Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

PR > PR > Flashcards

PR Flashcards

1
Q

What are lawyer’s various functions, and how do they relate, according to the ABA preamble?

A

Lawyers various functions: advisor, advocate, negotiator, evaluator. Sometimes also third party neutral. A lawyer’s responsibilities as a representative of clients, an officer of the legal system and a public citizen are usually harmonious.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

When do ethical issues arise according to the ABA preamble?

A

Virtually all difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interest in remaining an ethical person while earning a satisfactory living.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

What happens when a lawyer does not follow the ABA rules?

A

Failure to comply with an obligation or prohibition imposed by a Rule is a basis for invoking the disciplinary process. Disciplinary assessment of a lawyer’s conduct will be made on the basis of the facts and circumstances as they existed at the time of the conduct in question and in recognition of the fact that a lawyer often has to act upon uncertain or incomplete evidence of the situation. Whether or not discipline should be imposed for a violation, and the severity of a sanction, depend on all the circumstances, such as the willfulness and seriousness of the violation, extenuating factors and whether there have been previous violations.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

How does civil liability relate to a violation of the ABA rules?

A

The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

What is the purpose of the ABA preamble and scope?

A

The Preamble and this note on Scope provide general orientation.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

What does ABA rule 5.5 cover?

A

unauthorized practice of law; multijurisdictional practice of law.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

How does the Oregon 5.5 rule differ from the ABA?

A

Oregon requires lawyers providing legal services in connection with a pending or potential arbitration to certify to OSB that the lawyer is in good standing wherever admitted, and unless the lawyer is in-house counsel/government employee, the lawyer carries prof. liability insurance equivalent to ORegon lawyers or has notified the client they don’t have insurance.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

What does ABA rule 8.1 cover?

A

Bar admission and disciplinary matters

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

How does the Oregon 8.1 rule differ?

A

Oregon requires lawyers to report to the OSB commencement against the lawyer of disciplinary proceedings in other jurisdictions; a lawyer who is the subject of a complaint shall cooperate with the committee or designees, including responding to initial inquiry, furnishing any documents relating to the matter, participating in interviews, and participating in remedial programs established.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

What does ABA Rule 8.2 cover?

A

Judicial and legal officials

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

How does the Oregon 8.2 rule differ?

A

It is identical to the ABA.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

What does ABA Rule 8.3 cover?

A

Reporting professional misconduct

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

How does the Oregon 8.3 rule differ?

A

expands the rule slightly, to cover more than 1.6 information gained while participating in an approved lawyer assistance program.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

What does ABA Rule 8.4 cover?

A

Misconduct

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

How does the Oregon 8.4 rule differ?

A

It is not professional misconduct for a lawyer to advise clients about lawful covert activity. Covert activity = an effort to obtain information on unlawful activity through the use of misrepresentation or other subterfuge. A lawyer shall not be prohibited from engaging in legitimate advocacy under the bases in (a)(7) (identities).

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

What does ABA Rule 8.5 cover? What is the summary?

A

Disciplinary Authority; Choice of Law

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

How does Oregon Rule 8.5 compare?

A

It’s identical to the ABA.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

What does Oregon rule 8.6 have that the ABA doesn’t?

A

Oregon 8.6 - Allows for written advisory opinions on professional conduct; allows consideration of a lawyer’s good faith effort to comply with an opinion or the rules.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

What is the admission to the bar standard in Oregon?

A

At least 18 years old
Have “good moral character”; fit to practice law.
Pass the bar exam.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

What is good moral character, and who must establish it?

A

Good moral character = Not conduct reflecting moral turpitude, not conduct that would cause a reasonable person to have substantial doubts about honesty, fairness, and respect for the rights of others and for the laws of the state and the nation.

Burden is on the individual to establish their own good moral character.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

What are the 3 things most likely to cause difficulty with admission?

A

Lie on the bar application, or omit information on the bar application.
Recent criminal conduct
Involvement in fraud or money issues

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

What are the questions asked when someone would be disbarred, and why are they relevant to the application process?

A

(persuasive in whether someone should be admitted):
The seriousness of the crime of which applicant was convicted
The length of time during which criminal conduct occurred
The commission of more than one offense
The presence of aggravating factors

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

What is the standard for reinstatement to the bar, and who must establish it?

A

Reinstatement standard is same as the standard for admission.An applicant for reinstatement to the practice of law in Oregon shall have the burden of establishing by clear and convincing evidence that the applicant has the requisite good moral character and general fitness to practice law and that the applicant’s resumption of the practice of law in this state will not be detrimental to the administration of justice or the public interest. Clear and convincing evidence means that the truth of the facts asserted is highly probable

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

What time frame does good moral character evaluate?

A

The determination of good moral character is not based solely on an absence of present moral turpitude, but also on whether there is “a reasonable assurance that the misconduct which brought petitioner before this court once before will not reoccur.”

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

What is the standard for rehabilitation of character, and who must establish it?

A

When trying to establish rehabilitation, the initial burden on establishing good moral character in rehabilitation is on the applicant.
Generally, you have to show truly exemplary conduct, over a substantial period of time.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

What does rule 1.16 cover?

A

declining or terminating representation; Ending an attorney client relationship before its natural end

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

What does rule 1.18 cover?

A

duties to prospective client;

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

What does rule 3.1 cover?

A

meritorious claims and contentions (frivolous lawsuits)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

What does rule 6.1 cover?

A

voluntary pro bono publico service

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

What does rule 6.2 cover?

A

Accepting appointments; lawyers shall not seek to avoid appointment except for good cause.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

How does withdrawal change as time goes on?

A

The longer you represent your client in a matter, the harder it will be to end representation.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
32
Q

What is frivolous?

A

claim or proceeding that has no basis in law or fact.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
33
Q

Pro Bono Publico

A

for the good of the public

34
Q

What is the difference between the ADA pro bono standards and the Oregon pro bono standards?

A

ADA = expectation of 50 hours, Oregon = expectation of 80 hours, 20 to 40 or two cases of which is service to the poor without expectation of compensation.

35
Q

How much can lawyers choose the cases they take?

A

Lawyers have the freedom to select clients or causes. This freedom is, however, qualified. Lawyers have a responsibility to assist in providing pro bono publico services, and lawyers may be subject to appointment by a court to serve unpopular clients/matters or persons unable to afford legal services.

36
Q

What are the factors to be considered whether counsel should be appointed for an indigent plaintiff

A

The factual complexity of the case
The ability of the plaintiff to investiate the facts
The existence of conflicting testimony
The plaintiff’s ability to present his claims, and
The complexity of the legal issues.
An additional factor is the plaintiff’s ability to obtain counsel on his own.

37
Q

Under what circumstances is it appropriate for a court to deny appointed counsel to an indigent plaintiff?

A

When marketability of the claim(s) asserted, rather than indigency of the client, has prevented plaintiff from obtaining counsel, the notions of equal justice have not been offended. Appointment is therefore not reasonably necessary to the administration of justice.

38
Q

What is the difference between solicitation and advertising?

A

Client getting activity that involves personal contact which is initiated by a lawyer and a specific potential client is called solicitation; to distinguish it from advertising, which is general communication with the public at large.

Solicitation has traditionally been punished more harshly than advertising.

39
Q

When is a communication false or misleading?

A

A communication is false or misleading if it:
Contains a material misrepresentation of fact or law; or
Omits a fact necessary to make the statement considered as a whole not materially misleading.

40
Q

What purpose does the rule against solicitation serve?

A

The rule of solicitation prevents undue pressure from lawyers attempting to get hired. Guards against overreaching, intimidation, undue influence.

41
Q

What was the holding of Bates?

A

Advertising is commercial speech protected under the First Amendment.
There may be reasonable restrictions on the time, place, and manner of advertising.

42
Q

What is the Central Hudson test?

A

The government may freely regulate commercial speech that concerns unlawful activity or is misleading. Commercial speech that falls into neither of those categories, like the advertising at issue here, may be regulated if the government satisfies a test consisting of three related prongs: first the government must assert a substantial interest in support of its regulation; second, the government must demonstrate that the restriction on commercial speech directly and materially advances that interest; and third, the regulation must be “narrowly drawn”.

43
Q

What does ABA Rule 7.1 cover?

A

Communications concerning a lawyer’s services, which applies to advertising as well as general communications

44
Q

What does ABA Rule 7.2 cover?

A

Communications concerning a lawyer’s services: specific rules (specific to advertising)

45
Q

What does ABA Rule 7.3 cover?

A

Solicitation of clients

46
Q

What does ABA Rule 7.6 cover?

A

Political contributions to obtain government legal engagements or appointments by judges.

47
Q

What does ABA Rule 1.5 cover?

A

Fees and the factors determining reasonableness of fees.

48
Q

What does ABA Rule 1.8 (e) cover?

A

Financial assistance to a client.

49
Q

What does ABA Rule 1.15 cover?

A

Safekeeping property.

50
Q

What does ABA Rule 1.1 cover?

A

Competence.

51
Q

What does ABA Rule 1.2 cover?

A

Scope of representation and allocation of authority between lawyer and client.

52
Q

What does ABA Rule 1.3 cover?

A

Diligence

53
Q

What does ABA Rule 1.4 cover?

A

Communication.

54
Q

What does ABA Rule 1.8(h) cover?

A

Malpractice claims

55
Q

What does ABA Rule 5.3 cover?

A

Responsibilities regarding nonlawyer assistance.

56
Q

What does ABA Rule 5.4 cover?

A

Professional Independence of a lawyer (shall not share legal fees with a nonlawyer)

57
Q

How are fees regulated under the ABA?

A

Fees must be reasonable. Rule 1.5 provides criteria for what is reasonable.

58
Q

What are the features of the billable hours treadmill?

A

quantity over quality,
repetition over creativity,
Doesn’t encourage the lawyer to prepare or plan at the outset
doesn’t enable the client to predict how much the legal services will cost
Penalizes efficient, productive lawyer while reward slow work that racks up many billable hours
May discourage communication between lawyer and client

59
Q

What is a fixed fee? When is it commonly used?

A

A fixed or flat fee is a specified dollar figure the firm will charge the client for a specified piece of legal work. Common for contractual matters like wills.

60
Q

What is a contingent fee? When is it commonly used?

A

Contingent fee depends entirely on the outcome of the matter. Common for personal injury.

61
Q

What is a hybrid fee?

A

Hybrid alternatives combine two or more billing methods. A common hybrid is a flat fee plus an hourly rate for work in excess of a specified minimum.

62
Q

What is a retainer?

A

ABA Rule 1.15(c) - legal fees paid in advance must be put into the client trust account, to be withdrawn by the lawyer only as fees are earned. This advance payment is often called a retainer.

63
Q

What are the two types of retainers?

A

A deposit for specific work to be performed in the future.

A deposit to be available to the client should they need you.

64
Q

What is legal malpractice?

A

The term legal malpractice refers to the attorney’s civil liability to a client or other injured person for professional misconduct or negligence.

65
Q

How is malpractice different from a bar complaint?

A

Difference between malpractice and bar complaint:
The forum for malpractice is a civil court, not a disciplinary hearing
The attorney’s adversary in malpractice is an injured person, not disciplinary authority
The purpose of a malpractice action is to obtain compensation for the injured person, not necessarily to punish the attorney or protect the public

66
Q

Who does an attorney owe a duty of care to?

A

An attorney owes a duty of care to:
1. A client
2. A prospective client
3. A nonclient if the attorney invites the nonclient to rely on work the attorney does for a client, and the nonclient does rely (or if the client does the inviting and the attorney does not object)
4.A nonclient if the attorney knows that one of the client’s primary reasons for getting the legal service is to benefit the non-client
5. A nonclient if the client breaches a fiduciary duty:
If the lawyer knows he must act to prevent or rectify a breach or if the lawyer helped the client commit the breach
If the nonclient is not reasonably able to protect himself; AND
If the duty of care to the nonclient will not significantly impair the lawyer’s ability to perform his duty to the client.

67
Q

What is the standard of care an attorney must exhibit to not be liable for malpractice?

A

If the attorney defendant is a general practitioner, then the standard of care is the skill and knowledge ordinarily possessed by attorneys under similar circumstances.

If an attorney purports to be a specialist, or acts in a specialized area of the law, then the attorney must exercise the skill and knowledge possessed by attorneys who practice that specialty.

68
Q

What was the rule from Hodges v. Carter?

A

An attorney who acts in good faith and in an honest belief that his advice and acts are well-founded and in the best interest of his client is not answerable for a mere error of judgment or for a mistake in a point of law which has not been settled by the court of last resort in his state and on which reasonable doubt may be entertained by well-informed lawyers.

69
Q

What is the concept of well-informed in relation to an attorney?

A

a lawyer is expected to know the settled principles of law: if she does not know them, she is expected to look them up, using the standard research techniques used by ordinarily prudent attorneys. If the answers are there to be found, and if she does not find them, she has breached the duty of care.

70
Q

What does Rule 1.6 cover?

A

confidentiality of information

71
Q

What does Rule 1.8 cover?

A

Conflict of interest

72
Q

What does Rule 1.9 cover?

A

Duties to Former Clients

73
Q

What does Rule 3.3 cover?

A

Candor Toward the Tribunal (don’t lie to the court or provide false evidence)

74
Q

What does Rule 3.4 cover?

A

Fairness to opposing party and counsel

75
Q

What does Rule 4.1 cover?

A

Truthfulness in Statements to Others.

76
Q

What is attorney-client privilege? Who does it apply to? When does it apply?

A

Attorney-client privilege gives the client a legal right to prevent a witness from revealing confidential communications between the client and his or her attorney, or between their respective agents. The holder of the privilege is the client; the attorney can invoke the privilege on behalf of the client, but not on the attorney’s own behalf. The privilege applies whenever a governmental body can use the twin powers of subpoena and contempt to compel the giving of the information.

77
Q

What ABA Rule does attorney-client privilege go hand-in-hand with?

A

Rule 1.6, confidentiality of information.

78
Q

How does Rule 1.9 affect Rule 1.6?

A

1.9(b)(2) extends confidentiality under 1.6 and 1.8(b) to information pertaining to former clients.

79
Q

How does Rule 3.3 relate to Rule 1.6?

A

Just because you can’t disclose information under 1.6, does not mean that you may make false statements or allow false evidence under 3.3. If there is a conflict between the duties under 3.3 and 1.6, then the duty under 3.3 overcomes 1.6. - this is laid out in 3.3(c)

80
Q

What is the trilemma?

A

The tension between:

Client’s trust, client’s confidential information, attorney’s duty of candor

81
Q

Who does the duty to act fairly during litigation apply to?

A

The duty to act fairly during litigation includes your behavior not only towards opposing counsel and towards the judge, but also towards jurors and witnesses.

PR (1 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions