Ones i missed in 2nd practice Flashcards
Lawyers generally are not permitted to give anything of value to an individual for recommending the lawyer’s services absent an exception, such as a proper reciprocal referral agreement.
==> BUT a reciprocal referral agreement is improper** if it is for an indefinite duration.**
Doc destruction
A knowing or bad-faith failure to change or depart from a routine document retention policy by securing material that is known or should be known to have potential evidentiary value is a breach of a lawyer’s duty of fairness to an opposing party and counsel
Expertise certification
A lawyer cannot state or imply that he/she is certified specialist in a particular legal field unless (1) the lawyer has been so certified by an organization approved by an appropriate state authority or accredited by the American Bar Association and (2) the name of the certifying organization is clearly identified in the communication.
Duty of candor x material fact
A lawyer’s duty of candor to the tribunal requires the lawyer to correct false statements of material fact made by the lawyer to the tribunal. A material fact is a fact that is of consequence in determining the outcome of a case.
Soliciting employment
Lawyers may solicit employment by live person-to-person contact if the person contacted is (1) a lawyer, (2) a person who has a family, close personal, or prior business or professional relationship with the soliciting lawyer, or (3) a person who routinely uses for business purposes the type of legal services offered by the lawyer.
COI & law firms
GENERAL: if one lawyer in a firm is prohibited by the conflict-of-interest rules from representing a client, that conflict is imputed to all lawyers in the firm.
But a disqualified lawyer’s conflict is not imputed to his/her firm if:
–the prohibition is based on the disqualified lawyer’s personal interestand that personal interest presents no significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.
==> Prohibitions based on personal interests include conflicts arising from a close family relationship
A lawyer is disqualified from representing a client in a matter in which the related lawyer is representing another party without each client’s informed consent. However, disqualification arising from a close family relationship ordinarily is not imputed to members of the disqualified lawyer’s firm.
Non-competes
A lawyer is subject to discipline for **offering or making an employment agreement that would restrict a lawyer’s right to practice law after the termination of the employment relationship. **
Such prohibited agreements include agreements that contain noncompete or forfeiture-for-competition clauses restricting a lawyer’s right to practice.
Ex Parte Implications
In an ex parte proceeding, a lawyer must inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision—even if the facts are adverse to the lawyer’s client.
Prosecutors duty re new evid
Prosecutors have a duty to disclose new, credible evidence creating a** reasonable likelihood that a convicted defendant did not commit the offense** for which he/she was convicted.
If the conviction occurred in the prosecutor’s jurisdiction and the new evidence is clear and convincing, the prosecutor **must also seek to remedy **the conviction.
Contingent Fee reqs
A contingent fee arrangement must be in a writing signed by the client and include (1) the calculation methodology of the fee, (2) the expenses for which the client will be responsible, and (3) details of the calculation for deductions for expenses, including whether such expenses are to be deducted before or after the fee is calculated.
Work Product Doctrine x Collection of Docs
An attorney’s selection or compilation of various documents constitutes an attorney’s opinion work product because it represents the attorney’s mental impressions and legal opinions
Fee Sharing x W/in firm compared to outside
When lawyers from different firms share legal fees, the following conditions must be met:
(a) the fee must be split in proportion to the services rendered by each lawyer, or each lawyer must share joint responsibility for the representation
(b) the** client must agree in writing **to the fee-splitting arrangement, including the share each lawyer will receive and
(c) the total fee charged must be reasonable.
However, when lawyers within the same firm share fees, the lawyers need only enter into an agreement to share fees. And, like all legal fees, the fee must be reasonable.
Lawyers as Witnesses
A lawyer is not permitted to act as an advocate at a trial in which the lawyer is likely to be a necessary witness unless
(1) the testimony relates to an uncontested issue,
(2) the testimony relates to the nature and value of legal services rendered in the case, or
(3) disqualification of the lawyer would work substantial hardship on the client.
Duty of candor scope
A lawyer’s duty of candor applies before a tribunal and when the lawyer is representing a client in an ancillary proceeding conducted pursuant to the tribunal’s authority (e.g., deposition).
And when a lawyer discovers that he/she (or a client) made a false statement of material fact, the lawyer must correct the statement with the tribunal.
Ct apt rep
A lawyer must accept a court-appointed representation UNLESS good cause exists to seek to decline the representation.
Good cause exists under the Model Rules of Professional Conduct (MRPC) if:
1. the representation would likely result in a violation of the MRPC or other law
2. the client or the client’s cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or
3. the lawyer’s ability to represent the client or the representation would likely result in an unreasonable financial burden on the lawyer.
Lawyer communications w constituent reps
**A lawyer is prohibited from communicating with a constituent (e.g., employee) of a represented organization **
(1) who supervises, directs, or regularly consults with the organization’s lawyer concerning the matter,
(2) has authority to obligate the organization, or
(3) whose conduct may be imputed to the organization for purposes of liability.
Rep x Arbitration Panel
A lawyer generally is disqualified from representing anyone in connection with a matter in which the lawyer participated personally and substantially as an arbitrator.
However, an arbitrator selected as a partisan of a party in a multimember arbitration panel can subsequently represent the party that chose the arbitrator as a partisan.
