Prof Responsibility Flashcards
Feb 22
Can a lawyer represent co-plaintiffs?
Generally, a lawyer shall not represent a client if the representation involves a concurrent conflict of interest.
A concurrent conflict of interest exists if:
-the representation of one client will be directly adverse to another client; or
-there is significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client.
Simultaneous representation of parties whose interests in litigation may conflict, such as co-plaintiffs, is proper if
-the risk of adverse effect is minimal and:
-the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
-the representation is not prohibited by law;
-the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
-the consent from the client is memorialized in writing.
A client consultation for such a representation should include:
-a discussion of any limitations on the scope of the representation made necessary as a result of the common representation;
-that as between commonly represented clients, the attorney-client privilege does not attach; and
-that should a conflict arise, the attorney must withdrawfrom representation from at least one, if not both, of the parties. [F22]
What is the PR rule on access to evidence for another party?
A lawyer shall not obstruct another party’s access to evidence or alter, destroy, or conceal material having potential evidentiary value for the purpose of obstructing a party’s access to evidence; or counsel or assist another person to do any such act. [F22]
A lawyer has a duty to communicate and keep clients…
reasonably informed about the status of the matter, and to promptly inform each client of any decision or circumstance requiring the client’s informed consent. [F22]
A lawyer shall not counsel a client to engage, or assist a client, in conduct the lawyer knows is criminal or fraudulent, but a lawyer may…
…discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning, or application of the law. [F22]
Once a client become a former client, the lawyer must not represent…
…another person in the same or a substantially related matter, if their interests in the matter are materially adverse to those of the former client. [F22]
A lawyer may not knowingly communicate with a person who…
…is represented by another lawyer in the matter.
The Rule applies even though the represented person initiates or consents to the communication. [J22]
A lawyer may not communicate with a constituent of the organization who…
…supervises, directs, or regularly consults with the organization’s lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.
However, consent of the organization’s lawyer is not required for communication with a former constituent. [J22]
If a constituent of the organization is represented in the matter by his or her own counsel…
…a lawyer needs the consent of that counsel to question the constituent.
This applies even if the constituent is not a party to the formal proceeding.
However, where the personal counsel has consented to communication, the counsel of the organization must also consent. [J22]
A lawyer may communicate with a represented party without consent of their counsel if…
…it concerns matters outside the representation. [J22]
Interested transaction PR rule
(a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:
(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner which can be reasonably understood by the client;
(2) the client is given a reasonable opportunity to seek the advice of independent counsel in the transaction; and
(3) the client consents in writing thereto.
(b) lawyer shall not use privileged or confidential information to their advantage or to the advantage of a third person or to the disadvantage of the client unless the client consents after consultation. [J16]
Under PR rule 8.4, it is misconduct to…
…violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
engage in conduct involving dishonesty, fraud, deceit or misrepresentation [J16]
Punishments for disrespect and PR violations can include…
…contempt, prohibition from practice before a court, reporting of violation to state bar. [J18]
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct…
…knowingly assist or induce another to do so, or do so through the acts of another. [J18]
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless…
…there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. [J18]
A lawyer may not make an agreement prospectively limiting the lawyer’s ____ except…
Liability to a client for malpractice.
…if the lawyer is an employee of the client and the client is independently represented in making the agreement. [F19]
A lawyer can provide adequate representation in a wholly novel field through…
necessary study or association with a lawyer of established competence in the field. [F19]
Must a representation agreement be reduced to writing?
No but lawyers should “preferably” do so.
But contingency fees must be in writing and must state (1) the method the fee is to be determined, (2) the expenses to be deducted from the recovery, and (3) whether such expenses are deducted before or after the contingent fee is calculated.
Customary fee is 33%. [F19]
A lawyer’s fee must be…
…reasonable.
Eight factors for assessing reasonableness, most notably custom and the experience, reputation, and ability of the lawyer. [F19]
A lawyer ___ have a sexual relationship with a client.
Can. Unless it adversely affects the representation. [F19]
When the lawyer and client disagree as over a fee that the lawyer will be paying from funds the lawyer has in his or her client trust account, the lawyer should…
…promptly disburse to the client the undisputed portion of the funds and keep the disputed portion of the funds in the trust account. [F19]
In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not…
…state or imply that the lawyer is disinterested.
When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.
A lawyer shall not knowingly fail to disclose a fact when disclosure is…
…necessary to avoid assisting a criminal or fraudulent act by a client.
First action should be to “remonstrate with the client confidentially, advise the client of the lawyer’s duty of candor to the tribunal and seek the client’s cooperation with respect to the withdrawal or correction of the false statements,” but further remedial action might be required.
To the extent a lawyer reasonably believes necessary, the lawyer may reveal such information which clearly establishes that the client has perpetrated upon a third party a fraud related to the subject matter of the representation.
If that fails, the attorney may consider withdrawal from representation.
A lawyer shall abide by a client’s…
…decisions concerning the objectives of representation.
A lawyer shall ___ whether to accept an offer of settlement of a matter.
abide by a client’s decision, after consultation with the lawyer.
A lawyer who receives from opposing counsel an offer of settlement in a civil controversy or a proffered plea agreement … should promptly inform the client of its substance unless prior discussions with the client have left it clear that the proposal will be unacceptable.
A lawyer should pursue a matter on behalf of a client despite…
…opposition, obstruction or personal inconvenience to the lawyer.
E.g., don’t fail to notify the client of a settlement offer for 90 days because of an illness.
A lawyer shall not act as an advocate in an adversarial proceeding in which the lawyer is likely to be a…
…necessary witness. [F21]
In naming a law firm, it is misleading to use the name of a lawyer…
…not associated with the firm or a predecessor of the firm, or the name of a nonlawyer.
A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. [F21]
