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Lecture outline Flashcards

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1
Q

what are the 4 types of discipline for violating a mandatory rule?

A
  1. private reprimand/censure (bar yells at you)
  2. public reprimand/censure
  3. suspension (for finite period)
  4. disbarment (name off the door)
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2
Q

who is the highest authority in judicial exercise?

A

the US Supreme Court

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3
Q

Who determines the ethical rules for the state?

A

the state’s highest court

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4
Q

what do state requirements to be admitted to the bar need to be?

A

rationally related to the practice of law

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5
Q

what 2 things can states require in order to be admitted to the bar?

A
  1. graduation from an ABA law school

2. take an oath to uphold state or federal constiution

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6
Q

what 2 things can states not require in order to be admitted to the bar?

A
  1. US citizenship

2. residence in the state

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7
Q

how must an applicant act when applying to the bar?

A
  1. with truth and full disclosure

2. with a duty to cooperate

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8
Q

if a lawyer knows bad stuff about an applicant, when should he disclose this information to bar examiners?

A

only when asked

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9
Q

who regulates lawyer discipline?

A

the highest court in the state

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10
Q

what is the duty of a lawyer regarding when that lawyer knows of another lawyer’s misconduct?

A
  1. must report what you know unless protected by a confidence
  2. must be available to testify (no anonymous reporting)
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11
Q

when must a lawyer report another lawyer’s crime?

A

when it is relevant to some aspect of the practice of law

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12
Q

when is a lawyer who commits fraud in the conduct of business subject to discipline?

A

at any time even if the lawyer is not active in the practice of law

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13
Q

when does a lawyer not have to disclose another lawyer’s misconduct?

A
  1. when the other lawyer is the current lawyer’s client (confidential info trumps misconduct)
  2. info is learned through an approved lawyer assistance program
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14
Q

where can you not practice law?

A

where you are not admitted (don’t have a license)

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15
Q

what are the 4 instances where you can temporarily practice in a jurisdiction where you aren’t licensed

A
  1. associate w/ a local lawyer
  2. special permission (pro hac vice)
  3. mediation or arbitration out of home state practice
  4. anything reasonably related to lawyer’s home state practice

(all work together, not mutually exclusive)

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16
Q

can a lawyer practice in a jurisdiction where she is not licensed if her only client as multiple offices

A

yes

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17
Q

when a foreign lawyer works as in-house counsel, what must she do?

A

consult with a local lawyer before advising the client on local law

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18
Q

when is a supervisor responsible for the acts of a subordinate? (2 instances)

A
  1. when the supervisor knew of misconduct at a time when the consequences could have been avoided or mitigated & the supervisor fails to take reasonable remedial action OR
  2. if the violation raises a substantial question of the lawyer’s character and the supervisor either ordered or ratified the conduct (ex. partner told associate to bribe jurors)
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19
Q

what are the 2 instances where a subordinate is not responsible for his/her own acts

A
  1. subordinate was told to do it

2. it’s at least arguable that what the subordinate did the subordinate thought was okay to do

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20
Q

what 3 things require a law license to do?

A
  1. appearances in court and depositions
  2. drafting documents that impact substantial legal rights of the client
  3. negotiating settlements
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21
Q

what 3 things do not require a law license to do?

A
  1. interview witnesses (not deposing)
  2. filling in forms
  3. writing legal memos
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22
Q

regarding non-lawyer conduct, what must a supervisor do?

A

make reasonable efforts to ensure that non-lawyer conduct also conforms to the rules

*applies to non-lawyers both inside and outside the firm

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23
Q

what is the general rule about fee sharing with a non-lawyer?

A

don’t do it

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24
Q

what are the exceptions to the general rule that you can’t share fees with a non-lawyer?

A
  1. heirs of a deceased attorney
  2. employees in the form of salaries and as part of pensions or bonus plans
  3. lawyer may share court-awarded legal fees with a nonprofit organization that employed, retained, or recommended employment of the lawyer in the matter
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25
Q

who does a law firm include?

A

the law firm includes the lawyers or frequently consult, work jointly, and have access to each other’s files

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26
Q

generally, it is okay for a lawyer to have a dual profession?

A

yes

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27
Q

can a lawyer use their dual profession to solicit business?

A

no

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28
Q

does the attorney/client privilege happy in the dual profession?

A

no

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29
Q

when a lawyer has a dual profession, do the rules apply to just the legal profession?

A

no, they apply to both the non-legal and legal profession

30
Q

what is the general rule concerning non compete agreements in a law practice?

A

can’t do

31
Q

what are the exceptions to the general rule that you can’t have a non compete agreement

A
  1. retirement

2. settle a case between the lawyers as an implosion of a law firm

32
Q

what special duty does a solo practitioner have?

A

the duty to plan for death or disability by designating another competent lawyer to review files, notify clients, and take protective actions

33
Q

what is the general rule about rejecting cases?

A

lawyers have general freedom to reject cases

34
Q

when does a lawyer have to take a case?

A

when the court appoints the case

exception: appointment would create an unreasonable financial burden

35
Q

when SHOULD a lawyer take a case

A
  1. when the client is defenseless or oppressed

2. when doing so would contribute to the lawyer’s fair share of pro bono work

36
Q

when does a lawyer have a duty to reject appointed cases?

A
  1. L has physical or mental disability
  2. L has a COI
  3. The claim or defense is frivolous
  4. L has strong feelings or bias
  5. L is incompetent (and it can’t be overcome by 1 of the 3 exceptions)
37
Q

what 3 things overcome a lawyer’s incompetence?

A
  • drink ALE
    1. association w/ a competent person
    2. learn
    3. emergency
38
Q

generally, what decisions MUST a client make

A

all the important decisions

39
Q

what specific important decision MUST the client (not the lawyer) make?

A

Whether to:

  1. sue
  2. settle
  3. testify
  4. plea
  5. jury/bench
  6. appeal
40
Q

in terms of settlements, what must the lawyer advise the client of?

A
  1. all settlement offers unless the client has specifically and with informed consent authorized a specific rejection or acceptance range
41
Q

in the C/L relationship, what decisions can the lawyer make?

A

procedural and tactical decisions (i.e. decisions relating to law, tactics, and strategy)

42
Q

what is the one procedural/tactical decision that the client gets to make?

A

decisions related to case expenses

43
Q

what happens if a client has a diminished mental capacity?

A

the lawyer must get a guardian appointed (but still respect and involve the client on decisions that relate to the client’s well being)

44
Q

with what traits must a lawyer provide counsel and assistance?

A
  1. honesty

2. truthfulness

45
Q

In terms of lying, when is a lawyer subject to discipline?

A

when the lawyer makes a knowingly false statement of fact or law to the court or fails to correct a previously made false statement of material law or material fact

46
Q

when is court permission needed to terminate the C/L relationship?

A

when the matter is in litigation

47
Q

when the C/L relationship is terminated, what must the Lawyer do?

A

return the client’s property including the case file and unused portion of the retainer

48
Q

when MUST the lawyer withdraw?

A
  1. when the lawyer has a duty to reject
  2. client fraud and refusal to rectify
  3. client insists on violation of law or ethical rule
  4. client has begun an illegal course of action
49
Q

generally, for what reason MAY a lawyer withdraw

A
  1. for any reason when there is no material harm to client
  2. if the client consents OR
  3. one of conditions is met:
    - client persists in criminal or fraudulent conduct
    - client has used attorney’s services to commit past crime or fraud
    - client’s objective is repugnant or imprudent
    - client breaks promise to lawyer to pay fee
    - unreasonable financial hardship for attorney’s practice
    - client will not cooperate
50
Q

when an attorney is considering withdrawing, what must the attorney avoid

A

material adverse effect on the client

51
Q

can a lawyer limit their representation through contract?

A

yes (ex. like only for an arraignment)

52
Q

what rules apply to interpreting attorney/client contracts

A

contract construction rules

53
Q

when shall the fee arrangement be communicated the the client?

A

before or within a reasonable time after representation starts

exception: when the lawyer regularly represents the client

54
Q

what must a contingent fee be?

A
  1. reasonable

2. signed by the client

55
Q

when MUST a contingent fee be used?

A
  1. criminal casse

2. domestic relations case (past due support payments are OK

56
Q

when MUST a contingent fee be explained in writing an notify the client of any expenses?

A
  1. before you take the case

2. after case is concluded (settlement letter)

57
Q

what are the qualifiers to the rule that a lawyer can sell and buy a law practice?

A
  1. the entire practice or field is being sold or purchased (no individual client files)
  2. seller must exercise competence in identifying a qualified competent purchaser
  3. written notice is given to seller’s clients
  4. seller ceases to engage in that sold practice or field
58
Q

when a law practice is being put up for sale, what must the seller include in writing to the seller’s clients?

A
  1. the sale
  2. clients’ right to get their files returned
  3. clients’ right to get new counsel
  4. consent will be presumed if the client takes no action w/in 90 days of the receipt of the notice. If notice can’t be given for some reason, then a court order is required to authorize the transfer of the representation
59
Q

definition of confidential information

A

information obtained by the attorney relating to representation, regardless of source

60
Q

who holds the attorney/client privilege

A

the client

61
Q

what efforts MUST a lawyer make to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to a client’s representation?

A

reasonable efforts

62
Q

does the presence of a third person destroy the confidentiality in the confidential information protected by the A/C privilege?

A

no, if the 3P was present to help further the A/C relationship

63
Q

what is the work product doctrine?

A

material prepared by a lawyer for or in anticipation of litigation is immune from discovery

64
Q

when can the other side obtain another lawyer’s work product?

A

when the can show a substantial need for the material and an inability to gather the material without undue hardship

65
Q

T/F: a lawyer’s mental impression and opinions are always immune from discovery regardless of need, unless immunity is waived

A

true

66
Q

what 3 instances blow the A/C privilege?

A
  1. waived by client
  2. client seeks attorney’s service to engage in or assist in future crime/fraud
  3. communication is relevant to issue of breach of attorney-client relationship (ex. client sues you over your representation)
67
Q

how must the client waive the A/C privilege?

A

with informed consent after lawyer explains material risks and reasonable alternatives

68
Q

does a lawyer have the duty to rectify false testimony?

A

yes

69
Q

can a lawyer disclose confidential information to prevent reasonably certain death or substantial bodily harm

A

yes

70
Q

can a lawyer disclose confidential information to detect and resolve conflicts of interest from a change or employment or changes in a law firm’s composition or ownership

A

yes but the information MUST NO include anything that would compromise the A/C privilege or otherwise prejudice the client

71
Q

in terms of confidential information, past crimes are considered what

A

secret

72
Q

does the death of the client end the lawyer’s obligations in terms of confidential information

A

no

MPRE Study (6 decks)

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