Legal Duties (Representing the Client)

Question 1

What is zealous representation?

Answer 1

• As a lawyer you must do everything leaglly & ethically necessary on behalf of your client
• UNLESS
  
  • client’s motive is to harrass or maliciously injury another
• Atty assume client motive is proper unless clear evidence to the contrary

Question 2

What are the major duties of an atty?

Answer 2

• loyalty
• diligence
• communicating with the client
• avoiding frivolous cliams
• candor to the court
• fairness to opposing pty & counsel
• maintaining impartiality & decorum of the tribunal

Question 3

When can you be excused from duty of zealously representing your client?

Answer 3

• Must have clear evidence of the client’s motive to harrass or maliciously injury another

Question 4

What duties do you owe to your client?

Answer 4

• duty of loyalty
  
  • cpnflict of interest rules
• duty of diligence
  
  • zealous representation & competency requirements
• duty to comunicate
  
  • keep client reasonable informed as to the nature unless there is some reason bot to do so
    
    • i.e. - diminished capacity
• duty to avoid frivolous claims

Question 5

When is a claim frivoulous?

Answer 5

• when you are unable to make a good faith argument in support of it
• It is NOT frivolous to require the prosecution to prove the case against your client
  
  • i.e. - in a criminal matter where your client reveals he is guilty & you enter not guilty

Question 6

What duties does the lawyer owe the courts?

Answer 6

• Duty of candor
  
  • cannot lie to the court
  • cannot make a false statement
  • can’t make a statement of facts if you are not sure whether it is true or not
  • you must reveal adverse legally authority from a controlling jurisdiction if the other side does not
  • no obligation to reveal adverse evidence EXCEPT when such revealation is necessary to avoid assisting criminal/fraudulent activity by client

Question 7

What must a lawyer do if they discover their client or a witness on behalf of client intends to or has given perjured testimony?

Answer 7

• A lawyer should engage in remedial measures:
  
  • DOING the following:
    
    1. Try to talk them out of it or in recanting
    2. Attempt to withdraw if that will solve the problem
    3. Tell the judge as a last resort
  • Do in this order

Question 8

What duty do you owe to opposing pty & counsel?

Answer 8

• A duty of fairness
  
  • can’t hide evidence
  • can’t alter evidence
  • can’t hide witnesses
  • can’t counsel witnessess not to talk to other side
  • not allowed to pay a witness a fee to testify just compensate for reasonable expenses
    
    • UNLESS witness is an expert
      
      • reasonable fee
      • fee cannot be contingent on the outcome

Question 9

What is the duty of impartiality & decorum of the tribual that the lawyer owes?

Answer 9

• Lawyer must take reasonable efforts to expediate litigation
• Can’t seek to influence a judge, juror or potential juror
• Cannot communicate ex parte w/a judge or juror
  
  • EXCEPT you can with a juror w/judge permission so long as it is not to”
    
    • harrass the juror
    • prejudice future jury service

Question 10

What is the atty allowed to say/not say for trial publicity?

Answer 10

• A lawyer can say anything so long as it does not have a substantial likelihood of materially prejudicing the proceeding

Question 11

HYPO

Client in a criminal case tells Attorney that he was with his wife on the night he allegedly robbed the local convenience store. Attorney investigates in preparation for trial and determines that wife was not in the city on that night. Attorney tells Client that he will not allow wife to take stand and lie. Client says fine, but he wants to testify. Attorney asks Client what he wants to say. Client winks and says, “The truth, of course.” What should Attorney do?

Answer 11

Atty can’t stop the client from testifying

Atty should allow client to testify

If he does lie, the atty will then have to take remedial measures

Question 12

What is covered by the duty of confidentiality?

Answer 12

• atty-client privilege
• anything else learned in the course of representing the client that the client does not or would not want revealed
• EXCEPTIONS (Where the atty may reveal the infor but not required to)
  
  1. If the client intends to commit a crime
     
     • reveal the info along with the info necessary to prevent commission of the crime
  2. May reveal confidential information necessary to prevent a client from committing a crime or fraud that is reasonably certain to result in financial lost
  3. Atty problems - to the extent to deal with a problem
  4. Reval info that is resasonably necessary to the representation of the client
  5. May reveal anything to which the client consents to reveal provided it is an informed consent

Question 13

What is the lawyer’s duty to the profession?

Answer 13

• avoiding the unauthorized practice of law
• reporting professional misconduct

Question 14

What consitutes an unauthorized practice of law for an atty?

Answer 14

• where an atty assists a lay person in the unauthorized practice of law
• PRACTICE OF LAW
  
  • anything requiring legal judgment as opposed to just legal knowledge
  • a lay person can pass legal knowledge just not legal judgments
• cannot split a legal fee with a nonlawyer
• cannot associate w/a nonlawyer in a business sense if any activities of the business will include the practice of law

Question 15

When must a lawyer report profession misconduct?

Answer 15

• If a lawyer knows that another lawyer or a judge has committed miscondut, the lawyer must tell the appropiate authority UNLESS the duty of confidentiality applies

Question 16

Recap:** **Question 1

Applicants were asked to analyze issues arising from a lawyer’s representation of both the driver and passenger of a car that was discovered to be stolen during a routine traffic stop. When the car was pulled over, the arresting officer observed that the steering column was broken and saw a screwdriver in the ignition. A loaded gun was recovered from the glove compartment. Both the passenger and the driver were charged with criminal possession of a weapon and criminal possession of stolen property. At their arraignment, the lawyer filed a notice of appearance on behalf of both the driver and the passenger and entered not guilty pleas for both of them.

What obligations, if any, do the lawyer and the court have with regard to the lawyer’s representation of both defendants?

Answer 16

No flat out ban on representing both but both may have varying interests. Lawyer should only represent both defendants if the lawyer (1) reasonably believes that the representation will not be adversely affect AND (2) each defendant gives informed consent in writing.

Question 17

Recap:** **Question 2

When may an attorney reveal a client confidence?

(a) When the client’s spouse requests the information.

(b) When the client has confessed that he has committed a fraud on a third party.

(c) When the attorney believes doing so would be in the client’s best interest.

(d) When the client intends to commit a crime and the information is necessary to prevent the crime.

Answer 17

(d) When the client intends to commit a crime and the information is necessary to prevent the crime.
(c) is close but it left out the word “reasonably”