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
Client tells you where murder weapon is for past crime. Obligation to report?
No. Past crime. If you take possession though, must turn over.
T/F) Majority of states hold that tangible evidence of crime in ‘possession’ of atty is NOT subject to privilege.
True. If in possession, must turn over.
T/F) Lawyers have ethical duty to maintain confidentiality for past and future crimes.
False. Past crimes only.
MPRE Q2: Lawyer reveals client property fraud to buyer from a previous – unconnected sale with another lawyer. Did he violate MR?
Lawyer can only reveal property or financial fraud that is connected directly to his services
When can a lawyer reveal property or financial fraud?
It is discretionary. Can reveal when directly connected to his services.
MPRE Q: Lawyer has fundamental disagreement with client over repugnant matter but assists him anyways. Subject to discipline?
No. It is discretionary to withdraw over fundamental disagreement over repugnant matters
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
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. Disclosure here would not prevent ‘reasonably certain death or substantial bodily harm
When can you break confidentiality? Exception buckets.
(1) Client consent, (2) Working with other attorneys [implied], (3) Prevent death/harm, (4) Prevent fraud/crime directly connected to your services, (5) Defense against legal action, (7)Court order / Law requires. [It is discretionary]
Advances must be put 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 the client.
True
T/F) Lawyer is subject to discipline for stating ‘personal opinions’ when arguing a case to the 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, 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?
QM
What are the key words for mandatory reporting of lawyer misconduct?
Substantial Question
T/F) If a lawyer takes a case outside his expertise and does not inform client about his lack of experience, this is grounds for discipline as a violation of MR.
False. All that is required is you study up and do the work.
A ___ ____ agreement is a legal document signed by client and lawyer, allowing them to share confidential info with other parties involved in similar legal matter while protecting ACP.
Joint Defense agreement
This agreement, in essence, outlines the terms under which sensitive information may be shared with another party without waiving privilege.
Joint Defense Agreements
T/F) JDAs should clearly state that no new attorney-client relationship is formed with new parties involved.
Very true!
The purpose of this agreement is to facilitate collaboration between parties w/ shared legal interests without waiving ACP / Privilege / Confidentiality / WPD.
Joint Defense Agreement
Who should sign JDA?
Both client and attorney
Important provisions of JDA?
- Scope defined + limits on shared info
- Disclaims creation of any new ACR
- Outlines procedures 4 handling privileged info
____ _____ is when lawyers associated in one firm, if one of them is DQ, all of them are DQ.
Imputed DQ
T/F) No imputation of DQ if the DQ of the particular lawyer is a result of personal injuries & no significant interest will now limit representation of client.
IE: Strong political beliefs
True
is when a whole group of lawyers or a law firm is disqualified from representing a client because one of the lawyers has a conflict of interest or bias that prevents them from being impartial.
Imputed DQ
If a lawyer in a law firm has previously represented a client with a conflict of interest, they may be disqualified from representing a new client with a similar conflict. In this case, the entire law firm would also be disqualified from representing the new client.
Imputed DQ
[Imputed DQ]
What if lawyer leaves firm for new firm? DQ only if…
- New matter is same / substantially related
- New client and former client interests materially adverse
- Lawyer has confidential info from one matter related to the other
T/F) ABA approved revised rule 1.10 allows for screening of a lawyer who joins a new firm for potential imputed DQ risk.
True
T/F) Lawyer is not DQ simply on the basis of lawyers employment with old firm.
True
T/F) If the lawyer is not DQ under MR 1.9, then her new firm is also not DQ.
True
A few courts have adopted a “bright line” test regarding Imputed DQ. What is it?
New firm DQ in substantially related matter handled by a lawyer’s former firm – REGARDLESS of whether lawyer has confidential info.
Can old firm handle matters materially adverse to a former client formerly represented by DEPARTED attorney?
Exceptions?
Yes.
(1) New matter SUBSTANTIALLY RELATED to old matter, (2) remaining lawyers have CONFIDENTIAL info related to matter.
[Advocate Witness]
T/F) If it is likely that lawyer will be a necessary witness, lawyer cannot represent client at trial and testify as a witness.
True, unless one of the exceptions apply.
[Advocate Witness]
Exceptions to lawyer NOT representing client & testifying as witness?
- Uncontested issue
- Testimony relates to nature/value of legal services
- DQ of attorney would place substantial hardship on client
[Advocate Witness]
If the lawyer will be a necessary witness and none of the exceptions apply, what can we do?
Have another lawyer in the firm handle the case so you can testify.
[Advocate Witness]
Is a law firm DQ if lawyer’s testimony (who was former client counsel) is a conflict of interest that plays on a minor role in the case?
No. Must play a large role in the case to DQ firm.
[Advocate Witness]
T/F) If attorney is DQ from serving as advocate b/c necessary witness… does this mean barred from pre-trial representation too?
Not in every J. This protects client’s right to counsel of his choice.
[Advocate witness]
T/F) A lawyer is NOT DQ from handling a case simply b/c the opposing party ID the lawyer as potential witness.
True
[Advocate Witness]
If counsel is likely to be needed as witness, is the firm automatically DQ?
Not unless conflict of interest which plays major role.
[Conflict of interest, clients]
For conflict to be consentable, lawyer must reasonably believe that he can provide what?
Competent and dilligent representation to both.
T/F) Burden on a client, by itself, would not be enough to enable lawyer to be advocate and witness.
True
T/F) Lawyers are not limited from employees who are NOT represented.
True
ALL current employees are “clients” of an attorney representing an entity. This is what rule?
Blanket rule
____ rule: All employees are “clients/parties” of an entity and cannot be interviewed.
[Bobby, Jo, Kyle, Patrice]
Blanket rule
_____ group: Only most senior management who are exercising control over the corporation are “parties.”
[Jermaine, Reggie, Bryan]
Control group
May an employer request that employee not voluntarily give information to opposing party?
Of course
The Nieseg test affords ACP to what employees?
Employees whose acts are binding or may be imputed to organization. These employees typically take attorney advice.
What is the Niesig test?
- Binding acts
- Imputed acts
- implement advice of counsel
Represented employees of a corporation under comment 7 to rule 4.2?
Essentially the same as Nieseig, in that imputed employees covered. Also lumps in supervisory employees / those that can obligate organization.
Steps to take interviewing W?
1.
2.
3.
Follow up?
- ID yourself
- Ask if represented
- Scope of interview / NOT providing legal advice to W
Follow up = Give employee statement summarizing the interview. [Ask to sign and date]
Are non attorney interviewers bound by the same ethical requirements as attorney?
Yes!
SC is a “one party” consent state regarding recordings. Meaning what?
You can record a convo between yourself and another without their consent
Regarding recordings, what law / rule governs?
The law of the state you are in. Read the statute given.
Model Rule 6.2 requires ____ _____ for seeking to avoid a court-appointed representation.
“Good cause” which implies lawyers have ‘some’ ethical obligation to take on clients.
Attorneys can seek to be excused from appointment on the grounds of competence. T/F
True! This is “good cause” per 6.2.
T/F) a lawyer must seek to withdraw if the client is a criminal defendant who insists on taking the stand to commit perjury.
True
After a client has filed a complaint against you, you now have a conflict of interest with your client. To continue to represent the client would be to violate a rule of professional conduct. So, you MUST withdraw.
[T/F]
True!
[Fail to pay you, permissive withdraw guide]
May withdraw when… “Client fails fulfill an obligation to the lawyer [payment] regarding the lawyer’s services and…
You give them notice you will withdraw unless payment received.
Attorney must provide notice of withdraw that is….
Reasonable under the circumstances.
[After withdraw]
[T/F] Generally the entire file, including the attorney’s work product, must be surrendered, subject to any state laws allowing retaining liens for unpaid work.
True!
T/F) You ‘may’ withdraw if client fires you.
False. Must withdraw.
Contingent fees permissible so long as…
In writing and reasonable.
T/F) The Model Rules require that a lawyer explain to a new client how the lawyer’s fee will be calculated.
Exceptions?
True
Exception = regularly represented client charged on the same basis or rate
Lawyer is offered a position with a firm on condition that, if Lawyer leaves the firm, Lawyer will not compete with the firm. Would this agreement not to compete violate the Model Rules?
Yes. You cant restrict lawyer future employment avenues like that.
“A lawyer shall not participate in offering or making . . . an agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a client controversy.” [T/F]
True
T/F) The Model Rules generally allow a lawyer to share legal fees on a percentage basis with a nonlawyer as long as the nonlawyer actually provides services for the client.
False
If Client accuses Lawyer of malpractice, Lawyer may reveal confidential information in defending herself.
True
Proper objections in a deposition?
- Form of Q
- ACP
- Coaching W during breaks
- Saying objection to coach W
FRCP ___( ) gives the basis for punishment for violating discovery rules.
26 (g)
26 (g) certifies that lawyers signature means the complaint and all processes b4 it, including deposition is neither ____ nor ____ ____ or expensive.
Neither unreasonable nor unduly burdensome or expensive
Failure to make disclosures; sanctions is what federal rule?
37
Typical sanctions for discovery abuse?
- Pay others attorneys fees
- Strike answers answer to suit
- Enter judgement against attorney
- Suspend attorney
Per the Model rules, Lawyers obligations during depositions turn on what?
The Court’s rules
MR 3.4 prohibits ____ discovery requests.
Frivolous discovery requests
MR 3.4 requires __ ___ efforts to comply with opposing side discovery requests.
Reasonably diligent
T/F) Per 26 (g) signing of the discovery request is a certification by the atty that the request is ___ with these rules.
“Consistent with these rules”
[Depositions]
26 (g) We must “sign and certify that to best of our knowledge the request is ‘___ ___ ___ ___’.”
Consistent with these rules
Interrogatories may not exceed how many?
25, including all discrete subparts.
T/F) An interrogatory IS objectionable when it asks for an opinion or contention that relates to fact or application of law to fact.
False
T/F) A court may order that an interrogatory need not be answered until designated discovery is complete.
True
Rule 33 counts “discrete subparts” of an interrogatory as separate. T/F
True
If some interrogatories are valid and others not? Can you object to all?
No! Each interrogatory, if not objected, must be answered separately.
Do witness statements constitute work product?
Yes
Under state law, all hospital peer review proceedings are confidential unless ordered by a court. T/F
True
What are the two only objections that should be made at a deposition to avoid “excessive objections complaints.”
- ACP
- Form of Q
What if lawyer receives inadvertent disclosure of privileged info?
- Notify sender promptly
- Allow sender to take protective action [perhaps clawback]
[Inadvertent disclosure MRs]
1. Promptly notify sender
2. Allow sender to take protective measures
T/F) Cmt. 3 provides lawyers have discretion to take other steps including return of the document unread. [RULES DONT ADRESS WHETHER MUST RETURN]
True
[Inadvertent disclosure]
Party making the inadvertent disclosure May/Must notify the receiver of the claim of privilege.
May
[Inadv. Disc. FED]
After being notified of inadvertent disclosure, you MUST:
- Return or sequester or destroy
- Not disclose it until dispute resolved
- Notify court
_____ abuse occurs when a party engages in tactics that obstruct or mislead the discovery process.
IE: W refusing to answer Qs in deposition to obstruct justice
Discovery abuse
[Limiting Malpractice]
Agreements prospectively limiting malpractice liability is only permissible if….
…the client is independently represented in making the agreement.
If withdrawal will not harm the client and the court does not require the lawyer to continue, can a lawyer withdraw from a client’s case without cause?
Yes.
If you expect difficulties from other side when negotiating / depositions?
- Arrange video deposition
- Secure availability of a
judge - Special master
MR 4.4 (b) Inadvertent disclosure?
- Promptly notify
- Sender may take protective actions
- Receiver may take more steps, including return
Inadvertent Disclosure:
4.4 (b) requires a lawyer who receives a docx when the lawyer ____ or _____ ____ ____ that the document was inadvertently sent to PROMPTLY notify the sender.
- Knows
or - Reasonably should know
[Inadvertent disclosure]
Does 4.4(b) require attorney to return or not read the document?
No. Thats federal. For the MRs, the attorney has “professional discretion.”
Rule ____ bars comms between lawyers and persons known to be represented with respect to a matter, without consent of that persons lawyer.
4.2
Is an attorney objecting to a Q asked during a deposition on grounds of irrelevances discovery abuse?
No. You can do this. Be zealous.
MR ____ says a lawyer cant make false statements of ___ fact.
- 4.1
- No false statements of material fact
MR 4.1 says what?
Lawyer shall not knowingly make false statements of material fact.
T/F) Misrepresentations, including omissions of material facts, are equivalent of affirmative false statements violating 4.1.
True
Is the “value of the case” considered to be a material fact in negotiations?
Na. You can puffer.
[Negotiations]
Permissible?
- False statement, material fact.
- False statement on procedural aspects.
- False statement about provisions of K.
- Lawyers true opinions
- Value of case
- No. Violates 4.1.
- No.
- No.
- Yes
- Yes [Puffery]
T/F) Failure to disclose may be equivalent of an affirmative misrepresentation.
True
T/F) There is leeway to puff in negotiations.
True
Material misrepresentations are permissible against 3rd persons. T/F
False
Are there any misrepresentations that are permissible to a tribunal?
No
A lawyer shall not fail to disclose a material fact when disclosure is necessary to avoid assisting a…
Criminal or fraudulent act by client
For minor involved settlements above $______, must be reviewed and approved by the courts.
$2500
You must have ___ ___ that raises substantial Q as to lawyers fitness before reporting.
Actual knowledge. Very high standard.
T/F) In most jurisdictions, private confidentiality agreements and court ordered confidentiality are not permissible.
False
May a lawyer in a civil case refuse to offer evidence that the lawyer reasonably believes to be false, even though the lawyer does not know it is false?
Yes. If he KNOWS it is false then shifts to he MUST not offer it.
Client wants Lawyer to call Witness as an alibi witness in Client’s defense. Lawyer knows that Witness’ testimony will be false in its entirety. Would Lawyer violate the Model Rules by calling Witness?
Yes, a lawyer shall not knowingly offer evidence he knows to be false.
If after Client’s direct examination by Lawyer in a civil case, Client confides to Lawyer that the testimony was perjurious on material issues, the Model Rules require Lawyer to–
To take reasonable remedial measures.
T/F) MRs prohibits failure “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.”
True
Under the Model Rules, could a lawyer be disciplined for lending money to a judge?
Yes
prohibits communicating ex parte with a judge during the proceeding except as permitted by law or court order. [T/F]
True
MRs prohibits a lawyer to “state or imply an ability to influence improperly a government agency or official.” [T/F]
True
T/F) A lawyer who makes a false out-of-court statement about a judge might be subject to a libel or slander action, but the Model Rules do not provide for professional discipline.
False
The Model Rules restrict lawyers’ accepting private employment in matters in which they had substantial responsibility while acting as public employees. [T/F]
True
The Model Rules dealing with advertising and publicity prohibit attorneys from making self-laudatory statements, even if the self-laudatory statements are accurate and not likely to create unjustified expectations. [T/F]
False. Only false or misleading statements are prohibited.
Under the advertising rules, attorneys are allowed to advertise on radio or television. [T/F]
True. “Better call Saul!!”
T/F) The Model Rules permit a lawyer to advertise the amount of the attorney’s fee for an initial consultation.
True. The only restriction is that AD not be false or misleading.
Do the Model Rules permit a lawyer to pay a newspaper for running an advertisement of the lawyer’s services?
Thats fine
The Model Rules permit lawyers to advertise to strangers in the media, but prohibit live phone calls to strangers soliciting their legal business if a significant motive is the lawyer’s pecuniary gain. [T/F]
True. Cant solicit directly to live persons.
Lawyer enters a fee agreement with client. Despite Lawyer’s repeated requests and warnings that Lawyer would withdraw if Client did not pay the fee, Client makes no effort to pay the fee, but does nothing else wrong. Do the Model Rules permit Lawyer to discontinue the representation on grounds that Client has not honored the fee agreement?
Yes
The Model Rules generally allow a lawyer to share legal fees on a percentage basis with a nonlawyer as long as the nonlawyer actually provides services for the client. [T/F]
False
The Model Rules prohibit a lawyer from practicing law in partnership with a nonlawyer. [T/F]
True
The Model Rules prohibit unjustifiably delaying litigation, but do not require a lawyer to make any efforts to expedite litigation.
False
A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client. [T/F]
True
Do the Model Rules permit a lawyer to act as advocate in a case in which the lawyer will be called as a witness solely to testify about an uncontested issue?
Yes if uncontested. Must have informed consent as well.
Do the Model Rules permit a lawyer to act as advocate in a case in which the lawyer will be called as a witness if disqualification would work substantial hardship on the client?
Yes, putting substantial hardship on client is one of the exceptions allowing.
May Lawyer seek or accept reimbursement from the client, a relative of the client or anyone affiliated with the client if you loaned money to client because he is indigent.
No
T/F) An advance fee paid to you by a client for legal services to be provided in the future can be nonrefundable.
False. Advance fees for future services cannot be nonrefundable.
Flat fees based on completion of certain described services does means that the fee is “earned on receipt.” [T/F]
False.
A judge may accept reasonable compensation for extrajudicial activities permitted by the CJC or other law, unless accepting it would create appereance of what?
Appearance of impropriety.
T/F) When any lawyer is disqualified from representing a client, generally none of the lawyers with whom the disqualified lawyer is affiliated can represent that client
True
T/F) The conflict of interest of any lawyer in a new firm merging with old firm becomes the conflict of interest of all the lawyers.
True
Ethical?
Familiarizing a defense witness with what defense counsel means by focusing on the witness answering only the question that was asked, i.e., not volunteering information.
Yes, this is permissible and proper.
T/F) Rule 7.3(b)(2) enables a lawyer to solicit persons with whom he has a family relationship.
True. You cant solicit directly to anyone else! [Except past clients lol]
T/F) Rule 5.3(b) requires that, when you directly supervise nonlawyer assistants, you must make reasonable efforts to ensure that the assistant’s conduct is compatible with your professional obligations.
True
A lawyer [May/Must] reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary” to “prevent reasonably certain death or substantial bodily harm.
May. This is discretionary.
Rule 1.7 prohibits a lawyer from concurrently representing clients whose interests are “_____ _____” to another client,
Directly adverse = prohibited
Can you represent a client whose interest are directly adverse to another client?
Prohibited by 1.7
2 scenarios under 1.7 where you can’t represent multiple clients?
- Directly adverse
- materially limits
Requirements under 1.7 to represent multiple clients?
- Competent & Dilligent
- not prohibited by law
- Informed consent
Rule 1.11, a former government attorney cannot represent a private client in connection with a matter in which the lawyer either participated personally and substantially as a government lawyer or has acquired confidential governmental information [T/F]
True
If new lawyer is disqualified, can her new law firm still represent old firm’s client?
Yes, if new lawyer screened and notice given to old firm.
If a lawyer makes a deragatory statement about a judge, that he believes to be true, is he subject to discipline?
NO
Are Lawyers who are disqualified permitted to screen themselves from representing a client so that his law partner can represent that client.
Nope
Can a lawyer send a settlement check directly to client after having endorsed it, and then ask client to pay the fee?
Permissible
Can Attorney deposit settlement check in client’s trust fund account, inform client, and forward a $20,000 check drawn on that account to client?
Permissible
If a judge knows a witness in a trial, is she DQ?
No
Judicial recusal is required when the judge or a person within the third degree of relationship such as the judge’s mother has more than a __ ______interest that could be substantially affected by the proceeding.
De minimus
T/F) recusal is required when the judge has an economic interest in a party to the proceeding.
True
A lawyer [may/must] withdraw if the client persists in a course of action that the lawyer reasonably believes is criminal or fraudulent.
may
Lawyer reps client A.
Lawyer leaves firm.
Client B seeks rep. at firm.
Action is [B v. A]
When permissible for firm?
As long as the matters are not “substantially related.” If substantially related, may still be permissible IF none of the remaining lawyers have confidential information.
- substantially related [no]
- Confidential info [no]
After a lawyer leaves government employment, he can never represent a client in connection with a matter in which he participated [personally] and [substantially] as a government employee, unless what?
The gov. agency consents in writing.
In a matter where a Judge is working ________ and _________ a judge cannot negotiate for employment with anyone involved as a party later.
Personally and substantially
T/F) If a Judge works a case “personally and substantially” she may still pursue employment with any involved party later.
False. If personally and substantially involved, she may not.
T/F) A lawyer has [NO] duty to voluntarily disclose to the tribunal any legal authority in the controlling jurisdiction that he knows is directly adverse to his client’s position and which his adversary has not disclosed
False. Must disclose
T/F) The duty to disclose adverse legal authority extends to the conclusion of the proceedings. Rule 3.3(c).
True
T/F) One of the ethical duties for a prosecutor is the obligation to disclose evidence that tends to negate the guilt of the accused or mitigate the punishment.
True
Interviewing “former” employee of corporation. Is this “ex-parte” contact?
No. Former employee is not a “party.”
Duties imposed by SEC on lawyers representing corporate clients for reporting?
- Reporting must relate to representation of client
- Relate to wrongdoing that could effect entity
T/F) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness
True, with narrow exceptions.
1) Not contested issue
2) Relates to your services
3) DQ as advocate would work substantial hardship on client
- Past fraud revealed by client who used services?
- He refuses to correct. Report?
- Tell him to do right thing.
- Reveal nothing. Can only reveal if connected to future crime/fraud.
Can a lawyer acquire a proprietary interest in the cause of action or subject matter of litigation?
No.
Lawyer represents Client in a criminal matter. Client has been convicted and is scheduled for sentencing. Client learns that Judge will be the sentencing judge, and asks Lawyer what Judge is like. Lawyer tells Client that he supported Judge in her last election campaign, and that for that reason, Judge will probably be inclined to give Client a light sentence. Lawyer makes no attempt to influence Judge improperly. Violation?
Yes, you cant imply to influence ppl like a judge.
You represent Defendant in a drug case. In a pre-trial hearing, the judge suppresses the evidence seized during a no-knock search of Defendant’s apartment, relying on common law cases requiring police officers to state their authority and purpose before entering. You did not cite these cases in your brief because you knew that the state legislature had just passed a statute permitting no-knock searches. The prosecutor says nothing.
Will you violate the Rules of Professional Conduct if you fail to call the new statute to the judge’s attention?
Yes. RPC 3.3(a)(2) prohibits failing 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.
Lawyer shall not accept compensation for representing a client from anyone other than the client unless what?
Unless client gives informed consent bitch
Lawyer can’t prepare an instrument for a client that names the lawyer (or a person related to the lawyer) as beneficiary of a substantial gift unless what?
Unless related to lawyer
Is it permissible for the firm of a former government attorney to oppose the government on a case that the attorney formerly handled for the government?
Only if government consents.
The prohibition against offering false testimony only applies if the lawyer _____ that the evidence is false.
Knows. Must have actual knowledge perjury will happen. Plus, your belief that it will be false does NOT preclude its presentation to trier of fact.
Can a lawyers knowledge that testimony will be false be inferred from the circumstances?
Yes
Can a lawyer refuse to offer the testimony of a client, in a criminal case, the lawyer believes (but does not know) that the testimony will be false?
No, you must have actual knowledge, same as any other case.
You represent Goodwill Corporate. VP comes into your office and spills his beans. You say nothing and later report him to Brian.
Subject to discipline?
Yes. You should have told VP that you represent the entity and advise him to get independent counsel. You must give upjohn warning when clear a conflict exists or may exist. Safe to just give it.
Lawyer shall make ___ ___ to prevent inadvertent disclosure, including digital files, of info related to a client.
Reasonable efforts
What is lawyers primary/only listed duty under the MRs for inadvertent disclosure of WP?
Notify promptly. “May” take further actions.
If client refuses to correct perjury?
Take RRM, including disclosure to tribunal.
If you are a “necessary W,” when can you still stay on?
When DQ would put substantial hardship on client.
Even if matters are unrelated, you can’t represent 2 clients when your service to one b/c of the other would be….
Materially limited.
Typical factors weighed when analyzing reasonableness of a lawyer’s fee?
- Time involved
- Nature of work
- Atty skill
- Atty typical fee
- Lost work opp.
- Fee charged in community
T/F) All lawyers are required to abide by Client’s decisions regarding the means by which the Client’s objective would be pursued.
True
[Reporting]
If you ___ ___ that client, Preston, will kill or cause serious harm, you [may/must] report.
If you “reasonably believe” client Preston will cause harm, you may report. This is discretionary.
What provisions should you include for mediator in court-annexed mediation?
- Mediation defined (compared to other processes)
- Nature of med. [voluntary]
- Court will review
- Process
- Confidentiality
- Effect of final agreement
Essential elements of mediation doc?
- Define it & process
- Compared to other resolution processes
- voluntary
- court review
- confidentiality
- effect of agreement
[Judicial]
If a family court judge rules on a case involving her husband, can this be grounds for DQ from re-election?
Yes, clear conflict of interest. She should have recused herself.
What governs judges?
- Judicial conduct code
- FED statutes
- Model Rules
The JC is divided into __ canons.
4 canons
JC canon ___ deals with general principles governing judges.
Canon I
[Judicial Code]
Cannons:
1 =
2 =
3 =
4 =
1 = general gov. principles
2 = official capacity
3 = nonjudicial/official act.
4 = political act.
When can judges be DQ per specific rules int he JC?
- Personal involvement case
- economic int. case
- Impartial campaign statem.
- related to parties
- Fundraising for campaigns
Per the rules, a Judge shall disqualify herself in any proceeding in which…
[NY Trump case judge plainly not impartial and violating this MR]
Her impartiality might reasonably be questioned. [NY Judge in Trump case]
T/F) A Judge is DQ if either she or her spouse has an economic interest in either the subject matter or in one of the parties to the proceeding.
True! One of the 5 listed DQ reasons.
Typical reasons a judge may be DQ or should recuse herself from a case?
- Personal involvement
- Related to persons
- Statements made that indicate no impartiality
- Fundraising
- Economic interests
[Judges DQ]
Regarding “economic interest” DQ reasons, a judge must own more than a __ ___ to be DQ in the case.
De minimis
T/F) Under the 2007 code, judges are NOT DQ because of economic interst when it is “de minimis.”
If true, exceptions?
True!
Except for federal judges. They are DQ “no matter how small” the economic interest is.
[Judicial canon]
DQ for “economic interest” excludes what investments?
- Mutual funds
- Deposits in bank
- Insurance policies
- Gov. securites
Would a Judge be DQ in any case involving a bank making a loan to purchase their real estate?
No, this does not create economic interest or ownership in the bank.
T/F) Judges are allowed to accept loans from banks in the regular course of bank’s business on terms generally available to the public.
True, they are ppl!
Another option(s) for Judge if he decides not to recuse?
- Disclose the matter on record and inform parties Judge will not recuse b/c believes he can preside impartially.
- Seek waiver of DQ. [Parties must approve] - Not allowed for FED Judge with spouse appearing.
What Judge in what circumstance may NOT seek waiver of DQ?
FED Judge whose spouse personally appears.
A Judge is required to DQ themselves from a case when their…
When their impartiality might reasonably be questioned.
Lack of competence is an ethical duty and its lack can create _____ malpractice claims.
Ineffective assistance of counsel
[Strickland]
1. ∆ must show counsel conduct amounted to ______.
2. ∆ must show also ____. IE: But for counsel conduct, a diff. result would have been reached.
- Ineffective assistance of counsel
- Prejudice
What is the presumption by the courts for Strickland Malpractice claims?
Strong presumption that counsel was effective.
When is prejudice presumed under Strickland?
- Counsel had conflict of interest
- Counsel did not follow client appeal directions
- Or so deficient that trial did not constitute true adversarial proceeding.
- Advising client they dont have case [You have not investigated case]
- Failing to inform of SOL
This results in what?
Negligence action per Togstad court.
In the Togstad case, πs awarded over 700K why?
- Lawyer did not properly investigate merits of case [and told them they had no case]
- Did not advise on SOL
Non-engagement letter elements?
- Not taking case [NO ACR]
- Referral hotline
- Advise on SOL
Factors considered in determining the reasonableness of a fee?
- Nature of matter
- Lost opp.
- Local customs
- Work involved / results received
- Lawyer expertise
- Nature of fee [fixed or contingent]
When should fee expenses be communicated to the client? [Must be in writing!]
- Before service or;
- Reasonable time thereafter
Contingency fee requirements?
- In writing
- How calculated
- Expenses deducted
- Fees client must pay
Once concluded, lawyer must provide statement reflecting outcome recovery + how calculated.
Contingency fee requirements:
1. In writing
2. How calculated
3. Expenses deducted
4. Client fees
After matter concluded?
Statement reflecting outcome & recovery + what client receives and how calculated.
Contingent fees permissible?
1. Criminal
2. Civil ∆
3. Domestic
4. Domestic past due alimony
5. Expert witness
- No
- Not per se but caution advised
- No
- Yes
- No
[Criminal limitations]
T/F) Lawyer in a criminal case may form agreement giving lawyer media rights to case.
False, unless in J like California.
[Criminal case limits]
T/F) Lawyer may pay expenses and loan clients money for living expenses.
False
For indigent clients, can you pay court costs?
Yes without repayment. For others, repayment may be contingent on the outcome.
Can you charge “take it or leave it” fee?
Yes. No need to inform clients that other lawyers might offer alternative.
Is it unethical to charge contingent fee that does not change at different stages?
This is permissible
Advance & flat fees held where?
Trust account until “earned” or billed.
Is there a duty to render full accounting?
Yes when client requests it.
______ Retainer: Fee paid for lawyer agreement to make services available as needed / whenever. [Earned immediatly]
General retainer
General retainers. Earned when & deposited where?
Earned when received and deposited in firm operating acct.
______ retainer is payment for specific services. Earned when work done. Goes in trust acct until earned.
Special retainer
Business transactions with clients?
- Fair and reasonable
- Advise in writing of seeking independent counsel
- Client must give informed consent in writing whether lawyer reps client in this transaction
If you have a security interest in client property, what is required?
- Must comply with business transactions with clients
A. Fair & reasonable
B. Advise to get Indp. Counsel
C. Client informed consent + who represents her
Client decides on what matters?
- Objectives of representation
- Settlements
- Criminal case pleas, jury waiver, testimony, appeals, etc.
Attorney decides?
Tactical decisions – the “means” to accomplish client objectives.
You may take action for incapacitated client when?
When client is at [SUBSTANTIAL RISK] harm and cant act in own interest.
What level of action [MUST/MAY] lawyer take for incapacitated client?
Reasonably necessary protective action “RNPA”
May you withdraw when client insists upon taking action that lawyer considers repugnant or with which the lawyer has a fundamental disagreement?
Yes
The decision to offer evidence is tactical/strategic.
Tactical, rests with the lawyer.
[Business transactions]
MR guide you “to ____ if possible and _____ if necessary.”
- Prevent if possible
- Disclose if necessary
Lawyer retained by entity represents who?
The entity ALONE, none of its constituents.
If a lawyer counsels a client that their current planned course of action would be illegal or fraudulent… is this fraud assistance?
No!!! We are permitted to provide counsel.
A lawyer may not counsel a client in conduct he ______ will be fraudulent.
KNOWS. Lawyer MUST withdraw if related to his services.
If fraud unrelated to your services?
May withdraw. If directly connected, must withdraw.
Can a corp. legally establish document destruction policy?
Yes and lawyer may advise on such programs. Be aware of docx destroyed related to pending investigation, this is Obstruction of Justice.
[Business]
T/F) Sarbane Oxley act preempts state rules where conflict/lesser obligation imposed by state.
True
________Act (SOX) is a federal law that was passed in 2002 to improve the accuracy and reliability of financial reporting for public companies
Sarbanes-Oxley Act
[Business reporting]
The model rules require actual knowledge of fraud. What does “SOX” require?
When you simply become “aware.” Much lower standard. The only way not to report under SOX is if the finding is not reasonably likely.
[Business-SOX]
What are the obligations of subordinate employees to report when they become “aware” of violation?
Report to supervising attorney and no further obligation.
[SOX]
Associate tells you of financial fraud in corp. Whom do you report to?
Appropriate corporate official, usually the chief legal officer.
[Business]
Whats the difference between MR and SOX?
Model rules have a higher standard. [Actual knowledge.] SOX protects shareholders.
When does lawyer report an officer of the corp.?
Actual knowledge of:
1.Legal obligation to org. violation
2. Violation of law that may be imputed
3. Likely to result in substantial injury to org.
[shall proceed as reasonably necessary]
Factors for reporting officer in the Weyland-Yutani corporation?
- Violation of legal obligation to company
- Violation of law that may be imputed
- substantial injury to company
- May proceed as reasonably necessary to protect the company.
For reporting officer misconduct in the Weyland company, lawyer shall..
proceed as “reasonably necessary” in the best interest of the company.
When may you “report out” of Weyland?
You have already reported up [violation of law] and no action taken. You believe necessary to prevent substantial injury to the company.
When is the duty to report reasonably certain injury to organization limited under MR?
When you have been hired by Weyland specifically to investigate allegations of law violations or defend them against such.
Control group test. Minority or Majority rule.
Minority. Rejected by SCOTUS.
________ warning: Atty must make clear to constituents that atty represents ONLY the entity.
Upjohn warning
_____ ____ test: Adopted by SCOTUS and most states, extends privilege beyond Weyland to corp. mgmt AND mid level employees.
Subject matter test
[Business]
When must you give upjohn warning?
When it becomes evident there may be conflict between employee and company.
[Tangible criminal behavior]
1. Stolen money =
2. Weapons =
3. Contraband =
4. Tangible evidence=
- Fruits
- Instrumentalities
- Pornos
- Taped recordings
Attorney in possession of tangible criminal material?
You must turn this over.
If Damien tells you were murder weapon is, do you have an obligation to inform authorities?
Not unless you take possession, then the duty to turn over applies.
Do you have a duty to turn over expert report on alleged murder weapon?
No, WPD.
T/F) Child pornography is contraband which is ILLEGAL to possess and can be destroyed if there is no pending action.
True. Can be destroyed if NO PENDING action.
What if client turns over child porn?
You may not destroy the contraband–unlike client–must now inform authorities or risk obstruction.
Limited engagement letter?
- Can apply to multi-claims/parts.
- Clearly state LEL.
- Reasonable.
- Define services.
- Define non-services.
- If ambiguous, construed against lawyer.
