Professional Responsibility Flashcards
A lawyer may not represent a client if representation of that client would be directly adverse to an existing client unless:
(1) The lawyer reasonably believes the representation would not adversely affect the relationship with the other client
(2) The representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation; and
(3) Both clients consent in writing after consultation
July 2013
What is the imputed disqualification rule?
If one lawyer in a firm cannot represent a given client, then no attorney in the firm can
July 2013
What is a prospective client and what duties are owed to them?
A prospective client is a person who consults with a lawyer in good faith about the possibility of forming a lawyer-client relationship with respect to a matter
* The duty of confidentiality applies even if the lawyer isn’t ultimately hired
July 2013
What is the rule about opposing a prospective client in a substantially related matter?
Must not later represent client adverse to prospective client in the same or substantially related matter if the information could be significantly harmful to prospective client
* UNLESS both the current and prospective client give informed consent, confirmed in writing
July 2013
What is the rule of imputation with respect to prospective clients?
(1) Disqualified lawyer must have taken reasonable measures to avoid exposure to more confidential information than was necessary to determine whether to represent the prospective client;
(2) Disqulified lawyer must be screened from the matter (and reasonably believe screening will be effective to protect information received during consultation) AND
(3) Prospective client must promptly be given written notice of the subject matter about which the disqualified lawyer was consulted and the screening measures employed
July 2013
What is the basic rule about making statements about services?
A lawyer must not make false or misleading communications about his or her services, including
* Statements that would lead a reasonable person to reach an unfounded conclusion
* Statements that would lead a reasonable person to form an unjustified expectation of receiving the same results in a similar matter, without reference to the specific circumstances of each clients case
* Statements that contain an unsubstantiated comparison or claim of the lawyer’s services or fees, presented with such specificity as to lead a reasonable person to conclude that the comparison or claim can be substantiated
July 2013, July 2014
How may a lawyer distance themself from statements about services?
The inclusion of an appropriate disclaimer or other qualifying language can prevent an advertisement from being misleading to the public
July 2013
When a client furnishes a retainer or advance deposit against fees to an attorney, to whom does the money belong and where should it go?
The money belongs to the client and must be placed in the law fir’ms trust account and the attorney holds the funds in trust
* The funds are the corpus of a trust of which the attorney is the trustee and the client the beneficiary
July 2013
What type of solicitation is prohibited?
Those involving coercion, duress, compulsion, intimidation or unwarranted promises of benefits
July 2014
What is an attorney’s duty of communication?
Must keep client fully informed of facts relevant to the representation
In what situations may a court order sanctions (non-exclusive list)?
(1) Discovery violations, including
* Failure to produce documents in one’s possession
* Redundant/”inordinately voluminous” discovery motions
(2) Pretrial motions
* Frivolous motions constituting harrassment/unnecessary delay
* Insulting language addressed to the court
July 2018
When may a court enter sanction against a party?
- Rules of Supreme Court authorize imposition of sanctions (striking pleadings, staying further proceedings, and dismissal)
- Statutory: Upon proper motion or its own initiative (reasonable expenses, attorney’s fees, and costs charged to offending party or counsel)
July 2018
What is the rule for prospective limitation of malpractice liability?
MUST NOT make agreement limiting liability for malpractice UNLESS: (1) lawyer is employee of the client (in-house) AND (2) client is independently represented in making the agreement
Feb 2019
What is required to enter into a contingency fee agreement and what cases do not allow them?
Attorney must provide written explanation of the terms of the fee (must be reasonable fee) and must disclose:
* The terms of the fee, including the contingecy rate
* How fees and expenses are calculated and
* Whether fees/expenses taken before or after contingency rate
Not available in most domestic relations cases or in criminal cases
Feb 2019
What is required to act competently?
Acting with legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation
Feb 2019
