Professional Ethics Flashcards
Unauthorized Practice of law
A lawyer is subject to discipline for practicing law in another state where doing so violates the regulation of the legal professions unless:
- Lawyer has received pro has vice
- lawyer is associated with a GA lawyer who actively participates in the matter
A lawyer cannot assist a person who is not admitted in the state in the unauthorized practice of law.
Attorney’s own misconduct
It constitutes a professional misconduct to violate or attempt to violate any of the rules of professional conduct, or to knowingly assist or induce another to violate the rules.
Professional misconduct also includes any criminal act that relates to the lawyers fitness to practice law or reflects adversely on the lawyers honesty.
Felonies & Misdemeanor involving moral turpitude: a lawyer convicted of a felony has an affirmative duty to inform the state bar of any felony convictions
Discipline for the Misconduct of others
An attorney may be disciplined for the misconduct of other:
- Other lawyers: subject to discipline if the lawyer ordered, ratified or knows (as a supervisor) of misconduct
- Non-lawyer: a lawyer with direct supervisory authority over a non-lawyer must make reasonable efforts to ensure conduct is comparable to the lawyers obligations
Law Firm Practice Management
The division of fees within a law firm is permissible
A lawyer may not share fees, form a partnership, serve as manager, or hold a business ownership with a non-lawyer.
Advertising
A lawyer cannot make false or misleading statements about the lawyers services. An advertisement is misleading when:
- contains material misrepresentations of fact or law
- creates unjustified expectation about results
- compares services with another (unless factually substantiated)
- contains language regarding fees without explanation or disclaimer
Firm Names
- A firm name must not be misleading
- A trade name is allowed so long as it:
- Includes names of at least one attorney;
- does not imply connection with government; OR
- Lawyer holding office may not be used in the firm name
Solicitation
A lawyer cannot solicit professional employment through direct personal contact or live telephone contact with a non-lawyer
Written communications to prospective clients are allowed unless:
- Lawyer knows the person does not want to receive communications
- communication involves coercion, duress, fraud, etc.
- communication relates to personal injury or wrongful death
- lawyer knows or should know that the recipients physical, emotional, mental state is such that he or she cannot exercise reasonable judgement in hiring a lawyer
Competence
A lawyer is obligated to provide competent representation to a client and must possess the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. Factors for determining whether a lawyer has the requisite knowledge and skill include the relative complexity and specialized nature of the matter, the lawyer’s general experience, the lawyer’s training and experience in the field, the preparation and study the lawyer is able to give the matter, and whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question.
Fraud
A lawyer is prohibited from counseling or assisting the client in conduct the lawyer knows to be criminal or fraudulent. Although a lawyer may discuss the legal consequences of any proposed course of conduct with a client, if the lawyer advises or assists with a crime or fraud, then the lawyer is subject to both discipline and criminal or civil liability.
Referral
Generally, a lawyer must not compensate a person or an organization for recommending his services. Compensation can be anything of value.
Joint Representation Engagement Letter
An atty. may only represent joint parties if the atty. has reasonably determined that the parties share common interest in the outcome of the case where no conflicts of interest arise.
The engagement letter must advise that in the event of a conflict:
- Atty. will inform all jointly represented parties, advise them to obtain legal counsel, and give an opportunity to do so;
- conversations between the atty. and the clients are privileged, but atty. may disclose the details of those conversations with other members of the jointly represented group.
Must allow time to review the engagement letter and consult with outside and independent counsel before representation commences.
Client Accounts
According to the Georgia Rules of Professional Conduct (RPC), attorneys are to keep client and attorney funds separate, and hold client funds in a client designated interest bearing account in the state of Georgia, or the state the attorney’s office is located.
Interests on Client Accounts
Per the RPC, interest on client accounts are to be distributed to the clients, or allocated to state Interest on Lawyer Trust Account (IOLTA) account.
This IOLTA account helps fund legal services for indigent clients and those unable to access legal aid because of financial constraints.
Fee Agreement
Fees must be reasonable, based on the skill involved, the attorney’s experience and knowledge, difficulty of the matter, and the local market.
Fee agreement should include how expenses will be calculated, how fees will be calculated and billed, if any contingency fees will be collected.
- Contingency fees are fees collected only if the attorney prevails- these fees are not allowed in criminal cases or domestic cases. However, contingency fees for enforcing domestic cases [i.e. enforcing collecting alimony or a divorce judgment] are allowed under the RPC
Attorney must advise the client to review the agreement and seek independent counsel.
NOTE: Summary statements, itemized or not, are not required by the RPC to be sent to the client unless the client requests so.
