Module 6 – Legal Education/How to Succeed in Law School/Honesty, Integrity, Loyaty and Reputation/ Outline

Question 1

A lawyer with integrity embraces honesty as

Answer 1

more than a virtue, it is a professional imperative

Question 2

Ethics rules mandate that a lawyer must be honest in their dealings with

Answer 2

• the public
• each other
• the courts

Question 3

Lawyers have to draw the line between

Answer 3

advocacy and affirmative misrepresentation

Question 4

Lawyers have to be honest even when

Answer 4

it doesn’t not advance a client’s case

Question 5

Reputation for either honesty or trickery will

Answer 5

either help or hamper the lawyer’s career

Question 6

Lawyers are trained in reasoning and argument

Answer 6

so they rationalize to defend an answer that to an objective observer might be without merit

Question 7

A lawyer’s code of conduct reflects

Answer 7

choices rather than moral absolutes (not apparent to public –> ex. confidentiality)

Question 8

Clients must have an unfettered right to

Answer 8

tell their lawyers the truth, even if that truth means admitting misconduct –>only with all the facts can a lawyer give good advice

Question 9

Spaulding v. Zimmerman (Minn., 1962)

Answer 9

• auto accident where plaintiff received life threatening injuries that neither he or his lawyer knew about
• defense was prohibited by client to reveal this (revelation would have increased value of the case –> how much defense had to pay to settle)
• After injury was discovered, plaintiff reopened the case and original settlement was vacated but without finding the defendant’s lawyer had violated any ethical duty
• Supreme Court held that the lower court had not abused its discretion in vacating the settlement because the lower court was entitled to learn of the plaintiff’s condition from the defense although they had “no canon of ethics/legal obligation that required them to advise the plaintiff, their counsel, and court”
• 40 yrs after (2002), ABA ethics rule on confidentiality of information was amended to make clear that a lawyer “may” reveal a client confidence if they have reason to suspect that doing so will prevent substantial harm or death (permissive not mandatory)

Question 10

The duty of honesty with clients dealings is

Answer 10

squarely owed to that client and should be regarded as inviolate (rare exception –> harm to client)

Question 11

A lawyer’s duty of loyalty and honesty mandates that

Answer 11

they share all news, good or bad, with the client

Question 12

Lawyers involved in litigation have a specific duty of candor and honesty to the court that can trump their duties of loyalty and confidentiality to the client

Answer 12

• in the criminal case, lawyers are allowed and required to make the state prove its case even if they are aware the client is guilty + constitutional right to trial/counsel
• in a civil case, lawyer may not proceed with a case that they believe is frivolous/without reasonable basis in fact or law + no constitutional right

Question 13

Part of skilled lawyering is avoiding

Answer 13

cases that make you decide between answering a question from the judge honestly and losing the case or lying/evading it and gleaning something from the doomed cases

Question 14

People v. Simac (App. 1992)

Answer 14

• counsel had clerical employee who resembled the defendant sit at the counsel table but failed to inform the opposing counsel of this
• officer who responded to the traffic incident took the stand and misidentified the clerk as the defendant
• appellate court held that that counsel materially deceived the court in affirming the finding of contempt

Question 15

Lawyer has a duty of honesty to the client, court, and

Answer 15

public

Question 16

Case law allows a lawyer to pursue even weak cases if

Answer 16

the lawyer has good-faith legal basis to believe the matter is supported by fact and law/case can be made for modification of existing law

Question 17

Gideon v. Wainwright

Answer 17

• great cases born out of desperate claims
• Clarence Gideon sent handwritten paper note in pencil SCOTUS arguing that poor people should be given a lawyer in criminal trial
• Attorney Abe Fortas (future justice) believed principle was important enough to test at the highest court despite np prior holding
• changed U.S. criminal jurisprudence

Question 18

Assertions of opinion as to price, value, or client’s settling point are understood to be

Answer 18

advocacy and not absolute truth (creative advocacy vs fraud)

Question 19

Fine line drawn between

Answer 19

affirmative misrepresentation and silence in the face of an opponent who is ill-informed that a decision will be advantageous to them

Question 20

Ethics codes recognize lawyers as both a

Answer 20

advocate (advances case )and client counselor (advises/helps client choose the proper course)

Question 21

Clients own cases not lawyers but will often need

Answer 21

advice on which objectives are realistic, make economic sense, do more harm than good, conduct allowed by law, and consequences of any particular course of conduct; ultimate decision is the clients –> modern vision = collaborative relationship (b/w client and lawyer toward objectives and process)

Question 22

Expectations for a lawyer in advising clients is

Answer 22

to remain neutral, unemotional, and loyal to their social, professional, and institutional duties + guard against external forces that could influence their advice

Question 23

If a lawyer cannot give dispassionate advice because of a personal interest they may have in the matter

Answer 23

they should withdraw from the representation

Question 24

Lawyer may not accept payment from a client if

Answer 24

that payment comes with any compromise of the lawyer’s ability to counsel without outside interference

Question 25

In a civil case, a client has

Answer 25

sole and final authority over whether to settle (certain issues like trial strategies will the lawyer’s alone)

Question 26

Rules allow a criminal client absolute control over

Answer 26

decisions as to whether to take a plea offer, try a case to a court or jury, and whether to testify + all other decisions are collaborative

Question 27

A lawyer by advancing a client’s legitatmate interests is NOT

Answer 27

endorsing them (because they are dispassionate/objective + serve private/public goals)

Question 28

If the lawyer realizes they cannot be loyal because client’s goals are so disconstant with their moral code they cannot be loyal, the lawyer should

Answer 28

withdraw

Question 29

Lawyer must avoid any conflict of interest and

Answer 29

must advance client’s goals even in the face of public disapproval

Question 30

Lawyer’s only professional choice is to (for criminal lawyers)

Answer 30

aid the client regardless of guilt –> duty is to them and their right to have every element of the case against them tested according to legal principle

Question 31

Lawyer’s social, professional and ethical duties mandate that

Answer 31

they advocate for clients honestly, without deceit or trickery, and according to acceptable legal principles (zealous but not “by any means necessary”)

Question 32

Clients have right to make choices the lawyer may consider unwise/inappropriate.

Answer 32

An essential element of integrity is the willingness to allow them to do so

Question 33

Context is important for setting fees

Answer 33

ultimately, arriving at a “good” fee will be a collaborative process –> lawyer will guide client the client to choices that offer the best return for the investment

Question 34

Reasonable alternatives available like

Answer 34

mediation, arbitration, or truncated presentations –> lawyer will make sure client can make an informed decision

Question 35

Permissive withdrawal is allowed when

Answer 35

• a lawyer and client’s opinions become so divergent they can no longer in good faith endorse the client’s course of action
• lawyer and client reach a point of irreconcilable disagreement in some important point
• when the client has stopped paying the lawyer
• when continued involvement with the client will financially harm a lawyer
• other good cause is shown
• continued representation would require a lawyer to breach an ethical duty
• lawyer’s physical/mental health mandates ending the relationship

Question 36

Withdrawals must be managed in a way that

Answer 36

does not harm the client’s case

Question 37

Fees can be

Answer 37

both fixed and contingent

Question 38

Professional and personal duties also require lawyers to

Answer 38

police each other –> duty to report another lawyer to the appropriate disciplinary authority and misconduct that raises substantial question as to the other lawyer’s trustworthiness of fitness

Question 39

A lawyer with an excellent reputation will have

Answer 39

worked to build and preserve it (think about an enduring reputation and start early to create it –> end in mind)

Question 40

A reputation consists of

Answer 40

deeds done, established relationships, and of attainment

Question 41

Reputations may begin to emerge from

Answer 41

the start of law school or even earlier (reputation among classmates/staff who could be future colleagues, clients, judges, confidantes, mentors, etc.)

Question 42

Reputation begins with

Answer 42

friends, family. and other close relationships –> SUCCESS depends on reputation beyond this inner circle (depends on outsiders who have heard and believe)

Question 43

Beyond competency a reputable lawyer will be known

Answer 43

• for going about his work in a professional way
• comporting himself civilly
• in all ways, honoring duties to clients, opposing parties, and their counsel, the profession, the public, and our systems of justice

Question 44

Lawyers build their reputation through

Answer 44

interactions with their colleagues, clients, neighbors, friends, relatives, judiciary, and others

Question 45

A lawyer can strengthen their reputation by demonstrating proficiency before the bar and public by

Answer 45

• penning legal articles
• authoring a legal blog in the legal or broader community
• offer legal analysis or commentary online, television, or radio
• make presentations the bench, bar, PTA, civic clubs, sororities/fraternities, and faith-based entities

Question 46

In all that a lawyer does – 24/7, near and far their words and actions should

Answer 46

demonstrate competence and professionalism, all serving to enhance their professionalism

Question 47

Reputation can be manufactured

Answer 47

lawyer can create reputation for doing legal work in a specific or notable way that can attract to potential clients –> deliberately stake out trademark practice strategies or types of clients

Question 48

Reputation can be both an

Answer 48

asset and liability, even at the same time (positive, negative, mixed)

Question 49

For high-profile appointments, reputation is usually a

Answer 49

paramount consideration and may determine whether the appointment is secured or not (may satisfy the criteria –education, years of practice, etc. – but the threshold question is whether they will pass the reputation test AKA what others say about them)

Question 50

A solid reputation can deliver

Answer 50

support in a tough situation where qualifications/character and fitnesses are questioned

Question 51

In dealings with judges, arbitrators, jurors, mediators, and others in decision-making positions

Answer 51

a lawyer should at all times show respect, act with candor, and speak with courtesy

Question 52

A lawyers reputation matters to

Answer 52

the firm, regardless of practice size

Question 53

Social media platforms can

Answer 53

risk a good reputation

Question 54

ABA Article: Lawyer Richard Liebowitz “Copyright Troll”

Answer 54

• The Southern District of New York’s grievance committee ordered interim suspension against him
• sanctioned by Judge Jesse Furman
• Liebowitz filed thousands of copyright infringement cases in federal courts
• Furman ordered Liebowitz to serve a copy of his opinion on all his current clients, in all his pending cases, and in future cases filed in the next year, ordered Liebowitz and his firm to pay > $83,000 in attorney fees and $20,000 for the false claim about the copyright registration, and required him to attach copies of copyright registrations in any infringement case filed in the next year.
• appeals court said the evidence against Liebowitz and his pattern of misconduct in other cases justified the nationwide scope of the sanction
• The 2nd U.S. Circuit Court of Appeals at New York upheld the nationwide sanction
• he is “one of the most frequently sanctioned lawyers, if not the most frequently sanctioned lawyer” in the Southern District of New York
• In a different case, Liebowitz lied about the date of his grandfather’s death to justify missing a court conference (+40 cases criticizing him were listed in Furman’s opinion)

Question 55

Katko v. Briney (Iowa, 1971): Facts

Answer 55

• Plaintiff: Marvin E. Katko
  
  • trespassed with accomplices to steal antique fruit jars (broke & entered by removing board)
  • set off spring-gun trap and was shot in leg –> resulted in permanent deformity, loss of tissue, and shortening of the leg; hospitalized for 40 days
• Defendant: Edward and Bertha Briney (owners of property)
  
  • house inherited by Mrs. Briney, had been unoccupied for some time, and was not their living residence
  • series of intrusions over the years, boarded up windows and doors, trespass signs posted before ‘67
  • defendants set shotgun trap (June 1967) –> rigged to fire when bedroom door was opened, tin nailed over bedroom window (gun not visible form outside/no warning)
• Defense was: “law permits use of spring gun in dwelling/warehouse to prevent unlawful entry”

Question 56

Katko v. Briney (Iowa, 1971): Case

Answer 56

• Jury found for Katko who was awarded actual and punitive damages ($30,000 –> $274,000 in 2021)
• Defendants appealed

Question 57

Katko v. Briney (Iowa, 1971): Issue and ruling

Answer 57

Issue: can an owner protect personal property in an unoccupied, boarded up farmhouse against trespassers and thieves by a spring-gun capable of inflicting death/serious harm

Held: No (og verdict affirmed)
- use of spring gun to protect property was not permissible

Rule of Law:
*value of life and limb, not only to the individual concerned but to society, outweighs the the potential damage to property unless the intruders threaten death/bodily harm

• many jurisdictions hold landowners criminally liable for serious injuries/homicide caused by springs or other set devices

Question 58

Katko v. Briney (Iowa, 1971): Cited Case

Answer 58

Allison v. Fiscus (1951)

• dynamite trap injured trespasser
• court recognized plaintiff’s right to recover punitive or exemplary damages + compensatory damages

Question 59

Katko v. Briney (Iowa, 1971): Dissent

Answer 59

Justice Larssen
- trial judge’s instructions failed to tell jury it could find the installation was not made with the intent of striking or injuring the plaintiff (setting trap does not = liability)

• principle espoused had never been applied to a burglar
• punitive damages should not be allowed where the trespassers conduct was criminal

Question 60

Surocco v. Geary (California, 1853): Facts

Answer 60

Plaintiff: Pascal Surocco
- property owner; was removing belongings when house was blown up

Defendant: Geary (appealed under practice act of 1850)

• alcalde (mayor) of San Francisco
• destroyed the plaintiff’s property
• justified by virtue of his office
• building blown up to stop progression of the fire

Verdict rendered for plaintiff

Question 61

Surocco v. Geary (California, 1853): Issue and Ruling

Answer 61

Issue:
Can the person who tears down/detroys the house of another in good faith and under necessity during the time of a conflagration for the purpose of saving the buildings adjacent and stopping its progress be held personally liable in an action by the owner of the property destroyed?

Held: Yes –> Judgement REVERSED

• necessity provides privilege for private rights
• common law adopts principles of the natural law and places the justification of an act otherwise tortious on the same grounds as necessity

Rule of law:
Necessity must be clearly shown
- person w/ direct interest cannot decide
- evidence support the destruction was necessary as the house would have been consumed anyway
- legislature of the state possesses the power to regulate this subject by providing the manner of destruction and mode of compensation
**court invited the legislature to change the law (legislature guides the courts) –> Raul

Question 62

Speaker:

Answer 62

Professor Raul Ruiz, Assistant Dean of Bar Preparation and Assistant Professor of Academic

• created bar exam success program
• J.D., Florida International University College of Law
  B.S., Yale University
• 3rd year class –> US Law and procedures

Professor Raul Ruiz serves as FIU Law’s Director of Bar Preparation. He was previously a professor of critical skills at the Shepard Broad Law Center at Nova Southeastern University and an adjunct professor of Legal Skills & Values at the FIU Law. Professor Ruiz served as an Assistant State Attorney in Miami-Dade County and practiced privately in the areas of criminal defense, personal injury, and appeals.
In 2003, Professor Raul Ruiz earned his bachelor degree with a dual major in Economics and Electrical Engineering from Yale University. In 2006, he obtained his Juris Doctor degree, magna cum laude, from the Florida International University College of Law, where he was the Vice-President of the Moot Court Board.
While an undergraduate at Yale and under the supervision of Professor Jack M. Balkin, Mr. Ruiz wrote his thesis titled, Creating Filter Templates: A Best Practices Model. This thesis addressed the issue of how best to protect free speech on the Internet while simultaneously allowing parents, public libraries, and other entities to filter internet content in a socially responsible and constitutional manner. Mr. Ruiz’s thesis led to the expansion of the Internet Content Rating Association’s (ICRA) free labeling system and software. Mr. Ruiz also served as the co-founder, editor and technical director of LawMeme at Yale Law School, a legal blog of law and technology issues.
Mr. Ruiz is a member of the Florida Bar and previously served on its Small Claims Court Rules Committee and Moot Court & Mock Trial Subcommittees of the Law Related Education Committee of the Florida Bar. He is also admitted to practice in the United States District Court for the Southern District of Florida, the United States Bankruptcy Court for the Southern District of Florida, the United States District Court for the Northern District of Florida, and the United States Bankruptcy Court for the Southern District of Florida.
In 2013, Professor Ruiz was awarded the Justice Education Award by the Florida Bar for his work with high school moot court competitions held before the Florida Supreme Court and for furthering the civic education of Florida’s youth.

Question 63

Raul: Cognitive schema

Answer 63

framework for knowledge

Question 64

Raul: forgetting curve (Ebbinghaus)

Answer 64

to reset the forgetting curve (decline of memory retention over time) you have to create you own outline AKA active learning

Question 65

Raul: Outlines

Answer 65

• Copy table of contents –> serve as your cognitive schema (syllabus too)
• with each outlining session add more to the skeleton (table/syllabus) by incorporating the rules learned about the subject matter
• fill in as you go and actively change the forgetting curve by synthesizing the information again
• will have 50-70 pages by the end of the semesters with every you can be tested for
• outlines are a synthesis of case briefs –> rules and concepts that the main takeaways (putting together the puzzle pieces)

Question 66

Raul: Supplemental study aids

Answer 66

• should purchase
• cover everything on the syllabus
• ensure everything you’re studying is correct (see if you can solve problem through the aid)
• Testing effect = the more you practice (problems, hypotheticals) the better you get

Question 67

Honesty

Answer 67

• in dealing with the public, with each other, and with the courts
• a dishonest lawyer will not be trusted by his peers or the judiciary

Question 68

Civil attorneys should not

Answer 68

pursue cases that are frivolous or without merit (even if it’s against the client’s wishes

Question 69

Be honest with the client from the initial conference & do not take the case if

Answer 69

it is without merit and/or initiated solely for the purpose of harassment

Question 70

Attorney and the public - duties

Answer 70

Do not mislead witnesses or other members of the public

Question 71

Reputation

Answer 71

• A lawyer’s reputation for honesty or trickery will help or hamper their careers
• Lasts a lifetime
• Begins as early as law school
• Begins with family & friends
  Through interactions with colleagues, clients, judiciary, law school
• Professionalism should permeate every aspect of your life, not just the legal work
• Can be created consciously & deliberately

Question 72

What is a reputable lawyer?

Answer 72

• Competent
• Conscientious
• Thorough
• Effective
• Good Moral Character

Question 73

Reputation can be an asset & liability

Answer 73

• Positive / Negative
• Speaks to the individual, clients & firm
• Affects fees
• Credibility with judiciary
• About relationships which should be protected & nurtured

Question 74

Loyalty to the client vs. independent judgment

Answer 74

• Lawyer’s personal interests can’t interfere
• Payment should not come with strings
• Avoid conflict of interest

Question 75

Fees

Answer 75

• Should be reasonable & commensurate with attorney’s experience
• Keep the client posted on anticipated fees as the case advances
• Recommendations should be based on the interest of the client not on maximizing fees

Question 76

Factors to determine reasonableness (FEES)

Answer 76

• Nature & scope of work
• Amounts usually charged for work
• Risk
• Time
• Expertise
• Reputation of Lawyer
• Results obtained (may be fixed or contingent)