Model Rules Flashcards
1
Q
Other lawyers in former government lawyer’s new firm may handle matters in which the former government lawyer participated in while in public service. What are the three restrictions that apply?
A
(1) that the government lawyer be effectively screened from any participation in the matter,
(2) that the government lawyer be apportioned no part of the fee; and
(3) written notice must be promptly given to the appropriate government agency to enable it to ascertain compliance.
2
Q
An attorney may not represent a client with interests adverse to those of a prospective client in the same or substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except if:
A
(1) both the affected client and the prospective client have given written informed consent; or
(2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client, the disqualified lawyer is timely screen from all participation in the matter and is apportioned no part of the fee, and written notice is promptly given to the prospective client.
3
Q
Attorney
A
Refers to the particular lawyer whose conduct is at issue.
4
Q
Lawyer
A
usually refers to a different lawyer whose conduct is not at issue; can be used interchangeably with litigator, judge, managing partner, etc.
5
Q
Subject to discipline
A
Asks whether the conduct in question would subject attorney to discipline under ABA Model Rules (or Model Code of Judicial Conduct if a judge)
6
Q
May/proper
A
Asks whether the conduct in question is professionally appropriate in that it (1) would not subject attorney or judge to discipline; (2) is not inconsistent with the preamble, comments, or text of the Model Rules, or Judicial Code, and; (3) is not inconsistent with generally accepted principles of lawyering.
7
Q
Subject to litigation sanction
A
Asks whether the conduct in question would subject attorney or attorney’s firm to sanction - fines, contempt, etc. by a relevant tribunal.
8
Q
Subject to disqualification
A
Asks whether the conduct described in the question would subject the attorney or attorney’s law firm to disqualification as counsel in a civil or criminal matter.
9
Q
Subject to civil liability
A
Asks whether the conduct in question would subject attorney or attorney’s firm to civil liability arising from malpractice suit, misrepresentation, or breach of fiduciary duty.
10
Q
Subject to criminal liability
A
Asks whether conduct in question would subject attorney to criminal liability arising from prosecution for insurance or tax fraud, destruction of evidence, or obstruction of justice.
11
Q
Attorney representing non-profit in merger negotiations with another non-profit entity. During review of client organization’s financial records, attorney found out that the organization had engaged in activities that could jeopardize its non-profit status. The attorney reasonably concluded that the organization’s failure to report these activities to other non-profit would be fraud. Attorney had not represented the non-profit while it engaged in its fraudulent conduct. After telling the Board to notify the other non-profit of the fraud, Attorney withdrew from representing the non-profit, without telling the other non-profit about the fraud, nor did he tell the state tax authorities. Is the attorney subject to discipline for his conduct?
A
No because the attorney withdrew from representation after informing board about the need to disclose the activities to the other non-profit entity.
12
Q
A lawyer has a meritorious claim if:
A
He has a informed himself about the facts of his client’s case and the applicable law, and determined that he can make good faith arguments in support of his client’s position. MR 3.1, comment 2
13
Q
Can an attorney seek postponement of a proceeding for personal reasons?
A
Yes; according to comment 1 of MR 3.2.
14
Q
Can a Judge commend or criticize jurors for their verdict?
A
No; according to Rule 2.8(c) of the Model Judicial Code.
15
Q
What is Rule 1.3 of the Model Judicial Code?
A
This rule prohibits a judge from abusing the prestige of the judicial office to advance the judge’s or others’ personal or economic interests. A judge may provide a reference or letter of recommendation for an individual based on the judge’s personal knowledge. A judge may use official letterhead for a letter of recommendation if (1) the letter indicates that the reference is personal and (2) there is no likelihood that using the letterhead would be reasonably be perceived as an attempt to use the judicial office to exert pressure.
16
Q
If attorney is admitted to practice on a pro hac vice basis in a neighboring state where she is not licensed, will she be disciplined for violating that state’s rules of ethics?
A
Yes; under MR 8.5(a) lawyer is subject to discipline in any jurisdiction in which the lawyer is admitted when they violate that jurisdiction’s ethics rules.
17
Q
A state prosecutor was assigned to a murder case in which defendant confessed. In the confession, defendant also confessed to committing many other crimes over many years, including a murder in another jurisdiction. In investigating the confession, the prosecutor discovered that another individual had been sentenced for the murder in the other jurisdiction. Prosecutor reasonably knew that the convicted person was innocent based on the defendant’s confession. Prosecutor did not tell anyone about this. Was his conduct proper?
A
No, because he failed to promptly disclose the information regarding the defendant’s confession to a court or the chief prosecutor in the other jurisdiction.
18
Q
Attorney represents a company that produces chemicals; some of the waste products are highly toxic and reasonably certain to cause substantial bodily harm if disposed improperly. President of the company tells attorney that a new employee mistakenly dumped the waste in the City’s water supply area. Attorney advised president that the company would be civilly and criminally liable. Attorney advised that he immediately report to City authorities. President declined to do so. Attorney told President it was immoral not to say anything, but he still did not disclose. Attorney told President that she was going to withdraw, and report to authorities. That is what she did. Is she subject to discipline?
A
No because the attorney reasonably believed that the company’s actions would reasonably result in substantial bodily harm.
19
Q
A state trial court judge was assigned an action that sought to invalidate a testamentary trust as violating the rule against perpetuities. Judge had no prior experience in estate matters, and did not find the briefs submitted by parties to be helpful. Without prior notice to parties, judge consulted another trial judge with extensive experience in estate planning. Judge was careful not to identify the parties or giving any factual information that wasn’t part of the record. The judge then personally decided the matter. She did not inform either party about the consultation, nor did she give them the opportunity to reject or respond. Was her conduct proper?
A
Yes because the judge personally decided the matter.
20
Q
Does an attorney who was diagnosed with Parkinson’s, who needs to work from home a couple days per month due to his condition, need to withdraw from representing his corporate client?
A
No; Rule 1.16(a)(2) requires lawyers to withdraw when his physical or mental condition materially impairs the lawyer’s ability to represent the client. This is not materially limiting, because he is able to work like normal, with the exception of working from home a couple days per month.
21
Q
Small business owner consulted lawyer for advice on a potential action against her landlord. Business owner had received letter saying she owed $1500 in back rent, and if she didn’t pay in full within 30 days, the landlord would sue. Business owner concerned because the rent would force her to shut down her business. Upon further investigation, lawyer discovered that he already represented the small business owner’s landlord in several other matters. One week after initial consultation, lawyer told small business owner he could not represent her. He then received a call from another client, who was a competitor of the small business owner. Client was worried that the small business owner was invading his territory, and wanted to consult with the lawyer about reporting the small business owner for zoning violations. May the lawyer disclose the small business owner’s rent dispute and potential insolvency to his client?
A
No; MR 1.18(a) defines prospective client as one who discusses with a lawyer the possibility of forming client-attorney relationship with respect to a matter. regardless of whether the relationship forms, lawyer shall not use or reveal information learned in the initial consultation with anyone.
22
Q
Lawyer represented a man who had been discharged from his job and was seeking unemployment benefits. After confidential hearing before admin law judge, client’s employment benefits application was denied because of evidence that employee sexually assaulted another employee. Lawyer billed the client, but client refused to pay. Lawyer sent letter demanding payment, and threatened a collection action. Client did not respond to the letter. Client then wrote scathing review of lawyer and review website. Lawyer responded on the review, “I’m sorry for my client, but I can’t invent facts. If you sexually assault someone, there’s not much I can do.” Did lawyer violate his duty of confidentiality?
A
Yes; Rule 1.16(a) sets forth broad prohibition that lawyer may not reveal any information that relates to the representation of the client without the client’s informed consent - this duty continues even after the client-lawyer relationship has ended (comment 20).
23
Q
Lawyer representing a client in divorce action discovered that her client had filed five joint income tax returns with his wife that fraudulently understated their income. Lawyer had not been involved in those tax returns. Client’s wife, who was also not involved in the preparation or filing of those returns, was unaware of the fraud. Lawyer analyzed the situation and came to number of conclusions about her duty with respect to this information. What is the correct conclusion?
A
The underlying fact about the fraud is not protected by either attorney-client privilege or the work-product doctrine. Attorney-client privilege applies to communications between privileged persons made in confidence for the purpose of obtaining or providing legal assistance. The work-product doctrine protects from discovery or disclosure documents or other tangible things, or their unwritten equivalents, prepared by lawyer in anticipation of litigation. The underlying fact that client committed fraud does not fall within either of those protections because it is a fact lawyer learned outside of the relationship with client. Attorney can only disclose client’s crime or fraud if client used lawyer’s service in furtherance of the crime or fraud (exceptions in Rule 1/6(b)).
24
Q
What are the seven exceptions in MR 1.6(b) that allow lawyer to disclose confidential information?
A
- To prevent reasonably certain death or substantial bodily harm
- To prevent client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services
- To prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services
- To secure legal advice about the lawyer’s compliance with the Rules
- To establish a claim or defense on behalf of the layer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involve , or to respond to allegations in any proceeding concerning lawyer’s representation of the client
- To comply with other law or court order
- To detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.
25
What does Rule 1.8 of the MR prohibit?
It prohibits lawyers from entering into business transaction with clients. The rule applies to even transactions not closely related to the lawyer's representation of the client and to a lawyer engaged in the sale of goods and services related to lawyer's practice. This rule also applies to lawyer purchasing property from an estate that lawyer represents. It prohibits accepting an interest in a client's business as payment for legal services. If lawyer does engage in business transaction with client, it must: (1) be on fair and reasonable terms disclosed to the client; (2) the client must be advised to, and given the opportunity to, seek outside counsel for the matter, and; (3) the lawyer must obtain written informed consent to the basic terms of the deal and lawyer's role in it.
26
Wife and husband, both practicing attorneys specializing in medical malpractice, were partners at different law firms. Doctor accused of medical malpractice wanted wife to represent him. Plaintiff was represented by another lawyer at the husband's firm. Under the Rules, may the wife represent the doctor?
Yes; Rule 1.10 states that a lawyer's personal interest is not imputed to the lawyer's firm. Although it is advisable that for the husband's firm to screen him from the matter.
27
Lawyer in private law firm was notified that she had been accepted into JAG. She will begin her four-year active-duty commitment in 8 weeks. Lawyer discontinued her work on her pending matters. Lawyer also sent certified mail letters to her clients advising them of her new position and offering to have other lawyers at the firm continue their representation. Under the Rules, did lawyer's conduct violate here duty of diligence?
Yes; she should not have discontinued her work on pending matters. Rule 1.3 states that unless lawyer's representation has been terminated, lawyer should pursue matters to their conclusion. To fail to do so would violate her duty of diligence she owes to her clients.
28
Criminal defense lawyer appointed to represent a client charged with bank robbery. Client insisted that he was innocent and visiting friends out of town on the day of the robbery. Client gave the lawyer names of three people who could supposedly corroborate his alibi. Lawyer contacted two of those persons, and they were not able to corroborate the client's alibi. Lawyer was unable to reach out to the third person, and left a message for the witness to contact her later. The person never got back to lawyer, and lawyer never made further attempts to contact. Under the Rules, which of the following facts, if true, would be an acceptable reason for lawyer not to make any further effort to contact the third potential witness?
Lawyer learned that the third potential witness was convicted recently of perjury. Comment 1 of Rule 1.3 states that lawyer has professional discretion to determine how best to diligently represent the client. If witness did give support for client's alibi, wouldn't look good in court that this witness was convicted of perjury.
29
Attorney represented defendant in civil rights claim. During investigation, attorney discovered several nude photos of one of plaintiff's witnesses on private flash drive produced during discovery. Without identifying herself as defendant's attorney, she gave pictures to local newspaper, which then published the images online. Is attorney subject to discipline under the Rules?
Yes because lawyer may not use means that have no substantial purpose other than to embarrass, delay, or burden a third person (Rule 4.4(a)).
30
Attorney represented plaintiff in auto accident. Before accident, defendant had been at a friend's birthday party. Attorney called the friend and identified himself as an 'officer of the court' and asked the friend whether the defendant was drinking at the party. Friend was not represented by counsel and had no potential liability for the accident. Friend truthfully told attorney that defendant did not drink at the party. Is attorney subject to discipline under the Rules?
Yes; Under MR 4.3, in dealings on behalf of client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. Here, attorney did not disclose that he was working on behalf of plaintiff.
31
Lawyer was defending his corporate client from fraud allegations arising out of the sale of several tracts of real estate. Buyer approached the corporate client about purchasing other lots adjacent to those that were the subject of the fraud case. Buyer was particularly concerned about the pending fraud action, which involved a dispute over the precise boundaries of the parcels sold. Although the parcels the buyer was interested in were not the subjects of the fraud action, the findings in the fraud action had the potential to impact their boundaries. The client thought that the lawyer would be well-suited to thoroughly evaluate the real estate opportunity and asked the lawyer to prepare an evaluation of the lots for the buyer to assuage the buyer's concerns. Do the Rules permit lawyer to prepare an evaluation for the lawyer?
No; the evaluation for the buyer is not compatible with the lawyer's responsibilities in defending the fraud case. In Rule 2.3, comment 3, states that when preparing an evaluation at a client's request for delivery to third party, lawyer must be satisfied as a matter of professional judgment that making the evaluation is compatible with other functions undertaken on client's behalf.
32
A startup business retained lawyer for general representation. Business hired a consultant to design a logo that it planned to trademark. To save on legal fees, company planned to involve lawyer in logo selection process only after it had narrowed the list to three logos. By way of misdirected email, lawyer say that the preferred logo closely resembled that of a competitor. The competitor had trademarked its logo, and was using it in commerce. Lawyer thus thought it unlikely the startup could use that logo without receiving cease and desist letter from competitor. Do the Rules permit lawyer to advise startup on his concerns?
Yes; Comment 5 to Rule 2.1 states that lawyer is not usually required to give client advice until client asks for it. However, when lawyer knows that a client has proposed a course of action that is likely to result in substantial adverse consequences, Rule 1.4 may require the lawyer to offer advice if client's course of action is related to the representation. The lawyer is permitted, and arguably required, to advise his client against using this logo.
33
Divorced lawyer fell behind in child support payments and his ex-wife obtained judgment against him for past-due accounts. To protect some of his personal funds from attachment, lawyer deposited the funds into his client trust account. Did lawyer's deposit violate his ethical duties under the Rules?
Yes; lawyer can only deposit personal funds into client trust account to pay bank-services charges on that account (Rule 1.15(b)).
34
Lawyer agreed to represent client in complex litigation. Client agreed to pay lawyer a specified amount of hourly fees and expenses monthly in advance. However, the lawyer was concerned that the costs of discovery would exceed the advance payments. To avoid an overdraft on the client trust account and associated bank fees, lawyer deposited a portion of contingency fee he had earned in another case into client's trust account. Is the lawyer subject to discipline under the Rules?
Yes; the only purpose that lawyer may commingle his own funds with a client's in a trust account is to pay bank service charges for the account, and then only in an amount necessary to pay the charges. The Rules do not permit lawyer to commingle funds for the purpose of establishing a cushion of funds to prevent overdrafts.
35
Attorney who had done legal work for local bank invited bank president to lunch and told her that attorney's uncle was dying of cancer. Attorney knew that his uncle was personal friends with bank president, and that his uncle had all his accounts at the bank. Attorney asked if the bank was named executor of his uncle's estate, that the attorney be hired to do any necessary legal work. Attorney really needed the work because he was behind on mortgage payments. Is the attorney subject to discipline under Rules?
No because under Rule 7.3(a), lawyer may solicit employment in person for pecuniary gain if the person solicited is a lawyer, family member, close personal friend, or has a prior professional relationship with the lawyer. Because the local bank was a former client, this in person solicitation is allowed.
36
Attorney made radio commercial that said "Do you need legal help? I'm Robert Jones and I'm a licensed attorney at law. My initial conference with you is free. Make sure that you are doing everything you can to protect you and your family. Our offices are at at One Main Street and our phone number is 555-555-5555. Call now!" Is the attorney subject to discipline under the Rules?
No; none of the information poses a substantial risk that a reasonable listener would draw an unfounded conclusion about the lawyer's services, therefore it is not misleading. There is also no false statement of fact or law, and the advertisement gives the firm's contact information.
37
Attorney represented criminal defendant in felony murder case. One evening, judge presiding over the case called attorney and said he'd like to speak with defendant alone because judge thought there was something odd in the case. Attorney got defendant and brought him to the judge's chambers, where judge and defendant spoke alone for several hours. Ultimately a jury found the defendant not guilty. Is attorney subject to discipline under the Rules?
Yes because he brought the defendant to the judge's chambers. The judge violated the Model Judicial Code by engaging in ex party communications, and none of the exceptions to the Judicial Rule apply here. Lawyer is guilty of misconduct if he knowingly assists a judge in conduct that is a violation of the Rules or other law. (Rule 8.4(f)).
38
Attorney appointed to represent neo-Nazi who allegedly murdered 4 people. Attorney found potential client repugnant and told court he would not represent him. Additionally, several groups in community protested at the courthouse, and threatened to boycott any lawyer who represented the client. When attorney refused appointment, court pointed out that representing client would not be a financial burden on the attorney, nor would it result in violation of the Rules. Must the attorney accept the appointment?
No; Lawyer may refuse to accept an appointment to represent a client if the lawyer finds the client repugnant.
39
Model Rule 1.9 - What are the duties that a lawyer owes to former clients?
(1) lawyer shall not represent another person in the same or substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing
(2) lawyer shall not knowingly represent a person in the same or substantially related matter in which a firm with which lawyer formerly was associated had previously represented a client and (a) whose interests are materially adverse to that person and; (b) about home the lawyer has acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent in writing.
(3) lawyer who personally formerly represented client or whose present or former firm used to represent client in a matter shall not: (a) use info relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; OR, (b) reveal info relating to representation except as Rules would permit or require with respect to client.
40
What are lawyer's duties when acting as a third-party neutral?
Rule 2.4 - A lawyer serving as third-party neutral shall inform unrepresented parties that the lawyer is not representing them. When the lawyer knows or reasonably should know that a party does not understand the lawyer's role in the matter, the lawyer shall explain the difference between the lawyer's role as third-party neutral and one who represents a client.
41
Can a lawyer who formerly was a mediator for a divorce mediation thereafter represent the ex-wife in a suit to get more child support?
No; According to MR 1.12, the former mediator, judge, adjudicative officer or law clerk may not represent the
42
When must a lawyer report professional misconduct by another lawyer or judge?
(1) When lawyer knows that another lawyer has committed a violation of the Rules that raises substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer shall inform the appropriate professional authority.
(2) When lawyer knows that a judge has committed a violation of applicable rules of judicial conduct, that raises 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 or information gained by lawyer or judge when participating in an approved lawyer assistance program.
43
What must a lawyer do with property that he holds in possession on behalf of clients or third parties in connection with a representation?
(1) Lawyer must hold such property separate from his own property.
(2) Funds must be held in a separate account maintained in the state where lawyer's office is situated, or elsewhere with consent of client or third person.
(3) Lawyer must keep complete records of the account funds and other property kept by the lawyer and must preserve the records for a period of five years after the termination of representation.
(3) Lawyer may deposit lawyer's own funds into the client trust account for the sole purpose of paying bank service charges on that account, but only in the amount necessary for that purpose.
(4) A lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses are incurred.
(5) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as otherwise permitted, lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request but client or third person, shall promptly render full accounting regarding such property .
(6) When in the course of representation a lawyer is in possession of property in which two or more persons (one of whom may be the lawyer) claim interests, property shall be kept separate until dispute is resolved. Lawyer shall promptly distribute all portions of the property as to which the interests are not in dispute.
(6) If creditor comes after the trust account, and has a non-frivolous claim against client or third party, lawyer must not release the funds to the client or third party until that credit dispute is settled.
(7) If dispute between lawyer and client about the amount in the fund allocated for lawyer's fees, the lawyer shall not release the disputed portion of the account until the dispute is settled (preferably through ADR).
44
What is the standard for determining whether a lawyer has made reasonable efforts to expedite litigation consistent with the interests of the client?
Whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay.
45
What are the limitations to lawyers acting as witnesses?
Rule 3.7 - A lawyer shall not act as advocate at trial in which lawyer is likely to be a necessary witness unless: (a) testimony relates to an uncontested issue, (b) testimony relates to the nature and value of legal services rendered in the case, or; (c) disqualification of the lawyer would work substantial hardship on the client. Lawyer can act as an advocate at trial in which another lawyer from the lawyer's firm is likely to be called as witness so long as it does not violate 1.7 or 1.9.
(2) Lawyer has burden of showing there is no conflict of interest in the testimony as a witness.
(3) If lawyer determines a conflict exists, then lawyer may get written informed consent from client, if applicable.
46
When must a lawyer decline to represent a client, or if the representation has begun, withdraw?
Rule 1.16 - Lawyer must decline to represent, or withdraw from representing, if: (a) the representation will result in violation of the Rules or other law; (b) lawyer's physical or mental condition materially impairs his ability to represent the client, or; (c) the lawyer is discharged.
47
A lawyer may withdraw from representation if:
(1) withdrawal can be accomplished without material adverse effect on the interests of the client
(2) client persists in a course of action involving lawyer's services that lawyer reasonably believes is criminal or fraudulent
(3) client has used lawyer's services to perpetuate a crime or fraud
(4) client insists upon taking action that the lawyer considers repugnant
(5) client fails substantially to fulfill an obligation to lawyer and has been given reasonable warning that the lawyer will withdraw if not fulfilled
(6) the representation will result in an unreasonable financial burden on lawyer
(7) other good cause for withdrawal exists.
Rule 1.16
48
What must lawyer do after withdrawing from representation?
Lawyer must comply with applicable law to give notice to tribunal or obtain permission from tribunal. Lawyer must also take steps to the extent reasonably practicable to protect client's interests.
49
What must a prosecutor do if he learns about new, credible and material evidence that creates a reasonable likelihood that a convicted defendant did not commit an offense for which he was convicted?
Rule 3.8 - Prosecutor must: (1) promptly disclose to court or authority, and; (2) if the conviction was obtained in prosecutor's jurisdiction: (a) promptly disclose to the defendant unless court says otherwise, and; (b) undertake further investigation or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that defendant did not commit.
50
What must a prosecutor do if he learns that there is clear and convincing evidence that defendant was convicted of an offense he did not actually commit?
Rule 3.8 - Prosecutor must remedy the conviction by disclosing evidence to the defendant, requesting court-appointed counsel if defendant is indigent, and where appropriate, notifying the court that the defendant is not guilty. If prosecutor does not take these steps, but should have, he did not violate the Rules.
51
Rule 4.1 - In the course of representing a client, a lawyer shall not knowingly:
(1) false statements of fact or law to a third party
(2) fail to disclose a material fact when disclosure is necessary to avoid assisting in a criminal or fraudulent act by a client, unless disclosure prohibited by confidentiality.
(3) make partially true statements or omit material facts in statements made to third parties.
52
If a lawyer is acting as third-party neutral for parties, what are the duties he owes to the body presiding over the ADR?
(1) If arbitration or other ADR before tribunal - lawyer shall not knowingly make a false statement of material fact or law to the tribunal, or fail to correct a false statement; lawyer shall not fail to disclose legal authority in the controlling jurisdiction known to the lawyer that is directly adverse to client, and not disclosed by opposing counsel; lawyer shall not offer evidence that lawyer knows to be false; if lawyer reasonably believes that the evidence presented by client or witness is false, lawyer MAY choose to refuse to offer that evidence. (Rule 3.3). Lawyer's duties extend through the conclusion of the proceeding, and apply even if compliance would mean a violation of Rule 1.6.
(2) If ADR is before a non-tribunal, then the lawyer shall not knowingly make a false statement of material fact or law to a third person, or fail to disclose a material fact when disclosure is necessary to avoid assisting criminal or fraudulent act by a client.
53
What must a lawyer do if he comes to know that his client presented false evidence during a deposition, or in other stages of litigation?
Lawyer must take reasonable remedial measures. (Rule 3.3, comment 1). These reasonable remedial measures may include, remonstrating with the client privately, advising client of lawyer's duty of candor towards the court, and cooperate with client to either withdraw, or correct the false statement. If withdrawal not allowed, or cannot correct the false statement, lawyer must make such disclosure to the tribunal as is reasonably necessary to remedy the situation. (Rule 3.3, comment 10).
54
For the purposes of candor towards the court, when is a lawyer making a statement on his own knowledge?
When making a statement in open court, or in an affidavit by the lawyer. In these circumstances, a lawyer shall only make these statements when the lawyer knows the assertion is true or believes it to be true on the basis of a reasonably diligent inquiry. (Rule 3.3, comment 3)
55
Can a lawyer knowingly present false evidence to a tribunal for the purpose of establishing its falsity?
Yes - Rule 3.3, comment 5
56
What should a lawyer do if he knows that his client, or a witness he is going to call at court, is going to testify falsely or urges lawyer to present false evidence?
The lawyer may choose to withdraw, or if he continues to represent, the lawyer MUST refuse to present the false evidence. (Rule 3.3, comment 6)
57
What should a lawyer do if he reasonably believes that the evidence is false?
The lawyer should resolve his doubt by investigating to avoid presenting a false piece of evidence to court. (Rule 3.3, comment 8).
58
Under the Rules, can a lawyer refuse to put his client, a criminal defendant, on the witness stand, if he reasonably believes that the client is going to present a false statement of material fact or law?
No - the Rules do not permit criminal defense lawyers to refuse to offer criminal defendants' testimonies on the basis of a reasonable belief. Unless he knows that the testimony is false, the lawyer must let the defendant testify. (Rule 3.3, comment 9).
59
When has a proceeding concluded within the meaning of Rule 3.3?
When a final judgment has been affirmed on appeal, or the time for review has passed. (Comment 13).
60
If lawyer knows his client is going to, or has made, a false statement of material fact before a tribunal, when is the appropriate time for lawyer to seek permission to withdraw?
When Lawyer's compliance with duty to candor towards the court results in an extreme deterioration of the client-lawyer relationship such that lawyer can no longer competently represent the client.
61
Can a former law clerk for a judge begin negotiating for employment with any person who is involved as a party or as lawyer for a party in a matter in which the clerk participated personally and substantially?
Yes; only after the clerk receives permission from the judge. (Rule 1.12)
62
May a lawyer who is inexperienced in a particular field of law choose to represent a client who has a legal problem in that field, without violating the Rules?
Yes - competent representation can still be provided through necessary study, assistance from an experienced lawyer in that field, and reasonable preparation. (Rule 1.1, comments 2-4). Also, in emergency situations an inexperienced lawyer may represent a client where referral to or consultation with another experienced lawyer would be impractical. In that case, assistance should be limited to that which is reasonably necessary given the circumstances. (Comment 3).
63
What does competence require?
(1) the legal knowledge, skill, preparation and thoroughness (2) reasonably necessary for the representation. (Rule 1.1)
64
What are the factors to be considered when evaluating whether a lawyer is competent to provide representation?
(1) relative complexity and specialized nature of the matter
(2) the lawyer's general experience (3) the lawyer's training and experience in the field in question
(4) the preparation and study the lawyer is able to give the matter
(5) whether it is feasible to refer or associate with a lawyer of established competence in the field in question
(Rule 1.1, comment 1)
65
If a lawyer is going to consult with other lawyers outside of her firm to assist in the provision of legal services, or provide the legal services, to a client, what must the lawyer do first?
Obtain informed consent from the client and must reasonably believe that the other lawyer's services will contribute to the competent and ethical representation of the client. (Rule 1.1, comment 6).
66
What must lawyers from different firms do when collaborating on the same case?
Consult with each other and the client about the scope of their respective representations, and the allocation of responsibility to them. (Rule 1.1, comment 7).
67
What factors are considered when evaluating the reasonableness of the decision to retain or contract with other lawyers outside the lawyer's own firm?
(1) The education, experience and reputation of the non-firm lawyers
(2) The nature of the services assigned to non-firm lawyers
(3) legal protections, professional conduct Rules, and ethical environments of the jurisdictions in which the services will be performed, particularly relating to confidential information.
Rule 1.1, comment 6
68
Can a judge running for re-election use the courthouse facilities to print campaign materials? Can she give private funds to her colleagues' campaign funds?
No and no - see Rule 4.1 of Judicial Code
69
What are the limitations on contingency fee arrangements?
Rule 1.5 - A lawyer may not enter into a contingent fee arrangement with criminal defendants. A lawyer may not enter into contingent fees in domestic relations matters when payment is contingent upon the securing of a divorce or upon the amount of alimony or support or property settlement to be obtained.
70
Do the Rules permit fee-splitting?
Yes; fee splitting is permissible among lawyers in the same firm. For lawyers in different firms, fee-splitting is allowed only if: (a) division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility of the representation; (b) the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing.
71
Can a firm's retainer require advance payment of a fee?
Yes, but the lawyer must return any unearned portion. (Rule 1.5, comment 4)
72
What factors are to be considered when determining reasonableness of a fee?
(1) time and labor required, novelty and difficulty of the legal questions, and skill requisite in order to perform the service properly
(2) the likelihood, if apparent to client, that the acceptance of the particular employment will preclude other employment by the lawyer
(3) the fee customarily charged in the locality for similar legal services
(4) the amount involved and results obtained
(5) the time limitations imposed by the client or by the circumstances
(6) the nature and length of the professional relationship with the client
(7) the experience, reputation and ability of the lawyers involved
(8) whether fee is fixed or contingent
73
What factors are to be considered in determining if a judge's conduct creates an appearance of impropriety, thus violating the Rules of Judicial Conduct?
If it would cause the reasonable person to think that the judge (1) violated the Code, or (2) engaged in other conduct that reflects adversely on the judge's honesty, impartiality, temperament, or fitness to serve as a judge. Perceived misconduct can be significant as actual misconduct because even if judge is not violating a Rule, the public's confidence in the judiciary can be eroded if the reasonable person thinks the judge is engaging in misconduct. Example: socializing with a criminal defendant who is awaiting sentencing.
74
What are ex parte communications?
When communications are made to a judge outside of the presence of all parties or their lawyers concerning a pending or impending matter. Ex parte communications are generally prohibited.
75
What could happen if a lawyer fails to zealously represent a client?
Preamble, comment 2 - disciplinary action as well as a civil malpractice action. If a client believes the lawyer violated an ethical rule may file a complaint with the relevant authority, typically the state bar. (Rule 8.5(a)).
76
Can a law firm share fees with a non-lawyer merely because the recipient is an heir to deceased lawyer's estate?
No - even for heirs, an agreement between the firm and the deceased lawyer is still required before the firm can share fees with a non-lawyer. Even though a lawyer generally may not share fees with a non-lawyer, a lawyer may enter into an agreement with her firm, partner, or associate to pay money to either the lawyer's estate or specified individual after the lawyer's death.
77
What are the exceptions to the Rule that lawyers cannot share fees with non-lawyers?
Rule 5.4 - (1) pursuant to an agreement between lawyer and lawyer's firm, partner, or associate, can pay money over reasonable period of time to deceased lawyer's estate or to other specified persons (2) a lawyer who purchases the law practice of a deceased, disabled, or disappeared lawyer may pay to the estate or other representative the agreed-upon purchase price, (3) to pay or include on retirement plan non-lawyer employees at the firm, (4) can share court-awarded legal fees to a non-profit organization that employed, retained, or recommended employment of the lawyer in the matter.
78
Can a lawyer form a partnership with a non-lawyer?
No - not if the partnership consists of the practice of law. (Rule 5.4)
79
Can a lawyer accept payment of fees from a third party?
Rule 1.8 - Yes, so long as there is no interference with the lawyer's professional judgment, and the client gives informed consent.
80
What must a lawyer do if he disagrees with his client's decision to accept a settlement offer, or accept a plea bargain (in criminal case)?
Rule 1.2 - A lawyer must abide by the client's decisions concerning the objectives of the representation. This includes abiding by client's decision to either accept a settlement or plea, even if lawyer believes it is not in client's best interest.
81
Can a lawyer limit the scope of representation without violating the Rules?
Rule 1.2 - Yes; lawyer can limit the scope of representation so long as it is (1) reasonable under the circumstances and (2) client gives informed consent.
82
What should a lawyer do in order to resolve a dispute between herself and her client about the means by which the client's objectives are to be achieved?
Rule 1.2, comment 2 - Lawyer should consult relevant law that is applicable to the situation. Lawyer should also consult with client, and seek a mutually acceptable resolution of the disagreement. If all fails, then lawyer may withdraw, or client may discharge the lawyer.
83
If the scope of the representation is limited, what impact does that have on the fee charged to the client
The fee to be paid by the client is only for the limited work done by lawyer. (Rule 1.5). If lawyer undertakes an action that is outside the scope of the employment, client may refuse to pay, unless the action was impliedly authorized (Rule 1.2).
84
When may a lawyer reject a court's representation appointment in a matter?
Rule 6.2 - Lawyer must have good cause to decline the appointment. Good cause might exist if the representation would likely result in the lawyer's violating the Rules, would unreasonably financially burden the lawyer, or if the client or the cause is so repugnant to the lawyer as to likely impair the lawyer-client relationship.
85
What must a lawyer do when a client suggests a course of action that the lawyer knows is criminal or fraudulent?
Rule 1.2 - The lawyer must not counsel a client to engage, or assist client in engaging in such conduct. The lawyer MAY choose to counsel client about the consequences of such action, and MAY counsel or assist client to make a good faith effort to determine the validity, scope, meaning, or application of the law. There is a critical distinction between presenting a legal analysis of questionable conduct, and recommending the means by which the crime might be committed. (comment 9).
86
What must a lawyer do when he finds out his client is already engaged in criminal or fraudulent conduct?
Rule 1.2, common 10 - He must stop any action that can be considered assisting the client in carrying out that crime or fraud. For instance, this could mean the lawyer doesn't deliver certain reports or documents that he previously prepared for the client, if they will assist in the crime or fraud. In some cases, withdrawal is the proper response.
87
If the lawyer comes to know or reasonably should know that a client expects assistance not permitted by the Rules, what should lawyer do?
Rule 1.4 - The lawyer MUST consult with the client regarding the limitations on the lawyer's conduct.
88
If a lawyer has extensive prior experience in a particular field of law, may he hold himself out to the public as a 'specialist' in that area?
Yes - Rule 7.2, comment 9 states that the lawyer is allowed to communicate that he does not or does practice certain fields of law, including the fact that lawyer is a specialist in a certain area, when it is not misleading.
89
What conditions must a lawyer meet before he can make a statement, or imply, to the public that he is a 'certified specialist' in a particular field?
Rule 7.2 - (1) the lawyer has been certified as a specialist by an organization that has been approved by an appropriate authority of the state or DC or US Territory or that has been accredited by the ABA; (2) the name of the certifying organization is clearly identified in the communication.
90
What must be included in all communications that lawyer makes to the public through the media?
Rule 7.2, comment 12 - the name and contact information for the firm, or at least 1 lawyer within the firm; contact information includes: website address, telephone number, email, or physical location of the office.
91
Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client has what obligation to that person?
Rule 1.18 - To not use or reveal that information, except as Rule 1.9 would permit. Additionally, that lawyer shall not represent a client with interests materially adverse to those of a prospective client in the same or substantially related matter IF the lawyer received information from prospective client that could be significantly harmful to that person in the matter. Except where: (1) prospective and current client have given informed consent, in writing; (2) the lawyer who received information to reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent prospective client, and (a) disqualified lawyer is timely screened and is apportioned no part of the fee, and; (b) written notice is promptly given to the prospective client.
92
What does pro bono work include?
Services provided for free and those offered at a substantially reduced fee to people or organizations of limited means. These services must be offered without any expectation of receiving a fee at the time services are provided. If a lawyer anticipates collecting a fee, but does not end up collecting it, that work cannot be considered pro bono. However, a lawyer who provides services for free, then later receives attorney's fees as part of a statutory award in a proceeding, could count that work as pro bono work. Pro bono services may also includes activities for improving the law, the legal system, or the legal profession, because those are generally unpaid activities.
93
Can a retainer limit the scope of representation to only trial proceedings (i.e. the lawyer will not represent client if the client seeks to appeal)?
Yes - a lawyer may reasonably limit the representation in the retainer agreement with the client's informed consent.
94
Can a retainer contain a calendar-based time limit for the representation?
No - setting a calendar-based time limit on the representation in a litigation matter is usually arbitrary and unethical because it is detrimental to the client's interest. (Rule 1.16).
95
Can a lawyer force the client to agree to a provision in her retainer that limits her liability for malpractice?
No - Rule 1.8, comment 14 - agreements prospectively limiting lawyer's liability for malpractice are prohibited unless the client is independently represented in making the agreement because they are likely to undermine competent and diligent representation.
96
Can a lawyer make client agree to sign over all literary and media rights regarding the representation prior to the conclusion of the representation?
No - Rule 1.8, comment 9 - the lawyer may not make an agreement that gives lawyer literary or media rights regarding the representation prior to the conclusion of the representation.
97
Are postponements allowed under the Rules?
Yes - Rule 1.3, comment 3 - a lawyer's duty to act with reasonable promptness does not preclude the lawyer from agreeing to a reasonable request for a postponement that will not prejudice the client.
98
If a lawyer has represented a particular client for an extended period of time in a variety of matters, is it reasonable for client to assume that lawyer will continue to represent them?
Rule 1.3, comment 4 - Yes; the client can reasonably assume that the lawyer will continue to represent them unless the lawyer gives notice of withdrawal. Lawyer should always clarify whether a client-lawyer relationship still exists, preferably in writing, so that the client will not be mistaken.
99
When can a lawyer enter into a reciprocal referral agreement with a non-lawyer under the Rules?
Rule 7.2 - A lawyer may enter into a reciprocal referral agreement only if: (1) the agreement is not exclusive (exclusive means that they only refer clients to each other), and (2) the clients are informed of the existence and nature of the agreement. The reciprocal referral agreement should not be indefinite in duration, and should be reviewed periodically.
100
The general rule is that a lawyer may not pay or give anything of value to someone who recommends his services. What are the exceptions to that rule?
Rule 7.2 - (1) pay advertising costs (2) pay costs of legal service loan or non-profit or qualified referral service (3) pay for a law practice pursuant to Rule 1.17 (3) refer clients to another lawyer or non lawyer professional pursuant to an agreement not otherwise prohibited (5) give nominal gifts as an expression of appreciation that are neither intended nor reasonably expected to be a form of compensation for recommending clients.
101
What is included in a recommendation for lawyer's services?
Rule 7.2 - Endorsements for a lawyer's credentials, abilities, competency, character, or other professional qualities.
102
Generally, a lawyer is prohibited from making extrajudicial statements that the lawyer knows or reasonably should know will be disseminated publicly and will have a substantial likelihood of materially prejudicing the ongoing litigation matter. What public statements may a lawyer make about a case?
Rule 3.6 - (1) the claim, offense, or defense involved and excepted when the law prohibits, the identity of the persons involved (2) information contained in public record (3) that an investigation of the matter is in progress (4) the scheduling or result of any step in litigation (5) a request for assistance in obtaining evidence and info necessary (6) warning of danger concerning behavior of person involved where there is reason to believe that there exists the likelihood of substantial harm to an individual or public interest (7) in a criminal case, can also reveal the identity, resident, occupation, and family status of the accused, info necessary to apprehend the accused, the fact, time, place of arrest, and the identity of investigating officers or agencies and length of investigation.
103
Can a lawyer make public responses to comments made by others about her client?
Yes - so long as a reasonable lawyer would believe the lawyer's response is required to protect a client from substantial undue prejudice caused by the comment, and the lawyer's response is limited to such information as is necessary to mitigate.
104
What are the relevant factors in determining whether an extrajudicial comment is going to have a material prejudicial effect on a proceeding?
Rule 3.6, comment 5 - (1) the character, credibility, reputation or criminal record of any party involved (2) the possibility of plea of guilty or existence/contents of a confession or defendant's failure to make a statement (3) the performance or results of any test or the failure to submit to a test (4) any opinion as to the guilt of the defendant (5) info that the lawyer knows or reasonably should know that is likely to be inadmissible at trial (6) the fact that defendant has been charged with a crime, unless there is included a statement explaining the charge is an accusation and nothing more. Criminal jury trials will be most sensitive to extrajudicial speech.
105
A lawyer cannot represent a new prospective client if what is true
If the new client has interests that are materially adverse to a previous client's interest in the same or substantially related matter, and the former client has not given informed consent.
106
If a firm represents a client, and one of its attorneys leaves to start up a solo practice, may the leaving attorney take on representation of a person who has interests materially adverse to the firm's client?
1.9 - No the lawyer cannot knowingly represent someone whose interests are materially adverse to a prior client that was represented by his prior firm, where the lawyer had acquired protected information about the client that is material to the matter. If the firm's client gives informed consent, then the representation can occur.
107
What limitations does an attorney have after conclusion of an attorney-client relationship?
1.9 - the lawyer cannot use or reveal information relating to his representation of the former client to the disadvantage of the former client except when permitted by the Rules, or when information has become generally known.
108
What does it mean for matters to be substantially related?
Matters are substantially related when they involve the same transaction or legal dispute or if there otherwise is substantial risk that confidential factual information as normally would have been obtained in the prior representation would materially advance the client's position in a subsequent matter.
109
If a lawyer, during the course of representing an organizational client, learns about the organization's policies and practices, is she precluded from subsequently representing a client who has a claim that involves that organization in a different matter?
Rule 1.9, comment 3 - no, the lawyer is normally not precluded unless she gained knowledge of specific facts that are relevant to the matter in question.
110
If a client demands that the lawyer engage in conduct that violates the law or the Rules, what MUST the lawyer do?
Rule 1.16, comment 2 - withdraw from the representation.
111
When may a lawyer enter into a business transaction with a current client?
Rule 1.8 - Only when (1) the transaction and terms are far and reasonable to the client and written down in clear language (2) client is advised in writing of the desirability to obtain independent counsel and given reasonable opportunity to obtain and (3) client gives informed consent in writing to the essential terms of the transaction and the lawyer's role.
112
When can a lawyer ask for a substantial gift from a client, or prepare on behalf of the client an instrument giving the lawyer or person related to the lawyer a substantial gift?
1.8 - Only when the lawyer has a close familial relationship to either the client or the recipient of the gift. These relationships can include: spouse, child, grandchild, parent, grandparent, or other relative or individual.
113
The lawyer can only front money to cover costs of litigation when:
Rule 1.8 - the client is indigent, or the client is represented on contingent fee basis.
114
When can a lawyer make an aggregate settlement of claims against two or more clients that he is representing?
Rule 1.8 - Only where each client gives informed consent, in a signed writing, and the lawyer discloses to them the nature and existence of the claims involved, and of the participation of each person in the settlement.
115
A lawyer cannot except a proprietary interest in the cause of action or subject matter of the litigation except:
(1) acquiring a lien authorized by law to collect fees
| (2) contracting with client for reasonable contingency fee in a CIVIL case
116
What must a lawyer tell a client before entering into a business transaction with them?
The material risks of the proposed transaction, including any risk presented by the lawyer's involvement, and the existence of reasonably available alternatives and should explain why obtaining independent counsel is desirable for the client.
117
Can a lawyer seek to have himself or a member of his firm named as executor of the client's estate?
Rule 1.8, comment 8 - Yes; but the lawyer must get informed consent from the client, and advise client of the potential conflict of interest, and the desirability of seeking other alternatives.
118
Can a lawyer include a provision in his retainer that requires arbitration for malpractice claims?
Rule 1.8, comment 14 - Yes; so long as the agreement is enforceable, and the client is fully informed of the effect and scope of the agreement.
119
Can a lawyer enter into a settlement agreement with a former client who is unrepresented, and bringing a malpractice suit against him?
Only if the lawyer made a disclosure to the former client of the desirability of obtaining independent counsel, and gives the former client reasonable opportunity to obtain and consult with counsel.
120
What restrictions on sexual relationships must the lawyer comply with when representing an organization?
The lawyer must not enter into sexual relationships after the representation has begun that involve constituents of the organization that direct, supervise or regularly consult with lawyer on legal matters for the organization.
121
What does the attorney-client privilege protect?
Only communications that are made in furtherance of the representation.
122
May a lawyer represent someone in connection with a matter in which the lawyer participated personally and substantially as a mediator?
Only if the parties to the mediation give informed consent.
123
Can a lawyer communicate about a the subject of his representation with a person the lawyer knows to be represented by counsel in a matter that lawyer is involved in?
Only if the lawyer gets consent from the other lawyer or is following other law/a court order. The lawyer can communicate with the represented person concerning matters outside the represented matter.
124
What are the three exceptions to the broad confidentiality rule?
1.6 - (1) client gives informed consent, (2) the disclosure is impliedly authorized in order to carry out the representation, or (3) disclosure is permitted by 1.6(b).
125
May a lawyer use a hypothetical to discuss matters relating to the representation of a client with a third party?
Yes, so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved. 1.6, comment 4.
126
When is death or substantial bodily injury 'reasonably certain to occur' that would allow lawyer to reveal otherwise protected information?
If the harm will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take action.
127
An example of a disclosure that is impliedly authorized to carry out the representation is:
Consulting with an ethics board or hotline to find out how to comply with the Rules in a lawyer's jurisdiction.
128
If other law allows lawyer to disclose otherwise confidential information, what must lawyer do?
Communicate this to the client.
129
Give an example of when talking to an attorney's colleagues about something related to the representation of a client would NOT be allowed.
If a corporate client is seeking advice from attorney about a corporate takeover that has not been publicly announced.
130
What factors should a lawyer consider when deciding whether to disclose, if a situation arises in which one of the exceptions to confidentiality apply?
The nature of the lawyer's relationship with the client and with those who might be injured by the client, the lawyer's own involvement in the transaction and factors that may extenuate the conduct in question.
131
When does a concurrent conflict of interest exist?
Where (1) the representation of one client will be directly adverse to another client, or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client, or a third person or by a personal interest of the lawyer.
132
What must a lawyer do to remedy a concurrent conflict of interest?
(1) show that he has reasonable belief that he will be able to provide competent and diligent representation to each client (2) the representation not prohibited by law (3) the representation does not involve the assertion of one claim against another client represented by the lawyer in the same litigation or other proceeding (4) each affected client gives informed consent, confirmed in writing.
133
Can conflicts of interest predate the representation of a client? Must a lawyer detect them?
Yes and Yes. To determine whether a conflict of interest exists, a lawyer should adopt reasonable procedures, appropriate for the size and type of firm and practice to determine the persons and issues involved. Failure to detect potential conflict of interests is a violation of the Rules.
134
What are the exceptions to the imputation rule on conflicts of interest?
(1) If the conflict of interest was personal in nature to the disqualified lawyer
(2) Disqualified lawyer is effectively screened
135
Can conflicts of interest arise due to unforeseeable development during the course of representation?
Yes - Rule 1.7, comment 5 - the unforeseeable development could be that the Lawyer's client is suing a company, and later on that same company is bought by another client that Lawyer has. There, the Lawyer must assess whether he can competently and diligently represent both clients, and if so, seek informed consent from both clients. If not, the Lawyer must get court approval to withdraw.
136
Does concurrent representation of two clients who are economic competitors give rise to a conflict of interest?
Ordinarily no - Rule 1.7, comment 6 - on economic competition alone, there is no conflict of interest requiring informed consent.
137
Give an example of direct adversity conflict in transactional context.
Where lawyer represents the seller of a business, and concurrently represents a party in an unrelated matter, but then that second party becomes a potential buyer of the seller's business. Lawyer has to get informed consent, or withdraw.
138
What is the crucial question the lawyer must ask to determine if there is a material limitation conflict?
The question is whether there is a strong likelihood that a difference in interests will eventuate, and if it does, whether it will materially interfere with lawyer's independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client.
139
What are some examples of a lawyer's personal interest in a case becoming a conflict of interest?
Rule 1.7, comment 10 - (1) If lawyer's personal conduct is in serious question, may be impossible for lawyer to provide competent and diligent representation; (2) if lawyer has an undisclosed financial interest in an enterprise, and advises client to take advantage of services offered by that enterprise; (3) A lawyer is related to another lawyer in the same or substantially related matter where the other lawyer is representing another party in that matter (4) Where a third party, or co-client, is paying the fees for the lawyer in a matter that another client is seeking services from the lawyer for. Lawyer must determine whether there is a conflict of interest between his personal interest to please the paying party, and his duties to the client.
140
What determines whether a conflict can be resolved through obtaining informed consent?
Lawyer must consider whether the interests of the clients will be adequately protected if the clients are permitted to give their informed consent to representation where a conflict exists. The representation is prohibited if the lawyer cannot REASONABLY conclude that the lawyer will be able to provide competent and diligent representation.
141
What are two examples of non-consentable conflicts?
(1) Where substantive or decisional law prohibits the concurrent representation, or the ability to resolve through consent
(2) Where the representation would involve lawyer being on opposite sides in the same matter before a tribunal (does NOT usually include mediation)
142
What is the definition of informed consent?
The agreement by a person to a proposed course of action after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of action. The factors considered to determine whether lawyer has adequately communicated information to the client are: whether the client or other person is experienced in legal matters generally and in making decisions of the type involved, and whether the client or other person is independently represented by other counsel in giving consent. Ordinarily, a lawyer may not assume a client gives informed consent through silence on behalf of the client.
143
If a client revokes his consent, what factors determine whether the lawyer can continue representing him?
Rule 1.7, comment 21 - The nature of the conflict, whether the client revoked consent because of a material change in circumstances, the reasonable expectations of the other clients and whether the material detriment to other clients or the lawyer would result.
144
What determines the effectiveness of an advance waiver of a future conflict of interest?
Rule 1.7, comment 22 - The extent to which the client reasonably understands the material risks that the waiver entails. The more comprehensive the explanation is about the actual and reasonably foreseeable consequences, the more likely it is that the advance consent is effective. Also, if client is more experienced in using legal services, and is reasonably informed about the risks involved, or is represented by independent counsel in giving the advance consent, all of these factors are relevant too.
145
When is co-representation of plaintiffs or defendants okay?
Ordinarily, it is NOT okay in the criminal context. However, in civil context, it IS okay if the lawyer reasonably believes he can competently and diligently represent the interests of the clients, the representation is not prohibited by law, the clients don't have current claims against one another in the same litigation, and each gives informed consent, confirmed in writing.
146
If lawyer is representing one client in a higher court, and obtains a judgment that is adverse to another client's interest being brought by the lawyer in a lower court in that jurisdiction, does a conflict arise?
Yes - this situation would materially limit the lawyer's effectiveness in representing the client at the lower court because of precedent that now weakens her case. Factors relevant in determining whether a conflict has arose are: where the cases are pending, whether the issue is substantive or procedural, the temporal relationship between the matters, the significance of the issue to the immediate and LT interests of the clients, and the clients' reasonable expectations in retaining the lawyer.
147
What factors are to be considered in determining whether there is a significant risk of material limitation conflict in non-litigation contexts?
Rule 1.7, comment 26 - The duration and intimacy of the lawyer's relationship with the client, the functions being performed by the lawyer, the likelihood that disagreements will arise and the likelihood that prejudice will be borne by the client because of the conflict.
148
If clients are represented by Lawyer in a negotiation over starting a new business, and their interest become antagonistic to each other, can Lawyer continue to represent them?
Only if Lawyer seeks to resolve the potentially adverse interests in developing the parties' mutual interests. Otherwise, each party might need separate representation, because if their interests are directly adverse in the same transaction, the conflict is non-consentable
149
What is the relationship between common representation and attorney-client privilege?
Attorney-client privilege does not attach between commonly represented clients. Therefore, if litigation eventuates between the clients, the privilege will not protect any such communications, and the clients should be advised by the lawyer before consenting to common representation.
150
What is the relationship between confidentiality and common representation?
In most circumstances, lawyer cannot competently and diligently represent co-clients if one of them wants to keep information relating to the representation private from the other client. Therefore, lawyer must withdraw if co-clients insist on keeping information from one another. In very limited circumstances, lawyer can obtain informed consent from the co-clients if there is some information that one party wants kept private, ONLY IF the information has no adverse impact on the common representation. Lawyer should advise clients, before they consent to common representation, that he will have to withdraw if there is information that they will want to keep from one another.
151
If a lawyer is representing an organization, is it assumed that the lawyer also represents subsidiaries or parent organizations of that organization?
No - unless the parent or subsidiary is inextricably intertwined with the client organization such that the understanding is that lawyer represents all of the organizations. Thus, the lawyer would not be able to take on representation that has adverse interests to the parent or subsidiary, in such a situation.
152
What must a lawyer do if he is on the board of directors for a corporation that is his client?
He must advise the board that in some circumstances matters discussed at board meetings will not be protected by attorney-client privilege, and that conflicts may arise, in which case lawyer will have to either recuse himself as a director, or withdraw from representation. Lawyer should consider whether the dual-roles has implications on his independent professional judgment.
153
What happens if, while representing an organization, the lawyer knows that a constituent is going to act in a way that is related to the representation, and is likely to result in substantial injury to that organization?
Lawyer must proceed as is reasonably necessary in the best interest of the organization. This may include referring the matter to the highest authority in the organization. If the highest authority fails to appropriately address the situation in a timely manner, and the lawyer reasonably believes that the violation of law is reasonably certain to result in substantial injury to the client, the lawyer MAY reveal information even if the information falls under 1.6, but only to the extent reasonably necessary to prevent injury to the client.
154
What should a lawyer do if the interests of his client (an organization) become adverse to a constituent of that organization?
The lawyer should advise that constituent that (1) he cannot represent them and (2) the constituent should obtain independent counsel.
