Lecture 6-7

Question 1

CONSTITUTIONALISM

Answer 1

• The Constitution does not answer every question, nor does it affect and control
  every dispute.
• The Constitution leaves many matters to the States, or to individuals.

Question 2

NATURAL LAW

Answer 2

A higher and eternal law, e.g. (life, liberty & property rights – this
last “value” is different than many other political cultures around the world).

Question 3

POSITIVE LAW

Answer 3

laws necessary to regulate an ordered society; these should be
limited.

Question 4

THERE IS A FUNDAMENTAL SET OF CULTURAL RULES AND PRINCIPLES THAT AMERICA’S
FOUNDERS (AND MANY AMERICANS TODAY) GENERALLY (THOUGH NOT ALWAYS) BELIEVE
IN.

Answer 4

Gov’t should generally not interfere with an individual person’s PRIVATE DOMAINE
(What’s that?)
- unless the person’s actions seriously affect others’ rights (see New Hampshire’s
state motto, on their license plates):
- Example: The law will not stop adults from smoking, but the law does stop adults
from smoking in a way that affects me.
- In those cases where government does interfere in the private rights of people, it
should only be when a lawful, positive law affirmatively allows/directs it.

Question 5

Democracy is the idea

Answer 5

that the people get to meaningfully choose their elected officials who
run the government, via voting. Voting in the US is not reserved for members of any one
political party.

Question 6

In 2020 we celebrated the 100th anniversary of which Amendment?

Answer 6

19th Amendment-Womens right to vote

Question 7

Content-neutral

Answer 7

the question is whether or not these TIME, PLACE, and MANNER RULES (also known as
content-neutral laws) are legal.

Question 8

Content-neutral restrictions are

Answer 8

subject to intermediate scrutiny, meaning the
government may impose reasonable time, place and manner restrictions on protected speech,
so long as they are narrowly tailored to serve a significant governmental interest, and they
leave open ample alternative channels for communication of the idea.

Question 9

Political Speech & Corporate Political Speech.

ex:Citizens United

Answer 9

Political speech, by businesses, is afforded an extremely high level of protection.

You will not be jailed for commenting on ordinary political matters, or criticizing
the government

Question 10

What are the Business and Commercial Speech (Advertisements)
Rules

Answer 10

1. Advertisements for legal services are protected by the 1st Amendment. This applies however tasteless the ads happen to be.
2. The government can regulate commercial speech that is misleading, untrue or deceptive.
   Untruthful commercial speech is regulated by the Federal Trade Commission
3. IF concerns a lawful activity/product, and it is not misleading,
   the government might still be able to regulate it depending upon how the next set of
   questions is answered:
   s there a substantial government interest:

• if not, then the regulation is not
  allowed; but if there is a substantial government interest then:
• Does the regulation advance an important governmental interest? If not, then
  no regulation. But if the regulation advances the important governmental
  interest, then:
  -Is the regulation or law overly extensive? (Does it go too far?) If “Yes,” then
  its not lawful. But if “no” then it is OK.

Question 11

inquisitorial system is

Answer 11

A judge that looks for the truth NOT THE U.S

Question 12

How to become lawyer

Answer 12

College degree + law school* (3 years) + Pass Bar Exam*

Depends on state

Question 13

Fiduciary relationship

Answer 13

absolute duty of honestly, trust, good faith, and best efforts on behalf of the client (or one person or entity to another person or entity – the word “fiduciary” comes up a lot in this class).
Authorized by law to give legal advice; prepare legal documents & litigate (do lawsuits).

a lawyer must do whats in their clients best interest.

Question 14

Laywers sort through complicated facts to determine what is relevant then apply the appropritate legal rules

Question 15

Lawyers ared encouraged to provide their service

Answer 15

pro bono, free, to worthy causes and parties. The rules differ among states.

Question 16

PRO SE

Answer 16

Nobody is required use an attorney; you can represent yourself.

Things youre probably capable of doing:
- Simple Divporces
-Small claims court (Uw soccer players w/ leaky apartment.
-Adam Reid keeps getting hit by cars while riding his bike
-Simple wills

Question 17

Unauthorized practice of law

Answer 17

is a crime.

Question 18

Firms (and even solo practitioners) will be LLC or LLP, for purposes of liability, why?

Answer 18

To shield a lawyers personal assets incase they are sued

Question 19

Large “law firms” represent

Answer 19

Large companies, corporate clients

Question 20

Small to Medium Sized firms

Answer 20

Specialize: in few general subjects.

Question 21

Individual practitioners

Question 22

In House Counsel – representing corporations.

Answer 22

Every big company (Boeing Microsoft)

Question 23

Public Interest Firms

Answer 23

(firms with a mission, or cause). Ex environment

Question 24

Government Attorneys

Answer 24

This group includes prosecutors, assistant attorney generals, government attorneys that provide civil advice (and may include public defenders at the local and federal level – but criminal defense lawyers, even if paid by the government, have different obligations).

Question 25

Prosecutors (Criminal + Civil)
U.S. Attorneys

(gov)

Answer 25

Both owe higher duty than ordinary lawyers, because as “officers of court” and
government agents, their duty is to do JUSTICE, not simply win a case.

Question 26

There is a Constitutional right to free legal representation to those

Answer 26

Charged with crimes
(assuming they meet the income eligibility requirements) and face the prospect of jail/prison
time.

Question 27

All Criminal Defense Attorneys must

Answer 27

zealously represent the defendant even if she knows he’s guilty
(duty is not to “do justice” but to the client. Duty is to represent client
even if the client has confessed to the lawyer.)

Question 28

A breach of Rule of Professional Conduct:

Answer 28

may lead to an attorney being disciplined: (1) disbarment; (2)
suspension of practice; (3) probation; or (4) censure.

Question 29

Examples of Violations of the Rule of Professional Conduct

Answer 29

1. Charging too high of fees
2. Soliciting clients after mass disasters (Bophal), or using “cappers” and “runners” at
   local hospitals to find clients (often using nurses, etc.)
3. Representing clients with diverse interest (conflicts). Discussed below.
4. No communication directly or indirectly with the opposing party if represented by
   counsel; all communications via the attorney.
5. Having a sexual relationship with your client (how’d that happen….?)
   The Theresa Olson/Sebastian Burns + Atif Rafay saga.
6. Criminal conduct unrelated to the practice of law.
   Conduct that is outside the actual practice of law, but that involves a crime of “moral
   turpitude” (conduct contrary to justice, honesty, and good morals) can also lead to discipline
7. Not reporting another attorney’s unethical behavior when observed.
8. A lawyer cant knowingly make a false statement of fact or
   fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.

Question 30

The legal profession is

Answer 30

self-regulating (The Rules of Professional Conduct)

Question 31

THE ATTORNEY CLIENT PRIVILEGE (RULE 1.6) and CONFIDENTIALITY

Answer 31

These related rules were designed to instill absolute trust between the lawyer and client.

If u and lawyer are talking about a case ur lawyer cannot tell anyone else.

Does not apply to threat to do future harm.

Question 32

A prosecutor is not the “attorney” for the victim of a crime, so…

Answer 32

if the victim discloses
something to the prosecutor that might bear on the innocence of the accused, the prosecutor
must turn this information over to the attorney for the accused.

Question 33

Duty of Confidentiality

Answer 33

This duty is broader, protects any/all information that the lawyer learns from or ABOUT his client, during representation, even if not from the client.

Example: Mental health evals in anticipation for insanity… Polygraph results…

Both of these rules do not apply if the client and attorney get into a dispute with the lawyer
re fees, or the client later claims negligent representation.

Question 34

In criminal cases, defendants have the Constitutional right to

Answer 34

“effective” counsel.