Maintaining Integrity of the Legal Profession Flashcards
Competence
L shall provide competent representation to a C.
LSTP –> Competence requires:
-LEGAL knowledge,
-SKILL
-THOROUGHNESS, and
-appropriate PREPARATION
Req’d proficiency = that of general practitioner (don’t necessarily need special training or years of experience)
Advisor
L shall exercise independent professional judgment and render candid advice.
In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors that may be relevant to the client’s situation.
Communication
L shall:
(1) PROMPTLY INFORM the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(e), is required by these Rules;
(2) REASONABLY CONSULT with the client about the means by which the client’s objectives are to be accomplished;
(3) keep the client reasonably informed about the STATUS of the matter;
(4) PROMPTLY COMPLY with reasonable requests for information; and
(5) consult with the client about any RELEVANT LIMITATION on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.
(6) EXPLAIN a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
When a client is a group or organization, lawyer should address communication to the appropriate officials of the organization
Confidentiality
L shall not reveal information acquired during the professional relationship with a C, unless:
C gives (1) informed consent, (2) the disclosure is impliedly authorized in order to carry out the representation OR the disclosure is permitted by (b).
(b) –> 7 exceptions giving L discretion to reveal
Note –> Doesn’t matter who learns it (can be paralegal); Form doesn’t matter (e.g., public newspaper); Doesn’t matter if everyone else is talking about it
Candor Towards Tribunal
(a) L shall not KNOWINGLY
-MAKE a false statement of fact or law to a tribunal or FAIL TO CORRECT a false statement of material fact or law previously made to the tribunal by the lawyer;
-FAIL TO DISCLOSE to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
-OFFER EVIDENCE that the lawyer knows to be false.
(b) L who represents C and KNOWS C is going to lie, L must take reasonably remedial measures (including disclosure to tribunal if necessary)
(c) time limit to rectify false statements/ev is when final judgment has been affirmed on appeal or time for review has passed
(d) In an ex parte proceeding, L shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.
Note –> L may refuse to offer evidence that L reasonably believes is false, except for testimony of a D in a criminal matter
Truthfulness in Statements to Others
In the course of representing a client a lawyer shall not KNOWINGLY
(a) make a false statement of material fact or law to a third person; or
(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6 (confidentiality).
Note → NC has no 4.1(b)
Reporting Professional Misconduct
(a) L who KNOWS that another L has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that L’s honesty, trustworthiness or fitness as a lawyer in other respects, SHALL inform the appropriate professional authority.
(b) L who KNOWS that a JUDGE has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office shall inform the appropriate authority.
(c) This Rule does not require disclosure of information otherwise protected by Rule 1.6 (confidentiality) or information gained by a lawyer or judge while participating in an approved lawyers assistance program.
Bar Admission and Disciplinary Matters
An APPLICANT for admission to the bar, or a LAWYER in connection with a bar admission application or in connection with a disciplinary matter, shall not KNOWINGLY:
(1) make a false statement of material fact; or
(2) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or
(3) fail to respond to a lawful demand for information from an admissions or disciplinary authority,
Except if info is otherwise protected by Rule 1.6 (confidentiality).
Note –> A-C privilege trumps this rule; 5th Amendment can be exercised
ONLY applies to reporting LAWYERS and JUDGES
Choice of law for L discipline
(1) conduct regarding litigation –> rules of jx in which tribunal sits (unless rules of tribunal say otherwise)
(2) any other conduct –> rules of jx where L’s conduct occurred or jx where “predominant effect” of conduct occurred
Safe Harbor –> L is NOT subject to discipline if L’s conduct conforms to rules of jx where L reasonably BELIEVES predominant effect of her conduct will occur.
Misconduct
VCHPIJH - Vaginal Cream Helps Please Irritated Juicy Hemorrhoids
V - violations of rules/attempted violations
C - crimes of dishonesty/lack of fitness
H - not being honest 24/7
P - prejudice administration of justice (“salt”)
I - improperly influence/abuse power
J - judges –> help them be bad
H - harass or discriminate in conduct related to the practice of law
Note –> Ls may engage in conduct to promote diversity and inclusion w/o violating this rule; L doesn’t violate by limiting scope or subject matter of practice or limiting practice to those of underserved populations
Responsibility of a Partner or Supervisory Lawyer
Must make “reasonable efforts” to train up other Ls
Responsible for other L’s conduct if: (1) L orders or knowingly ratifies conduct; or (2) L fails to avoid or mitigate by taking “reasonable remedial action”
Responsibilities of a Subordinate Lawyer
Only have an excuse if acting in accordance with supervisor’s reasonable resolution of an arguable question of professional duty
“I was just following orders” is not an excuse
Responsibilities Regarding Non-L Assistance
L shall make reasonable efforts to ensure:
(1) firm has in effect measures giving reasonable to ensure non-L’s conduct is compatible with the professional obligations of the lawyer;
(2) Ls check this conduct
(3) L is responsible if orders/ratifies conduct or knows of conduct and failed to mitigate/take reasonable remedial action
