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Professional Responsibility Flashcards

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1
Q

Can a lawyer have an non-compete?

A

No. Can participate in an agreement that restricts the right to practice after end of the r’ship

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2
Q

When does a CONCURRENT CONFLICT OF INTEREST exist?

A

If 1. the rep’n of a client will be DIRECTLY ADVERSE to another C, or

  1. there’s SIGNIFICANT RISK that rep’n of a C will be MATERIALLY LIMITED by the L’s responsibilities to another C, a former C, or a 3rd person
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3
Q

How can a concurrent conflict of interest be waived?

A
  1. L REASONABLY BELIEVES that he will be able to provide COMPETENT and DILIGENT rep’n to each affected C
  2. Rep’n NOT PROHIBITED BY LAW
  3. Rep’n doesn’t involve assertion of a claim by 1 C against another C who’s represented by the L in the same case pending before a court or other tribunal, and
  4. Each affected C gives CONSENT AFTER CONSULTATION, and consent is MEMORIALIZED IN WRITING.
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4
Q

What is general rule about representing co-defendants in criminal case?

A

Generally a L should decline. UNLESS common rep’n of people having similar interests is proper if RISK OF ADVERSE EFFECT IS MINIMAL AND WAIVER REQ’TS MET.

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5
Q

In waiver of concurrent interest, what should the consultation w/ C’s include?

A
  1. Discussion of any LIMITATION ON SCOPE OF REP’N made necessary as a result of the common rep’n
  2. that as between commonly represented C’s, the ACP does NOT ATTACH, and
  3. that should a conflict arise, L must W/D from rep’n from at least 1, if not both, parties
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6
Q

Can informed consent by withdrawn?

A

Yes

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7
Q

What must L do if client withdraws informed consent to rep’n w/ concurrent conflict of interest?

A
  1. Evaluate whether joint rep’n can continue and

2. Secure NEW INFORMED CONSENT from each C

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8
Q

What’s ACP rule as to joint clients?

A

No ACP as to joint clients during the period of rep’n

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9
Q

What does L’s duty of confidentiality cover?

A

Info covered by ACP

Other info gained in the professional r’ship that C has requested be held in confidence or disclosure would be embarrassing or detrimental to C

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10
Q

When may a L reveal info?

A

C CONSENTS AFTER CONSULTATION

Other authorized disclosures:

  1. disclosure is IMPLIEDLY AUTHORIZED in order to carry out the rep’n
  2. disclosure req’d by LAW OR CT ORDER
  3. disclosure is necessary to COLLECT FEE OR PROTECT THE LAWYER
  4. C has COMMITTED A FRAUD ON A 3RD PARTY relating to the rep’n
  5. disclosure is necessary to PROTECT C’S INTERESTS UPON L’S DEATH, DISABILITY OR INCAPACITY
  6. disclosure necessary to PREVENT REASONABLY CERTAIN DEATH OR SUBSTANTIAL BODILY HARM
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11
Q

When MUST a L reveal information?

A

L MUST reveal:

  1. C’s STATED INTENTION TO COMMIT A CRIME, and info necessary to prevent the crime is reasonably certain to result in DEATH OR SUBSTANTIAL BODILY HARM to another or SUBSTANTIAL INJURY TO THE FINANCIAL INTERESTS OR PROPERTY of another (but must 1st try to warn and deter the C from committing the crime if feasible), and
  2. Info concerning ANOTHER L’S MISCONDUCT (but C must consent to disclosure if info protected by RPC)
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12
Q

What MUST a L do before they’re allowed to reveal information about a C’s intention to commit a crime that would result in substantial bodily harm or substantial injury to financial intersts?

A

Must first 1. ADVISE C OF POSSIBLE LEGAL CONSEQUENCES

  1. URGE them not to commit crime
  2. Advise that L must reveal C’s intention unless abandoned
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13
Q

What a rules regarding false evidence?

A
  1. L MUST refuse to offer E that he KNOWS is false regardless of C’s wishes
  2. L MAY refuse to offer E he REASONABLY BELIEVES is false
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14
Q

What’s rule regarding the obstruction of another party’s access to E/docs?

A

L shall not OBSTRUCT another party’s access to E or ALTER, DESTROY OR CONCEAL a document or other material having potential evidentiary value for the purpose of obstructing a party’s access to E.

L shall not counsel or assist another person to do any such act.

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15
Q

What’s rule concerning counseling/assisting C to commit crime or fraud?

A

L shall not counsel a C to engage, or assist a C, in conduct L KNOWS is criminal or fraudulent, but a L MAY discuss the legal consequences of any proposed course of conduct w/ a C and may counsel or assist a C to make a good faith effort to determine the validity, scope, meaning, or application of the law.

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16
Q

What should L do when he knows that a C expects assistance that’s not permitted by RPC or other law?

A

CONSULT w/ C re RVT limitations on L’s conduct

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17
Q

What should L do if impermissible conflict arises after rep’n starts?

A

WITHDRAW

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18
Q

What’s the rule regarding L who has formerly represented a C?

A

Shall not 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 present and former C consent after consultation)

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19
Q

Rule regarding whether L can represent a C when he will likely be a W

A

L shall not act as an advocate in an adversarial proceeding in which L is likely to be a necessary W

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20
Q

What’s the duration of ACP?

A

Continues INDEFINITELY, even after death of C

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21
Q

When is a L’s communication false or misleading?

A

When it contains a MATERIAL MISREPRESENTATION OF FACT OR LAW, or

OMITS A FACT necessary to make the stmt considered as a whole NOT MATERIALLY MISLEADING

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22
Q

Can a firm name include deceased members?

A

Yes, if there’s been a continuing succession in the firm’s identity

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23
Q

Can firms use the names of a L not associated w/ the firm?

A

No

24
Q

May L solicit potential clients that need legal services in VA?

A

Yes. Only disallowed when:

  1. Person has told L she DOES NOT WANT TO BE SOLICITED by the L
  2. Solicitation involves HARASSMENT, undue influence, duress, or unwarranted promises of benefits
25
Q

What must accompany any WRITTEN, RECORDED OR ELECTRONIC communication from a L soliciting professional employment from a potential C known to be in need of legal services?

A

Must conspicuously display the words ADVERTISING MATERIAL on outside envelope, beginning/end of any recorded/electronic communication

Does not apply when recepient is:

  1. a L
  2. Has r’ship w/ L (familial, personal, prior professional r’ship)
  3. has had PRIOR CONTACT w/ L
  4. is contacted pursuant to COURT ORDER
26
Q

Can L allow his legal services to be used to further criminal or fraudulent conduct?

A

No

27
Q

What’s rule re whether a L can communicate w/ person who’s a member of an organization that L is suing (when conversation is about subject of the rep’n)?

A

Generally, L for a party is prohibited from communicating w/ person’s in the organizations CONTROL GROUP

BUT, doesn’t apply to FORMER EMPLOYEES (even if they were member’s of control group)

28
Q

Must a lawyer disclose that they’re representing a party when talking w/ unrepresented party?

A

Yes, in dealing on behalf of client w/ an unrepresented person, L shall not STATE or IMPLY that they’re disinterested. When L KNOWS or REASONALY SHOULD KNOW that unrepresented person misunderstand’s L’s role in the matter, L shall make RSN EFFORTS to CORRECT the misunderstanding.

29
Q

What is L’s responsibility re truthfulness of statements to others (whether made by L or C)?

A

L must not knowingly:

  1. make a FALSE STMT OF FACT OR LAW, or
  2. FAIL TO DISCLOSE a fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by C
30
Q

What must L do if E is offered he later discovers to be false?

A

Take REASONABLE REMEDIAL MEASURES, such as seeking W or C cooperating in correcting false E.

If that fails, he may ask to WITHDRAW

31
Q

When must L NOT offer E?

A

When he KNOWS IT’S FALSE

Must try to convince C not to offer false E.

32
Q

What must L do if C insists on offering false E after L has tried to stop them?

A

Take REASONABLE REMEDIAL MEASURES, then may ask to WITHDRAW

33
Q

When MAY L refuse to offer E?

A

When L REASONABLY BELIEVES it’s FALSE (EXCEPT IN CRIMINAL CASES)

34
Q

In CRIMINAL case, can L stop C from offering false E (reasonably believes vs. knows)

A

KNOWS: MUST try to CONVINCE C not to testify falsely

REASONABLY BELIEVES: nothing….must allow C to testify

35
Q

When may L enter into a business transaction w/ a C or knowingly acquire o’ship or other pecuniary interest adverse to C?

A
  1. Transaction is FAIR and REASONABLE TO THE C and terms are FULLY DISCLOSED and transmitted in writing
  2. C is given chance to RSN OPPORTUNITY TO SEEK ADVICE OF INDEPENDENT COUNSEL, and
  3. C gives WRITTEN CONSENT
36
Q

Who has responsibility for making decisions affecting the merits of a case? Who decides on settlement offers and whether to waive affirmative defenses?

A

CLIENT

37
Q

Can a L’s failure to act with diligence and promptness be excused by things like personal health or work issues?

A

No. L shall act w/ RSN DILIGENCE and PROMPTNESS in representing C.

L shall pursue matter on behalf of C DESPITE OPPOSITION, OBSTRUCTION, or PERSONAL INCONVENIENCE to the L

38
Q

May a L prospectively limit their personal liability for malpractice when entering into a representation agreement?

A

No, strictly prohibited

39
Q

What type of cases may not be subject to contingency fees?

A

Domestic relations

Criminal

40
Q

What are the requirements to enter into contingency fee arrangement?

A

Must be:

  1. IN WRITING, including
  2. CONTINGENCY RATE
  3. How fees are CALCULATED
  4. whether fees and expenses will be taken BEFORE OR AFTER CONTINGENCY RATE
  5. fee terms must be REASONABLE
41
Q

Must non-contingency fee agreements be in writing?

A

Not req’d, but suggested that agreement be reduced to writing at time rep’n entered into, or shortly thereafter

42
Q

Requirements of a fee agreement

A

Terms must be DISCLOSED to C

C must CONSENT

must be REASONABLE

43
Q

Do VA RPC prohibit sexual relations w/ C?

A

NO, but could still cause problems (Ls must maintain professional conduct and avoid appearance of impropriety)

44
Q

When L and C have dispute over funds owed, what must L do (if she received judgment or settlement already)?

A

Release the amount not in dispute to the C and retain the rest of the disputed amount in trust account

45
Q

What are L’s duties re CANDOR TOWARD TRIBUNAL?

A

L can’t KNOWINGLY:

  1. make FALSE STMT OF FACT OR LAW to tribunal
  2. fail to disclose A FACT to tribunal when disclosure is necessary to avoid assisting a crime or fraud by C
  3. fail to disclose CONTROLLING LEGAL AUTHORITY that’s adverse to C’s position if not disclosed by opposing L
  4. Offer FALSE EVIDENCE
46
Q

What’s standard regarding the claims/defenses a L can bring?

A

Must not bring or defend proceeding, or assert an issue therein, unless it’s NOT FRIVOLOUS

47
Q

What does a L’s signature on pleading/motion constitute:

A
  1. he has READ THE PLEADING, MOTION, OR OTHER PAPER
  2. to the best of his knowledge, info and belief, it is WELL GROUNDED IN FACT and WARRANTED BY EXISTING LAW OR GOOD FAITH ARGUMENT
  3. not for any IMPROPER PURPOSE

Same standard applies for L’s ORAL MOTION

48
Q

What should court do if it finds L violated rule about L’s signature on pleading (that it wasn’t grounded in fact or warranted by existing law)?

A

court SHALL impose sanction on L or represented party (or both)

says APPROPRIATE SANCTION (may include order to pay other side for expenses resulting from that filing)

49
Q

Can a court prohibit a lawyer from practicing in front of it?

A

Yes, for a sanctions violation

50
Q

What should a judge do if he has reliable info L has violated RPC?

A

SHOULD inform the state bar if it there’s a question as to L’s HONESTY, TRUSTWORTHINESS OR FITNESS as a L

51
Q

Can law firm use the name of a deceased partner?

A

Yes, as long as he was a partner at the time of his death and the name is used continuously.

52
Q

When a judge finds a lawyer guilty of summary contempt of court, what punishments may the judge impose immediately and w/o empaneling a jury?

A
  1. BAN lawyer from practicing in that courtroom
  2. up to 10 DAYS JAIL
  3. up to $250 FINE
53
Q

Can a judge impose sanctions SUA SPONTE when a L has filed pleadings and objections he knew were without merit?

A

Yes. No need to wait for issue to be raised by other party.

54
Q

What sanctions are VA courts authorized to impose (for professional responsibility violations)?

A
  1. Striking pleadings
  2. Staying further proceedings until order is complied with
  3. Dismissal
55
Q

Is insulting language towards the court or misbehavior of an officer of the court grounds for finding someone guilty of summary contempt and imposing punishment?

A

Yes

56
Q

What’s L’s obligations when C wants to commit a crime?

A
  1. Counsel C that action proposed would be crime,
  2. Advise her to w/d from her plan
  3. Inform her he must report the plan
    * If C insists on crime, L must report to law enforcement and permits him to w/d
57
Q

When must a L notify a corporation when it wants to talk to an EE?

A

When that EE is part of the corporation’s CONTROL GROUP.

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