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Bar Prep Summer 2014 > PR > Flashcards

PR Flashcards

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1
Q

Unauthorized Practice of Law

A

A non-lawyer may not engage in, nor may a lawyer assist a non-lawyer in engaging in, the practice of law, which is defined as that involving the professional judgment of a lawyer.

ABA: Rules prohibit a lawyer from practicing law in a Jx where they are not admitted, and prohibit a lawyer from helping him.

CA: constitutes a misdemeanor.

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2
Q

Exceptions to Ban on UPL

A

Where professional judgment is not involved (ex: paralegals, law clerks).

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3
Q

Multi-Jurisdictional Practice

A

Generally, a lawyer who is not licensed in a particular Jx may not open a law office there, hold herself out as practicing there, or establish systematic and continuous presence in the other Jx without becoming licensed.

CA: exception for in-house counsel.

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4
Q

Temporary Multi-Jurisdictional Practice

A
  1. Association with a local lawyer
  2. Pro hac vice admission
  3. Alternative dispute resolution
  4. Out of state practice is reasonably related to the in-state practice
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5
Q

Law Firm Naming

A

A lawyer must not use a firm name that is false or misleading; the name of a lawyer holding public office may not be included during any substantial period in which the lawyer is not practicing.

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6
Q

Partnership With Non-Lawyers

A

A lawyer may not partner or share profits or legal fees with a non-lawyer, unless the payment is for money after lawyer’s death, pursuant to compensation agreements, or for rent.

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7
Q

Supervisory Partners or Lawyers

A

A lawyer will be responsible for another lawyer’s violations of the RPC if he orders or ratifies the conduct, or has supervisory authority and is aware of the conduct at a time when it could have been avoided.

The actor may not be liable if they are directly following orders of a supervisor, and the ethical violation was debatable.

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8
Q

Restrictions on the Right to Practice

A

A lawyer must not make a partnership or employment agreement that restricts the lawyer to practice after termination of the relationship, except if concerns retirement benefits, or settlement of a controversy between private parties.

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9
Q

Sale of a Practice (ABA)

A

A lawyer is permitted to sell a law practice or an AREA of practice, if:

  1. Sold to one or more lawyers or law firms,
  2. Seller ceases private practice of law, or at least in that area,
  3. Client fees do not increase, and 4. Seller notifies clients of their right to hire a different lawyer.
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10
Q

Sale of a Practice (CA)

A

Differs in several respects from the ABA rule:

  1. Notice requirements to clients are more complicated
  2. Seller does not have to stop practicing in the geographic area
  3. CANNOT sell an area of practice
  4. Seller can retain a few clients, who pose a conflict for the purchaser or who have a long relationship with the seller
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11
Q

Advertising, in General

A

Advertising is a general attempt to obtain business, which includes things like TV and radio ads, newspapers, etc. Each advertisement must be labeled as such, and contain the name and office address of at least one lawyer or firm responsible for its content.

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12
Q

Advertising - False and Misleading

A

Advertising that is false and misleading may be banned; factors to consider include: whether the statement contains a material misrepresentation of law or fact, or omits information necessary to make the communication as a whole not materially misleading.

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13
Q

CA Restrictions on Advertising

A

A lawyer is prohibited from making advertisements that contain:

  1. A guarantee or warranty of the outcome
  2. Words or symbols suggesting quick cash or settlement
  3. Impersonation or dramatization that is not properly labeled as such
  4. Contingent fee offers that do not warn that a client who loses may still have to pay court costs.

The following materials are presumptively false and misleading: delivered to a client in the hospital suffering from physical or mental stress, mailings seeking fee paying work not labeled as such, or those containing testimonials or endorsements without disclaimer

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14
Q

Solicitation, in General

A

Solicitation involves directed contact with a particular person or persons, designed to induce the person into hiring the lawyer

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15
Q

Solicitation (ABA)

A

A lawyer must not seek fee paying work by initiating personal or live telephone contact, or real time electronic contact, with a specific person who is not a lawyer and with whom the lawyer has no prior relationship.

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16
Q

Solicitation (CA)

A

Prohibits all telephone contact, not just “live” telephone contact, as well as solicitation when the lawyer knows the person is already represented by counsel; however, does not specifically prohibit electronic communications.

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17
Q

Potential Conflicts

A

Those that do not yet exist. Spell out what could go factually wrong, and obtain the consent of clients.

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18
Q

Concurrent Conflicts

A

A lawyer must not represent a client if the representation creates a concurrent conflict of interest, which exists when representation of the client will be directly adverse to that of another client, or there is a significant risk the representation will be materially limited by the lawyer’s personal interests or those of another/former client.

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19
Q

Client Consent to Concurrent Conflicts (ABA)

A

A lawyer may undertake representation if he reasonably believes he can competently and diligently represent each affected client, the representation is not prohibited by law and does not involve direct assertions by one client against another, and each client gives informed, WRITTEN consent.

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20
Q

Client Consent to Concurrent Conflicts (CA)

A

Differs slightly from the ABA standard; does not contain a “reasonable lawyer” standard, applies to potential and actual conflicts, and only requires informed, written consent if the conflict is between clients (if between lawyer-client, written disclosure)

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21
Q

Representation of Multiple Parties

A

A lawyer should not try to defend criminal co-defendants.

A lawyer may represent two parties or clients whose interests are potentially in conflict, if she concludes that she can do so. Lawyer must obtain informed, written consent and make it clear that confidentiality might not apply.

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22
Q

Ownership or Financial Interests (Conflicts)

A

A lawyer must not enter into a business transaction with a client or knowingly acquire a pecuniary interest adverse to the client, unless the transaction and terms are fair and reasonable to the client, fully disclosed, client is advised of desirability of obtaining independent counsel, and client gives informed consent.

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23
Q

Improper Use of Information Adverse to a Client (Conflicts)

A

A lawyer must not use information relating to the representation of a client to the disadvantage of that client, without informed, written consent.

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24
Q

Designating Oneself as Beneficiary (ABA/CA)

A

ABA: lawyer must not solicit a substantial gift from a client or prepare an instrument giving a gift; CA: prohibited from inducing the gift.

Both raise a statutory presumption of undue influence.

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25
Q

Literary or Media Rights (ABA/CA)

A

ABA: a lawyer must not obtain media rights prior to the conclusion of the representation

CA: contains no comparable provision, but the judge must be satisfied that the defendant understands the conflict of giving away media rights based on representation.

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26
Q

Financial Assistance to Clients (ABA)

A

A lawyer must not provide financial assistance to a client IN CONNECTION WITH LITIGATION, except: may advance court costs or pay fees if client is indigent, and may advance court costs contingent on the outcome.

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27
Q

Financial Assistance to Clients (CA)

A

Prohibitions apply in all contexts, not just litigation; a lawyer is prohibited from buying a client, but is permitted to lend money to a client after start of representation, so long as they obtain a written promise of repayment.

28
Q

Compensation From a Third Party

A

A lawyer must not accept compensation from someone other than the client, unless: the client gives informed, written consent, there is no interference with the lawyer’s professional relationship, and client confidences are protected.

29
Q

Limiting Malpractice Liability (ABA/CA)

A

A lawyer must not make an agreement prospectively limiting malpractice liability; CA rules prohibit any agreement limiting malpractice liability.

30
Q

Sexual Relations With Clients (ABA/CA)

A

ABA: a lawyer must not have sexual relations with a client; does not apply if relationship existed before representation.

CA: prohibits a lawyer from demanding sexual relations as a condition of representation, or allowing it to interfere with the representation.

31
Q

Conflicts Involving Former Clients

A

A lawyer who formerly represented a client in any matter may not thereafter represent another person the same or substantially similar matter if the person’s interests are adverse to those of the former client, unless lawyer obtains informed, written consent.

32
Q

Imputed Conflicts (ABA only)

A

Generally, if a lawyer faces a conflict, it is imputed to members of the firm; can be solved by getting informed, written consent and proper screening procedures.

Personal conflicts, sexual relations, and conflicts caused by former government attorneys do not get imputed.

33
Q

Conflicts With Prospective Clients

A

A prospective client is one who consults with a lawyer about the possibility of forming a lawyer-client relationship; whether the communication constitutes a consultation depends on the circumstances.

If a lawyer obtains confidential information during preliminary discussions, they must not later represent a different party in the same or substantially related matter, if representation could significantly harm the prospective client.

34
Q

Former Government Attorneys

A

A lawyer may not represent a client in connection with a matter in which he participated personally and substantially as a government attorney, without informed, written consent.

CA has no comparable provision, but a prosecutor cannot later participate on the defense side.

35
Q

Conflicts Related to Organizations

A

A lawyer represents and must act in the best interests of the organization, not its individual constituents.

If the organization is engaging in illegal activity, the lawyer must report it to a higher authority; if authority fails to take action; lawyer may report out.

CA: prohibits disclosure of confidential information to an outsider, unless necessary to prevent death or substantial bodily harm.

36
Q

Sarbanes-Oxley and Conflicts (ABA only)

A

If a securities lawyer becomes aware of credible evidence that her client is materially violating state or federal securities law, she MUST report to the CLO; if the lawyer believes the CLO did not take appropriate steps; MUST report to the Board of Directors.

Lawyer MAY reveal confidential information to the SEC, that is reasonably necessary to stop the client from committing a violation that will cause substantial financial injury to the client, or to rectify such injury if lawyer’s services were used to further financial fraud.

37
Q

Fee Agreements (ABA)

A

When the lawyer has not regularly represented the client, a fee must be communicated to the client in writing, before or within a reasonable time of commencing representation.

Fee must be reasonable; a contingent fee must be in writing, signed by the client, and state the method of calculation. Contingent fees are not permitted in domestic relations matters or criminal cases.

38
Q

Fee Agreements (CA)

A

A fee agreement must be in writing if the fee will exceed $100, except when: client is a corporation, states in writing that she does not want a written fee agreement, legal services are of the same kind typically provided, lawyer acted in an emergency, or a writing is otherwise impracticable.

Fees must not be unconscionable; contingent fee must be in writing, but permitted in domestic relations so long as does not promote divorce.

39
Q

Referral Fees (ABA)

A

The ABA prohibits referral fees; however, a lawyer may divide fees with an outside lawyer, if the division is in proportion to the services performed, and each lawyer assumes joint responsibility for the representation.

Must be in writing.

40
Q

Referral Fees (CA)

A

CA permits payment of a referral fee to an outside lawyer if the client knows all of the terms and consents in writing, the total fee is not unconscionable, and the fee does not increase because of the referral.

41
Q

Disbursement of Settlement Funds

A

If a third person has a lawful claim against funds or property in the lawyer’s custody, the lawyer must hold separate the disputed portion of funds or property until the claim is resolved.

42
Q

Duty of Competence (ABA)

A

Requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation; relevant factors include: relative complexity or specialized nature of the matter, lawyer’s general experience, training and experience in the field, preparation and study lawyer is able to give to the matter, and feasibility of referring to another lawyer.

A lawyer is permitted to study and gain the knowledge necessary, if does not greatly increase cost of representation.

43
Q

Duty of Competence (CA)

A

A lawyer must not intentionally, recklessly, or repeatedly fail to perform legal services with competence. This includes a duty to supervise the work of subordinate lawyers and non-lawyer employees.

44
Q

Diligence and Communication

A

A lawyer must act with reasonable diligence and promptness in representing a client and keeping them reasonably informed about the status of their matter.

In civil cases, must communicate all reasonable settlement offers; in criminal cases, must communicate all plea offers

45
Q

Attorney-Client Privilege

A

Generally, the AC privilege allows a client to refuse to testify and prevent his attorney from testifying.

46
Q

Attorney-Client Privilege (Corporate Clients)

A

The privilege covers confidential information between attorneys and high ranking officials, as well as between corporate employees, if the communication concerns a matter within the scope of their duties and they are communicating at the direction of their superior or to assist the corporation. Privilege continues indefinitely.

47
Q

Exceptions to A-C Privilege (ABA/CA)

A
  1. Commission of a crime/fraud
  2. Communication relevant to a breach of duties arising out of the attorney-client relationship
  3. Civil litigation between former joint clients
  4. Attorney furnishes information about competency of a client related to a will or inter vivos transfer

CA: same, except includes exception if lawyer reasonably believes disclosure is necessary to prevent a criminal act that the lawyer reasonably believes is likely to result in substantial bodily injury or death

48
Q

Duty of Confidentiality (ABA/CA)

A

A lawyer generally must not reveal information related to the representation of a client, and must make reasonable efforts to prevent inadvertent or unauthorized disclosure.

CA: duty to maintain “inviolate” the confidence of the client

49
Q

Exceptions to Confidentiality (ABA)

A
  1. Informed consent
  2. Impliedly authorized in carrying out of representation
  3. Lawyer believes necessary to prevent reasonably certain death or substantial bodily harm
  4. Necessary to prevent a crime/fraud likely to cause substantial financial loss
  5. Required by a final court order
  6. Necessary to collect a fee or protect lawyer from liability
50
Q

CA Exceptions to Confidentiality

A
  1. Compelled by law or court order
  2. To collect a fee
  3. To defend against a claim of malpractice or IAC
  4. When necessary to prevent a criminal act that will cause death or substantial bodily harm
51
Q

Duty to Protect Client Property

A

A lawyer must hold client property separate from the lawyer’s own property; duty not to commingle funds. Interest from client funds goes to IOLTA, to help pay fees of indigent clients.

Must keep records of client funds or other property (in CA, for 5 years), and cannot withhold client funds or property as leverage for payment

52
Q

Scope of Representation

A

The client has the ultimate authority to determine the scope of the representation, but the lawyer is responsible for informing the client of and operating within the laws and Rules.

  • Client decides means and objectives; lawyer decides technical matters.
  • A lawyer must not assist or counsel a client in a course of action that the lawyer knows is criminal or fraudulent
53
Q

Communications With Organizations

A

A lawyer must get the consent of the organization’s counsel before communicating with a member of the org who supervises or regularly consults with the org’s lawyer, has authority to obligate the org with respect to the matter, or whose conduct may be imputed to the org.

54
Q

Communications With Unrepresented Third Persons

A

When a person is unrepresented, a lawyer representing a client may communicate with the person directly; however, the lawyer must not state or imply that they are disinterested or fail to clear up misunderstandings.

55
Q

Documents Received

A

If a lawyer receives a document that appears to be privileged and confidential and knows or has reason to know that it was sent inadvertently, must stop examining the document and return it.

56
Q

Candor Towards the Tribunal

A

A lawyer must not:

  1. Make a false statement of material fact or law
  2. Fail to correct a false statement previously made
  3. Fail to disclose controlling legal authority that is directly adverse
  4. Offer false evidence
57
Q

Criminal Defendants Who Testify Falsely

A

A lawyer must allow a defendant to testify in a criminal matter, even if they reasonably believe the testimony will be false; however, if the lawyer knows the testimony will be false, they must try and persuade client not to testify.

Last resort: ABA: must disclose to the tribunal and ask for permission to withdraw; CA: may ask for permission to withdraw, or call defendant and let him testify in the narrative.

58
Q

Fairness to Opposing Party and Counsel (ABA)

A

A lawyer must not:

  1. Unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy, or conceal evidence
  2. Falsify evidence
  3. Knowingly disobey an obligation of the tribunal
  4. Make frivolous discovery requests
  5. Allude to inadmissible evidence during trial
59
Q

Fairness to Opposing Counsel (CA)

A

Substantially the same as the ABA; also, a lawyer may not threaten to bring disciplinary proceedings, administrative proceedings, or criminal proceedings to gain an advantage in a civil suit

60
Q

Termination of Lawyer-Client Relationship, in General

A

Generally, the relationship ordinarily continues until completion of the work for which the lawyer was hired. Upon termination, lawyer must return client property and surrender papers to which the client is entitled.

61
Q

Mandatory Withdrawal (ABA)

A

A lawyer MUST withdraw if:

  1. Representation will result in a violation of the Rules or law
  2. Physical/mental condition impairs ability to represent the client
  3. Lawyer is discharged
62
Q

Mandatory Withdrawal (CA)

A

A lawyer MUST withdraw if:

  1. Representation will result in a violation of the Rules (but not of law)
  2. Lawyer knows or should know that client is acting without probable cause, or to harass or maliciously injure another
63
Q

Permissive Withdrawal (ABA)

A

A lawyer MAY withdraw if:

  1. Can be accomplished without material adverse effects
  2. Client persists in a course of action that is criminal or fraudulent
  3. Client uses lawyer’s services to perpetrate a crime or fraud
  4. Client insists on taking action the lawyer believes is repugnant or with which he has a fundamental moral disagreement
  5. Client fails to fulfill obligations
  6. Continued representation will result in an unreasonable financial burden
  7. Other good cause
64
Q

Permissive Withdrawal (CA)

A

A lawyer MAY withdraw if:

  1. Client persists in a course of action that is criminal or fraudulent
  2. Client insists on taking action the lawyer believes is repugnant or with which he has a fundamental moral disagreement
  3. Client fails to fulfill obligations
  4. Other good cause
65
Q

Special Duties of Prosecutors

A
  1. Refrain from prosecuting without probable cause
  2. Make reasonable efforts to ensure accused has been advised of his right to counsel
  3. Not seek to obtain a waiver of pretrial rights from unrepresented accused
  4. Make timely disclosure to defense of exculpatory evidence
  5. Exercise reasonable care to prevent prosecutors or investigators from making extrajudicial statements that prosecutor would be prohibited from making
  6. Not subpoena a lawyer to testify against a client unless necessary
  7. Refrain from making extrajudicial comments that would heighten condemnation of the accused
  8. Seek to remedy a conviction when prosecutor knows of clear and convincing evidence indicating defendant did not commit the crime.
66
Q

Reporting Professional Misconduct (ABA)

A

A lawyer who knows another lawyer has committed a violation of the Rules that raises a substantial question as to their honesty or fitness must inform the appropriate professional authority

67
Q

Reporting Professional Misconduct (CA)

A

Self-reporting requirements, when:

  1. Sued for malpractice 3x in preceding 12 month
  2. Found civilly liable for fraud or breach of fiduciary duty
  3. Sanctioned more than $1,000 (except for discovery sanctions)
  4. Charged with a felony
  5. Convicted of certain serious crimes
  6. Disciplined in other Jxs.

-A lawyer must not make or seek an agreement prohibiting a person from representing professional misconduct.

Bar Prep Summer 2014 (11 decks)

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