Brainscape's Knowledge GenomeTM

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


See full index

Selected Topics Final > Professional Responsibility > Flashcards

Professional Responsibility Flashcards

1
Q

Advertising

A

Advertising is a general attempt to obtain business.

Protected commercial speech – so long as truthful and not misleading or deceptive.

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

California Prohibitions on Advertisements

A

(1) a guarantee or warranty of outcome,
(2) quick cash or a quick settlement,
(3) an impersonation or dramatization without disclosure, and
(4) a contingent fee offer that does not warn about litigation costs

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

Solicitation

A

Targeted communication to a specific person that lawyer knows or should know needs legal services.

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

General Rule re: Solicitation

A

NO live person to person contact unless:
(1) relatives
(2) current & former clients

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

Targeted Direct Mail

A

ABA: OK if truthful and non-deceptive, absent knowledge they dont want it

CA: “ADVERTISEMENT”

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

Communicating Fees to Clients

A

ABA: preferably in writing, before or within reasonable time after starting rep

CA: In writing if fee over $1k

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

ABA Financial Assistance

A

Lawyer may not provide financial assistance to a client during litigation, except:
(1) advance court costs for contingency,
(2) payments of indigent clients’ costs.

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

CA Financial Assistance

A

May not provide financial assistance in ALL contexts, not just litigation

Permits lending money IF client gives lawyer written promise to repay, and that writing complies with other rules.

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

Contingent Fees

A

Contingent fee agreement must be in writing signed by the client, and must state:
(1) how the fee is to be calculated;
(2) what expenses to be deducted;
(3) gross or net; and
(4) what expenses the client must pay, whether or not she wins the case.

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

Prohibited Contingent Fees

A

ABA/Cal prohibit contingency fees in
(1) criminal cases and
(2) domestic relations cases if fee is contingent on
(a) on securing divorce, or
(b) support

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

Fee Splitting w/ Non-Lawyers

A

The ABA and Cal rules prohibit L from splitting fees with a non-lawyer or paying them referral fees

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

Fee Splitting

A

ABA: (1) client consents in writing;
(2) no fee increase
(3) either proportional or joint responsibiltiy

CA: (1) Client consents in writing;
(2) No fee increase
(3) Written agreement between lawyers.

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

Referral Fees

A

ABA - only nominal gifts to show appreciation

CA: can pay as “gratuity” for referral so long as not consideration and no expectation for payment to continue

BOTH: Permit reciprocal referral agreements with other lawyers and nonlawyer professionals, so long as (1) agreement non-exclusive, and (2) client is informed.

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

Conflict of Interest in General

A

Conflict of interest exists when
(1) representation of client directly and materially adverse to interests of another client, OR
(2) there is a significant risk that the representation of a client will be materially limited by L’s personal interests or interests of client, former client, or 3rd person.

CA - Promptly disclose

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

Waiving Conflict

A

(1) L reasonably believes he can competently and diligently represent each client;
(2) the representation is not prohibited by law; and
(3) the clients’ claims do not involve the direct assertion of a claim by one client against another; and
(4) L obtains the clients’ informed consents.

ABA - client consent confirmed in writing
CA - consent must by signed by client

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

CA - DIsclosure of Lawyer’s Relationship

A

Written disclosure to client required where
(1) L has, or knows another lawyer in L’s firm has, a legal, business, financial, professional, or personal relationship with or responsibility to a party or witness in the same matter; or
(2) another party’s lawyer
(a) is a spouse, parent, child, or sibling of L,
(b) lives with L,
(c) is client of L or lawyer in L’s firm, or
(d) has an intimate personal relationship with L.

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

Concurrent Conflict

A

Between or among attorney and client, current clients.

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

Former Clients

A

(1) current matter is substantially related to one in the past for a different client
(2) materially adverse.

Former firm - if attorney learned confidential information, then no

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

Conflicts Representing Orgs

A

L represents organization, not its employees (unless org asks attorney to represent its members).

Any client meeting with L should be advised that they are not L’s client, org is, so there’s no confidentiality (duty of honesty).

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

Imputed Conflicts

A

Conflicts of L are imputed to entire firm, except:
(1) former gov’t attorneys,
(2) conflict is a purely personal interest that wont conflict other Ls from competently/diligently representing client,
(3) conflict caused by close family relationship of L with other L representing different client in matter, and
(4) conflict resulting from sexual relationship with client.

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

Screening

A

Conflict will not be imputed if the conflict is with a former client of L while at a different firm, and
(1) timely screened,
(2) no part of the fee,
(3) written notice to affected former client including notice of opportunity to object/challenge in tribunal, and
(4) certifications of compliance regularly provided to former client.

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

Gov’t Attorney Conflicts

A

ABA and CA rules prohibit a lawyer from representing a client in connection with
(1) matter in which lawyer participated personally and substantially as gov’t officer or employee,
(2) unless appropriate gov’t agency gives informed, written consent.

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

Govt Screening

A

(a) screened from any participation in the matter;
(b) does not share in any part of the fee earned (exclusive of a salary or partnership share established by prior independent agreement); and
(c) the government agency is notified of the screening arrangement.

24
Q

Financial Interests

A

Whenever a financial transaction is involved:
(1) the transaction be fair and reasonable to the client,
(2) fully disclosed and transmitted in writing to the client,
(3) client must be informed in writing to seek advice of independent counsel and must be given reasonable opportunity to do so, and
(4) client understands lawyer’s role in transaction

25
Q

CA - Purchasing Property at Foreclosure

A

CA prohibits L from
(1) purchasing a foreclosure property where L or affiliate represents a party, and
(2) representing a seller where the purchaser is a spouse, relative, or employee of L.

26
Q

Solicitation of Gifts

A

ABA & CA:
unless L is related to the client or client is advised by independent counsel who certifies independent review, L must not
(1) solicit a substantial gift from a client or
(2) prepare an instrument giving the lawyer, or a person related to the lawyer, any substantial gift from a client (including a testamentary gift).

27
Q

Media Rights

A

Prior to conclusion of representation, L must not make or negotiate agreement giving L literary or media rights to an account based substantially on information relating to the representation.

NO CA rule on point.

28
Q

Sexual Relations

A

Sexual relations with client prohibited unless preexisting consensual relationship. Even if preexisting relationship, L should make sure L’s ability to represent client not affected by relationship.

CA - requires client statement before charging violation

29
Q

Client Property

A

L must
(1) Keep separate
(2) keep records
(3) keep client informed and deliver funds or other property to client or third person entitled to receive funds or property; and
(4) keep disputed portion of funds or property separate.

30
Q

Trust Account Rules

A

When L takes advance on fees to be earned, must go into trust account until fee is actually earned – work done and billed.

31
Q

Duty of Competence

A

Duty to have knowledge, skill, preparation, and thoroughness necessary to effectively represent client.

CA: L must have mental, physical, and emotional ability to perform L’s role.

32
Q

Duty of Care

A

Duty to pursue a matter diligently and with the skill and attention that one would give to one’s own personal matters.

Includes duty to research matters thoroughly, investigate facts, and spend time necessary to adequately prepare matter for client.

33
Q

Duty of Communication

A

L must keep client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. Includes:
(1) Explaining matters to allow client to make informed decisions
(2) Settlement and please
(3) Comply with Malpractice
(4) Must disclose lack of malpractice insurance

34
Q

Scope of Representation

A

May be defined and limited by the attorney-client agreement. Absent agreement, L should pursue client’s objectives in all reasonably available legal ways.

35
Q

Confidentiality General Rule

A

Includes the attorney-client privilege, the work-product privilege, and the broader duty to keep client confidences and secrets.

36
Q

Atty-Client Privilege

A

L cannot be compelled in a proceeding to disclose confidential communications with client UNLESS
(1) crime fraud – client seeks to employ L to assist in committing crime/fraud;
(2) issues relevant to breach of attorney-client relationship – malpractice, suit for fees;
(3) civil litigation between two former clients of the attorney.

37
Q

Atty Work Product Privilege

A

Duty to protect L thoughts, impressions, & litigation prep.

38
Q

Exceptions to Confidentiality

A

ABA. L May, but isn’t required to, disclose if:
(1) prevent death, GBI,
(2) final court order,
(3) fee collection litigation,
(4) ethics defense,
(5) malpractice defense,
(6) criminal defense,

CA allows (1), (2)-(6) through case law. But in CA, L must first
(1) persuade them not to do it or
(2) information Client of L’s ability to disclose.

39
Q

Reporting Out

A

ABA. Allows organization’s lawyer to report out (reveal confidential info) when lawyer believes violation of legal obligation by organization reasonably certain to result in substantial injury to organization.

CA: Does not allow reporting out. Lawyer’s only recourse after going as high as possible within the organization is to withdraw

40
Q

Duty to Prevent Unauthorized Practice of Law

A

L may not assist someone in UPL or permit them to do so.

Practice of law is defined by state law, and includes legal advice and counsel and the preparation of legal instruments and contracts by which legal rights are secured.

41
Q

Fee Splitting Between Lawyers and Non-Lawyers

A

Ls may not
(1) split fees with non-lawyers,
(2) pay “referral” fees to a non-lawyer, or
(3) engage in the practice of law or sharing of legal income with a non-lawyer – including a disbarred former lawyer or joint client who recommended the other client.

42
Q

Disbarred Attorneys

A

ABA: L may not employe disbarred attorney to do legal things.

CA: Cal allows employment of disbarred attorneys, so long as they do tasks that don’t constitute practice of law; permissible tasks include:
(1) preparatory legal work (e.g., legal research, prepare pleadings and briefs, draft discovery);
(2) communicate regarding scheduling, billing, and receipt of messages; and
(3) attend depositions to provide clerical assistance to lawyer conducting deposition.

CA must give NOTICE to bar and every client.

43
Q

Duty of Fair Representation

A

(1) L may not improperly contact juror or judge;
(2) restrictions on trial publicity that a lawyer knows or should know will substantially prejudice an adjudicative proceeding;
(3) duty of candor to the tribunal; and
(4) fairness to opposing counsel and parties.

44
Q

CA Duty of Fair Representations Prohibitions

A

L cannot:
(1) threaten criminal or administrative proceeding to gain advantage in civil matter (may also be crime of extortion);
(2) file a pleading without probable cause to maliciously injure; and/or
(3) report, or threaten to report, suspected immigration status of a witness or party to the proceeding (or family member) because individual has exercised a right to employment or rental housing (extortion).

45
Q

Evidence Improprieties

A

(1) Fuck with evidence
(2) Disobey obligations of court
(3) Make frivolous requests and objections
(4) If documents are accidentally sent, ABA requires notice, CA require that and prohibit further exam
(5) Allude to matters not supported by admissible evidence
(6) Assert personal knowledge or opinion
(7) Contact represented parties
(8) Make false or misleading statements in court

46
Q

Crime or Fraud

A

L must disclose incriminating evidence

ABA prevents L from assisting client in crime or fraud. CA adds violation of law, rule, or ruling of tribunal. MAY however, discuss legal consequences.

47
Q

Mistreatment of Adverse Parties (ABA)

A

In representing a client, L shall not
(1) use means that have no substantial purpose other than to embarrass, delay, or burden a third person; or
(2) use methods of obtaining evidence that violate the legal rights of such a person.

48
Q

Criminal Defendants who Testify Falsely

A

Generally, L must allow D to testify even if L reasonably believes testimony will be false.

ABA - L must disclose to set the matter straight
CA - L must first try to persuade D not to do it. If not, withdraw. If not, call him and direct until the false portion, at which, narrative

49
Q

Contact with Represented Party

A

Cannot unless
(1) person’s counsel has granted permission, or
(2) L is otherwise authorized by law or court order to make direct communication.

50
Q

Contact with Org as a Party

A

L must get consent of organization’s counsel before communicating with a constituent of the organization:
(1) who supervises or regularly consults with the org’s L about the matter,
(2) who has authority to obligate the org with respect to the matter,
(3) whose conduct in matter may be imputed to org for purpose of civil/criminal liability.

51
Q

Public Prosecutor Duties

A

(1) No prosecuting without probable cause
(2) Ensure D has been advised of right and opp to counsel
(3) Do not seek from unrepresented D waiver of pretrial rights
(4) Timely disclosure of exculpatory evidence
(5) Refrain from extra judicial statements, from subs too
(6) Seek to remedy wrongful conviction
(7) CA: timely disclose evidence that negates guilt or mitigates offense

52
Q

Reporting Attorneys

A

ABA - L must inform, does not require disclosure
CA - Does not need to report others, but report themselves for serious stuff like convictions, felonies, 3 malpractice suits in a year

53
Q

Mandatory Withdrawal

A

(1) representation will result in violation of RPC or other law,
(2) L’s physical or mental condition materially impairs L’s ability to represent the client, or
(3) L is discharged.

54
Q

Permissive Withdrawal

A

BOTH allow Withdrawal if
(1) client persists in a course of action involving L’s services and that L reasonably believes is criminal or fraudulent;
(2) client has used L’s services to perpetrate a crime or fraud;
(3) client fails to substantially fulfill an obligation to L regarding L’s services and has been given reasonable warning that L will withdraw unless obligation is fulfilled; or
(4) other good cause for withdrawal exists.

55
Q

ABA Permissive Withdrawal

A

.Permitted if
(1) no material adverse effect on client;
(2) client insists on repugnant action; or
(3) unreasonable financial burden on L.

Selected Topics Final (9 decks)

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