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Professional Responsibility > Professional Responsibility > Flashcards

Professional Responsibility Flashcards

1
Q

Attorney’s Fees

A

A lawyer cannot charge excessive fees, only reasonable fees based on time skill, complexity of the case, and customary fee in the area are permitted.

Fees and expenses charged by an attorney must be reasonable.

  • Reasonable means not excessive. As a rule of thumb, any fee of greater than 50% is excessive and unreasonable.
  • Factors to assess reasonableness include lawyer’s reputation and experience, complexity of the case, the potential affect of the case on the lawyer’s business.

Fees and expenses must be clearly communicated to the client before or within a reasonable time after teh representation commences.

  • Oral agreement is permitted, but writing is preferred.
  • There is a duty to revise if necessary
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2
Q

Contingent Fees

A

A contingent fee is based in whole or in part on success.

Contingent fees are not permitted in criminal and family law cases.

  • Contingent fee agreement must be in writing and signed by the client. Must state:
    • the method by which the contingent fee will be determined
    • the percentage, if fee is based on percentage
    • what expenses will be deducted from recovery
    • whether percentages will be calculated before or after expenses
  • At the conclusion of the representation, the lawyer must give a written statement of the final outcome and a financial accounting.
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3
Q

Collection/Payment of Fees

A

Fees may be paid:

  • before, during, or after the representation
  • by cash, credit, real property, retainer, installment payments
    • lawyer may accept real or personal property as payment, but note that this may be a prohibited business transaction with client or violation of rules prohibiting acquisition of proprietary interest in cause of action.

If there is a dispute over fees, lawyer should first use arbitration or mediation. A suit to collect fees should be filed only to prevent fraud or gross imposition by client.

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4
Q

Division of Legal Fees

A

Lawyers who are not in the same firm/business may divide a fee if:

  • the division is in proportion to the services performed oor each lawyer assumes joint responsibility for the representation.
  • the client agrees to the joint representation and the agreement is confirmed in writing; and
  • the total fee is reasonable.

Sharing fees with non-lawyers is prohibited except that a court awarded fee may be shared with a non-profit.

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5
Q

Duties Owed to the Client

A

A lawyer must be C….COILED, like a stuttering snake.

  • Confidentiality
  • Competence
  • Objectives (like duty of obedience)
  • Information/Communication
  • Loyalty (avoid conflicts of interest)
  • End of Representation
  • Diligence
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6
Q

Duty of Competence

A

Lawyer must act with sufficient legal knowledge, skill, thoroughness, and preparation.

Exam sparks: new lawyer, inexperienced lawyer, lawyer doing stupid things, lawyer giving bad advice=competence.

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7
Q

Objectives: Scope of Representation & Decision-Making

A

The client determines the objectives (ends) of the representation. The lawyer must obey client’s instructions as to ends unless repugnant or illegal.

  • Lawyer can and should consult with client about her objectives.
  • It is okay to limit objectives/scope with informed consent (e.g., lawyer agrees to handle trial but not appeal).
  • The lawyer cannot counsel or assist client in commission of crime or fraud.

The lawyer determines the means to accomplish objectives.

  • Lawyer can and should consult with client about means.
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8
Q

Decisions Specifically Allocated to the Client

A

The client has the final say on T-POT decisions:

  • Trial–choosing a jury or bench trial
  • Plea–whether to plead guilty (criminal) or settle (civil)
  • Objectives of the representation
  • Testify–whether to testify in a criminal case
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9
Q

Clients w/ Diminished Capacity

A

Lawyer should allow client to make as many decisions as she is able, and if deciding for a client, lawyer must act in client’s best interest.

  • Can seek appointment of a guardian to make decisions for client.
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10
Q

Duty of Information/Communication

A

Lawyer _must _keep client reasonably informed.

  • Reasonably informed means that the lawyer must provide sufficient information to enable client “to participate intelligently in decisions.”

Lawyer must give reasonably prompt response to client requests for information, documents, etc.

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11
Q

Duty of Diligence

A

Lawyer has a duty to act with diligence in representation of client.

  • The rule is about timing: avoiding unreasonable delays that can hurt clients.
  • Exam spark: slow lawyers=diligence
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12
Q

Duty of Confidentiality

A

A lawyer must not disclose confidential information obtained from the client with limited exceptions.

  • Confidential–depends on reasonable intent/expectations of client.
  • Generally presence of a third party destroys confidentiality.
    • Third person will not destroy confidentiality if client reasonably intends/expects confidentiality (e.g., lawyer’s clerk, expert, investigator, co-counsel).
    • Where lawyer invites client’s close friend to join meeting to have a “calming effect” on client, confidentiality was not destroyed. Newman v. State.

The duty of confidentiality lasts forever, even after client’s death, unless waived by client.

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13
Q

Mandatory Exceptions to Confidentiality: Trial Fraud

A

Trial Fraud. When a lawyer knows of past or future false statements or fraud in litigation, the lawyer must take reasonable remedial measures.

  • Must involve an official adjudicative proceeding (civil, criminal, administrative hearing)
  • Duty ends at the end of the proceedings.
  • Actual knowledge is required–lawyer must know of falsity or testimony offered.
  • Lawyer must take reasonable remedial measures to rectify/prevent fraud:
  • discourage or refuse to offer false evidence;
    • disaffirm false statements by lawyer
    • withdraw, if it will remedy the falsity
    • disclose client confidences if and only to the extent necessary.
  • MD: disclosure is discretionary, not mandatory, for perjury by criminal defendant if constitutional rights might be jeopardized.
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14
Q

Mandatory Exceptions to Confidentiality: Future Fraud

A

A lawyer must disclose confidential information if necessary to avoid assisting a client who is committing (not completed, currently committing) or is going to commit (in the future) a crime or fraud against a third person.

Lawyer must:

  • dissuade the client from the fraudulent or criminal plan and have the client correct any misstatements;
  • withdraw from representation;
  • give notice of the fact of withdrawal and disaffirm any opinion, document, affirmation, or the like; or
  • in extreme cases, disclose confidential information relating to representation and correct or withdraw a statement if it is the only way to avoid assisting a client’s crime or fraud.

Only applies when client is seeking advice or aid in furtherance of a crime or fraud.

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15
Q

Discretionary Exception to Confidentiality

A

A lawyer may disclose client confidences:

  • to seek advice about compliance with the rules of professional conduct
  • in suits between lawyer and client (suit to collect fees/malpractice suits)
  • perjury by criminal defendant as part of criminal trial
  • to prevent the highest authority of an organization from doing injury to the organization where organization is the client
  • with the client’s actual authority (express waiver, informed consent) or implied authority (lawyer may disclose information to her staff or others in firm unless client directs otherwise)
  • to disclose information to opposing counsel, to the court, or others if those relevations will benefit or further the client’s case
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16
Q

Discretionary Exceptions to Confidentiality: Crimes & Frauds

A

A lawyer may disclose confidences to:

  • prevent reasonably certain death or substantial bodily harm
  • prevent client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client used or is using the lawyer’s services.
  • prevent, mitigate, or rectify substantial injury to the financial or property interests of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in futherance of which the client used the lawyer’s services.
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17
Q

Duty of Loyalty: Conflict of Interests

A

A lawyer cannot permit other interests to interfere with her duty to client.

General approach:

  1. Identify the client or clients
  2. Determine if conflict of interest exists
  3. is the conflict consentable?
  4. If consentable, obtain informed consent, confirmed in writing from each affected client

Exam sparks: lawyer in fact pattern; multiple people seek representation; one client wearing two hats; organizational client.

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18
Q

Identifying Conflicts

A

A conflict exists where:

  • The representation of one client will be directly adverse to another; or
    • Directly adverse–lawyer represents one client against another (even in wholly unrelated matter).
  • There is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsbilities to another client, a former client or third person, or by a personal interest of the lawyer.
    • Material limitation–a signficant risk that a lawyer’s ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer’s other responsbilities.
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19
Q

** Consentable Conflicts**

A

A conflict is consentable if the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client, despite the conflict

  • The test is actual (subjective) and reasonable (objective).
  • If directly adverse, the test usually CANNOT be met.

If not consentable, lawyer cannot represent even if client consents.

If consentable, the lawyer must obtain informed consent, confirmed in writing, from each affected client.

This analysis applies to all conflicts, including conflicts between lawyer’s personal interests, current clients, and third parties (ex: lawyer’s duty to a third person as a trustee, executor, or corporate director).

If you learn confidential information from two clients before learning that there is a directly adverse conflict, you will have to withdraw from representing both clients—the objective test cannot be met. How can you not use information against the other?

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20
Q

Non-Consentable Conflicts

A

Some conflicts are so problematic, that even if client gives informed consent, the lawyer must nonetheless decline representation:

  • representation prohibited by law (ex: state statutes prohibiting joint representation in criminal cases)
  • the representation involves the assert of one client against another client in the same litigation or proceeding before a tribunal.
    • mediation is not a tribunal
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21
Q

Conflicts: Former Client’s Interests v. Client’s

A

Where lawyer formerly represented a client, the lawyer may not represent a new person in the same or substantially related matter in which the new person’s interests are materially adverse to the interests of the former client, unless the former client gives informed consent, confirmed in writing.

  • Substantially related if involve the same transaction; the same legal dispute; **or a substantial risk that confidential factual information obtained in the prior representation would materially advance the new client’s position. **
  • Ex: lawyer drafted a contract for A. Can’t later sue A to rescind contract on behalf of B.
  • Ex: Lawyer represented husband’s business and learned financial information about husband. Can’t represent wife in divorce.
  • Ex: Lawyer defended company in vehicle tort. Later, lawyer CAN sue company in different vehicle tort.
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22
Q

Conflicts: Former Firm Client’s Interests vs. Current Client

A

If the lawyer did not personally represent client while with the firm, and did not learn any confidential client information, no conflict exists. Conflict exists only where lawyer actually learned confidential information about former firm’s client.

  • If there is a conflict, the usual rules apply–reasonable belief/informed consent.
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23
Q

Use of Client’s Confidential Information

A

A laywer cannot use confidential information related to former client’s representation to former client’s disadvantage, unless former client gives informed consent, confirmed in writing, or the information has become generally known.

A lawyer cannot use client information to disadvantage any client, absent informed consent.

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24
Q

Prospective Client Interests vs. Client Interests

A

A lawyer shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter, if the lawyer received significantly harmful information from the prospective client unless:

  • both prospective client and the affected new client give informed consent, confirmed in writing.

A prospective client is a person who discusses with a lawyer the possibility of forming a client-lawyer relationship, even if lawyer is never retained.

If lawyer is part of firm, the knowledge of confidential info is imputed to firm, unless informed consent, confirmed in writing, of both the prospective and affected clients or the disqualified lawyer is screened

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25
Q

Imputed Conflicts: General Rule

A

The general rule is that a conflict for one lawyer in a firm is a conflict for all. The rule does not apply:

  • to non-lawyers in a firm.
  • to knowledge obtained by the lawyer before she became a lawyer.
  • where the conflict arises from a personal interest of the lawyer and does not present a significant risk of materially limiting the representation of the client by remaining lawyers in the firm.
  • where the affected clients waive the conflict (apply reasonable belief & informed consent rule).
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26
Q

Imputed Conflicts to Old Firm After Lawyer Leaves

A

The old firm is permitted to represent persons with interest directly adverse to those of a client represented by a former firm lawyer unless:

  • the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and
  • any other lawyer currently in the firm has material confidential information.
27
Q

Imputed Conflicts to New Firm After Lawyer Joins Firm

A

When a lawyer joins a firm, the firm is disqualified from knowingly representing a person in a mater in which the newly associated lawyer is disqualified unless the personally disqualified lawyer

  • is timely screened from any participation in the matter; and
  • is apportioned no part of the fee

Screening eliminates informed consent requirement.

When a lawyer moves from private firm to government, former-client conflicts are not imputed.

28
Q

Conflicts for Former Third-Party Neutral

A

A lawyer must not represent anyone in a matter in which the lawyer participated personally and substantially as a third-party neutral, unless:

  • all parties to the proceeding give informed consent, confirmed in writing.

Conflict is imputed to firm unless screening and written notice.

29
Q

Conflicts for Former Government Lawyers

A

A lawyer who worked for the government is subject to the general conflict rule concerning former clients, which prohibits lawyer from revealing the government’s confidential information or using it to the the government’s detriment.

  • Former gov’t lawyer may not represent a client in a matter which the lawyer participated personally and substanially as government employee unless the gov’t agency gives informed consent, confirmed in writing.
  • Applies whether or not the new matter is adverse to the former gov’t agency employer.

The former government lawyer’s conflicts are imputed to lawyers in new firm unless the disqualified lawyer is timely screened and written notice given promptly to government.

If former government lawyer learned has actual knowledge of confidential information about a person, the lawyer may not represent a private client whose interests are adverse to that person if the information could materially disadvantage that person.

30
Q

Conflicts for Former Private Lawyers Joining Government

A
  • A lawyer currently serving as public employee shall not participate in a matter which the lawyer participated personally and substantially while in private practice or non-governmental employment, unless the appropriate gov’t agency gives informed consent, confirmed in writing.
  • Government lawyer may not negotiate for a new job with any lawyer or party involved in a matter on which lawyer is participating personally and substantially.
31
Q

Business Transactions w/ Clients

A

A lawyer is prohibited from entering into a business, financial, or property transaction with a client, unless:

  • the transaction and terms are fair and reasonable to the client;
  • the transaction and terms are fully disclosed in writing in clear language;
  • the client is advised in writing to seek and given a reasonable opportunity to seek the advice of outside counsel on the transaction; _and _
  • the client gives written and signed informed consent.
32
Q

Disadvantageous Use of Information

A

A lawyer cannot use protected information in a way which harms the client, unless the client gives informed consent.

33
Q

Client Gifts

A
  • A lawyer cannot solicit a substantial gift from a client; nor
    • unsolicited gifts are okay, solicited small gifts okay.
  • draft a document giving herself or a related person a substantial gift or bequest, unless
    • client is lawyer’s close relative, or
    • client is repersented by independent counsel as to the gift.
34
Q

Media or Literary Rights

A

A lawyer cannot negotiate media or literary rights to herself concerning the subject of the representation during the representation–no exceptions.

35
Q

Financial Assistance to Client

A

A lawyer cannot give financial assistance to a client except:

  • to advance litigation expenses if there is a contingency fee arrangement; or
  • pay litigation expenses if client is indigent.
36
Q

Third-Party Payment

A

A lawyer may not allow payment of fees by third persons unless:

  • client consents after consultation
  • third party is not permitted to interfere in representation; _and _
  • no confidential information is provided to the third party
37
Q

Aggregate Settlements/Multiple Pleas

A

A lawyer may not permit aggregate settlements or criminal pleas for multiple clients unless client consents after consultation and lawyer discloses full agreement for all parties to each.

  • Ex: Lawyer agrees to represent A, B, and C in a discrimination suit againt employer. As a settlement, employer offers $10,000 to A; $5,000 to B; and $4,000 to C. Lawyer must tell each client about her individual offer and also the offers to her co-plaintiffs.
  • Lawyer should discuss this potential problem with client before undertaking joint representation.
38
Q

Advance Legal Malpratice Liability Limitations

A
  • A lawyer may not limit malpractice liability in advance unless it is permitted by law and client has independent counsel.
    • Written advice that client should seek independent counsel is insufficient. Client must actually be represented by independent counsel.
  • A lawyer cannot settle malpractice claim against himself with unrepresented client unless client is advised in writing to seek advice of independent counsel.
39
Q

Interest in Litigation

A

A lawyer may not acquire an interest in litigation except liens on prospective judgment for unpaid fee or in contingency fee situation.

40
Q

Organizational Clients

A

If a lawyer represents an organization (corporation, government agency, non-profit, business entity), the lawyer represents the organization and not individual constituents.

  • Though lawyer represents the entity, confidential communications with constituents (when the constituent is speaking in his organizational capacity) are protected by the duty of confidentiality.

If a lawyer represents an organization and actually knows a constituent’s illegal acts will substantially injure the organization, the lawyer must act to protect the organization–dissuade the actor, report the matter to higher authority, even disclose proposed illegal behavior to shareholders, legal authorities if highest authority will not act.

  • Disclosure of information in this context is discretionary, but lawyer must some take action to protect the corporation.
41
Q

Client Trust Accounts/Prohibition on Co-Mingling Property

A

An attorney may not comingle his property with his clients. Client fees must be placed in an escrow or client trust account and withdrawn only as earned. The attorney is required to keep records distinguishing client funds from his own.

  • The lawyer must return any unearned fees.

If the lawyer receives property belonging to others (settlement check), the lawyer must notify persons to whom property belongs; deliver it to the persons promptly; and document what money/property belongs to whom.

42
Q

Ending Representation: Withdrawal

A

Mandatory. Lawyer must withdraw if:

  • continued representation will violate rules of professional conduct;
  • she becomes disabled; or
  • she is discharged by client (not in litigation)

Permissive. Lawyer may withdaw:

  • if no adverse effect on client
  • for good cause even where
    • the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent;
    • the client has used the lawyer’s services to perpetrate a crime or fraud;
    • the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;
    • the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;
    • the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or
43
Q

Ending Representation: Discharge by Court

A

If lawyer has entered an appearance in litigation, the rules of procedure (not ethics) require:

  • a notice of withdrawal if there is substitute counsel; or
  • permission of the court if there is no substitute counsel.
44
Q

Responsibilities of Withdrawing Lawyer

A

A withdrawing lawyer must:

  • protect client’s interest
  • give client proper notice with adequate time to hire new counsel
  • return client’s property and unearned fee
  • continue to keep client confidences
45
Q

Lawyer as Advocate

A

Lawyer must zealously represent client, but must not:

  • file frivolous claims or defenses
  • act to slow litigation (i.e., must expedite litigation)
  • interfere with right of adversary to investigate/obtain evidence
46
Q

Lawyer’s Obligations to the Tribunal

A

A lawyer cannot knowingly:

  • make false representations
  • fail to disclose material fact when necessary to avoid assisting crime or fraud by client
  • fail to disclose controlling legal authority
  • offer false evidence

A lawyer must take reasonable remedial measures for lawyer’s own false representations; offering false evidence; or unwittingly assisting client’s crime/fraud before the tribunal.

  • duty to take remedial measures ends with the end of litigation.
47
Q

Impartiality and Decorum of the Tribunal

A

A lawyer may not seek to improperly influence judge, juror, etc.

  • no ex parte communications with judge or jurors
48
Q

Truthfulness in Statements to Others

A

A lawyer shall not knowingly

  • make a false statement of material fact to third parties
  • fail to disclose material fact to avoid assisting crime or fraud by client
49
Q

Communications with Represented Person

A

A lawyer cannot communicate with persons represented by counsel unless:

  • consent of person’s attorney
  • authorized by law (e.g., prosecutor in criminal investigation)

Even if represented person initiates communication, lawyer must immediately terminate conversation/communication.

For organizational parties, “persons represented by counsel” includes:

  • current management & employees whose job involves regular communications with organization’s lawyer about the case
  • lawyer must: disclose her identity and adverse interest and ask employee if she fits into the “persons represented by counsel” category
50
Q

Communications with Unrepresented Persons

A

A lawyer may approach unrepresented persons, but:

  • lawyer cannot imply that she is a disinterested party
  • lawyer has a duty to correct misunderstandings
  • lawyer cannot give legal avice, must advise individual to seek counsel
51
Q

Respect for Rights of Third Persons

A
  • A lawyer may not seek to embarrass, delay, or burden third person
  • A lawyer cannot seek privileged/protected information, unless privileged is waived.
  • If lawyer receives protected/privileged information, lawyer must terminate communicate and notify court and privilege holder.
52
Q

Responsibilities of Supervisory Lawyer in a Firm or Association

A

A supervisory lawyer must:

  • maintain direct supervision of legal and non-legal staff
  • make reasonable efforts–policies, procedures, oversight–to ensure compliance with rules of professional conduct by subordinate staff

A subordinate’s ethical violations are imputed to supervisor if he:

  • ordered improper conduct
  • ratifies improper conduct
  • fails to take remedial measures that might have mitigated or avoided the consequences
53
Q

Responsibilities of a Subordinate Lawyer in a Firm or Association

A

A subordinate lawyer is responsible for compliance with ethical rules.

  • following orders is no excuse
  • subordinate lawyer may rely on reasonable advice from supervisor
54
Q

Unauthorized Practice of Law

A

A lawyer cannot assist unlicensed individual in practicing law.

  • Practicing law is any action that calls for professional legal judgment.
  • Beware of clerks, secretaries, or paralegals with too much autonomy.
55
Q

Lawyer Advertising

A

Lawyer advertising is protected as commercial speech under First Amendment–a state can ban false or misleading ads.

A statement in lawyer advertising is misleading if:

  • contains a material misrepresentation or omission
  • creates unjustified expectations
  • suggests results by violating the ethical rules or the law
  • compares services with other lawyers, unless comparison can be factually substantiated
  • states success record, unless conspicuously states that each case is different and lawyers past record is no assurance of future performance
  • uses actors as clients

All ads must be retained for three years. And:

  • If snail mail, envelope must state: “advertising material”
  • Lawyer’s name must appear in ad
  • No fee ads must discuss expenses
  • Cannot claim specialty or expertise, can state “areas of practice”
  • Lawyer cannot pay for recommendations.
    • except non-exclusive reciprocal referral agreements with non-lawyer professionals IF client informed of agreement
56
Q

Solicitation for Business

A

Lawyers may not engage in direct solicitiation for business.

  • direct= in person, live telephone, real-time electronic contact
  • written solicitation is permitted
  • direct solicitation is permitted for close friends, family, charity, public legal services organization

No solicitation at all of:

  • disabled (mentally) persons
  • persons who have requested not to be contacted.
57
Q

Firm Names & Letterheads

A
  • Jurisdictional limits must be stated
  • Public officials not working for firm must be removed promptly
  • May not imply connection to government agency
58
Q

Professional Independence of Lawyers

A
  • A lawyer must not share fees with non-lawyers.
  • A lawyer cannot form a partnership with a non-lawyer if the activity of the partnership consists of the practice of law.
  • Non-lawyer cannot have any ownership interest in a for-profit law practice
59
Q

Duty to Report (a/k/a Snitch Rule)

A

A lawyer must report to appropriate disciplinary authorities conduct of another lawyer which raises serious questions of the other lawyer’s honesty, trustworthiness, or fitness as a lawyer, or substantial questions of a judge’s fitness to hold office.

  • disclosure of confidential information learned in a lawyer or judge assistance program is not required.
60
Q

Catch-All Provision: Misconduct

A

A lawyer violates the catch all rule by dishonesty to anyone (including client), general misconduct in personal or professional life, or manifesting prejudice in a professional capacity that is prejudicial to the administration of justice.

61
Q

Special Responsibilities of a Prosecutor

A
  • Prosecutors may not prosecute without probable cause
  • Must advise and give defendants opportunities to retain counsel
  • May not seek waiver of important pretrial rights from unrepresented defendant
  • Must disclose exculpatory information
62
Q

Trial Publicity

A

A lawyer may not make statements, during a criminal or civil trial, that

  • are reasonably expected to create material prejudice:
  • about character or testimony of a party, witness, or suspect
  • criminal defendant’s confession or silence
  • reference to physical evidence or testing
  • opinion of criminal guilt or innocence

Lawyer may discuss trial schedule or public record information.

63
Q

Required Writings

A

Where writing is preferred, but not required:

attorney’s fee agreement

Where agreement must be in writing and signed by client:

contingent fee agreement

Where the agreement must be confirmed in writing

joint representation

waiver of conflict

Professional Responsibility (1 decks)

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