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S24 > Professional Responsibility > Flashcards

Professional Responsibility Flashcards

1
Q

Duty to volunteer harmful facts (facts that might help the other side)

A

No duty to volunteer harmful facts in usual proceedings
In ex parte proceedings, you must inform the court of all material facts that will enable it to make an informed decision

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2
Q

Duty to present harmful law (law that does not support your position)

A

Duty to present all harmful law if:
In controlling jurisdiction
Directly adverse to client’s position

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3
Q

When contingent fee not allowed

A

Not allowed
When representing a defendant in a criminal case
In domestic relations cases
Allowed
If collecting a post-judgment balance due under an existing order for child support, alimony, etc.

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4
Q

Fee for expert witness

A

Must be:
Reasonable
Cannot be
Contingent on content of the testimony or outcome of the case

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5
Q

Sexual relations with client

A

Not allowed unless
Consensual sexual relationship already existed when the representation started
Still check for a “material limitation” conflict

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6
Q

Refunding advanced payments upon withdrawal or firing

A

Refund all unearned fees and expenses that were paid by the client in advance
Do not need to refund “true retainer” fee (money that was paid by the client solely to ensure your availability)

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7
Q

Limiting malpractice liability in advance

A

Not allowed unless
Client is independently represented in making the agreement

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8
Q

Communicating fees

A

Communicate basis or rate of the fee to the client before or within a reasonable time after the representation begins unless
You have regularly represented the client in the same type of matter and will be charging the client on the same basis or rate

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9
Q

Judges as characters witnesses

A

Not allowed unless judge is subpoenaed

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10
Q

Reciprocal referral agreements

A

Allowed if
Not exclusive
Client is informed
Cannot accept money in exchange or otherwise pay for referrals

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11
Q

Frivolous proceedings

A

Not allowed
However, when representing a criminal defendant, you can require that the prosecutor prove every element of the crime

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12
Q

Limiting the scope of representation (type of consent)

A

Informed consent

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13
Q

Third person paying client’s legal fees (type of consent)

A

Informed consent

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14
Q

Providing a materially harmful evaluation of client’s affairs for use by a third person (type of consent)

A

Informed consent

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15
Q

Revealing client’s confidential information or using it to their disadvantage (type of consent)

A

Informed consent

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16
Q

Conflict based on direct adversity or material limitation (cure)

A

Informed consent in writing

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17
Q

Conflict based on former clients and employment (cure)

A

Informed consent in writing
Or timely screened

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18
Q

Conflict based on prospective clients (cure)

A

Informed consent in writing
Or timely screened

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19
Q

Conflict based on government work

A

Informed consent in writing
Or timely screened

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20
Q

Conflict based on prior involvement in matter as judge, arbitrator, etc. (cure)

A

Informed consent in writing
Or timely screened

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21
Q

Business transaction with/pecuniary interest adverse to client

A

Informed consent in writing signed by client

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22
Q

Aggregate settlement between clients

A

Informed consent in writing signed by client

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23
Q

Contingent fee agreement

A

Informed consent in writing signed by client

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24
Q

Conflict based on prior involvement in matter as judge, arbitrator, etc. (cure)

A

Screened, not apportioned part of fee, and written notice to parties and tribunal

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25
Q

Conflict based on former clients (cure)

A

Screened, not apportioned part of fee, and written notice to former client

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26
Q

Conflict based on government work on same matter (cure)

A

Screened, not apportioned part of fee, and written notice to government agency

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27
Q

Conflict based on subsequent use of information gained during government work (cure)

A

Screened and not apportioned part of fee

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28
Q

Conflict based on prospective clients (cure)

A

Demonstrate that lawyer took care to avoid exposure to no more confidential information than necessary when determining whether to represent the prospective client, timely screened, and written notice to prospective client

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29
Q

True referral fee

A

Not allowed

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30
Q

Splitting fees with other lawyers

A

Must be in proportion to the work done by each lawyer or
Each lawyer assumes joint responsibility for the representation
Total fee must be reasonable
Client must consent to arrangement and terms

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31
Q

Splitting fees with non-lawyers

A

Not allowed

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32
Q

Testifying on client’s behalf or act as client’s advocate at legislative or administrative proceeding

A

Allowed if
Lawyer discloses they are acting in representative capacity
Not required to disclose identity of client

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33
Q

Dispute over funds held by lawyer (client/third-party)

A

Lawyer must keep the disputed portion separate in client trust account until dispute is resolved
Lawyer must promptly distribute the undisputed portion

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34
Q

Multiple clients ask lawyer to represent them in same civil matter

A

If antagonist, decline
If harmonious but potentially adverse, lawyer must address the “significant risk of material limitation” and must reasonably believe that competent and diligent representation is possible and must obtain client’s informed consent, confirmed in writing
If clients’ interests actually become adverse during course of matter, lawyer must re-address conflict and potentially withdraw

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35
Q

Civil liability of partners for subordinates’ misconduct

A

Partners are liable for firm’s obligations

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36
Q

Disciplinary action against partners for subordinates’ misconduct

A

Partner only subject to discipline if
Firm did not provide adequate training or supervision
Partner ordered, ratified, or knew about and failed to mitigate the particular misconduct
Applies to lawyer and non-lawyer subordinates

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37
Q

Client compensation with non-monetary property (i.e., interest in business)

A

Subject to rule governing business transactions with clients (must be fair)
Arrangement may involve a prohibited propriety interest in the cause of action or subject of litigation

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38
Q

Interviewing employees of adverse organization (the “other side”)

A

Not allowed unless counsel consents or
Employee is not high-ranking, does not regularly consult with the organization’s counsel about the case, and did not commit the conduct at issue

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39
Q

Implied authority (confidentiality)

A

If client gave implied authorization to disclose confidential information, then no violation

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40
Q

Informed consent (confidentiality)

A

If client gave informed consent to disclose confidential information, then no violation

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41
Q

Candor to tribunal (confidentiality)

A

If the lawyer was authorized to disclose the confidential information based on candor to the tribunal (e.g., remedying false statements of fact, correcting false evidence), then no violation

42
Q

Outside reporting of corporate violations (confidentiality)

A

If the lawyer was authorized to disclose the confidential information based on outside reporting requirements for corporate violations, then no violation

43
Q

Disclosure to prevent death or substantial bodily injury (confidentiality)

A

No violation

44
Q

Disclosure to prevent or rectify financial injury to another if services used in furtherance (confidentiality)

A

No violation

45
Q

Disclose to defend self in dispute concerning lawyer’s conduct (confidentiality)

A

No violation

46
Q

Disclosure to obtain legal ethics advice (confidentiality)

A

No violation

47
Q

Disclosure to detect and resolve conflicts of interest due to change (confidentiality)

A

No violation

48
Q

Disclosure to comply with court order or law (confidentiality)

A

No violation

49
Q

Commingling funds

A

Not allowed
Commingle personal funds with client funds or any other funds held in connection with representation
Allowed
Put own funds into client trust account for the sole purpose of paying bank service charges

50
Q

False statements of material fact to third party

A

Not allowed
False statements of material fact to third party in connection with representation
Allowed
You can “puff” on issues like estimates of price or value, or a party’s intentions as to settlement

51
Q

Responding to court orders

A

Not allowed
Knowingly disobey court rule or order
Allowed
Openly refuse to obey for the purpose of making a good faith challenge to its validity

52
Q

Group or prepaid legal service plan

A

Allowed
Participation if you do not own or direct the organization
Not allowed
Participation if you own or direct the organization

53
Q

Rejecting clients

A

Allowed
Reject clients
Not allowed
Reject court appointment except for good cause

54
Q

Reporting other lawyers’ misconduct

A

Allowed
Generally allowed to report misconduct
Required
Must report if it raises a “substantial question” about the lawyer
Not allowed
In a civil case, you shouldn’t threaten disciplinary charges for the purpose of obtaining an advantage for your client

55
Q

Representing current client (general rule; conflicts)

A

Directly adverse to another current client or
Significant risk of material limitation based on own interests or duties to another

56
Q

Opposing former client (conflicts)

A

Same or substantially related matter

57
Q

Opposing former firm’s client (conflicts)

A

Same or substantially related matter and
Acquired material confidential information while at former firm

58
Q

Opposing client of lawyer who left firm (conflicts)

A

Same or substantially related matter and
At least one lawyer remaining in the firm has material confidential information about it

59
Q

Opposing prospective client (conflicts)

A

Same or substantially related matter and
Gained information during the consultation that could significantly harm the prospective client

60
Q

Private work following government work (conflicts)

A

Same “matter” (specific facts and parties) and
Was personally and substantially involved

61
Q

Private work using confidential government information against a person (conflicts)

A

Actually received “confidential government information” about a person while in government service and
Information could materially disadvantage the person

62
Q

Government work following private work (conflicts)

A

Same matter and
Was personally and substantially involved

63
Q

Prior involvement in matter as judge, judicial officer, law clerk, or third-party (conflicts)

A

Same matter and
Was personally and substantially involved

64
Q

Financial assistance to clients

A

Allowed
You can advance any client’s court costs and expenses (and can agree to forgive repayment if the client loses)
If client is indigent, you can pay their court costs and expenses outright
If you are representing an indigent client pro bono, you can provide the client with modest gifts for basic living expenses
Not allowed
You must not provide any other financial assistance to a client in connecting with pending or contemplated litigation

65
Q

Speaking to unrepresented persons

A

Allowed
Speak with unrepresented person about client’s matter
Not allowed
Must not state or imply that you are disinterested
If the unrepresented person’s interests conflict with your client’s interests, you must not give them any legal advice (other than to obtain counsel)

66
Q

Advertising

A

Allowed
Advertise that you do or do not practice in particular areas of law, or that you “concentrate” in or “specialize” in that area as long as such communications are not false or misleading
Not allowed
Must not state or imply that you are certified as a specialist in a particular area of law, unless you are in fact certified as a specialist by an approved organization that is clearly identified in the communication

67
Q

Refusing to offer evidence

A

Allowed
Refuse to offer evidence that you reasonably believe (but do not know) is false
Not allowed
Must not refuse to offer testimony of criminal defendant (even if you reasonably believe it is false)

68
Q

Restrictions on judges

A

Full-time judge may
Act pro se
Provide legal advice to and draft and review documents for members of her family without compensation
Full-time judge must not
Otherwise practice law

69
Q

Speaking with represented person without knowledge that they have counsel

A

Rule for communicating with unrepresented persons applies

70
Q

Dishonesty, fraud, deceit, or misrepresentation

A

Subject to discipline even if such conduct was unrelated to law practice

71
Q

Clients with diminished capacity

A

You still owe them a duty of confidentiality
You have “implied authorization” to reveal information to the extent necessary to protect client from substantial harm

72
Q

Conflict based on personal interest (e.g., sexual)

A

Not imputed to other lawyers in the firm unless there is a significant risk it would materially limit their representation of the client

73
Q

Avoiding “impropriety”

A

Applies to judges, not lawyers

74
Q

Duty of candor

A

Expires at the end of the proceeding (when a final judgment has been affirmed on appeal or the time for appeal has expired)

75
Q

Imputed conflicts based on prior dealings

A

Often curable by screening the lawyer

76
Q

Restrictions on disclosing extent of conflict to client

A

Restricted because owe a duty of confidentiality to someone else
Conflict is not waivable (unable to meet informed consent requirement)

77
Q

Represented opposing parties speaking directly with each other

A

Allowed
You can advice client regarding such communications

78
Q

Disciplinary violations in malpractice suits

A

Relevant evidence that conduct was below standard of case but does not create a presumption of malpractice

79
Q

Malpractice suits and disciplinary violations

A

Cannot escape discipline by reimbursing the client for their loss

80
Q

“Matter”

A

Specific facts and parties

81
Q

Pro se

A

Allowed to advise

82
Q

Violating rules through other people

A

Cannot escape discipline by violating the rules through the acts of another person

83
Q

Opposite sides of same litigation

A

You cannot be on opposite sides of the same litigation

84
Q

Exceptions to attorney-client privilege

A

Aid in future crime or fraud
Self-protection
Litigation between former joint clients
Competency or intent of deceased client

85
Q

Exceptions to rule of confidentiality

A

Information may (permissive standard) be disclosed to the extent necessary if:
Necessary to prevent death or substantial bodily harm
Prevent financial injury to another if services used in furtherance
Defend self in dispute concerning own conduct
Obtain legal ethics advice
Detect and resolve conflicts of interest due to change

86
Q

Exceptions to imputation (conflicts)

A

Conflict uniquely personal to lawyer
Lawyer timely screened (from conflicts that arise from lawyer’s past work)

87
Q

Direct adversity (conflicts)

A

Cannot represent client if representation directly adverse to another client

88
Q

Materially limited (conflicts)

A

Cannot represent client if significant risk representation will be materially limited by another interest

89
Q

Requirements for waiving conflict between co-parties

A

Reasonable belief can represent each competently and diligently
Informed consent, confirmed in writing from each client

90
Q

Writing

A

Includes electronic writing

91
Q

Revoking consent

A

Client can revoke at any time

92
Q

Unwaivable and unconsentable conflicts

A

Being on opposite sides of same litigation
Representation prohibited by law

93
Q

What counts as direct adversity (conflicts)

A

Clients on opposite sides of same matter
Representing client’s opponent in another matter
Cross-examining current client in another matter

94
Q

What counts as material limitation (conflicts)

A

Representation will be materially limited by:
Lawyer’s responsibilities to different client, former client, third person
Lawyer’s personal interests

95
Q

Representing co-parties in a case

A

Not prohibited
Risk of conflict high in criminal case
Must explain consequences, get informed consent, and re-address if conflict materializes or withdraw

96
Q

Representing two clients with different legal theories

A

Must seek consent if one client will be materially limited by other client’s position

97
Q

Transaction with client

A

Fair and reasonable
Lawyer must disclose all terms to client (in writing in way client understands)
Lawyer must advise client in writing to get independent counsel
Informed consent in writing with signature
(but does not apply to standard commercial transaction)

98
Q

Lien on client’s recovery (if authorized by law)

A

Allowed

99
Q

Gifts

A

Lawyer cannot:
Solicit gift
Prepare instrument that gives you or relative substantial gift (unless related to client)

100
Q

What counts as substantially related

A

Same transaction/legal dispute
Substantial risk confidential information would materially advance new client’s position

101
Q

Exception to playing advocate-necessary witness role

A

Lawyer can be both advocate and necessary witness:
Uncontested matters or mere formality
Testimony pertains to legal services in current case
Disqualification would cause substantial hardship to client

102
Q

Who must consent (informed consent)

A

Each affected party

S24 (4 decks)

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