Professional Responsibility Flashcards
1
Q
When all else fails, what should you seek?
A
Full disclosure to the client + informed written consent from the client
2
Q
When will a violation of P.R. entail discipline?
4
A
Depends on all of the facts and circumstances:
- Willfulness of the violation
- Seriousness of violation
- Extenuating factors
- Prior violations
3
Q
Applicants for admission to the bar, and lawyers in connection with a bar admission application or a disciplinary matter, shall not:
A
- Make a false statement of material fact
- Fail to respond to demand for non-confidential information
- Cannot mislead
4
Q
If there is an incorrect statement on a bar application, the lawyer has a duty to
A
Correct any false statements or
-Correct misapprehension of facts
5
Q
Limits on what bar examiners may ask
A
far beyond what an employer may require
6
Q
a lawyer who knows of derogatory information about a bar candidate cannot disclose that information if:
A
it is confidential information
7
Q
What happens if an applicant lies on application and is later admitted?
A
He is still subject to discipline
8
Q
You can lose your right to become a lawyer if
4
A
- violate RPC
- commit a criminal act
- engaging in fraudulent or deceitful conduct (less than criminal act)
- any conduct that interferes with the administration of justice
9
Q
What happens if you lie or refuse to cooperate with a disciplinary action from the bar?
A
-can be disciplined unless
- Asserting 5th amendment privilege
- Asserting attorney client privilege
10
Q
Who has a jurisdiction to discipline lawyer?
A
Wherever you violate the rules, N.C. can discipline you for your action.
11
Q
Conduct in connection with a matter pending before a tribunal shall be subject to the rules of the jurisdiction in which:
Any other conduct will be subject to the rules of the jurisdiction in which:
A
If appearing in court, then the rules of where the court is controls
Where did the conduct occur?
Where is the predominate effect of the conduct?
12
Q
In Law Firms + Associations partners and supervising attorneys shall make:
A
reasonable efforts to make sure that everyone is compliant with the rules
-goes to all those associated
13
Q
Supervising attorneys are personally responsible for subordinates’ ethical violations if:
(2)
A
- orders the work; or,
2. ratifies the work
14
Q
Subordinate attorney liability for following orders of a senior attorney?
A
- still liable to uphold PC
- exception: if the course of action was a (1) reasonable resolution of an (2) arguable question professional duty
15
Q
Sale of a law practice rules
3
A
- can only be sold to other lawyers
- do not compete directly with law practice after you sell it
- have to notify clients of sale in writing
16
Q
Lawyer advertising v. solicitation
A
Advertising: not personally targeted to any specific person
Solicitation: A personal contact with a specific prospective client about a specific matter
17
Q
Lawyer advertising allowed if
5
A
- advertising is not misleading (cannot leave out small details)
- cannot create an unjustified expectation about the results they can achieve
- cannot say anything that cannot be factually verified (no puffery)
- Lawyer cannot give anything of value for client referrals
- Cannot have a misleading name without disclosure (e.g. a lawyer named but not licensed to practice)
18
Q
Lawyer advertising specialization allowed if
A
Can
-describe area of practice
Cannot
-Call yourself a specialist unless you have been certified by the State Bar or affiliate
19
Q
Lawyer can only solicit
6
A
- another lawyer
- family
- prior client
- prior business relationship
- close personal relationship
- Pro Bono motive (Robin Hood Exception)
20
Q
A lawyer may not solicit any potential clients if:
A
- they say they do not want to be solicited; or,
2. using pressure tactics (soliciting someone under duress)
21
Q
Advertising circulars sent through the mail targeted to those known to be in need of particular legal services are allowed if
A
- on the outside of envelop
2. words in all capital letters “THIS IS AN ADVERTISEMENT FOR LEGAL SERVICES”
22
Q
A lawyer may participate in a prepaid or group legal services plan which uses personal solicitation to se-cure clients, as long as:
A
- the plan is registered with the state bar
2. the lawyer notifies the state bar about their affiliation with the plan
23
Q
A lawyer may not represent a client if?
4
A
- cannot take a case if you are not physically or mentally up to it
- if you are not competent
- if you are so busy you cannot promptly take care of the matter
- if you have a conflict of interest
24
Q
A lawyer who has had discussions with a prospective client may not
what duties?
A
The lawyer may not represent a client with materially adverse interests to those of a prospective client in the
+
same or a substantially related matter
+
if the lawyer received information from the prospective client that could be significantly harmful to that person
—–unless you get fully informed consent from both parties—-
duty of confidentiality
+
duty of loyalty
25
Competence factors
| 4
1. nature of the matter
2. lawyer's general and specific expertise
3. could it have been referred
4. amount of time the lawyer can spend on the case
26
What is the emergency need exception to competence?
Can represent them if you limit what they are doing to what is reasonably necessary
27
If not competent you should
| 3
1. withdrawal
2. get competent
3. associate with someone who would be competent
28
Attorney's Fees cannot be
| 4
Clearly excessive: weigh:
- Time and skill required
- What's customary
- Amount involved in matter
- Lawyer skill and expertise
29
Rules for contingent fee agreements
Contingent fees must be agreed to in writing,
+
and the writing must state the method of fee calculation, litigation and other expenses to be deducted, and whether those expenses are deducted before or after the fee is calculated.
30
When can you not have contingent fees?
| 2
- criminal cases
| - domestic cases
31
What costs can a lawyer advance?
court costs
≠ advance other expenses
32
Limitations on fee agreements?
You cannot threaten to abandoned a client for a higher fee
33
Division of fee rules
1. total fee still has to be reasonable
2. the division of the fee has to be proportionate to the work done
3. client has to agree in writing
34
What may a lawyer not receive as payment for services?
An acquisition of a proprietary interest in the cause of action or subject matter of the litigation
(e.g. cannot take 10% of copyright royalties you are trying to enforce)
35
In the event of a dispute with the client about a fee, a lawyer must
make reasonable efforts to advise the client of the State Bar’s fee dispute resolution program.
36
Client Trust Accounts must be
| 4
1. segregated: from your money (cannot put your money in)
2. documented
3. prompt action: must deposit promptly into account
4. must be in a bank in N.C.
37
If third parties have lawful claims against funds or other property held in trust by a lawyer:
Lawyer may have a duty to protect the account from client
38
What to do with interest in a client trust account?
Client specific account: pay to client
General trust account: pay to states IOLTA fund
39
Documentation requirement for Client Trust Accounts
| 2
1. keep records for past 6 years
| 2. give accounting to client when concluded or upon request
40
If there is a dispute about client funds, what must you do with their client trust account
Leave the funds in dispute in the trust account until the dispute is resolved
41
Where a lawyer enters into a business transaction with a client: What needs to be done?
(4)
1. terms of business must be fair and reasonable
2. fully disclosed in writing
3. written advisory that they should seek a lawyer
4. written, signed, informed consent
42
When can a lawyer receive gifts from a client?
Can receive a gift but could be voided under undue influence if substantial
-cannot solicit
43
Obtaining Literary or Media rights of a client
generally, you cannot take them as a lawyer
44
When can a lawyer provide financial assistance to a client?
only court costs
45
Where a lawyer represents two or more clients, the lawyer may not make an aggregate settlement of the claims of or against the clients, unless
each involved client gives informed consent in a signed writing
46
A lawyer shall not make an agreement prospectively limiting his liability to a client for malpractice unless:
the client is independently represented in making the agreement
47
A lawyer may not settle a claim for malpractice liability with an unrepresented client or former client unless:
the client must be advised in writing that they need to obtain other legal counsel
48
Sexual relationships with clients allowed when?
Only when having sex with a client started before they became a client
49
A lawyer may not represent a client if the lawyer is a necessary witness unless:
(3)
1. facts to be testified are not disputed
2. talking about fee agreements
3. would pose a substantial hardship to the client in obtaining a new lawyer
50
If opposing counsel is a close relative, then you
cannot litigate against them; unless you get informed consent
51
Conflicts Involving Present Clients: you cannot represent clients if
representation is directly adverse to another client
52
A lawyer cannot represent a present client with interests materially adverse to those of a prospective client if
(2)
What about the lawyer's firm?
**same or a substantially related matter**
+
if the lawyer received information from the prospective client that could be significantly harmful to that person
-get informed consent + have to screen out the lawyer from litigation
53
Conflicts Involving a Present Client and a Former Client
A lawyer cannot represent a present client with interests materially adverse to those of a former client if **same or a substantially related matter**
and
Cannot use information from the past
54
A substantially related matter is determined by asking?
Is there a substantial risk that you gained information from that client that could presently be used against that client
55
A third party may pay for a client’s representation only if
1. get consent in writing
2. cannot allow 3rd party to interfere with representation
3. maintain confidentiality
56
Disqualification occurs when?
| 2
1. actual conflict: reped both sides of the V
| 2. potential conflict: substantially related matter
57
What is imputed disqualification?
If a lawyer is disqualified, imputed to the rest of the firm
Unless, they are screened from the client + informed consent
58
When lawyers leave or join firms, the key to analyzing whether a firm is disqualified because of a conflict of interest is
to determine who knows what. Think of knowledge as a contaminant.
If there is contamination, then disqualified
59
Conflicts Involving Lawyers Employed by the Government
Can work for enemy: a former government lawyer to join a firm which has clients with direct conflicts with the government agency and about which the attorney possesses protected information
≠work on same matters they worked for as with the government
60
Withdrawal is mandated when
| 4
1. the client insists on a course of conduct that fraudulent or criminal
2. a conflict of interest
3. lack of competence
4. the lawyer gets fired by the client (does not matter when)
61
Withdrawal is permissive when?
| 9
1. the lawyer can withdrawal without material effect on client
2. if client consents to withdrawal
3. client persists in a course of action that lawyer reasonably believes is criminal
4. client insists upon taking action that is repugnant or there is a fundamental disagreement
5. the client has used lawyer's services for crime or fraud
6. representation has been made unreasonable by client
7. client insists on a defense or claim that is outside the law
8. fee argument
9. catch all
62
To withdrawal, what must happen?
have the necessary grounds
+
Court must allow
(protect clients interest in withdrawal)
63
What is the lawyer's duty to zealously represent a client
A lawyer must do everything legally and ethically necessary to further the client’s interest, **unless the client’s motive is solely to harass or maliciously injure another party**
(1) A lawyer is to assume the client’s motive is proper, unless the lawyer has clear evidence to the contrary.
64
What does the lawyer get to decide in the representation? What does the client get to decide?
Client decides the goals
Lawyer decides the means (does not ultimately have to defer to the client)
65
If you have a fee agreement, what must it address?
1. fee
+
2. scope of representation
66
If the lawyer becomes aware of the client’s fraudulent or criminal course of action, then
the lawyer must avoid assisting the client
67
A noisy withdrawal is?
undoing whatever the lawyer did to assist the client's crime or fraud (disaffirm opinions or documents)
68
Lawyer duty of dilligence
A lawyer must act with reasonable diligence and promptness in representing a client
69
What must a lawyer do when communicating with clients?
| 2
1. reasonably consult with them
2. must explain a matter to the extent reasonably necessary to permit the client to make informed decisions about the representation. (give them info to make decision)
70
When can you have contingency fee agreement in a domestic relations case?
When you are enforcing a judgment already entered.
71
What is Duty to Avoid Frivolous Claims?
In Criminal Cases?
Pursuing a claim where there is no good faith argument
-criminal cases it is not frivolous to make prosecutor prove every element of a claim
72
What is Duty of Candor to the Court
| 4
A lawyer shall not knowingly:
1. make a false statement of a material fact or law to the court
2. failing to correct a false statement of a material fact
3. failing to disclose legal authority in the controlling authority that is directly adverse to clients position
4. offer evidence known to be false
73
If a lawyer reasonably believes the evidence to be false but does not know, what must they do?
may refuse to offer the evidence (can offer the evidence)
74
If a lawyer learns material evidence is false after it has been offered, the lawyer must
take reasonable remedial measures, which may include disclosure to the court.
75
When must a lawyer offer evidence even if they know it is false?
Testimony by a criminal defendant on their own behalf
76
What is Duty of Fairness to Opposing Party and Counsel
| A lawyer cannot:
1. break the law
2. falsify evidence
3. induce others to break the law for you
77
In trial, a lawyer cannot
| 2
1. allude to evidence that inadmissible
| 2. cannot deliberately delay litigation
78
What is Duty to Maintain the Impartiality of the Tribunal
| 3
1. cannot influence judge
2. cannot have ex parte conversations with judge
3. no ex parte conversations with jurors
79
What may a lawyer not do in trial publicity?
A lawyer may not make an extrajudicial statement that the lawyer knows or reasonably should know will be made public, and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.
-Lawyer gets more space if the other side threw stones first
80
Special duties of prosecutor to the press
Unless a statement is necessary to inform the public of the nature and extent of the prosecution and it serves a legitimate law enforcement purpose, prosecutors may not make statements that have a substantial likelihood of heightening public condemnation of the accused.
- killed three people - fine
- only an animal would do this - not fine
81
If there Adversity of Interest Between Organization you are representing and Constituent, you must
the lawyer should advise the constituent of the conflict or potential conflict of interest, that the lawyer cannot represent the constituent, and that the constituent may wish to obtain independent representation.
82
The attorney-client privilege protects communications that are:
(4)
1. confidential communications (has to be intended to be confidential in a confidential environment)
+
2. Protect communications between the client with attorney + reps
+
3. Made for the purpose of seeking legal representation
+
4. the client has not waived the privilege by disclosing the communication
83
Who is the holder of attorney-client privilege?
the client, they can decide if they want it or not
Default, it is there
84
When a lawyer represents a corporation or organization, the attorney-client privilege protects
(4)
1. conversations between lawyer and officers of org
2. Privilege may protect an employee if
a. made for the purpose of representation
b. in scope of employee's position
c. at direction of manager
85
Duration of attorney client privilege?
After death
86
Exceptions to attorney-client privilege
| 4
1. Furtherance or Prevention of Crime or Fraud
- when purpose of communication is to perpetrate a future crime or fraud (does not apply to past crimes)
2. Claimants Through the Same Deceased Client
- in will contests, the lawyer who drafted the will can testify
3. Breach of Duty by Lawyer or client
- sue for breach of contract or malpractice (can disclose what's needed to defend yourself)
4. Joint Clients
- when there is a dispute between joint clients, attorney client privilege does not apply
87
Professional Obligation of Client Confidences
Generally, a lawyer cannot reveal information acquired during a professional lawyer-client relationship.
-must keep everything confidential (could have to testify but cannot talk about it otherwise)
88
When is disclosure of client confidences permitted?
| 2
1. informed consent from client
| 2. implied authorization from the client
89
When an attorney is ordered to disclose information, what should he do?
Assert privilege and wait for court hearing on whether the privilege applies
90
The Crime fraud exception to client confidences is?
| 3
A permissive, **not mandatory grounds for disclosure**
- when a client is going to commit a crime
- when a client’s acts will result in reasonably certain death or bodily harm
- When a lawyer’s act will prevent, mitigate, or rectify the consequences of a client’s crime or fraud:
91
Duty of confidentiality to former clients
You can never use information learned in the representation to the disadvantage of the client
92
When dealing with third parties in the course of representing a question, a lawyer must not
make untruthful representations
-no duty to educate them
≠negotiations
93
When can a lawyer speak with someone represented by counsel?
cannot communicate about the subject matter with a person represented by counsel without their lawyer
94
When dealing on behalf of a client with unrepresented persons, the lawyer shall not:
1. give them any legal advice
2. suggest that they can be disinterested
Have to be clear that they do not represent them
95
In representing a client, a lawyer must not use means that:
have no purpose other than jerking someone around
96
A lawyer who is not admitted in North Carolina may not
establish an office or continuous presence for the practice of law
97
A lawyer admitted to practice in another jurisdiction but not in North Carolina is not engaging in the unauthorized practice of law if:
1. they only appear here
98
A lawyer may employ the services of paraprofessionals and delegate functions to them, as long as
the lawyer supervises (must be opportunity for supervision)
+
retains responsibility for their work.
If not, then unauthorized practice of law
99
Fee-splitting is not allowed
between lawyers and non-lawyers
100
Association with non-lawyers
cannot have non-lawyer law partners
101
Duty for Reporting Professional Misconduct arises when?
1. lawyer knows of a breach of the rules, when
2. raises a substantial question of fitness, honesty, or trustworthiness of lawyer
Must inform Bar
102
Lawyers may make evaluations for the use of third parties if
They receive the consent of the client after consultation
103
What is the only way to have a client waive malpractice liability?
They must be independently represented
>notice to seek representation
104
When may a lawyer receive a substantial gift from an instrument they draft for a client?
When the lawyer is related to the person they draft for
105
What must a lawyer do if they learn of circumstances that pose a danger to their corporate client?
First: The lawyer must report "up" the corporate hierarchy the information learned
+
If company takes no aciton After reporting up: can report out to the extent necessary
