Prof Resp Essay Rules Flashcards
1
Q
T/F Attorney client privilege allows a client to refuse to testify and prevent his attorney from testifying in court about communications between the two
It applies to confidential communications made by an individual to attorney who is sought out for the purposes of legal advice
A
True
2
Q
[Can Larry withhold the fact that Carla found a boundary stake in the ground on the basis of attorney-client privilege?]
The attorney client privilege covers
A
1) A communication
2) Made between privileged persons
3) In confidence
4) For the purpose of obtaining or providing legal assistance
[Carla told Larry that she found the metal boundary stake. That statement was a communication and it was made between only the client and her attorney, in confidence. Finally, Carla shared that information solely for the purpose of obtaining legal advice. Thus Carla’s thoughts, comments, and other confidential communications to Larry about the boundary stake are protected by the attorney-client privilege. Larry has an ethical obligation to assert the attorney-client privilege to prevent disclosure]
3
Q
T/F The underlying fact that Carla found a boundary stake in the ground is not covered by the Attorney-Client Privilege
A
True
4
Q
T/F [Can Larry protect Carl’s statement that she must be wrong about the location of the boundary made during their meeting on the basis of attorney client privilege?]
Carla’s statement that she must be wrong about the location of the boundary will NOT be protected by the attorney client privilege.
The privilege is waived where the communication takes place under circumstances such that persons outside the privilege can overhear what is said
A
True
5
Q
T/F The attorney-client privilege is waived where the communication takes place under circumstances such that persons outside the privilege can overhear what is said
A
True
6
Q
T/F The attorney-client privilege is waived where the communication takes place under circumstances such that persons outside the privilege can overhear what is said
Exception: communications made in the presence of such essential third parties
A
True
7
Q
[Can Larry withhold the photograph of the stake in the ground on the basis of attorney work product?]
The work product doctrine applies to
A
1) Documents
2) Prepared by a lawyer or the lawyer’s team
3) In anticipation of litigation
[The photograph of the stake meets all three of the requirements to be covered by the work product doctrine. It would be considered a doc, created at the lawyer’s direction, in preparation for litigation over the boundary line]
8
Q
T/F The work product doctrine protects covered materials from discovery unless opposing counsel can show they have substantial need for the materials and cannot, without undue hardship, obtain their substantial equivalent by other means
A
True
[However, Carla’s decision to later remove the stake has deprived Ned of the opportunity to document the location of the stake for himself. The photograph is the best evidence of the stake’s location and is necessary for Ned to prepare his case. He cannot obtain equivalent evidence by any other means. Thus, the undue hardship exception applies. Larry will not be able to withhold production of the photograph]
9
Q
The work product doctrine protects covered materials from discovery unless opposing counsel can show they have
A
Substantial need for the materials and cannot, without undue hardship, obtain their substantial equivalent by other means
10
Q
Exception to work product doctrine
A
“Undue hardship exception”
11
Q
T/F [Because Olivia was located by an investigator hired by Larry in anticipation of litigation, can Larry withhold disclosure of Olivia’s identity on the basis of attorney work product?]
The private investigator hired by Larry would be considered part of the legal team representing Carla. Thus, communications between Carla/Larry/Investigator would be considered made “in confidence and thus potentially protected from disclosure
A
True
[At least one VA CC has ruled that “a party may not inquire into the identity of persons that the opposing party’s lawyer or rep has interviewed” on the. theory that doing so would reveal the lawyer’s thoughts or strategy about the case]
[Almost certain that names of prior property owners could be obtained through a title search thus cannot use hardship exception]
[However, that might not be the only correct answer. Many courts do not treat the mere identity of persons with knowledge of relevant evidence as protected by either the work product doctrine or attorney client privilege. Justification: work product doctrine does not shield facts form discovery - only the lawyer’s mental impressions, process, strategy, etc.]
[A reasonable argument therefore can be made that Olivia’s name should be treated as a “Fact” that is non-privileged]
12
Q
T/F [Can Larry withhold the signed declaration of Olivia on either the basis of attorney client privilege or attorney work product?]
Larry clearly cannot assert the attorney client privilege bc Olivia is not part of the Carla/Larry litigating team and thus communications between Olivia and Larry regarding Carla’s property dispute have not been made in confidence
However, the declaration is a document that Larry prepared in anticipation of litigation, so Larry can assert work product doctrine protections related to it
Ned can interview Olivia on his own, so there is no undue hardship imposed on Ned by protecting the Larry drafted declaration from disclosure
That said, Olivia is free to disclose the declaration herself and Larry cannot prevent her from doing so if she wishes to independently. Similarly, Olivia is free to share her discussions about the declaration if she so chooses. Simply put, Larry cannot be compelled to turn over his copy of the declaration, but he also cannot prevent Olivia from disclosing any copies she has retained to Ned
A
True
13
Q
Cates agreement to defend Phillip in the action against Jack was a violation of the duty of competence]
Competent representation requires the legal
A
Knowledge, skill, thoroughness, and preparation reasonably necessary for the representation
14
Q
While the rules do not prohibit a lawyer who has little or no experience in a particular area of the law from undertaking the representation of a client in that area, the lawyer must put in the
A
Time and study necessary to become competent and/or consult with counsel competent in the area
15
Q
In determining whether a lawyer employs the requisite knowledge and skill in a particular matter, relevant factors include
A
1) The relative complexity and specialized nature of the matter
2) The lawyer’s general experience
3) The lawyer’s training and experience in the field in question
4) The preparation and study the lawyer is able to give the matter, and
Whether it is feasible to refer to the matter to, or associate or consult with, a lawyer of established competence in the field in question
[Cate violated the duty of competence bc she agreed to represent Philip in a case that she as not equipped to handle. Cate violated her ethical duty by taking on a case that she was not competent enough to handle and by failing to gain the knowledge and skill necessary to adequately handle the case]
16
Q
A lawyer must not make an agreement prospectively limiting the lawyer’s liability to a client for malpractice, except that
A
A lawyer who is an employee of a client (e.g., in-house counsel) may make such an agreement if the client is independently represented in making the agreement
17
Q
A lawyer must not make an agreement ________ the lawyer’s ________ to a client for ________
A
Prospectively limiting; liability; malpractice
18
Q
One of the six general prohibitions in the RPC provides that a lawyer may not enter into an agreement with a current or former client purporting to limit the client’s right to pursue
A
A complaint before a lawyer regulatory or disciplinary committee
19
Q
A contingent fee is a fee that is dependent on
A
The successful resolution of a client’s case and payable from the judgment proceeds
Usually, such fees take the form of a set percentage of the recovery, the fee being zero if there is no recovery
20
Q
A contingent fee must be in writing and state the method by which the fee is to be determined, including:
A
1) The percentage or percentages that accrue to the lawyer in the event of settlement, trial, or appeal;
2) Litigation and other expenses to be deducted from the recovery; and
3) Whether such expenses are to be deducted before or after the contingent fee is calculated
21
Q
Upon conclusion of a contingent fee matter, the lawyer must provide the client with
A
A written statement of the outcome of the matter
22
Q
The RPC require an attorney’s fee to be
A
Reasonable
23
Q
Among the factors to be considered in determining the reasonableness of a fee are:
A
1) The time and labor required;
2) The novelty and difficulty of the questions involved;
3) The skill required to properly perform the legal service;
4) The interference with other employment of the attorney to the extent the likelihood of interference is apparent to the client;
5) The customary fee within the locality for similar work;
6) The amount involved and the result obtained;
7) The nature and length of the professional relationship between the parties;
8) The experience, ability, and reputation of the attorney;
9) The time limitations imposed by the client or the circumstances; and
10) Whether the fee is fixed or contingent
24
Q
The duty to avoid fee misunderstandings with clients state that the fee must be
A
Adequately explained to the client
When the lawyer has not regularly represented the client, the amount, basis, or rate of the fee must be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation
25
The duty to avoid fee misunderstandings with clients state that the fee must be
Adequately explained to the client
26
When the lawyer has not regularly represented the client, ________, ________, or ________ must be communicated to the client, ________, before or within a reasonable time after commencing the representation
The amount; basis; rate of the fee; preferably in writing;
27
Does the VA RPC prohibit a lawyer from having a sexual relationship with a client?
No
28
The VA RPC do not prohibit a lawyer from having a sexual relationship with a client
However, while there is no rule explicitly prohibiting lawyers from engaging in sexual relationships with clients, such relationships may lead to
A personal conflict of interest if there is a significant risk that the **representation of the client will be materially altered by the lawyer's personal interests**
29
While there is no rule explicitly prohibiting lawyers from engaging in sexual relationships with clients, such relationships may lead to ________ if there is ________ that the representation of the client will be ________ by the lawyer's personal interests
A personal conflict of interest; A significant risk; materially altered
30
Concurrent conflicts of interest
A lawyer must not represent a client if the representation creates a concurrent conflict of interest
A concurrent conflict of interest exists if:
1) The representation of a client will be **directly adverse** to another client; or
2) There is a **significant risk that the representation of a client will be materially limited** by the lawyer's responsibilities to another client, a former client, or a third person, or by the lawyer's personal interests
31
Concurrent conflicts of interest - A lawyer may represent a client **despite the existence of a concurrent conflict of interest if**:
1) The lawyer **reasonably believes** that they will be able to provide **competent and diligent representation** to each affected client;
2) The representation is **not prohibited by law**;
3) The representation **does not involve the assertion of a claim by one client against another client** who is represented by the lawyer in the **same case pending before a court or other tribunal**; and
4) Each affected client gives **consent after the consultation**, and the consent is **memorialized** in writing
Any writing will suffice, even the lawyer's own notes confirming the client's oral consent
32
Separation of funds (trust accounts) - Funds received or held by a lawyer on behalf of a client or third party or held by the lawyer as a fiduciary, other than reimbursement of advances for costs and expenses, must be ________
Deposited into one or more identifiable trust accounts
33
Funds ________ or ________ by a lawyer on behalf of a client or third party or held by the lawyer as ________, other than ________ for ________ and ________, must be ________
Received; held; a fiduciary; reimbursement of advances; costs; expenses; deposited into one or more identifiable trust accounts
34
For lawyers and law firms in VA, lawyer trust accounts must be maintained in
**Financial institutions approved by the Virginia State Bar** unless otherwise directed in writing by the client
35
For lawyers and law firms in VA, lawyer trust accounts must be maintained in financial institutions approved by the VA State Bar unless
Otherwise directed in writing by the client
36
For lawyers and law firm in VA, where must lawyer trust accounts be maintained?
In financial institutions approved by the VA State bar unless otherwise directed in writing by the client
37
A lawyer must promptly pay or deliver to the client or other person
The funds, securities, or other property to which the person is entitled
38
A lawyer must promptly pay or deliver to the client or other person ________, ________, or ________ to which the person is entitled
The funds; securities; other property
39
Disputed funds - When a lawyer is in possession of funds in which two or more persons (which may include the lawyer) claim interests, such funds must be ________ and there is ________ and ________
Kept separate until the dispute is resolved; an accounting and severance of their interests
40
When a lawyer is in possession of funds in which two or more persons (which may include the lawyer) claim interests, such funds must be
**Kept separate until the dispute is resolved** and there is an accounting and severance of their interests
41
Under the RPC, a lawyer must get the **consent of the organization's counsel** before communicating with the **following constituents of the organization**
1) A person who **supervises, directs, or regularly consults** with the organization's lawyer concerning the matter
2) A person with **authority to obligate the organization** with respect to the matter; or
3) A person whose **act or omission in connection with the matter may be imputed** to the organization for purposes of civil or criminal liability
42
T/F If the person is represented in the matter by separate counsel, consent by that counsel (rather than the organization's counsel) is sufficient
True
43
If a person is represented in the matter by separate counsel, is consent needed by both that counsel and the organization's counsel?
No, consent by that counsel (rather than the organization's counsel) is sufficient
44
Consent is not needed before talking with
A former employee
However, when talking with either a present or former constituent, a lawyer must take care not to violate the organization's legal rights, such as the attorney client privilege
45
Consent is not needed before talking with a former employee
However, when talking with either a present or former constituent, a lawyer must take care not to violate the organization's legal rights, such as
The attorney client privilege
46
When talking with either a present or former constituent, a lawyer must take care not to violate the organization's legal rights, such as
The attorney client privilege
47
Communication with represented person impermissible - In the representation of a client, a lawyer must not communicate about the **subject matter of the representation** with a person he knows to be represented by counsel in the matter unless _________ or ________
The other **counsel has granted permission**; he is otherwise **authorized by law to make such direct communication**
48
The rule regarding communication with represented persons applies to communications with ________
**Any person**, even if not a party to a formal adjudicative proceeding, contract, or negotiation, who is **represented by counsel concerning the matter to which the communication relates**
49
The rule regarding communication with represented persons applies to communications with ________, even if not a party to ________, ________, or ________, who is represented by counsel concerning ________
Any person; a formal adjudicative proceeding; contract; negotiation; the matter to which the communication relates
50
In the representation of a client, a lawyer must not communicate about the subject matter of the representation with a person he knows to be represented by counsel in the matter unless
The other counsel has granted permission or he is otherwise authorized by law to make such direct communication
If the person is represented in the matter by separate counsel, consent by that counsel is sufficient
51
Matters outside the representation exception to communication with represented person impermissible
A lawyer may communicate with a represented person, or an employee or agent of such person, **concerning matters outside the representation**
52
T/F RPC permits **parties to a matter to communicate directly** with each other outside the presence of attorneys
True
53
Respect for rights of third persons - In representing a client, a lawyer must not use means that have no purpose other than to ________, ________, or ________; or use methods of obtaining evidence that ________
Embarrass; delay; burden a third person; violate the legal rights of such person
54
In representing a client, a lawyer must not use a method of obtaining evidence that
Violates the legal rights of third persons
55
The attorney-client privilege covers **confidential communications between the attorney and high ranking corporate officials**
If the substance of the communication is revealed to another who is not a party to the privileged relationship, the privilege is
Destroyed
56
T/F Solicitation of clients - Solicitation generally referred to a lawyer's initiation of individual contact with a layperson, designed to entice the layperson to hire the lawyer
The Supreme Court has held that in-person solicitation is likely to result in over-reaching or misleading a layperson, and therefore states may adopt prophylactic rules to forbid in-person solicitation for profit
Virginia does not strictly prohibit in-person contact with potential clients, but judges the proprietary of the communications by the totality of the circumstances, including the parties' previous relationship, the physical and mental state of the potential client, and the lawyer's conduct
True
[Here, the totality of circumstances suggest that Wilma's decision making competence was compromised, and Young exercised undue influence on her while she was in a vulnerable state to secure the job
Wima was an injured, elderly woman, still in her early stages of recuperation from an injury that would leave her bedridden and in need of constant care even at the max level of improvement
Therefore, Young violated the VA Rules of Prof Conduct by exerting undue pressure on Wilma to retain him]
57
T/F The Supreme Court has held that in-person solicitation is likely to result in over-reaching or misleading a layperson, and therefore states may adopt prophylactic rules to forbid in-person solicitation for profit
True
58
T/F Solicitation generally referred to a lawyer's initiation of individual contact with a layperson, designed to entice the layperson to hire the lawyer
True
59
T/F Virginia does not strictly prohibit in-person contact with potential clients, but judges the proprietary of the communications by the totality of the circumstances, including the parties' previous relationship, the physical and mental state of the potential client, and the lawyer's conduct
True
60
T/F False or misleading communication - Under the VA rules, a lawyer must not make a false or misleading communication about himself or his services
A communication is misleading if there is a substantial likelihood that the communication will lead a reasonable person to reach an unfounded conclusion
True
[Here, Young told Wilma that he was the best PI attorney in the entire state. As Young was fresh out of law school, this claim is certainly not true. Provided Young's pitch was polished and he presented himself well, his rep could have led a reasonable person to believe him
Therefore, Young violated the VRPC about false or misleading communications]
61
False or misleading communication - Under the VA rules, a lawyer must not make a false or misleading communication about
Himself or his services
62
A communication is misleading if there is
A substantial likelihood that the communication will lead a reasonable person to reach an unfounded conclusion
63
A communication is misleading if there is a substantial likelihood that the communication will lead a reasonable person to
Reach an unfounded conclusion
64
Competent representation - Under the VRPM, a lawyer acts competently when he acts with
The legal knowledge, skill, and preparation reasonably necessary for the representation
The VRPC do not prohibit a lawyer who has little or no experience in a particular area of the law from undertaking the representation of a client in that area
However, the lawyer must put in the time and study necessary to become competent and/or consult with counsel competent in that area
[No facts indicate that Young consulted with competent counsel. Additionally, despite his attention to Wilma's case, Young failed to provide the requisite statutory notice to City within 6 months of Wilma's injuries, and Wilma's claim likely will be barred as a result]
65
A contingency fee agreement must be in writing and state the method by which the fee is to be determined, including:
1) The percentage or percentages that accrue to the lawyer in the event of settlement, trial, or appeal
2) Litigation and other expenses to be deducted from the recovery; and
3) Whether such expenses are o be deducted before or after the contingent fee is calculated
If there is any doubt as to whether a contingent fee is consistent with the client's best interest, the lawyer should offer the client alternative bases for the fee and explain their implications
[Here, Young informed Wilma of the 1/3 cut he would take from her recovery, and she signed a written agreement, but the details of the agreement are undisclosed in the facts
At the very least, it does not seem that Young helped Wilma consider whether a contingency fee was best for her situation, and whether there were other alternative arrangements that would be in her best interest
Therefore, Young may have violated VA RPC regarding contingency fees]
66
Under the VA Rules of Prof Resp, a lawyer must not counsel or assist a client in conduct that the lawyer knows is
Criminal or fraudulent
67
A lawyer may not commit a criminal or deliberately wrongful act that reflects adversely on the lawyer's
Honesty, trustworthiness, or fitness to practice law
68
A lawyer may not commit ________ or ________ act that reflects adversely on the lawyer's ________, ________, or ________
A criminal; deliberately wrongful; honesty, trustworthiness, or fitness to practice law
69
Under the VA Rules of Prof Resp, a lawyer must not reveal information protected by the attorney-client privilege unless
The information meets one of the exceptions
70
T/F One exception to the rule that a lawyer must not reveal information protected by the attorney-client privilege is that a lawyer must promptly reveal the stated intention of the client to commit a crime, as well as the information necessary to prevent the crime, when the crime is reasonably certain to result in substantial bodily harm or substantial injury to the financial interests or property of another
If feasible, the lawyer must first advise the client of the possible legal consequences of the action, urge the client not to commit the crime, and advise the client that the lawyer must reveal the criminal intention of it is not abandoned
True
71
One exception to the rule that a lawyer must not reveal information protected by the attorney-client privilege is that a lawyer must promptly reveal the stated intention of the client to
Commit a crime, as well as the information necessary to prevent the crime, when the crime is reasonably certain to result in substantial bodily harm or substantial injury to the financial interests or property of another
If feasible, the lawyer must first advise the client of the possible legal consequences of the action, urge the client not to commit the crime, and advise the client that the lawyer must reveal the criminal intention of it is not abandoned
72
One exception to the rule that a lawyer must not reveal information protected by the attorney-client privilege is that a lawyer must promptly reveal the stated intention of the client to ________, as well as the information necessary to ________, when the crime is ________ to result in ________ or ________ to ________
Commit a crime; prevent the crime; reasonably certain; substantial bodily harm; substantial injury; the financial interests or property of another
73
One exception to the rule that a lawyer must not reveal information protected by the attorney-client privilege is that a lawyer must promptly reveal the stated intention of the client to commit a crime, as well as the information necessary to prevent the crime, when the crime is reasonably certain to result in substantial bodily harm or substantial injury to the financial interests or property of another
If feasible, the lawyer must first advise the client of ________, ________, and ________
The possible legal consequences of the action
Urge the client not to commit the crime, and
Advise the client that the lawyer must reveal the criminal intention of it is not abandoned
74
Settlement provision - A lawyer must not participate in offering or making an agreement in which a broad restriction on the lawyer's right to practice is part of the settlement of a controversy, except where such restriction is
Approved by a tribunal or a government entity
[AJ cannot agree to a settlement in which one of the conditions would prevent hm from taking any cases against Cutter, despite his clients willingness to settle, if there is no tribunal or govt entity to approve such a settlement]
75
Settlement provision if court approved - The RPC permit a lawyer, in one limited circumstance, to participate in offering or making an agreement in which a broad restriction on the lawyer's right to practice is part of the settlement of a controversy
One limited exception:
Where a tribunal or govt entity, such as a circuit court, approves a settlement restricting the lawyer's right to practice law
[Aj's client has agreed to the terms of the settlement and the CC has approved to the restrictive terms of the settlement]
[Therefore, there is no violation of the RPC where a tribunal or govt entity agrees to a settlement that restricts the lawyer's right to practice law]
[AJ would, however, be obligated to advise all future clients against Cutter of this restriction and refer them to other counsel, if necessary]
76
T/F [Supposed the client is willing to settle, but AJ is not willing to agree upon any restriction on his future law practice. What are AJ's obligations as a member of the VA State Bar?]
[AJ can refuse to participate in an agreement that settles his client's litigation when such settlement contains a covenant that AJ not represent other Ps against Cutter]
[In this instance, AJ may withdraw from representing his client]
Generally, a lawyer must withdraw if representation will result in violation of the RPC
If CC does not approve of this settlement, AJ cannot agree to it
True
77
T/F Alternatively, if CC approves the settlement, AJ may still withdraw from representing a client if a client insists on pursuing an object that the lawyer considers repugnant or imprudent
Another circumstance is that the representation would result in an unreasonable financial burden on the lawyer
[The restriction will place AJ in a situation where there will be a conflict between his present client and potential future clients]
[The restriction could also have a material adverse effect on AJ's financial situation if he is unable to represent future clients against Cutter]
[Under any of the scenarios above, AJ can withdraw]
True
78
An attorney may withdraw from representing a client if a client insists on pursuing an objective that the lawyer considers ________ or ________
Repugnant or imprudent
79
An attorney may withdraw from representing a client if the representation would result in an
Unreasonable financial burden on the lawyer
80
An attorney must give notice to or obtain permission of a tribunal when
Terminating representation
81
If ordered to continue representation by a tribunal, an attorney must
Continue to represent the client
82
Upon permission for the termination of representation, an attorney must
Take steps to the extent reasonable practicable to protect his client's interests, such as:
Giving reasonable notice to his client
Allowing time for employment of other counsel
Surrendering papers and property to which the client is entitled, and
Refunding any advance payment of fees or expenses that has not been earned or incurred
Attorney may retain papers related to the client to the extent permitted by other law
83
T/F Per the RPC, a lawyer must not take any independent action on behalf of their client without consultation, except as is impliedly authorized to carry out the representation
Decisions affecting the merits of the case or substantially prejudicing the client's rights dmay be only by the client
[An example of such a decision to be made by the client is the decision to accept a settlement offer]
The lawyer is limited to deciding questions of strategy, procedure, or trial tactics
Also, a lawyer must not intentionally prejudice or damage a client
A lawyer must keep their client reasonably informed about the status of the matter, and the lawyer must inform their client of facts pertinent to the matter and of communications from another party that may significantly affect settlement or resolution
The absence of disclosure by the lawyer breaks down the one-on-one relationship of the client and the lawyer, as the silence regarding the restriction could amount to dishonesty
Failure to do any of the duties above would violate the basic foundation of the legal representation - the duty of loyalty to the client
True
[AJ, as a member of the VA State Bar, must not agree to the terms of Cutter without consulting his client
The provision restricting AJ's right to take cases against Cutter may substantially prejudice the client's rights, as such restriction could limit the client's choice of legal representation in unrelated issues against Cutter
If AJ fails to disclose this restriction, he may be intentionally prejudicing or damaging his client's interests against Cutter
Furthermore, AJ is obligated to discuss with his client facts pertinent to his case, including any future restrictions to take cases against Cutter
AJ is also obligated to share with his client communicated information from Cutter that may significantly affect the settlement
Having a secret deal with Cutter's in-house counsel and failing to carry out the above-mentioned duties will irreparably damage the relationship between AJ and his client, as AJ has breached the ultimate duty of loyalty
84
A lawyer must not take an independent action on behalf of their client without ________, except ________
Consultation; as is implied authorized to carry out the representation
85
Decisions affecting the merits of the case or substantially prejudicing the client's rights may be made only by
The client (e.g., decision to accept a settlement offer)
86
The lawyer is limited to deciding questions of
Strategy, procedure, or trial tactics
87
A lawyer must not intentionally
Prejudice or damage a client
88
A lawyer must keep their clients ________ about the status of the matter, and the lawyer must ________ and of communications from another party that may ________ or ________
Informed; inform their client of facts pertinent to the matter; significantly affect settlement or resolution
89
The absence of disclosure by the lawyer breaks down the
One-on-one relationship of the client and the lawyer, as the silence regarding the restriction could amount to dishonesty
90
T/F An attorney may serve as a member of the board of directors of a corporation
However, a conflict of interest may arise when the attorney represents the board as a corporation and also represents a member of its labor force, such as an officer or director, because the interests of the corporation may, at some point, diverge from the interests of the officer or director
[In this case, Don, the chief executive officer of VEP, asked Andrea for advice on the audit. When Andrew gave this advice, she was acting as counsel for the corporation. After she gave her advice to Dn, Don revealed his personal reason why he wanted the audit opposed. A conflict of interest may have been created at this point if Andrea and Don developed an attorney-client relationship bc then Don's interests in keeping secret his reason for opposing the audit and the corporation's interest in knowing about Don's actions would be in conflict]
True
91
May an attorney serve as a member of the board of directors of a corporation?
Yes
92
An attorney may serve as a member of the board of directors of a corporation
However, a conflict of interest may arise when the attorney ________ and also ________, such as an officer or director, because ________
Represents the board as a corporation; represents a member of its labor force; the interests of the corporation may, at some point, diverge from the interests of the officer or director
93
A conflict of interest may arise when they attorney represents the board as a corporation and also represents
A member of its labor force, such as an officer or director, because the interests of the corporation may, at some point, diverge from the interests of the officer or director
94
A lawyer is to proceed in the best interest of the corporation when
An officer of the corporation has engaged in the conduct that is a violation of a legal obligation to the corporation or a violation of law that might be imputed to the corporation and is likely to result in substantial injury to the corporation
[Here, Don's conduct in contracting with his brother in law was in violation of the federal grant and may have been in violation of federal criminal law. Don's conduct could be imputed to the org bc he is its chief executive officer, and his conduct could result in substantial injury to the corporation in that the corporation ay have to repay the grant funding that it received, and it may lose future funding bc of Don's conduct]
[Moreover, Andrea was not prohibited by the Rules from disclosing Don's conduct. A conflict of interest was not created when Don revealed to Andrea that he contracted with his brother in law bc Andrea was not acting as Don's attorney. Don never told Andrea that he was asking for her advice regarding the audit in his personal capacity and not on behalf of the corporation; thus, Andrea's advice was given as counsel for the corporation]
[Further, Don could not expect his communication to Andrea to be confidential bc he knew that Andrea served on the board and owed fiduciary duties to the board that would require disclosure of his contact]
95
T/F Communication with adverse party - In the representation of a client, a lawyer must not communicate about the subject of the representation with a person the lawyer knows to be represented by counsel in the matter unless the other counsel has granted permission or the lawyer is authorized by law to make such direct communication
A lawyer must obtain the consent of an organization's counsel before communicating with certain people in the organization, including:
1) A person who supervises or regularly consults with the organization's lawyer
2) A person with authority to obligate the organization with respect to the manner; or
3) A person whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability
However, consent is not needed before talking to a former employee
True
[Here, Ashley spoke to Octavia at a luncheon w/o obtaining consent from TP's counsel. Octavia is a former employee of TP; she was an owner of TP who had been forced out by the other two owners. Therefore, Ashley did not violate an ethical duty by speaking to Octavia w/o consent from TP's counsel]
96
In the representation of a client, a lawyer must not communicate about the subject of the representation with ________ unless ________
A person the lawyer knows to be represented by counsel in the matter; the other counsel has granted permission or the lawyer is authorized by law to make such direct communication
97
A lawyer must obtain the consent of an organization's counsel before communicating with certain people in the organization, including
A person who supervises or regularly consults with the organization's lawyer or person with authority to obligate the organization with respect to the manner
98
Consent is not needed before talking to
A former employee
99
Communication with unrepresented person
A lawyer may communicate directly with a person who is not represented by counsel
However, when doing so, the lawyer must not state or imply that they are disinterested
When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer must make reasonable efforts to correct the misunderstanding
[Ashley never revealed to Octavia that she was representing Marvin. Bc Ashley was asking for information directly related to Marvins lawsuit, she should have disclose to Octavia that she was representing him. Her failure to do so was a violation of the VA RPC]
100
When speaking with an unrepresented person, the lawyer must not
State or imply that they are disinterested
[Ashley never revealed to Octavia that she was representing Marvin. Bc Ashley was asking for information directly related to Marvins lawsuit, she should have disclose to Octavia that she was representing him. Her failure to do so was a violation of the VA RPC]
101
When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer must
Make reasonable efforts to correct the misunderstanding
[Ashley never revealed to Octavia that she was representing Marvin. Bc Ashley was asking for information directly related to Marvins lawsuit, she should have disclose to Octavia that she was representing him. Her failure to do so was a violation of the VA RPC]
102
Assisting with fraudulent conduct - When representing a client, an attorney must know knowingly fail to disclose a fact when
Disclosure is necessary to avoid assisting a criminal or fraudulent act by a client
[During his depo, Marvin lied about his income and damages in order to look like a more sympathetic P. eh was essentially trying to defraud TP. AShley knew Marvin lied based on her earlier convos with him, but she did nothing]
103
Remedial measures (if false evidence has been offered in a proceeding)
If false evidence has been offered in a proceeding, the lawyer must take reasonable remedial measures
The first measure is for the lawyer to speak confidentially with the client to warn the client of the lawyer's duty to reveal false evidence and to seek the client's cooperation in withdrawing or correcting the false evidence
If that does not work, the lawyer may ask the tribunal's permission to withdraw as counsel
As a last resort, the lawyer must disclose enough information to the tribunal to set the matter straight, even if that means disclosing confidential information that would otherwise be protected by the attorney-client privilege or the lawyer's ethical duty of confidentially or both
[Since Ashley failed to discuss arvin's lies with him or make any move to withdraw as his lawyer, she has committed an ethics violation and is subject to discipline]
104
T/F The settlement offer - Decisions for client - A lawyer must abide by the client's decisions concerning the objectives of the representation
In a civil case, it is the client's decision whether to accept a settlement offer
[Here, Ashley accepted the offer of $25,000 from TP even though Marvin clearly expressed to Ashley that he was seeking at least $50,000 and an apology. In light of this, Ashley violated this ethical rule by unilaterally accepting TP's offer]
True
105
T/F Duty to communicate - A lawyer must keep a client reasonably informed about their case status and explain matters sufficiently to allow their client to make informed decisions
In particular, a lawyer must advise the client of any matters that may affect the settlement
[In this case, Ashley did not inform Marvin of the settlement offer so he could not make an informed decision. This constituted a violation of the Rules]
True
106
T/F Duty of diligence and prompt notification- A lawyer must act with reasonable diligence and promptness in representing their client
True
[Here, Ashley took 90 days to communicate the settlement offer to Marvin, which is a clear violation of the duty of diligence]
107
T/F An attorney has a duty to promptly notify a client of any funds and to promptly deliver them
True
[90 days is a significant amount of time for Ashley to make Marvin wait to learn of the settlement offer and to receive the funds. Consequently, Ashley committed an ethical violation]
108
An attorney has a duty to promptly Notify a client of any ________ and to ________
Funds; promptly deliver them
109
T/F The VA RPC provide that in the rep of a client, a lawyer must not communicate about the subject of the rep with a person they know to be represented by counsel in the matter unless the other counsel has granted permission or the lawyer is otherwise authorized by law to make such direct communication
When a represented "person": is a organization, the lawyer must get the consent of the organization's counsel before communicating with the following categories of employees and other constituents of the organization:
1) A person who supervises, directs, or regularly consults with the org's lawyer concerning the matter
2) A person with authority to obligate the org with respect to the matter; or
3) A person whose act or omission in connection with the matter may be imputed to the org for purposes of civil or criminal liability
[Here, Sophia is a clerical employee in the HR dept of MT. She likely does not fall within any of the protected categories listed above; she does not seem to have regular contact with MT's counsel regarding the matter, is not a high-ranking employee of MT, and has no direct involvement in the matter]
Requirements for speaking with unrepresented persons - A lawyer is allowed to communicate with an unrepresented person directly; however, when dealing with an unrepresented person, the lawyer must not state or imply that she is disinterested
When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer must make reasonable efforts to correct the misunderstanding
Additionally, a lawyer must not give advice to an unrepresented person, other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interests of the client
110
T/F The VA RPC provide that in the rep of a client, a lawyer must not communicate about the subject of the rep with a person they know to be represented by counsel in the matter unless the other counsel has granted permission or the lawyer is otherwise authorized by law to make such direct communication
When a represented "person": is a organization, the lawyer must get the consent of the organization's counsel before communicating with the following categories of employees and other constituents of the organization:
1) A person who supervises, directs, or regularly consults with the org's lawyer concerning the matter
2) A person with authority to obligate the org with respect to the matter; or
3) A person whose act or omission in connection with the matter may be imputed to the org for purposes of civil or criminal liability
True
[Here, I am representing Cameron Client against her former employer, MT. A.J. Jones is currently a senior vice president of MT. This is a high ranking position and it is possible that AJ has authority to obligate MT with respect to the matter, or that he regularly consults w MT's counsel regarding the matter. Therefore, I would likely not be permitted to speak with AJ without consent of MT's counsel. it would be highly unlikely that MT's counsel would permit me to speak with AJ ex parte. Thus, I may not interview him]
111
T/F Requirements for speaking with unrepresented persons - A lawyer is allowed to communicate with an unrepresented person directly; however, when dealing with an unrepresented person, the lawyer must not state or imply that she is disinterested
When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer must make reasonable efforts to correct the misunderstanding
Additionally, a lawyer must not give advice to an unrepresented person, other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interests of the client
True
112
T/F A lawyer acts competently when he acts with the legal knowledge, skill, and preparation reasonably necessary for the representation
While the rules do not prohibit a lawyer who has little or no experience in a particular area of the law from undertaking the representation of a client in that area, the lawyer must put in the time and study necessary to become competent and/or consult with counsel competent in that area
[In this case, the facts indicate that Jr only had experience working as a researcher for a company that publishes law books and had no experience with PI cases. Additionally, there were no facts demonstrating that Jr took steps to become competent in PI or that he consulted PI counsel to acquire the necessary expertise
True
113
T/F Preparation of interrogatories 0 Under the Rules, a lawyer must keep a client reasonably informed about the status of the matter and explain a matter to the client to the extent necessary fro the client to make an informed decision
[Here, Jr did not discuss the interrogatories with Dolly or explain his answers to her, and he did not even send her a copy of the answers; thus his actions were in violation of the rules]
True
114
T/F Under the Rules a lawyer must not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation that reflects adversely on the lawyer's honesty, trustworthiness, or fitness to practice law
[Jr's use of Dolly signature for the sworn verification to the interrogatories was conduct involving dishonesty, fraud, deceit, and misrepresentation bc Dolly never read the interrogatories and was never informed of their consent so she did not in fact verify the answers, and this conduct reflects adversely on Jr's fitness to practice law]
The same conduct by Jr also violated the Rules that provide that a lawyer must not falsify evidence and that a lawyer must not offer false evidence
[Here, Jr notarized Dolly's signature on the sworn verification knowing that Dolly did not verify the interrogatory answers, and he sent the verification to opposing counsel (and most likely submitted a copy to the court); thus Jr violated the Rules]
True
115
T/F A lawyer must not falsify evidence and a lawyer must not offer false evidence
True
116
A lawyer must not engage in conduct involving ________, ________, ________, or ________ that reflects adversely on the lawyer's ________, ________, or ________
Dishonesty, fraud, deceit, or misrepresentation; honesty; trustworthiness; fitness to practice law
117
T/F Return of client's file - When a client so requests, a lawyer must return, within a reasonable time, original documents furnished by the client
Also, upon request and within reasonable time, the lawyer must make a copy of other documents to which the client is entitled
(e.g., pleadings, research materials) even if the client owes the lawyer money
A lawyer is not entitled to hold case files hostage to compel payment of fees
Alternative means can be employed to secure the payment of fees owed to a lawyer
[Because Jr refused to provide Ronny with a copy of Dolly's file until Dolly paid Jr for certain expenses and for his time in the case, Junior violated the rules]
True
118
Upon request and within a reasonable time, the lawyer must make a copy of
Other documents to which the client is entitled
(e.g., pleadings, research material) even if the client owes the lawyer money
119
T/F A lawyer is not entitled to hold case files hostage to compel payment of fees
Alternative means can be employed to secure the payment of fees owed to a lawyer
True
120
A lawyer having reliable info that another lawyer has committed a violation of the Rules that raises a substantial question as to that lawyer's honesty, trustworthiness, or fitness to practice law
MUST inform the appropriate authority
[Jr's actions in having Dolly sign a blank piece of paper to use as a sworn verification to the interrogatories and not turning over Dolly's file constitute conduct that raises a substantial question as to his fitness to practice law, and bc Ronny had knowledge of this conduct, he must disclose it to the state bar]
**Note that Ronny does not have to obtain Dolly's consent before reporting Jr's violations. Although the rules provide the a lawyer must promptly reveal info concerning another lawyer's misconduct to the appropriate authority, the lawyer must first obtain the consent of the client after consultation fi the information necessary to report the misconduct is protected by the rules
[In this case, it does not appear that any of the information that Ronny must disclose to the state bar regarding Jr's violations of the Rules (that Junior had Dolly sign the blank paper, that he did not have her read the interrogatory answers, and that he failed to return Dolly's file) is protected under the Rules; thus, Ronny does not need to obtain Dolly's consent before reporting Junior's unethical conduct to the state bar]
121
T/F Although the rules provide the a lawyer must promptly reveal info concerning another lawyer's misconduct to the appropriate authority, the lawyer must first obtain the consent of the client after consultation fi the information necessary to report the misconduct is protected by the rules
True
122
A concurrent conflict of interest exists if there is
A significant risk that the representation of a client will be materially limited by the lawyer's responsibilities to another client
123
T/F A lawyer cannot, under any circumstances, represent one client in asserting a claim against another client represented by the lawyer in the same case pending before a court or tribunal
True
124
A lawyer cannot represent a client where there is a concurrent conflict of interest and the lawyer does not
Reasonably believe that he will be able to provide competent and diligent representation to each affected client
125
If client A's representation is complete, the attorney will be able to represent client B's claim against client A only if he consults with both client A and B and they both
Consent
126
A lawyer who formerly represented a client in a matter may not later represent another person in the same or substantially related matter in which that person's interests are materially adverse to the interests of the former client, unless
Both the represent and former client consent after consultation
[Even if rep of client A is complete, the attorney may still have to address an ongoing concurrent conflict of interest]
127
T/F Even if rep of client A is complete, the attorney may still have to address an ongoing concurrent conflict of interest
True
128
A lawyer who has formerly represented a client in a matter may not
1) Use info relating to or gained in the course of the representation ot the disadvantage of the former client, or
2) Reveal info relating to the representation
[Also, attorney still has a duty to preserve client A's confidential info, even though the attorney-client relationship has terminated]
129
A lawyer must provide copies of file materials to a client or a client's new lawyer within
A reasonable time upon request, regardless of whether the client has paid the fees and costs owed to the lawyer
130
The only file materials that an attorney can refuse to turn over are
Billing records and documents intended only for internal use, such as memoranda discussing conflicts of interest, staffing considerations, and difficulties arising from the attorney-client relationship
131
T/F The discharge of an attorney is not considered a breach of contract due to the peculiar lawyer-client relationship upon which the contract rests. However, the attorney would be entitled to recover on a basis of quantum meruit the reasonable value of his services rendered until his discharge
True
132
T/F Duty of confidentiality - Prohibits any disclosure or use of any info relating to the representation, no matter its source, if the client requested it be kept private or if the disclosure might harm or embarrass the client
True
133
Attorney-client privilege - Applies only to lawyer-client communications made during ________ and prevents the lawyer from ________ in a ________
The course of the relationship; testifying (and allows the client to refuse to testify); formal proceeding
134
In general, a conflict of interest exists when a lawyer’s representation of a client will be materially limited by the lawyer’s personal interests
Waiver of this general conflict is possible if the lawyer
Reasonably believes that she will be able to provide competent and diligent representation to the client and the client gives consent after consultation, confirmed in writing
135
T/F While a lawyer is prohibited from communicating about the subject matter of a dispute with a represented opposing party without first obtaining permission from the opposing party’s lawyer, there is no prohibition on communication with former employees or agents of an organization that is an opposing party, even if the former employee or agent was a member of the organization’s managerial group
True
136
Under VA rules, papers produced as work product must be turned over to the client when
The representation is terminated
137
When a lawyer knowingly makes a false statement of fact or law to a judge, he or she has certainly violated which rule of Professional Responsibility?
The rule regarding candor toward the tribunal
The best answer here is the rule regarding Candor Toward the Tribunal. For your reference, this rule can be found in the Virginia Rules of Professional Conduct, Rule 3.3. It says, “A lawyer may not knowingly make a false statement of fact or law to a tribunal.”
138
According to the Virginia Cannons of Judicial Conduct, a judge
Judicial Cannon 3(d): “A judge having knowledge that a lawyer has committed a violation of the Code of Professional Responsibility that raises a substantial question as to the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects, should inform the Virginia State Bar.” (emphasis added)
139
When a judge finds a lawyer guilty of summary contempt of court, what punishments may the judge impose immediately and without empaneling a jury? (Select all that apply)
A fine up to $250
Banning the lawyer from practicing in that courtroom
Up to 10 days in jail
No court shall, without a jury, for any such contempt as is mentioned in the first class embraced in § 18.2-456, impose a fine exceeding $250 or imprison more than ten days; but in any such case the court may, without an indictment, information or any formal pleading, impanel a jury to ascertain the fine or imprisonment proper to be inflicted and may give judgment according to the verdict.
140
According to the Virginia Cannons of Judicial Conduct, a judge
Should report only lawyer misconduct that raises a substantial question as to that lawyer's honesty, trustworthiness, or fitness as a lawyer to the VA State Bar
141
Where the trial judge finds that a lawyer has filed pleadings and objections that he knew were without merit, the judge may impose sanctions only if the issue is raised by the opposing party
Judges may impose sanctions on their own motions, and need not wait for it to be raised by any other party
142
T/F A concurrent conflict of interest exists if there is a significant risk that the rep of a client will be materially limited by the lawyer's responsibilities to another client
Also, a lawyer cannot rep a client where there is a concurrent conflict of interested and the lawyer does not reasonably believe that he will be able to provide competent and diligent rep to each affected client
A lawyer who formerly repped a client in a matter may not later rep another person in the same or substantially related matter in which that person's interests are materially adverse to the interests of the former client, unless both the present and former client consent after consultation
A lawyer who has formerly repped a client in a matter may not
1) Use information relating to or gained in the course of the rep to the disadvantage of the former client, or
2) Reveal info relating to the rep
Also, the lawyer still has a duty to preserve confidential info, even though the attorney=client relationship has terminated
True
[Hill may not rep Bree in her claim against Justin if he is currently repping Justin in Justin's lawsuit
If Hill's rep of Justin is complete, Hill will be able to represent Bree in her claim against Justin only if he consults with both Bree and Justin and they both consent
Even if Hill's rep of Justin has terminated, he may still have to address an ongoing concurrent conflict of interest]
