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
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
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.
4
Q
Fee for expert witness
A
Must be:
Reasonable
Cannot be
Contingent on content of the testimony or outcome of the case
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
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)
7
Q
Limiting malpractice liability in advance
A
Not allowed unless
Client is independently represented in making the agreement
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
9
Q
Judges as characters witnesses
A
Not allowed unless judge is subpoenaed
10
Q
Reciprocal referral agreements
A
Allowed if
Not exclusive
Client is informed
Cannot accept money in exchange or otherwise pay for referrals
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
12
Q
Limiting the scope of representation (type of consent)
A
Informed consent
13
Q
Third person paying client’s legal fees (type of consent)
A
Informed consent
14
Q
Providing a materially harmful evaluation of client’s affairs for use by a third person (type of consent)
A
Informed consent
15
Q
Revealing client’s confidential information or using it to their disadvantage (type of consent)
A
Informed consent
16
Q
Conflict based on direct adversity or material limitation (cure)
A
Informed consent in writing
17
Q
Conflict based on former clients and employment (cure)
A
Informed consent in writing
Or timely screened
18
Q
Conflict based on prospective clients (cure)
A
Informed consent in writing
Or timely screened
19
Q
Conflict based on government work
A
Informed consent in writing
Or timely screened
20
Q
Conflict based on prior involvement in matter as judge, arbitrator, etc. (cure)
A
Informed consent in writing
Or timely screened
21
Q
Business transaction with/pecuniary interest adverse to client
A
Informed consent in writing signed by client
22
Q
Aggregate settlement between clients
A
Informed consent in writing signed by client
23
Q
Contingent fee agreement
A
Informed consent in writing signed by client
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
25
Conflict based on former clients (cure)
Screened, not apportioned part of fee, and written notice to former client
26
Conflict based on government work on same matter (cure)
Screened, not apportioned part of fee, and written notice to government agency
27
Conflict based on subsequent use of information gained during government work (cure)
Screened and not apportioned part of fee
28
Conflict based on prospective clients (cure)
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
29
True referral fee
Not allowed
30
Splitting fees with other lawyers
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
31
Splitting fees with non-lawyers
Not allowed
32
Testifying on client’s behalf or act as client’s advocate at legislative or administrative proceeding
Allowed if
Lawyer discloses they are acting in representative capacity
Not required to disclose identity of client
33
Dispute over funds held by lawyer (client/third-party)
Lawyer must keep the disputed portion separate in client trust account until dispute is resolved
Lawyer must promptly distribute the undisputed portion
34
Multiple clients ask lawyer to represent them in same civil matter
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
35
Civil liability of partners for subordinates’ misconduct
Partners are liable for firm’s obligations
36
Disciplinary action against partners for subordinates’ misconduct
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
37
Client compensation with non-monetary property (i.e., interest in business)
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
38
Interviewing employees of adverse organization (the “other side”)
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
39
Implied authority (confidentiality)
If client gave implied authorization to disclose confidential information, then no violation
40
Informed consent (confidentiality)
If client gave informed consent to disclose confidential information, then no violation
41
Candor to tribunal (confidentiality)
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
Outside reporting of corporate violations (confidentiality)
If the lawyer was authorized to disclose the confidential information based on outside reporting requirements for corporate violations, then no violation
43
Disclosure to prevent death or substantial bodily injury (confidentiality)
No violation
44
Disclosure to prevent or rectify financial injury to another if services used in furtherance (confidentiality)
No violation
45
Disclose to defend self in dispute concerning lawyer’s conduct (confidentiality)
No violation
46
Disclosure to obtain legal ethics advice (confidentiality)
No violation
47
Disclosure to detect and resolve conflicts of interest due to change (confidentiality)
No violation
48
Disclosure to comply with court order or law (confidentiality)
No violation
49
Commingling funds
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
False statements of material fact to third party
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
Responding to court orders
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
Group or prepaid legal service plan
Allowed
Participation if you do not own or direct the organization
Not allowed
Participation if you own or direct the organization
53
Rejecting clients
Allowed
Reject clients
Not allowed
Reject court appointment except for good cause
54
Reporting other lawyers’ misconduct
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
Representing current client (general rule; conflicts)
Directly adverse to another current client or
Significant risk of material limitation based on own interests or duties to another
56
Opposing former client (conflicts)
Same or substantially related matter
57
Opposing former firm’s client (conflicts)
Same or substantially related matter and
Acquired material confidential information while at former firm
58
Opposing client of lawyer who left firm (conflicts)
Same or substantially related matter and
At least one lawyer remaining in the firm has material confidential information about it
59
Opposing prospective client (conflicts)
Same or substantially related matter and
Gained information during the consultation that could significantly harm the prospective client
60
Private work following government work (conflicts)
Same “matter” (specific facts and parties) and
Was personally and substantially involved
61
Private work using confidential government information against a person (conflicts)
Actually received “confidential government information” about a person while in government service and
Information could materially disadvantage the person
62
Government work following private work (conflicts)
Same matter and
Was personally and substantially involved
63
Prior involvement in matter as judge, judicial officer, law clerk, or third-party (conflicts)
Same matter and
Was personally and substantially involved
64
Financial assistance to clients
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
Speaking to unrepresented persons
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
Advertising
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
Refusing to offer evidence
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
Restrictions on judges
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
Speaking with represented person without knowledge that they have counsel
Rule for communicating with unrepresented persons applies
70
Dishonesty, fraud, deceit, or misrepresentation
Subject to discipline even if such conduct was unrelated to law practice
71
Clients with diminished capacity
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
Conflict based on personal interest (e.g., sexual)
Not imputed to other lawyers in the firm unless there is a significant risk it would materially limit their representation of the client
73
Avoiding “impropriety”
Applies to judges, not lawyers
74
Duty of candor
Expires at the end of the proceeding (when a final judgment has been affirmed on appeal or the time for appeal has expired)
75
Imputed conflicts based on prior dealings
Often curable by screening the lawyer
76
Restrictions on disclosing extent of conflict to client
Restricted because owe a duty of confidentiality to someone else
Conflict is not waivable (unable to meet informed consent requirement)
77
Represented opposing parties speaking directly with each other
Allowed
You can advice client regarding such communications
78
Disciplinary violations in malpractice suits
Relevant evidence that conduct was below standard of case but does not create a presumption of malpractice
79
Malpractice suits and disciplinary violations
Cannot escape discipline by reimbursing the client for their loss
80
“Matter”
Specific facts and parties
81
Pro se
Allowed to advise
82
Violating rules through other people
Cannot escape discipline by violating the rules through the acts of another person
83
Opposite sides of same litigation
You cannot be on opposite sides of the same litigation
84
Exceptions to attorney-client privilege
Aid in future crime or fraud
Self-protection
Litigation between former joint clients
Competency or intent of deceased client
85
Exceptions to rule of confidentiality
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
Exceptions to imputation (conflicts)
Conflict uniquely personal to lawyer
Lawyer timely screened (from conflicts that arise from lawyer's past work)
87
Direct adversity (conflicts)
Cannot represent client if representation directly adverse to another client
88
Materially limited (conflicts)
Cannot represent client if significant risk representation will be materially limited by another interest
89
Requirements for waiving conflict between co-parties
Reasonable belief can represent each competently and diligently
Informed consent, confirmed in writing from each client
90
Writing
Includes electronic writing
91
Revoking consent
Client can revoke at any time
92
Unwaivable and unconsentable conflicts
Being on opposite sides of same litigation
Representation prohibited by law
93
What counts as direct adversity (conflicts)
Clients on opposite sides of same matter
Representing client's opponent in another matter
Cross-examining current client in another matter
94
What counts as material limitation (conflicts)
Representation will be materially limited by:
Lawyer's responsibilities to different client, former client, third person
Lawyer's personal interests
95
Representing co-parties in a case
Not prohibited
Risk of conflict high in criminal case
Must explain consequences, get informed consent, and re-address if conflict materializes or withdraw
96
Representing two clients with different legal theories
Must seek consent if one client will be materially limited by other client's position
97
Transaction with client
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
Lien on client's recovery (if authorized by law)
Allowed
99
Gifts
Lawyer cannot:
Solicit gift
Prepare instrument that gives you or relative substantial gift (unless related to client)
100
What counts as substantially related
Same transaction/legal dispute
Substantial risk confidential information would materially advance new client's position
101
Exception to playing advocate-necessary witness role
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
Who must consent (informed consent)
Each affected party
