Professional Responsibility Flashcards
Who may limit the scope of an attorney’s representation of a client?
Lawyers and clients may limit the scope of representation.
When must settlement offers be communicated to a client?
Always, unless client creates a minimum-offer requirement.
What three decisions must an attorney representing a criminal defendant allow the client to make?
(1) whether to testify
(2) right to a jury trial
(3) whether to accept a plea
When is a client considered to be under a disability?
(1) minors
(2) medical disabilities
What obligations does an attorney have to a client under a disability?
(1) maintain an ordinary relationship
(2) appoint a guardian, if necessary
(3) can reveal existence of the disability if necessary to protect the client
In what circumstances must an attorney withdraw from representing a client? (Mandatory withdrawal)
(1) Conflict of interest
(2) violation of a rule of professional conduct
(3) client’s purpose is harassment
(3) attorney impairment (drug abuse / addiction)
(5) fired by client
Note: Once court processes start, attorney must receive leave of court to withdraw.
Is a lawyer who was fired by his client still entitled to fees?
Generally, attorney is entitled to fees for reasonable value of work done.
BUT, not entitled to fees if the attorney was fired for incompetence/doing a bad job.
When can a client fire/discharge a lawyer?
Client has an absolute right to discharge his lawyer for nay reason or no reason.
What are the requirements for a permissive withdrawal?
(1) No material harm to client’s interests
(2) Court’s permission
When can a lawyer exercise permissive withdrawal even when it will materially harm a client?
(1) Lawyer “reasonably believes” his services are being used for criminal or fraudulent purposes
(2) Lawyer learns that previous services used for crime or fraud
(3) client’s action is repugnant or lawyer fundamentally disagrees
(4) Client deliberately fails to pay fees / obligations to lawyer
(5) Representation is unreasonably difficult for lawyer
(6) Inability to work with co-counsel
(7) Other good cause
Note: once in court, lawyer must receive permission from the court to withdraw.
What duties does a lawyer owe a client after termination and withdrawal?
(1) return all client’s property
(2) return any unearned fees
(3) can retain lien on client’s property for fees owed, but cannot harm the client by selling any property.
What four factors are considered in determining “reasonable rates” for a lawyer’s fee?
(1) Time (hourly rate)
(2) novelty (new matter or novel issue)
(3) amount in controversy (more money at issue / greater risk)
(4) nature of relationship (new or established)
Must a fee arrangement between lawyer and client be in writing?
Need not be in writing, UNLESS…
(1) matter involves domestic relations, OR
(2) matter involves fees of more than $3,000
Are bonuses allowed to a lawyer for services?
Not required unless it is provided for in the fee agreement.
When are contingent-fee agreements not allowed?
(1) criminal caes
(2) domestic relations cases
What are the requirements for a valid contingent-fee agreement?
(1) signed agreement
(2) contains calculation methodology = fees and expenses must be detailed
What must a client do with any unearned fees or advanced costs not used?
Put them in escrow for return to the client.
What is a “business transaction” between lawyer and client?
Any business transactions with the client OR acquisitions of an ownership or security interest in the client’s property.
What are the requirements for a lawful business transaction between lawyer and client?
(1) in writing
(2) fair and reasonable
(3) advise the client to seek independent counsel
(4) client gives informed consent and signs agreement
What must a client do in order to take a lien on client’s property in a domestic relations action?
Must give notice to the opposing party.
When may lawyers from different firms split a fee?
(1) fee split in proportion to services rendered
(2) client agrees to split after full disclosure of the arrangement
(3) total fee is not excessive
How does NY feel about arbitrating lawyer-client disputes?
Strongly encourages arbitration.
What information is “confidential” between lawyer-client?
(1) info protected by attorney-client privilege
(2) info likely to be embarrassing or detrimental
(3) info requested to be kept confidential
What communications are covered by the attorney-client privilege
Must be:
(1) testimonial communication (not a piece of evidence),
(2) given confidentially, AND
(3) actually kept confidential
What are the three exceptions to the attorney-client privilege?
(1) crimes
(2) disputes between client and lawyer
(3) communications regarding wills
When does the attorney work product doctrine apply?
Absolute protection = products which are uniquely the product of the lawyer’s learning and professional skills, e.g., legal research, analysis, conclusions, legal theories, or strategies.
Qualified protection = trial-preparation materials
What is needed to overcome work product doctrine for trial-preparation materials?
Showing of…
(1) substantial need for materials, AND
(2) inability to obtain equivalent materials without undue hardship
Attorney’s mental impressions, conclusions, opinions, and legal theories remain protected.
What information must n attorney keep confidential for a prospective client?
Any confidential information learned from them.
When may an attorney exercise permissive disclosures? (can but not required to reveal)
(1) informed consent by client
(2) implied by representation
(3) to prevent reasonably certain death or substantial bodily injury
(4) to prevent client’s criminal act
(5) controversy with clients or disciplinary proceedings
(6) by court order
When does a lawyer have a conflict of interest?
(1) represents directly adverse client (never waivable)
2) material limitations on lawyers representation (waivable
When may a lawyer have sexual relations with a client?
Only if sexual relations pre-date representation.
Absolute ban in domestic relations cases OR with control-group of a represented organization.
Note: This disqualification is personal and not imputed to firm.
What is the standard for conflicts of interest with former clients?
Cannot represent a new client for “the same or substantially related matter” unless former client gives consent.
“Substantially related” = risk that confidential information obtained in prior representation would materially advance the new client’s interests.
When can a lawyer obtain media rights in a representation?
Only after the conclusion of representation.
Want business relations with a client are completely prohibited?
(1) loans to clients
(2) advances to clients, EXCEPT for court costs.
May a lawyer contract with a client to limit malpractice recovery?
No. Such agreements are unenforceable.
May a lawyer contract with a client for liquidated damages?
No.
May a lawyer solicit a gift from a client?
No. Solicitation of gifts, including testamentary gifts, is prohibited.
When a lawyer represents an organization and knows of a violation, what should the lawyer do?
Take all appropriate measures to rectify, including going all the way up the organization’s command to the board. If board refuses to correct, can make a “noisy withdrawal.”
What are the four malpractice lawsuit theories?
(1) contract
(2) fiduciary relationship breach
(3) intentional tort (e.g., fraud)
(4) negligence
When is settlement with a client on malpractice action permissible?
(1) client advised in writing to seek independent counsel
(2) client given reasonable opportunity to seek independent counsel
May a lawyer rely on a client’s factual assertions when evaluating whether a claim is frivolous?
Yes. But there must be “reasonable investigation” into those facts within a reasonable time.
What remedial measures must a client take if he finds out that a witness will commit perjury or submit false evidence to the court?
(1) attempt to dissuade the witness, then
(2) reveal the matter to the court and seek withdrawal
If criminal ∆ = trial-by-narrative approach
What additional duties do prosecutors have in a criminal trial?
(1) Must have probable cause
(2) May not take advantage of unrepresented people
(3) Must disclose of exculpatory information
(4) May not subpoena lawyers to destroy privilege
(5) Must watch advocacy in the media
(6) must remedy any error if the error is discovered by clear and convincing evidence
May a lawyer engage in “real time” direct contract to solicit business from a client?
No. “Real-Time” direct contact to solicit business is prohibited (absent family or pre-existing legal relationship).
EXCEPTION: can have “real time” contact to solicit volunteer rule
Can a lawyer use general mailings and target mailings to solicit business from a client?
Yes. Unless the lawyer knows that the recipient is in a state that makes him incapable of a reasoned choice. 30-day prohibition on contacting victims of accidents through targeted, direct mail.
When is a supervising attorney vicariously liable for violations of supervised attorneys and non-professionals?
(1) orders the action
(2) ratifies the action
(3) fails to take remedial action
When is a subordinate attorney vicariously liable for actions ordered by a supervising attorney?
Liable for all actions, unless action was reasonable.
Does a lawyer have a duty to report known violations of the professional rules?
Yes. Only if the lawyer “actually knows” about a violation.
Can a lawyer enter a fee split agreement with a non-lawyer?
No. (except for estates and retirement plans)
What steps must take place in the sale of a legal practice?
(1) stop practicing
(2) notify the client
(3) sale of practice must be made to other lawyers
(4) no increase in fees
May a lawyer sign a covenant not to compete?
No.
What three extra things must a lawyer representing a client in a domestic relations matter do before taking on the representation?
(1) retainer agreement must be written and signed by lawyer can client
(2) provide statement of client’s rights and responsibilities at initial conference, prior to signing retainer
(3) cannot have security interest or lien without prior notice provided to client in signed retainer AND court approval AND notice to adversary
When may a lawyer foreclose on a mortgage placed on the marital residence (assuming all the rules for creating the mortgage were met)?
Cannot foreclose while the spouse that consented to the mortgage remains a titleholder AND residence remains the spouse’s primary residence.
When a lawyer is required to have a written retainer agreement / engagement letter, what must it include?
(1) scope of services
(2) fees to be charged
(3) arbitration notice for the fee, if applicable
May fees be split within a law firm with a retired attorney?
Yes.
How long must a lawyer retain records of an account where client funds were stored?
7 years after the events they record
What is the conflict of interest standard for a former government lawyer?
Prohibited from representing a client in a matter that the lawyer participated “personally and substantially” in.
What are the procedures for screening a lawyer in a new law firm?
(1) notify lawyers/personnel at the firm about the screen
(2) timely screen the lawyer from any participation
(3) give written notice to former client/government agency
When can a lawyer accept payment from a third-party who is not the lawyer’s client?
Only if
(1) client gives informed consent
(2) no interference with lawyer’s professional judgment or the lawyer-client relationship
(3) lawyer-client confidentiality is preserved
Note: This applies when a parent pays for the representation of a competent child. Child is the client.
When is a lawyer prohibited from offering false evidence to a tribunal? What scienter requirement is necessary?
Lawyer must “actually know” / have actual knowledge that the evidence is false.
Reasonable belief that evidence is false does NOT preclude its presentation. But a lawyer who reasonably believes evidence is false MAY refuse to offer it into evidence (except for testimony of criminal ∆).
When is failure to turn over exculpatory evidence to a criminal defendant a reversible error?
Undisclosed evidence is material only if there is a “reasonable probability” that it would have altered the outcome of the trial. ∆ must show a “reasonable possibility” that the failure to disclose the exculpatory report contributed to the verdict.
