PR

Question 1

Acceptance

Answer 1

A lawyer has no duty to accept representation of a client, absent a court appointment.

Question 2

Rejection

Answer 2

MR: L must reject representation of a client if it would violate the rules or physical or mental condition would impair representation.
CA: Must reject if client wants to pursue a frivolous claim, one meant to harrass, or a claim not warranted under current law or good faith argument for modification.

Question 3

Creation of Relationship

Answer 3

An att’y client relationship exists if the client reasonably believes it does based on the attorney’s words or actions.

Question 4

Scope of Representation

Answer 4

The client determines the goals and objectives, and the attorney determines the means. The client decides whether to accept a settlement, testify in a criminal trial, waive a jury trial, or enter a plea.

Question 5

Settlement Offers

Answer 5

MR: A lawyer must communicate all settlment offers
CA: a lawyer must communicate all written setttlement offers or oral ones if they are a significant development.

Question 6

Counseling on Crimes

Answer 6

A lawyer must not counsel or aid in the commission of crime or fraud, but can advise on the legal consequences of such actions.

A lawyer MAY (CA)/ MUST (MR) withdraw if the client persists in pursing conduct the lawyer knows to be crime/fraud.

Question 7

Mandatory Withdrawal

Answer 7

Resulting Violations:
MR: must withdraw if failure to do so will result in a violation of ethics rules or other laws.
CA: Must withdraw if L knows or should know that representation would violate the ethics rules
L’s heath: must withdraw if L’s physical or mental health materially impairs (MR)/renders unreasonably difficult (CA) representation
bad Faith (CA): must withdraw if C asserts a claim without probable cause or for harrassment
Discharge by client

Question 8

Permissive Withdrawal

Answer 8

Client fails to pay fees
Client makes it unreasonably difficult
Crime/fraud: Past for MR, Present/Past for CA
Other good cause
MR: would not prejudice client, unreasonable financial burden
CA: inability to work with co-counsel, physical condition makes it difficult
[FUCC]

Question 9

Procedures and Duties Upon Termination

Answer 9

-Must give reasonable notice to client, must get court permission if involved in litigation
-Duty to mitigate damage to client
-Duty to return papers/property (MR: can retain as security)
-Duty to return unearned fees (but can recover quantum meruit)

Question 10

Fees

Answer 10

Must be not be unreasonable (MR)/ unconscionable (CA)
Factors: time, labor, skill, expertise, difficulty, fraud (CA), relative sophistication (CA)
CA writing requirement: fees likely to be more than 1k, must be signed by both lawyer and client, must include details of fee, otherwise voidable, exceptions: client is corporation, emergency, client has waived, similar to past services

Question 11

Contingent Fees

Answer 11

Not allowed for criminal cases, divorce, spousal/child support determinations
Must be in writing, signed by client (MR) and lawyer(CA), with details on how fee is calculated and a statement that it is negotiable (CA only)

Question 12

Property as payment

Answer 12

Receiving property as payment is fine as long as it is not an interest in the subject matter of the pending litigation

Question 13

Fee Splitting

Answer 13

Non-lawyers: not allowed unless death benefit, employment compensation
**Lawyers: **
MR: split must be in proportion or lawyers must agree to be jointly/severally responsible, C must give informed written consent, and the total fee must be reasonable
CR: must be a written agreement between the lawyers, client must give written consent after full disclosure, and the total fee must not be higher because of the splitting

Question 14

Referral Fees

Answer 14

MR: not generally allowed unless its an approved lawyer referral service or nominal gift
CA: can give gifts but can’t promise them or give them to encourage more referrals, can use state bar approved referral services
Reciprocal agreements are allowed so long as they are not exclusive or indefinite, and the client must be informed

Question 15

Client funds

Answer 15

-Must be kept in dedicated client fund account
-No commingling of client funds
-Disputed funds must not be withdrawn until dispute is resolved
-Records must be kept for 5 years
-Notice of received funds must be given promptly (MR) or within 14 days (CA)
-Delivery of funds must be delivered promptly (MR) or within 45 days (CA)

Question 16

Duty to avoid conflicts of interest between lawyer and client

Answer 16

-No starting a sexual relationship
-cannot be related to opposing counsel or live with them (CA)
-cannot be a witness unless it is an uncontested issue, unless withdrawal would cause substantial hardship to client (MR), or the client gives informed written consent (CA)
-no providing financial assistence, except court fees or limited gifts to indigent clients
-no business transactions unless it is fair, the client understands, had the opportunity to get independent counsel, and gives informed consent in writing
-cannot solicit gifts unless you are related to the client or the client has an independent lawyer (CA)

Question 17

If conflict exists, can still represent if

Answer 17

1) the lawyer reasonably believes they can still provide competent and diligent representation,
2) not representing opposing clients in the same matter,
3) not prohibited by law, and
4) the client gives informed consent confirmed in writing (MR) or informed written consent (CA)

Question 18

Duty to avoid conflict of interest between current clients

Answer 18

Cannot represent a client where the representation would be directly adverse or materially limited by representation of another client unless 1) the lawyer reasonably believes they can provide competent and diligent representation, 2) the representation is not prohibited by law, 3) not representing both sides of the same litigation, and 4) the clients give informed consent confirmed in writing (MR) or informed written consent (CA)

Question 19

Conflict of Interest between current and former client

Answer 19

Cannot represent a client whose interests are materially adverse to a former client in the same or substantially related matter without informed consent confirmed in writing (MR) or informed written consent (CA)

Question 20

Switching firms

Answer 20

an attorney who switches firms cannot represent a client whose interests are materially adverse to a client of the old firm in the same or substantially related matter and during which he obtained confidential information without ICCW (MR) or IWC (CA)
Imputation:
MR: not imputed if attorney is properly screened, and written notice/certification given to former C
CA: same as MR but L cannot have substantially participated in the same or substantially similar matter

Question 21

Att’y Client privilege

Answer 21

protects confidential communications between a client and lawyer made for the purposes of obtaining legal advice.
Can only be waived by the client
Survives death (MR) only lasts until settlement of estate (CA)
Exceptions: future crime/fraud by C (MR) or anyone (CA), disputes with attorney, or risk of substantial injury or death

Question 22

Work product

Answer 22

tangible documents created in anticipation of litigation.
In CA, a writing that reflects an attorney’s impressions, conclusions, opinions, or legal research is absolutly protected. Other things may be discoverable if the court finds that denial would be unfairly prejudicial to the other party.
Exception: the lawyer is being investigated for fraud

Question 23

Duty of Confidentiality

Answer 23

MR: cannot disclose any information related to representation of a client unless 1) C consents, 2) impliedly authorizes it, 3) prevent reasonably certain death/substantial bodily injury, 4) prevent/mitigate substantial financial harm to another caused by the use of L’s services, 5) compliance with the rules, 6) defend in dispute, 7) comply with court order
CA: must maintain inviolate client confidences unless client consents or the lawyer reasonably believes it is necessary to prevent a criminal act from causing death or substantial bodily injury

Question 24

Duties to Prospective Clients

Answer 24

cannot represent Cs with materially adverse interests in the same or a
substantially related matter if L received information from the prospective C that could be significantly harmful (MR)/ Material to the matter(CA) unless Cs give informed written consent (CA) or informed consent,confirmed in writing (MR) or there is limited exposure, timely screening, no sharing of the fee, and notice to prospective C.

Question 25

3rd Party Payment

Answer 25

not permitted unless C gives informed consent (MR)/ informed written consent (CA), there is no interference with L’s professional judgment or with L-C relationship, and L-C confidentiality is preserved.

Question 26

Organization as a client

Answer 26

-duty is to the organization, not constitutents
-when organization becomes adverse to employees, L must make it clear to employee who they represent
-reporting misconduct up and out (MR) or only up (CA)

Question 27

Duty of Competence

Answer 27

MR: the lawyer must act with the skill, knowledge, preparation reasonably necessary for the representation.
CA: the lawyer must not knowingly, recklessly, grossly negligently, or repeatedly fail to act with the necessary competence. Competence is defined as the learning and skill, and emotional, physical, and mental ability necessary.
Lack of competence can be rectified by necessary study or association with a competent attorney.

Question 28

Duty of Diligence

Answer 28

A lawyer shall act with reasonable diligence and promptness in representing a client. The work load of a lawyer must be controlled, but the lawyer must not procrastinate. A lawyer does not have to press for every advantage.

Question 29

Malpractice

Answer 29

The attorney must have both been negligent and but for the negligence, the outcome would likely have been different.

Question 30

Unauthorized Practice of Law

Answer 30

• a lawyer must not practice where they are not admitted
• a lawyer must not assist another in the unauthorized practice of law

Question 31

Association with a nonlawyer

Answer 31

a lawyer cannot form a partnership with a nonlawyer if any part of the partnership acticities consistute the practice of law, or in any business organization where the non-lawyer has the right to control the lawyer’s professional judgment.

Question 32

Solicitation

Answer 32

-Solicitation by real time contact is prohibited if a significant motive is pecuniary gain unless the contacted person is a lawyer or has a family, close personal, or prior professional relationship.
-If the person communicates a desire not to be contact, the lawyer must stop.
-ambulance chasers and the like are strictly prohibited
-targeted solitication must be labeled as “advertisement”

Question 33

Advertisement

Answer 33

A lawyer shall not make false or misleading communications about the lawyer or their services.
No material misrepresentation of fact or law.
A lawyer shall not state that the lawyer is a specialist unless they are certified as a specialist and the name of the certifying organization is clearly identified in the communication.
Any communication/advertisement must contain name and contact information of a responsible lawyer.

Question 34

Duty to Supervise Subordinates

Answer 34

A supervising lawyer must take measures to ensure that subordinates comply with the ethics rules.
A supervisory lawyer shall be responsible for another lawyer’s violation of the rules if the lawyer orders or ratifies with knowledge of the conduct, or knows of the conduct at a time when its consequences can be avoided but fails to take reasonable action.

Question 35

Duty of Subordinate Lawyer

Answer 35

a subordinate lawyer still has a duty to follow the ethical rules. they will not be violating the rules if they comply with a supervising attorney’s reasonable resolution of an arguable question of professional duty.

Question 36

Duty to report Misconduct

Answer 36

MR: if L has actual knoweldge of a lawyers miscondcut that raises a substantial quesiton of honesy, L must report.
CA:if L has credible evidence that another lawyer has engaged in misconduct that raises a substantial question as to the other lawyer’s honesty, trustworthiness, or fitness

Question 37

Duty of Fairness

Answer 37

• must not suppress evidence that L is legally obligated to produce
• may not pay witness to induce specific testimony, but can be expenses
• cannot violate discovery rules nor allude to inadmissible facts in court
• if L receives inadvertent communication, must promply notify sender and must not read (CA)

Question 38

Duty Not to Contact Represented Party

Answer 38

• a lawyer may not communicate about the subject matter of the representation with a person he knows to be represented, unless the other lawyer consents
• when the client is an organization, L cannot communicate with a current employee if they have legal authority to bind the organization or their conduct can be imputed to the organization
• Represented parties can communicate with each other

Question 39

Duty of Candor

Answer 39

Time: exists trhough when final judgment is affirmed on appeal or time for appeal has passed
Statements of fact and law: must not offer false statements and must correct false statements made by the lawyer. a lawyer does not have a duty to reveal unfavorable facts unless it is an ex parte proceeding
Controlling legal authority: must disclose adverse controlling legal authority if opposing counsel does not, cannot knowingly misquote authority

Question 40

Duty of Honesty

Answer 40

A lawyer may not introduce evidence she knows to be false. In a civil case, the lawyer has the discretion to refuse evidence she reasonably believes to be false.
If client is going to or has testified falsely, must take remedial measures, try to withdraw, try to get client to recant, try to use narrative statement approach, or disclose perjury (MR only)

Question 41

Extrajudicial statements

Answer 41

a lawyer may not make an extradjudicial statement if there is a substantial likelihood it will be publicly disseminated and materially prejudice a proceeding.
- can state basic information like the claim, public record info, identity of criminal defendant, name of arresting officer
- cannot refer to character or criminal record of a party, the potential for a guilty plea, or opine about guilt or innocence

Question 42

Duty to jurors

Answer 42

Must not communicate with a juror
after a proceeding may contact a juror unless juror doesn’t want to or the communication is harrassment, etc.

Question 43

Ex Parte Communications

Answer 43

• not permitted to communicate ex parte with any person serving in an official capacity in the proceeding, such as a judge.
• However, ex parte communications involving** logistical matters that do not involve the merits of the case and emergency communications** authorized by law or court order are permitted

Question 44

Duties of prosecutor

Answer 44

• may not prosecute without** probable cause**
• must ensure defendant is advised of right to counsel
• must disclose exculpatory evidence
• after conviction, must disclose to court and defendant of any new, credible, and material evidence creating a reasonable liklihood of D’s innocence

Question 45

Duties of Prosector with respect to extrajudical statements

Answer 45

prosecutors cannot make extrajudicial statements that would have the substantial likelihood of heightening public condemnation of the accused,
Prosecutors must exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor from making such statements.