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Professional Responsibility > PR > Flashcards

PR Flashcards

1
Q

When is a lawyer subject to discipline?

A

When he or she

  • violates or attempts to violate the rules or assists or induces another to do so.
  • commits a criminal act that reflects adversely on their honesty, trustworthiness, or fitness to practice law.
  • engages in conduct involving dishonesty, fraud, deceit, or misrepresentation.
  • engages in conduct prejudicial to the administration of justice.
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2
Q

Requirements During Bar Admission

A

True and Full Discolusre

Duty to Cooperate

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3
Q

Requirements of Already Barred Lawyers Regarding Applicants

A

They have no duty to good applicants. For bad applicants, they have a duty to disclose negative information when asked.

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4
Q

Regulation of Members

A

Lawyers are a self-regulating profession. They must report when they know of a substantial violation and they must do so in a way that makes them available to testify against the accused (i.e. not anonymously).

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5
Q

Multijurisdictional Practice

A

The rules regarding the unauthorized practice of law still apply. Additionally, a multijurisdictional firm must indicate the jurisdictional limitations of those members not authorized to practice where the office in question is located.

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6
Q

Temporary Multijurisdictional Practice in Nevada

A

Permitted for people who

  • are not members of the NV state bar
  • are not residents of NV
  • are not regularly employed in NV
  • are not engaged in substantial business, professional, or other activities in NV
  • are in good standing and eligible to practice back home

They must associate an active member of the NV bar in good standing to serve as the counsel of record in Nevada.

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7
Q

Lawyers Admitted to NV Bar but Living Outside NV

A

If they do not live in the state and do not have a P.O. Box or maildrop, they must designate a licensed NV attorney who does maintain an office in the state to receive service on their behalf.

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8
Q

Defining the Practice of Law

A

Represent Clients in Hearing or Depositions
Drafting Legal Documents
Negotiating for Clients

It is okay for non-lawyers to fill out forms, interview people, or draft legal memorandum.

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9
Q

Representing Clients who Lack Capacity

A

The attorney should seek the appointment of a guardian ad litem but strive to include the minor or incapacitated adult whenever possible and to the extent reasonable.

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10
Q

Competence

A

Physical and Mental Ability
Legal Knowledge
Time

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11
Q

Hindering a Lawyer’s Right to Practice

A

Noncompete agreements are not valid unless they are part of a retirement agreement.

A lawyer may not enter into a settlement in which she agrees not to practice law as a condition of the settlement.

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12
Q

Sales of Law Practices

A

A lawyer may sell his law practice so long as the seller:

  • ceases to engage in the practice of law or the area of the practice that is sold
  • in the geographic area where the practice is conducted
  • for no less than 6 months

Generally, the entire practice must be sold. Additionally, the fee charged to the client cannot increase. The attorney must provide notice delivered by certified mail or personally to each client and it must specify the clients right to retain other counsel or take possession of the case file.

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13
Q

Advertising

A

Trade names are okay but they cannot be misleading.

They cannot suggest an association with a city, state, or branch of government.

Any names used must be members of the firm (although they can be dead).

If the members of the firm are removed permanently (i.e. disbarment, ambassadorship, etc.) they must be removed from the name of the firm.

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14
Q

Specialization or Expertise

A

Specialization is recognized in patent and admiralty law.

A lawyer may list a specialization if they are certified by the Nevada State Bar Board of Governors and meet the following conditions:

  • Devoted at least 1/3 of his practice to the specialty in question for the previous 2 calendar years.
  • Completed at least 10 hours of CLE in the area of specialty in the previous year.
  • Carries a minimum of $500,000 in malpractice insurance.
  • Registers with the State bar and pays a fee and submits all reporting and compliance forms.
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15
Q

Advertising

A

Must be true and not misleading.

Must list the name of at least one lawyer responsible for its content.

Must be able to be factually verified upon request.

If advertising a specific fee or fee range, it must list the limitations of that fee.

Every ad regarding contingent fees must state that the client may have to pay the other side’s fees and costs in the event of a loss.

Must state if it uses actors

Must not reference a past result or success unless the lawyer was lead counsel or primarily responsible for the verdict.

Must not guarantee, warranty, or predict a verdict.

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16
Q

Sample Contracts

A

Any information furnished to a client regarding a fee contract should say SAMPLE in red ink at the top of each page and should hve the words DO NOT SIGN where the signature is.

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17
Q

Advertising Filing Rules

A

Any communication that is disseminated in any form must be supplied to the State Bar of Nevada within 15 days of the first dissemination (does not apply to websites).

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18
Q

Data Forms

A

All practicing lawyers must be able to provide a form that states the name and address of each lawyer, the date and jurisdiction of the initial and subsequent admissions to practice, the name of the law school and year of graduation, and areas of specialization.

This must be supplied within a reasonable time upon request by the state bar, a client, or a prospective client. It may also contain much more info, but the above is mandatory.

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19
Q

Solicitation of Clients

A

Lawyers may not seek employment through targetted communications that are directed to a specific person. However, this does not apply to family members, prior clients or professional relationships, and pro bono cases.

Billboards, websites, responses to requests for info, and automatically generated search responses do not count.

You may send direct mail to people in a class but it must be marked with the words NOTICE: THIS IS AN ADVERTISEMENT and on each page of the ad itself in red ink.

Also, for personal injury or wrongful death cases, you cannot contact the injured, family members, or potential opposing party for 30 days following the accident.

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20
Q

Defining Prospective Client

A

A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter.

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21
Q

When has a Consultation Occurred

A

A lawyer either in person or through advertising specifically requests or invites the submission of information about potential representation without clear warnings that limit the lawyer’s obligations.

A consultation does not occur when a person responds to an ad that merely contains the lawyer’s biographical information, contact information or specialties.

Someone who contacts an attorney in an attempt to disqualify them by creating a conflict of interest is not considered to have a valid consultation.

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22
Q

Basic Rule for When Representation Occurs

A

When a client manifests an intent that there is representation and the lawyer agrees or when the client manifests an intent and the lawyer fails to make it clear there is no representation, despite knowing the client is relying on the representation.

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23
Q

Privilege

A

Protection or confidential client communications. It covers any information obtained by the attorney relating to the representation regardless of the source and includes information that may be embarrassing or derogatory to the client.

Layers have an affirmative duty to protect privilege and the reasonableness of the lawyer’s efforts will depend on the circumstances. In NV only, presence of the third party does not destroy privilege if the person was present to help further the attorney-client relationship.

24
Q

Exceptions to Confidentiality

A

Law or Court Order

With Clients informed consent

To prevent reasonably certain death or substantial bodily harm

Prevent the client from committing crime or fraud or to mitigate after discovery.

To secure legal advice about the lawyer’s compliance with the Rules.

To establish a claim or defense in a controversy between the lawyer and the client

25
Q

Inadvertently Sent Document Problem

A

The recipient must promptly notify the other party, regardless of whether the information came from the other party, a third person, or anonymously. However, there is no obligation to return the document, although the other party may ask nicely if you will.

26
Q

Lawyer as a Third Party Neutral

A

Must tell unrepresented parties that there is no attorney-client relationship between them. If the lawyer does not believe the third party understands this, the lawyer has a duty to clarify their role with that party.

27
Q

Conflicts of Interest with Current Clients

A

An attorney cannot take on or continue a matter if the client is directly adverse to another client or if there is a significant risk that the representation will be materially limited by the lawyer’s duties to another client, a former client, a third person, or by the lawyer’s personal interest.

The only way to address a current client conflict is if a reasonably prudent lawyer would take the case and all the clients give their informed consent confirmed in writing.

28
Q

Informed Consent

A

Client agrees after the lawyer explains the material risks and reasonable alternatives and the client confirms in writing, which can be electronic.

29
Q

Business Transactions with Clients

A

A business transaction with a client or a pecuniary interest that would be adverse to the client must be:

Fair
Fully disclosed to the client in understandable terms
Client is advised in writing and given time to get a lawyer
Client consents in a writing and signs the document

30
Q

Financial Assistance for Clients

A

A lawyer cannot provide financial assistance to a client in connection with pending or contemplated litigation.

They may advance court fees and costs, including litigation expenses, providing payment is contingent on the outcome. If the client is indigent, you can pay court costs and expenses outright.

31
Q

Gifts from Clients

A

A lawyer must not solicit substantial gifts from a client, including testamentary gifts.

A lawyer must not prepare an instrument on behalf of the client giving the lawyer or the lawyers relatives any substantial gift.

This does not apply to clients related to the lawyer.

32
Q

Literary/Media Rights

A

A lawyer cannot obtain literary or media rights to an account based substantially on information relating to representation until the representation is completely over.

33
Q

Limiting Malpractice Exposure

A

You cannot limit exposure by getting your client to agree not to sue you prospectively for malpractice unless the client has independent legal representation.

34
Q

Representing a Corporation

A

Your duty is to the corporation, not any of the individuals involved. You may represent the some of the individuals, but those representations are subject to the normal rules for conflict of interest.

You have a duty to report illegal activity up the chain of command to the CEO. If there is no appropriate response, you MUST report to the board of directors and you MAY report to outside authority.

35
Q

Lawsuits Between Current and Former Clients

A

You may sue a former client on behalf of a current client unless:

The matter involved is the same or substantially related to the transaction in which you represented the former client,

Or if you learned confidential information that is now relevant to the current client during your representation of the former client.

36
Q

Moving Firms

A

You cannot sure a former client at a different firm if you have material information about the matter.

If a lawyer leaves the firm and take a client with them, the old firm can only sue that client if no one who is remaining at the firm has material confidential information related to that client.

37
Q

Rule of Imputed Disqualification

A

When a lawyer is disqualified due to a conflict, the entire firm is disqualified unless screening is sufficient.

When the conflict is uniquely personal, the conflict may be handled with screening.

In Nevada, imputation applies to non-lawyer employees of a firm as well, so long as the employee actually acquired privileged or confidential information. The hiring firm has the affirmative duty to investigate new hires and screen as needed.

38
Q

Screening

A

A lawyer is properly screened when he or she is prohibited from accessing the file, having any discussion about the file, and will not receive any fees associated with the case.

39
Q

Reasonable Fees

A

Time and Labor
Novelty and Difficulty of the Case
Requisite Skill
Customary Fee for similar work within the locality
Experience, Ability, and Reputation of Lawyer
Interference with Other Employment by the Attorney
Time Limitations Impose by Client

Lawyers have an affirmative duty to notify client of changes in the basis of rate or charges.

40
Q

Fees

A

Need not be in writing although writing is preferred

Must state the scope of the representation and the basis or rate of fees/expenses.

This does not apply if you’re changing a regular client the same rate as usual.

41
Q

Contingent Fees

A

May not be charged in domestic relations cases (does not apply to debt collection for DR cases).

Capped for medical malpractice in Nevada, so as to help keep doctors in Nevada.

Must be in writing and must state the terms and basis for the fee in boldface in the same size as the largest font in the document. Must specify the rate for settlement, trial, and appeal, whther it will be deducted from the recovery, whether its calculated before or after expenses, whether the client is liable for expenses regardless of the outcome, and whether the party might be liable for the other side’s fees.

At the conclusion, the lawyer must provide a written statement with the outcome of the matter.

42
Q

Profit Sharing with Non-Lawyers

A

Don’t do it unless:

Its a salary, bonus, or profit sharing for employees.

It’s to a spouse of a deceased partner.

It’s to a non-profit organization that retained the lawyers on that matter.

43
Q

Referral Fees

A

Division is permissible (and need not be in proportion of the work of each lawyer) if:

The total fee is reasonable
The client is advised of the referral
The client agrees in writing

44
Q

Types of Retainers

A

Advance on Fees (the client pays a base amount and replenishes it as its used).

Availability Retainer (the client pays the lawyer to be available to him on the matter and the lawyer keeps it regardless of whether he is ever needed).

45
Q

Trust Accounts

A

Must be identified as such, maintained in state, and maintained by a state-approved institution.

The lawyer must also direct the bank to remit interest electronically to the designated tax-exempt foundation.

46
Q

Supervising Lawyer’s Responsibility

A

A supervising lawyer will be held responsible for a subordinate’s conduct if they ordered or ratified the conduct, or if they failed to take action to mitigate the consequences once they found out about it.

47
Q

Communications with Jury

A

Lawyers may questions jurors to ascertain the basis for any challenge and then during opening statement and closing argument.

After the trial, they may contact jurors to see if the verdict is subject to legal challenge but they may not do it to harass or coerce the juror or if the juror makes it known they do not wish to speak.

48
Q

Ex-Parte Communications with Judge

A

De minimis is okay
Settlement Conferences (if everyone agrees)
During Emergencies

49
Q

Distinguishing a Corporate Witness from a Party

A

Nevada uses the ‘Managing Speaking Agent Test’ to determine which employees will be considered a “client” for purposes of ex-parte communication. The inquiry is whether the employee has the legal authority to bind the corporation.

50
Q

Withdrawal (Must)

A

An attorney MUST withdraw when

The representation violates the RPC or law

Their physical or mental condition materially impairs their ability to represent.

They are fired.

51
Q

Withdrawal (May)

A

If it can be accomplished without material adverse effect on the client’s interests.

Client persists in a course of action that is criminal/fraud or uses the lawyer’s services to do so.

Client’s objective is repugnant to the lawyer.

Client fails to fulfill obligations to the lawyer despite reasonable warnings the lawyer will withdraw.

Representation results in an unreasonable financial burden.

Other good cause.

52
Q

Special Duties of the Prosecutor

A

Proceed only on probable cause

Protect defendant’s right to counsel.

No seeking advantage from unrepresented.

Must disclose Brady material

Limiting extra-judicial statements of others under prosecutor’s control.

Promptly disclosing new, credible, and material evidence that creates a likelihood that a convicted person is innocent.

Seek to remedy a conviction when the prosecutor knows by clear and convincing evidence that the person is innocent.

53
Q

Refusing Appointments

A

A lawyer may only refuse an appointment when it:

Leads to a violation of the rules or the law.

Creates an unreasonable financial burden on the attorney

The cause is so repugnant that it impairs the attorney’s ability to perform.

54
Q

Reporting Misconduct of Lawyers

A

A lawyer who has knowledge of any action, inaction, or conduct that constitutes substantial misconduct under the RPC MUST inform the appropriate authority.

Disclosure is not required if the info is gained through an approved lawyer’s drug or alcohol program or if it is related to the representation of a client.

55
Q

Pro Bono Publico

A

Every lawyer in NV has a professional responsibility to provide 20 hours of legal services for those unable to pay each year. However, this is an aspirational goal.

Professional Responsibility (2 decks)

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