PR Flashcards
Like trustees, lawyers owe their clients fiduciary duties of
scrupulous good faith, candor, and care in the management of the beneficiary’s interests.
the lawyer’s duty of loyalty to clients is the
bedrock of the attorney-client relationship.
As a general matter, a conflict of interest exists when
a lawyer’s “representation of a client will be materially limited by the lawyer’s … personal interests.” Va. Rule 1.7(a)(2).
A lawyer must not represent a client if the representation may be materially limited by the lawyer’s own interests, unless:
(1) the lawyer reasonably believes that he or she will be able to provide competent and diligent representation to the affected client; (2) the representation is not prohibited by law; and (3) the affected client gives consent after consultation.
A lawyer is prohibited from drafting a document that makes a substantial gift to
the lawyer or the lawyer’s close relatives. This restriction does not apply when the donee is related to the donor. Va. Rule 1.8(c).
A statement must be both
false and material for it to subject the lawyer to discipline.
Lawyers are prohibited from making statements that are fraudulent or remaining silent when
the statement or silence would amount to fraud under applicable tort principles.
As a general rule, a lawyer is not civilly liable for wrongful or negligent lawyering activity to those
outside the lawyer-client relationship.
when a lawyer’s work for a client is intended to benefit a third person, the lawyer owes a duty of care to
that third person.
A lawyer may not communicate with an opposing party who is represented by counsel without counsel’s consent when
the communication concerns a subject for which the lawyer is representing a client.
If the opposing party is an organization, the prohibition on communicating applies to employees who
supervise, direct, or regularly consult with the organization’s lawyer regarding the subject matter of the representation.
prohibition on communication with opposing party corporation does not apply to individuals who are
former employees or agents of the organization.
although a lawyer is not prohibited from communicating with unrepresented persons who are involved in a client’s matter, a lawyer is under an affirmative obligation to refrain from
stating or implying that the lawyer is disinterested in the matter about which the lawyer is communicating.
Under the Virginia Rules of Professional Conduct, a lawyer owes a duty of confidentiality to a client that generally prohibits
the disclosure of information communicated in confidence to the lawyer.
when a lawyer knows that a client has committed perjury by lying under oath, the lawyer has a duty to
take remedial measures.
The first remedial measure to take when a lawyer knows his client has committed perjury under oath is:
the lawyer should attempt to persuade the client to rectify the matter by revealing the fraud and testifying truthfully.
If the first remedial measure fails, and the proceedings have not yet concluded, the lawyer must
reveal the perjury.
despite having a duty of confidentiality regarding information learned during her representation of client, committed an ethical violation when she failed to take _____________________ regarding clients false testimony.
reasonable remedial measures
A lawyer has a duty to keep a client informed of
the status of the client’s matter
A lawyer has a duty to
communicate and reasonably share decision-making responsibilities with the client.
Specifically regarding a settlement offer, a lawyer has a duty to
inform a client of an offer and to abide by a client’s decision regarding acceptance.
a lawyer has a duty to act with reasonable diligence in representing a client and should not
let ordinary events, such as other work obligations, prevent the lawyer from acting.
regarding personal health issues, a lawyer has duty to
take those into consideration and make plans for the client’s representation accordingly.
a lawyer shall not assert or controvert an issue in a proceeding when
there is not a nonfrivolous basis for doing so (Rule 3.1).
a lawyer shall not make a false statement of fact or law to
a tribunal (Rule 3.3).
rule regarding discovery requests (3.4)
1) a lawyer shall not make a frivolous discovery request or
2) fail to make reasonably diligent efforts to comply with a legally proper discovery request by an opposing party
A concurrent conflict of interest exists if
he representation of one client will be directly adverse to another client, or there is a significant risk that the representation of a client will be materially limited by the lawyers responsibilities to another client, former client, or a third person, or the personal interests of the lawyer.
In the context of firm, all lawyers associated in the firm must not knowingly represent a client when any one of them practicing alone would be prohibited from doing so by the Rules, unless
the affected client consents after consultation.
Under the rules, a lawyer must not use information relating to the representation of a client to the advantage of
the lawyer or third person or to the disadvantage of the client, unless the client consents.
A concurrent conflict of interest may be waived, if
the attorney reasonably believes that they can diligently and competently represent each of the affected clients, provided that all affected clients consent after consultation.
a lawyer could not reasonably believe that they could diligently and competently represent both clients where
their interests are directly adverse to one another, and the lawyer has confidential information pertaining to one of the parties.
Under the rules of professional conduct, a lawyer who formerly represented a client in a matter may not thereafter represent another person in the same or substantially related matter if
that persons interests are materially adverse to those of the former client, unless both the present and former clients consent after consultation.
a lawyer or firm that formerly represented a client in a matter may not us information related to or gained in the course of the representation to the disadvantage of
the former client, or reveal information relating to that representation.
the duty to preserve confidential information continues after
the attorney client relationship has terminated.
Under the Virginia rules, papers produced as work product must be turned over to the client when
the representation is terminated
duty to return papers to the client exists even when
the client has not paid the lawyer’s fee.
upon withdrawal,any fees that have been paid to the lawyer but not yet earned
must be refunded to the client upon withdrawal
upon withdrawal, lawyer is entitled to keep any fees that
have been paid and earned
the duty to return papers to the client upon termination of the representation exists even when
the client has not paid the lawyer’s fee.
A lawyer shall not make or offer an agreement in which
a broad restriction on the lawyer’s right to practice is part of the settlement of a controversy, except when such a restriction is approved by a tribunal or a governmental entity.
Virginia Rule 5.6 thus prohibits a lawyer from
agreeing not to represent other clients in connection with settling a claim on behalf of a current client.
Under 5.6, a term in a settlement agreement limiting an attorney’s right to represent future clients in actions against the offering party would be
unethical.
Virginia Rule 5.6(b), contains an exception permitting restrictions on practice if approved by
a tribunal or government entity.
As a member of the Virginia Bar, an attorney must not
violate the Virginia Rules.
A lawyer must withdraw if continuing the representation will
violate the Virginia Rules.
if the client insisted on the settlement (with a provision restricting the lawyers ability to sue the opposition in the future) despite the attorney’s ethical objection
withdrawal would be necessary.
If you must withdraw, immediately:
(i) notify the client of his withdrawal as required by Va. Rule 1.16(d),
(ii) seek leave of the court to do so in accordance with Va. Rule 1.16(c), and
(iii) take reasonable measures to minimize the harm to the client resulting from the termination of representation, pursuant to Va. Rule 1.16(d).
Under Va. Rule 1.16, reasonable measures to minimize the harm to the client resulting from the termination of representation include:
(i) protecting the client’s confidentiality,
(ii) returning the client’s files, all work product, records, and any unearned fees, and
(iii) assisting the client while they seek to secure new counsel to avoid or minimize material harm to the client’s interests.
Agreeing to engage in and hide unethical behavior is
far more culpable behavior than an inadvertent ethical violation.
Lawyers (and judges) have a duty to report a fellow lawyer’s serious misconduct to the appropriate professional authority when
1) the lawyer or judge has “reliable information that another lawyer has committed” misconduct
2) “that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects….”
No malpractice agreement
A lawyer is generally prohibited from entering into an agreement with a client that places a prospective limitation on the lawyer’s malpractice liability to the client.
No malpractice agreement exception:
Virginia recognizes an exception when the lawyer is an employee of the client as long as the client is independently represented in making the agreement.
Competency:
A lawyer must provide competent representation to a client.
Competent representation requires
the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation
A lawyer is not required to know the law that governs the client’s legal claim before undertaking representation, provided
the lawyer will be able to acquire the necessary knowledge with reasonable diligence.
success alone does not
prove competence nor excuse other violations of the Rules of Professional Conduct
Fee agreement:
A lawyer’s fee must be reasonable
A lawyer must adequately explain
her fee to a client
When a lawyer has not regularly represented a client, a written contract setting
the amount, basis, or rate of the fee is generally preferred;
but not required.
with a not regularly represented client the fee explanation should be made
before or within a reasonable time after commencing the representation.
A range of factors is considered when determining whether a fee is reasonable including
1) the experience of the lawyer performing the service and
2) the fee customarily charged in the locality for similar legal services.
customary contingency fee of
one-third of any recovery.
In a personal injury action, a lawyer is permitted to charge a fee that is
contingent on the outcome of the matter.
A contingent fee agreement, unlike other fee agreements, must be
in writing and must be signed by the client.
The written agreement for a contingency fee arrangement must explain
the way in which the fee will be calculated and, in particular, the way in which deductions for expenses will be calculated.
The lawyer must also provide an ending statement in writing to the client explaining
the outcome of the matter and providing the calculation of the fee and expenses.
Unlike other jurisdictions, Virginia has not adopted the Model Rule that prohibits
most sexual relationships between lawyers and clients, except those predating the lawyer-client relationship.
Virginia does adhere to the general Model Rule regarding
a conflict of interest.
a conflict of interest exists when
a lawyer’s representation of a client will be materially limited by the lawyer’s personal interests
the rules permit a conflict of interest to be waived if
1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation
2) and the client consents in writing.
even though Cate may have reasonably believed that she could confidently represent Phillip even if the sexual relationship soured, she should have
obtained his consent to the representation, after consultation, in writing.
Unless the client agrees to another arrangement, when a lawyer receives property of another, the lawyer must
promptly deliver that property and generally provide an accounting on request.
when there is a contingency fee arrangement, the lawyer must provide
an ending statement in writing to the client explaining the outcome of the matter and providing the calculation of the fee and expenses, even though the client does not make a request for an ending statement.
Funds in which two or more persons (one of whom may be the lawyer) claim an interest must be held in
the trust account until the dispute is resolved and there is an accounting and severance of their interests.
Any portion belonging to the lawyer must be
withdrawn promptly from the trust account.
admission pro hac vice
a lawyer licensed to practice in one state, requests admission before another states courts- files motion with that court
when corporate and foreign lawyers are practicing in Virginia they are subject to
all virginia rules
In Virginia, in house corporate lawyers and foreign lawyers may obtain
a limited license to practice in their specific circumstances
forms of unauthorized practice
1) extraterritorial practice of licensed lawyers
2) practice by unlicensed
exclusions to unauthorized practice of law are
translating, selling legal forms, pro se representation, serving as a mediator/similar, serving as fiduciary, lobbying, and teaching
lawyer with knowledge of misconduct
has a duty to report
lawyer with knowledge of misconduct has a duty to report when the misconduct regards the lawyers
1) honesty,
2) trustworthiness
3) or fitness to practice law
confidentiality limitation on duty to report
if a lawyer has learned of the misconduct through confidential communications- there is no duty to report, but exceptions to the duty of confidentiality apply (future crime exception)
if a reported on lawyer sues for defamation, the reporting lawyer has a privilege defense to such an action as long as the reporting lawyer:
(i) followed the proper rule,
(ii) reported to the correct agency, and
(iii) did not reveal more than what was necessary
A potential conflict of interest occurs when
(i) two clients’ interests are directly adverse to each other, or
(ii) there is a high probability that representing one client will materially limit the lawyer’s ability to represent another; this is an objective standard.
Clients can waive most conflicts of interest by
consent after consultation.
if the conflict is sufficiently gross or there is a direct conflict
the conflict cannot be waived.
if concerned that there is conflict between clients, the lawyer should first conduct
a conflicts analysis to ensure his representation of both would not be materially limited by his obligations to each client
Conflicts between concurrent clients arise when
1) their interests are directly adverse
2) or when there is a significant risk that the representation of one or more of the clients will be materially limited by the attorney’s responsibilities to another client.
a lawyer may not ethically withhold a clients________ and ________ until she has paid him as demanded
client file and records pertaining to representation
when fired by a client, a lawyer must
withdraw
Upon withdrawal, A client’s papers and property that are in the lawyer’s possession must be
promptly returned
Upon withdrawal, Even papers produced as work product
must be turned over to the client.
This duty to return papers to the client exists even when
the client has not paid the lawyer’s fee.
to recover owed attorneys fees and advanced costs from former clients future litigation, after withdrawal, a lawyer may
1) file a claim for costs advanced per the contingency fee agreement
2) if former client recovers, lawyer can file a claim for value of services rendered in quantum meruit
Virginia rule 1.5 governs
attorneys fees
while the general rule requires no written agreement, the exception is
contingency fees require a written requirement
Although a client may discharge a lawyer without cause, the client will continue to have an obligation to pay fees
the lawyer has already earned
Virginia recognizes that an attorney is entitled to recovery based on quantum meruit when
a client, without cause, fires the attorney who is providing services under a contingent-fee agreement and the client employs another attorney who obtains a recovery for the client.
The attorney’s quantum meruit recovery is based on
the reasonable value of the services in themselves, and not necessarily on their benefit to the client.
if seeking to recover attorney fees under quantum meruit
the court determines the amount
even papers turned produced as __________ ___________ must be turned over to the client upon withdrawal
“work product”
Special conflict problems arise when
a lawyer is likely to be called as a witness.
A lawyer generally may not represent a client if the lawyer is a necessary witness in a contested case unless
disqualifying the lawyer would result in a substantial hardship for the client.
A lawyer may act as an advocate in an adversarial proceeding in which another lawyer in the lawyer’s firm is likely to be called as a witness unless
a conflict of interest would occur.
After undertaking a representation, if a lawyer learns that the lawyer may be called as a witness other than on behalf of the client, the lawyer may continue the representation until
it is apparent that the testimony is or may be prejudicial to the client.
A lawyer must withdraw if
continuing the representation will violate the Virginia Rules.
an attorney representing an organization represents
the organization and not its employees
As a general rule, when a lawyer has a conflict of interest, that conflict is imputed to
all of the lawyers in the lawyer’s law firm based on the notion that confidential information possessed by one lawyer is effectively possessed by all lawyers in the same firm.
While generally a lawyer is empowered to determine the best means for achieving the goals set by a client, a lawyer is also required to provide a client with
sufficient information to permit the client to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued
An attorney must protect
confidential client information relating to the representation.
Although the attorney-client privilege belongs to a client, an attorney
must invoke the privilege on the client’s behalf.
an attorney should seek to avoid revealing confidential information about a client, confidential communications, and work product unless
ordered by the court
Although with many conflicts of interest a client may agree to the continued representation of the lawyer after the lawyer adequately explains the conflict
where the conflict is a direct, material adverse impact/interest the conflict cant be waived.
withdrawal requires
1) notifying client immediately
2) seek leave of court to withdrawal
3) take reasonable measures to minimize harm to client resulting from termination of representation
reasonable measures to minimize harm to client effected by withdrawal include:
1) protecting client confidentiality
2) returning clients file, all work product, records, unearned fees
3) assisting client while it seeks to secure new counsel to avoid or minimize material harm to clients interest.
Lawyers are prohibited from communicating about the subject matter of a dispute with represented opposing parties without
first obtaining permission from the opposing party’s lawyer.
A lawyer may communicate with an opposing party about the subject matter of the representation only if
the opposing party’s lawyer has given consent.
When dealing with a represented organization, Rule 4.2 prohibits unauthorized communication between an opposing lawyer and
employees who supervise, direct, or regularly consult with the organization’s lawyer regarding the subject matter of the representation.
No matter how much a particular witness’s testimony is expected to favor one side in a dispute, a mere witness is not
a represented party
Va. Rule 4.2 prohibition does not apply to
communication with witnesses.
Lawyers are not prohibited from communicating with unrepresented persons who are involved in a client’s matter, but they are restricted in
what they may say to such a person.
when communicating with an unrepresented person, a lawyer is under an affirmative obligation to refrain from implying that
the lawyer is disinterested in the matter about which the lawyer is communicating.
Any effort to mislead an unrepresented person about the lawyer’s interest
subjects the lawyer to discipline.
when a lawyer “reasonably should know” that an unrepresented person misunderstands the lawyer’s interest in the matter, the lawyer is obliged to
make reasonable efforts to clarify his role.
Lawyers are also prohibited from giving legal advice to the unrepresented persons with whom they inevitably come into contact, except to
advise unrepresented persons to obtain counsel.
In Virginia, is a lawyer required to self report her own misconduct occurring outside the state?
Yes, a lawyer is required to report any misconduct, within VA or without, that raises a substantial question as to the lawyers, honesty, trustworthiness or fitness to practice law-not limited to criminal activity
A lawyer’s fee must be
reasonable
Since the lawyer’s fee for drafting the will and overseeing its execution was reasonable, the lawyer’s conduct
did not violate the Virginia Rules of Professional Responsibility.
even when a lawyer has not regularly represented a client, the Virginia Rules of Professional Responsibility do not require the fee explanation to be made before
the commencement of the representation
he fee explanation is permitted to be made within
a reasonable time after commencing the representation
When a lawyer has not regularly represented a client, the Virginia Rules of Professional Responsibility indicate that a written contract setting the amount, basis, or rate of the fee is
generally preferred, but is not required.
While there is an exception to the confidentiality rules for preventing a future crime, there is no exception for
disclosing past crimes revealed by the client in the course of the representation
There is no exception to the rules regarding attorney-client confidentiality that permits or requires a lawyer to disclose information relating to a client’s representation when the information concerns
a client’s past crimes
an exception under the Virginia rules allowing disclosure to prevent
a future crime
The duty of confidentiality applies to all information relating to
the representation
In general, a conflict of interest exists when
a lawyer’s representation of a client will be materially limited by the lawyer’s personal interests. Va. Rule 1.7a.(2).
Waiver of this general conflict is possible if
the lawyer reasonably believes that she will be able to provide competent and diligent representation to the client and the client gives consent after consultation, confirmed in writing. Va. Rule 1.7b
While a lawyer is prohibited from communicating about the subject matter of a dispute with a represented opposing party without first obtaining permission from the opposing party’s lawyer, there is no prohibition on communication with
former employees or agents of an organization that is an opposing party, even if the former employee or agent was a member of the organization’s managerial group. Va. Rule 4.2 Comment 7.
A duty of confidentiality is owed to
current clients, former clients, and prospective clients.
It is not necessary for a fee to be charged in order for
the duty of confidentiality and the evidentiary privilege to be effective.
A lawyer must use reasonable efforts to prevent
the inadvertent or unauthorized disclosure of confidential and privileged information
Lawyers owe clients a duty to communicate and meaningfully share
decision-making responsibilities with them
The communication duty is critical to
maintaining a quality lawyer-client relationship.
the communication duty is related to the duties regarding
shared decision-making, competence, and diligence and forms the underpinning of every duty that requires client consent and consultation.
A lawyer must keep a client informed of
the status of the client’s matter
A lawyer must respond to a client’s
reasonable requests for information
Virginia Rule 1.8(a), which addresses business transactions between a lawyer and client, requires that
1) the client’s consent be in writing,
2) that the client be given a reasonable opportunity to seek the advice of independent counsel,
3) that the transaction be objectively reasonable, and
4) that the transaction itself be in writing and in terms that can be understood by the client.
The client must be given an opportunity to seek independent counsel, but
no written suggestion of outside counsel is required.
Because lawyers owe clients a continued measure of loyalty after representation ends and because lawyers owe clients a full measure of the duty of confidentiality after representation ends, conflicts between former and current clients arise when
their interests are directly adverse or when there is a substantial relationship between the two representations
conflict of interest related to a former client may be waived if
both clients consent after consultation.
Lawyers owe their clients
fiduciary duties
A fiduciary is one in whom
1) utmost trust is placed and
2) who owes the beneficiary the duties of good faith, honesty, and care
3) in the management of the beneficiary’s interests
Lawyers owe their clients a duty of loyalty even after
their representation ends.
A conflict of interest might arise among current clients, and also between former and current clients under
this duty of loyalty
Because lawyers owe clients a continued measure of loyalty after representation ends, conflicts between former and current clients arise when their interests are
directly adverse or when there is a substantial relationship between the two representations.
lawyers also owe former clients a continued duty of
confidentiality
In Virginia, the duty of confidentiality is restricted to
“confidences” and “secrets” as described by the Model Rules
Confidences include material that is
protected by the attorney-client evidentiary privilege, and secrets include additional material that would be embarrassing or detrimental to the client or that the client has expressly requested be held in confidence.
The duty of confidentiality applies to all information relating to
the representation, not merely communications from the client to the lawyer.
There are several exceptions to the duty of confidentiality, including
consent, implied authorization, self-defense disclosures to protect the attorney, or preventing future crimes or harm.
Lawyers are authorized to represent
organizations in addition to individuals.
when a lawyer represents such an organization, it represents the organization itself, and not
its officers individually.
a lawyer may represent both the organization and its officers individually in unrelated matters, so long as
there is no conflict of interest between these current clients.
A lawyer’s independent professional judgment is threatened when
he has a conflict of interest in a case.
A conflict of interest exists when
a lawyer represents one client against a second client whose interests are in direct conflict.
a conflict between two current clients
cannot be effectively waived by the clients, on the theory that it is too gross a conflict.
As a general rule, when a lawyer has a conflict of interest, that conflict extends to
all of the lawyers in the law organization in which the lawyer works.
A lawyer in Virginia has a duty to not reveal information learned through
discussions with prospective clients, even when no attorney-client relationship ensued.
A lawyer with whom that lawyer is associated is likewise prohibited from representing a client with
interests materially adverse to a prospective client who has revealed information that could be significantly harmful to that prospective client, unless certain conditions are met, such as a timely screening and written notice regarding the screening.
Under screening procedures, the conflicted lawyer is
isolated from other lawyers in the organization by various devices.
False or misleading statements in lawyer client-getting communication are
subject to discipline
In Virginia, advertisements featuring client testimonials are admissible as long as
they are not false or misleading and they do not omit necessary facts.
Self-laudation that is either unverifiable or misleading-but-true is
subject to discipline as false or misleading
Disclaimers are not required for
all case results advertised
disclaimers should be used when necessary to
prevent a case result advertised from being misleading
Sufficient disclaimers
(i) put the case results in a context that is not misleading,
(ii) state that case results depend upon a variety of factors unique to each case, and
(iii) state that case results do not guarantee or predict a similar result.
