PR Finals Flashcards
ACP may be invoked with respect to:
1.
2.
3.
4.
- Communication
- Privileged persons
- In confidence
- Seeking legal advice
ACP is ____ advice while WPD attaches to….
- Legal advice
- Materials prepared in “anticipation of litigation”
What docs are protected by WPD?
Those prepared in “anticipation of litigation.”
Exceptions to ACP?
1.
2.
- Voluntary waiver
- Crime / fraud
_____ wavier of ACP: voluntary disclosure in non-privileged communications.
Voluntary waiver
___ ___ exception to ACP: Advice sought for purpose of committing a fraud or crime.
Crime-Fraud exception
ACP: If ∆ was required to produce documents [not voluntary], has ∆ waived ACP?
No. The disclosure to non-privileged party must be voluntary.
T/F) ACP: If a 3rd party is included in the conversation btw the atty & the client, privilege does not apply.
True. The communication is NOT intended to be confidential.
The ____ doctrine prevents from DISCOVERY by opposing party, documents and _____ things that are prepared in “anticipation of litigation.”
- WPD
- Tangible things
Why is WPD broader than ACP?
Does not require a communication between lawyer & client seeking legal advice.
Can WPD apply to materials prepared by the client with no involvement of lawyer?
Yes.
WPD: What standard is applied when the document was prepared primarily in anticipation of litigation?
Reasonable standard
Can you waive WPD the same as ACP? IE: Privileged comms shared with third party? [Sharing docs]
Yes.
What exception applies to WPD but not ACP?
- Undue hardship
- Substantial need
[WPD Waiver exceptions]
_______ Doctrine: Where the 3rd party facilitates comms between atty & client. [paralegal, accountant, etc.] does not waive privilige.
Kovel Doctrine
This doctrine that allows separately represented parties with common legal interests to share information with each other and their respective attorneys without destroying the attorney-client privilege.
Also known as Joint defense doctrine.
Common Interest doctrine
_____ equivalent doctrine: The 3rd party is “functionally” an employee of the law firm.
Functional equivalent doctrine
T/F) Courts have generally rejected WPD exceptions as applied to 3rd party consultants bc anybody can fit description of “consultant.”
True!
WPD sequencing in court?
- Seeking party pleads “not privileged” and “relevant.”
- Opposing party shows “prepared in anticipation of litigation.”
- Seeking party now shows can’t get without “undue hardship” and has “substantial need.”
Attorney shall not real info related to client unless…
- Consent
- Impliedly authorizied
- Exceptions [self defense, etc.]
What are the potential types of conflicts of interest?
- Current / co-clients
- former and current clients
If not doing “current” work for a client, can they still be a “current client?”
Yes if the client reasonably believes that a relationship exists.
Current client?
1. Hired to handle ALL clients legal probs.
2. Hired to handle single, discrete matter.
3. Episodic client.
- Yes
- No
- Yes
Episodic clients do not have reasonable belief that atty-client relationship exists. [T/F]
False. ABA Opinion notes that they may.
Can a lawyer represent one client when the representation will be directly adverse to the other co-current client?
No.
Can a lawyer represent a client if the rep. would materially limit his reposibilities to another client?
No
When can’t lawyer represent two clients at same time?
- Directly adverse
- Materially limit services to one or the other
If representation of two clients are directly adverse, can you continue if they both consent?
No. Improper.
Can you represent both the husband and wife in the dissolution of their marriage?
No. Directly adverse interests.
Representing two clients. Can you represent if one client is directly adverse to current client in UNRELATED matter?
Only if both give INFORMED consent.
Direct Adversity in unrelated matters:
General requirements?
1.
2.
3.
- Can provide competent & dilligent rep.
- Not prohibited by Law
- Informed consent.
When can lawyer also serve as a witness?
- Testimony relates to nature and value of services
- Uncontested matter or issue
- Informed consent
When can you rep. 2 clients who are directly adverse in UNRELATED matters?
- Competent & dilligent
- Not prohibited by law
- Informed consent
[ACP]
The _______ _______ doctrine is a common law principle that allows corporations to claim ACP for communications with non-employees who are considered “functional equivalents” of employees.
This doctrine can be useful for corporations that outsource work or reduce their number of employees
Functional equivalent doctrine
Functional equivalent doctrine applies to what ?
ACP
When can lawyer represent 2 clients, directly adverse, in unrelated matters?
- Competence & dillegence for both.
- Not prohibited by law
- Informed, written consent
Permissible?
- Current clients, directly adverse, related matter.
- Current clients, directly adverse, unrelated matter.
- Former client, same or substantially similar matter.
- No.
- Yes, C&D, ok legally, consent.
- Consent.
___ ____ rule: Atty who represents a member of a corporate group will be treated as having an atty-client relationship with all subsidiaries, members, etc.
Per Se rule
Does an attorney who represents a corporation have an atty-client relationship with subordinate members, affliates, etc.? Why/why not?
Yes. Per Se rule.
___ ____ doctrine: The alter ego doctrine applies when a court determines that a corporation is not a separate legal entity from its individual owners, but rather is functioning as the alter ego of those individuals.
This can happen when an individual or group of individuals abuse the corporate form to avoid personal liability or accountability
Alter ego doctrine
Alter ego test must show what?
1.
2.
- Such unity of interest that the ‘separate personalities of corp. no longer exist.’
- Inequity will follow if corp. separateness is respected.
_______ conflicts: Situation in which lawyer takes a position on behalf of one client that is adverse to another client.
Positional Conflicts
Whether positional conflicts rise to level of concurrent conflict of interest depends on what?
Does it pose “significant risk” to one of the clients?
- Can a lawyer advocate for different / opposing legal positions on behalf of 2 diff. clients in the same court?
- What about different courts / tribunals?
- No
- Yes
T/F] In cases in which lawyer asked to represent clients who have adverse interests in a single contested litigation matter, representation is improper, even with client consent.
True
_____ waivers: Lawyer may obtain prospective consent to future conflicts from a client.
Advance waiver
Are advance waivers conclusive with regard to propriety of subsequent representation?
No. It depends on whether client reasonable understood the risks of the waiver.
Can you represent multiple parties in a business transaction?
[4 step process]
- ID of client / clients
- Does conflict exist?
- Is conflict consentable?
- Get consents in writing.
Can you accept property as payment for fee? If so, requirements?
Advise to seek independent legal counsel and get written consent.
Why is there typically conflict between lawyer and client in class action settlements?
Incentive for lawyer to settle cause his fee is high and client usually less. Some clients may get more than others.
T/F) For class actions, courts do not require FRCP 23 to be met.
False. If you do not, cts may require diff. counsel to certify the class.
FRCP 23?
- So numerous joinder impossible
- Common issue of law / fact
- Class will represent the party
- Class claims/∆s represent the typical party.
[Insurance]
____ mode: Def. counsel represents both insured and insurer.
Two client model
[Insurance]
_____ model: Def. counsel has duty to the insured. The insurer is a 3rd party payor.
One client model
[Insurance]
If counsel learns that insured has intentionally engaged in conduct that would exclude coverage… Can he reveal to insurer?
No. But can’t allow furtherance of fraud with his services. IE: Withdrawal.
.
_____ client model: A lawyer hired by insurer to represent an insured owes an “unqualified duty of loyalty to the insured” and must act at all times to protect the insured.
One client model
One client model:
1. Insurers should…
2. Insured should…
3. Settlement includes informing…
- make reasonable efforts to settle
- make reasonable efforts to settle
- Informing insured of his right to pay out of pocket to settle
What is unique about SC and the one/two client insurance model?
SC joined the ranks of Js allowing insurers to sue attorney for malpractice.
T/F] Insurer can bring malpractice action against panel counsel but must show harm by panel counsel negligence.
- What MUST the insurer show?
[False] Can bring claim even w/o proving negligence or harm from panel counsel.
- Must only show that the breach is proximate cause of damages to insurer.
Duty to Insured ____ ____ _____ Theory: Allows insurers to initiate a direct action against panel counsel when showing breach is proximate cause of damages to insurer.
Duty to Insured damages to Insurer
List a few conflicts btw Insured & Insurer?
- Fraud collision by insured
- Excess claims exceeding policy
- Coverage disputes
- Multiple insureds
_____ allows insurer to recover $$$ under subrogation claim, IE: medical expenses paid.
Subrogation
A ____ conflict exists when a lawyer represents client in one matter and at same time, represents another in sep. matter advocating opposite legal position.
Positional conflict
Can a lawyer advocate opposite [Positional] legal positions in different cases?
Yes. As long as the positional conflict does not MATERIALLY LIMIT his representation to either of the clients.
Accountant facilitates comms / work between counsel and corporation. Has WPD been waived?
No. Kovel Doctrine applies.
Do trial courts have the power to reject waivers of conflict for representation of multiple co-defendants?
Yes
The potential for conflict of interest in representing multiple ∆s in a [civil/criminal] case is so grave that counsel should decline.
Criminal.
T/F] There is a per se prohibition of multiple ∆s in a criminal case.
False. Not smart though.
If counsel does, unwisely proceed in rep. multiple ∆s in criminal case… what is needed?
- Consent in writing [make this court record]
- Acknowledge risks & alternatives, including right to independent counsel.
___ representation agreements are an alternative to multiple representations.
Joint representation agreements
Is joint representation agreements an exception to the ACP rule regarding sharing with 3rd parties?
Yes.
T/F) Trial courts can’t reject waivers of conflict for representation of multiple co-∆s.
False
If there is actual conflict between multiple co-∆s what amendment may we be violating here?
6th Amendment. Right to effective counsel.
If two co-∆s in a criminal trial agree for you to rep. them both… what is needed?
- Consent [make court record]
- Understanding of risks, including right to indp. counsel.
Generally, ACP is waived when privileged info is shared with a 3rd party. What are some exceptions to this rule?
- Joint Representation.
- Kovel Doctrine
_______ representation allows one client/counsel to communicate with other client/counsel without violating privilege.
Joint representation
Joint ____ of Sep. Clients: Occurs when two or more ∆s have been joined in ONE TRIAL but are represented by DIFF. LAWYERS.
Joint ∆ Sep. Clients
In Joint ∆ of seperate clients, is there ACP with other client / is there a duty owed?
Only to your client.
2 questions for representation against former client?
- Is representation of current client MATERIALLY ADVERSE?
- Is new matter same or SUBSTANTIALLY RELATED to former client matter?
Representation against former client is _____ _____ matter is prohibited without informed consent. [Must be in writing]
Substantially related
What type of information is disqualifying coming from prior representation to a new client?
Info that materially advances the clients position in subsequent matter.
Regarding disqualifying info from former client, if it is generally known, not DQ. [T/F]
True
[Against former client]
When are matters substantially related?
- Same transaction / legal dispute
- Confidential info from prior rep. Materially advances subsequent client position.
Can you handle prospective and current client when prospective client gives information that could be harmful to current client?
Yes if both give informed consent.
____ ____ test: provides that a lawyer may not represent a person materially adverse to a former client, without the former client’s consent, “in the same or a substantially related matter,” regardless of whether the lawyer actually obtained confidential information
Substantial relationship test
[Zealous Representation]
It is just as important that criminal ∆ have a ____ process which requires defense attorney to protect their rights, regardless of guilt or innocence.
Fair
Generally, the MRs prohibit brining FRIVOLOUS legal proceedings. Exception?
Criminal ∆ attorney b/c of presumption of innocnece.
[Frivolous?]
The facts not fully developed or the lawyer expects to develop evidence in discovery.
No.
[Frivolous?]
Lawyer believes his action will not prevail.
No
[Frivolous?]
Claim is not warranted under existing law but lawyer believes law should be changed.
No
FRCP rule for frivolous claims?
11
For rule 11 it is an _____ [Reasonable] inquiry, not simply good faith.
Objective. Not good faith.
Violation of rule 11 can lead to what?
Sanctions against attorney.
FRCP 11: Frivolous claims
1.
2.
3.
- Not improper purpose
- warranted by existing law or argue change in law
- has evidentiary support
3 requirements under rule 11?
- Not improper purpose
- warranted under existing law or
- argue change of law
- has evidentiary support
For the 3 requirements under rule 11, counsel must conduct a ___ ____ for each requirement.
Reasonable inquiry
Does a bad outcome alone make a medical malpractice case?
No. It should though.
If a doctor makes a “bad choice” between two acceptable medical practices… is this malpractice?
No. Both options were acceptable medical practices.
For medical malpractice claim in SC, what do you need before filing?
Medical affidavit from an “eXpErT.”
Under rule 11, even if claim is warranted under the 3 requirements, what else must counsel do?
Investigate affirmative defenses [SOL, PJ, etc.]
Can failing to make a reasonable investigation into an obvious affirmative defense warrant rule violation?
Yuppers
A lawyer may make a claim based on time-barred restrictions [SOL] so long as lawyer does not…
make any false representations
T/F] Counsel can waive affirmative defense of SOL without client consent.
False
Whats one way to bring claim after SOL run?
Make argument that SOL tolled.
Can a lawyer interview potential ∆s before filing suit?
So long as he does not KNOW that they represented by counsel.
When does lawyer know that potential ∆ is represented by opposing counsel?
Actual knowledge – which can actually be inferred. “Lawyer may not close his eyes to the obvious.”
T/F] It is not unethical for an attorney to speak with a represented party.
False
What if possible ∆, rep. by opposing counsel, consents to interview?
Still no. Need the counsel’s consent.
T/F) A lawyer may open a law office & practice in a J in which she is not admitted – if the lawyer is a salaried employee of her only client.
True, just can’t litigate there.
When doesn’t lawyer have to reach early, clear agreement with client on fees?
Lawyer has represented client before.
Lawyers subject to discipline for charging ____ fees.
Unreasonable
T/F] Lawyers may not permit a client to pay fees via credit card.
False
T/F) Lawyer is not subject to discipline for charging contingent fee in a criminal case.
False
What is a proper method to resolve a fee dispute with a client?
Arbitration
Can a lawyer split fees with a non-participating lawyer?
No
The decision to plead guilty is a ____ decision that rests with who?
Strategic, client
Are lawyers subject to discipline for failing to convey settlement offers to the client before rejecting it?
Yes
Moving for Summary Judgment is an example of a ____ decision that rests with who?
Lawyer
T/F) The law allows a client to fire a lawyer for any reason at all, at any time, without cause. What $ is client liable for at this point?
True, fair value of completed work.
An attorney may withdraw from representing a client if the attorney considers the client’s objectives to be ______ or is _________ ___________ attorney’s beliefs.
Repugnant, fundamentally against attorney beliefs
T/F) A lawyer who transfers funds for ‘unearned’ fees to the Firm’s general account may not be subject to discipline if the action was reasonable.
False
Can you co-mingle client(s) $$ in one trust account?
Yes
If a lawyer fails to withdraw funds as ‘earned’ and billed from the client trust account, is he subject to discipline? Why?
Yes, improper co-mingling of funds.
Mandatory withdraw reasons?
(1) Disability
(2) Illegal
(3) Ethics
Lawyers are permitted to take protective action for a client with _____ ______ who is ‘at risk’ (substantial) and can’t adequately protect themselves.
Diminished capacity
Is it mandatory or discretionary for a lawyer to take protective action for client with diminished capacity?
Discretionary
Must an associate ensure that the firm has policies that assure a non-lawyer’s conduct is “compatible” with the professional obligations of the lawyer?
No. This duty rests with the partners.
Caution: Even when the withdraw stems from client’s repugnant behavior, what must the Lawyer still ensure he/she does?
Notice and time to find new counsel.
After a matter is concluded, the lawyer may acquire publication & media rights. [T/F]
True, only after conclusion of the matter, never during litigation!
T/F) Client has absolute authority to discharge lawyer, for whatever reason.
True
T/F) If a matter is pending b4 the court, attorney must obtain court’s permission to withdraw.
True
____ _____ Doctrine: When an attorney drops one client in order to hop over to a more favorable client.
Hot potato
MR says nothing about HP doctrine. What about RST?
Breach of duty of loyalty
_______ agreements: Another form of limited engagement agreement which allows lawyer to investigate a case b4 representation.
Investigation agreements
Who decides whether or not to appeal?
Strategic, client
2 types diminished clients?
Impaired, incapacitated
- Impaired clients?
- Incapacitated?
- Normal relationship [try]
- May take action of substantial harm risk [discretionary]
Taking action for incapacitated clients is mandatory. T/F
False
T/F Contingent fees for criminal cases are permissible.
False
______ Lien: Possessory interest in client papers or property. IE: Red Ram
Retaining lien
______ Lien: Charged against proceeds of settlement.
Charging lien
At what stage of litigation can lawyer acquire interest in media rights?
Conclusion
Business transactions with client?
(1) Fair / reasonable and (2) written consent
- Flat fees =
- Expense deposits =
Trust account
If hospital has a valid lien on client, does lawyer have obligation to honor the lien once settlements received?
Yes
Communicating ‘take it or leave it’ fees to client permissible?
Yes. Lawyer need not offer alternative fee nor inform client that other lawyer might offer cheaper alternative.
What can lawyer pay for regarding expert witness?
Accomodations and travel
May attorney advance court costs and expenses?
Yes
Can attorney pay court costs for indigent clients without repayment?
Yes
Expenses not OK to charge clients?
(1) Overhead (2) Excess of actual costs
Non-engagement letter requirements?
(1) Not taking case (2) Referral (3) SOL
What test applies to lack of competence?
Strickland
Strickland test?
(1) Ineffective assistance of counsel, (2) Prejudiced (but for counsel conduct, a diff. result would have occurred.
When can you break confidentiality?
- Client express consent
- Implied consent [working with other attorneys]
- Prevent death / harm
- Fraud/crime direct connect 2 services
- ∆ against legal action
- Court order
- Law requires
Problem 3-1: Your client admits to killing a girl. He left the body in a mine. He ‘plans’ to seek release and better hide the body on bail. Disclose?
No. Can disclose only to prevent death or harm. This is a past action.
T/F) A lawyer’s job is to present to the court a valid claim for bail, even when the lawyer knows that the client may commit another crime.
True. Planning is not enough. You need actual knowledge that he will commit a crime
MPRE Q: Lawyer has fundamental disagreement with client over repugnant matter but assists him anyways. Subject to discipline?
No. This is grounds for discretionary withdraw.
When can a lawyer reveal property or financial fraud?
When directly connected 2 his services. It is discretionary to do so.
T/F) Lawyers have ethical duty to maintain confidentiality for past and future crimes.
False. Past crimes only.
T/F) Majority of states hold that tangible evidence of crime in ‘possession’ of atty is NOT subject to privilege.
True. Turn it over or risk accessory.
Client murder weapon. He tells you where it is. It’s a past crime. Must you disclose?
You can’t disclose. It’s a past crime and you do not have ‘possession.’ Even if it was a future crime, it is discretionary to reveal.
Primary fiduciary duties to client:
- Competence 2. Diligence 3. Communication 4. Loyalty 5. Fairness
Attorney client relationship formation?
- Express
- Implied
- Appointed
Advances placed in what account?
Trust
T/F] Atty may not withdraw his ‘earned’ funds from a settlement award until a full accounting has been rendered to his client.
True
T/F] Lawyer is subject to discipline for stating personal opinions when arguing a case to jury.
True
T/F) During trial, lawyer can’t communicate – even outside court– with jurors, on any matter whatsoever
True
T/F) A non-lawyer can’t own any interest in a law firm.
True
Does a lawyer owe a duty of confidentiality to a prospective client whom he does not take?
Yes
Retainer Fee: T/F) A lawyer who is fired or withdraws generally must return/refund the retainer fee.
False, retainer fees earned when paid
When may a lawyer accept property in return for services?
When the property is not subject to litigation / pending COA.
Client pays Murdock 2K in advance. Murdock asks for 3K in middle of trial or will withdraw. Proper?
No. A lawyer must not make fee agreement that could curtail services in middle of trial
Murdock agrees to represent W in martial dissolution case for 10% contingent fee. Proper?
No. Lawyer prohibited from charging contingent fees in (1) criminal & (2) Domestic trials.
Exception to no contingent fee for domestic matters?
To secure money that is past due under alimony or support decree.
T/F) Atty can charge contingent fee to secure past due alimony.
True
T/F) Referral fees are permitted & in fact, ethical.
False
When client fires counsel, what must client pay?
Quantum Merit - Reasonable value of work completed.
Mandatory withdraw?
- Illegal
- Disability
- Ethics
T/F) A lawyer who commits a criminal act can be disciplined for it whether or not he was convicted of a crime.
True
Attorney client relationship formation?
- Express or implied
- Appointed