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Essay Rules Flashcards > PR Essay > Flashcards

PR Essay Flashcards

1
Q

Acceptance

A

An attorney does not have a duty to accept a client, absent court appointment

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2
Q

Rejection (MR, CA)

A

MR: Attorneys are required to reject rep if:
i) it would violate a rule of ethics or law, or
ii) physical or mental condition would impair representation

CA:
i) there is no probable cause to bring the action and the action is being brought to harass or maliciously injure
ii) the claim is not warranted under existing law

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3
Q
A
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4
Q

Client decisions in criminal cases

A

The client decides whether to testify, waive a jury trial, or enter a plea.

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5
Q

Mandatory withdrawal (MR, CA)

A

An attorney must withdraw if:
i) failure to do so would result in violating ethics rules or other law
ii) physical or mental condition materially impairs (MR) / makes it unreasonably difficult (CA) to carry out rep effectively

CA: Additionally, a lawyer must withdraw if he knows or should know that the client is asserting a claim or defense without probable cause and for the purpose of harassing or maliciously injuring someone.

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6
Q

Permissive Withdrawal: MR

A

MR: a lawyer may seek to withdraw any time he can do so without materially harming the client. Can also withdraw with harm if:
(CRUUFF)

  • client engages in crime / used services to commit crime
  • client insists on course of action attorney finds repugnant
  • client has made rep unreasonably difficult
  • rep will result in unreasonable financial burden (not in CA)
  • client fails to pay lawyer’s fee
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7
Q

Permissive Withdrawal (CA)

A

CA: unlike MR, a lawyer cannot withdraw merely because no material harm. Situations include:
(CUUM)

  • client seeks to pursue crime, has used lawyer’s services to advance crime, wants to pursue criminal conduct
  • client insists on presenting unwarranted claim
  • client renders it unreasonably difficult to carry out
  • client breaches material term of agreement
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8
Q

Duties on termination

A

A lawyer has a duty to minimize harm on termination. This includes returning all papers and property and advance fees.

MR: may retain papers in order to obtain payment
CA: must promptly return everything

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9
Q

Fees

A

Any fee must be reasonable under the circumstances (MR) / not unconscionable (CA). Fees must be communicated to client before or within reasonable time after the relationship commences.

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10
Q

Written Fee Agreements (MR, CA)

A

MR: no writing requirement except for contingent fees

CA: written contract required for services exceeding $1,000 (except for corporate clients). Contract must:
i) State fees and services to be provided
ii) Be signed by both parties
iii) Be given to the client

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11
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A
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12
Q

Contingent Fees

A

Contingent fees are generally permitted, but NOT allowed in i) criminal cases or ii) domestic cases when fee is contingent on obtaining a divorce or amount of support recovered.

Failure to comply makes the agreement voidable by client, though attorney is still entitled to reasonable fee.

MR: Requires i) writing signed by client; ii) terms of calculating fees; and iii) expenses that clients are liable for.

CA: a duplicate copy of the agreement signed by the attorney and client must be provided to the client.

Requires: i) statement of contingency fee rate; ii) statement of disbursements and costs; iii) statement regarding required compensation of lawyer for matters outside the contract; iv) med mal statements.

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13
Q

Fee Splitting: Different Firms (MR, CA)

A

MR: allowed if:
- Fee is in proportion to services provided by each lawyer
- Client agrees in writing (CA: written consent)
- Total charged is reasonable (MR) / not unconscionable (CA)
- Total is not higher because of multiple attorneys

CA: also requires written agreement to divide fee

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14
Q

Referral Fees

A

MR: generally prohibited, unless i) paying fees of legal services plan; ii) paying approved lawyer referral service; iii) nominal gift of appreciation

CA: additionally, lawyer may give a gift or gratuity for a referral, if it was not offered in advance

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15
Q

AC Privilege Details (MR, CA)

A

MR:
DEATH: privilege is indefinite, and survives client’s death
CRIMEFRAUD: privilege doesn’t apply to communication relating to client’s future crime or fraud

CA:
DEATH: privilege terminates when the client’s estate is settled and the personal rep is discharged
CRIMEFRAUD: privilege doesn’t apply to communication relating to ANY future crime or fraud
CRIMEDEATH: privilege doesn’t apply if lawyer reasonably believes disclosure is necessary to prevent criminal act likely to result in death or substantial bodily harm

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16
Q

AC Privilege

A

Applies in judicial and other legal proceedings in which a lawyer may be called as a witness/otherwise asked to provide evidence relating to a client.

Confidential communications between a client and his lawyer are privileged if:
i) The client intends for communication to be confidential, AND
ii) The communication is for the purpose of seeking legal advice and representation.

Exceptions:
- Disputes between attorney and client or between clients

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17
Q

Work Product Doctrine

A

Material created by attorney in anticipation of litigation is shielded from discovery. Work product is discoverable if court determines denial will unfairly prejudice the party seeking discovery or result in an injustice.

CA: a writing reflecting lawyer’s impressions, conclusions, opinions, or legal research or theories is NEVER DISCOVERABLE.

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18
Q

Duty of Confidentiality

A

A lawyer is prohibited from disclosing any information relating to the representation of a client, unless:
i) the disclosure is authorized by the informed consent of the client or
ii) impliedly authorized in order to carry out the representation.

A lawyer must take reasonable precautions to safeguard confidential information. This duty covers prospective client conversations.

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19
Q

Confidentiality Exceptions (MR, CA)

A

MR: a lawyer MAY reveal to prevent “reasonably certain” death or substantial bodily harm

CA: Same. before revealing, must make a good-faith effort to persuade client and inform them of decision

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20
Q

Conflicts of Interest (Loyalty)

A

A lawyer owes their client a duty of loyalty. A lawyer’s professional judgment can be compromised by a conflict of interest, and a lawyer can be in breach of the duty of loyalty when a potential or actual conflict arises.

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21
Q

Personal Conflicts

A

A lawyer must not represent a client if representation may be materially limited by the lawyer’s own interests, UNLESS:
i) the lawyer reasonably believes he can provide competent and diligent representation to the affected client;
ii) the rep is not prohibited by law; AND
iii) the affected client gives informed consent confirmed in writing.

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22
Q

Opposing lawyers related (MR, CA)

A

MR: a lawyer related to another lawyer may not rep a client in a matter in which other lawyer is representing another party, except with informed consent of both parties.

CA: even if no risk of material limitation, a lawyer may not rep a client in a matter in which the lawyer knows or reasonably should know the other party’s lawyer is a relative, lives with the lawyer, is a client, or has an intimate personal relationship, except if lawyer informs client in writing.

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23
Q

Sexual relations

A

No sexual relations unless pre-dated the AC relationship. Can’t waive. In CA, ok if spouse or domestic partner.

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24
Q

Lawyer as witness

A

A lawyer may not act as an advocate at trial in which they are likely to be a necessary witness, unless:
i) testimony is about an uncontested issue or
ii) testimony relates to nature and value of legal services, or
iii) MR: disqualification would work substantial hardship to client
iv) CA: lawyer has obtained client’s written informed consent.

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25
Q

Financial Assistance to Client

A

MR: No financial assistance to client for litigation, except can advance litigation costs. Client remains liable (except indigent), but can be contingent on outcome.

CA: Cannot directly or indirectly pay ANY personal or business expenses of client, but can:
- pay third persons;
- advance litigation costs with contingent repayment;
- lend money if client promises in writing to repay.

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26
Q

Business Transactions

A

A lawyer must not enter into business transaction with a client or knowingly acquire an adverse interest to the client, UNLLESS:
i) terms are fully disclosed in writing
ii) terms are fair and reasonable
iii) client understands the terms
iv) client consents in writing; AND
v) client is encouraged to seek independent counsel and given an opportunity to do so.

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27
Q

Malpractice Agreements

A

MR: can limit if client is represented by an independent lawyer when makes agreement.

CA: Cannot prospectively limit malpractice liability.

28
Q
A
29
Q

Current Client Conflicts

A

A lawyer must not represent a client: (DAML)
i) if doing so would be directly adverse to the interests of another current client, OR
ii) there is significant risk the rep will be materially limited by the lawyer’s responsibilities to the client.

UNLESS: (Really Lilly Silly Illy)
i) lawyer reasonably believes (subjective and objective) that she will be able to provide competent and diligent representation to each affected client;
ii) representation is not prohibited by law
iii) representation does not involve rep of parties on both sides of same litigation or proceeding AND
iv) each affected client gives informed consent, confirmed in writing (MR) / informed written consent (CA)

30
Q

Current and Former Client

A

A lawyer who has previously represented a client must not later represent another person in the same or substantially related matter if that person’s interests are materially adverse to the former client’s interests.

UNLESS the former client gives informed consent, confirmed in writing (MR) / informed written consent (CA)

31
Q

Same or substantially related matter

A

same transaction or dispute as former client’s OR involves substantial risk that confidential factual info will advance new client’s position

32
Q

Switching Firms

A

A lawyer who switches firms cannot knowingly represent someone in S/SRM when previous firm represented someone whose interests are materially adverse and about whom lawyer acquired confidential info.

33
Q

Imputation of Conflicts (Former Firm) (MR, CA)

A

MR: conflict is imputed unless: i) lawyer is timely screened and given no part of fee; ii) written notice is given to affected former client; iii) certification of compliance provided to former client.

CA: if lawyer substantially participated in same or substantially related matter, screening is not enough

34
Q

Prospective client (MR, CA)

A

A lawyer may not represent a client with interests materially adverse to those of a prospective client in the same or substantially related matter if lawyer received info from the prospective client that could be significantly harmful (MR) / material to the matter (CA).

UNLESS the client gives informed consent, confirmed in writing (MR) / informed written consent (CA), or lawyer is timely screened and prospective client gets notice.

34
Q

Government lawyers

A

cannot represent a client in a matter in which participated personally and substantially , UNLESS government agency gives informed consent confirmed in writing (MR) / informed written consent (CA)

35
Q

Third Party Payment

A

A lawyer may not accept payment from a third party for representation, UNLESS:
i) client gives informed consent (MR) / informed written consent (CA)
ii) there is no interference with lawyer’s judgment; AND
iii) lawyer-client confidentiality is preserved.

36
Q

Duty to Organization

A

A lawyer owes duties of loyalty and confidentiality to the organization, not the individuals. Must make it clear who the lawyer is representing when speaking with individuals.

37
Q

Reporting within Org (MR, CA)

A

When learn of action associated with org that will likely cause the org substantial injury, must proceed as is reasonably necessary in the best interest of the organization.

MR: must report to higher authority unless believes not in best interest of org.

CA: same, but must not reveal confidential information.

38
Q

Reporting outside org

A

If lawyer has reported to highest authority and authority refuses to act in timely manner on a clear violation of law that the lawyer reasonably believes is reasonably certain to cause substantial injury to the organization:

MR: may reveal information to outside authorities to extent necessary to prevent injury.

CA: may not reveal confidential information unless death or substantial harm exception applies. May resign or withdraw.

39
Q

Duty of Competence (MR, CA)

A

MR: A lawyer is obligated to provide competent rep to client and must possess the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the rep.

CA: (IRRG) A lawyer must not intentionally, recklessly, with gross negligence, or repeatedly fail to perform legal services with competence.

40
Q

Duty of Diligence (MR, CA)

A

MR: a lawyer must act with reasonable diligence and promptness in representing a client.

CA: A lawyer must not intentionally, repeatedly, recklessly, or with gross negligence fail to act with reasonable diligence in representing a client.

41
Q

Duty to Avoid Frivolous Claims (MR, CA)

A

MR: A lawyer must not bring a claim unless there is a basis in law and fact for doing so that is not frivolous.

CA:
- A lawyer must not bring a frivolous claim.
- A lawyer must not bring a claim without probable cause and for the purpose of harassing or maliciously injuring any person.

42
Q

Duty of Candor

A

A lawyer must not knowingly make a false statement of law or fact to the court, and is required to correct a previously false statement.

43
Q

Access to Evidence

A

A lawyer must not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy, or hide a document/material or counsel someone else to do so.

44
Q

Witnesses

A

A lawyer may not request that a witness refrain from speaking to another party.

A lawyer CAN pay a non-expert witness reasonable testifying expenses, and expert witness reasonable rate and compensation for expenses.

CA: a lawyer may not pay or offer to pay a witness contingent upon testimony or outcome, but can advance fees.

45
Q

False Evidence

A

A lawyer is prohibited from knowingly offering false evidence and may refuse to submit evidence that reasonably believes is false.

46
Q

Duty if False Evidence is Offered (MR, CA)

A

If a lawyer learns about false evidence after, they must take reasonable remedial measures:

MR:
- Urge the client to correct the false statement
- If withdrawal not permitted, disclose false evidence to court even if it’s confidential

CA:
- Urge client to correct
- If withdrawal not permitted CANNOT disclose confidential information

47
Q

Criminal Defendant Testimony

A

An attorney can only refuse to offer a criminal D’s testimony if he KNOWS it is false. If so, must urge the client to correct the false statement or evidence.

If client refuses, MR: must withdraw; CA: can withdraw

If withdrawal denied by court:
MR: attorney must disclose false evidence to court, even if confidential info
CA: lawyer can question the D until point of falsehood, then allow them to testify through narrative

48
Q

Duty to Communicate (MR, CA)

A

MR: Lawyers have a duty to regularly communicate with clients, to keep them reasonably informed of the status of the matter, and to respond to reasonable requests for information so they can make informed decisions. Must communicate settlement offers.

CA: Lawyer has a duty to keep client reasonably informed about significant developments relating to the representation.

49
Q

Communication with Jurors

A

Lawyers are not permitted to communicate with jurors outside of court before or during proceeding.

50
Q

Repped People

A

A lawyer cannot communicate about the subject of rep with a person they know to be repped by another lawyer without consent. If person contacts lawyer, lawyer must terminate communication when they learn of rep.

51
Q

Repped Orgs

A

A lawyer can’t communicate with a constituent of a repped org, but can communicate with former constituents.

52
Q

Unrepped People

A

Lawyer must not give legal advice and must make clear who represents. Can negotiate terms.

53
Q

Trial Publicity

A

A lawyer is not permitted to make an out of court statement that knows/should know:
i) Will be distributed publicly
ii) Will have a substantial likelihood of materially prejudicing the court proceeding

54
Q

Rights of Third Parties

A

Lawyers must not use means that have no substantial purpose other than to embarrass, delay, or burden a third person.

55
Q

Receipt of Inadvertently Sent Docs

A

MR: A lawyer who receives a document relating to rep of lawyer’s client who knows or reasonably should know that the document was inadvertently sent must promptly notify the sender.

CA: When it is reasonably apparent to a lawyer that a writing was inadvertently sent or produced, and lawyer knows or reasonably should know it’s privileged, they must i) refrain from examining it any more than necessary and ii) promptly notify the sender.

56
Q

Duties of Prosecutor

A
  • not prosecute a charge he knows is not supported by probable cause.
  • timely disclose all exculpatory evidence and information tending to disprove guilt/mitigate offense.
  • disclose any new, credible evidence creating a likelihood the D did not commit the offense.-
57
Q

Solicitation

A

Solicitation in person, by phone, or real time electronic contact is prohibited when a significant motive is the lawyer’s pecuniary gain, unless the person contacted is:
- A lawyer
- A family member
- A close personal friend
- Prior professional relation

58
Q

Advertisements

A

A lawyer must not make false or materially misleading statements about himself or his services.

Advertisements must contain name and address of attorney. Can include specialization, but can’t imply certified specialist without cert.

59
Q

Reporting Misconduct

A

MR: lawyer is required to report misconduct by another attorney related to honesty/professional fitness when has actual knowledge.

CA: no required reporting for others. Must report self if have three or more malpractice suits, professional fraud judgment, judicial sanctions over $1,000, felony indictment, discipline.

60
Q

UPL

A

A lawyer is subject to discipline for practicing in a J in which not admitted, or assisting non-lawyers in the unlicensed practice of law.

61
Q

Overview of Topics

A

Royal Canadian Pork
AC relationship, duties to client, duties to profession

Relationship: Form ST. (Formation, Scope, Termination

Client: Find 3CDs (Fees, Conflicts, Confidentiality, Competence, Diligence)

Profession: LAP (Litigation duties, advertising and solicitation, profession)

62
Q

Misconduct by Others

A

A lawyer is subject to discipline for misconduct committed by another lawyer (or non-lawyer) if the lawyer:
i) Orders the misconduct
ii) Ratifies the misconduct with knowledge
iii) As a partner, manager, or supervisor, knows of the conduct when it can be mitigated but fails to take reasonable action.

Firms must have practices in place to conform to ethics.

63
Q

Subordinate Lawyers

A

A subordinate lawyer must conform to ethics rules even if supervised. They don’t violate the rules if they act in accordance with the supervising lawyer’s reasonable resolution of an arguable question of professional duty.

64
Q

informed written consent (CA)

A

Informed written consent requires written disclosure of the potential adverse consequences of the client consenting

65
Q

Threatening Charges

A

CA lawyers are prohibited from threatening to bring criminal, administrative, or disciplinary charges in an effort to obtain advantage in a civil suit.

66
Q
A

Essay Rules Flashcards (8 decks)

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