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Virginia professional responsibility > professional responsibility > Flashcards

professional responsibility Flashcards

1
Q

Duties to clients

A

confidentiality
loyalty
financial responsibility
competence

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2
Q

duties to courts, adversaries, legal profession, and the public

A

candor/truthfulness
fairness
dignity/decorum

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3
Q

mnemonic for duties of attorney

A

clients love fierce counsel, courts feel differently

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4
Q

duty of confidentiality

A

do not reveal any information protected by attorney-client privilege, gained through the professional relationship that would harm or embarrass your client, or that your client has requested to be kept confidential. you must take reasonable steps to prevent inadvertent disclosure. the duty covers information from a consult and continues after client dies

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5
Q

exceptions to duty of confidentiality

A

client consent,

defending yourself against malpractice, disciplinary proceeding, or disclosure necessary when client refuses to pay your fee and you have to bring suit - but only allowed to reveal info necessary to establish claim or defense

running your office - can reveal info that you reasonably believe will be confidential for programs necessary for data processing and case management

preventing harm

compelled by final order by court of law

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6
Q

when can you reveal confidential information to prevent harm

A

must reveal client’s intention to commit crime that is reasonably certain to result in death or substantial injury to another’s body, finances, or property and reveal the information necessary to prevent it.

if no crime is involved, may reveal confidences to prevent death or substantial bodily harm

but, first must if feasible advise client of possible legal consequences, urge him not to commit crime, and warn him that you must reveal intention to commit crime if not abandoned

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7
Q

concurrent conflict of interest

A

if interest of another client, yourself, or a third party creates a significant risk of materially limiting your representation, or your representation of one client is directly adverse to another

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8
Q

imputed disqualification

A

lawyers associated together in a firm share each other’s conflicts. conflicts are imputed when you know or should reasonably know of a colleague’s conflict, so failing to check for conflicts can be a violation

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9
Q

client consent to conflicts

A

you reasonably believe you can represent everyone competently and diligently despite a concurrent conflict

you consult with each affected client. if your duty of confidentiality prevents you from full disclosure, consent may not be possible.

the client consents, confirmed in writing (email memorializing consent is sufficient)

does not work for representation that is directly adverse to one another

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10
Q

when is representation prohibited

A

if prohibited by law or if the representation involves assertion of a claim by one client against another client that you represent n the same case pending before a tribunal

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11
Q

opposite sides in same proceedinig

A

you cannot represent opposing parties in the same litigation before a tribunal.

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12
Q

opposing current client in another matter

A

representation adverse to a current client in a different matter is allowed if all clients consent. so if your firm does transactional real estate for Texaco, you could take a labor claim against Texaco if all parties consent

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13
Q

Two clients with inconsistent position

A

positions in litigation generally don’t create conflict, but if either client would be disadvantaged, need consent.

so can argue for an against an act in two different appeals

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14
Q

representing multiple clients in the same matter

A

this raises significant risks that your service for one client may become materially limited as a result of other’s interest. these potential conflicts generally require disclosure and consent.

however, have to withdraw from representation if one client gives you information that would make his interests directly adverse to the other (representing a person and their insurance provider in malpractice action and the person informs you that his insurance did not cover his medical practices against the plaintiff).

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15
Q

new clients in matters related to former clients

A

if confidential info from a former client might be relevant to a new client’s matter, you may be violating continuing duties of confidentiality and loyalty to former client.

Cannot take on new client with interests materially adverse to former client without consent of both. use of non-public, confidential information against a former client requires reasonable consent

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16
Q

former government lawyers that move to public practice

A

if you were a government lawyer who worked personally and substantially on a matter, you cannot work on that same matter in private practice without government consent. matter = specific dispute between specific parties over specific issues

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17
Q

imputed disqualification for former government lawyers

A

new firm can work on case despite imputed conflicts by government lawyer if:

former government lawyer is screened off

former govt lawyer does not share any part of fee in the matter (though salaries or partnership shares are okay)

former government employer is informed

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18
Q

representation by third party neutrals who worked on case

A

former judges, clerks, arbitrators, and other third party neutrals who worked on a matter will require consent of all parties to judicial proceeding

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19
Q

gifts to the lawyer

A

must not solicit substantial gift from client or draft legal instrument for client who is not your close relative if it provides a substantial gift to you or your relative

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20
Q

limiting liability

A

you cannot limit client’s right to report you for professional misconduct or cooperate in an investigation. You cannot limit your malpractice liability when you enter into a relationship with your client, unless you are an employee of the client and the client is independently represented in making the agreement

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21
Q

publication rights contracts

A

cannot purchase or accept as payment the rights to publish a client’s story before your representation has ended

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22
Q

use of information

A

use of confidential information to a client’s disadvantage violates the duties of loyalty and confidentiality unless the client consents

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23
Q

financial assistance to client

A

cannot give client money unless advancing court costs and fees in contingent fee arrangement and court costs and litigation expenses for an indigent client

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24
Q

business transactions with client

A

First Discuss Over Coffee

can enter into deals with clients if: the terms are Fair to the client, Disclosed in understandable writing, the client is advised to seek Outside counsel, and your client provides Consent ini writing

may accept stock in company as payment for services if fair and reasonable under circumstances known to lawyer

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25
Q

board service as a lawyer

A

service on the board of directors of a non-profit legal services organization is allowed. no bar to sitting on the board of a corporate client, but is discouraged because it may compromise loyalty and confidentiality.

if attorney has fiduciary duty to corporation due to membership on board, cannot represent an officer in an embezzlement investigation.

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26
Q

proprietary interests in litgation

A

should not have financial interest in subject of your work, but contingency fees or liens on your client’s property to secure your fees are okay

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27
Q

trial counsel as necessary wtness

A

rules bar you from appearing in the same trial as counsel and as witness unless your testimony is uncontested, about your legal services rendered, or if your distinctive value to the case means withdrawal would impose substantial hardship on the client. if testimony would prejudice client, consent is required.

not imputed to firm

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28
Q

close relationship with adversary’s lawyer

A

cannot oppose party represented by your relative without client consent. includes immediate family (parent, sibling, child, spouse)

not imputed to firm

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29
Q

payment for services from third party

A

payment only permitted with informed client consent. confidences cannot be shared and you must retain independence

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30
Q

organizational clients

A

lawyer must act in best interests of the entity

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31
Q

federal laws governing securities lawyers

A

if you are in house counsel and the COO violates securities laws, you must report to CEO or Chief Legal Counsel. f they do not respond, you must go to the highest authority in the company. f they do nothing and you reasonably believe it is necessary to prevent fraud, perjury, or substantial injury to the organization or investors, or to rectify financial injury from a violation, then you may disclose confidential info to the SEC w/o client consent

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32
Q

Virginia rules on non-public entities

A

in representing a non-public company, you must minimize disruption and risk of revealing info to outsiders. if organization’s highest authority insists on actions likely to result in substantial injury to the organization, you may resign or decline to represent it in that matter

if the organization intends to commit a crime reasonably certain to result in substantial financial injury to another, you must reveal it

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33
Q

non-contingent fees

A

must explain amount, basis, or rate of your fee within reasonable time of taking a client, preferably in writing

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34
Q

contingent fees

A

fee agreements must be written, signed by client, and contain:

  • your percentage
  • what expenses will be deducted from the recovery
  • whether your percent is taken before or after expenses

at end of contingent fee matter, must give client written statement of outcome, how it was determined, and remittance made

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35
Q

limits on contingent fees

A

cannot agree to or collect contingent fees in any criminal case and most domestic relations case. limited exception to domestic bar for fair arrangements when adequate counsel would not otherwise be available, no prospects for reconciliation, any children are older, and fee is to collect child support, alimony, or determined property award

cannot have a bonus for winning a criminal case. if

if contingent fee is not in client’s best interest, should explain other fee arrangements and let client make an informed choice

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36
Q

termination of representation before contingency/judgment

A

if the client wins, the attorney can recover the reasonable value of his or her work before discharge

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37
Q

requirement for fees

A

attorney fees must be reasonable, taking into account labor, novelty, difficulty, skill and timing required, result obtained, the experience of and other demands on the attorney, fee arrangement, etc.

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38
Q

safeguarding client property

A

you have a duty to safeguard your client’s property by promptly storing it in a safe place, such as a safe deposit box

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39
Q

client trust account

A

put money held for a client or 3d party in a trust account in a financial institution that is approved by the VA Bar or by your client in writing. include money received. on your client’s behalf and his advances to you for costs, expenses, and unearned fees. Retainers are earned when paid.

Do not borrow or commingle funds w/ your personal money. you may deposit your money for bank service charges or to maintain a minimum balance, but once you earn that money back, promptly withdraw your deposited money

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40
Q

Fee splitting

A

it is generally okay to split fees w/ lawyers in your firm. you may split fees with lawyers outside your firm only if the total fee is reasonable, you disclose division w/ the client before rendering services, and the client consents, preferably n writing. fee split does not need to be proportional with work done.

fee splitting w/ non lawyers is not allowed

41
Q

exceptions to fee splitting for non lawyers

A
  • death benefits paid to deceased lawyer’s estate or heirs for the work
  • salaries and benefits paid to nonlawyers
42
Q

payment for referrals

A

not allowed, but may pay usual charges of a qualified lawyer referral service, expenses for advertising, and give nominal gifts of gratitude that are not intended or expected to be compensation

43
Q

partnership with nonlawyers

A

partnerships with non-lawyers in providing legal services is prohibited for any practicing lawyer. you can associate with a legal services organization or insurance plan but cannot allow it to interfere with your independent judgment in how to handle a matter

44
Q

Duty of competence

A

you have duty to render competent service to your client, meaning using legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. if you don’t know the. law, don’t take the work unless you can learn. it without undue expense or delay, or you work with a lawyer competent in the area

45
Q

duty of dilligence

A

duty to diligently, promptly, and zealously pursue your case to completion

46
Q

duty to communicate

A

duty to keep client informed, answer client communications, and convey settlement offers. if a settlement offer is made to joint clients, consult with all and be sure they agree on division of settlement before accepting

47
Q

accepting representation

A

generally free to accept or reject a case. no rules mandate you take a case, though you should volunteer 2% of your professional time annually to pro bono. You must reject a case if taking it would violate a law or ethical rule. typical problems are if you are not in the physical or mental shape to take the case

48
Q

decisions made by clients v. decisions made by attorney

A

client makes decisions about substantive rights (testifying in criminal case, accepting plea or settlement)

attorney makes decisions about legal tactics

49
Q

illegal conduct by client

A

may explain why a course of conduct would be illegal, but cannot assist client in conduct you know is criminal or advise how to act illegally and get away with it. if your client insists on unethical assistance, must withdraw

50
Q

mandatory withdrawal

A

must withdraw from pending case if fired by client or if continuing would violate a law or ethical rule (if client is using your services to commit crime or fraud)

51
Q

permissive withdrawal

A

may withdraw if you can do so without material adverse effect to your client. recognized reasons if your client persists in an illegal, unjust, imprudent, or repugnant course of action or fails to fulfill an obligation to you after reasonable warning, or if rep will unreasonably financially burden you, is unreasonably difficult, or if client has used your services for crime or fraud, or other good cause

52
Q

procedures to withdraw

A

if you are counsel of record in court, must get leave of court.

must provide timely notice to client, and in a reasonable time return any unspent fees and expense advances and all of the client’s property and materials, including work product. CANNOT hold client materials hostage to get paid

53
Q

duty of candor

A

cannot engage in conduct involving dishonesty, fraud, or misrepresentation

54
Q

duty to present facts and evidence truthfully

A

you must not make false statement of material fact or offer evidence you know is false to a tribunal or fail to correct any false evidence you have offered. fi you only reasonably believe evidence is false, you may refuse instruction to use it

55
Q

client perjury

A

must not knowingly facilitate perjury.

in civil case, must refuse to call witness, including client, if you know he intends to perjure himself. however, criminal defendants have a constitutional right to testify on their own behalf. if he intends to lie on stand, take reasonable remedial measures

56
Q

reasonable remedial measures

A

counsel your client to testify truthfully or not take the stand. if that fails, you should try to withdraw. if that fails (court won’t let you), tell the judge to avoid assisting in a criminal act.

57
Q

disclosing fraud of witnesses

A

if you have information clearly establishing a non-client has perpetrated a fraud on a tribunal where you are appearing, you must promptly reveal it to the tribunal, even if it requires disclosing confidential information

58
Q

counseling witnesses

A

you must not counsel or assist a witness to testify falsely or become unavailable.

59
Q

paying experts

A

you may pay basic expenses of witness and reasonable fees for expert witnesses as long as payment is not contingent on the content of the testimony

60
Q

reasonable belief that testimony is false

A

if you reasonably believe but do not know the testimony is false, may permit testimony, do not need to report.

61
Q

duty to produce evidence

A

you may not obstruct access to evidence or cause potential evidence to be altered or concealed, regardless of duty of loyalty.

62
Q

interference with evidence

A

if client tells you where gun is and your investigator finds the weapon but do not touch it, you do not have to tell authorities, court, or opposing counsel about it.

however, if your investigator actually retrieves the gun and examines it, the investigator could be compelled to produce it for the authorities and tell where it was found as you can be compelled to testify as to original location or condition of evidence you moved or altered. however, cannot reveal source of info about gun’s location

63
Q

ex parte proceedings

A

communications with the judge without your adversary present. ethical duties of candor and fairness to adversary require you to volunteer material information, trumping normal presumption that you not reveal facts harmful to your client. notice and copies must be given promptly to other parties

64
Q

duty to state the law truthfully

A

knowingly making a false statement of law is subject to discipline. be candid about the law and cite to adverse authority if controlling and on point. you may make non-frivolous, good faith arguments for modification of existing law

65
Q

duty to uphold law

A

if continued representation would require you to commit/assist in crime, must withdraw. if client persists in criminal acts but you are not assisting, you May withdraw.

if client is going to commit a crime that would cause death or substantial harm to another’s person, finances, or property and you cannot talk him out of it, must reveal information necessary

66
Q

rectifying fraud on tribunal

A

if you discover you have offered false evidence to a tribunal, you must take reasonable remedial measures. try to correct (counsel witness to recant), try to withdraw, or as last resort, disclose what is necessary to tribunal, even if confidential or privileged

67
Q

fraud on third party

A

if your client has perpetrated fraud on third party related to and during your representation, may reveal information necessary to establish and remedy fraud

68
Q

duty to preserve decorum and impartiality of tribunal

A

do not state or imply ability to influence improperly a tribunal, legislative body, or public official

do not make gifts or loans of value to court personnel if it could appear to be for influence

if you hold public office do not use position to obtain advantage for you or client if not in public interest

69
Q

improper influence on juries

A

cannot try to influence anyone improperly. before and during trial cannot directly or indirectly communicate with prospective or impaneled jurors or their families. after trial, can communicate with willing jurors

70
Q

duty to preserve decorum - trickery

A

no chicanery - trickery, referring to inadmissible material or matters unsupported by evidence, no asserting personal knowledge of facts at issue before jury

71
Q

duty to preserve decorum - treatment of others

A

refrain from abusive or obstreperous conduct. lawyer must stand firm against abuse by judge but should avoid reciprocation.

preserve tribunal’s dignity - do not make comments on qualifications or integrity of judge or officer with reckless disregard for accuracy

72
Q

duty to expedite cases

A

affirmative duty to expedite cases

duty to follow valid procedural rules and court orders unless you are making good faith challenge to validity. do not abuse or obstruct discovery

73
Q

ethical duties of judges

A

judges, including retired and substitute judges, are expected to maintain high standards of integrity and independence to promote public confidence and impartiality

74
Q

judicial conduct in court

A

in court, judges should avoid appearance of bias or prejudice, be fair and efficient, avoid ex parte communications, and avoid public statements about case

75
Q

when judges should disqualify themselves

A

judges should disqualify themselves if they have personal or financial interest in case or personal knowledge or prior involvement with it

76
Q

judge’s duties in outside activities

A

judges must report income from all sources, usually not accept substantial gifts or loans, avoid public orgs that practice invidious or illegal discrimination and political causes (although educational and charitable work is allowed) and not misuse judicial prestige to advance private interests

77
Q

duties for active judges

A

must not serve as private judge, arbitrator or mediator, practice law, or run for office

78
Q

duty of fairness

A

have duty to behave honestly in all dealings, both in and out of legal practice. do not commit deception or deliberately wrongful act that reflects badly on your honesty, trustworthiness, or fitness as a lawyer

79
Q

dealing fairly with others

A

do not threaten disciplinary, administrative, or criminal proceedings as leverage in a civil dispute. do not act or take position merely to harass or maliciously injure another.

80
Q

improperly received information

A

if you receive document or electronic info you know or should know is privileged and was inadvertently sent, you must immediately terminate review or use of it, promptly notify sender, and abide by their instructions to return or destroy it

81
Q

communication with adversaries and third parties

A

must not lie to people or mislead them as to your interests. must not violate legal rights of a person to obtain evidence or use means with no purpose but to delay, burden, or embarrass them

82
Q

dealing with represented people

A

if you know a person is represented by counsel on subject of your inquiry, must have consent of his counsel to contact him outside of formal discovery. exceptions are if you are authorized by law or if the person is asking for a second legal opinion.

83
Q

additional duties of prosecutors

A

prosecutors must have probable cause to prosecute cases and must timely disclose evidence they know is favorable to the defense

84
Q

dealing with the press

A

you have duty not to interfere w/ defendant’s right to fair trial. must avoid out of court statements that you reasonably should know have a substantial likelihood of interfering with fairness of the trial

85
Q

advertising

A

advertising cannot be false or misleading. do not mislead or omit material information, do not make unsubstantiated comparisons with other lawyers’ services or fees or report past results without details or disclaimers to prevent unjustified expectations. you may identify specialties or certifications as long as your statements are not false or misleading

86
Q

solicitation

A

Virginia permits face to face, telephonic, and real-time electronic contacts. however, you cannot solicit anyone who has let you know they do not want to be solicited or harass them with repeated communications if they don’t respond. your solicitation cannot harass, use undue influence or duress, or unwarranted promises of benefits

consider totality of circumstances including previous relationship, their physical and mental state, and your conduct

87
Q

advertising material

A

solicitation seeking professional employment on a particular matter must be conspicuously labeled as advertising material at the beginning of any written, recorded, or electronic communication. general announcements and responses to specific requests need not be labeled

88
Q

sanctions

A

most common sanctions for violating rules are disbarment, suspension, censure by courts or bars. may be ordered to limit your practice, pay fines/restitution to victims, enter rehab, take CLE or even retake the bar exam. Virginia sanctions attorneys, not firms, though some rules restrict firm behavior. may also be subject to state and federal court sanctions and civil and criminal liability

89
Q

duty to report misconduct

A

you must report to appropriate authority any other lawyer’s or judge’s violation of the rules if it raises a substantial question as to that person’s honesty, trustworthiness, or fitness as a lawyer.

exceptions - information is privileged because violating attorney is your client or you discovered it when helping attorney in approved substance abuse program

90
Q

what do you do if a client tells you about an attorney’s misconduct

A

if it involves confidential client information, you must have client’s consent before reporting. if you discovered violation when acting as mediator, parties must consent to report

91
Q

self-reporting

A

if you are disciplined in another jurisdiction, convicted of a felony, or convicted of an attempt or crime of theft, bribery, extortion, fraud, or perjury, you must report it

92
Q

unauthorized practice of law

A

unauthorized or unlicensed practice of law is forbidden to protect public from incompetence. you can be disciplined for assisting unauthorized practice of law by any person who is not n good standing in a bar

93
Q

multijurisdictional practice

A

if you are from out-of-state but licensed in good standing in another state or foreign country and not disbarred or suspended, may temporarily and occasionally practice in VA if: you associate with locally admitted lawyer who actively participates in matter or your services relate to ADR or the matter is reasonably related to your home state practice or is governed by international law

must notify client in writing that you are not licensed to practice in VA

94
Q

in house counsel

A

in house counsel who work only for their company may apply for corporate counsel certificate or register with the Bar to work in VA

95
Q

noncompetes

A

law firms cannot restrict your rights after termination. noncompetes are impermissible. restrictions on your practice as part of a settlement must be approved by tribunal or government entity

96
Q

leaving your firm

A

if you leave your firm or it dissolves, clients must be given specific notice, preferably in a joint statement telling them they are allowed to stay with firm, seek new counsel, or continue to have you as lawyer

97
Q

duties of subordinate lawyers

A

if you are under control or supervision of another attorney who ratifies or orders you to act in violation of an ethical rule and the violation is a clear violation, you are subject to discipline. if the ethical rule is a debatable problem, your supervisor is solely responsible

98
Q

supervisor’s ethical responsibility

A

if ratified unethical action or knew of conduct and failed to take remedial measures, he is in violation of ethical rules

supervisors of lawyers and nonlawyers must make reasonable efforts to ensure that conduct of all firm employees and outsources workers comport with professional obligations of a lawyer. you are responsible for violations of nonlawyers if you failed to take remedial action when you knew or should have known of the conduct

Virginia professional responsibility (1 decks)

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