MD Professional Responsibility Flashcards
Bar admission
- can ask abt anything except 5th Am privilege. 2. duties when applying: a. can’t misstate and must correct b. can’t knowingly fail to respond to a request c. truthfulness in process. 3. a recommender subject to same duties except if info is covered by lawyer-client confidentiality.
Losing license 8.4: Model Rules
- violate MRs 2. attempt to violate MRs 3. knowingly induce or help another to violate MRs EXCEPT a. if supervisor told you to and you reasonably relied b. if you advise someone on ethical conduct and they violate anyway
Losing license 8.4: Crimes
for criminal acts or dishonest conduct even if not related to practice of law, including dishonesty, mistrust, interfering with legal system
Losing license 8.4: bad conduct
Conduct involving dishonesty, fraud, deceit, or misrepresentation
Where discipline occurs
- MD licensed atty in MD 2. MD practicing atty licensed elsewhere in MD for work done in MD 3. multi-state licensed atty subject to one set of rules - look at where practicing
OJO! unless only temp and reasonably related to practice, UNAUTHORIZED if not licensed
Law Firms: Duties of Partners
- train, maintain program 2. make reasonable efforts to ensure conduct conforms to rules 3. supervise -> if knew of conduct when consequences could be mitigated or ratified conduct, responsible for supervisee’s behavior
Law Firms: Sale of practice
Can sell IF: 1. has existed for 5 yrs (except death or apt to judge) 2. sold entirely 3. written notice to clients with a. proposed sale terms b. change in fee arrangement c. right to get your file d. rght to get all money owed. Consent imputed after 60 days.
Advertising
Define: communication about lawyer services not targeted to individual. OK UNLESS misleading: contains material misrep of fact or law, omits a fact necessary to make statement not misleading, creates unjustified expectation from client. must include name, addy, lawyer. CANNOT pay for referrals. NO “specialist,” only “Patent Attorney” or areas of specialization.
Solicitation
Define: personal contact (in person, live telephone or other electronic) w. specific client in specific matter. ONLY ok if prior family or professional relationship, or 1st A: if no pecuniary interest can approach people in need of legal services and refer - informing the public.
Prospective clients
CANNOT rep if: 1. would violate Rules 2. physical or mental condition of atty would impair rep 3. client has fired you except for ct order. CAN if: 1. no conflict 2. client wants you 3. competent in matter. DUTIES: confidentiality (if reasonable expect that willing to discuss representation), no conflict.
Duty of Competence: Factors
factors: 1. complexity/specialization of matter 2. lawyer’s general experience 3. training in field 4. prep/study time lawyer can devote 5. whether feasible to refer out or associate.
Duty of Competence: Define
the legal knowledge, skill, thoroughness and preparation to accomplish the representation
Fees: Factors for Clearly Excessive
- time/labor required, novelty/difficulty, and skill required 2. likelihood that won’t be able to take other clients 3. fee usually charged in that area 4. amount involved 5. time limitations imposed by client 6. nature/length of relationship w client 7. ability experience reputation of lawyer 8. fixed or contingency
Fees: Contingency
Must be in writing specifying method of calculation, whether expenses deducted, whether before or after distribution of funds, must make written accounting. NOT PERMITTED: criminal, domestic relations (except post-judgment).
Fees: Advancing costs
May advance court costs, repayment can be contingent on outcome. May absorb such costs for indigent client. MAY NOT provide living expenses etc.
Fees: Agreements
- define with specificity in writing before or at beginning of relationship. 2 renegotiation: may do so b/c changed circumstances/good cause but may not (threaten to) abandon. 3. may receive payment by property but can’t be interest in property involved in cause of action or litigation
OJO! funds don’t become atty’s until EARNED and must be returned when terminated
Fees: Division b/w lawyers not in same firm
OK if 1. proportional to services rendered 2. consent of client 3. total fee is reasonable
Client Property: Trusts
Must be ID’ed, segregate and secure ALL property. Money in MD, DC, or other contiguous state at an approved financial institution. Deposit promptly. Can be general account but KEEP RECORDS. Only comingling is enough to pay handling fees.
Client Property: Interest
MUST be interest bearing. Can deduct service charges and taxes, otherwise belongs to client.
Client Property: IOLTA
IF 1. funds are nominal or 2. held for short period of time, then can be put in an IOLTA account, interest paid to MD Legal Services Corp.
Client Property: Notice and Delivery
Promptly notify client of receipt of funds and pay to client or 3rd party what they are entitled to. KEEP RECORDS.
Client Property: Disputes
Disputed property must be kept separate. Protect agst all wrongful interference, even client.
Conflict of Interest: Business Transaction w. Client
- fair and reasonable 2. client advised in writing to seek indep advice and given time to do so 3. gives written consent to terms and to lawyers role
Conflict of Interest: Gifts
Lawyers can’t ask for gifts but can receive simple gifts
Conflict of Interest: Media rights
Can’t get or negotiate based on representation of a client prior to termination
Conflict of Interest: Malpractice
CANNOT limit liability for malpractice unless client is independently represented. In settlement negotiations, must advise former client in writing to get indep counsel and give reasonable opp to do so
Conflict of Interest: Sexual relationship
Creates conflict that can’t be waived by consent IF: 1. materially limits representation 2. unreasonable for lawyer to believe could give competent/diligent representation
Conflict of Interest: Present Clients
IF directly adverse OR materially limited by other UNLESS 1. lawyer reasonably believes 2. not prohibited by law 3. no assertion of claim by one agst other in same litigation 4. each gives informed consent in writing. OJO can’t get consent if duty of confidentiality prevents necessary disclosures for informed consent
Informed consent
agreement after lawyer has communicated adequate information and explained material risks and alternatives
Conflict of Interests: Present & Prospective Client
IF interests materially adverse UNLESS 1. doesn’t involve same or substantially related matter 2. lawyer won’t harm potential client EXCEPT 1. both consent in writing AND 2. conflicted lawyer screened and won’t receive share of compensation
Conflict of Interest: Present & Former Client
IF same or substantially related matter CANNOT unless former client gives informed consent in writing
Conflict of Interest: Present Client & Third Party
IF representation might be materially limited because of responsibilities to 3rd person UNLESS 1. lawyer reasonably believes 2. not prohibited by law 3. not assertion of claim one agst another 4. informed consent of client (almost the same as 2 present clients)
Disqualification
where 1. actual conflict or 2. potential conflict and client doesnt consent
Imputed disqualification
assumption: all lawyers in firm know all cases UNLESS 1 lawyer can be timely screened and gets no fee 2. where gov’t is former client, timely screened, written notice to gov’t agency and info not given to other lawyers
Mandatory withdrawal
IF would violate rules: 1. client insists upon lawyer participation in fraud (eg hid evidence) 2. conflict of interest 3. can’t provide competent representation
Permissive withdrawal: Reasons
- won’t adversely affect client interests 2. client persists in activity lawyer reasonably believes to be fraudulent 3. client wants to do sth lawyer finds repugnant 4. use lawyer services to perpetuate fraud in the past 5. fail to fulfill obligation (pay) 6. unreasonable financial burden 7. other good cause
Permissive withdrawal: Procedure
If has appeared, need court approval. IF because of demand for unprofessional conduct -> say “professional considerations,” court should accept. OJO! duty of candor to court. Must give notice, time to retain other counsel, give papers (giving work notes or incomplete work product not required)
Zealous representation
Everything legally and ethically permissible but NOT to harass another party -> must have colorable reason in law
Client decisions
Generally: objectives of representation. CRIM: accepting a plea, taking the stand, jury v. bench trial. CIVIL: accepting settlement.
Client with diminished capacity
- age 2. mental illness 3. health related -> treat to maximum as if not diminished. If required to take protective action, maintain confidentiality to greatest extent possible
Communications with client
- promptly inform of any decision requiring client consent 2. keep client reasonably up to speed on case 3. comply with requests for information 4. consult about any limitation when client wants to violate Rules
Ethical Requirements of Lawyer as Advocate
- avoid frivolous claims 2. candor to court 3. fairness to opposing counsel 4. to expedite litigation 5. to maintain impartiality of the tribunal
Lawyer as Advocate: Frivolous claims
Frivolous if: no good faith argument for extension/change in the law, but if not sure about the evidentiary basis for a defense or claim that is not frivolous. Must be able to make good faith argument. CRIM: put gov’t to its proof - subordinate to right to counsel.
Lawyer as Advocate: Duty of candor
CANNOT knowingly: 1. make false statement of material fact/law 2. fail to correct the same 3. fail to disclose material facts when necessary to avoid crime or fraud by client 4. offer evidence known to be false. MAY decline to offer evidence desired by client reasonably believed to be false EXCEPT D testimony
Lawyer as Advocate: D testimony
Generally: lawyer must disclose perjury wrt material fact. If lawyer can’t dissuade client in CRIM from perjury 1. if before trial, withdraw (professional consideration) 2. permit testimony through narrative (not participating as much) 3. excuse lawyer from duty to disclose perjury OR 4. must disclose ex parte after the fact
Lawyer as Advocate: Duty of Fairness to Opp
CANNOT 1. lie 2. file frivolous claims 3. unlawfully alter evidence 4. falsify evidence 5. counsel false testimony 6. disobey any other Rule obligation. Comments also say NO 1. frivolous discovery requests 2. failure to make diligent efforts to comply with discovery 3. failure to disclose in discovery
Lawyer as Advocate: Duty to Expedite
at trial CANNOT: 1. allude to matter that’s irrelevant or not supported by evidence 2. assert personal knowledge 3. give personal opinion as to guilt, credibility of witness, justice of cause, civil liability
Lawyer as Advocate: Duty to Impartiality of Tribunal
CANNOT 1. be disruptive 2. seek to influence judge/judicial official by illegal means 3. communicate ex parte except as permitted 4. influence jurors 5. trial publicity stuff
Attorney Client Privilege: Corporate Client
Extends to any individual who has been interviewed during course of internal investigation but NOT to ex-employees
Reporting misconduct
if you KNOW of violation that raises SUBSTANTIAL question as to trustworthiness, honesty, fitness, of lawyer or judge, MUST report EXCEPT in approved rehab program
Duty to safeguard confid. information
Must competently safeguard from inadvertent disclosure
Associations w. Nonlawyers
A lawyer may not: 1. form a partnership with a nonlawyer if any of the partnership’s activities consist of the practice of law;
- allow a person who recommends, engages, or pays the lawyer to render legal services to another person to direct or regulate his professional judgment in rendering legal services; or
- practice in a professional corporation or association authorized to practice law for a profit if:
a. a nonlawyer owns an interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration;
b. a nonlawyer is a corporate director or officer or occupies the position of similar responsibility in any form of association other than a corporation; or
c. a nonlawyer has the right to direct or control the professional judgment of a lawyer.
Lawyer not admitted in MD can’t:
- establish an office or other systematic and continuous presence in Maryland for the practice of law (unless otherwise authorized by the RPC or other law); or
- hold out to the public or otherwise represent that the lawyer is admitted in Maryland.
Communications with opposing party
CANNOT talk to other party if know represented unless court order or other lawyer’s permission. OJO Where corporation is represented, lawyer cannot communicate with constituent of corporation, where Constituent is employee is one who 1. regularly communicates with corporation’s lawyers on matter or 2. whose acts may be imputed to corporation
Parties can talk to each other. If other is unrepresented make clear not disinterested.
Common representation of parties in civil case
ok IF: 1. the lawyer reasonably believes he can competently and diligently represent each client;
- the representation is not prohibited by law;
- the common clients have not asserted claims against each other; and
- each client gives informed consent in a signed writing
