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Professional Responsibility > PR > Flashcards

PR Flashcards

1
Q

What are the two prohibited objectives of employment?

A

lawyer cannot represent when objective is:
1) no PC + acting for the purpose of harassing or maliciously injuring a person
2) presenting claim/defense that is not warranted under existing law UNLESS good faith basis for modification or reversal

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2
Q

When does the lawyer-client relationship begin?

A

the lawyer-client relationship begins when CLIENT reasonably believes the relationship exists (no formal writing required)

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3
Q

When does a lawyer have a duty to reject representation?

A

duty to reject:
1) if representation would violate an ethical rule or
2) if lawyer’s physical/mental condition materially impairs his ability to represent the client

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4
Q

What are the decisions reserved for the client?

A
  • objectives and goals of representation
  • acceptance of settlement
    1) MR: lawyer must communicate all settlement offer to client and client must make the final decision to accept
    2) CA: lawyer must communicate all written settlement offers or an oral offer in a civil matter if it is a significant development
  • testifying in criminal case
  • waiving rights to trial by jury (or other fundamental rights)
  • entering a plea
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5
Q

What are the decisions reserved for the lawyer?

A
  • procedural tactics - strategy/methods for acheiving client’s goals
  • L can limit scope of representation if it is reasonable under the circumstances, not otherwise prohibited by law, and C gives informed consent
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6
Q

Prohibition on counseling crimes or fraud

A
  • lawyer must not counsel or assit client in crime/fraud
  • if client currently engaged in crime/fraud –> attorney must stop assisting client and withdraw from representation
  • CA: L prohibited from assiting C in conduct L knows is a violation of any law, rule, or ruling of a tribunal
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7
Q

Mandatory withdrawal

A
  • resulting violation: L must withdraw if failure to withdraw would result in violation of:
    MR: violation of any law
    CA: an ethical rule
  • lawyer’s health
    MR: L’s physical or mental condition materially impairs ability to represent
    CA: L’s physical condition renders it unreasonably difficult to carry out the representation effectively
  • fired by client: C has absolute right to discharge L
  • CA: client’s bad faith - L KSK client making a client without PC and to harrass or maliciously injure
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8
Q

Permissive withdrawal

A

MR only: L can always withdraw if no harm to client
MR + CA - when acceptable even with harm:
- reasonable belief that C actions are crime/fraud
- C used L’s services to perpetrate a crime/fraud
- C fails substantially to fulfill an obligation regarding L’s services (e.g. paying L’s fees)
- C makes representation unreasonably difficult
- other good cause
MR - when acceptable even with harm:
- repugnant or has a fundamental disagreement with C’s course of conduct
- representation causes unreasonable financial burden
CA - when acceptable even with harm:
* C knowingly and freely assents
* inability to work with co-counsel
* L’s mental/physical condition
* con’t rep will violate CA rules

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9
Q

duties upon termination of the lawyer-client relationship

A
  • L give reasonable notice and time to find other L
  • take reasonable measure to minimize harm to C
  • return client papers and property
    MR: L can retain papers for security for fee
    CA: L must return papers regardless of fee payment
  • returning fees: recover fees for the value of services rendered but must return any unearned fees. may keep true retainer fee paid to ensure the lawyer’s availability.
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10
Q

What are the rules governing the fee amount a lawyer can charge?

A

MR: L may not charge an unreasonable fee (stricter)
CA: L may not charge an unconscionable fee (lenient)
MR + CA factors:
* difficulty of the case (time, labor, novelty, skill necessary)
* preclusion of other employment
* type of fee arrangement,
* L’s expertise
MR only: customary fee for similar services in the locality
CA only:
* L engage in fraud or overreaching
* L failed to disclose material facts
* relative sophistication of L and C
* proportion of fee and services
* informed consent

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11
Q

When must a fee arrangement be in writing? What must be in writing?

A
  • CA only
  • total expenses + attorneys fees exceed $1000 or contingent fee
  • requirements: in writing, contains basis of compensation, nature of legal services, contractual responsibilities, signed by both parties, copy of signed K given to client
  • exceptions (never apply to contingent fee): corporation, C waives written K after full disclosure, fee implied by previous Ks, emergency
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12
Q

Contingent fees: when prohibited, requirements

A

Prohibited in:
* criminal cases
* domestic relation cases when fee contingent on obtaining a divorce or on the amount of support recovered
Requirements:
MR: in writing, signed by C, fee calculation method, details of calculations for expense deductions
CA: in writing, signed by C and L, contingency fee rate, disbursements/costs will affect contingency fee, extent to which C must compensate L for matters not covered in the contract, state that the fee is negotiable if not covered by the med malpractice fee limits
failure to comply –> K voidable by C (L may collect reasonable fee)

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13
Q

What is the rule for fee splitting with a lawyer not in the same firm?

A

General: L may share fees with another L if the client consents in writing after disclosure of the terms of the agreement AND total fee not increased due to fee splitting.
MR: fee must be in proportion to the services of each lawyer UNLESS each lawyer assumes joint responsibility
CA:** lawyers must enter into a written agreement** at or about the time of the client’s consent and provide full written disclosure that includes the identity of the lawyers. Fee split allowed even if referring lawyer performs no work.

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14
Q

What is the rule for fee splitting with a non-lawyer?

A

Lawyer CANNOT share fees with non-lawyer, subject to limited exceptions (e.g. law firm staff).

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15
Q

Are pure referral fees permitted? What are the requirements for reciprocal referral agreements?

A
  • MR: lawyer may not give anything of value for recommending the lawyer
  • CA: a lawyer may give a gift or gratuity for a referral, provided that the gift was not offered as a quid pro quo
  • CA: L can pay prescription fee for a referral service
  • reciprocal referral agreements: cannot be exclusive, client must be informed of existence/nature of the agreement, must not be of indefinite duration
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16
Q

What are the rules governing client fund accounts?

A
  • all client funds must be deposited into identifiable bank accounts labeled “trust account” “client fund account” etc.
  • no commingling between L and C funds
  • dispute over funds –> distribute undisputed funds to C and keep rest in client trust account
  • recordkeeping - account records for 5 years
  • notice and delivery: MR - prompt notice and delivery; CA notice w/in 14 days / rebuttable presumption of violation if delivery not in 45 days absent good cause
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17
Q

lawyer-client privilege: definition, duration, exceptions

A

Rule: confidential communications between C and L are privileged
* C intends for communication to be confidential
* communication for the purpose of seeking legal advice
C holds the privilege, L must assert privilege on C’s behalf
Duration
* MR: indefinite, survives C’s death
* CA: terminates when C’s estate settled
EXCEPTIONS:
* future crime/fraud: MR - client only; CA: anyone
* disputes between L and C or co-Cs
* necessary to prevent crime that would result in substantial bodily injury or death

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18
Q

work product

A
  • work product = material created by the attorney in anticipation of litigation
  • L impressions, conclusions, opinions = NOT discoverable
  • other info = undiscoverable unless denial would unfairly prejudice the other party
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19
Q

Confidentiality

A
  • Rule: L prohibited from disclosing any info relating to the representation of a client unless the disclosure is authorized by informed consent of the client or impliedly authorized in order to carry out the representation
  • reasonable precautions to safeguard confidential info from inadvertent/unauthorized disclosure
  • EXCEPTION: death or substantial bodily harm (caused by third party or C)
  • MR: may disclose to prevent reasonably certain death/bodily harm
  • CA: good faith effort to persuade C not to commit criminal act + inform of ability to disclose –> may disclose to prevent criminal act reasonably believed to cause death/substantial bodily harm
  • MR only EXCEPTION: may disclose if reasoable belief prevent ** substantial financial harm** and client used/is using L’s services
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20
Q

duty of confidentiality owed to prospective clients

A

L cannot use info learned during a consultation, even if no attorney-client relationship is formed, limited exceptions

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21
Q

Attorney-client conflict

A

Rule: L must not represent C if representation may be materially limited by the lawyer’s own interests, unless:
* - L reasonably (subjectively and objectively) believes he can provide competent and diligent representation
* - not prohibited by law
* - affected client gives informed consent, confirmed in writing
* L’s own interests - friends, family, membership on committee
* - opposing lawyers related
* - sexual relations with client
* - lawyer as a witness
* - acquiring an interest in the litigation
* - financial assistance to client

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22
Q

Opposing lawyers related

A
  • type of lawyer-client conflict
  • MR: L related to another L may not represent a C in a matter in which the other L is representing another party, unless each client consents
  • CA: L not permitted to represent C in matter in which L knows or reasonably should know that the other party’s lawyer is a relative, lives with the lawyer, is a client of the lawyer, or has an intimate personal relationship w the L, unless L first informs the client in writing of the relationship
23
Q

Sexual Relations

A
  • type of lawyer-client conflict
  • Prohibits sexual relations between L and C UNLESS a consensual sexual relationship already existed when the attorney client relationship began
  • Client cannot waive this conflict
24
Q

Lawyer as a witness

A
  • type of lawyer-client conflict
    Rule: L not permitted to act as an advocate at a trial in which L is likely to be a necessary witness UNLESS
  • testimony relates to a uncontested issue or
  • Testimony relates to the nature and value of legal services rendered in the case or
  • MR only: disqualification of L would cause substantial hardship on the client or
  • CA only: L has obtained the client’s informed written consent
25
Q

Acquiring an interest in the litigation

A
  • type of lawyer-client conflict
    MR only: L must not obtain a proprietary interest in the cause of action or subject matter of the litigation in which she represents a client UNLESS:
  • lien by law to secure payment of a fee OR
  • Reasonable contingency fee (so long as not criminal or domestic relations matter)
26
Q

Financial Assistance to Client

A
  • type of lawyer-client conflict
  • see note
27
Q

Entering into Business Transactions with a client

A
    • type of lawyer-client conflict
      Rule: L must not enter into a business transaction with a client or knowingly acquire an adverse interest to the client, UNLESS:
  • terms are fully disclosed in writing
  • Terms are fair and reasonable
  • Client understands terms
  • Client consents in writing and
  • Client is encouraged to seek independent counsel and given opportunity to do so
28
Q

Agreement to limit malpractice recovery

A
  • type of conflict of interest
  • Rule: L prohibited from making an agreement prospectively limiting malpractice liability to a client (stricter)
  • MR only: unless C represented by another independent lawyer in making the agreement
29
Q

Conflicting Interests Between Current Clients

A

Rule: L must not represent C if:
* doing so would be directly adverse to the interests of another current client OR
* there is a significant risk that the representation of the client will be materially limited by the lawyer’s responsibilities to the current client, UNLESS
- 1) L reasonably (subjectively and objectively) believes he can provide competent and diligent representation
- 2) representation not prohibited by law
- 3) not representation of parties on both sides of the same litigation
- 4) MR: each affected client gives informed consent, confirmed in writing
- 5) CA: each affected client gives informed written consent (disclosures must also be in writing)

30
Q

Current and former client conflict

A

Rule: L who previously represented a client must not later represent another person in the same or substantially similar matter if that person’s interests are materially adverse to the former client’s interests unless:
* Substantially related matter means: 1) Same transaction/dispute OR 2) involves substantial risk that confidential factual info from prior representation will advance the new client’s position
* MR: former client gives informed consent confirmed in writing
* CA: former client gives informed written consent

31
Q

Prospective client conflict

A

Rule: L cannot represent C with interests materially adverse to those of a prospective C in the same or substantially related matter if L received info (CA: material info) from prospective client that could be significantly harmful (CA: not required) to the prospective client unless both clients give:
- MR: informed consent, confirmed in writing
- CA: informed written consent

32
Q

Conflicts of interest: influence by persons other than the client - what are the 2 types?

A
  • payment from a third party
  • Organizations as clients
33
Q

Payment of a third party

A
  • conflict of interest
    Rule: L may not accept payment from a third party for representation UNLESS
  • MR: C gives informed consent
  • CA: informed written consent
  • There is no interference with the lawyer’s judgment and
  • Lawyer client confidentiality is preserved
34
Q

Organizations as clients

A
  • conflict of interest
  • L owes duties of loyalty and confidentiality to organization, not individual constituents
  • L can represent organization + constituents, as long as there is no conflict
  • When speaking with organization’s constituents, L must make clear who L is representing when it becomes apparent the organization’s interests are/may become adverse to the constituent
  • Organizational misconduct: upon learning of an action by a person associated with the organization that will likely cause substantial injury to the organization, the lawyer must proceed as reasonably necessary in the best interest of the organization
  • Reporting within the organization: L must report the matter to a higher authority in the organization unless it is not in the best interest of the organization. CA: must not reveal any client confidential info
  • Reporting outside of the organization: MR: L may reveal info to outside authorities to extent necessary to prevent injury if 1) L reports to highest authority, 2) authority refuses or fails to act in a timely manner, 3) the misconduct is a clear violation of law, and 4) L reasonably believes violation is reasonably certain to cause substantial injury to the organization. CA: L CANNOT reveal confidential info unless death or substantial harm exception applies
35
Q

Competence

A
  • MR: L is obligated to provide competent representation to a client and must possess the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation
  • CA: L must not intentionally, recklessly, with gross negligence, or repeatedly fail to perform legal services with competence.
  • L may accept representation if competence can be achieved by reasonable preparation or association with another lawyer who has competence in the field
36
Q

Diligence

A
  • MR: L must act with reasonable diligence and promptness in representing a client.
  • CA: L must not intentionally, repeatedly, recklessly, or with gross negligence fail to act with reasonable diligence in representing a client.
37
Q

Avoiding improper influence

A

Rule: L must not seek to influence a judge, juror, prospective juror, or other official by means prohibited by law

38
Q

Conduct in the course of litigation - what duties are owed?

A
  • duty to avoid frivolous claims
  • Duty of candor to the tribunal
  • Duty of fairness to opposing party/counsel
39
Q

Duty to avoid frivolous claims

A
  • general: L prohibited from asserting or defending an action or issue unless there is a basis in law or fact or good faith argument for extension, modification, or reversal of existing law
  • MR: claim brought to embarrass, delay, or burden a third person is a violation of the rules.
  • CA: L must not represent client without probable cause and for the purpose of harassing or maliciously injuring any person.
40
Q

Duty of candor to the tribunal

A
  • L must not knowingly make a false statement of law or fact to the court.
  • L is required to correct a false statement of law or fact previously made.
41
Q

Duty of fairness to opposing party/counsel

A

Evidence: L must not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy, or hide a document/material, or assist another person in doing so
Witnesses
- L must not request that a witness refrain from speaking to another party
- L may pay non-expert witness reasonable expenses related to testifying
- An expert witness may be paid reasonable rate and compensated for reasonable expenses
- CA only: L may not pay / offer to pay a witness contingent on their testimony or the outcome of the case, but L may advance witness expenses and expert witness fees

42
Q

Client fraud and perjury by a client witness

A

False evidence: L prohibited from knowingly offering false evidence and may refuse to submit evidence that she reasonably believes is false
If L learns about false evidence after it has been presented, L must take reasonable remedial measures
- urge client to correct false statement/evidence and if client refuses withdraw from representation
- MR: if withdrawal not allowed, disclose the false evidence to the court, even if confidential information
- CA: if withdrawal not allowed, L MAY NOT disclose confidential info to the court
- L should not re-state or ratify false evidence by referencing it during a close argument

Criminal defendants:
- L can only refuse to offer D’s testimony if he knows that it is false (reasonable belief not enough)
- If knows testimony is false —> L must urge the client to correct the false statement evidence —> MR: if refuse must withdraw, CA: if refuse withdrawal optional —> if withdrawal denied MR: must disclose to court, CA: question until point of falsehood then allow narrative

43
Q

communication with clients

A
  • L have a duty to regularly communicate with clients, which includes informing them about their case and answering questions
  • Lawyer must communicate a settlement offer to a client
44
Q

Communication with jurors

A

L not permitted to communicate with jurors outside of court or during proceeding

45
Q

Communication with persons represented by counsel

A
  • L not permitted to communicate about the subject of the representation with a person the L knows to be represented by another lawyer without consent
  • If represented person contacts L, L must terminate the communication upon learning that the person is represented
46
Q

Communications with organizations represented by counsel

A
  • L prohibited from communicating with a constituent of the organization
  • Consent not required to communicate with a former constituent
47
Q

Communication with persons unrepresented by counsel

A
  • L must not give legal advice and must make clear who he represents
  • L may negotiate terms of a transaction or settlement agreement with an unrepresented person
48
Q

Trial publicity

A
  • L not permitted to make an out of court statement that he knows/should know will be distributed publicly and will have a substantial likelihood of materially prejudicing the court proceeding
  • General facts (claims, identities of the parties) can be discussed publicly
  • L may make a statement to protect C from prejudicial effect of publicity that was not initiated by the attorney or client
  • Criminal trials —> out of court statements are more likely to be prejudicial
49
Q

Special prosecutor duties

A
  • must not prosecute charge he knows is not supported by probable cause
  • Required to timely disclose exculpatory evidence + info that tends to disprove guilt or mitigates the offenses
  • Must disclose new, credible evidence creating a likelihood that convicted D did not commit the offense
50
Q

Advertising

A

L must not make false or materially misleading statements about himself or his services
ad requirements:
- Name and address of attorney
- can state specialize in an area of law
- Cannot state or imply she is certified specialist in an area of law unless she is

51
Q

Soliciation

A
  • solicitations: narrower, targeted communications directed at groups identified as requiring a specific service
  • Solicitation by live telephone, real time electronic contact is prohibited when a significant motive is the lawyers pecuniary gain, unless the person contacted is: 1) a lawyer, 2) a family member, 3) close personal friend, or 4) has prior professional relationship with soliciting lawyer
52
Q

Reporting misconduct

A
  • MR: if L has actual knowledge —> L must report misconduct by another attorney (relating to honesty or professional fitness)
  • CA: don’t have to report other’s misconduct
53
Q

Unauthorized practice of law

A
  • L subject to discipline for practicing in jurisdiction in which he is not admitted
  • L subject to discipline for assisting non-lawyers in the unlicensed practice of law

Professional Responsibility (1 decks)

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