Professional responsibility Flashcards
VA
In representing a client, a lawyer shall ..
Not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.
“In the case of an organization,
this Rule prohibits communications by a lawyer for one party concerning the matter in representation with persons in the organization’s “control group”
The prohibition does not apply to former employees or agents of the organization, and an attorney may communicate ex parte with such former employee or agent even if he or she was a member of the organization’s “control group.
In the course of representing a client a lawyer shall not knowingly: …
(b) fail to disclose a fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client.”).
If the lawyer knows of the falsity of testimony elicited from the client during a deposition, the lawyer must take reasonable remedial measures.
When the attorney learns of client’s fraud:
The attorney must “remonstrate with the client confidentially, advise the client of the lawyer’s duty of candor to the tribunal and seek the client’s cooperation with respect to the withdrawal or correction of the false statements
To the extent a lawyer reasonably believes necessary, the lawyer may reveal such information which clearly establishes that the client has, in the course of the representation, perpetrated upon a third party a fraud related to the subject matter of the representation
If that fails, the attorney may consider withdrawal from representation
Timeliness and diligence of an attorney
A lawyer shall keep a client reasonably informed about the status of a matter
During the settlement negotiations
A lawyer shall inform the client of facts pertinent to the matter and of communications from another party that may significantly affect settlement or resolution of the matter
A lawyer who receives from opposing counsel an offer of settlement in a civil controversy or a proffered plea agreement …
should promptly inform the client of its substance unless prior discussions with the client have left it clear that the proposal will be unacceptable.
A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer
A client’s interests often can be adversely affected by the passage of time or the change of conditions; in extreme instances, such as when a lawyer overlooks a statute of limitations, the client’s legal position may be destroyed. Even when the client’s interests are not affected in substance, however, unreasonable delay can cause a client needless anxiety and undermine confidence in the lawyer’s trustworthiness
a lawyer shall not assert or controvert an issue in a proceeding when
…there is not a nonfrivolous basis for doing so
a lawyer shall not make a false statement
of fact or law to a tribunal
a lawyer shall not make a frivolous discovery request or
fail to make reasonably diligent efforts to comply with a legally proper discovery request by an opposing party
a judge, in imposing sanctions,
has the power to strike the evidence
The court may impose sanctions for a …
party’s the failure to comply with a discovery order
Virginia’s sanction statute grants a court the authority t
.. To impose appropriate sanctions on any violation of this statute’s requirements, whether the violation is brought to the court’s attention through
1. a motion or
2. the court acts on its own initiative.
The Canons of Judicial Conduct mandate that a judge should
inform the Virginia State Bar when the judge has knowledge that a lawyer has committed misconduct that raises a “substantial question” about the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.
“Safe Lawyers Handle Clients’ Fiduciary Obligations Properly”
Safe: Safeguarding Client Property - Take reasonable steps to protect and hold client property separately.
Lawyers: Lawyers Must Not Commingle - Keep client funds in separate trust accounts.
Handle: Handle Property Reasonably - Meet the “reasonable lawyer” standard; motives are immaterial.
Clients’: Clients’ Misrepresentations and Omissions - Avoid fraudulent statements and material omissions.
Fiduciary: Fiduciary Duties to Clients - Maintain honesty, transparency, and correct misunderstandings.
Obligations: Obligations to Ascertain and Act Legally - Verify the source of client money and pursue legal means.
Properly: Proper Fee Agreements - Avoid bad faith amendments and ensure fee agreements are ethical and fair.
Safeguarding Client Property:
Lawyers must maintain client trust accounts and safety deposit boxes for the safekeeping of client property.
A lawyer must not commingle her property with that of a client; client funds must be held in a client trust account separate from a lawyer’s property.
Violations of the duty to properly handle client property are serious and frequent grounds for discipline
A lawyer must meet the “reasonable lawyer” test for safeguarding client property.
No intentional wrongdoing is required to violate these rules, so a lawyer’s motives are immaterial.
Misrepresentations and Omissions:
Lawyers are prohibited from making statements that are fraudulent or remaining silent when the statement or silence would amount to fraud under applicable tort principles.
A statement to a third party must be both false and material to subject the lawyer to discipline.
Fiduciary Duties to Clients:
Lawyers owe clients heightened duties of a fiduciary, including honesty and transparency.
A lawyer must act to correct any misunderstandings and resolve issues in good faith.
Legal and Ethical Handling of Client’s Property:
Before taking action, a lawyer should ascertain the source of client money, especially if suspected of being stolen.
Legal means should be pursued to regain possession of stolen client property.
Bad Faith Amendments to Fee Agreements:
Increasing fees in bad faith, especially under duress, violates fiduciary duties and ethical standards.
Such actions raise significant concerns about a lawyer’s fitness to practice law.
