PR Final Flashcards
Bar Admission Rule
8.1: applicant for admission to the bar shall not:
(a) knowingly make a false statement of material fact; or
(b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority…
Exceptions to 8.1
can fail to respond to a lawful demand for info from an admissions or disciplinary authority if…
(1) 5th amendment (must indicate you are invoking your 5th amendment right)
(2) protect client confidentiality
Rule for duty to report misconduct
8.3 - a lawyer who knows that another lawyer has committed a violation of the RPCs 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. [in WA reporting is discretionary, but under MR it is mandatory.]
What rule is considered the “kitchen sink” that makes it professional conduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation?
8.4(c)
What rule makes harassment/discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital statute or socioeconomic status professional misconduct?
8.4(g)
Does harassment under 8.4 include sexual harassment and derogatory or demeaning verbal or physical conduct?
yes! 8.4 comment 3 specifies this.
Supervising Lawyers’ Responsibilities
MR 5.1 (b) a lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the RPCs.
5.1(c) a lawyer shall be responsible if… (1) the lawyer orders or ratifies the conduct involved; or (2) knows of the conduct but fails to take reasonable remedial action.
Responsibilities of a subordinate lawyer
5.2
(a) a lawyer is bound by the RPCs notwithstanding that the lawyer acted at the direction of another person.
(b) a subordinate lawyer does not violate the RPCs if that lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty.
Rule for responsibilities towards non-lawyer assistants
5.3
- Reasonable efforts to ensure firm’s conformance.
- Can’t order someone else to do the prohibited act to keep your hands clean
- Must take remedial action if know of subordinate’s error
Can you knowingly assist or induce another to violate the RPCs?
No under 8.4(a).
Elements of a legal malpractice claim
- Duty to the plaintiff (usually an attorney-client relationship)
- Failure to exercise competence and diligence normally exercised by attorneys in similar circumstances (i.e. breached duty of care)
- Breach caused harm
- And in WA - proximate causation.
What is the rule regarding lawyer competence?
1.1- “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”
Can a lawyer accept work in an area of law in which they have no experience?
Yes under 1.1 comment 2, if they compensate through study or affiliation with a more experienced lawyer and if they don’t over bill.
When shall a lawyer seek to avoid appointment by a tribunal to represent?
6.2:
(a) if representation is likely to result in violation of RPCs or other law
(b) if representation is likely to cause unreasonable financial burden to the lawyer or
(c) the client or cause is so repugnant to the lawyer as to likely impair the a/c relationship and ability to represent.
When does an A/C relationship arise?
Restatement 14: An attorney-client relationship arises when:
1. A person manifests to a lawyer the person’s intent that the lawyer provide legal services; 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; or
2. A tribunal with power to do so appoints the lawyer to provide the services.
When is declining/terminating representation mandatory?
MR 1.16 (a) Terminating/declining representation is mandatory if:
- Would violate MR or other law
- Lawyer impaired
- Lawyer discharged
Can a lawyer withdraw from representing a client if the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement?
Yes under 1.16(b).
When may a lawyer withdraw from representation (is allowed to but not mandatory)
1.16(b):
(1) Always okay if no material adverse effect on client
(2) Regardless of adverse effect if:
- Client persists in crime or fraud involving lawyer
- Client has sued lawyer to commit crime or fraud
- Client insists on repugnant or disagreeable action
- Client fails to meet obligations after warning
- Representation = unreasonable financial burden or difficulty
- Other good cause
Must a lawyer comply with court rules when withdrawing?
Yes under 1.16(c)
Must a lawyer take reasonable steps to protect the client when withdrawing?
Yes under 1.16(d).
Accidental Client Rule from Togstad:
“An A/C relationship is created whenever an individual seeks and receives legal advice from an attorney in circumstances in which a reasonable person would rely on such advice”
What rule provides that lawyers shall act diligently?
1.3: A lawyer shall act with reasonable diligence and promptness in representing a client.”
What comment describes the adverse consequences to lawyer procrastination?
MR 1.3 Comment 3 (promptness):
client’s interests can be adversely affected by the passage of time or the change of conditions… in extreme situations, as to when the lawyer overlooks statute of limitations, the client’s legal position may be destroyed. Unreasonable delay can also cause a client needless anxiety and undermine confidence in the lawyer’s trustworthiness.
What rule provides that a lawyer shall consult client about any relevant limitation on lawyer’s conduct when lawyer knows client expects assistance not permitted by the RPCs or other law.
1.4(a)(5)
Rule 2.1 Advisor
In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other relevant considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.
Can you lie to a judge/tribunal?
No under 3.3(a)
Can you lie to third persons?
No under MR 4.1
Can you lie to clients?
No under 8.4(c) - kitchen sink
also under 1.4 duty to communicate with client (truthfulness implied?)
Is a client entitled to straightforward advice expressing a lawyer’s honest judgment?
Yes under 2.1 comment 1.
What fiduciary duties do lawyers owe to their clients?
Restatement 16(d) provides:
Lawyer has a duty to…
- Comply with obligations concerning the client’s confidences & property
- Avoid impermissible conflicting interests
- Deal honestly with the client
- Not employ advantages arising from A/C relationship in a manner adverse to client.
What items within the scope of representation are reserved for the client?
MR 1.2: items reserved for client
- objectives of representation
- whether to settle
- right to be consulted as to the means
- In criminal cases, whether to (1) plead guilty, (2) waive jury trial, (3) and testify.
How shall a lawyer act with clients with diminished capacity?
MR 1.14 (clients with diminished capacity):
(a) When a client has diminished capacity to make considered decisions, “the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.”
(2) The lawyer may “take reasonably necessary protective action” including appointment of a guardian ad litem, a conservator or guardian.
What MR governs client confidentiality?
1.6
What is the basic confidentiality rule?
1.6(a): a lawyer shall not reveal information relating to the representation of a client unless (exceptions)
- 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) [paragraph (b) lays out the exceptions].
Exceptions to the requirement to protect confidences:
1.6(b):
a lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: [remember - this is a “shall in WA]
(1) To prevent reasonably certain death or substantial bodily harm…
(2) To prevent the client from committing a crime or fraud reasonably certain to cause injury to substantial financial or property interests (where client has used or is using the lawyer’s services); [present or future crime or fraud]
(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; [past crime of fraud]
(4) To secure legal advice about professional responsibility rule compliance;
(5) To establish a lawyer’s claim or defense against a criminal charge or civil claim;
(6) To comply with other law or a court order;
You may refuse to disclose still but may risk contempt or other adverse consequences and appeal any adverse consequence from your refusal.
(7) To detect conflicts of interest from change in employment, but only if it won’t compromise A/C privilege or otherwise prejudice the client.
- In WA you HAVE to reveal client confidences to prevent substantial bodily harm or death…
What is Attorney/Client Privilege?
(a common law evidence rule) has a narrower scope and applies to communications made in confidence from client to lawyer, for the purpose of seeking legal advice.
Do both A/C privilege and 1.6 duty last forever?
Yes, they endure forever and survive the termination of the A/C relationship and the client’s death.
Elements of A/C privilege
1) communication between lawyer (or other privileged person) and client
2) communication in confidence; and
3) communication for the purpose of seeking legal assistance/advice.
What is the crime-fraud exception?:
no attorney-client privilege when the client is seeking a lawyer’s advice or assistance in connection with the commission of a crime, or a fraud.
May a lawyer reveal communications for self-defense purposes?
In many jurisdictions, yes.
Work product doctrine
Restatement 87: work product doctrine applies to notes and other materials that a lawyer prepares in anticipation of future litigation and is protected from discovery in pretrial civil proceedings.
When does a concurrent conflict exist?
1.7(a) a concurrent conflict exists if…
(1) Representation of one client will be directly adverse to another client; or
(2) A significant risk that the representation of one or more clients will be materially limited by your responsibilities to another client, a former client or a third person or by your own personal interest.
When may one consent to a concurrent conflict?
1.7(b) notwithstanding a conflict under (a), you may represent if…
Reasonable belief you could represent both clients competently and diligently
Not prohibited by law
Does not involve client v. client in same litigation
Clients give informed consent, confirmed in writing.
Steps in 1.7 analysis:
(1) is there a conflict?
- direct adversity?
- significant risk of material limitation?
(2) if so, is it consentable?
- do you have a reasonable belief that you can provide competent and diligent representation?
- not client v. client in the same litigation?
- not prohibited by law
- both clients consent.
Conflicts with prospective clients
MR 1.18(c)- can’t represent current client if learned information from prospective client that would hurt prospective client if revealed to current client.
Can other lawyers in your firm continue to represent a current client in conflict with prospective client?
MR 1.18(d)- imputation: other lawyers in firm can continue to represent current client if:
(1) Current client and prospective client give informed consent, OR
(2) Lawyer took reasonable steps to avoid exposure; and
(a) Disqualified lawyer timely screened from current client’s matter and;
(b) Prompt written notice to the prospective client.
What rule covers imputation?
MR 1.10
Is there direct adversity when one client appears as a witness in a case involving another client where testimony may be damaging?
Yes under MR 1.7 comment 6.
Does economic adversity constitute a conflict of interest?
1.7 comment 6 states that simultaneous representation in unrelated matters of clients whose interests are only economically adverse, such as representation of competing economic enterprises in unrelated litigation, does not ordinarily constitute a conflict of interest and thus may not require consent of the representative clients.
What rule governs prejudice to former client from duties owed to current client?
MR 1.9
Steps in MR 1.9 analysis
(1) Clearly identify clients: is there a “former” client?
(a) Has the representation ended?
(2) “Same or substantially related matter”?
(a) Important to ask: is there a substantial risk that a lawyer normally would (doesn’t have to have actually learned) have learned confidential factual information in work on first representation of a former client that could be used adversely against that client in the second/new representation?
(3) Are the current client’s interests “materially adverse” to former client’s?
(4) If so, the former client must give informed consent, confirmed in writing.
(5) Under 1.9(a) it is important to ask what confidential information that lawyer might have learned in the prior representation.
What are positional conflicts?
where a lawyer in case 1 argues in court that a key case means X but in case 2 the lawyer argues in court that a key case means Y… (this matters because we care about precedent and we don’t want to create precedent that will hurt another client).
Questions to ask when dealing with a positional conflict?
- Is the issue substantive or procedural?
- How long has it been between you taking position X? Has enough time passed that you can justify the change in position?
- Under 1.7(a)(2) there may be a concern that your prior position may materially affect your ability to represent the client that requires taking an alternative position.
Can someone talk to a lawyer just for the purpose of disqualification?
they could but they would not be considered prospective clients under comment 2 to 1.18.
What MR deals with rules regarding organizational clients?
MR 1.13
For organizational clients, who speaks for the entity?
- RPC 1.13(a): “duly authorized constituents”
- Restatement: “responsible agents:
- Other terms: “representational authorities” or “authorized representatives”
“Reporting up” rules
MR 1.13(b) (“reporting up” rule): if a lawyer knows of wrongdoing by an authorized constituent, the lawyer shall refer the matter to higher authority (“reporting up”).
MR 1.13(c) (if reporting up fails): However, if the lawyer’s efforts under MR 1.13(b) fail and lawyer reasonably believes substantial injury will result the lawyer may reveal information otherwise protected by MR 1.6 (but only to the extent necessary).
1.13(c) doesn’t apply where lawyer is investigating alleged violations of law.
Do lawyers have a duty to clarify their role when dealing with constituents of their organizational client that have adverse interests?
Yes under MR 1.13(f)
Is joint representation of an organization and its constituents allowed?
Yes under MR 1.13(g), however, this joint representation is subject to MR 1.7’s requirements and consent given by some other constituent besides the one being represented.
Factors to consider when determining whether a subsidiary of your organizational client is also your client.
- Did the lawyer receive confidential info or provide advice?
- Is the entity controlled and supervised by the parent organization?
- Will the original client be materially harmed by suit against the entity?
- Does lawyer still represent initial corporate client?
- Did the entities become linked after lawyer began representation of the original client.
Is there A/C privilege to shield information from clients within a joint representation?
NO! Also- under MR 1.7 comment 31, continued representation will almost certainly be inadequate if one clients asks the lawyer not to disclose to the other client information relevant to the common representation.
What rule covers lawyer fees?
MR 1.5
What factors shall be considered when determining whether a fee is “reasonable”?
- the labor, novelty, & skill required by the case
- whether the case precludes other work
- whether the price is comparable locally
- amount involves/recovered in the case
- time limits
- the a/c relationship
- lawyer’s prominence
- fixed/contingent fee
What must the lawyer communicate according to 1.5(b)?
- Scope of services
- The basis or rate of the fee and expenses for which the client will be responsible
- preferably in writing
- before or within a reasonable time after commencing the representation.
- Any changes in the basis or rate of the fee or expenses shall also be communicated to the client.
When are contingent fee arrangements not allowed?
- domestic relations cases
- criminal cases
Can lawyers share fees with non lawyers?
No, this is generally prohibited under MR 5.4.
Are reciprocal referrals between lawyers and non lawyers allowed?
Yes under MR 7.2(b)(4) but agreement must not be exclusive and the client must be informed of the existence of such agreement.
Rule regarding safekeeping client property
MR 1.15
where must client funds be deposited to?
Trust account according to RPC 1.15(c).
What rule governs former government employees?
MR 1.11(a)
What rule governs lawyers moving from private practice to government?
MR 1.11(d)
What rule governs former judges?
MR 1.12
What duty does one have as a third party neutral?
Duty to inform unrepresented parties of your role under MR 2.4.
What rule covers prohibited political activities for judges?
MRJC 4.1
What are duties owed to clients?
- confidentiality
- competence
- diligence
- communication
- deference
- loyalty
- fair dealing
What duties are owed to tribunal?
- Investigate claims
- Candor
- Access to evidence
- Disclose legal authorities and material facts
- Avoid improper influence
Duties owed to others (not tribunal or client)
- Truthfulness
- Unrepresented persons (see 4.3)
- Prosecutors
- advertising/solicitation
Can a lawyer make frivolous claims?
No MR 3.1 states lawyers must make meritorious claims
Meritorious claims = non-frivolous basis in law and fact
- Includes good-faith argument for extension, modification, or reversal of existing law
- In criminal proceedings: defend by requiring prosecution to prove every element
Does a lawyer owe candor toward the tribunal?
Yes under MR 3.3
A lawyer shall not knowingly:
(a) Make false statement of law/fact, or fail to correct previous false statements by the lawyer
- Fail to disclose directly controlling, adverse authority
- Offer false evidence, or fail to take reasonable remedial measures for past false material evidence
- Lawyer may refuse to offer evidence that the lawyer reasonably believes is false… (DOES NOT APPLY to testimony of criminal defendant)
Our rule is different in WA, if we know our client has lied, we must act but need permission of the client to correct a record. If you can’t get that consent, then you must withdraw from the representation. (this is known as a noisy exit).
Must a lawyer disclose adverse evidence not subject to a discovery request?
No, nothing in MR 3.3 requires a lawyer to do so.
May a lawyer seek to influence an official?
No under MR 3.5.
Is fairness owed to opposing party/counsel?
Yes under 3.4(a): a lawyer shall not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value.
A lawyer shall not counsel or assist another person to do any such act.
May a lawyer counsel or assist a witness to testify falsely?
No under 3.4(b):
Lawyer shall not… counsel or assist a witness to testify falsely
Restatement more explicitly allows coaching that does not induce false testimony (restatement 116, comment b).
May a lawyer commit discovery abuse?
No under 3.4(d) “[a] lawyer shall not… in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery requests by opposing
What rule covers trial publicity?
MR 3.6
Can a lawyer testify as a witness?
Typically no under MR 3.7 unless:
1) Lawyer can testify as to an uncontested issue
2) Testimony relates to the nature and value of legal services
Ex: might file an affidavit of attorney fees that you are asking the court to grant because the client is entitled by statute to attorneys fees.
3) When we want to avoid substantial hardship to the client.
Rule regarding communicating with people represented by counsel
MR 4.2: If you are representing someone on a matter and KNOW
another person (doesn’t say party)
is represented in the matter
Do not communicate with him or her absent permission from his or her counsel
Can lawyer knowingly make a false statement regarding the qualifications or integrity of a judge?
No under 8.2(a)… candor about the tribunal.
Is there a caveat to rule 4.1 (truthfulness) regarding negotiations?
MR 4.1 comment 2: Essentially lawyers are allowed some leeway during settlement negotiations but they aren’t supposed to lie about facts of the case or to rely on false documents.
What are the rules regarding communication with unrepresented persons?
MR 4.3: Don’t state or imply that you’re disinterested
Correct the person’s misunderstanding about your role
Don’t give legal advice if there may be a conflict of interest with your client (except advice to secure separate counsel).
What must a lawyer do when they get inadvertently sent information?
Rule 4.4(b) provides: a lawyer who receives a document or electronically stored information relating to the representation of the lawyer’s client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender.
In WA, is legible material discarded in the trash fair game for investigation?
YES, and it may even constitute a waiver of privileged communication.
What rule covers special duties of prosecutors?
MR 3.8
Can a lawyer make false or misleading communications about their services?
No! under MR 7.1: “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.”
What must a lawyer’s advertisement include?:
MR 7.2(d) any communication (advertisement) made under this rule must include: name & contact info of at least 1 lawyer or law firm responsible for its content.
Can a lawyer give gifts for referrals?
7.2(b)(5) says you can only give nominal gifts as an expression of appreciation that are neither intended nor reasonably expected to be a form of compensation for referrals (recommending a lawyer’s services).
$750 gift for referral is probably not nominal…
However a reasonable bottle of wine may not be nominal.
If a lawyer claims to be a specialist in a certain area of law, what must they do?
Under 7.2(c)- if you are going to say you are a specialist in a certain area of law, you have to be certified by an organization that has been approved by an appropriate authority of the state or DC or US territory or accredited by the ABA and say who certified you in the ad/communication.
What rule covers solicitation of clients?
MR 7.3
Can a lawyer practice law for profit in an association in which a non lawyer owns any interest or of which a non lawyer is an officer or a director?
No under MR 5.4(d).
What MR covers unauthorized practice of law?
MR 5.5
