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Charleston Law 2L > PR Finals2 > Flashcards

PR Finals2 Flashcards

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1
Q

When is it permissible for the firm of a former gov. employee to handle related case?

A

Only when the gov. consents.

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2
Q

[Perjury reporting]
You must have __________ that the testimony will be false to take RRM.

A

Actual knowledge

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3
Q

[MR]
Inadvertent disclosure?

[FED]
Inadvertent disclosure?

A

MRs
2. 1. Promptly notify.
2. No other action required.

FEDS
1. Promptly notify.
2. Destroy or sequester
3. Notify court

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4
Q

What action do you take for perjury?

A

Reasonable remedial measures

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5
Q

If you reasonably believe client will kill or cause serious harm? [May/Must]

A

You may take action. This is discretionary.

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6
Q

Mediation document?

A
  1. Scope
  2. Process
  3. Effect
  4. Voluntary
  5. Confidential
  6. Court review
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7
Q

Judicial canons?

A
  1. General
  2. Official
  3. Not official
  4. Political
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8
Q

Judge is DQ when, generally?

A
  1. Personal involvement
  2. Related
  3. Economic interest [not de-minimus unless FED]
  4. Fundraising or impartial political statements
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9
Q

Prejudice presumed when under Strickland?

A
  1. Conflict of Interest
  2. Didn’t follow client appeal directions
  3. Not true adversarial proceeding
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10
Q

Contingency fee requirements?

A
  1. In writing
  2. How calculated
  3. Expenses
  4. Client fees

-Statement at conclusion-

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11
Q

Business transaction with client?

A
  1. Fair & Reasonable
  2. Advise to get informed counsel
  3. Informed consent + who reps.
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12
Q

Securities in client property must adhere to what?

A

Business trans. with clients

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13
Q

Limited engagement letters?

A
  1. Can cover multi-parts/claims.
  2. Reasonable.
  3. Clearly state LEL.
  4. Define services.
  5. Define non-services.
  6. If ambiguous, construed against lawyer.
    AI provision
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14
Q

LELs, when ambiguous, construed against the client. [T/F]

A

False. Construed against attorney.

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15
Q

Can attorney, through LEL, limit future malpractice liability?

A
  1. Notice + enough info to make decision.
  2. You can’t limit future liability
  3. You can’t limit future liability amount.
  4. Must be rep. by indp. counsel.
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16
Q

Mandatory withdraw?
Permissive?

A

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.

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17
Q

Examples of “good cause,” permissive reasons, for withdraw?

A
  1. Not paying $$ after notice
  2. misconduct
  3. non-cooperation
  4. abusing relationship
  5. etc. [many possible reasons]
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18
Q

______ agreement: Another form of LEL, which allows lawyer to investigate case before representation.

A

Investigation Agreement

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19
Q

2 alternatives to obtaining payment of fees? [Client unable to pay directly.]

A
  1. Charging lien (charged against settlement proceeds)
  2. Retaining Lien: Possessory interest in client property.
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20
Q

Asking your client to sign “release of liability?”

A

Unethical without client being independently represented.

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21
Q

Can lawyer limit future liability by having client sign “release of liability?”

A

No. Unethical without being rep. by independent counsel.

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22
Q

[Mandatory Fee Arbitration]
Requirements / scope

A
  1. Notice
  2. Does not insulate from liability
  3. Does not limit liability amount

** SC does not permit mandatory fee arbitration***

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23
Q

Can you charge client for copies of dox entitled to receive after termination?

A

No but you may charge for docx created/obtained specially for the case. [Medical records]

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24
Q

Requirements for including provision requiring arbitration of any fee dispute / malpractice claim?

A
  1. Notice + enough info to make decision.
  2. Does not insulate liability
  3. Does not limit liability amount
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25
Q

WPD, a discovery rule, protects material prepared in anticipation of litigation, unless opposing party shows what?

A

[Substantial need] + cannot obtain equivalent with [Undue hardship.]

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26
Q

Attorney shall not reveal confidential information relating to representation of client unless?
1.
2.
3.

A
  1. Express consent
  2. Implied consent
  3. Exceptions bucket
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27
Q

When [may] client reveal information related to the representation of a client? [Buckets]

A
  1. Reasonably certain death
  2. Substantial bodily injury
  3. prevent financial/property crime when your legal services have been used
  4. 3rd party opinion on MR compliance
  5. Legal ∆
  6. Law or court order
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28
Q

When is the only time you [must] dispense with ACP or disclose client confidence?

A

(1) Candor toward tribunal
(2) Assisting in crime/fraud

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29
Q

Examples of when, per Ct order or statute, you need to dispense with ACP?

A
  1. Court order requiring you to reveal location of body.
  2. Statute requiring child abuse reporting.
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30
Q

_________ is a negative implied power, prohibiting states from passing burdensome legislation against IC.

A

Dormant CC

31
Q

DCC is violated when?

A

Legitimate legislation does not use least discriminatory measures.
Prerequisite: FEDS have not yet regulated in this area.

32
Q

When is there conflict of interest between former & current client?

A
  1. Substantially related matter
  2. Confidential info
33
Q

Concurrent conflict of interest exists when…

A
  1. Direct adversity between them
  2. Service to one materially limits service to the other
34
Q

Direct adversity between clients. Permissible with consent?

A

Never. Prohibited even if both clients consent. Example: Hubby and Wife divorce case. Cannot represent both.

35
Q

2 clients adverse in UNRELATED matters?

A
  1. Competent & diligent to both
  2. Not prohibited by Law
  3. Informed consent

**not proper without informed consent of both.

36
Q

A lawyer shall not act as an advocate in a trial in which the lawyer likely to be a witness unless?

A
  1. Related to his services
  2. Not contested issue
  3. Informed consent
37
Q

[Permissible?]
1. Current clients directly adverse?

  1. Current clients directly verse, unrelated?
A
  1. No
  2. yes with requirements
38
Q

[Permissible?]
1. Former client v. current in same or substantially similar matter?

A

No. Not without informed, written consent of the former client.

39
Q

[Permissible?]
Former client v. current client in unrelated matter?

A

Yes.

40
Q

Under the per se rule, whom does Attorney represent in the Corporation?

A

The Corporation + its members.

41
Q

Arbitration agreement requirements?
What if limiting malpractice claim $$?

A
  1. Communicate scope and effect
  2. Informed consent
  3. Advise / give opportunity for indp. counsel.

** Then must be represented by indp. counsel.

42
Q

Possession of murder weapon. You must turn over. Must you reveal further info?

A

Nope.

43
Q

May attorney represent both a driver & passenger when passenger has claim against driver for negligence?

A

No. Several courts have held no.

44
Q

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?

A

No!

Then yes. No cross-claim existing.

45
Q

If you represent multiple Ps in tort action, what should you communicate to them? [Advantages]

A

The risks and [advantages] to this.
1. Potential fee reduction
2. Expense sharing
3. Efficiency & consistency

46
Q

If you represent multiple Ps in tort action, what should you communicate to them? [risks]

A

The [risks] & advantages to this.
1. COI
2. Potential lawyer Withdraw from COI
3. No ACP if dispute between clients [joint rep.]
4. Settlements

47
Q

Risks of representing multiple πs that must be communicated?

A
  1. COI
  2. Withdraw b/c of COI
  3. Joint rep. so ACP lost
  4. Settlements
48
Q

Advantages of rep. multiple πs that is communicated?

A
  1. Fee reduction?
  2. Shared expenses
  3. Efficiency + Consistency
49
Q

Recall… what are general requirements for representing multiple πs?

A
  1. Competent & diligent for both
  2. Not prohibited by law
  3. Informed consent
50
Q

Tripartite insurance relationship?

A
  1. Insurer
  2. Insured
  3. Counsel - paid by insurer but REPRESENTS INSURED
51
Q

Tripartite insurance relationship:
Two models?

A
  1. 2 client model - represent insurer and insured
  2. 1 client model - represent insured [insurer is 3rd party payer]
52
Q

What if counsel learns of a coverage issue, such as intentional conduct by insured that would exclude coverage?

A
  1. Cannot reveal to insurer
  2. Withdraw so as to not assist in fraud
53
Q

Can you access meta data?

A

MRs say it depends on lawyer philosophy of lawyering. Make sure you follow state rules if they exist.

54
Q

Protecting meta data?

A
  1. scrubbing software
  2. Send hardcopies / faxes
  3. protective orders
55
Q

Must you ensure competent cloud services programs are used?

A

Yes, this is on you.

56
Q

Understanding relevant technology is a part of the duty of what?

A

Competence. Also applies to 3rd party vendors that you use and cloud programs.

57
Q

Is home wireless use ethical?

A

If you take appropriate precautions.

58
Q

Data breach.
1. CC
2. Former C

A
  1. Notify
  2. May notify. No duty.
59
Q

What is required of lawyers with regard to evolving tech?

A

We must keep abreast of it.

60
Q

What action do you take for incapacitated clients?

A

RNPA

61
Q

RNPA means what?

A

Least restrictive to start then move up

62
Q

Killed someone =
Perjury committed =

A

May disclose
Must disclose

63
Q

If client asks if everything confidential.

A

It depends. [Buckets]

64
Q

Disclosing perjury. Its a must when?

A

You have actual knowledge based on FFB.

65
Q

Can you refuse to offer testimony you “reasonably believe” will be false?

A

Yes. Unless criminal then 6th amendment violation. “Allowing my client to exercise 6th amendment right.”

66
Q

Perjury. What if client – who refused to change – begs you not to disclose.

A

If actual knowledge on FFB, must disclose.

67
Q

Which MR governs false testimony?

A

Candor toward tribunal [3.3]

68
Q

Can lawyer get media/literary rights?

A

Only at conclusion of trial. Client can transfer the rights.

69
Q

Non refundable fees?

A

Unethical.

70
Q

Warning of SOL not required when?

A

Adversely affect current client.

71
Q

Counsel must conduct “____ ____” to make sure action is not filed for improper purpose.

A

Reasonable inquiry

72
Q

Rule 11 standard requires what inquiry?

A

Reasonable inquiry

73
Q

Bad outcome alone can make malpractice claim. [T/F]

A

T/F) False

74
Q

What does rule 11 require regarding affirmative defenses?

A

Reasonable inquiry

Charleston Law 2L (23 decks)

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