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Bar Exam > NY Professional Responsibility > Flashcards

NY Professional Responsibility Flashcards

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1
Q

Start of representation.

A

Based on Client’s reasonble belief that atty-client relationship has begun

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2
Q

Fee mentioned in fact pattern?

A

Make sure to consider whether fee is excessive or illegal!

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3
Q

What to do on Conflict of interest problem?

A

identify clearly the clients

determine whether conflict exists (judgment impaired, or loyalty divided)

deicde whether conflict may be wiaved

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4
Q

Gifts to lawyers

A

Prohibited from soliciting gift

BUT may accept UNSOLICITED gift if gift meets fairness. Subsantial gifts can be accepted but are VOIDABLE by client.

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5
Q

Child clients

A

Parents paying for representation are NOT the clients

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6
Q

Violation of Rule of Professional Conduct is….

A

NOT negl per se
NOT malpractice
IS evidence of malpractice

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7
Q

Use of false evidence distinction

A

PROHIBITED from using evidence KNOWS is false

MAY refuse to introduce evidence that REASONABLY BELIEVES is false.

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8
Q

Represented rule…. if discovered midstream

A

Terminate convo immediately

ALSO, does not extend to FORMER EEs of represented corp

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9
Q

Advertising: Statemetns creating expectations

A

Ok ONLY if factually accuate AND accompanied by disclaimer “prior results do not” ….

Also must include “atty advertising”

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10
Q

Certified specialist

A

MAY state areas lawyer practices
MAY NOT state “specialist”, unless. … . .
MAY say “certified” so long as includes large disclaimer

Exception: Patent Attorney

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11
Q

Scope of Representation

A

May limit, but cannot be so limited as ot create infficient representation

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12
Q

Settlement offers

A

must be communicated, unless standing minimum

Same rule applies to blea bargains

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13
Q

Reqs for client under disability (minors, medical)

A

Maintain ordinary relationship

Appoint guardian if necessary

Permissive revelation of disability as necessary to protect clinet

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14
Q

Counseling on crime and fraud

A

YES re legal consequences

NO re HOW to commit

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15
Q

Mandatory withdrawal

coextensive wrt taking on client

A

Conflict

  1. violation of professional conduct
  2. harassment
  3. atty impairment (drug abuse, eg)
  4. discharge (absolute client right)

withdrawal requires ct apporval if ct proceeding initiated

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16
Q

Penalty (Liq Damages) for atty discharge

A

NOT allowed

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17
Q

Permissive withdraw (6)

A

If HARMLESS to client, then PERMITTED even over client objections

If HARMFUL, may still be permitted, if:
1. RB that client is prusing crime or fraud (need not know.

  1. Services used for crime
  2. Fundamental disagreemnt (nazi)
  3. Unreasonable burden (difficult life). Bad fee deal is NOT enough.
  4. Client doens’t pay

CT PERMISSION!

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18
Q

After withdrawing

A

Must return all client’s property and unearned fees

Retaining lien for fee, but cannot sell papers or use to harm client

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19
Q

Reasonableness of Fees

A

NY apply a factor test: 1. time, 2. hourly rate, 3. novelty of matter, 4, amount in controversy.

more AIC, more in risk, more in fee

ok to accept payment for conflicting out the superstar

PER SE INVALID IN

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20
Q

Fee agreements

A

Can be oral

But must be in writing if over 3000 OR in matters re domestic relations

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21
Q

Contingency fees

A

Must be in writing for over 3000

NEVER allowed in criminal cases / domestic relations

Must delineate calculation methodology

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22
Q

Retainers (eg. 10k up front)

A

Upfront payments are still CLIENT’s money, and must be kept in ESCROW

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23
Q

Taking interest in client (stock, mortgage)

reqs 4

A

is a form of COI, but one that can be waived by client. REQS:

  1. in writing
  2. fair and reasonable
  3. advise client in writing of prduence of indy counsel
  4. informed consent in writing signed by client
24
Q

Fee sharing

reqs 3

A

Allowed in firm

Outside of firm is permitted ONLY IF:

  1. overall fee is fair
  2. kickback is dicslosed to client in writing AND
  3. referrign lawyer must actual PROVIDE SERVICES!!!!~
25
Q

Disputes over winnings

A

Keep in escrow

26
Q

Duty of Confidentiality, 3

A
  1. protected by atty client privilege
  2. likely to be embarrasing/detrimental to cleint
  3. client request to keep confidential
27
Q

A-C privilege

A

ONLY testimonial communications
Actually given confidentially
Actually kept confidential

NOT smoking gun

28
Q

Exceptions to Atty Cl Privilege

A
  1. Crime
  2. In dipsutes with lawyer
  3. regarding wills
29
Q

Permissive disclosures, 6

A

May means may… Six types

  1. informed consent by client
  2. implied by represenation ( talk to partners)
  3. to prevent REASONABLY CERTAIN death or substantial bodily injury
  4. prevent client’s criminal act
  5. disputes with client over fees / malpractice (trial enforced)
  6. court orders
30
Q

Conflicts of interest (nonwaivable, reqs to waive, types)

A

Nonwaivable: 1. direct adversity (T-LL) 2. material limitations on lawyer’s representation

Waivable, reqs: (1) IC in writing, (2) RB that COI will not adversely affect representation, (3) wavier by ALL affected clietns (applies to both former and current clients!!!!!!)

31
Q

Special COI

A

related lawyers not allowed to oppose

no sex in domestic relations matters or with control group

Lawyers as witnesses

32
Q

Test for if conflict with former client

A

ASK: prior matter related to current matter? Elements:

  1. scope of prior rep?
  2. Could lawyer have learned info?
  3. would info be useful now

IF so, then IRREBUTABLE presumption. Don’t actually take evidence of what lawyer knows (confidential!)

33
Q

Personal interests of lawyer

A

Business dealings with client ONLY IF 1. in writing, 2. fair, 3. opportuinty for indy counsel, 4. current clients only.

No literary or media rights PRIOR to conclusion of representation

No proprietry interests (no loans to clients)… DISTINGUISH between advancing costs (okay) versus other loans (not ok, chmampertous)

No wills “I am the heir”

34
Q

Settlement of malpractice

A

K limiting liability UNENFORCEABLE;
no LDC

No settlement of malpractice claim with unrepresented client

REQS: (1) advised in writing should seek indy counsel (2) reaosnable opprotunity to do so

35
Q

Imputations

A

Cootie rule. If lawyer in firm has conflict, EVERY laywer in firm has conflict.

EXCEPTIONS: 1. clients consent in writing, 2. conflict was personal (sex with client), …….FYI paralegals count…

Immediate screening of new lawyer generally required.

KEYS: consent & screening

36
Q

Third party interference

A

Client is client! (beware insurer!)

37
Q

Orgization-Clients

A

Requirement to go up the corporate latter (to the Board!

38
Q

Professional Competence

malpractice vs. discipline, standards

A

Malpractice ≠Discipline

DISCIPLINE does not require damages. Standard: Clear & Convincing Evidence.

MALPRACTICE: does require damages, Standard: preponderance

39
Q

Duty of diligence

A

must withdraw if too busy or too impaired

40
Q

Knows evidence is false or perjury about to be committed

A
  1. attempt to dissuade
  2. reveal matter to ct and seek to withdraw
  3. trial by narrative
41
Q

Evidence tampering

and witnesses

A

no no no!

no paying witnesses UNLESS they are experts

NO contingency fees for experts.

42
Q

Beware ex parte statemnets, including to media (no card)

A

[]

43
Q

Media

A

okay ot say general facts

NOT ok to slam witnesses

44
Q

Communicating with unrepresented

A

no deliberate misleading (some undercover ok)

45
Q

inadvertent communication

A

must notify sender (priviege gone)

46
Q

Advertising reqs (4)

A

May not be false / misleading
No unverified self-promotion
Must disclose office location
No implied partnership unless ACTUAL partnership

47
Q

KEY Advertising #1 - direct contact

A

No “real time” direct contact to solicit biz, UNLESS (1) family (2) preexisting client, (3) not for pecuniary gain (pro bono)

48
Q

Key Advertising #2 - mailings (3 reqs)

A

General mailing ok, UNLESS lawyer knows that state of recipient would make him incapable of reasoned choice

MUST be labeled as advertising

30 day prohibition on contacting victims of accidents through targeted direct mail.

49
Q

Admission to bar:

A

without exam? 5 years

must disclose non-disqualifying crimes will result

including on law school app

PHV…but need DISPUTE… won’t work for corporate lawyers doing deals

50
Q

Grounds for disbarment

A

violate rules

criminal acts

fraud/deceit

FYI, need not be related to legal practice!!!! AND can be out of state conduct!!

51
Q

Squeal Rule

A

Duty to report known violations going to lawyer’s honesty and fitness

Need ACTUAL knowledge

52
Q

Vicarious Liability

A

Supervising attys liable for violations of supervised atty and nonprofessional if supervising atty 1. orders, 2. ratifies, or 3. fails to take remedial action in connection with violation.

No Nuremberg Defense for subordinates

53
Q

Dividing fees

A

no fee divisions with non lawyers
okay with parnters (must be lawyers)
corporate firm? no non-lawyers in control

54
Q

Some referrals okay

A

Btw lawyers, CPAs, architcts and social workers

55
Q

Selling your practice

A

Stop practicing

Notify clients

Sale must be to LAWYER

Fees can’t be altered.

56
Q

Settleemtn agreement nono

A

Covenant not to compete. Eg. Lawyer agrees not to bring further suits agiasnt D.

Bar Exam (16 decks)

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