PR Finals2 Flashcards
When is it permissible for the firm of a former gov. employee to handle related case?
Only when the gov. consents.
[Perjury reporting]
You must have __________ that the testimony will be false to take RRM.
Actual knowledge
[MR]
Inadvertent disclosure?
[FED]
Inadvertent disclosure?
MRs
2. 1. Promptly notify.
2. No other action required.
FEDS
1. Promptly notify.
2. Destroy or sequester
3. Notify court
What action do you take for perjury?
Reasonable remedial measures
If you reasonably believe client will kill or cause serious harm? [May/Must]
You may take action. This is discretionary.
Mediation document?
- Scope
- Process
- Effect
- Voluntary
- Confidential
- Court review
Judicial canons?
- General
- Official
- Not official
- Political
Judge is DQ when, generally?
- Personal involvement
- Related
- Economic interest [not de-minimus unless FED]
- Fundraising or impartial political statements
Prejudice presumed when under Strickland?
- Conflict of Interest
- Didn’t follow client appeal directions
- Not true adversarial proceeding
Contingency fee requirements?
- In writing
- How calculated
- Expenses
- Client fees
-Statement at conclusion-
Business transaction with client?
- Fair & Reasonable
- Advise to get informed counsel
- Informed consent + who reps.
Securities in client property must adhere to what?
Business trans. with clients
Limited engagement letters?
- Can cover multi-parts/claims.
- Reasonable.
- Clearly state LEL.
- Define services.
- Define non-services.
- If ambiguous, construed against lawyer.
AI provision
LELs, when ambiguous, construed against the client. [T/F]
False. Construed against attorney.
Can attorney, through LEL, limit future malpractice liability?
- Notice + enough info to make decision.
- You can’t limit future liability
- You can’t limit future liability amount.
- Must be rep. by indp. counsel.
Mandatory withdraw?
Permissive?
Mandatory:
1. Illegal
2. Unethical
3. Disability
4. Conflict of interest
Permissive:
1. Repugnant
2. Fundamental disagreement
3. Good cause, if matter not pending b4 court and placing material adverse effect on client.
Examples of “good cause,” permissive reasons, for withdraw?
- Not paying $$ after notice
- misconduct
- non-cooperation
- abusing relationship
- etc. [many possible reasons]
______ agreement: Another form of LEL, which allows lawyer to investigate case before representation.
Investigation Agreement
2 alternatives to obtaining payment of fees? [Client unable to pay directly.]
- Charging lien (charged against settlement proceeds)
- Retaining Lien: Possessory interest in client property.
Asking your client to sign “release of liability?”
Unethical without client being independently represented.
Can lawyer limit future liability by having client sign “release of liability?”
No. Unethical without being rep. by independent counsel.
[Mandatory Fee Arbitration]
Requirements / scope
- Notice
- Does not insulate from liability
- Does not limit liability amount
** SC does not permit mandatory fee arbitration***
Can you charge client for copies of dox entitled to receive after termination?
No but you may charge for docx created/obtained specially for the case. [Medical records]
Requirements for including provision requiring arbitration of any fee dispute / malpractice claim?
- Notice + enough info to make decision.
- Does not insulate liability
- Does not limit liability amount
WPD, a discovery rule, protects material prepared in anticipation of litigation, unless opposing party shows what?
[Substantial need] + cannot obtain equivalent with [Undue hardship.]
Attorney shall not reveal confidential information relating to representation of client unless?
1.
2.
3.
- Express consent
- Implied consent
- Exceptions bucket
When [may] client reveal information related to the representation of a client? [Buckets]
- Reasonably certain death
- Substantial bodily injury
- prevent financial/property crime when your legal services have been used
- 3rd party opinion on MR compliance
- Legal ∆
- Law or court order
When is the only time you [must] dispense with ACP or disclose client confidence?
(1) Candor toward tribunal
(2) Assisting in crime/fraud
Examples of when, per Ct order or statute, you need to dispense with ACP?
- Court order requiring you to reveal location of body.
- Statute requiring child abuse reporting.
_________ is a negative implied power, prohibiting states from passing burdensome legislation against IC.
Dormant CC
DCC is violated when?
Legitimate legislation does not use least discriminatory measures.
Prerequisite: FEDS have not yet regulated in this area.
When is there conflict of interest between former & current client?
- Substantially related matter
- Confidential info
Concurrent conflict of interest exists when…
- Direct adversity between them
- Service to one materially limits service to the other
Direct adversity between clients. Permissible with consent?
Never. Prohibited even if both clients consent. Example: Hubby and Wife divorce case. Cannot represent both.
2 clients adverse in UNRELATED matters?
- Competent & diligent to both
- Not prohibited by Law
- Informed consent
**not proper without informed consent of both.
A lawyer shall not act as an advocate in a trial in which the lawyer likely to be a witness unless?
- Related to his services
- Not contested issue
- Informed consent
[Permissible?]
1. Current clients directly adverse?
- Current clients directly verse, unrelated?
- No
- yes with requirements
[Permissible?]
1. Former client v. current in same or substantially similar matter?
No. Not without informed, written consent of the former client.
[Permissible?]
Former client v. current client in unrelated matter?
Yes.
Under the per se rule, whom does Attorney represent in the Corporation?
The Corporation + its members.
Arbitration agreement requirements?
What if limiting malpractice claim $$?
- Communicate scope and effect
- Informed consent
- Advise / give opportunity for indp. counsel.
** Then must be represented by indp. counsel.
Possession of murder weapon. You must turn over. Must you reveal further info?
Nope.
May attorney represent both a driver & passenger when passenger has claim against driver for negligence?
No. Several courts have held no.
Consentable? Claim by one client against the other client when both represented by same lawyer in same litigation?
What if the passenger drops her claim?
No!
Then yes. No cross-claim existing.
If you represent multiple Ps in tort action, what should you communicate to them? [Advantages]
The risks and [advantages] to this.
1. Potential fee reduction
2. Expense sharing
3. Efficiency & consistency
If you represent multiple Ps in tort action, what should you communicate to them? [risks]
The [risks] & advantages to this.
1. COI
2. Potential lawyer Withdraw from COI
3. No ACP if dispute between clients [joint rep.]
4. Settlements
Risks of representing multiple πs that must be communicated?
- COI
- Withdraw b/c of COI
- Joint rep. so ACP lost
- Settlements
Advantages of rep. multiple πs that is communicated?
- Fee reduction?
- Shared expenses
- Efficiency + Consistency
Recall… what are general requirements for representing multiple πs?
- Competent & diligent for both
- Not prohibited by law
- Informed consent
Tripartite insurance relationship?
- Insurer
- Insured
- Counsel - paid by insurer but REPRESENTS INSURED
Tripartite insurance relationship:
Two models?
- 2 client model - represent insurer and insured
- 1 client model - represent insured [insurer is 3rd party payer]
What if counsel learns of a coverage issue, such as intentional conduct by insured that would exclude coverage?
- Cannot reveal to insurer
- Withdraw so as to not assist in fraud
Can you access meta data?
MRs say it depends on lawyer philosophy of lawyering. Make sure you follow state rules if they exist.
Protecting meta data?
- scrubbing software
- Send hardcopies / faxes
- protective orders
Must you ensure competent cloud services programs are used?
Yes, this is on you.
Understanding relevant technology is a part of the duty of what?
Competence. Also applies to 3rd party vendors that you use and cloud programs.
Is home wireless use ethical?
If you take appropriate precautions.
Data breach.
1. CC
2. Former C
- Notify
- May notify. No duty.
What is required of lawyers with regard to evolving tech?
We must keep abreast of it.
What action do you take for incapacitated clients?
RNPA
RNPA means what?
Least restrictive to start then move up
Killed someone =
Perjury committed =
May disclose
Must disclose
If client asks if everything confidential.
It depends. [Buckets]
Disclosing perjury. Its a must when?
You have actual knowledge based on FFB.
Can you refuse to offer testimony you “reasonably believe” will be false?
Yes. Unless criminal then 6th amendment violation. “Allowing my client to exercise 6th amendment right.”
Perjury. What if client – who refused to change – begs you not to disclose.
If actual knowledge on FFB, must disclose.
Which MR governs false testimony?
Candor toward tribunal [3.3]
Can lawyer get media/literary rights?
Only at conclusion of trial. Client can transfer the rights.
Non refundable fees?
Unethical.
Warning of SOL not required when?
Adversely affect current client.
Counsel must conduct “____ ____” to make sure action is not filed for improper purpose.
Reasonable inquiry
Rule 11 standard requires what inquiry?
Reasonable inquiry
Bad outcome alone can make malpractice claim. [T/F]
T/F) False
What does rule 11 require regarding affirmative defenses?
Reasonable inquiry
