Professional Responsibility Flashcards
COCOCO
Confidentiality
Commitment to client
Conflicts of interest
Who can practice law in VA?
Attorneys licensed in VA. Those not licensed can’t rep VA citizens but may appear in court at any time with VA co-counsel as long as they are licensed in some state.
Who are foreign lawyers?
Somebody licensed by another state or foreign lawyer who has not been disbarred.
What are the prohibitions on foreign lawyers?
Can’t establish office in VA, can’t do continuous practice in VA, can’t say you’re a VA lawyer.
If you are a foreign lawyer, what disclosures must you make?
Must inform client and interested parties that you aren’t admitted in VA, where you are admitted, and address in jurisdiction where you are admitted.
What are the safe harbors for foreign lawyers practicing in VA?
1) Appear w/ VA co-counsel; 2) if in proceeding and authorized by law or order or reasonably expect to be, fine; 3) Arbitrator or mediator or alt dispute resolution can rep client if matter came out of or arose in own jur; 4) if related to representation in own state, may continue to represent out of state.
Can you contract around ethical rules?
No. Moreover, rules cannot be challenged as inapplicable.
What are the procedures for bringing a claim?
Complaint filed with VA State Bar, which investigates the complaint and gives notice to the accused attorney if cause is found. Hrg held w/ right to confront accuser, but accused cannot resign to avoid discipline. If a violation is found, accused atty can appeal decision in state court.
What are the possible sanctions for an attorney?
Disbarment, suspension, reprimand, fines, restitution, limit practice, required CLEs, forced entry in a drug rehab program, retake the bar.
What if criminal and ethical charges are brought but the crim charges are dropped?
Charges of ethical violations may proceed. Sanctions may follow.
What are the obligations of a VA attorney’s duty to report ethical violations?
Must report violations of other attorneys if violations raise a substantial question as to such attorney’s honest or fitness to practice law.
What are the exceptions to the duty to report other attorneys’ ethical violations?
The violating attorney is your client, you are helping people on state bar substance abuse committee, or you hear about the violations from a client (confidentiality-can’t tell unless you get specific permission).
Are law firms subject to VA professional standards?
Individual attorneys only are the subject of ethical regulation and individuals will be sanctioned, but some specific rules relate to firms.
Can law firms restrict the right of a departing attorney to practice law after termination?
Covenants not to compete are impermissible.
Can firms/attorneys use legal services plans?
Not if that entity uses deceptive ads or solicitation. Issue is whether lawyer can exercise independent judgment.
What other rules apply to firms?
Rules prohibiting false advertising, misleading letterhead, or hiring a lawyer whose license has been revoked, apply.
How does the right to counsel relate to A’s ethical obligations?
Aspirational duty to provide legal services to the poor. Also, if a C refuses to pay a bill, withdrawal isn’t permitted if it would materially prejudice the C.
What are the restrictions on non-lawyers practicing law?
Practice of law by non-As prohibited. Also a violation to aid and abet the unauthorized practice of law via fee splitting w/ a client who preps legal documents.
What is Rule 5.4 fee-splitting with non-attorneys?
Generally prohibited except 1) may pay fees you have collected to widow of deceased attorney at firm and 2) may have retirement/savings plan for non-lawyer employees.
What about the multi-disciplinary practice of law?
Rule 5.4b. You may not form a partnership with a non-lawyer if the partnership business relates to the practice of law.
Can you hire a lawyer whose license is revoked?
Rule 5.5. Hiring such a lawyer as a law clerk or paralegal is aiding the unauthorized practice of law IF the non-lawyer used to work for you OR if you represent his or her previous clients.
Are lawyers permitted to advertise?
Under modern rules, yes. So long as ads are not false or misleading. They must be accurate as to the services offered, the attorney’s level of experience, and the fee schedule.
What must the ad include?
The name and address of the responsible attorney. TV and radio ads must be clear that they are ads. Rule 7.1.
Is solicitation allowed in VA?
Yes. Only jur to allow this. Prohibited if what you say is false or coercive. Can’t threaten, promise results to, harass, confuse, or take advantage of a potential client who is ill or under the influence of drugs. TEST: if no pressure, harassment, or confusion, OK.
Can you pay someone to recommend your services?
No. Unless it is payment for advertising, payment to legal services plan or non-profit or qualified referral service, payment to buy a law practice, or a nominal gift of gratitude.
May attorneys write letters to get business?
Yes. As long as they aren’t misleading or deceptive. Must ID as “advertising material.” Cannot hold oneself out as a specialist.
What money may a lawyer spend to advance a client’s case?
COSTS OF LITIGATION. 1) Court costs and filing fees, 2) investigation costs, 3) W costs, and 4) medical exams for trial. Client is responsible for repayment. No advancement of living fees, but loans may be okay if C must repay no matter how the case comes out.
What if a legal services organization refers a C to you?
Fine, but you must retain independent professional judgment.
What if a C wants to engage in frivolous litigation?
Can’t take a case if C’s sole purpose is to harass or injure another party. Can’t file a claim or assert a defense that is not supported by existing law (or a GF change/extension of law).
What can an A do with respect to criminal matters?
A can’t threaten criminal prosecution to help a client or gain an advantage in a civil matter. If you are a crim defense A, not frivolous to introduce all possible defenses.
What if you meet with someone but an A-C relationship does not develop?
There is still a duty of confidentiality. You cannot use any info you received against the client i.e. can’t rep opposing party.
What is the duty of competence?
If you take on representation of C, you must know the rules of procedure, applicable law, and investigate the facts. It is an ethical violation to neglect a matter or to fail to do adequate research.
Before taking a case, what must A determine with regard to his ability?
Capable of handling matter w/o months of research in an unfamiliar area. Must refer to someone competent if this is the case.
What A’s diligence requirements?
Competence implies efficiency, timeliness, and keeping in touch with the C. A must defer to C’s decisions and consult with C regarding objectives.
What are A’s obligations with respect to settlement offer?
Always report them to C and let C decide.
Are A-C contracts required?
No. Unless there’s a contingency fee, which must be in writing and explain how the fee will be calculated. If K, it can’t limit malpractice liability.
What are acceptable compensation arrangements?
Fee must be reasonable and client must understand how he or she will be billed.
When is a contingency fee appropriate/not appropriate?
If no risk of losing a case, no contingency fee. Never appropriate in criminal cases, and rarely appropriate in domestic cases (divorce, but okay in alimony, back payment cases). Most common in personal injury claims.
What if A is fired from a case w/ a contingency fee arrangement?
Awarded fees on a quantum meruit basis if client obtains a judgment.
What fees given to attorneys in advance of case are/aren’t refundable?
Advance deposits are refundable to the extent they aren’t drawn down; retainers aren’t since they are earned for being available.
