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PROFESSIONAL RESPONSIBILITY RULE STATEMENTS > PR > Flashcards

PR Flashcards

1
Q

Lawyer-Client Formation

A

A lawyer-client relationship exists if

(1) a person seeks legal counsel which
(2) the lawyer expressly or impliedly agrees to provide, or fails to expressly deny, and
(3) the lawyer knows or should know that the person reasonably relies on the lawyer to provide the services

The relationship begins upon the client’s reasonable belief of its existence.

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2
Q

Duty to Accept Client

A

Generally, a lawyer is not obligated to accept any client unless the lawyer is appointed by the court to do so.

A lawyer may decline court appointments if good cause exists

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3
Q

Duty to Reject Client

A

A lawyer must reject representation if

(i) it would result in a violation of ethics rule or other law
(ii) the lawyer’s physical or mental condition materially impairs his ability to represent the client

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4
Q

Scope of Lawyer-Client Relationship

A

The client determines the objectives of the representation including decisions to testify in a criminal case, waive a jury trial, accept a settlement offer, or plead guilty.

The lawyer determines the means (tactical decisions/appropriate legal strategy) to achieve the client’s goals

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5
Q

Limiting Scope of Lawyer-Client Relationship

A

The lawyer can limit the scope of representation if

(1) the limitation is reasonable under the circumstances and
(2) the client gives informed consent

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6
Q

Assisting or Advising Violation of Law is Prohibited

A

A lawyer shall not counsel a client to engage in or assist a client in conduct the client knows is criminal or fraudulent.

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7
Q

Mandatory Withdrawal

A

A lawyer is REQUIRED to withdraw from representation if

(i) representation will lead to a violation of the ethics rules or other law
(ii) his mental or physical condition materially impairs his ability to represent the client or
(iii) he is discharged

[In California - AND if he knows or should know that the client is bringing an action without probable cause or to harass or maliciously injure a person]

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8
Q

Permissive Withdrawal

A

A lawyer MAY withdraw from representation if

(i) the withdrawal will not cause material harm to the client
(ii) the client has used or insist on using the lawyer’s services to commit fraud or crime,
(iii) the client breaches a material term relating to the representation and the lawyer has given the client reasonable warning of withdrawal after the breach
(iv) the representation will result in an unreasonable financial burden on the lawyer
(v) the client makes representation unreasonably difficult
(vi) other good cause exists

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9
Q

Process of Withdrawal

A

Upon termination of representation, a lawyer must give reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled, and refunding any advance payment of fee or expense that has not been earned or incurred (CA - unless the fee was a true retainer)

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10
Q

Reasonable Fees

A

A lawyer’s fees must be reasonable. The following factors are used to determine reasonableness:

(i) difficulty of the case
(ii) lawyer’s experience and reputation
(iii) fee customarily charged in the locality for similar services
(iv) preclusion of other employment
(v) whether a fee is fixed or contingent and
(vi) the nature of relationship with the client

CA - Must not be unconscionable or illegal

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11
Q

General Fee Agreements

A

General fee agreements need NOT be in writing.

In California, general fee agreements exceeding $1,000 must be in writing and signed by both parties unless

(i) the client is a corporation
(ii) the client provides a written waiver of the writing
(iii) the services were provided in an emergency to prevent foreseeable prejudice to the client or
(iv) the fee is implied based on previous similar services provided by the lawyer to the client

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12
Q

California - Contents of Fee Agreement

A

In California, a fee agreement must include the

  1. basis of compensation
  2. general nature of the legal services provided, and
  3. responsibilities of the lawyer and the client
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13
Q

Contingent Fees

A

A contingent fee is an agreement that the lawyer’s fee will be contingent upon the outcome of the case. Contingent fee agreements must be

(1) in a writing signed (ABA- by the client) (CA - by both client and lawyer)
(2) include the method by which the fee is to be determined and
(3) clearly notify the client of the fees for which he is liable

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14
Q

Limitation on Contingent Fees

A

Contingent fees are prohibited in (i) criminal cases and (ii) domestic relations matters

In California, contingent fee agreements are allowed in domestic relations matters if the fee is not contingent upon securing a divorce or the amount of spousal or child support received.

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15
Q

Division of Fees -

Lawyers at the Same Firm

A

Generally, a lawyers who work at the same firm may share fees.

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16
Q

Division of Fees -

Lawyers at Different Firms

A

Lawyers who do not work in the same firm cannot split fees unless

(1) the client consents to the division of fees in writing
(2) the total fee is reasonable
(3) the division is proportionate to the services performed by each lawyer or each lawyer is jointly responsible for the representation.

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17
Q

Division of Fees - Non-Lawyers

A

Generally, lawyers are prohibited from

(i) sharing legal fees with a non-lawyer or (ii) forming a partnership with a non-lawyer if any of the partnership actives involve the practice of law.

Exceptions include (i) an agreement to distribute fees to the lawyer’s estate or specified individuals after the lawyer’s death, (ii) an agreed upon purchase price for the practice of a deceased, disabled, or disappeared lawyer, (iii) fees to non-lawyer employees through a compensation or retirement plan, and (iv) court-awarded legal fees shared with a nonprofit organization that employed, retained, or recommended the lawyer.

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18
Q

Referral Fees

A

Generally, a lawyer is prohibited from compensating, giving, or promising anything of value to a person for recommending the lawyer’s services

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19
Q

Referral Fees - California

A

In California, a lawyer is allowed to give a gift or gratuity to a person for a recommendation that resulted in his employment as long as the gift was not offered in consideration of an agreement that

(i) the referral would be expected or (ii) that the person would make future referrals.

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20
Q

Reciprocal Referral Agreements

A

Reciprocal referral agreements are ALLOWED if they are

(1) not exclusive
(2) the client is aware of the existence and nature of the agreement

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21
Q

Duty to Safeguard Client’s Money

A

A lawyer MAY NOT commingle funds and must put any money he receives in connection with the client’s representation in a separate client trust account, which is maintained in the state where the lawyer’s office is located, or elsewhere with the consent of the client or third person.

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22
Q

Dispute over Funds

A

In the event of a dispute over funds, the disputed portion shall be kept separately by the lawyer until the dispute is resolved

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23
Q

Duty to Safeguard Client’s Property

A

Property of the client within the lawyer’s possession shall be identified, kept separately from that of the lawyer, and appropriately safeguarded

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24
Q

Record keeping

A

Complete records of account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation

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25
Q

Lawyer-Client Privilege

A

Under the lawyer client privilege, communications between a lawyer and his client related to the representation are protected if

(1) the client intended for the communication to be confidential, and
(2) the communication is for the purpose of obtaining legal advice.

The privilege may be asserted by the lawyer on his client’s behalf, but is waivable only by the client, who is the holder of the privilege.

ABA - lasts indefinitely

CA - ends when the client’s estate has been fully distributed and the personal representative has been discharged.

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26
Q

Lawyer-Client Privilege Exceptions

A

The lawyer-client privilege does not apply if

(i) the client’s objective in securing the lawyer’s services is to engage in future crime or fraud
(ii) the communication is relevant to an issue in a malpractice action against the lawyer, or
(iii) in a civil litigation between former joint clients of the lawyer

(in CA - AND the lawyer reasonably believes that disclosure is necessary to prevent a criminal act that is likely to result in death or substantial bodily harm)

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27
Q

Work Product - Qualified Immunity

A

Documents prepared by the lawyer in anticipation of litigation are not discoverable unless the other party can demonstrate

(1) a substantial need for the documents and
(2) they are unable to get the information without undue hardship

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28
Q

Work Product - Absolute Immunity

A

A lawyer’s mental impressions, research, conclusions, theories, and opinions are not discoverable unless immunity is waived.

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29
Q

Duty of Confidentiality

A

A lawyer is prohibited from revealing any information about the representation of the client unless

(i) the client gives informed consent or
(ii) the disclosure is impliedly authorized in order to fulfill the representation.

A lawyer MAY reveal information about the representation of a client

(i) if disclosure is required by court order,
(ii) to prevent reasonably certain death or substantial bodily harm (only this in CA)
(iii) to prevent the client from committing a crime that Is so reasonably certain to result in substantial injury to the financial or property interests of another or to mitigate such injury,
(iv) to secure legal advice about the lawyer’s compliance with rule of ethics, or
(v) to establish a claim or defense in an action between the lawyer and client

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30
Q

Duty To Communicate

A

A lawyer is required to

(i) keep the client reasonably informed about the status of the matter
(ii) provide prompt responses to the client’s request for information
(iii) promptly inform the client about situations where the client’s informed consent is necessary, and
(iv) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the ethics rules or other law

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31
Q

Duty of Competence

A

A lawyer is required to provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

In California, a lawyer shall not intentionally, recklessly, with gross negligence or repeatedly fail to perform legal services with competence

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32
Q

Duty of Competence Emergency Exception

A

In an emergency, a lawyer is allowed to provide assistance even if he does not have the requisite competence in the matter if referring or consulting with another lawyer would be impractical.

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33
Q

Lack of Competence

A

If a lawyer lacks competent he must,

(i) associate with reasonably competent counsel
(ii) learn through preparation and study prior to performance or
(iii) decline or withdraw from representation.

34
Q

Duty of Diligence

A

In representing a client, a lawyer is required to act with reasonable diligence, promptness, and pursue the matter to resolution.

In California, a lawyer shall not intentionally, repeatedly, reckless, or with gross negligence fail to act with reasonable diligence in representing a client.

35
Q

Duty of Loyalty

A

A lawyer owes his client the fiduciary duty of loyalty to act in the best interest of the client and to avoid engaging in self-dealing and conflicts of interest.

36
Q

Conflicting Interests

Current Clients

A

A lawyer is prohibited from representing a client whose interests are directly adverse to another client or if there is a significant risk that the representation will be materially limited by his responsibilities to another client, a former client, or a third party UNLESS

(i) the lawyer reasonably believes that he will be able to provide competent and diligent representation to the respective clients
(2) the representation is not prohibited by law
(3) the lawyer is not representing adversaries of the same litigation or other proceeding, and
(4) each client gives [CA - informed written consent/ABA - informed consent, confirmed in writing]

37
Q

Aggregate Settlements Between Co-Clients

A

A lawyer who represents multiple parties in a case is required to get informed written consent from each client before entering into an aggregate settlement.

38
Q

Conflicting Interests

Former Clients of Lawyer

A

A lawyer is prohibited from representing a new client in the same or substantially related matter of the former client if the new client’s interests are materially adverse to the interests of the former client unless the client gives informed consent, confirmed in writing

39
Q

Conflicting Interests

Former Clients of Lawyer’s Law Firm

A

A lawyer is prohibited from

(i) representing a client whose interests are materially adverse to those of a former client of the lawyer’s law firm in the same or substantially related matter or
(ii) using or revealing information relating to the representation to the former client’s disadvantage unless the former client gives informed consent, confirmed in writing

40
Q

Conflicting Interests

Former Government Employees

A

A lawyer who formerly served as a public officer or government employee is prohibited from representing a client in connection with a matter in which the lawyer participated, personally and substantially, as a public officer or government employee unless the government agency gives informed consent, confirmed in writing

41
Q

Conflicting Interest

Prospective Client

A

A lawyer is prohibited from representing a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information form the prospective client that could be significantly harmful in the matter, unless

(i) both the client and prospective client give informed written consent or
(ii) if 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, was timely screened from any participation in the matter and received no share of the fee, and promptly gave written notice to the prospective client.

42
Q

Organizational Client

A

A lawyer who is employed or retained by an organization represents the organization acting thought its duly authorized constituents and is required to act in the best interests of the organization

43
Q

Organizational Client

Dual Representation

A

A lawyer can concurrently represent an organization and its officers, directors, members, shareholders, and other constituents as long as

(1) the conflict of interest rules are satisfied and
(2) the lawyer gets consent for the representation by an official from the organization other than the person represented, or by the shareholders

44
Q

Organizational Client

Reporting Misconduct

A

A lawyer is required to report the actions of officers, employees or other constituents to a higher authority within the organization if the lawyer knows that the actions

  1. are likely to cause substantial harm to the organization and
  2. violate a law or legal obligation, unless the lawyer reasonably believes that it would not be in the best interest of the organization to do so

ABA - Can report to outside authority if org fails to act and violation will cause substantial injury to the org.

CA - PROHIBITED from reporting violation to outside authority

45
Q

Business Transactions with Clients

A

Business transactions between a lawyer and his client are allowed only when

(1) the terms are fair and fully disclosed in writing in a manner that the client can reasonably understand,
(2) the client is advised in writing to consult with independent counsel and is given a reasonable opportunity to do so, and
(3) the client gives informed consent, in a writing signed by the client

46
Q

Sexual Relations

A

A lawyer is prohibited from having sexual relations with a client unless a consensual sexual relationship existed prior to the formation of the lawyer client relationship

47
Q

Proprietary Interest in Cause of Action

A

A lawyer must not obtain a proprietary interest in a cause of action or subject matter of litigation except that the lawyer can

(i) obtain a lien authorized by law to secure the lawyer’s fees or expenses, or
(ii) contract with a client for a reasonable contingency fee in a civil case

48
Q

Literary or Media Rights

A

A lawyer is prohibited form making or negotiating an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation before the representation has concluded

(no such law exists in CA)

49
Q

Solicited Gifts

A

A lawyer cannot solicit a substantial gift, including a testamentary gift, from a client or prepare an instrument giving a substantial gift to the lawyer or the lawyer’s relative unless the lawyer or the recipient of the gift is related to the client

(or the client is advised by independent counsel - CA)

50
Q

Providing Financial Assistance

A

A lawyer must not provide financial assistance to a client unless

(i) the lawyer is advancing court costs and litigation expenses, the repayment of which may be contingent on the outcome of the matter,
(ii) the lawyer is advancing court costs and litigation expenses for an indigent client, or
(iii) the lawyer is representing an indigent client pro bono

51
Q

Third-Party Compensation to a Lawyer

A

A lawyer must not accept third-party compensation on behalf of the client unless

(1) the client gives informed consent/(CA - informed written consent)
(2) there is no interference with the lawyer’s professional judgment, and
(3) information relating to the representation of the client is protected.

52
Q

Malpractice Liability

A

ABA - A lawyer may not contract to prospectively limit malpractice liability unless the client is independently represented in making the agreement

CA- prohibited

53
Q

Settling a Malpractice Claim

A

A lawyer may not settle a claim for malpractice liability unless

(1) the client is advised, in writing, to seek the advice of independent counsel, and
(2) is given the reasonable opportunity to do so

54
Q

Opposing Lawyers Related

A

Lawyers who are related may not represent opposing parties in the same matter unless each client provides informed consent.

55
Q

Lawyer as Witness

A

A lawyer cannot represent a client in a matter in which the lawyer is likely to be a necessary witness unless

(i) the testimony relates to an uncontested issue
(ii) the testimony relates to the nature or value of legal services rendered in the case or
(iii) disqualification of the lawyer would result in a substantial hardship to the client

(CA - or the client provides informed written consent)

56
Q

Imputed Disqualification

A

A conflict of interest as to one lawyer is imputed onto the entire law firm and results in the entire firm being disqualified from representing the client unless

(i) the conflict is personal in nature and does not present a significant risk that the representation will be materially limited, or
(ii) the conflict relates to a former client of the lawyer’s prior law firm and the lawyer is timely screened from participation in the matter and written notice is provided to the former client. The client may waive imputed disqualification with informed [written] consent, [confirmed in writing].

57
Q

Duty of Candor to the Court

A

A lawyer must not knowingly

(i) make a false statement of law or fact to the court of fail to correct a false statement of law or fact that he previously made to the court

(ii) fail to disclose to the court legal authority in the controlling jurisdiction that is adverse to his client’s position or

(iii) offer false evidence

58
Q

Duty to Avoid Frivolous Claims

A

A lawyer is prohibited from filing frivolous claims and defenses including claims or defenses

(i) lacking bases in law or fact

(ii) filed with no other substantial purpose other than to embarrass, delay, or burden a third party and

(iii) that cannot be supported by a good faith argument

59
Q

Duty to Expedite Litigation

A

A lawyer is required to make reasonable efforts to expedite litigation in accordance with the interests of the client.

60
Q

Discovery

A

A lawyer is prohibited from making frivolous discovery requests or failing to reasonably comply with legally proper discovery requests made by opposing counsel

61
Q

Access to Evidence

A

A lawyer must not unlawfully obstruct another party’s access to evidence or alter, destroy, or conceal documents and other material that has evidentiary value.

62
Q

False Evidence

A

A lawyer must not

i. falsify evidence

ii. counsel or assist a witness to give false testimony, or

iii. unlawfully offer an inducement to a witness

If a lawyer, his client, or his witness has offered material evidence and the lawyer comes to know of its falsity, the lawyer must take reasonable remedial measures, including, if necessary, disclosure to the court.

63
Q

Evidence - Criminal Defendants

A

A lawyer cannot prohibit a criminal defendant from testifying on his now behalf even if he knows that the witness will testify falsely.

However, the lawyer must take reasonable remedial measures. (dissuade or withdraw)

64
Q

Learning of Falsity After the Fact

A

If a lawyer learns of false testimony or evidence after the fact, the lawyer must take reasonable remedial measures.

Dissuade, and if unsuccessful, withdraw.

if withdrawal is not permitted, must make disclosure other court as is reasonably necessary

(CA - but may not disclose confidential client information)

65
Q

Ex Parte Communications

A

A lawyer must not seek to influence or communicate ex parte with jurors, prospective jurors, a judge, or other court officials.

66
Q

Payments to Witness

A

Lay Witness - a lawyer may pay lay witness for reasonable costs incurred as a result of testifying

Expert Witness - a lawyer may pay according to the expert’s fee schedule and other reasonable costs but may not provide a contingency fee based on the outcome of the case.

67
Q

Communications with Represented Parties

A

A lawyer cannot communicate with persons whom he knows are represented by another lawyer unless

(i) that party’s lawyer has consented to the communication, or
(ii) the communication is authorized by law or court order

68
Q

Trial Publicity

A

A lawyer who is participating in an investigation or litigation must not make an out-of-court statement that he knows or reasonably should know will be publicly distributed and will have a substantial likelihood of materially prejudicing the court proceeding.

69
Q

Trial Publicity Exceptions

A
  1. Making statements to protect a client from the prejudice of publicity that was not initiated by the lawyer or client
  2. stating the claim, offense, defense, or, except when prohibited by law, the persons involved,
  3. sharing information in public record
  4. stating that an investigation is in progress
  5. requesting assistance in obtaining evidence and
  6. statements regarding those involved in criminal cases
70
Q

California - Threats

A

In California, a lawyer cannot attempt to obtain an advantage in a civil case by threatening to present criminal, administrative, or disciplinary charges

71
Q

Special Responsibilities of Prosecutors

A

Prosecutors must

i. refrain from proceeding with a case that is unsupported by probable cause
ii. make reasonable efforts to assure that the accused has been advised to obtain counsel and given the opportunity to do so
iii. not pursue a waiver of important pretrial rights from an unrepresented accused,
iv. make timely disclosure of all exculpatory evidence, and
v. refrain from making out-of-court statements that are substantially likely to heighten public condemnation of the accused.

72
Q

Lawyer’s Responsibility to Non-Lawyers Within the Firm

Duty of Supervision

A

A lawyer having direct supervisory authority over a non-lawyer will be responsible for the non-lawyer’s conduct had the conduct constituted a violation of the ethic’s rules if committed by a lawyer if:

(i) the lawyer ordered or ratified the conduct or

(ii) is a partner at the firm or directly supervised the non-lawyer and could have mitigated the consequences but failed to do so

73
Q

California - Employment of Disbarred, Suspended, Resigned, or Involuntarily Inactive Lawyer

A

In California, a lawyer must not employ, associate in practice with, or assist a person the lawyer knows or reasonably should know is a member who is disbarred, suspended, resigned, or involuntarily inactive.

Exceptions - to perform research, drafting, or clerical duties, after servicing written notice of the employment to the State Bar

74
Q

Professional Misconduct of Lawyer

A

It is professional misconduct for a lawyer to

i. violate the ethics rules

ii. commit a crime that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer

iii. engage in conduct that is dishonest or fraudulent

iv. engage in conduct that is prejudicial to the administration of justice

v. state or imply an ability to improperly influence a government agency or official

vi. knowingly assist a judge or a judicial officer in conduct that the lawyer knows is a violation of the ethics rules or other law,

vii. engage in conduct that the lawyer knows or reasonably should now is harassment or discrimination.

75
Q

Reporting Professional Misconduct

A

A lawyer is required to report misconduct to the appropriate authority when the lawyer knows that another lawyer or judge has violated the ethics rules in a manner that raises a substantial question about that person’s honesty, trustworthiness, or fitness as a lawyer or a judge.

76
Q

Unauthorized Practice of Law

A

A lawyer must not practice law in a state in which he is not licensed and must not assist another in doing so.

However, a lawyer may be permitted to temporarily practice in a jurisdiction under the following circumstances:

(i) pro hac vice or (ii) in association with a lawyer licensed in the jurisdiction.

77
Q

Truth in Communication

A

A lawyer is prohibited from making false or materially misleading communication about himself or his services

78
Q

Contents of Ad

A

A lawyer can advertise his services through any form of media as long as

(1) the advertisement provides the name and contact information for at least one lawyer or law firm responsible for its content, and
(2) if the lawyer states or implies he is certified as a specialist in a particular area of law, he has indeed been been certified, and he clearly identifies the certifying organization

(In CA - must have the word Advertisement, unless it is apparent from the context that the communication is an advertisement)

79
Q

Direct Solicitation of Clients Prohibited

A

When the lawyer’s significant motive is monetary gain, he is prohibited from soliciting prospective clients through live person-to-person contact, unless the prospective client is

i. a lawyer
ii. a person with a familial, close, or professional relationship with the lawyer or law firm, or
iii. a person who routinely uses the type of legal services offered by the lawyer for business purposes

80
Q

Targeted Mailings, Recordings, or Ads

A

If a lawyer is soliciting employment from a person who he knows is in need of legal services, every written, recorded, or electronic communication must include the word “Advertisement” on the outside envelope and at the beginning and ending of any recorded or electronic communication, unless it is apparent from the context that the communication is an advertisement.

81
Q

Limitation of Soliciting Prospective Clients

A

A lawyer must not solicit employment if

(i) the prospective client has communicated a desire not to be solicited or
(ii) the solicitation involves coercion, duress, or harassment

PROFESSIONAL RESPONSIBILITY RULE STATEMENTS (1 decks)

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