Professional Responsibility Flashcards
1
Q
4 Decisions that must be made by client:
A
- Acceptance or rejection of settlement offers
- Plea to be entered in a criminal case,
- Waiver of jury trial in criminal case
- Whether to testify in criminal case
2
Q
When third person is not represented by counsel an attorney may communicate with him as long as the attorney: (3 things)
A
- Doesn’t imply that she is disinterested.
- Clears up misunderstandings about her role of which she is or should be aware.
- Doesn’t give advice other than to get an attorney if there is a reasonable possibility of conflict b/t client’s interests and those of the third persons.
3
Q
If a third person is represented by counsel an attn’y may not communicate with directly w/ person when: (3)
A
- The communication concerns the subject matter of the representation.
- The third person’s counsel has not consented.
- The law does not allow the communication
4
Q
An attn’y may be subject to discipline for: (Law) (2)
A
- Knowingly making a false statement of law to the tribunal, or
- Failing to disclose directly adverse law of controlling jurisdiction
5
Q
An attn’y may be subject to discipline for: (Facts) (2)
A
- Knowingly making a false statement of fact to tribunal or
2. Failing to volunteer to the tribunal known material facts IF the proceeding is ex parte.
6
Q
An attn’y may be subject to discipline for: (Evidence)
A
Knowingly offering false evidence.
7
Q
Six types of discipline that can be imposed on GA attorney
A
- Formal admonishment
- Investegatory panel reprimand
- Pvt. reprimand
- Public reprimand
- Suspension
- Disbarment
8
Q
Allegation of misconduct are evaluated in accordance with the rules of the state:
A
where the lawyer primarily practices.
9
Q
Disciplinary proceedings must be made within:
A
4 years of wrongful act or omission. SOL on legal malpractice claims is also 4 yrs.
10
Q
Only an attorney may appear on behalf of:
A
a corporation
11
Q
To sell a law practice you must: (2)
A
- Sell practice to another lawyer
2. Give notice to clients.
12
Q
How may lawyers advertise?
A
All forms of media, as well as through direct mail as long as there is no in person solicitation and the communications are not misleading.
13
Q
Terms and basis of ____ must be clearly stated in writing.
A
fee
14
Q
Georgia requires attys to keep all copies of ads for:
A
2 years
15
Q
3 exceptions to direct solicitation to clients.
A
- Family member and friends
- Pro bono work
- Prior clients
(also other lawyers)
16
Q
A plane crash requires attys to wait ____ before sending targeted mail.
A
45 days.
17
Q
Other disasters require attys to wait _____ after other disasters before sending targeted mail.
A
30 days.
18
Q
When a lawyer is appointed to represent a client he has an affirmative duty to do so except for good cause such as: (3)
A
- Representation likely to result in violation of RPC.
- Client insists on objective repugnant or imprudent to attny.
- Other good cause.
19
Q
Competence includes:
A
requisite legal knowledge and skill; physical and mental ability; requisite time and resources
20
Q
If you are not competent to take a case you may: (3)
A
- Tell client to speak to other counsel.
- Study to become proficent in time to assist (w/ permission of client and at no extra charge)
- Associate w/ competent atty so long as client consents.
21
Q
Atty decisions in legal matters:
A
Procedural. For example: Where to file, continuances, discovery, and strategy.
22
Q
Basic rule of client confidences:
A
Atty can’t disclose any adverse info about a client no matter the source.
23
Q
Atty MAY reveal confidences in 4 situations:
A
- To prevent harm or substantial financial loss to another as a result of client or 3d party criminal conduct.
- To prevent serious injury or death
- When your client sues you (material information only)
- w/ client’s consent.
24
Q
When must an atty withdraw from representation: (3)
A
When it results in violation of rules,
If he’s fired,
If conflict arises.
25
When MAY atty withdraw from representation? (2)
When client persues a repugnant or imprudent objective, or
| Fails to fulfill duty to lawyer (pays)
26
When does conflict exist?
Assume one does --- even if the possibility is remote.
27
Conflicts to look for: 4 types
Client/client
Lawyer/client
lawyer/lawyer
lawyer/firm
28
You may represent a current client in an action against a former client EXCEPT when: (2)
1. current client wants to sue former client involving a matter which you represented the former client, OR
2. during the rep of the former client you learned confidential information that is now relevant to the action by the current client.
29
If the matters causing conflict are substantially related then there is an irrebuttable presumption that:
material knowledge was acquired.
30
Steps that must be taken to obtain consent from former client to represent a current client in a conflicting case: (3)
1. Explain the conflict to each client
2. Explain the possible negative consequences.
3. Give clients opportunity to consult independent counsel w. time to reflect.
31
As atty after taking steps when representing current clients against former clients you must consider:
whether a reasonably prudent atty would take the case.
32
Unwaivable conflicts (3)
1. Prohibited by law.
2. Those which it is unlikely that the atty can provide adequate representation to affected clients.
3. Current clients in the same or substantially related proceeding.
33
Two examples of unwaivable conflicts b/t 2 clients in same or substantially related proceedings:
1. Domestic matters
| 2. Co-defendants in criminal matters
34
Fees are to be reasonable. 7 Factors include (but are not limited to):
CLIENTS
Customary fee w/i locale for similar work
Labor and time needed
Interference w/ other employment by the atty
Experience, ability, reputation
Novelty and difficulty of the questions involved.
Time limitations imposed by client.
Skill, requisite
Basically you can consider everything relevant.
35
Contingent fees must be __ ______ and must include:
in writing and must include the method by which they are determined.
36
Cannot charge a contingent fee in:
criminal or domestic cases.
37
Fees can be divided with lawyers in another firm when: 3
1. Fee division is proportionate to work
2. Client is advised and agrees.
3. Total fee is reasonable.
38
Every lawyer must have two bank accounts:
1. Operating account (your money)
| 2. Trust account (client's money)
39
What happens to interest in trust account (IOLTA)?
All interest goes to GA bar and funds legal services.
40
To terminate a relationship with a client you must: 3
1. Provide adequate notice
2. Return file and work product to client
3. Clearly relate that relationship has ended. (pref in writing)
41
Responsibility to others: subordinate lawyer:
Has to abide by RPC but incurs no liability for others violations if supervised and it is a close ethical call.
42
Responsibility to others: supervising lawyer:
Has to abide by RPC and ensure those she supervises abides by rules.
43
Responsibility to others: Partner
Ensures EVERYONE including the other partners follow rules. Standard is if they know or should have known of violations.
44
Atty must obtain permission from orgs counsel to talk to these members of the org/corp: 3
1. with managerial authority
2. who's conduct might be imputed to the org.
3. who's statements may constitute an admission by org.
45
What to do if your client commits perjury on the stand? 2
1. Urge to recant.
| 2. If they won't recant you must withdraw.
46
Judges must avoid even the appearance of impropriety must not: 4
1. Volunteer as character witness
2. Have a membership in an illegally discriminatory organization
3. Engage in personal relationships that create the appearance of impropriety
4. Engage in misuses of judicial prestige.
47
Exceptions to where judges must refrain from ex parte communications: 4
1. Where expressly authorized by law.
2. Mediator in settlement conference
3. Emergency matters
4. Scheduling and admin matters.
48
What happens if there IS ex parte communication?
Provide notice to the other side and give them time to respond.
49
Judges are disqualified from hearing cases when judge has: 5 PERPP
1. personal knowledge of case that would affect impartiality
3. Economic interest
4. a Relative that plays a substantial role in case.
5. Personal bias or prejudice that would effect impartiality.
2. Prior involvement
50
Judges are NOT permitted to use the prestige of judicial office for:
fundraising or membership solicitation for any organization.
51
Judges may speak, lecture, teach, and participate in other extrajudicial activities concerning:
the law, legal system, and administration of justice.
52
Judges may receive a fee for speaking, etc. so long as:
there is NO impropriety OR appearance thereof.
53
Judges are generally prohibited from _______ candidates for political office.
endorsing.
54
It is reversible error in GA for a judge to:
comment on the evidence or express and opinion about the merits of the case to the jury.
55
Judges may not engage in the practice of law but they may:
act pro se and without compensation they may give advice to family members.
56
Prosecutors must make timely disclosures of:
any and all information that negates guilt or mitigates the offense of a criminal D.
57
A lawyer cannot make an extrajudicial statement that is substantially likely to:
materially prejudice the legal process UNLESS it is a statement to protect a client from prejudice NOT initiated by statements from the lawyer or client.
58
A lawyer must not knowingly make, what kind of statement?
a false statement of material fact to avoid repercussions of crime or fraud UNLESS disclosure violates confidentiality.
59
A lawyer must not knowingly fail to disclose:
material facts to avoid repercussions of crime or fraud UNLESS disclosure violates confidentiality.
60
An atty has an affirmative duty to alert the court to:
adverse legal authorities.
61
The affirmative duty to alert the ct to adverse legal authorities only extends to:
cases in the controlling jurisdiction not already disclosed by opposing counsel.
62
There is no duty to disclose authority that:
is merely persuasive
63
Fairness to opposing counsel: A lawyer must not: (3 things)
1. Obstruct another party access to evidence
2. Falsify evidence, or
3. Request a person other than client refrain from voluntarily giving relevant information to another party (with two exceptions)
64
Fairness to opposing counsel: A lawyer must not ask a person other than client refrain from voluntarily giving relevant information to another party unless: 2
a. the person is a relative, employee, or other agent of the client, and
b. the lawyer reasonably believes that the person's interests won't be adversely affected by not giving such information.
65
Fee sharing: Never divide a legal fee with:
a non-lawyer. (subject to exceptions)
66
It is permissible to share a legal fee with a non lawyer in cases of: (5)
1. Salaries
2. Retirement plans
3. Bonuses
4. Profit sharing, and
5. Spouses or heirs of deceased partners (when the fee was earned by the deceased partner)
67
Conflicts created by other lawyers in the office:
are considered imputed to the entire firm.
68
Exception to the rule of imputation:
Where two lawyers are related in a matter where the client's interests are directly adverse. The must get CONSENT.
69
A lawyer for a corp or PS represents:
the entity and NOT any of the individuals involved.
70
A lawyer handling a wrongful death case owes a fiduciary duty to:
the statutory beneficiaries to ensure that their interests are protected, even if they are not clients.
71
Doing business with a client is generally prohibited unless:
it is fair to the client. (HOW DO YOU DETERMINE THAT?)
72
The prohibition of doing business with a client does NOT apply to:
standard commercial transactions or business not connected to your representation.
73
Prohibition on doing business with a client alway applies to:
any financial interest adverse to the client.
74
A lawyer must not enter into a business relationship w/ a client or knowingly acquire an ownership or other pecuniary interest adverse to a client unless: (3 things)
FrOcW
1. Transaction and terms in which the atty acquires the interest are FAIR AND REASONABLE to the client;
2. The client is given a REASONABLE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT COUNSEL on the transaction, and
3. The client consents IN WRITING thereto.
75
Conflict of interest w/ other responsibilities of the lawyer: Atty must not represent a client if the representation of the client may be materially limited by:
the lawyer's responsibilities to another client or to a third person or by the lawyers own interests.
76
Atty must not represent a client if the representation of the client may be materially limited by the lawyer's responsibilities to another client or to a third person or by the lawyers own interests UNLESS: (two things)
1. The lawyer REASONABLY BELIEVES the representation will not be adversely affected, and
2. The client CONSENTS after consultation.
77
If the conflict can be consented to, the atty may continue to represent each affected client if the affected or former client consents (pref. in writing) AFTER:
1. Informed consultation
2. Adequate written information about the risks
3. Opportunity to consult with another attorney.
78
Can you limit your malpractice exposure?
No. Never.
79
If you draft a will you cannot:
be a beneficiary in the will you are drafting.
80
Generally an atty can't be a beneficiary in a will that she drafted, except: (2 times)
1. Family members
| 2. De Minimis or nominal gifts.
81
In GA an atty drafting a will may owe a duty not only to the testator but also to:
the beneficiaries. This allows the beneficiaries to sue for malpractice.
82
You ________ lend money to clients.
cannot
| This applies even to de minimus loans.
83
Prohibition on lending money to clients does not apply to:
litigation expenses.
84
Fee payment by a third party: Your duty is to:
the client, regardless of who pays the fees.
85
Where is there ALWAYS a conflict:
when representing current client against current client (e.g. uncontested divorce) IT CANNOT BE DONE.
86
A lawyers duty to preserve confidences extends:
beyond the representation of the client and survives death.
87
Confidentiality duty is _________ than attorney/client privilege.
broader.
88
Atty/client privilege applies against:
the government in judicial and other legal proceedings in which the lawyer is called as a witness or required to produce evidence.
89
An atty must keep a client informed of :
objectives and status of representation.
90
Communication: The atty must promptly comply with:
reasonable requests for info.
91
The atty must abide by the client's wishes unless doing so would be:
illegal, unethical, or immoral.
92
A lawyer cannot further a client's unlawful objectives by:
knowingly providing legal advice to effectively commit or conceal a crime.
93
A lawyer cannot hold herself out as a specialist unless: 2
1. she is certified as a specialist by a bona fide entity (as recognized by GA Bar Ass'n) OR
2. she practices patent, trademark, or admiralty law
94
Can lawyers pay people finders fees for referrals?
No. Atty can't pay anything of value to person for a referral.
95
The test for whether an ad is misleading is whether a :
lay person would find the statement or ad misleading.
96
A lawyer may not enter into a non-compete agreement or provisions w/ current partners or associates b/c:
cts say that clients have absolute right to atty of choice.
97
By statute "practice of law" in GA includes:
representing litigants and preparing legal pleadings, conveyancing, preparing legal instruments, securing legal advice,
98
While laypersons may appear pro se only an attorney can appear on behalf of a:
corporation.
99
Each state makes an independent determination of whether the conduct violates that state's ethical rules. But most other states will give some effect to a sister state's determination on the basis of:
full faith and credit or on the basis of comity
100
Continuing to work as a lawyer after suspension or disbarment can constitute:
a crime, which is a misdemeanor.
101
You are a lawyer all the time and therefore are expected to: 3
1. Uphold the integrity of the profession an its members
2. Report misconduct
3. Do some pro bono work.
102
Complaints involving GA atty conduct are investigated by:
the state bar through a panel disciplinary board.
