PR Final Exam Flashcards

Question

Elements of Legal Malpractice

Answer 1

Duty Atty-client rel.; some non-clients may sue also Scope: reasonably competent similar atty. Breach of duty Lawyer’s conduct falls below the standard of care of a reasonably competent similar atty. Causation “But for” breach, no harm (actual cause); Plaintiff and type of harm foreseeable (proximate cause) Actual/legally cognizable harm P must show a better result would have been obtained w/o atty. neg.

Answer 2

Degree of care, skill, diligence, and knowledge commonly possessed and exercised by a reasonable, careful, and prudent lawyer in the practice of law in the jurisdiction, under the same or similar circumstances.

Answer 3

A relationship of client and lawyer arises when: (1) A person manifests to a lawyer the person’s intent that the lawyer provide legal services for the person; and either (a) the lawyer manifests to the person consent to do so; or (b) the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services. When a person discusses with a lawyer the possibility of their forming a client-lawyer relationship for a matter and no such relationship ensues, the lawyer must: Not subsequently use or disclose confidential information learned in the consultation [except as permitted by other rules]; Protect the person’s property in the lawyer’s custody; and Use reasonable care to the extent the lawyer provides the person legal services.

Answer 4

Courts have held that lawyers owe duties of care to certain non-clients: Beneficiaries of a will prepared for a client; “Primary beneficiaries” of a lawyer’s work – where client’s purpose in retaining the lawyer was to provide a benefit to the non-client (such as trustees); Those whom the lawyer knows or should know will rely on the lawyer’s work, and who do rely to their detriment (such as recipients of opinion letters)

Answer 5

Experts are generally required on two, sometimes three, elements: The applicable standard of care; Breach of that standard; and Causation Exception: No expert is required if an issue is within the “common knowledge” of the jury, meaning the jury is capable of deciding whether the professional’s conduct was reasonable. (Vandermay)

Answer 6

The prosecutor in a criminal case shall: refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause; make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel; not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing; The prosecutor in a criminal case shall: make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused; not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes: (1) the information sought is not protected from disclosure by any applicable privilege; (2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and (3) there is no other feasible alternative to obtain the information;

Answer 7

The prosecutor in a criminal case shall: (f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action . . . refrain from making extrajudicial comments that can have a substantial likelihood of heightening public condemnation of the accused . . . (g) When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall: (1) promptly disclose that evidence to an appropriate court or authority, and (2) if the conviction was obtained in the prosecutor’s jurisdiction, (i) promptly disclose that evidence to the defendant unless a court authorizes delay, and (ii) undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit. (h) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.

Answer 8

A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct. (b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct. (c) A lawyer shall be responsible for another lawyer's violation of the Rules of Professional Conduct if: (1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

Answer 9

(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer; and (c) a lawyer shall be responsible for conduct of such a person that would be a violation . . . if: (1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

Answer 10

(a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person. (b) A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty.

Answer 11

A lawyer who knows that another lawyer has committed a violation of the Rules . . . that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority. . . . (c) This Rule does not require the disclosure of information otherwise protected by Rule 1.6 (confidentiality rule).

Answer 12

``` A communication (not information which can be obtained independently, and a client can’t immunize pre-existing documents merely be sending to lawyer); made between privileged persons (persons whose presence is “reasonably necessary for the protection of the client’s interests in the particular circumstances” don’t destroy privilege) in confidence for the purpose of obtaining or providing legal assistance for the client RATHER than business purpose (watch out for in-house counsel hypos and apply the dominant purpose test). ```

Answer 13

3) Trial Preparation: Materials. (A) Documents and Tangible Things. Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative. . . . But, subject to Rule 26(b)(4) [THIS IS DISCOVERY INVOLVING EXPERTS], those materials may be discovered if: (i) they are otherwise discoverable under Rule 26(b)(1) (scope) [THIS IS ORDINARY WP and NOT A/C PRIVILEGED]; and (ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means. (B) Protection Against Disclosure. If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation. [The rule protects against disclosure of opinion WP if ordering disclosure of ordinary WP].

Answer 14

4) Trial Preparation: Experts. (A) Deposition of an Expert Who May Testify. A party may depose any person who has been identified as an expert whose opinions may be presented at trial. (B) Trial-Preparation Protection for Draft Reports or Disclosures. Rules 26(b)(3)(A) and (B) [OUR WORK PRODUCT RULE] protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded. (C) Trial-Preparation Protection for Communications Between a Party’s Attorney and Expert Witnesses. Rules 26(b)(3)(A) and (B) protect communications between the party’s attorney and any witness required to provide a report under Rule 26(a)(2)(B) [OUR RULE FOR DISCLOSURES INVOLVING EXPERT TESTIMONY], regardless of the form of the communications, except to the extent that the communications: (i) relate to compensation for the expert’s study or testimony; (ii) identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed; or (iii) identify assumptions that the party’s attorney provided and that the expert relied on in forming the opinions to be expressed. (D) Expert Employed Only for Trial Preparation. Ordinarily, a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial.

Answer 15

(5) Claiming Privilege or Protecting Trial-Preparation Materials (A) Information Withheld. When a party withholds information otherwise discoverable by claiming that the information is privileged . . . the party must: (i) expressly make the claim; and (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim. Basically, object immediately or you waive it, and create a privilege log with information about the document you are claiming as privilege and which privilege attaches (sometimes it’s both)!

Answer 16

An organization can claim A/C privilege when: Majority rule: SCOTUS rejects “control group” test (Upjohn) for “subject matter” test, and Restatement follows: A/C privilege applies where communication “concerns legal matter of interest to the organization and is disclosed only to privileged persons and agents of the organization who reasonably need to know of the communication in order to act on the organization’s behalf” Who is the client of the lawyer representing the organization? The organization, unless the lawyer specifically represents individuals and complies with conflict rules. Therefore, “Upjohn warning”: “I represent the organization, and not you personally.”

Answer 17

Putting in issue: When a party raises an issue that depends on the evaluation of legal opinions (e.g., malicious prosecution, abuse of process, bad faith litigation) Experts: Testifying Expert: Limits disclosure to material of a factual nature, and protects theories/mental impressions of counsel shared with expert Non-Testifying/Consulting Expert: Party may not discover facts known OR opinions held by expert not expected to testify 3. Crime-Fraud: When the client intends to use privileged communications with lawyer in furtherance of a crime or fraud. Exceptions to the exception – the MPRE LOVES to test these: Does not apply when the attorney talks his client out of committing the crime! Does not apply when the client intends to commit the crime but does not seek advice or information intended to use in furtherance of the crime/fraud! Does not apply to past crimes/frauds!

Answer 18

Client can waive intentionally, even over lawyer’s objection. Waiver will occur if client (or lawyer) engages in conduct inconsistent with maintaining the privilege, including: Inadvertent disclosure. There are 3 approaches to impact: Any disclosure waives privilege Inadvertent disclosure never waives privilege (subjective intent) Majority approach: Balance a number of factors (i.e., sometimes inadvertent disclosure will waive privilege): Reasonableness of precautions Time taken to rectify error Scope of discovery & extent of disclosure Fairness 2. Subsequent disclosure in non-privileged setting: If lawyer, client, or authorized agent voluntarily discloses a privileged communication in a non- privileged setting, then the privilege is waived. No tactical disclosures Disclosures to testifying expert generally waives privilege 3. Putting-in-issue in litigation.

Answer 19

MR 4.4(b): Recipient “shall promptly notify the sender” if knows or reasonably should know that the document was inadvertently sent AR Rule 4.4 tracks this language FRCP 26(b)(5): After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved

Answer 20

MR 1.6 (a) A lawyer “shall not reveal information relating to representation of a client” unless client consents or exception applies. Model Code DR 4-101 (don’t have to know) “Confidences and secrets”

Answer 21

(a) “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).” (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to prevent reasonably certain death or substantial bodily harm; (2) to prevent crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services; (3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services; (4) to secure legal advice about the lawyer's compliance with these Rules; (5) to establish a claim or defense on behalf of the lawyer …; or (6) to comply with other law or a court order; (7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.

Answer 22

(b): “If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law that reasonably might be imputed to the organization, and that is likely to result in substantial injury to the organization, then the lawyer shall proceed as is reasonably necessary in the best interest of the organization.” (b): “the lawyer shall refer the matter to higher authority in the organization, including, if warranted …, to the highest authority that can act on behalf of the organization.” internal/up-the-ladder reporting (c): if highest authority doesn’t act, “lawyer may reveal information relating to the representation whether or not Rule 1.6 permits such disclosure, but only if and to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization.” outside reporting

Answer 23

requires attorneys who appear before the Securities and Exchange Commission “to report evidence of a material violation of securities law or breach of fiduciary duty … by the company or any agent thereof, to the chief legal counsel or chief executive officer of the company,” and if that person doesn’t “appropriately respond, to the audit committee of the board of directors” or to the board itself.

Answer 24

Lawyer may reveal to SEC “confidential information relating to the representation” to the extent the lawyer reasonably believes necessary (1) to prevent the issuer from committing a material violation of federal or state law “that is likely to cause substantial injury to the financial interest or property of the issuer or investors”; (2) to prevent the issuer from committing a fraud on the SEC; or (3) to rectify the consequences of a material violation of law “that caused, or may cause, substantial injury to the financial interest or property of the issuer or investors in the furtherance of which the attorney’s services were used.” (RETROSPECTIVE)

Answer 25

MR 1.6(b)(5): permits disclosures: to establish a . . . defense on behalf of the lawyer in a controversy between the lawyer and client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client.

Answer 26

MR 1.6(b)(5) allows disclosure “to establish a claim . . . on behalf of a lawyer in a controversy between the lawyer and the client.” Two most common examples: wrongful termination suit by in-house lawyer against client/employer action by lawyer to recover unpaid fees from client

Answer 27

(a) “A lawyer shall abide by a client’s decisions concerning the objectives of representation and . . . shall consult with the client as to the means by which they are to be pursued.” Civil case: Client decides whether to settle. Criminal case: Client decides what plea to enter, whether to waive jury trial, and whether to testify

Answer 28

(a) A lawyer shall . . . (2) reasonably consult with the client about means used; (3) keep a client reasonably informed about the status of a matter and (4) promptly comply with reasonable requests for information. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Diminished Capacity: When a client’s capacity to make adequately considered decisions in connection with a representation is diminished [because of age or mental disability, e.g.], the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. AR Rule 1.4 also includes language requiring lawyer to notify client in writing of any receipt or check received from an insurance company, opposing party, or source from settlement, judgment, etc.

Answer 29

``` Express contract (retainer agreement) is preferred; or Relationship may be implied by conduct Restatement: “An attorney-client relationship is created whenever a person manifests the intent to create such a relationship and the lawyer either consents or fails to manifest a lack of consent.” ```

Answer 30

MR 1.2(C) (Scope of Representation) - “A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.” But, “Not only should an attorney furnish advice when requested, but he or she should also volunteer opinions when necessary to further the client’s objectives.” (Nichols v. Keller, p. 305) MR 1.8(h): A lawyer shall not (1) make an agreement prospectively limiting the lawyer’s liability for malpractice unless the client is independently represented in making the agreement.

Answer 31

MR 4.1(a): No “false statements of material fact or law to a third person” MR 4.4: Respect for rights of third persons. “[A] lawyer shall not use means that have no other substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.”

Answer 32

MR 4.2: “In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.” [CMT. 3] Applies even if the represented person contacts you first; terminate contact immediately. Who is the “Client” in an organization? [CMT. 7]: Employees with managerial responsibility on behalf of the organization; Employees whose act or omission in connection with that matter may be imputed to the organization; Employees whose admission at trial would legally bind the organization. Restatement: “employees whose statements might have the legal effect of binding the corporation to their admissions.” Former employees are not automatically represented by corporate counsel.

Answer 33

MR 4.3: “lawyer must not state or imply that the lawyer is disinterested, must clarify any misunderstanding about the lawyer’s role, and must not give the person legal advice except for the advice to secure counsel.”

Answer 34

“[A]n attorney has a duty to use that degree of skill, diligence, and judgment ordinarily to be expected of a member of the bar practicing in the same (or a similar) locale.” ABA Criminal Defense Standards: “Strategic and tactical decisions should be made by defense counsel after consultation with the client where feasible and appropriate.” witnesses to call how to conduct cross-examination jurors to accept motions to bring evidence to introduce Jones v. Barnes (U.S. 1983): An indigent defendant does not have “a constitutional right to compel appointed counsel to press nonfrivolous points requested by the client, if counsel, as a matter of professional judgment, decides not to present those points.”

Answer 35

General Rule Lawyers owe a fiduciary duty to clients to safeguard any of their funds or property in the lawyer’s possession. MR 1.15: Client Funds A lawyer shall hold in trust, separate from the lawyer’s own property, funds and property of clients or third persons that are in a lawyer’s possession in connection with a representation. . . . In no event may the lawyer commingle the client’s funds with those of the lawyer or those of the lawyer’s law firm.”

Answer 36

“If a lawyer’s employment is limited to a specific matter, the relationship terminates when the matter has been resolved. If a lawyer has served a client over a substantial period in a variety of matters, the client sometimes may assume that the lawyer will continue to serve on a continuing basis unless the lawyer gives notice of withdrawal.”

Answer 37

A lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (1) the representation will result in violation of the rules of professional conduct or other law; (2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or (3) the lawyer is discharged.

Answer 38

A lawyer may withdraw from representing a client if: (1) withdrawal can be accomplished without material adverse effect on the interests of the client; [1.6(b)(2)-(4) involve client misconduct] (2) the client persists in a course of action … that the lawyer reasonably believes is criminal or fraudulent; (3) the client has used the lawyer's services to perpetrate a crime or fraud; (4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;… [1.6(b)(5)-(7) involve attorney hardship] (5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; (6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or (7) other good cause for withdrawal exists. “A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.”

Answer 39

Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled, and refunding any advance payment of fee or expense that has not been earned or incurred.

Answer 40

A lawyer shall not participate in offering or making: (a) a partnership, shareholders, operating, employment, or other similar type of agreement that restricts the right of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement;…

Answer 41

MR 1.5(c): contingent fee agreement in writing MR 1.5(b): fee agrt. preferably in writing but not required. -Best practice is to put it all in writing!

Answer 42

The factors to be considered in determining the reasonableness of a fee include . . . : Time and labor; novelty and difficulty of questions; skill required to perform properly; Likelihood if apparent to client that acceptance of this matter will preclude other employment by lawyer; Customary fee in locality for similar matter Amount involved and results obtained Time or other limitations imposed by the client Nature and length of relationship w/ client Experience, reputation, and ability of lawyer; Whether the fee is fixed or contingent.

Answer 43

“Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation.”

Answer 44

Non-refundable payment to guarantee a lawyer can perform services is okay where client is sophisticated and experienced in paying such retainers. Retainers towards legal costs and fees generally okay, but unused portion must be returned to client.

Answer 45

Cannot sue a client for unpaid fees until after the representation has concluded. Can enforce fee agreements through arbitration and include arbitration clauses in retainer agreements. Most states allow a lawyer to enforce a charging lien against a settlement to claim the amount of unpaid fees against the judgment. *Note that MR 1.15 (Safeguarding property), Comment 3 provides: “The disputed portion of the funds must be kept in a trust account and the lawyer should suggest means for prompt resolution of the dispute, such as arbitration. The undisputed portion of the funds shall be promptly distributed.”

Answer 46

Enable parties who could not otherwise afford to do so, to retain lawyers to protect their legal rights; Give lawyers additional incentive to win cases and to encourage only those clients with meritorious cases to bring them; Spread the risk of losing between lawyer and client. Culpepper (LA 1996) - A lawyer on a contingent fee will not recover anything if the contingency never occurs, even if the lawyer has put in a lot of work and even if the reason the contingency never occurs is that the client makes an unwise decision (e.g., foregoing a good settlement) that the client is entitled to make.

Answer 47

General Rule: Fees are subject to a reasonableness requirement, but there is less likelihood for a contingent fee to be deemed unreasonable in total amount as long as the percentage is not itself unreasonable. When might they be unreasonable? Restatement § 35, Comment C explains: “. . .large [contingent] fees unearned by either effort or a significant period [or amount] of risk are unreasonable.”

Answer 48

MR 1.5(D)(1): “A lawyer shall not enter into an arrangement for, charge or collect any fee in a domestic relations matter, the payment of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof.” Testable exception: post-judgment actions for recovery of unpaid fees! MR 1.5(D)(2): A lawyer shall not enter into any arrangement for, charge, or collect: a contingent fee for representing a defendant in a criminal case.

Answer 49

A division of a fee between lawyers who are not in the same firm may be made only if: The division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation; and The client agrees to the arrangement, including the share each lawyer will receive, and the agreement will be confirmed in writing; and The total fee is reasonable.

Answer 50

(a) A lawyer or law firm shall not share legal fees with a non-lawyer except: (1) payment of money after death to lawyer’s estate; (2) payment after sale of law firm, upon certain conditions, to estate or representative of lawyer; (3) compensation or retirement plan to non-lawyer employees, even if based on profit-sharing; (4) share court-awarded legal fees with a non-profit organization that employed or recommended the lawyer.

Answer 51

(b) A lawyer shall not compensate, give, or promise anything of value to a person for recommending the lawyer's services except that a lawyer may: . . . (2) pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service; . . . (4) refer clients to another lawyer or a nonlawyer professional pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, if (i) the reciprocal referral agreement is not exclusive, and (ii) the client is informed of the existence and nature of the agreement.

Answer 52

(b) A lawyer shall not compensate, give, or promise anything of value to a person for recommending the lawyer's services except that a lawyer may: . . . (2) pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service; . . . (4) refer clients to another lawyer or a nonlawyer professional pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, if (i) the reciprocal referral agreement is not exclusive, and (ii) the client is informed of the existence and nature of the agreement.

Answer 53

(b) Representations to the Court. (1) no improper purpose; (2) legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; (3) factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information. (c) (2) The motion [for sanctions] must be served …, but it must not be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets. [SAFE HARBOR – oops I was wrong!]

Answer 54

(c)(3) On its own, the court may order an attorney, law firm, or party to show cause why conduct specifically described in the order has not violated Rule 11(b).

Answer 55

(4) Nature of a Sanction. limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated. may include nonmonetary directives; an order to pay a penalty to court; or attorney's fees and other expenses directly resulting from the violation.

Answer 56

“A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law. . .” Comment 2: “ . . . Such action is not frivolous even though the lawyer believes that the client’s position ultimately will not prevail.”

Answer 57

The Kurzban Brothers’ Trial Tactics: “Second Rate Loser” & “I don’t rate losers.” “Let the pounding begin.” “How are you going to feel when I take your client’s money?” “Yuppies out of the way.” Eye rolling, arm flailing. Briefing “plaintiff’s disingenuous argument…” “defendants deliberately mischaracterize the law…” “consistent with plaintiff’s continuous misrepresentations of both law and fact…” “defendant’s argument shows either their complete inability to comprehend the law or, worse yet, their willful misreading of the applicable standards...”

Answer 58

In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.

Answer 59

“A lawyer shall not in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of the accused.”

Answer 60

“A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.”

Answer 61

(a) A lawyer shall not knowingly: make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; . . . (c) The duties stated in paragraph. . . (a) . . . continue to the conclusion of the proceeding . . . [CMT.13] A proceeding has concluded within the meaning of this Rule when a final judgment in the proceeding has been affirmed on appeal or the time for review has passed. [CMT. 4] The underlying concept is that legal argument is a discussion seeking to determine the legal premises properly applicable to the case.

Answer 62

A lawyer shall not: Seek to influence a judge, juror or prospective juror or other official by means prohibited by law Communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order; Communicate with a juror or prospective juror after discharge of the jury if: The communication is prohibited by law or court order; The juror has made known to the lawyer a desire to not communicate; or The communication involves misrepresentation, coercion, duress or harassment.

Answer 63

A lawyer shall not: (b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law; . . . (f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless: (1) the person is a relative or an employee or other agent of a client; and (2) the lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving such information.

Answer 64

Apply to both written and oral discovery: 11(D): This rule does not apply to disclosures and discovery requests, responses, objections, and motions . . . 16(F): sanctions if you “fail to obey a scheduling order or pretrial order,” or “fail to participate [in a pretrial conference] in good faith” 26(G): requires you to sign all disclosures, discovery requests, responses, and objections, and to certify that any such papers are warranted in fact and law and not improper. 30(D): all objections at deposition “must be stated concisely and in a non-argumentative and non-suggestive manner”; court can stop or limit deposition being conducted in bad faith. *37: sanctions if you fail to comply with discovery orders

Answer 65

Public admonishment/refer to disciplinary authorities Require attendance at particular seminars/MPRE/education Monetary (client and/or lawyer) Evidentiary Termination of Suit

Answer 66

A lawyer shall not knowingly offer evidence that the lawyer knows to be false. If a lawyer, or the lawyer’s client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of the defendant in a criminal matter, that the lawyer reasonably believes is false. MR 1.0(F): “‘Knows’” denotes actual knowledge of the fact in question. A person’s knowledge may be inferred from the circumstances.

Answer 67

MR 3.3(B): A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging, or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. MR 3.3(C): The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information protected by Rule 1.6. [CMT. 13] A proceeding has concluded within the meaning of this Rule when a final judgment in the proceeding has been affirmed on appeal or the time for review has passed.

Answer 68

Client has ultimate authority to decide whether to testify, MR 1.2(a); Rock v. Arkansas, 483 U.S. 44 (1987). Lawyer should still try to counsel client not to lie, including telling client of lawyer’s ethical obligations if client does so. MR 3.3, Com. [12]; DePallo. If client persists, try to withdraw if such can “cure” the taint and otherwise is permitted. Id. If no withdrawal, remedial duty to inform tribunal if lawyer “knows” of the perjury. MR 3.3(a)(3), (c); Nix v. Whiteside, 475 U.S. 157 (1986); see also DePallo. Many states allow “narrative” testimony with no mention of testimony in closing.

Answer 69

Canon 1: “A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.” CJC 1.2: “A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.” Canon 2: “A judge shall perform the duties of judicial office impartially, competently, and diligently.”

Answer 70

A judgment may be wholly or partially reversed Disqualification Discipline Criminal Liability Judges have absolute immunity from civil liability for judicial acts! NO JUDICIAL MALPRACTICE.

Answer 71

4 KEY POINTS We distinguish under both the 1st Amendment and the Model Rules between advertising and solicitation; The 1A cases on advertising show that it is very difficult for the profession to regulate advertising that is not false or misleading; The 1A cases on solicitation show that we view solicitation by mail like print advertising, and therefore, treat it more favorably under the 1A. In-person solicitation, however, is treated as different and much more easily regulated and restricted; The Model Rules lay out how advertising and solicitation is regulated in the profession in light of the parameters set by the 1A.

Answer 72

``` Includes: stationary, letterhead, signs, business cards, brochures, etc. re: lawyer/law firm bus bench ads newspaper, TV, radio ads Yellow Pages ads Websites firm names (some) letters print or media communication directed at the public with purpose or intent of making the public aware of the lawyer’s services ```

Answer 73

direct contact initiated by, or at direction of, the lawyer to a non-lawyer with whom the lawyer has no family or prior professional relationship with the significant motive of pecuniary gain by the lawyer To gain constitutional protection, the commercial speech must concern lawful activity and not be deceptive or misleading. If constitutionally protected, state must show any regulation that restricts speech: A. is based on a substantial governmental interest; B. directly advances the governmental interest; and C. is not more extensive than necessary to serve that interest.

Answer 74

“A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.” “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.”

Answer 75

(a) A lawyer may communicate information regarding the lawyer’s services through any media. . . . (b - omitted – lawyer can’t pay for referrals except legal service plan, have reciprocal referral plan that is communicated to client, etc.) (c) *A lawyer shall not state or imply that a lawyer is certified as a specialist in a particular field of law, unless: (1) the lawyer has been certified as a specialist by an organization that has been approved by an appropriate authority of the state or the District of Columbia or a U.S. Territory or that has been accredited by the American Bar Association; and (2) the name of the certifying organization is clearly identified in the communication. (d) Any communication made under this Rule must include the name and contact information of at least one lawyer or law firm responsible for its content.

Answer 76

[9] Paragraph (c) of this Rule permits a lawyer to communicate that the lawyer does or does not practice in particular areas of law. [10] The Patent and Trademark Office has a long-established policy of designating lawyers practicing before the Office. The designation of Admiralty practice also has a long historical tradition associated with maritime commerce and the federal courts. A lawyer’s communications about these practice areas are not prohibited by this Rule.

Answer 77

Can’t be misleading. Can’t imply a connection with a government agency or charitable legal services organization. Name of a lawyer holding public office shall not be used “during any substantial period in which the lawyer is not actively and regularly practicing with the firm.” Can state you are partnership or other type of entity only if that is the fact.

Answer 78

(b) A lawyer shall not solicit professional employment by live person-to-person contact when a significant motive for the lawyer’s doing so is the lawyer’s or law firm’s pecuniary gain, unless the contact is with a: (1) a lawyer (2) family, close personal, or prior professional relationship with the lawyer. (3) person who routinely uses for business purposes the type of legal services offered by the lawyer. (c) A lawyer shall not solicit professional employment from a prospective client . . . even when not otherwise prohibited by paragraph (b), if: (1) the target of the solicitation has made known to the lawyer a desire not to be solicited by the lawyer; or (2) the solicitation involves coercion, duress or harassment.

Answer 79

(e) Notwithstanding the prohibitions in this Rule, a lawyer may participate with a prepaid or group legal service plan operated by an organization not owned or directed by the lawyer that uses live person-to-person contact to enroll members or sell subscriptions for the plan from persons who are not known to need legal services in a particular matter covered by the plan. [CMT. 2] “Live person-to-person contact” means in-person, face-to-face, live telephone and other real-time visual or auditory person-to-person communications where the person is subject to a direct personal encounter without time for reflection.” “Such person-to-person contact does not include chat rooms, text messages or other written communications that recipients may easily disregard.” [CMT. 5] “Nor is there a serious potential for overreaching when the person contacted is a lawyer or is known to routinely use the type of legal services involved for business purposes.”f

Answer 80

According to the Restatement, this imputation extends to any lawyers who: (1) are associated w/the conflicted lawyer through a law partnership, professional corporation, sole proprietorship, or similar association; (2) are employed w/the conflicted lawyer by an organization that renders legal services either to itself or to others; or (3) share office space and do not have adequate measures to protect confidential information. (a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless . . . [we will get to the exceptions later in this unit]

Answer 81

Lawyer shall not represent a client if the representation involves a concurrent conflict (which exists when): (1) one client is “directly adverse” to another, or (2) there is significant risk the representation will be “materially limited by responsibilities to another client,” or a third person, or the lawyer’s own interests. Notwithstanding (a), lawyer may represent a client if: (1) lawyer reasonably believes that she will be able to provide competent and diligent representation to each client; . . . and (4) each affected client gives informed consent, confirmed in writing

Answer 82

“adequate information and explanation about the material risks of and reasonably available alternatives to the [conflicted representation].”

Answer 83

Can a lawyer get a client to sign an agreement waiving a conflict that has not yet occurred? ABA Formal Ethics Opinion: Such waivers are enforceable only where the future conflict is clear enough for the client to give informed consent to waive it. So broad, blanket waivers generally will be invalid unless the client is experienced and represented by other, independent counsel in giving consent. MR 6.5(a) – lawyers offering limited-time advice via legal advice hotlines only subject to 1.7 or 1.9 if the lawyer knows at the time that representation involves a conflict!

Answer 84

Lawyer shall not represent a client if the representation involves a concurrent conflict (which exists when): (1) one client is “directly adverse” to another, or (2) significant risk the representation will be “materially limited by responsibilities to another client,” or a third person, or the lawyer’s own interests. (b) Notwithstanding (a), the lawyer may represent a client if: (1) lawyer reasonably believes that she will be able to provide competent and diligent representation to each client; . . . and (4) each affected client gives written informed consent.

Answer 85

MR 1.7, Comment [23] [23] Paragraph (b)(3) prohibits representation of opposing parties in the same litigation, regardless of the clients' consent. On the other hand, simultaneous representation of parties whose interests in litigation may conflict, such as co-plaintiffs or co-defendants, is governed by paragraph (a)(2). A conflict may exist by reason of substantial discrepancy in the parties' testimony, incompatibility in positions in relation to an opposing party or the fact that there are substantially different possibilities of settlement of the claims or liabilities in question. Such conflicts can arise in criminal cases as well as civil. The potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one codefendant. On the other hand, common representation of persons having similar interests in civil litigation is proper if the requirements of paragraph (b) are met.

Answer 86

MR 1.7, Comment [24] “Ordinarily a lawyer may take inconsistent legal positions in different tribunals at different times on behalf of different clients. The mere fact that advocating a legal position on behalf of one client might create precedent adverse to the interests of a client represented by the lawyer in an unrelated matter doeMR 1.7, Comment [24] (cont.) “A conflict exists if there is a significant risk that a lawyer’s action on behalf of one client will materially limit the lawyer’s effectiveness in representing another client in a different case; for instance, when a decision favoring one client will create a precedent likely to seriously weaken the position taken on behalf of the other client.” s not create a conflict of interest.”

Answer 87

Attorney cannot represent another client in the “same or a substantially related matter” in which that person’s interests are “materially adverse to the interests of the former client. . . unless the former client consents.” Matters are “substantially related” for purposes of this Rule if: they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would have normally been obtained in the prior representation would materially advance the client’s position in the subsequent matter.

Answer 88

Compare the facts of the two matters Compare the legal issues in the two matters, OR Use a “blended approach,” combining the first two tests

Answer 89

In the case of an organizational client, general knowledge of the client’s policies and practices ordinarily will not preclude a subsequent representation; on the other hand, knowledge of specific facts gained in a prior representation that are relevant to the matter in question ordinarily will preclude such a representation.

Answer 90

(c) Extends MR 1.9 to prospective clients: Lawyer shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter, if the lawyer received information from the prospective client that could be “significantly harmful” to the prospective client in the new matter. (d) But allows representation if (1) both the affected client and the new client give informed written consent, or (2) the affected lawyer can be screened from the new case and is apportioned no fee from the matter. Comment [5]: Lawyer may condition conversations with prospective client on informed consent that lawyer will not be prohibited from representing a different client in the same matter.

Answer 91

A lawyer shall not knowingly represent a person in the same or substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client (1) whose interests are materially adverse to that person; and (2) about whom the lawyer had acquired information … that is material to the matter; unless the former client gives informed consent, confirmed in writing. A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: (1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.

Answer 92

Is there a substantial relationship between the matter at issue and the matter of the former firm’s prior representation? If so, is the presumption of shared confidences within the former firm rebutted by evidence that the attorney had no personal contact with, or knowledge of, the related matter? If the attorney did have contact/knowledge, then did the new law firm erect adequate and timely screens to rebut the presumption of shared confidences with the new firm?

Answer 93

While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9 [IMPUTATION], unless …(2) the prohibition is based upon Rule 1.9(a) or (b) [FORMER CLIENT CONFLICT] and arises out of the disqualified lawyer’s association with a prior firm, and (i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom;

Answer 94

(a)(ii) written notice is promptly given to any affected former client to enable the former client to ascertain compliance with the provisions of this Rule, which shall include a description of the screening procedures employed; a statement of the firm’s and of the screened lawyer’s compliance with these Rules; a statement that review may be available before a tribunal; and an agreement by the firm to respond promptly to any written inquiries or objections by the former client about the screening procedures;

Answer 95

Size of firm Likelihood of contact between quarantined attorney and attorneys responsible for current representation. The safeguards employed (locked files, notices, firm-wide memo). Timing of screen (early, as soon as disqualifying event occurs).

Answer 96

A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client: (1) whose interests are materially adverse to that person; and (2) about whom the lawyer had acquired information … material to the matter; unless the former client gives informed consent, confirmed in writing. Paragraph (b) operates to disqualify the lawyer only when the lawyer involved has actual knowledge or information … Thus if a lawyer with one firm acquired no knowledge or information relating to a particular client of the firm, and that lawyer later joined another firm, neither the lawyer individually nor the second firm is disqualified from representing another client in the same or in a related matter even though the interests of the two clients conflict.

Answer 97

When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless: (1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and (2) any lawyer remaining in the firm has information protected by Rule 1.6 and 1.9(c) that is material to the matter.

Answer 98

(a) [A] lawyer who has formerly served as a public officer or employee of the government: (1) is subject to Rule 1.9(c); and (2) shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation. (b) When a lawyer is disqualified from representation under paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless: (1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and (2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule.

Answer 99

Defendant must show: 1. Counsel’s performance was deficient (“serious attorney error”); AND 2. This prejudiced the defense (defendant was deprived of a fair trial, which is a trial in which the result is reliable). Exceptions: Government Interference, Absent Lawyer, Conflict of Interest (“actively represented conflicting interests and that an actual conflict of interest adversely affected lawyer’s performance”)

Answer 100

When the trial court is not aware of the conflict (and thus not obligated to inquire), prejudice will be presumed only if the conflict has significantly affected counsel’s performance. And yet… the trial court’s awareness of a potential conflict neither renders it more likely that counsel’s performance was significantly affected nor in any other way renders the verdict unreliable.

Answer 101

MR 1.8(a): Lawyer “shall not enter into a business transaction with a client” unless: (1) Transaction and terms are fair and reasonable to the client, and fully disclosed in writing “in a manner that can be reasonably understood” by the client; (2) client is advised in writing to seek consultation with independent counsel; and (3) client gives written informed consent.

Answer 102

A lawyer shall not solicit any substantial gift from a client, including a testamentary gift. [cmt. 6] A lawyer may accept a gift from a client, if the transaction meets general standards of fairness. For example, a simple gift such as a present given at a holiday or as a token of appreciation is permitted. If a client offers the lawyer a more substantial gift, paragraph (c) does not prohibit the lawyer from accepting it, although such a gift may be voidable by the client under the doctrine of undue influence, which treats client gifts as presumptively fraudulent.

Answer 103

A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.

Answer 104

“When lawyers representing different clients in the same matter or in substantially related matters are closely related by blood or marriage, there may be a significant risk that client confidences will be revealed and that the lawyer's family relationship will interfere with both loyalty and independent professional judgment. . . [A] lawyer related to another lawyer, e.g., as parent, child, sibling, or spouse, ordinarily may not represent a client in a matter where that lawyer is representing another party, unless each client gives informed consent.”

Answer 105

“(b) A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.” BUT . . . Don’t forget MR 1.6(b)(4): A lawyer may withdraw from representing a client if: (4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement; BUT . . . MR 1.6(c): A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.”

Answer 106

“A lawyer may serve as a director, officer or member of an organization involved in reform of the law or its administration notwithstanding that the reform may affect the interests of a client of the lawyer. When the lawyer knows that the interests of a client may be materially benefitted by a decision in which the lawyer participates, the lawyer shall disclose that fact but need not identify the client.”

Answer 107

“A lawyer representing a client before a legislative body or administrative agency in a nonadjudicative proceeding shall disclose that the appearance is in a representative capacity and shall conform to the provisions of Rules 3.3(a) through (c), 3.4(a) through (c), and 3.5. [LITIGATION ETHICS RULES].”

Answer 108

MR 5.4(c): “A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services.” MR 1.8(f): Lawyer may accept payment from third party only if client consents; there is no interference with the lawyer’s independence of professional judgment or with the lawyer-client relationship; and client info is protected by MR 1.6.

PR Final Exam Flashcards

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