Professional responsibility Flashcards
papers produced as work product must be turned over to the client when
Representation is terminated
This duty to return papers to the client exists even when
Client hasn’t paid fee
a lawyer is required to self-report her own misconduct that occurs (location)
Occurs out of state
Lawyer must report their own self done misconduct where it
raises a substantial question as to that lawyer’s HONESTY, TRUSTWORTHINESS, OR FITNESS to practice law.
Lawyer’s fee agreement must be
reasonable
When must lawyer engage in fee explanation w Client?
Within Reasonable time after rep has commenced
Can lawyer disclose confidential info obtained from client re client’s past crimes?
No
Future/perspective crimes
Can disclose info re preventing a future crime
In general, a conflict of interest exists when
Lawyer’s representation of client will be materially limited by their personal interests
Waiver of a personally interested conflict is permissible if the lawyer reasonably believes that
She will be able to give competent and diligent rep to client and consent is obtained after consultation confirmed in writing
While a lawyer is prohibited from communicating about the subject matter of a dispute with a represented opposing party without first obtaining permission from the opposing party’s lawyer, there is no prohibition on communication with
Former employees or agents of an organization that is an opposing party, even if the former employee or agent was a member of the organization’s managerial group
Can lawyer make agreement limiting malpractice liability
no unless the lawyer is an employee (independently represented) of the client and client is independently represented in the agreement
Competency in new field
lawyer may undertake necessary study to become competent in new field or associate with a lawyer of established competence in the field
Fee Agreement Requirement
must be reasonable…doesnt need to be in writing unless it is a contingency fee
Reasonablness of fee is determined by
what is reasonable in the locality for similar services + ability, experience, reputation of the lawyer
Contingent fee must be
i) in writing + signed
ii) state the manner fee is to be determined
iii) state the expenses to be deducted
iv) whether such expenses will be deducted before or after contingent fee is calculated
Can lawyer have sex with client
yes
What must lawyer do w fee when there is a dispute as to fee award
lawyer must disburse undisputed portion and put disputed portion in a client trust account
Can lawyer rep client w adverse interests to former client
lawyer may generally not represent a client in the same or substantially same matter where the client and former client’s interests are adverse unless both clients consent after consultation
Attorney client priv covers
i) communications
ii) between privilege persons
iii) in confidence
iv) for purpose of obtaining/providing legal assistance
Work product doctrine protects
i) documents
ii) prepared by attorney/team
iii) in anticipation of litigation
Work product doctrine protects covered materials from discovery unless
party can show substantial need and inability to obtain substantially similar info by other means w/o undue hardship
Conflict of Interest Between Clients occurs when
i) clients interests are directly adverse
ii) high probability that rep of one client will materially limiyt rep of other
Concurrent conflict of interest
Significant risk that rep of one client will materially limit lawyer’s responsibility to another client…
Lawyer should generally not rep a client if it involves a concurrent conflict
Conflicts waiver
clients can waive most conflicts of interest by consent after consultation except a direct conflict or a conflict that is sufficiently gross
What does Conflicts analysis ensure
that rep of both clients will not be materially limited by obligations to either client
If lawyer reasonably believes that dual rep will not hinder her ability to rep both clients, lawyer should
i) inform clients of potential conflicts
ii) obtain consent after consultation before undertaking dual rep
Client Consultation should include
i) privilege doesnt attach btwn clients
ii) liitations on the scope of rep made necessary as a result of the common rep
iii) should conflict arise, attny must withdraw from representing one, if not both parties
When conflict arises btwn jointly rep’d parties, attorney must
withdraw
Joint rep is only possible where rep doesnt involve
assertion of a claim by one client against another client represented by same lawyer in same litigation or other proceeding
Lawyer’s communication w person known to be represented by other lawyer
cant do it w/o consent of other lawyer
Communicating w Former constituent of an organization
can communicate w former constituent of an organization w out that org’s consent
Communicating w an Org’s Constituent who consults w Organization’s lawyer
cannot communicate w an organization’s constitute who supervises, directs or regularly consults w org’s laywer concerning the matter
Can represented person’s speak with eachother?
Yes but lawyer must not use this to circumvent rules of professional conduct
Lawyer as a witness
lawyer must not undertake representation in which he is likely to be called as a necessary witness
Duty to Keep Client Informed/Settlement Offers
lawyer has duty to keep client informed of the status of the matter and to communicate and reasonably share decision making responsibilities w client
Lawyer’s duty to inform client of settlement offers
lawyer has duty to inform client of settleement offers and abide by their decision re acceptance
Lawyer’s Duty Re Non Work related obligations
lawyer should not let ordinary work events, such as other work obligations, prevent lawyer from acting
Lawyer’s Duty regarding their health issues
lawyer has duty to take his health issues into consideration and make plans for the client’s representation accordingly
Sanctions for incompliance w discovery order
ct may impose sanctions for a party’s failure to comply w a discovery order
What kind of sanctions can ct impose for lawyer’s failure to Attend Depositions/serve interrogatories/respond to request for production of documents
striking pleading but not contempt
Lawyer’s Duty Re Client Funds/Property
i) must keep funds in separate trust and must not comingle his property w that of a client
ii) must keep property in a safety deposit box
Lawyer’s Duty of Candor
prohibited from making statements that are fraudulent or remaining silenet when such silence would amount to fraud under applicable tort principles
For statement to subject lawyer to discipline, it must be both
false and material
Firm name may consist of
all members in firm, or deceased member’s name when there has been a succession in identy… or a trade name
Misleading Firm Name
Firm’s name must not be misleading by stating name of nonlawyer or lawyer not associated with the firm or predecessor of the firm
Duty to Turn over work product
Papers produced as work product must be turned over to the client at the termination of representation, irrespective of whether the client has paid the lawyer’s fee
Duty to Bring Meritorious claims and contentions
Lawyer shall not bring or defend a proceeding or assert or controvert an issue therein, unless there is a basis for doing so that is nonfrivilouys, whihc includes a good faith argument for extension, modification or reversal of existing law
Duty of Candor toward tribunal
1) lawyer shall not make false statement to tribunal
2) cant file frivolous motions bey
3) cant obstruct counsel’s access to material evidence by concealing his possession of the K
Duty of Fairness to Opposing Party and Counsel
lawyer shall not make frivolous discovery requests or fail to make reasonably diligent effort to comply w a legally proper discovery request by opposing counsel
Lawyer must not reveal any info protected by attorney client privilege or gained through professional relationship that would
harm or embarass the client or that they have requested to be kept confidential
Lawyer duty to prevent inadvertent disclosure
must take reasonable steps to prevent inadvertent disclosure of confidences (cybersecurity, protect client data)
Former client can prevent attorney from testifying about
communications that she made to you in confidence
Privilege is destroyed if info is revealed to
non-essential persons who are not party to privileged relationship
For corporate client, AC privilege covers
1) communication btwn high ranking corp officers
2) communication to other employees if
a) within scope of employee’s duties
b) provided at direction of employee’s superiors, and
c) employee knows they are made to help the corp get legal advice
Duty to prosepctive client covers info client gives you for purpose of forming legal advice and continues
after rep terminates and after death
Exceptions to ethical duty of confidentiality
1) consent
2) defending yourself
3) running for office
4) preventing harm
5) by ct order
Lawyer duty not to make statements implying he is disinterested
lawyer may not make statements implying he is a disinterested party in a matter when he is not
Lawyer duty not to engage in dishonesty
lawyer must not engage in conduct involving dishonesty, fraud, deceit or misrepresentation which reflects adversely on their charcter to practice law
Funds may be withdrawn from a client trust account if
lawyer keeps a record as to how much he is withdrawing for payment of his actual services as he completed the work
What must lawyer do if his physical or mental health materially impairs lawyer’s ability to rep client
withdraw
Lawyer cant withdraw from representation if
withdrawal would have a material adverse effect on the interests of the client
Lawyer confidentiality to perspective client
must maintain confidential info obtained by perspective client
LAwyer obligation to communicate w current clients
lawyer has obligation to communicate w current clients about ongoing matters.
Lawyer must not undertake representation of a client where representation of that client might be materially limited by
their representation of a current client, former client or perspective client
Lawyer’s duty re dishonesty
lawyer may not engage in dishonest, deceit, fraud or misrepresentation that might reflect adversely on his fitness to practice law
A lawyer must comply with ongoing investigations unless
doing so would violate attorney-client privilege
What must attorney do when they believe attorney client privilege would apply to a request from the Virginia State Bar
must still reply and indicate that info is being withheld based on privilege and provide otherwise full disclosures of Bar’s request
Lawyer’s duty regarding unearned fees
unearned fees must be promptly returned to client
Lawyer can rep someone who they have a personal relationship if
they reasonably believe they will be able to give competent rep to the client and obtains consent in writing
Lawyer’s duty regarding false/misleading advertising
1) lawyer must not make statements implying outcome was not or will not be based on facts at issue
2) comparing lawyer’s services to other lawyers
3) create an unjustified expectation re result lawyer can achieve
What can an attorney do if a former client has a new attorney on the same matter, and the attorney still hasn’t been paid all his fees?
Give new attorney notice of his claim for attorneys fees
If an attorney was ordered from representing a client due to his misconduct, may he recover attorney fees?
Fee agreement controls
Duty to disclose facts to client
Duty to disclose material facts pertaining to rep to client
What must lawyer do when he knows that a client expects assistance not permitted by the Rules of Professional Conduct or other law
inform him of relevant limitations on lawyer’s conduct
Conduct which involves dishonesty, fraud, deceit or misrepresentation which reflects adversely on the lawyer’s fitness to practice law violates the prohibition against
professional misconduct
What are an attorney’s ethical obligations when a client intends to do illegal or unethical conduct?
1) inform them that their act constitutes a crime
2) encourage them to withdraw
3) Keep communictaion in confiidence if they do withdraw
4) If they do not, report to the tribunal/law enforcement and withdraw
Under the former client conflict of interest rule, a lawyer who has formerly represented a client in a matter…
shall not undertake representation of anothe rperson in same or substantially related matter where former client’s interest is materially adverse to current client’s unless both consent after consultation
Personal interests may give rise to an impermissible conflict where
there is a significant risk that personal interest will materially limit lawyer’s rep
COmmunication is false or misleading if
it contains a material misrep of law or fact
Lawyer has duty to reject representation when
it will violate ethics or law
Contingent fee is permissible except in cases of
domestic relations and criminal law
Can lawyers in same firm split a fee
yes
Lawyers in different firms can split a fee if
i) fee is reasonable
ii) client agrees
iii) agreement ade before services are rednered
Can you share a fee w a non lawyer
no
Attorney’s fees paid from crime proceeds may be forfeited to
the gov
lawyers and clients must share in decision making re
i) scope of representaton, including duration and subject matter
ii) means and ends,,,,client sets goals, lawyer determines best means to achieve them
When a client is under disability, lawyer must
attempt to maintain an ordinary lawyer-client relationship to the extent possible …
When lawyer’s client is under disability, lawyer may reveal confidential info to extent reasonable necessary to
protect client’s interests
If lawyer’s physical/mental health is impaired or if lawyer is discharged, lawyer must
withdraw
Lawyer may withdraw for any reason if
will not materially harm client
May attorney obtain a lien against the client’s cause of action as security for her fee? How do they perfect their interest?
yes…perfection requires written notice to opposing party
Is physical evidence collected from a client privileged?
No
Lawyer must use reasonable efforts to prevent inadvertent disclosure of
confidential and privileged info
A lawyer who receives inadvertent disclosure is required to
i) immediately stop reviewing info
ii) promptly notify sender
iii) abide by sender’s instructions re return or destruction of the info
Disclosure of client’s future crimes, frauds and harms is permissible to extent that lawyer reasonably believes necessary to
i) comply w court order
ii) establish a claim or defense on behalf of lawyer
iii) reveals fraud perpetrated upon a 3rd party related to subject matter of representation
iv) to prevent reasonably certain death or serious bodily harm
Lawyer shall promptly reveal intent of client to commit a crime reasonably certain to result in death or serious bodily harm of another or substantial injury to financial interests or property of another, and info is necessay to prevent crime after
i) advising client of legal consequences of conduct
ii) urging client not to commit crime
iii) advising client that they must reveal client’s intention
iv) advsising the client that the attorney shall take appropriate remedial measures
Lawyer may reveal confidential info where required to by
law/ct order
Lawyer may enagge in business transaction w client if
i) consent in writing
ii) opportunity to seek independent counse
iii) transaction is reasonable
iv) in writing and in terms understood by client
Lawyer may not draft a document that makes a substantial gift to lawyer or his close relatives unless
donee is related to lawyer
Lawyer may not use info learned in the lawyer-client relationship to the detriment of
the client
lawyer may represent two clients in unrelated matters for whom the lawyer
must argue opposite sides of the same legal issue unless
rep of new client would be materially limited by rep of other
If opposite positions are argued before the same court, the lawyer may not argue
for a precedent in one case that adversely affects
client in the other case
Former judge cant represent a party in a matter the judge participated in as a jduge unless
all parties to the matter consent after consultation
Lawyer may serve as an advocate in a case he is likely to be a necessary witness when
i) testimony relates to uncontested issue
ii) testimony relates to nature and value of legal services rendered in case or
iii) disqualificiation would work a substantial hardship on the client;
Communication w a represented person is prohibited even when the represented person intitiates contact w the person or the rep’d person
consents to it
Can lawyer give advice to unrepresented person?
no asisde from advising them to get counsel
Lawyer’s duty against implying they are disinterested
Lawyer may not state or imply they are disinterested in a matter in which they are communicating
Do lawyers owe a duty to a third person supporting a negligence action?
No
Does a lawyer owe a duty to an intended beneficiary of the client?
Yes
Does lawyer owe a duty to a 3rd party where they initiated reliance?
Yes
Will lawyer have liability to a 3rd party where lawyer knows client will harm 3rd party and lawyer fails to take reasonable steps to prevent the harm
yes
If a witness other than the client offers perjured testimony, lawer must
promptly reveal it to court
if client offers perjured testimony, lawyer must promptly reveal such to the court if necessary to
rectify the situation
Are lawyers required to reveal unfavorable facts?
no except where lawyer is permitted to have ex parte communications w court he must disclose favorable and unfavorable facts
Can lawyers pay non expert witnesses lost wages and reasonable expenses in appearing?
Yes
Can lawyer’s pay a witness a fee that is contingent on the outcome?
No
Lawyers may not make statements to media that
I) are out of ct statements
II) likley to be disseminated by public communication
III) materially prejudicie matter
A lawyer is responsible for their subordinate’s conduct where
i) ordered subordinate lawyer to enagge in misconduct
ii) ratified subordinate lawyer’s misconduct
iii) failed to rectify
Must lawyers provide reasonable supervision of non-lawyer subordinates
yes
Can a lawyer form a partnership w a non lawyer in practice of law?
No
Lawyer cannot practice in a professional corp or association authorized to practice law for profit if
non lawyer owns an interest, is a corp director or has right to direct or control lawyer’s professional judgment
Can lawyer solicit clients in person
no unless previously repped or
Can lawyer act as an advocate in a proceeding in which another lawyer in the lawyer’s firm is likely to be called as a witness?
Yes, unless a conflict would occur
Judge should only reveal lawyer’s misconduct to VA state bar where it
raises substantial questions re lawyer’s honesty, trustworthiness, fitness to practice law
What are courts punishment for contempt of ct where jury hasnt been empaneled
i) fine up to $250
ii) jail up to 10 days
iii)banning lawyer from their courtroom
