Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Bar Stuff Fun Woo > Professional Responsibility > Flashcards

Professional Responsibility Flashcards

You may prefer our related Brainscape-certified flashcards:
MBE flashcards
1
Q

Conflict of Interest Language

A

A lawyer must not represent a client when there is significant risk that the representation will be materially limited by the lawyer’s personal interests. Can do if
The lawyer reasonably believes that he can competently represent each affected client
The representation is not prohibited by law
Does not involve asserting a claim by one client against another client represented by the lawyer in the same proceeding
Each impacted client gives written consent (in writing) and in California the disclosure has to be in writing too

California
If you have a personal relationship with a party or witness the lawyer has to provide written disclosure even if there is no risk that this will limit the lawyers ability to do their job

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

General Stuff

A

General prohibition of engaging in conduct involving dishonesty or fraud, so can mention this

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Actions that Harm the Justice System

A

Can’t engage in actions that harm the justice system like assisting a judge in violating the rules of professional conduct and implying you can improperly influence a judge

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Discrimination

A

ABA-lawyers can’t discriminate based on a protected characteristic
California-can’t engage in unlawful discrimination
Can’t permit unlawful discrimination
If you are both subject to investigation and being sued you have to tell the bar association

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Duties to Clients

A

Confidentiality
Loyalty
Financial
Competence

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Duties to the Court

A

Candor
Fairness
Dignity

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Mandatory Rejection or Withdrawal

A

Representation will lead to a violation of the rules of professional conduct
Lawyer’s physical or mental well being substantially impairs the lawyer’s ability to represent the client
Lawyer is discharged by the client
California-also requires you to withdraw if the litigation is only for the purpose of harassment or maliciously injuring another person

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Permissive Withdrawal

A

If they can do it without substantially hurting the client or
California says that you can do it if the client agrees except if the court says no (like it’s close to trial)
Good cause
Client is involved in criminal course of action using lawyer’s services
Has used lawyer to perpetrate a crime or fraud
Fails to fulfill obligation to lawyer (namely getting paid) but the lawyer has to give the client reasonable warning
Client is being unreasonably difficult
Repugnant action
Unreasonable financial burden on the lawyer

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Pot

A

California-says you have to tell a client when California law conflicts with federal law or tribal law

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Outside Reporting/Protecting Interest of Corporation

A

When you’re protecting a corp from itself, you can run it up the flagpole and if no one does anything about it then you go to an outside authority to the extent it will prevent substantial injury
California-doesn’t allow you to report outside cause they love confidentiality, just lets you withdraw

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Competence

A

You can learn or consult with another lawyer who is competent or if you’re not competent you can step in in an emergency
California-also says that you have to be emotionally and mentally able to do the work

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Diligence

A

Have to act with reasonable diligence regarding a client’s interest
California-only actionable if it’s repeatedly or intentionally or with gross negligence

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Communication

A

You need to communicate with your client—tell them of significant developments etc and promptly comply with requests for information from the court
You can delay transmitting info but you have to do it eventually
California-have to tell them if you don’t have liability insurance and if you lose it you have to tell the client
Always have to tell them immediately of proposed plea bargain and settlement offers (but if it’s a settlement offer they’ve already said if it would work or not then it’s not a significant development)
Can only delay if if they think the client would be likely to act in a way that would cause them imminent harm
Remember whenever it’s in writing the lawyer’s disclosure has to be writing too

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Confidentiality

A

Lawyer must not disclose any information relating to the representation of the client
Can’t use information that is not generally known to the clients disadvantage
And have to make sure that other people can’t access the information
There is implied authority to disclose or they can give you express authority

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Exceptions to Confidentiality

A

Prevent death or imminent substantial bodily harm
California-the harm has to be the result of a criminal act and the lawyer has to make a good faith effort to dissuade them from doing it and inform the client that they’re going to reveal the info
Prevent or rectify substantial financial loss
There is a crime or fraud that is going to result in great financial losses and the lawyer’s services were used in furtherance of
California-doesn’t exist in CA we don’t believe in this we believe in confidentiality
Also regarding malpractice stuff
Ethics advice isn’t officially recognized in CA but it does happen and it’s chill

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Direct Adversity Conflicts

A

Client will be directly adverse to another client who is represented by the lawyer or
There is a significant risk that the lawyer will be materially limited by the lawyers own interests or responsibilities
Like when they owe a duty to some third person
Close family relationships with opposing counsel
Financial interest in the matter
California makes you disclose relationships even if there isn’t significant risk, even things like being in a relationship with the client of the opposing party’s lawyer
They can still do it if
They reasonably believe that they can competently and diligently represent the client (reasonable lawyer standard)
The representation is not prohibited by law
Basically you can’t be on both sides of the litigation and that’s never consentable
Effected client gets informed consent, confirmed in writing
Examples of direct adversity
Multiple clients in the same matter whose interests are in actual conflict
Could involve a cross-examination of an existing client
Mere economic adversity isn’t enough—they can be economically adverse just not actually adverse
California-when you represent the insured the insurance company is also your client for conflicts except if it’s just to indemnify

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

Business Transactions with Client

A

First Discuss Over Coffee-fairness, disclosure, outside lawyer, consent
You can’t enter into a business relationship with a client unless
The terms are fair to the client
The terms and everything are fully disclosed in writing
The client is advised in writing that they should get independent advice
Informed consent in writing
It’s more things than you think like accepting stock as payment and buying or selling property to/from a client

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

Gifts from Clients

A

A lawyer can’t
Solicit a substantial gift from a client
Prepare an instrument giving a substantial gift to the lawyer (except if it’s your relative—different story)
California-you can do it even for not a relative if they were advised by an independent lawyer who provides a certificate of independent review

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

Gifts to Clients

A

Litigation
Can advance court costs and that can be contingent on winning
Indigent-can pay outright but only the court costs
Pro bono-can pay basic living expenses but you can’t like make a thing out of it
California
Not just litigation but all contexts
Can’t buy a potential client
It’s not just litigation expenses but all expenses
Can lend money to a client for any purpose if the client promises in writing to pay them back
Third party can also idk this is super confusing

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

Aggregate Settlement agreements

A

Inform both parties and informed consent in writing-just be transparent

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

Payment from Someone Other than the Client

A

Client informed consent
No interference from the other party
Protect information
CA-none is necessary if it’s requested by a court order or they’re rendering services on behalf of an agency or nonprofit

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

Settling Malpractice

A

Can’t settle if they’re unrepresented unless you advise them in writing to get outside counsel and they have time and opportunity to do so

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

Limiting your own Liability

A

If you try to do it they have to be independently represented
CA-can’t do it

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

Media Rights to a Case

A

Can only get them after the client’s matter has concluded including appeal
CA-no specific rule—you treat it as a business transaction

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

Foreclosure and Sale

A

CA only
Can’t purchase from a foreclosure sale when you or someone from your firm is representing them
Represent the seller if the purchaser is related to the firm or you

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

Sexual Relationships With Clients

A

Has to predate the representation

Not imputed but you still have to see if it will materially limit the representation

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

Conflict with Former Client

A

Can’t represent someone whose interests are adverse to your former client in a substantially related matter without informed consent
substantially related matter-same transaction or legal dispute or
There could be information overlap
Remember this can also be analyzed with the material limitation to your
If it’s an imputed conflict, you also have to look at where you acquired confidential information

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

When the Info Came from the Firm’s Representation and not Yours

A

If you just have confidential information then you can be screened and not share in the fee
And the former client has to be given notice

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

Firm and their Former Client

A

Can’t do it if one remaining lawyer has confidential information then no or if it’s the same or a substantially related matter
And as with all of these things, there needs to be informed consent, confirmed in writing

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

Prospective Clients

A

You receive confidential info from a consultation you can’t represent an adverse party later on if the information could be significantly harmful unless both consent
CA-it’s material information not just information that could be significantly harmful
Firm imputation
Disqualified lawyer tried not to get more information than necessary
DQd lawyer is screened and won’t share in the fee
Give written notice to the prospective client but you don’t have to do informed consent

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

Going from Gov to Private Work

A

Can’t have worked on something personally and substantially on a matter and creating a regulation isn’t a matter
Can also receive information that could be used to the material disadvantage even to the opposing party

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
32
Q

Going from Gov to Private Work

A

Can’t have worked on something personally and substantially on a matter and creating a regulation isn’t a matter
Can also receive information that could be used to the material disadvantage even to the opposing party

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
33
Q

Private Sector to Government Work

A

Basically the same conflict rules as normal

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
34
Q

Work as Judge or Clerk

A

Personal and substantial involvement is the issue

Unless all parties agree

35
Q

Fees and Property

A

ABA says you can’t charge an unreasonable fee
CA-illegal or unconscionable fees
ABA says you can’t do double billing
CA-can if the fee charged to each isn’t unconscionable
You tell both parties at the outset
And there was consent

36
Q

Communication of Fee

A

ABA-you only have to do it in writing if it’s a contingency agreement and if it’s a regular client and you’re doing the same thing for the same fee you don’t need to convey it every time
CA-if it’s gonna be more than 1k then it has to be in writing except
If the client is a corporation
They say in writing they don’t want the fee arrangement in writing
Same thing that they’ve done for the client again
Emergency
Impractical for whatever other reasons idk what that could be

37
Q

Advance Payments

A

Can require advance payments but you have to pay it back if you don’t earn the whole thing unless it’s a true retainer
CA-if it’s advance and not a true retainer if it’s gonna be non refundable you have to put that in writing

38
Q

Contingent Fees

A

Has to be reasonable (can’t do it if you know it’ll be like two hours of work)
CA-Limits on medical malpractice contingent fees
Has to be in writing listing how the fee will be calculated, how expenses will be deducted and before or after, what if any expenses client has to pay regardless of the outcome
CA-also have to say that it’s negotiated between the two and not set by law and how work not covered by the contingency will be calculated
You get fired, you’re still entitled to the value of your services, but only when and if the client recovers
No contingency fees in criminal cases or divorces when it’s based on getting a certain amount

39
Q

Handling Money

A

Have to put funds in a client trust account and interest goes to client and if the interest is too small you pool it and give it to the state Bar
CA-also for the benefit of a third party—not sure what the difference is between these things but idk
Advance payments go into client trust and is taken out by lawyer as it is earned

40
Q

Safekeeping of Property

A

Have to identify and label properties and securities of the client
Notify the client when you get property in which they have an interest and promptly deliver
Keep records for 5 years

41
Q

Fee Disputes

A

CA-you can agree in advance for how to resolve disputes rather than going with whatever mandatory procedure

42
Q

Splitting Fees with Other Lawyers Outside Firm

A

Can do it if
Fee is reasonable
It’s split in proportion to the services rendered or each lawyer assumes joint responsibility in the matter
The client agrees in writing
Basically you can’t do a referral fee
CA-you can do true referral fees but it has to be in writing, the client can’t be charged more to compensate for the referral fee and they have to agree in writing

43
Q

Splitting Fees with NonLawyers

A 
Can’t do it except
Paying a death benefit
Buying a law firm from a dead person
Compensation in a retirement plan for non-lawyer employees
Court awarded legal fees with a nonprofit
CA-can be settlement but has to be
Written agreement with org
Written consent of the client
Total fee isn’t increased
44
Q

Candor to the Tribunal

A

Can’t knowingly make a false statement of law or fact
Also have an affirmative duty
Correct false statements
Generally no duty to disclose facts that are bad for your client but in an ex parte proceeding you need to disclose all material facts
Have to disclose adverse legal authority if it is controlling and it’s directly adverse to your position
CA-specifically have a rule against misquoting

45
Q

Offering False Testimony

A

Can’t offer or put on the stand someone who you know if going to offer false testimony
If you think the testimony is false you need to take remedial action by
Urging them to stop
Maybe try to withdraw but that doesn’t really help
Disclose info to judge even if that goes against duty of confidentiality
CA-you can’t tell the judge-CA puts confidentiality over candor and the ABA doesn’t

46
Q

Perjury by Criminal Defendant

A

Regardless you have to let them testify (in CA), if you only think it might be you can just let them testify
If you know it is take the same remedial measures
You can take the remedial measures
CA-you just have to let them speak and say is there anything else you have to say and do it in narrative form
Duration-until the end of the proceedings, until it has been affirmed on appeal or the time for appeal has expired

47
Q

Frivolous Claims and Defenses

A

Can’t say something unless there’s a legal basis for it
But you can make a good faith argument for changing the law
But in criminal cases it’s a different story and you can make them prove every element of the case

48
Q

Expediting Litigation

A

Have to expedite litigation consistent with the interests of client
CA-can’t make any moves that have no other purpose than to delay

49
Q

Improper Influence

A

Can’t try to seek to have improper influence on a judge, agent of the court or a juror
CA-specifically limits the giving of anything of value to judges but they can contribute to campaign funds

50
Q

Contact with Jurors

A

No contact with juror or prospective juror about the case
CA-a lawyer not connected to the case must not communicate with a known juror about the case
The juror leaving the rose—you just have to tell the judge

51
Q

After Discharge of the Jury

A

Can talk to discharged jurors except when
Prohibited by law
They have said they don’t want to communicate
The communication involves duress or coercion

52
Q

Trial Counsel as Witnesses

A

You can only serve as a witness if
It’s relating to an uncontested issue
Will relate to the nature of legal services rendered in the case
Withdrawal would cause substantial hardship to the client
CA-instead it’s informed written consent

53
Q

Chicanery and Disruptive Conduct

A

You can’t assert
Personal knowledge of facts
Refer to inadmissible evidence
State a personal opinion about the guilt or innocence, culpability or the justness of a cause
CA says you just can’t do guilt or innocence
Disruptive conduct
CA-doesn’t have this rule for fear it would be interpreted too broadly

54
Q

Duties to Opponents-Access to Evidence

A

Have to give evidence when there is an obligation to produce
You have to give material evidence but you don’t need to tell confidential testimony
CA-can’t suppress evidence or advise a person to flee the jurisdiction

55
Q

Advising not to Give Information

A

You can advise a person not to give info iff
The person is a client or their relative, employee or agent
The lawyer thinks that their interests will not be adversely affected by this

56
Q

Paying Witnesses

A

Can’t induce witness to testify through payment but only can pay
Travel expenses
Compensation for loss of time for attending
Reasonable fees for expert witnesses

57
Q

Can’t Abuse Discovery Rules

A

ABA says you can’t file frivolous discovery requests

CA-says that doing this isn’t an ethical violation

58
Q

Threats to Gain Advantage

A

Can’t threaten criminal, administrative or disciplinary action to gain advantage for a client
If they really believe they’re doing something wrong they can obvs say they’re going to report it

59
Q

Special Duty to Prosecutors

A

Refrain from prosecuting if they know there’s no probable cause
They have to be advised of the right to counsel
Can’t seek a waiver of pretrial rights from someone unrepresented
Must disclose all the relevant information to the defense
No extrajudicial statements
Can’t subpoena a lawyer unless
Info isn’t privileged
Evidence is essential
No feasible alternative
CA-doesn’t give a shit about lawyer subpoenas

60
Q

Duty to Any Case

A

If they know of evidence that someone didn’t do it they have an affirmative duty to disclose this to the appropriate authority
If it’s in your jurisdiction, you have to tell the defendant and launch an investigation
And if it’s clear and convincing evidence you have to remedy it

61
Q

Trial Publicity

A

All you can do is respond to a war in the media

62
Q

Truthfulness in Statements to Others

A

Can’t make false statements of material fact to a third party over the course of representing a client but puffery is OK (estimates of price or intentions to settle or not)

63
Q

Client is Fruad-y

A

You can disclose when you’re avoiding aiding someone in a crime or fraud

64
Q

Communicating with a Person they know to be Represented by Counsel

A

Can’t communicate with anyone about the representation that they know to be represented by counsel unless
Person’s council gave permission
There is a direct authorization to do it
CA-there isn’t a prohibition on communicating with a public official or public entity

65
Q

Communicating with Corporation Represented by Counsel

A 
If it’s a corporation it’s a person
Who supervises the lawyer’s matter 
Has an authority to obligate
Their act or omission could be imputed to the organization
CA-slightly different but same result
66
Q

Communicating with an Unrepresented Person

A

Lawyer can’t imply that they’re disinterested
If they misunderstand the lawyer’s role then the lawyer has to correct this issue
They can’t give legal advice except to say that they should get a lawyer

67
Q

Lawyer as Third Party Neutral

A

They have to say that they’re not representing them and make sure they understand

68
Q

Acting as Advocate in Legislative and Admin Proceedings

A

If they’re representing someone they have to say that they are but they don’t need to disclose identity and the same rules regarding relationship to the court applies

69
Q

Respecting the Rights of Others

A

If there’s a mistake in sending the info (accidentally cc’d on an email that you shouldn’t have been) then you have to notify them promptly
CA-it applies only when they know or should have known it’s work product
They have to try not to read any more of it than necessary and then notify the sender

70
Q

Advertising

A

No false or misleading statements
Can’t state or imply in advertising things that aren’t true
Certification of specialist
CA-more specificity
No saying that you can provide services in a language other than english if you can’t or you have to say the level of the person at the firm who can provide services in a language other than English

71
Q

California Advertising Specifics

A

Can’t have
Guarantee on an outcome of a case
Words or symbols that indicate quick cash
Impersonation without disclosing it’s an impersonation
Have to disclose that it’s a dramatization
Contingent fee offer that says that doesn’t disclose you have to pay if you don’t recover if that’s the arrangement

72
Q

Solicitation

A

If there’s pecuniary gain on the line you can’t solicit with live, in person or real time auditory communications
CA-can also include text messages
Some targets are considered less vulnerable
Another lawyer
Close family or people with whom you have a close relationship or
person who routinely uses the type of legal services offered by the lawyer

73
Q

Other Forms of Communication

A

Can send emails etc to people with a known legal problem

CA-Has to say advertisement on it

74
Q

Can’t Solicit

A

If someone says they don’t want solicitation

Or it involves harassment

75
Q

Reciprocal Referral Agreements

A

To like a dr or whatever

Can’t be exclusive and the client must be informed

76
Q

Unauthorized Practice of Law

A

Lawyer Can’t
Practice law in a jurisdiction where they aren’t licensed
Assist in the unauthorized practice of law

Permissible Lay Activities
Real estate broker filling in blanks
Tax adviser doing tax return
Disseminating information to the general public

Impermissible
Drafting sales agreement
Lay tax advisor counseling on legal implications of their conduct
Estate planner drafting wills

77
Q

California Disbarred or Inactive Lawyer

A

CA-Inactive lawyer can’t do most things like a layperson
But they can do research and drafting in clerical assistance terms or go to depo to do clerical work
A lawyer has to tell the bar that they’re using an ineligible person
Don’t need to tell them if it’s just typing or maintenance

78
Q

Out of State

A

Gotta get pro hac vice
But if it’s reasonably related to the home state practice then pro hac isn’t necessary
Also can be a different story if they’re in-house counsel ie employed by their only client
Limited branch of law like patent prosecution

79
Q

Relationships with Nonlawyers

A

Can’t form a partnership with a nonlawyer if any of their activities include the practice of law
Law firms should not
Have a nonlawyer own an interest
Or is a corporate officer
Has the right to direct or control lawyers

80
Q

Law Related Services

A

If you provide law related services then you’re still subject to the rules of professional conduct
When the lawyer provides services that aren’t distinct from legal services
Or it’s provided by an entity controlled by the lawyer
Unless the lawyer takes reasonable measures to ensure the client knows are not legal and the attorney-client relationship doesn’t apply

81
Q

Restricting Rights to Practice

A

Can’t have non competes except
When it’s about retirement benefits
It’s part of a settlement agreement

82
Q

Supervisors and Subordinates

A

Subordinate will not be penalized if they go along with a reasonable resolution of an arguable question of professional duty
If you ordered someone’s misconduct or ratified it or
Someone else fucked up and you knew it and failed to take remedial action

83
Q

Have to Make Sure You’ve Trained Subordinates

A

Have to take reasonable measures to make sure that lawyers and nonlawyers are are acting in accord with professional conduct standards

84
Q

Self-Regulating

A

If you know and it raises a substantial question as to their trustworthiness or fitness to be a lawyer they must report unless
They got it from lawyers seeking help
Or it would breach duty of confidentiality
CA-says that you should self report

Bar Stuff Fun Woo (3 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions