’s constitutional rights.“?
No, because an attorney cannot make statements that are based on his personal beliefs regarding the culpability of a litigant.
The attorney is allowed to speak to the culpability of a litigant if that is based on evidence in the case, but he cannot speak in the form of personal opinion regarding culpability
104
If a lawyer is subpoenaed by a grand jury to tell them where the lawyer’s client is, and the lawyer decides probably attorney-client privilege doesn’t apply, so she reveals that information, would she be subject to discipline?
Yes, because she did not assert a claim that attorney-client privilege applied. In order for the exception to the duty of confidentiality to apply if the lawyer reasonably believes it is necessary to comply with a court order or other law, the lawyer has to first assert all non-frivolous claims that the information being sought is protected by the attorney-client privilege or another pic of the law.
105
If you meet with an attorney to discuss a legal issue, and at the end you tell the attorney as a sidenote unrelated to your case that you once gave a baby up for adoption and then you ask the attorney to keep that in confidence, is that protected by attorney-client privilege?
No, because the communication was not relayed for the purpose of legal advice. A confidential communication between a client and their attorney is privileged but that privilege only covers the communications and circumstances that are for the purpose of seeking legal advice or representation. The information about the baby would be protected under the duty of confidentiality, but it is not protected under attorney-client privilege because it was not relayed for the purpose of getting legal advice
106
If an attorney is representing a criminal defendant and he reasonably believes that the criminal defendant will lie on the stand, is he still permitted to put the criminal defendant understand?
Yes, because an attorney for criminal defendant cannot refuse to offer the defendants testimony when the attorney reasonably believes, but does not know, that the testimony will be false.
107
Is it permissible for a judge in an age discrimination suit to give jury instructions that explain that members of an older generation may be more sensitive to being passed over for promotions, or that the party’s political party may have influenced his sensitivity?
No, he cannot talk about either of those things because a judge must not by words or conduct manifest bias or prejudice. He’s allowed to make legitimate references to age and political affiliation when they are relevant to an issue in the preceding. Here the reference to age was a negative stereotype and thus not permitted, and the political affiliation was completely irrelevant so was not a legitimate exercise of the judge’s judicial authority.
108
If someone came to meet with an attorney and told them they were having an affair, and then the attorney said they couldn’t represent them, and the client’s response was “good I just came to you to make sure that you can’t represent my husband.“ Would the attorney then be free to reveal that information about the affair to the public?
Yes, because usually a lawyer owes a duty of confidentiality to a prospective client but if the person that contacted the lawyer was only doing it to prevent the lawyer from representing another party in the same matter/to disqualify the lawyer, they are not treated as a prospective client. This means a lawyer does not owe duty of confidentiality regarding information that the lawyer learned from the perspective client
109
If an attorney makes a statement about a judge that is false or says it with reckless disregard for its truth, does it matter who the attorney makes a statement to whether or not he’s disciplined for it?
No, it can be to other lawyers or to the media or to the public in general, and no matter what he’s disciplined for it
110
If an attorney is hired to draft a loan proposal for a client where the client is offering to put up farm equipment as collateral for the loan, and the client tells the lawyer that the farm equipment has no prior liens on it, so the attorney drafts the letter and doesn’t check to make sure that is true. Then the lender relies on the attorney’s letter and lends the farmer the money, but the truth is there were liens and a reasonable attorney would have checked for that, would the attorney be liable civilly to the lender if the farmer defaults?
Yes, because the attorney failed to comply with his duty of care with regard to the letter. Usually attorneys do not owe a duty to a non-client, but they can owe a duty of care to the non-client when the non-client has been invited to rely on the opinion or services of the lawyer, and the non-client does.
111
What is required in a representation agreement between an attorney and a client if there is a clause that requires arbitration for any malpractice disputes?
It is necessary that the this kind of agreement be permitted by the applicable jurisdiction, and that the client be fully informed about the scope and effect of the agreement.
112
If an attorney is selected to be a partisan member of an arbitration panel and and essentially represented a party as a partisan member, could he later take on representation of that party in another suit?
Yes, because he was a partisan member. Usually attorneys that substantially and personally participate as an arbitrator cannot represent anyone in connection with the matter that was arbitrated without written consent of all parties, but that restriction does not apply to an arbitrator that was selected as a partisan of a party in a multimember arbitration panel
113
If a client’s aunt sent money to the attorney for the client’s bills and told the attorney not to tell the client about it because it is a gift, is that OK?
That is not OK because the lawyer cannot accept payment for representation from someone other than the client unless the client gives informed consent. So the attorney would have to tell the client about the money and get the client’s consent to retain it as payment
114
If an attorney just won a $10,000 judgment for a client, and put the money in the client’s trust account, then the next day the bank tells the attorney that the client hasn’t made his mortgage payments for three months and demands that the attorney release money from the settlement to pay his mortgage or they will foreclose on the mortgage. If the attorney asked the client what he wants to do and the client says he’s OK with the bank foreclosing, and he wants the money in his own account, what should the attorney do?
The attorney should release the money to the client because the bank has not established a right to the specific proceeds of the client’s settlement. There is no state lien or other legal right that has been demonstrated to the attorney, so the attorney has no duty to the bank and would have to follow the client’s instructions
115
If an attorney suffers a heart attack and is in private practice and cannot practice for another six months, so she turns over all of her client files to a different attorney to review them and then she informs her clients about this, has she acted properly?
No, because she did not obtain the prior consent of each of her clients whose file was delivered to the other attorney first. If you practice in a law firm you are impliedly authorized to disclose client confidence as to other lawyers within the firm, but if you’re in private practice you’re not
116
If two lawyers (A and B) are not in a partnership, but B pays A to rent space to practice law in the office and shares photocopying fees and a secretary, is it OK to label the office as being A and B?
No, because lawyers that are not in a partnership are prohibited from stating or implying that they practice in a partnership when they do not
117
Is an attorney allowed to put the credentials from degrees he holds behind his name if those degrees are not law related?
Yes, so long as he has those degrees. So if he is also a medical doctor, he can have MD behind his name as well
118
Are judges allowed to accept gifts incident to a public testimonial?
Yes, but they have to report these
119
If a law firm decides to increase its fees, is it essential that they discuss the increase with each client?
Yes, any changes in the basis or rate of an agreed fee must be specifically communicated to the client
120
What should you watch out for when there’s a fact pattern involving reciprocal agreements?
Generally the rule is that a lawyer cannot give anything of value to a person for recommending his services. There is an exception that applies to lawyers that make agreements with other lawyers or non-lawyer professionals. So a restaurant owner is not considered to be a professional, and thus this exception would not apply to someone like a restaurant owner.
121
Is it acceptable for an attorney to make or agree to a restriction on the attorney’s right to practice as part of a settlement of a client controversy? Ie: if attorney represents a wife in the divorce of her husband, and the husband agrees to the divorce on the terms that the wife never be represented by that attorney again, is it acceptable for that to be the terms?
No an attorney cannot make or offer an agreement where it puts a restriction on the attorney’s right to practice as part of the settlement of a client controversy
122
Is it permissible for a lawyer to counsel a non-lawyer that is proceeding in a pro se legal matter?
Yes
123
When is it OK for a lawyer to take a proprietary interest in the cause of action of the litigation the lawyer is representing the client for?
When it is part of a reasonable contingent fee arrangement in a civil case
124
Is it permissible for a judge to make appointments when they aren’t always necessary, but the judge feels it will make sure there’s competent and impartial handling of every proceeding?
No, a judge cannot make appointments without there being a need for them. Unnecessary appointments are prohibited
125
Would it be proper for an attorney to hire a private investigator to interview potential jurors and their family members about their relevant past experiences related to the subject matter of the action?
No, the rules prohibit a lawyer from communicating ex parte with prospective jurors during the proceeding unless authorized by the law or the court. The attorney cannot use a private investigator to do with the attorney cannot directly do
126
If a bank has an attorney on its staff, can the bank offer for the clients of the bank to bring in their wills for the attorney to look at free of charge?
No, because then the attorney is assisting the bank in the unauthorized practice of law. A bank cannot provide legal services to its customers through a salaried lawyer because banks are not authorized to practice law.
127
Is an attorney allowed to advance costs such as medical examination expenses and the costs to obtain and present evidence to a client?
Yes because those are considered to be litigation costs
128
Is an attorney allowed to be the guarantor on a client’s promissory note for a bank to lend the client money so that the client can pay for litigation expenses?
Yes, because it is for litigation expenses, so that’s OK
129
Once an attorney that was a shareholder in a professional corporation has died, how long is it acceptable to allow the attorney’s widow to hold the deceased attorney’s shares in the firm and be paid dividends?
This is only permitted for a reasonable time
130
Is a client’s identity considered to be protected by the attorney-client privilege?
No, unless disclosing their identity would implicitly reveal the confidential communications, which would be the case if the attorney only represented child molesters, etc.
131
If a lawyer participates in a radio show where they take calls from listeners regarding legal questions, is that considered to be solicitation or an advertisement?
No, it is more like a seminar for the public where lawyers talk about matters of interest, so that is permitted
132
If an attorney has a radio show where callers call-in and he gives legal information, and a caller eventually contacts him to be represented by the attorney in his private practice, is that solicitation?
No
133
When is a judge allowed to get the written advice of a disinterested expert on the law of the proceeding before the judge?
Only if the judge gives advance notice to the parties of the person to be consulted and the subject matter of the advice to be solicited, and allows the parties a reasonable opportunity to object and to respond to the notice and to the advice received
134
If an attorney is currently representing a client arguing one point of law and the judge has not returned a verdict yet, is the attorney allowed to argue a different case in the same court arguing the opposite point of law?
No, not while the two matters are pending in the same court because that would be a concurrent conflict of interest since the representation of one client is directly adverse to the representation of another. Lawyers can take inconsistent legal positions in different courts at different times, but here the lawyer is arguing two opposite positions on pending cases before the same court. One of the clients will prevail, and the one that does not will have had his lawyer arguing against his position.
135
If an attorney attempts to contact a juror from a case that is now over, and the juror simply hangs up on the attorney, should that be considered to be the juror making it known that he doesn’t want to be contacted by the attorney?
Yes
136
Do the rules for out of court statements made to the media apply to lawyers that are not involved in the case, but are you wanting to give their opinion about it in the media?
No, the reason that those out of court statements are regulated is to make sure that the cases are decided in the court room not by the media, but those regulations only cover attorneys who are or who have been involved in the matter. Other lawyers do not have an incentive or inside information to manipulate a result by public extrajudicial comments
137
Are lawyers obligated to accept court appointments?
Yes, unless they have a good cause to avoid the appointment, which involves only a few things
138
If a lawyer works for a government agency and helps to draft legislation, then goes into private practice and is asked to represent a party that wants to use that legislation as a defense, is that OK?
Yes, because drafting legislation is not considered to be a “matter“, so these things are not considered to be the same matter, and thus the lawyer that used to work for the government is now permitted to represent this client in private practice
139
If a lawyer is concerned that his client is showing the early signs of senile dementia, is the lawyer allowed to discuss the client’s behaviour and conversations with a professional to decide whether protective action is an option?
Yes, the lawyer is impliedly authorized to disclose this information in order to carry out the representation. Lawyers are impliedly authorized to consult with an appropriate diagnostician to gather the information the lawyer needs to best serve the client
140
If a lawyer represents a judge in a proceeding that has not yet begun, and the lawyer represents a different client and the case is assigned to the judge’s court, but the judge refuses to allow the lawyer to reveal to the other client that the lawyer represents the judge, if the lawyer reasonably believes he can provide competent and diligent representation to the new client despite his representation of the judge, is it proper for the lawyer to represent the new client in the judge’s court?
No, because the lawyer cannot obtain the informed consent of the new client
141
What are the rules involved in allowing an attorney to practice law as in-house counsel in a state that he is not licensed to practice in?
This is permitted as long as the attorney does not undertake activities for which the forum requires pro hac vice admission (which means as long as he does not appear in court).
142
Is an attorney allowed to send a soliciting email to someone that he knows is in need of legal services?
Yes, because this would not be considered solicitation since email is not in-person or real-time communication. This is more like a letter than a phone call
143
If a lawyer makes a cash campaign contribution to a trial judge that is running for reelection, and then the judge appoints the attorney to a special appointment, does that subject the attorney to discipline?
No, unless the political contributions were made for the purpose of obtaining an appointment by the judge. Lawyers are not allowed to “pay to play“ so if the contributions were made to secure an appointment by the judge, the lawyer has committed misconduct. If the lawyer did not have that purpose, then the lawyer is not subject to discipline
144
If a client that is inexperienced in a legal matter tells the lawyer that he only wants the lawyer’s legal opinion, is it OK if the lawyer shares and explains practical considerations that might relate to the decision as well as the legal aspects?
Yes, simply because the client is inexperienced in the matter. Otherwise the attorney would have to abide by the client’s decision
145
If an attorney has been instructed by his client to go into settlement negotiations and to not pay more than $20 million, but in the negotiation the attorney tells the other attorney that the max he is allowed to agree to is $10 million, is the attorney subject to discipline?
No, because while attorneys are generally not allowed to make material misrepresentations of fact, this type of statement is not treated as a statement of fact because of the conventions of negotiation which make it so that statements are not ones that people rely on. The parties’ intentions as to the acceptability of a settlement offer or in that category. The lawyer can bluff about his settlement authority without having to worry about being disciplined
146
Is it proper for an attorney to openly take a position on a matter of public interest that is contrary to the stated position of his client?
Yes, so long as he does it in a way that does not prejudice his client
147
Is it proper for an attorney to arrange for a client to get a bank loan in order to pay the attorney his fees?
Yes
148
If a question asks about whether a law firm would be subject to discipline specifically for not supervising a specific associate, is that usually true?
No because the rules have no regulation that a LAW FIRM has to supervise a specific lawyer. They just require the managing lawyers and partners and supervisors to supervise the associate
149
If a lawyer is representing a buyer in a real estate transaction and the seller is unrepresented, and the lawyer prepares the documents for the transaction and takes them to the seller, and the seller says that he knows the lawyer doesn’t represent him and that the lawyer is not looking out for his interests because he represents the buyer, but that the seller doesn’t understand what the documents mean, and so he asked the lawyer just to explain what the documents mean. If the lawyer does this, is he subject to discipline?
No, because the seller understood the lawyer’s role in the matter. When that is the case, the lawyer can explain his view of the meaning of an agreement between his client and the unrepresented person, because there’s little danger of misunderstanding or overreaching
150
If a lawyer gets a settlement for a client, and tells the client to come to his office to pick it up, but the client is on bedrest and will be for a few more months, is the lawyer subject to discipline?
Yes, because he did not promptly deliver the funds to the client. Lawyers have a duty to deliver a client’s money to the client promptly when the client is entitled to receive it. The lawyer here should’ve worked out another way to handle the situation
151
If a judge is a member of a nonprofit organization devoted to penal reform, who is the judge allowed to solicit contributions from
for the organization?
Friends, family, and colleagues that are judges in distant jurisdictions or that the judge does not have supervisory power over, but he cannot solicit the public
152
If an attorney recommends a prior client for bar admission (previously repped the client in a drug charge), and the client told the attorney that she was on the moot court team in law school and the president of the law review, so the attorney wrote those things in the bar recommendation, but later those things turned out not to be true, what must the attorney do?
The attorney must contact the bar to disclose the misstatements and tell them about the previous drug charge
153
Are you allowed to solicit an old friend that is an attorney but has recently stopped practicing?
Yes because that person is an attorney and only recently stopped practicing
154
When can a lawyer delegate legal duty to non-lawyers?
This is OK as long as the lawyer supervises the non-lawyer and retains responsibility for the work
155
If a lawyer wants to withdraw from representation, but the statute of limitations will run on the client’s claim in one week, is it proper for the lawyer to withdraw without filing the suit?
No, because the client’s rights would not be adequately protected. Lawyers must not withdraw until they have taken reasonable steps to avoid foreseeable prejudice to the rights of the client. This is true even if the client unfairly discharged the lawyer. The lawyer must take all reasonable steps to mitigate the consequences to the client.
156
What are the rules for testimonial evidence and material evidence being protected under attorney-client privilege?
- Testimonial evidence: almost always protected by the attorney-client confidentiality privilege
– material evidence: not usually protected.
157
If an attorney’s client walks into his office and throws a gun on the attorney’s desk and says “this is the murder weapon“, would it be proper for the lawyer to put the gun in his safe?
No, because the gun was a fruit or instrumentality of the crime. Testimonial evidence is usually protected by attorney-client privilege, but material evidence is not. A lawyer cannot conceal material evidence in his possession. And cannot change the location of evidence that the prosecution cannot find it. By the attorney putting the gun in his safe, knowing it would incriminate the client, those actions were improper unless he later disclosed to the prosecution that he had the gun
158
What is the only time that the attorney is allowed to retain a client’s papers upon withdrawal?
If permitted by law, such as statutory authority that allows for an attorney‘s lien on those papers. So the lawyer would not be subject to discipline if retaining those files as security for the fee was permitted by another law
159
If an attorney is in-house counsel for a company, and an employee of the company comes to the attorney and asks for legal advice, what must the attorney do?
He must advise the constituent that:
– there’s a potential conflict of interest
– the attorney cannot represent the constituents
– the constituent may want to get independent counsel
– discussions between the attorney and the individual may not be privileged
160
If a constituent of a organization comes to the in-house counsel of the organization and asks for legal advice, and the attorney does not warn that he represents the organization not the individual, and allows the person to say damaging information, and then reports it to the organization, why would the attorney be subject to discipline?
Because as soon as the constituent approached the attorney for legal advice, the attorney should’ve warned that person that he could not represent him if there was a conflict of interest between that person and the company. The constituent’s comments gave the attorney lots of warning that he might say something that would create a conflict with the company, but the lawyer did not warn the constituent and by allowing him to continue to, he had a reasonable belief that the attorney was advising him. The attorney also did not attempt to warn the constituent about the conflict of interest, so the lawyer-client relationship began when the constituent reasonably believed it did, unless the attorney told him specifically otherwise. This means that when the attorney later divulged that confidential information, he violated attorney-client privilege
161
If a client has diminished capacity, is the lawyer obligated to take protective action for the client?
No, he may, but he doesn’t have to
162
If a prosecutor is overseeing an investigation into a criminal organization, and he knows that all of the members of the organization are represented by a lawyer, and without that lawyer’s knowledge or consent, the prosecutor directs an informant to have a conversation with a member of the organization about the criminal activity, and the informant elicits incriminating statements from the member of the organization and then testifies about those statements at trial, is the prosecutor subject to discipline?
No, because undercover law-enforcement contacts such as this are authorized by law. This question is controversial, but a definite majority view says that undercover conversations such as this are authorized by law and do not violate the “no contact rule“ even when they are done at the instruction of the lawyer. The prosecutor will not be subject to discipline here
163
Is it proper for a judge to obtain the oral advice of a local law professor on legal matters?
No, I cannot be oral. The advice must be written and it must be from a disinterested expert on the law, with the idea that the writing preserves a record of what the judge was told and gives the parties a fair opportunity to respond to it
164
If an attorney regularly represents a real estate broker and the attorney decides to sell his house, so he negotiates an agreement with the broker for a specific commission, and the broker is not represented by an attorney, is this OK?
Yes this is fine, because these brokerage services are services that the client generally markets to others. Lawyers usually have to be very careful with business deals between lawyers and their clients because of the risk that the lawyer will take advantage of the trust between the client and the lawyer. But those special provisions do not apply when the lawyer and the client have entered into a standard commercial transaction of the type that the client regularly enters into in his business. The lawyer has no special advantage over the client in these kinds of situations, so he will not be subject to professional discipline
165
What is hot potato doctrine?
If a lawyer drops one client, like a hot potato, in order to represent a more lucrative client, courts often grant motions to disqualify the lawyer for being so self-interested as to withdraw from representing a client because a better offer came along. This brings disrepute on the legal profession
166
If a judge serves on a baseball league, and finds out that one of his former players has been charged with selling drugs, so he finds out when the guy’s sentencing hearing will be, and then writes a letter to the judge of the hearing to vouch for the character of the boy and to suggest leniency in sentencing, would that subject the judge to discipline?
Yes, because the judge has used the prestige of his judicial office to advance the interests of another. The CJC prohibits judges from vouching for the character of a person in a legal proceeding because this abuses the prestige of the judicial office.
167
Is it proper for a lawyer to use an intermediary to communicate with a represented party without the consent of that party’s attorney?
No because a lawyer cannot use an agent to do things that would be a rule violation if done by the lawyer.
168
If an attorney decides that a plaintiff will answer more honestly if he uses a super gory picture from the accident of the plaintiff’s best friend being decapitated just to ask the plaintiff to identify what happened, is that a violation?
Yes, because lawyers have a duty not to use, without substantial purpose, methods that harass a third person. If the method had no substantial purpose other than to embarrass, delay, or burden a third person, it is not allowed. Here the lawyer knew the action was unnecessary and would be very upsetting
169
Who decides whether to ask for a jury trial in both a criminal and a civil case?
– Criminal: it is up to the client
| – civil: it is up to the attorney (settlement is pretty much the only thing the client gets to decide in a civil case).
170
If a client attempts to give the attorney possession of a physical piece of evidence, does the attorney have to take it?
No, so if a client laid the murder weapon on the desk, the attorney could put his hands behind his back and refuse to take it
171
What are the rules regarding an attorney taking possession of a physical piece of evidence?
Lawyers are allowed to take possession of evidence from the client’s crime, but only for a short time, for the purpose of testing the evidence in ways that will not alter or destroy it. Then the lawyer must turn the item over to law-enforcement.
172
What is the only time you can name a client in your advertising?
If they give consent
173
If an attorney receives a settlement check from the defendant, and endorses the check to the client and then mails it to them, is that appropriate?
No, that would be an improper processing of the check. The attorney should have processed the check by depositing it in a client trust account for the client, notifying the client of its receipt, and then mailing the client a check that was issued from that client trust account
