PR Flashcards
What decns belong to the CLIENT only?
Client’s decns = substantive legal import: Decision to commence an action Settlement Accept a plea in a criminal case Decision to appeal or not Jury or bench trial choice Testifying in a criminal case
What decns belong to the ATTY only?
Lawyer’s decisions = strategy, procedure, tactics Discovery methods Granting reasonable adjournments that do not prejudice the rights of a client THUS Run EVERY settlement by the client unless in writing that you can avoid certain sizes For appeals, you have to ask the client and follow the client’s decision
How does a lawyer handle client decnmaking when a client is a minor OR incapacitated?
If the client cannot make a clear decision or is a minor, you have a guardian appointed Get a guardian appointed if: Client has diminished capacity; At the risk of substantial, physical, financial or other harm; AND Clients cannot adequately act in their own interest
What are the 4 circumstances under which a lawyer MUST withdraw?
Lawyer MUST withdraw when… 1) Lawyer KNOWS representation will result in violation of rules or law 2) Lawyer suffers physical or mental disability (including drug addiction) 3) Client fires lawyer 4) Lawyer KNOWS client is taking steps SOLELY to harass or malicious injure another
What are the 9 circumstances under which a lawyer MAY withdraw?
Lawyer MAY withdraw if… 1) Client insists on presenting a frivolous claim or defense 2) Client persists in a course of action involving the lawyer’s services that the lawyer REASONABLY BELIEVES is criminal or fraudulent 3) Client deliberately disregards an agreement or obligation to the lawyer as to expenses or fees 4) Client uses lawyer’s services to perpetrate a crime or fraud (i.e. lawyer learned abt it AFTER rep started) 5) Lawyer’s continued involvement is LIKELY (vs. will) to result in the violation of a law or disciplinary rule 6) Lawyer’s inability to work with co-counsel indicates that the best interests of the client are served withdrawal 7) Client insists on taking action with which the lawyer has a fundamental disagreement (narrowly defined) 8) Client fails to cooperate in the representation 9) Withdrawal can be accomplished without material adverse affect on the client
What is the duty of competence AND its three prongs?
Lawyers should take only those cases that he or she is competent to handle This includes: Physical or mental competence Competent in the substantive law Sufficient time to devote to the matter NOTE: You can overcome a lack of competence by… 1) association with a competent lawyer; OR 2) becoming competent in the area
Can a lawyer limit the scope of representation?
A lawyer CAN limit the scope of the representation IF… 1) The limitation is reasonable; AND 2) Client gives informed consent NOTE: A lawyer may limit the scope of representation to a particular area of law (i.e., workers’ comp) as long as they explain that there might be other claims AND they get informed consent
What are the restrictions on a firm’s name?
The firm name must not be misleading Trade names (e.g. “Aaaabest Law Firm” or “Law Firm of NY”) are NOT permitted
How can an atty communicate a specialization?
A lawyer may publicly identify one or more areas of law in which the lawyer or the law firm practicesOR may state that the practice of the lawyer of the law firm is limited to one or more areas of law BUT a lawyer may not say he or she is a specialistUNLESS approved by aprivate organization approved by the ABA or another state
What is advertising?
Advertising is any public or private communication made by or on behalf of a lawyer or law firm about the lawyer or law firm’s services the primary purpose of which is for retaining the lawyer or firm EXCEPTION:Rules on advertising DOESN’T apply to communications to existing clients or other lawyers.
What 3 things MUST advertisements include?
Advertisements MUST include: 1) Name, principal law office address and telephone number of the lawyer or law firm whose services are being offered The telephone number may contain a domain name, nickname, moniker or motto that does not otherwise violate the Rules 2) Any words or statements required by the Rules must be clearly legible and capable of being read by the average person and of being understood if spoken aloud On websites, the statements must appear on the home page 3) The label “attorney advertising” must appear on the first page of any direct mail or in the subject line of any email
What 9 things MAY advertisements include?
Nine things that are truthful and not misleading: Educational background and degrees Dates of admission to the bar and areas of practice Public offices and teaching positions held Memberships in bar associations and other professional organizations Foreign language FLUENCY Names of regularly represented clients, if the clients consent in writing Acceptable credit arrangements and participation in group or prepaid legal services programs Legal fees, contingent fee rates, range of fees for services, hourly rates and fixed fees for specific services (and if it does so, the firm must abide by that rate for a reasonable period of time) Bona fide professional ratings, a rating is NOT “bona fide” unless it is unbiased and nondiscrimination
Is an ad allowed to create client expectations?
Depends… ONLY IF there is the disclaimer: “Prior results do not g’tee a similar outcome”, then an ad MAY INCLUDE… 1) Stmts that are reasonably likely to create an expectation about the results the lawyer CAN achieve; 2) Stmts that compare lawyer’s servs w/ those of another lawyer; 3) Testimonials or endorsements of clients or fmr clients; OR 4) Stmts describing or characterizing the quality of the lawyer’s or law firm’s service
What is forbidden in advertising?
1) A paid endorsement or testimonial about lawyer/law firm without disclosing that he person is being compensated 2) Actors to portray the lawyer, firm members, clients or events without disclosure
What are the rules re: domain names?
You can use a domain name that does not include the name of the lawyer/law firm PROVIDED that: 1) All pages of the website clearly and conspicuously include the actual name of the lawyer/law firm; 2) Lawyer/law firm in NO way attempts to engage in the practice of law using the domain name; AND 3) The domain name does not imply an ability to obtain results in the matter (winnerslaw.com)
What are additional reqs for TV and radio advertising?
Television and radio ads must be approved by the lawyer, include the name, address, telephone number for the lawyer/firm and kept for 3 YEARS following the initial dissemination Ads contained in a computer-accessed communications shall be retained for a period of not less than one year
How is solicitation by lawyers treated?
All solicitations are advertising and are subject to the rules for advertising… PLUS some add-on obligations.
What forms ofsolicitation are prohibited?
A lawyers shall NOT engage in solicitation by: In-person communication Live telephone communication Real-time or interactive computer access communication NOTE: Does not include websites, pop-up ads, or emails UNLESS you’re soliciting: A close friend; Relative; Former client; OR An existing client NOTE:If the solicitation is improper, that you cannot accept employment result from such communication
When are PERMITTED forms of solicitation prohibited?
No Solicitation (in ANY FORM) allowed if: 1) The recipient has made known a desire not to be solicited; 2) Communication is false or misleading; 3) The solicitation involves coercion, duress, harassment; OR 4) The lawyer intends or expects but does not disclose that the legal services will be performed primarily by ANOTHER lawyer who is not affiliated with the soliciting lawyer as a partner, associate or counsel
What are the 6 rules re: targeted mail?
1) You MAY send direct mail to groups of people likely to need legal services 2) In the case of self-mailing brochures or postcards, the words “Attorney Advertising” has to be appear on it Email has to say “Attorney Advertising” in the subject line 3) If a retainer agreement is included in the solicitation the words “do not sign” shall appear on the client signature line 4) These provisions ALSO apply to lawyers not admitted in NY who solicit retention by NY residents 5) Solicitations directed at predetermined recipients, if prompted by a specific occurrence involving or affect a recipient, MUST disclose how the attorney learned the recipient’s identity and need for legal services A list of the names and address of the recipients must be kept for three years. 6) No solicitation for personal injury or wrongful death suits by the lawyer or any agent/representative before the 30th DAY of the incident, UNLESS a filing is required in less than 30 days, in which case no unsolicited communication until after the 15th DAY after the incident
What isa COI?
Basic rule = A lawyer can’t represent a client IF… 1) the representation will involve the lawyer representing differing interests OR 2) there is a significant risk that the lawyer’s professional judgment on behalf of a client will be adversely affected by the lawyer’s own financial, business, property, or other personal interests
When can a lawyer take a case in which there is a COI?
If there is a COI, a lawyer can accept the case ONLY IF ALL 4 are met: 1) Lawyer reasonably believes she can competently represent all affected clients; 2) Representation is not prohibited by law; 3) Representation does not involve an assertion of claim by one client against another; AND 4) Each client gives informed consent in writing
What is general rule re: imputation of conflicts?
If one lawyer is conflicted, all lawyers in the firm are conflicted
Is a lawyer allowed to serve as his client’s witness?
Lawyer is not able to represent a client where he’s likely to be a witness on a significant issue of fact UNLESS Testimony related to uncontested matter Relates solely to value of legal services Relates solely to a matter of formality Disqualification would work substantial hardship on a client;OR Testimony is authorized by the tribunal NOTE: this conflict is NOT imputed to other lawyers on the firm BUT a lawyer may not act as an advocate if another in the lawyer in the firm is likely to be called as a witness on the significant issue by another party to the lawsuit(and it is apparent that the testimony may be prejudicial to the client)
When is a lawyer allowed to obtain media rights?
ONLY at the END of a matter Prior to the CONCLUSION of the client’s entire matter, a lawyer is prohibited from entering into or even negotiating any arrangement or understanding with a client or a prospective client by which the lawyer acquires an interest in literary media interests with respect to the subject of the representation
Is a lawyer allowed to acquire a financial interest in a matter?
NO! Can’t take an interest in the cause of action or subject matter of litigation Except: 1) Acquire a lien authorized by law to secure the lawyer’s fee or expenses (i.e. a charging lien) 2) Contract with a client for a reasonable contingency fee in a civil matter NOTE re: domestic relations matters: A lawyer’s retainer agreement may include a security interest, confession of judgment, or other lien, such as a lien on real property to secure the lawyer’s fee, but ONLY IF: Prior notice is provided to the client in assigned retainer agreement Tribunal/judge approves it; AND Notice to the adversary BUT a an attorney shall not foreclose on a mortgage placed on a marital resident while the spouse who consents to the mortgage remains the titleholder, and it is the primary residence.
Is a lawyer allowed to financially assist a client?
A lawyer CAN’T advance or guarantee financial assistance to a client for contemplated or pending litigation UNLESS they’re court costs or expenses litigation: You can advance contingent on the result; OR If your client is indigent or pro bono, you can pay them yourself
What is the rule re: 3d party payors?
A lawyer cannot accept compensation for representing a client or anything of value related to the lawyer’s representation of the client, from one OTHER than the client, UNLESS: Client gives informed consent; There is no interference with lawyer-client relationship; AND Confidential information is not provided to payor.