PR Class Review Flashcards
1
Q
generally, who do lawyers owe duties to?
A
client, 3P, bar, court, witnesses, opposing parties
2
Q
what are sources of the model rules?
A
model rules, case law (attorney discipline, malpractice, constitutional law), ethics opinions, CLE, agency law, restatement 3d of lawyering, regulations, legislation
3
Q
what are the 2 types of rules in the model rules?
A
mandatory (shall/must)
permissive (may/should)
4
Q
what must a lawyer be when representing a client?
A
competent
5
Q
if a lawyer has an alcohol problem, what 2 duties does that implicate?
A
competency and diligence
6
Q
how must a lawyer act when representing a client?
A
with diligence and promptness
7
Q
who should clarify whether there is an attorney client relationship and should it be in writing?
A
the lawyer should clarify and it is recommended that it be in writing
8
Q
in order to act diligently, what should a solo practitioner do?
A
create a plan that designates another competent lawyer to review the client files, notify each client of the lawyer’s death/disability, and determine if there is a need for immediate protective action
9
Q
when does a lawyer have a duty to report another lawyer’s violation?
A
only when the other lawyer’s violation raises a substantial question about the lawyer’s honesty, trustworthiness, or fitness
10
Q
does a lawyer have to reveal confidential information learned about the lawyer/judge while in the course of an approved lawyer’s assistance program?
A
no
11
Q
what is the jurisdiction for a lawyer’s ethical violation?
A
the bar where the offense occurred and the bar in which the lawyer is a member
12
Q
when can a lawyer be disciplined for conduct outside the profession?
A
when the conduct involves character and fitness, specifically honesty
13
Q
what are the 3 main steps of the process if a lawyer violates the rules?
A
- complaint w/ state office
- investigation
- remedies/result
14
Q
what are the 6 outcomes of a disciplinary proceeding?
A
- complaint dismissed (nothing)
- private admonition
- public reprimand
- probation
- suspension
- disbarment
15
Q
can lawyers make false statements?
A
no
16
Q
if a misapprehension arises in a bar application, what must a lawyer do?
A
disclose facts necessary to correct the misapprehension
17
Q
does a lawyer have a duty to respond to a request for info made by a bar or disciplinary authority
A
yes
18
Q
what is misconduct under these rules?
A
conduct involving dishonesty, fraud, deceit, or misrepresentation
19
Q
do the rules for misconduct apply to bar applicants?
A
yes
20
Q
what 4 characteristics form the basis for lawyer discipline?
A
- dishonesty
- fraud
- deceit
- misrepresentation
21
Q
aside from misconduct involving dishonesty, fraud, deceit and misrepresentation, what other type of conduct must a lawyer not engage in?
A
conduct that is prejudicial to the administration of justice
22
Q
do rules that govern the attorney/client relationship also apply to lawyer/bar applicant relationship?
A
yes
23
Q
can states require US citizenship to join bar?
A
no
24
Q
what factors will a bar committee consider when examining a prior offense on a bar application?
A
- seriousness of the crime
- timing in life
- whether it involved misuse of $
- # of offenses
25
does a dean have a duty to disclose anything in law school that raises issues of character and fitness?
yes
26
what problems can requiring bar applicants to list prior offenses have?
disqualify good people, encourage dishonesty
27
when must a listening lawyer (bar application) report info about the bar applicant?
if approached specifically by the bar committee. But if in a relationship like attorney/client, lawyer does not have to respond
28
if there is no attorney/student relationship, can a lawyer lie about a bar applicant's info?
no
29
what is the problem w/ the bar asking about mental illnesses and disabilities?
discourages treatment, discrimination,
30
what does it mean for a lawyer to be competent?
lawyer has the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation
31
what is legal knowledge (in terms of competence)
lawyer's experience in field + lawyer's prep and study + lawyer reference
32
what is the required skill level of a lawyer?
general practitioner
33
can a lawyer give emergency advice in a field in which lawyer is not competent?
yes but only to the extent reasonably necessary
34
can a lawyer have a client waive malpractice action?
yes but only if the client consults with an independent lawyer
35
can a lawyer settle a malpractice suit w/ a client?
yes but client must consult w/ independent lawyer and it must be in writing
36
what are the 3 elements of a malpractice action?
1. employment as an attorney (establishes duty)
2. failure to exercise reasonable care (breach; WWRD)
3. causation (factual and legal)
- if civil: have to prove that had the client had good representation w/ necessary standard of care, client would have won
- if criminal: the client was actually innocent (not just not guilty verdict)
37
generally, a lawyer can limit the scope of the representation. What must the limitation be?
reasonable under the circumstances and approved by the client's informed consent
38
what is the John Adams' quote and what does it refer to?
"counsel is the last thing a man should lack in a free world:
-relates to representing a client w/ an unpopular viewpoint
39
what should you send when declining to represent a clien
a non engagement letter
40
what components should be in an engagement letter?
1. identify/limit scope of the representation
2. state the fee structure
3. nature of the relationship
4. ID other people in firm working on case
5. expenses
6. billing policy
7. general waiver of conflicts
8. client's signature
41
in the course of representation, what does the client control?
the objectives of the case: whether to settle, whether to have a jury trial and/or testify, and whether to take plea
42
in the course of representation, what does the lawyer control?
the strategy of the case
43
must a lawyer tell a client when a settlement has been proposed?
yes
44
is it okay for a lawyer to grant an extension to the other side w/o the client's consent?
yes
45
does taking a client constitute an endorsement of the client's political views?
no
46
what can the lawyer's fee not be?
unreasonable
47
what factors determine the reasonableness of the lawyer's fee
1. time/labor required
2. novelty/difficulty of the questions involved
3. skill required
4. whether lawyer will miss out on other work by taking this case
5. fees customarily charged in the locality
6. result obtained
7. time limitations
8. nature/length of relationship w/ client
9. experience/reputations of lawyer
10. fixed or contingent
48
when is the reasonableness of a fee examined?
at the beginning of the agreement
49
when should the fee be communicated to the client?
within a reasonable time
50
like the lawyer's fee, client expenses are also subject to...
reasonablenss
51
which fee must be in writing and signed
contingent fee
52
what must the lawyer disclose to client when using a contingent fee?
1. writing
2. signed by client
3. statement of the method of how fee is determined
4. whether expenses will be deducted before or after fee is calculated
5. ID expenses client will pay
53
if lawyer is using a contingent fee, what must the lawyer do at the conclusion of the representation?
send a letter tot he client stating the outcome of the case and showing the recovery
54
when are contingent fees prohibited?
- domestic relations matters when fee depends on securing divorce/alimony/property settlement
- criminal case
55
can you have a contingent fee when the lawyer is representing a client in an action to recover post-judgment balances
yes
56
what is a standard contingent fee?
1/3 of recovery
57
when can a lawyer split a fee w/ a lawyer outside the firm?
1. when the division is proportionate to the services each lawyer rendered or they share joint responsibility AND
2. client agrees to the arrangement, agrees to the share the lawyers will receive
3. agreement is in writing
4. total fee is reasonable
58
what is the general rule regarding COI and prospective clients?
generally a lawyer is okay if:
1. they did not get too much info
2. lawyer is screened
3. prospective client is informed in writing
59
can a lawyer be an agent for a client?
yes
60
when a lawyer is an agent for a client, what can the lawyer do?
bind the client
61
how must a lawyer act when acting as an agent?
as a fiduciary, owe duty of diligence and loyalty
62
where must client money be kept?
separately in the client trust account
63
in terms of $, what must the lawyer take care to do?
avoid commingling
64
does a fee arrangement for hourly fees have to be in writing
no
65
can the client pay in property?
yes so long as the lawyer does not take an interest in the property that is the subject of the action
66
when there is a dispute over the fee, which portion does the lawyer keep?
the portion in dispute
67
can a lawyer withdraw for any reason?
yes, so long as it doesn't hurt the client in a material way
68
when does the attorney client privilege applY
in judicial/other proceedings where the lawyer can be called to testify/produce evidence
69
what are the elements of the attorney client privilege?
1. communication
2. b/t protected people
3. made in confidence
4. for the purpose of obtaining/providing legal assistance
70
what are the 2 types of work product immunity?
1. ordinary work product
| 2. opinion work product (greater protection)
71
when does the duty of confidentiality apply?
in situations other than those where evidence is sought from the lawyer through compulsions of law
72
what does Upjohn stand for?
- expanded work product doctrine
- attorney/client privilege protects communications made b/t company lawyers and non-management employees
- rejected narrow control group (only employees that exercised direct control over the managerial decision of the company could have protection)
73
generally, what is the duty of confidentiality?
a lawyer shall not reveal information related to the representation of a client
74
what is confidential information
information relating to the representation of the client
75
when can a lawyer reveal confidential information?
1. client gives informed consent
2. disclosure is impliedly authorized
3. when lawyer believes dong so is reasonably necessary to:
- prevent reasonably certain death or substantial bodily harm OR
- prevent client from committing crime or fraud that will result in substantial injury to other
- get ethical advice from other lawyer
- if lawyer gets involved in civil/criminal action w/ client (defend or make claims)
- resolve COIs arising from the lawyer's change of employment
76
when can a lawyer enter into business w/ a client?
1. when terms are fair and reasonable
2. terms are in writing
3. client advised to seek independent counsel in writing
4. client gives informed consent
77
can a lawyer used learned CI to do something adverse to the client?
no
78
can a lawyer prepare paperwork to give himself a gift?
no unless the person giving the gift is related to the lawyer
79
does an imputed conflict travel when the lawyer switches firms
no unless the switching lawyer has actual knowledge. If this is the case, lawyer can be screened to prevent COI imputation
80
what must lawyers and judges not participate in (COI)
matters where they personally and substantially participated while in private practice unless the government gives informed consent
81
what does personally and substantially mean?
- relates to lawyer/judges in government
| - means the lawyer is involved in making decisions regarding the matter
82
if a lawyer moves to a new government agency, how should that new government agency be treated in terms of COI?
as a former client
83
it is unethical to imply that a lawyer has _____ ______ in a case
special influence
84
when advising a client what should a lawyer exercise?
reasonable independent judgment
85
what type of advice should a lawyer give a client?
candid advice
86
what does giving candid advice sometimes mean?
telling the client what they don't want to hear
87
what type of relationship should a lawyer maintain w/ a person w/ diminished capacity?
a normal lawyer-client relationship
88
when should a lawyer take protective action regarding a person w/ diminished capacity?
when the person is at risk of substantial physical, financial or other harm and can't act in their own interest
89
can a lawyer reveal CI when taking protective measures for a person w/ diminished capacity?
yes, but only to the extent reasonably necessary
90
can a lawyer counsel a person to break the law?
no but can counsel them about the consequences of their action
91
second guessing the client violates what duty?
duty of loyalty
92
when does a lawyer have a duty to report up in a corporation?
when:
1. company is in violation of legal obligation to organization or in violation of law that can be imputed to organization AND
2. is likely to result in substantial injury to organization
93
when can a lawyer reveal CI?
1. client gives informed consent
2. when the lawyer believes it's reasonably necessary to:
- prevent certain death or serious bodily injury
- prevent client from committing crime/fraud
- get ethical advice from other lawyer
- to defend or make claims
- comply w/ court order
- resolve COIs arising from lawyers change of employment
94
if the lawyer can't report up any further, what may a lawyer do?
report out
95
what does a lawyer have a duty to do when she receives and inadvertent disclosure through email?
notify the sender
96
when does the duty to report up not apply?
when lawyer is conducting an investigation about an alleged violation of law w/i an organization
97
when can a lawyer no longer represent a company and its CEOs?
when the individuals have done something illegal/inconsistent w/ the organization
98
if a person is represented, what must a lawyer do?
no talk to them about the subject or representation
99
when is it okay for a lawyer to talk to a represented person?
when the person's lawyer gives consent or there's a court order
100
can a lawyer coach their client on what to say to an opposing party?
split of authority; safe rule = no
101
can a lawyer who is representing himself pro se talk to a represented person
yes
102
is there an obligation to disclose harmful facts about your client in negotiation?
no unless the fact is that the client died
103
what are the two things in negotation where it's okay to puff?
1. the valuation of price
| 2. settlement authority
104
what should a lawyer avoid in negotiations?
material misrepresentations
105
ethically, when can a lawyer bring a suit/defend a case?
when there is a basis in law and fact and doing so is not frivolous
106
in terms of timliness in litigation, what must a lawyer do?
make reasonable efforts to expedite litigations consistent w/ the interests of the client
107
what duty does the lawyer owe to the court?
duty of cando
108
what does it means to act under the duty of candor?
- no false statements
- offer no false evidence
- offer no false testimony
- no misstatement of law or facts
109
does the lawyer have to disclose harmful witnesses that the other side doesn't know about?
no unless the client is misrepresenting who they are or they died
110
does a lawyer have a duty to disclose adverse legal authority?
yes, if the adverse legal authority is in the controlling jurisdiction and the lawyer knew about it
111
when does the ABA say dicta is legal authority?
when it's a decision that the court should clearly take into consideration when deciding the cse
112
to what additional thing does the duty of candor apply to?
depositions
113
does a lawyer have a duty to hand over evidence
yes but small exception to perform own investigation
114
does lawyer have a duty to say how they got evidence or where it came from?
no
115
if a client has possession of evidence and lawyer knows, must lawyer tell police?
no
116
if a lawyer knows where evidence is, can they go look at it?
yes, but cannot pick it up, touch it or move it
117
what type of info is not protected by attorney client privilege?
1. identity of client
2. amount of fee
3. ID of payment by the case file name
4. general purpose of work performed
118
when can the lawyer keep the client's name confidential?
when it would be the missing link that would tie the client to evidence
119
does a lawyer have a duty to disclose the location of a client?
no
120
what must a lawyer do if he knows a criminal client wants to testify falsely?
1. talk client into not testifying; threaten to withdraw
2. try and withdraw citing irreconcilable differences
3. if can't withdraw, inform court
- minority view = D proceeds in narrative
121
what must a lawyer do if he know a civil client wants to testify falsely?
not call D as witness
122
what must lawyer do if D gets on the stand and lies?
must take remedial measures if it's a material fact
| like convince D to rectify perjury, if not, tell court
123
when can a lawyer not interview a juror about a case
- prohibited by law/court order
- juror made it clear they don't want to talk
- lawyer uses misrepresentation, coercion, duress or harrasment
124
what is the special obligation that lawyers owe to the court
protect against criminal or fraudulent conduct
125
what type of fee can you not pay an expert?
contingent
126
generally, should a lawyer be a witness
no
127
when can a prosecutor charge someone w/ a crime?
when there is probable cause
128
what type of statements should a lawyer not make to the media
ones that will have a substantial likelihood of material prejudice
129
what type of info must a prosecutor disclose to the defense?
anything that "tends to negate the guilt" of the accused
130
in advertising, what must the lawyer avoid?
any false or misleading communications
131
when is face to face solicitation allowed?
when it's to a family member, former client, or someone w/ a close personal relationship
132
what must mailing materials state?
"advertising material" along w/ address and name of lawyer/firm
133
can a lawyer get paid for referrals
no
134
is it okay for a lawyer to say which field he works in in an ad?
yes but cannot say you are a specialist
135
can a lawyer use a trade name
yes so long as it doesn't imply affiliation w/ gov agency
136
why is attorney advertising allowed?
bates case; freedom of speech
137
what is pro hac vice?
- where a lawyer gets permission from court to appear in a case pending in a jurisdiction in which the lawyer is not licensed
- means "for this term/occassion"
138
does a corporate lawyer practicing law for her corporation only have to be licensed in the state where she is located
no
