Professional Responsibility Flashcards
The Georgia Rules of Professional Conduct (RPC) are modeled on the format of the American Bar Association’s (ABA’s) Model Rules of Professional Conduct, but they contain some substantive differences.
What type of requirements does the State impose upon candidates for legal licensure?
States impose educational, knowledge, and character requirements on applicants for admission to the practice of law.
What is the educational requirement to join the bar?
Georgia requires graduation from an ABA-accredited law school for admission to practice. Ga. R. Gov’g Admis. Prac. Law B § 4(b)(1).
What is the examination require for bar membership?
Applicants must also pass a written exam. Ga. R. Gov’g Admis. Prac. Law B §§6, 8, 14. The examination requirement may be waived if a person is a member in good standing of a bar association in another state that has reciprocity with Georgia and if he is otherwise qualified. The requirement that a person is qualified includes that for at least five of the seven years immediately before applying for admission to the bar, the applicant was practicing law, teaching law, or was a judge. Ga. R. Gov’g Admis. Prac. Law C §§ 2, 3.
Describe pro hac vice?
A lawyer licensed to practice in one state who wants to represent a client before a court in another state may file a motion for admission to practice pro hac vice (“for this turn only”). Granting a right to appear pro hac vice is within the discretion of the jurisdiction and the presiding judge. See Ga. Unif. Super. Ct.4.4.
What is “prohibited behavior” for bar exam application process?
i) Knowingly making a false statement of material fact in connection with the application; ii) Failing to disclose a fact necessary to correct a misapprehension known to have arisen in the matter; or iii) Failing to respond to a lawful demand by an admissions authority in connection with the application (unless the fact is protected by the rules governing confidential communications). RPC 8.1.
May an applicant refuse to provide an unprivileged answer?
An applicant may refuse to provide unprivileged answers to questions having substantial relevance to qualifications to uphold the law. This is as a result of the applicant’s Fifth Amendment privilege. If an applicant is not answering a question as a result of invocation of this privilege, then the RPC requires that he include this information in his answer. RPC 8.1, cmt. 2.
What effect can violating a rule of professional conduct have for an applicant?
Violation of any of these provisions may prevent admission. A previously admitted applicant may be subject to discipline for violating any provision.
What is the “unauthorized practice of law”?
A lawyer is subject to discipline for practicing in a jurisdiction in which he is not admitted. Lawyers are also obligated to ensure that only authorized persons engage in the practice of law and are subject to discipline for assisting non-lawyers in the unlicensed practice of law. RPC 5.5.
What are the exception from the rule prohibiting the unauthorized practice of law?
1) Pro hac vice 2) In association with a local lawyer
What are ground for misconduct?
(1) Violate or attempt to violate any of the RPC, knowingly assist or induce another to do so, or do so through the acts of another; (2) Be convicted of a felony; (3) Be convicted of a misdemeanor involving moral turpitude when the underlying conduct relates to the lawyer’s fitness to practice law; (4) Engage in professional conduct involving dishonesty, fraud, deceit, or misrepresentation; (5) Fail to pay any final judgment rendered against the lawyer for money collected by him as a lawyer within 10 days after the time appointed in the order or judgment; (6) State or imply an ability to influence improperly a government agency or official; state an ability to achieve results by means that violate the RPC or other law; achieve results by means that violate the RPC or other law; (7) Knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law; (8) Commit a criminal act that relates to the lawyer’s fitness to practice law or reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer, when the lawyer has admitted the act in court. RPC 8.4.
When is a lawyer responsible for the misconduct committed by others?
A lawyer is subject to discipline for misconduct committed by another lawyer if the lawyer: (1) Orders the misconduct; (2) Ratifies the misconduct with knowledge of the specific conduct; or (3) As a partner in a law firm, a manager, or a lawyer with direct supervisory authority over another lawyer, knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. RPC 5.1(c).
Who is a “partner”?
A “partner” is a member of a partnership, a shareholder in a law firm organized as a professional corporation, or a member of an association authorized to practice law. RPC 1.0(l). A lawyer who has supervisory authority in a corporate enterprise or government agency is also considered a partner for the purposes of RPC 5.1.
What must a law partner do to ensure their firm is conforming to the RPC?
Partners in a law firm must make reasonable efforts to ensure that the firm has measures in place that give reasonable assurance that all lawyers in the firm conform to the RPC and that the conduct of all non-lawyers working for the firm conforms to the RPC. RPC 5.1(a). The definition of “reasonable measures” depends on the size and kind of firm. RPC 5.1, cmt. 3.
When are lawyer’s punished for the conduct of non-lawyers?
Partners may be subject to discipline for ratifying conduct by a non-lawyer if the conduct would have violated the disciplinary rules if it had been engaged in by a lawyer. RPC 5.3(c).
What responsibilities are associated with direct supervision?
A lawyer with direct supervisory authority over another lawyer or non-lawyer must make reasonable efforts to ensure that the supervised person’s conduct conforms to the RPC. RPC 5.1(b) and 5.3(c).
What responsibilities are associated with being a subordinate lawyer?
A subordinate lawyer must conform to the RPC even if acting under the direction of a supervising lawyer. The subordinate lawyer does not violate the rules, however, if he acts in accordance with the supervising lawyer’s reasonable resolution of an arguable question of professional duty. RPC 5.2.
Can one state bar discipline a lawyer for misconduct conducted in another state?
A lawyer is subject to discipline for misconduct in any state or jurisdiction in which the lawyer is admitted to practice, even if the misconduct occurred outside of that state or jurisdiction. RPC 8.5.
Must a lawyer report misconduct by another lawyer?
A lawyer must report misconduct by another lawyer to the appropriate professional authority (e.g., disciplinary agency) when the lawyer has actual knowledge of the misconduct. The duty to report is limited to matters that raise a substantial question as to the lawyer’s honesty or professional fitness. RPC 8.3. In Georgia, there is no disciplinary penalty for a violation of this rule.
What conduct must a lawyer self-report?
Members of the State Bar of Georgia must notify the bar within 60 days of: (1) Being admitted to practice law in another jurisdiction, with the dates of admission; (2) Being convicted of any felony or a misdemeanor involving moral turpitude when the underlying conduct relates to the lawyer’s fitness to practice law; or (3) Being disciplined by any jurisdiction other than the Supreme Court of Georgia. RPC 9.1(a).
What is a “law firm”?
A “law firm” is a lawyer or lawyers in a partnership, professional corporation, sole proprietorship, or other association authorized to practice law, or lawyers employed in a legal services organization or the legal department of a corporation or other organization. RPC 1.0(e).
May partners “fee splint” within a firm?
By agreement, attorneys in the same firm may legitimately share or split fees earned by any of them. RPC 1.5.
How does the RPC limit partnerships?
A lawyer is not permitted to form a partnership with a non-lawyer if any of the activities of the partnership consist of the practice of law. RPC 5.4(b).
May lawyer’s practice as a professional corporation?
A lawyer is not permitted to practice with or in the form of a professional corporation or association authorized to practice law for a profit if: (1) A non-lawyer owns any interest in the firm (except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during the administration of his estate); (2) A non-lawyer is a corporate director or officer thereof; or (3) A non-lawyer has the right to direct or control the professional judgment of a lawyer. RPC 5.4(d).
What are “law-related services”?
Law-related services include providing title insurance, financial planning, accounting, trust services, real-estate counseling, legislative lobbying, economic analysis, social work, psychological counseling, tax preparation, and patent, medical, or environmental consulting.
May lawyers provide “law-related services”?
Lawyers may provide “law-related services,” defined by the RPC as services that might reasonably be performed in conjunction with and related to the provision of legal services and not prohibited as the unauthorized practice of law when provided by a non-lawyer. RPC 5.7(b).
Are lawyers under the RPC when they provide law related services?
Under certain circumstances, the lawyer providing law-related services will be subject to the RPC even though a non-lawyer performing such services would not. The maximum penalty for violating this rule is a public reprimand. RPC 5.7.
Are “law-related services” distinct from legal services?
A lawyer will be subject to the RPC with respect to the provision of law-related services if the lawyer provides services in circumstances that are not distinct from the lawyer’s provision of legal services to clients. RPC5.7(a)(1).
What actions must a lawyer take to prevent the RPC from applying to law-related services?
A lawyer will be subject to the RPC for provision of law-related services by an entity controlled by the lawyer individually or with others if the lawyer fails to take reasonable measures to ensure that the client knows that the services are not legal services and that the protections of the lawyer-client relationship do not apply. RPC 5.7(a)(2).
Who must show what in order to prove “reasonable measures” were taken to ensure client understood law-related services are not legal services?
The lawyer has the burden to show that reasonable measures were taken under the circumstances to communicate the desired understanding. Thus, a sophisticated user of law?related services, such as a publicly held corporation, may require less explanation than someone unfamiliar with distinctions between legal services and law-related services.
Under what conditions may a lawyer or law firm sell or purchase a law practice?
(1) Written notice is given to all current clients regarding: - The proposed sale; - The terms of any proposed change in the fee arrangement; - The client’s right to retain other counsel or to take possession of the file; and - The fact that the client’s consent to the new representation will be presumed if the client does not take any action or does not otherwise object within 90 days of receipt of the notice; and (2) The entire practice is sold to another lawyer or law firm. RPC 1.17.
Must a lawyer sell his or her entire practice?
A lawyer must sell her entire practice (not entire firm, but entire practice).
What is the seller obligation to his or her clients regarding the purchaser?
The seller is obligated to exercise competence in identifying a purchaser qualified to assume the practice. This rule is also applicable to the sale of a practice by representatives of a deceased, disabled, or disappeared lawyer.
If a lawyer cannot give a client proper notice, then can the attorney presume the attorney-client relationship has ended?
No. If the client cannot be given notice, then the representation of that client may be transferred to the purchaser only by an order of a court of competent jurisdiction authorizing the transfer. The seller may disclose to the court in camera information relating to the representation only to the extent necessary to obtain an order authorizing the transfer. RPC 1.17(c).
Can an attorney who purchases a law practice or law firm amend the fees previously charged due to the purchase?
No. The fees charged to a client may not be increased by the sale. RPC 1.17(d).
What employment term can a lawyer not agree to?
A lawyer must not participate in a partnership or employment agreement that restricts the lawyer’s right to practice after the relationship terminates, except for an agreement that concerns benefits upon retirement. RPC 5.6(a).
What term regarding the representing attorney cannot be included in a settlement agreement
A lawyer must not make or offer an agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a controversy between private parties. RPC 5.6(b). This rule prohibits a lawyer from agreeing not to represent other persons in connection with settling a claim on behalf of a client.
What is “professional discipline”?
Professional discipline is a penalty imposed on a lawyer by the State Bar of Georgia Disciplinary Board for violating a rule of professional responsibility (i.e., the RPC).
What is the most common order of events for a professional discipline investigation?
(1) An aggrieved client (or anyone else with knowledge) files with the state disciplinary authority a professional compliant. (2) The state disciplinary authority assembles a “grievance committee” to investigate the complaint. (3) If the committee finds merit to the charges, it holds a hearing limited to the charges brought in the compliant. - The accused attorney is notified, allowed private counsel, and is given opportunity to be heard. The accused attorney may present evidence and cross-examine witnesses. - The burden of proof is on the prosecuting attorney. (4) If the committee finds against the accused attorney, it recommends appropriate sanctions. The Supreme Court of Georgia makes the final determination. (5) The aggrieved attorney may appeal the committee’s decision to the Supreme Court of Georgia. Ga. R. & Regs. St. Bar 4-208.3 – 4.208.4.
What are a few common sanctions placed by the Supreme Court of Georgia in Professional discipline actions against accused attorneys?
• Private censure in the form of a formal admonition • Private censure in the form of an investigative panel reprimand • Public censure in the form of a review panel reprimand • Public reprimand • Suspension from practice • Disbarment
May a lawyer require by contract to limit a clients ability to file a disciplinary complaint?
Lawyers may not enter an agreement containing a condition that prohibits or restricts a person from filing a disciplinary complaint, or that requires the person to request a dismissal of a pending disciplinary complaint. RPC 9.2.
Will violating a RPC automatically result in a finding of malpractice?
Mere violation of a Rule of Professional Conduct will not automatically result in a finding of malpractice. It is not negligence per se.
How are RPC violations treated in a malpractice lawsuit?
Violation of a rule is generally treated as evidence that the lawyer’s conduct violated the duty of care. Allen v. Lefkoff, Duncan, Grimes & Dermer P.C., 453 S.E.2d 719, 720–21 (1995).
What are the most common legal malpractice theories?
• Breach of contract for not fulfilling a duty • Intentional tort • Negligence
How may a lawyer commit legal malpractice due to breaching a contract?
A lawyer can be found liable for malpractice for breaching an express or implied agreement with a client.
How may a lawyer commit legal malpractice as an intentional tort?
A lawyer may be liable for malpractice for intentional torts, including fraud, malicious prosecution, and abuse of process.
What are the elements of for asserting negligent practice of law?
(1) Breach of a duty of care (2) Causation (3) Actual damages
What duty does an attorney owe to his or her clients?
A lawyer owes a duty of care to the client to exercise the competence and diligence of lawyers of similar experience under similar conditions. See, e.g., Allen v. Lefkoff, Duncan, Grimes & Dermer P.C., 453 S.E.2d 719, 720 (1995). When a lawyer represents to the client that he has specialized expertise, the lawyer will be held to the standard of care of a specialist.
What must accompany complains for legal malpractice?
Like other professional negligence cases in Georgia, complaints for legal malpractice must be accompanied by an affidavit from an expert specifying at least one negligent act. O.C.G.A. § 9-11-9.1. Generally, an expert must also explain to the jury the standard of care expected in Georgia and whether the lawyer’s act that injured the client was a deviation from that standard.
How does a client establish causation in a legal malpractice lawsuit?
The client must establish that, but for the lawyer’s breach, the client’s injury would not have occurred, and that it is reasonable to hold the lawyer responsible for the injury caused. An adverse result is a condition precedent to an action for legal malpractice in Georgia. Tante v. Herring, 453 S.E.2d 686, 687 (Ga. 1994).
What type of damages are necessary for a legal malpractice case, and what other limitations as to damages are placed upon potential claimants?
The client must demonstrate actual damages, such as money lost as a result of losing the case due to the lawyer’s actions. Accordingly, the client may not bring a malpractice action while the underlying action is still pending, as the case may ultimately resolve in the client’s favor. Tante v. Herring, 453 S.E.2d 686, 687 (Ga. 1994).
May a lawyer be held liable for damages caused by another lawyer?
A lawyer may be held liable for damages caused by another lawyer working under the lawyer or by a non-lawyer employee under the lawyer’s supervision. The employee’s actions must have been within the scope of her employment. RPC 5.1 and 5.3.
May a client, by contract, limit the amount he or she could recovered against an attorney for legal malpractice?
A lawyer may not enter into an agreement with a client prospectively limiting malpractice liability to the client, unless an independent lawyer represented the client in making the agreement. RPC 1.8(h).
May a lawyer and client settle a malpractice claim?
A lawyer may not settle a claim or potential claim for malpractice liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking independent legal counsel with regard to the settlement and is given a reasonable opportunity to seek such advice. RPC 1.8(h).
What effect does “breach of a fiduciary duty” have on a legal malpractice lawsuit?
In Georgia, a lawyer’s breach of his fiduciary duty gives rise to independent cause of action separate from legal malpractice. See, e.g., Tante v Herring, 453 S.E.2d 686, 687–88 (Ga. 1994).
What is the duty of acceptance, generally?
In general, a lawyer is not under a duty to accept representation of any client. RPC6.2, cmt. 1.
What is the exception to the duty of acceptance?
A lawyer may avoid court appointments only when good cause exists to decline. RPC 6.2. Good cause to decline representation exists if: • The lawyer could not handle the matter competently; • The representation would result in an improper conflict of interest (e.g., when the client or the cause is so repugnant to the lawyer as to be likely to impair the lawyer-client relationship or the lawyer’s ability to represent the client); or • Acceptance would be unreasonably burdensome (e.g., when it would impose a financial sacrifice so great as to be unjust). RPC 6.2, cmt. 2.
What attorney-client relationship distinctions, if any, do court-appointed lawyers have from retained counsel?
An appointed lawyer has the same obligations to the client as retained counsel, including the obligations of loyalty and confidentiality. An appointed lawyer is subject to the same limitations on the lawyer-client relationship, such as the obligation to refrain from assisting the client in violation of the RPC. RPC 6.2, cmt. 3.
What occurs once a lawyer undertakes representation?
Once a lawyer undertakes representation, the full range of obligations and duties to a client, discussed as follows, exists. At that point, the lawyer is both a fiduciary and an agent of the client.
When does the lawyer-client relationship begin?
The lawyer-client relationship begins when the client reasonably believes that the relationship exists.
What is a “reasonable belief” (as to lawyer-client relationship)?
A reasonable belief is one that is reasonably induced by the attorney’s representations or conduct. No formal writing or agreement is required. Calhoun v. Tapley, 395 S.E.2d 848, 849 (Ga. App. 1990).
What is a lawyer’s duty to reject?
A lawyer has a duty to reject representation when doing so would violate a rule of ethics or law, or when the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client. RPC 1.16(a)(1), (2). A lawyer should not accept representation in a matter unless she can perform it competently, promptly, without improper conflict of interest, and to completion.
What is “advertising”
“Advertising” refers to widely distributed, public statements about the services available from a lawyer or law firm (such as phone book listings, newspaper or television ads, and websites).
Is advertising allowed?
Advertising is generally allowed, subject to the following rules. RPC 7.2.
What is the fundamental rule regarding advertising law firms or lawyers?
A lawyer must not make false or misleading statements about the lawyer or her services. RPC 7.1. A lawyer must not imply that previous favorable results indicate a likelihood of future favorable results, e.g., advertising the lawyer’s record of favorable verdicts or the amount of a damage award without reference to the specific factual and legal circumstances. RPC 7.1 cmt. 2.
How do you determine a communication is misleading (as an advertisement for a law firm)?
A communication is misleading if it: • Contains a material misrepresentation of law or fact or omits a fact necessary to make the statement as a whole not materially misleading, • Is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the RPC or other law, • Compares the lawyer’s services with other lawyers’ services, unless the comparison can be factually substantiated, • Fails to include the name of at least one lawyer responsible for its content, or • Contains any language regarding contingency fees without disclaimer language specified by Rule7.1(a)(5). RPC 7.1.
Are lawyers allowed to advertise they practice a particular field?
Lawyers are permitted to communicate the fact that they practice in particular fields of law. A lawyer may hold herself out publicly as a specialist in a particular field by experience, specialized training or education, or certification by a recognized and bona fide professional entity, but only if such information is true and not misleading. RPC 7.4.
What information is required to satisfy the “prominent disclosure” requirement?
Any advertisement directed to potential clients in Georgia or intending to solicit delivery of legal services to be performed in Georgia must include “prominent disclosure” of the following: • The name, physical location, and telephone number of each lawyer or law firm who paid for the advertisement and who takes full personal responsibility for the advertisement (lawyers using a referral service should ensure that the service discloses the lawyer’s address when a referral is made); • If applicable, the fact that the lawyer or law firm will refer the majority of callers to other attorneys; • The use of any non-lawyer spokesperson; portrayal of a lawyer or client by a non-lawyer or non-client; or paid testimonial or endorsement; • A written statement clearly describing the scope of any advertised fixed fee; and • An explanation that the advertisement is an advertisement, if it resembles a pleading, notice, or other legal document. RPC 7.2(c).
How is “prominent disclosure” defined (as written or as spoken)?
A “prominent disclosure” is clearly legible and capable of being read by the average person, if written. If spoken aloud, it must be clearly intelligible by an average person. RPC 7.2(c).
What is the record keeping requirement for legal advertisements?
Georgia requires the lawyer to retain a copy of any advertisement, including the text of broadcast advertisements, for two years after its last dissemination. This includes retaining a record of when and where the advertisement was used. RPC 7.2(b).
Are firm names and letterhead considered under the advertising rules?
A lawyer may not use a firm name, letterhead, or other professional designation that is misleading.
What are the specific rules regarding only a firm’s name?
A trade name may be used by a lawyer in private practice if it does not imply a connection with a government agency or with a public or charitable legal services organization and is not otherwise in violation of RPC 7.1., and it includes the name of at least one lawyer practicing under the name. A law firm consisting solely of the names of dead or retired partners does not have to include the name of an active partner. RPC 7.5(e).
What requirements apply to law firms operating in more than one jurisdiction?
A law firm with offices in more than one jurisdiction may use the same name in each jurisdiction, but identification of the lawyers in an office of the firm must indicate the jurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located. RPC 7.5(b).
What requirements are placed on lawyers who also serve in public office?
The name of a lawyer holding a public office must not be used in the name of a law firm, or in communications on its behalf, during any substantial period in which the lawyer is not actively and regularly practicing with the firm. RPC7.5(c).
What are limits on statements regarding partnerships?
Lawyers may not state or imply that they practice in a partnership or other organization unless they actually do. RPC 7.5(d).
Does “direct contact” include communications through an intermediary or through telephone conversations?
Direct contact includes direct personal contact through an intermediary and live contact by phone. RPC 7.3, cmt.2.
What are the rules regarding solicitation?
A lawyer shall not solicit professional employment as a private practitioner through direct personal contact or live telephone contact with a potential client who has not sought advice regarding employment of a lawyer. RPC 7.3(d).
What written communications are prohibited?
Written communications to prospective clients for the purposes of obtaining professional employment are prohibited if: • It has been made known to the lawyer that the person does not want to receive communications from the lawyer; • The communications involve coercion, duress, fraud, overreaching, harassment, intimidation, or undue influence; • The communications concern personal-injury or wrongful-death actions or otherwise relate to an accident or disaster involving the person receiving the communications or her relative, within 30 days of the occurrence; or • The lawyer knows or reasonably should know that the physical, emotional, or mental state of the person is such that the person could not exercise reasonable judgment in employing a lawyer. RPC 7.3(a).
What are permissible written communications?
Written communications to prospective clients, other than to a close friend, relative, former client, or one whom the lawyer reasonably believes is a former client, for the purpose of obtaining professional employment, must be marked “Advertisement” on the face of the envelope and at the top of each page in a type size no smaller than the largest used in the body of the letter. RPC 7.3(b).
What is required if a lawyer or law firm primarily refers clients to other attorneys?
Lawyers or law firms who primarily refer callers to other attorneys must disclose that information. RPC 7.2(c)(2).
May lawyers hire a referral service?
Lawyers who employ agents to monitor accidents and other events likely to produce legal work and to solicit business for the lawyer are subject to discipline. RPC 7.3(c). Use of a state-bar-authorized lawyer referral service, legal insurance, a prepaid legal service plan, or a pro bono network is not subject to this prohibition.
What is a “reasonable fee” for legal services?
Lawyer fees are regulated for reasonableness based on the amount and nature of the fees. All rate or fee arrangements must be communicated to the client before or within a reasonable time after the relationship commences unless the lawyer and client already have an established professional relationship and the lawyer will be charging the client based on the same rate. RPC 1.5.
Must all legal fee arrangement be in writing?
No. Only contingent-fee arrangements must be in writing.
What factors are considered to determine whether a legal fee is reasonable?
• Difficulty of the case • Preclusion of other employment • Fee charged locally • The desired result • Time • Relationship with the client • Expertise of the attorney • The fee arrangement
What facts reflect the difficult of the case?
Factors reflecting the difficulty of the case include the time, labor, and skill necessary to perform the services, as well as the novelty of the case, the time limitations imposed by the client, or the specific circumstances surrounding the case.
When may an attorney charge a contingency fee?
Attorneys may charge a fee contingent on the outcome of the case. A lawyer may not charge a fee in a domestic relations case that is contingent on obtaining a divorce or on the amount of support recovered, nor may a lawyer charge a contingent fee for representing a defendant in a criminal case. RPC 1.5(d).
What must be included in a contingent fee arrangement?
A contingent-fee arrangement must be in writing and must include: • A statement describing the method used for determining the fee; • Whether and which litigation and other expenses are to be deducted from the recovery; and • Whether such expenses are to be deducted before or after the contingent fee is calculated. RPC 1.5(c)(1). The agreement must clearly outline any expenses for which the client will be liable whether or not the client is the prevailing party.
What must a lawyer due at the conclusion of a contingent fee matter?
At the conclusion of a contingent-fee matter, the lawyer must provide the client with a written statement explaining the outcome of the matter. If the client has prevailed and recovered damages, then the statement must include the amount paid to the client and the method used to determine that amount. Finally, if the attorney’s fee was divided with another attorney in a different firm, the amount received by each and the method for determining those amounts must be included. RPC 1.5(c)(2).
May an attorney request payment in advance?
A lawyer may require payment in advance of services rendered as long as the lawyer returns any unearned portion at the time the representation terminates. RPC 1.5, cmt. 4; 1.16(d).
May an attorney request property as payment?
Property is an acceptable form of payment as long as it is not in the form of a proprietary interest in the cause of action or subject matter of the litigation and is in compliance with RPC 1.8 for business transactions with clients. RPC 1.5, cmt. 4.
May a client contract for “limited” legal services?
A lawyer may not enter into an agreement under which services are to be provided only up to a stated amount when it is foreseeable that more extensive services will likely be required,\ unless the situation is adequately explained to the client. Otherwise, the client might have to bargain for further assistance in the midst of a proceeding or transaction. However, it is proper to define the extent of services in light of the client’s ability to pay. RPC 1.5, cmt. 5.
May lawyers within the same firm split fees?
Lawyers in the same law firm, by agreement, may legitimately share or split fees earned by any of them. Fees may be shared with an attorney who has retired.
May lawyer from different firms split fees?
Fee splitting among attorneys at different firms is permitted if all of the following conditions are met: • The fee is in proportion to the services rendered by each lawyer or, by written agreement with the client, all lawyers assume joint responsibility for the representation; • The client is advised of the fee-splitting arrangement and does not object to the participation of the lawyers involved; and • The total fee charged must be reasonable (such that a client is not charged a higher fee because additional lawyers are working on the case). If all of these requirements are met, then the lawyers may submit one bill to the client and then divide the fee. RPC 1.5(e).
May an attorney receive a referral fee?
Generally, a lawyer must not compensate a person or an organization for recommending his or her services.
When can a Bar-operated nonprofit lawyer-referral service collect referral fees?
A lawyer may pay reasonable fees, including fees calculated as a percentage of the legal fees earned by the lawyer, to a bar-operated, nonprofit referral service if that service: • Operates in the public interest; • Files annually with the state’s disciplinary board a report showing its rules, its subscription charges, its agreements with counsel, the number of lawyers participating, and the names and addresses of the participating lawyers; • Is sponsored by a bar association that is open to all lawyers licensed and eligible to practice in the state who maintain an office in the geographical area served and who meet reasonable objectively determinable experience requirements set by the bar association; • Does not charge fees that, when combined with those of the lawyer, are higher than the client would have paid had no service been involved; • Requires any lawyer who is a member of the service to maintain a policy of errors and omissions insurance of no less than $100,000 per occurrence and $300,000 in the aggregate. RPC 7.3(c)(2).
When can lawyer-referral services (other than Bar-operated nonprofits) collect referral fees?
A lawyer may pay dues to a lawyer-referral service operated by an organization authorized by law, provided that the organization has filed with the state’s disciplinary board a report showing its terms, its subscription charges, its agreements with counsel, the number of participating lawyers, and the names and addresses of participating lawyers. RPC 7.3(c)(1).
When may former partners collect fees?
Pursuant to a profit-sharing or retirement plan within a firm, former partners and associates of the primary lawyer may share in the fees.
When may non-attorney’s collect fees?
Fees may not be shared and a partnership may not be made with non-lawyers if any of the activities include the practice of law.
What are the exceptions tot he general rule regarding splitting fees with non-lawyers?
(1) Fees are paid into a lawyer’s estate or to one or more specified persons over a reasonable period as a death benefit according to the firm’s operating agreement; (2) A lawyer who purchases the practice of a deceased, disabled, or missing lawyer pays the agreed-upon purchase price to the estate or other representative of that lawyer; (3) A lawyer undertakes to complete the unfinished legal business of a deceased, retired, disabled, or suspended lawyer; (4) Fees are shared with law firm lay personnel through a compensation or retirement plan, even though it is based on a profit-sharing arrangement; and (5) A lawyer pays a referral fee to a bar-operated, nonprofit referral organization, even when such fee is calculated as a percentage of legal fees earned by the lawyer. RPC 5.4(a).
What is the general rule regarding retainers?
A retainer may only be withdrawn as it is earned. Until that point, the funds are considered the client’s property and must be kept in trust, separate from all other monies. RPC 1.15(II). These trust accounts must be maintained in an approved financial institution in Georgia or the state where the lawyer’s office is located. RPC 1.15(III).
What duty is owed to the client regarding retainers?
A lawyer should hold the property of others with the care required of a professional fiduciary.
What type of account must an attorney place retainers?
Client funds must be placed in either an interest-bearing account with the interest paid to the client or an Interest on Lawyers’ Trust Accounts (IOLTA) account. RPC 1.15(II). A lawyer shall designate all trust accounts and all deposit slips and checks drawn thereon as “Attorney Trust Account,” “Attorney Escrow Account,” “IOLTA Account,” or “Attorney Fiduciary Account.” Business accounts shall be designated “Business Account,” “Operating Account,” or something similar. RPC 1.15(III).
What is the general rule regarding retainers and other firm moneys?
Lawyers must keep client property and funds separate from their own and are subject to discipline for commingling their funds or for borrowing money not yet earned. No funds belonging to a lawyer or law firm may be deposited in a client trust account or otherwise commingled with client funds, except for funds reasonably sufficient to pay bank charges. Funds in the trust account may not be used for any unauthorized purpose. RPC 1.15(II).
What the record keeping requirement regarding moneys?
A lawyer must maintain records of the account for future reference, and these records are subject to audit by the state’s disciplinary board. RPC 1.15(III).
What is the proper protocol if their is a dispute over the use of the retainer?
Any portion of funds in the client trust account belonging to the lawyer must be withdrawn at the earliest reasonable time after the lawyer’s interest in that portion becomes fixed. If the lawyer’s right to receive a portion of the trust funds is disputed by the client, then the disputed portion must not be withdrawn until the dispute is finally resolved. RPC 1.15(I)(d).
What is the “notice and delivery” requirement regarding retainers?
When a lawyer receives funds or other property in which a client or third person has an interest, the lawyer must promptly notify the client or third person. When the lawyer is required to pay over the funds, the lawyer must promptly deliver them to the client or third person, and upon request by the client or third person, must promptly render a full accounting. RPC 1.15(I)(c).
May an attorney terminate the attorney-client relationship?
An attorney may withdraw from representation when circumstances allow, but she has a duty of mitigation to lessen any adverse impact upon the client. RPC 1.16(d).
When must an attorney terminate the attorney-client relationship?
A lawyer must withdraw from representation if failure to do so would result in violating ethics rules or other law. RPC 1.16(a)(1).
Must an attorney terminate the attorney-client relationship if the client suggests illegal or unethical conduct?
A lawyer is not obliged to withdraw simply because the client suggests a course of conduct that would result in such a violation, but only if the client demands such conduct. RPC 1.16, cmt. 2.
Must an attorney withdraw due to a decline in health?
A lawyer is required to withdraw when his physical or mental condition materially impairs the ability to represent the client. RPC 1.16(a)(2).
When may a client terminate the attorney-client relationship? What about a court-appointed attorney?
The client has an absolute right to discharge a lawyer for any reason or no reason at all. The lawyer is required to withdraw from the representation upon being discharged, unless ordered by the court to continue representation. RPC1.16(a)(3). Whether a client can discharge appointed counsel may depend on applicable law. RPC 1.16, cmt. 5.
May an attorney recover attorney fees after a client terminates the relationship?
The lawyer may recover fees due (or the reasonable value of the work). RPC1.16, cmt. 4.
What effect does “serve diminished capacity” have on a client’s ability to terminate the attorney-client relationship?
If the client has severely diminished capacity, the client may lack the legal capacity to discharge the lawyer. The lawyer may take reasonably necessary protective action to protect the client’s interests. In an extreme case, the lawyer may initiate proceedings for a conservatorship. RPC 1.16, cmt. 6.
Generally, when may an attorney permissively terminate an attorney-client relationship?
A lawyer may seek to withdraw if she can do so without materially harming the client. RPC 1.16(b).
When may an attorney permissively terminate an attorney-client relationship even when doing so will harm the client?
• The client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent; • The lawyer learns that previous services of the lawyer have been used by the client to perpetrate a crime or fraud; • The client insists on a course of action that the lawyer finds repugnant or imprudent; • The client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services (e.g., paying the lawyer’s reasonable fees) and has been given reasonable warning that the lawyer will withdraw unless the obligation is met; • The representation will result in an unreasonable financial burden on the lawyer; • The client has made representation unreasonably difficult for the lawyer; or • Other good cause exists. RPC 1.16(b).
What is the notice requirement for attorney’s seeking permissive termination of the attorney-client relationship?
A lawyer must give the client reasonable notice before withdrawing to give the client reasonable opportunity to obtain new representation. RPC 1.16(d).
What is required to permissively terminate a court-appointed attorney-client relationship?
When a lawyer has been appointed to represent a client, withdrawal generally requires approval from the appointing authority. RPC 1.16, cmt. 3. A lawyer attempting to withdraw must continue to represent the client if ordered to do so by a court, even if there is otherwise good cause for terminating the representation. RPC 1.16(c).
What are an attorney’s duty to their former client upon termination of the attorney-client relationship?
Upon termination, the lawyer has a duty to take reasonable measures to minimize the harm done to the client. RPC 1.16(d). Even if the client has unfairly discharged the lawyer, the lawyer must take all reasonable steps to mitigate the consequences to the client. RPC 1.16(d), cmt. 9. Additionally, the attorney must return all papers and property “to which the client is entitled” and any part of the advanced fees no earned. RPC 1.16(d).
May an attorney withhold the client’s papers and property as a lien for services rendered?
Because an attorney’s ethical obligation not to cause prejudice to her client is paramount over any statutory right to a lien for services rendered, an attorney may not withhold the client’s papers or properties upon withdrawal as security for unpaid fees if the withholding prejudices the client. O.C.G.A. §15-19-14; Sup. Ct. of Ga., Formal Advisory Op. No. 87-5 (Sept. 26, 1988).
Regarding the attorney-client relationship generally, what decisions are made by the client, and what decision are made by the attorney?
The client determines: • Scope of Representation • Acceptance of a Settlement • Whether to testify in a criminal trial • Whether to waive a jury trial in a criminal trial • Whether to enter a plea The attorney determines: • Procedural tactics • Limiting a client’s objectives
What is required regarding negotiating the scope of the representation?
The lawyer and client can negotiate to limit the scope of the representation, including the duration of the relationship (e.g., through the first appeal) and the subject matter of the representation (e.g., only the tax aspects of a real-estate transaction), if the limitation is reasonable under the circumstances and the client gives informed consent. RPC 1.2(c).
What duty owed to clients regarding settlement offers?
The lawyer must communicate all bona fide offers of settlement to the client. RPC 1.4, cmt. 2. The final decision whether to accept any offer rests with the client. RPC 1.2(a). A lawyer who agrees to a settlement without the client’s consent and authorization is subject to discipline, but the opposing party may enforce the agreement if the lawyer acted with apparent authority. Hayes v. National Serv. Indus., 196 F.3d 1252, 1254(11th Cir. 1999).
What are “procedural tactics”?
The lawyer has the authority to make most of the decisions relating to the strategy and methods for achieving the client’s goals (e.g., determining the manner and scope of cross-examination, choosing a theory of the case). The RPC requires the lawyer to reasonably consult with the client about the means to accomplish the client’s objectives and keep the client reasonably informed about the status of the matter. RPC 1.2. If a disagreement between the lawyer and the client cannot be resolved, then the lawyer may withdraw or the client may fire the lawyer.
How may an attorney limit a client’s objectives?
A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and if the client provides informed consent. The attorney and client may agree to exclude or limit specific means that might otherwise be used, including actions that are too costly for the client or that the lawyer regards as repugnant or imprudent. RPC 1.2, cmt. 6.
What effect does representing a client with diminished capacity effect the attorney-client relationship?
To the extent possible, a lawyer for a client with diminished capacity (due to mental impairment, age, or other factors) must maintain an ordinary lawyer-client relationship. RPC 1.14(a).
When may take reasonably necessary protective actions for his or her client?
If the client has diminished capacity; is at risk of substantial physical, financial, or other harm unless action is taken; and cannot adequately act in his own interest, then the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that are empowered to act to protect the client. In appropriate cases, the lawyer may seek appointment of a guardian ad litem, conservator, or guardian to act on behalf of the client. RPC 1.14(b).
Generally, may a lawyer reveal his or her client’s disability?
Information relating to the representation of a client with diminished capacity is protected by the confidentiality provisions of RPC 1.6. In general, unless authorized to do so, the lawyer may not disclose such information.
When may an attorney reveal a client’s disability?
When taking protective action, including seeking the appointment of a guardian the lawyer is impliedly authorized to reveal information about the client even if the client directs otherwise but only to the extent reasonably necessary to protect the client’s interests. The lawyer should determine whether it is likely that the person or entity consulted will act adversely to the client’s interests before discussing matters related to the client. RPC 1.14(c).
When may an attorney offer “emergency legal assistance” to a client with diminished capacity?
In an emergency in which the health, safety, or a financial interest of a person with seriously diminished capacity is threatened with imminent and irreparable harm, a lawyer may take legal action on his behalf. The lawyer may act even if the person is unable to establish a lawyer-client relationship or to make or express considered judgments about the matter, when the person or one acting in good faith on his behalf has consulted with the lawyer.
To what extent should an attorney take legal action as emergency legal assistance?
The lawyer should not act unless she reasonably believes that the person has no lawyer, agent, or other representative available. The lawyer should take legal action only to the extent reasonably necessary to maintain the status quo or otherwise avoid imminent and irreparable harm.
What duties does a lawyer have when providing emergency legal assistance?
The lawyer will have the same duties she would have to any client, including the duty of confidentiality, and should not normally seek compensation for emergency actions taken for a non-client. RPC 1.14, cmts. 9, 10.
May an attorney counsel aiding crimes or fraud?
A lawyer is prohibited from counseling or assisting the client in conduct the lawyer knows to be criminal or fraudulent. If the lawyer advises or assists with a crime or fraud, then the lawyer is subject to both discipline and criminal or civil liability. However, a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good-faith effort to determine the validity, scope, meaning, or application of the law. RPC 1.2(d).
Outside of aiding crimes or fraud, what general objective is a prohibited objective?
In Georgia, a lawyer is not permitted to file suit, assert a position, conduct a defense, or take other action if the lawyer knows or should know that such actions would serve merely to harass or maliciously injure another. Nor should a lawyer knowingly present a claim or defense in litigation that is not warranted under existing law, unless it can be supported by a good-faith argument for an extension, modification, or reversal of such law. RPC 3.1.
What is the general rule regarding knowledge and skill?
In some cases, all that is necessary in a case is the proficiency of a general practitioner. Factors relevant to determining whether a lawyer has the requisite knowledge and skill include: • The relative complexity and specialized nature of the matter, • The lawyer’s general experience • The lawyer’s training and experience in the field in question • The preparation and study the lawyer is able to give the matter, • Whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question. RPC 1.1, cmt. 1.
What constitutes “competency through preparation or association”?
A lawyer may accept representation if the requisite level of competence can be achieved by reasonable preparation. This also applies to a lawyer who is appointed as counsel for an unrepresented person. RPC 1.1, cmt. 4. Competent representation can also be provided through association with a lawyer of established competence in the field.
What services (as to competency) may a lawyer provide in an emergency situation?
In an emergency, a lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required if referral to or consultation or association with another lawyer would be impractical. Assistance should be limited, however, to what is reasonably necessary under the circumstances. RPC 1.1, cmt. 3.
What constitutes “thoroughness and preparation”?
Whether a lawyer is properly prepared is determined by the degree of complexity and consequence of the matter. Major litigation and complex transactions ordinarily require more extensive treatment than matters of lesser complexity and consequence. A lawyer’s responsibility to prepare may further be impacted by an agreement between the lawyer and client as to the scope of the representation. RPC 1.1, cmt. 5.
How does an attorney maintain their competence?
To maintain the requisite knowledge and skill, a lawyer should make efforts to keep abreast of changes in the law and its practice, engage in continuing study and education, and comply with all continuing legal education requirements. RPC 1.1, cmt. 6.
What is “professional competence”?
A lawyer is obligated to provide competent representation to a client and must possess the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.
What must an attorney do if he or she represents a client and lacks the necessary competence?
A lawyer lacking the necessary knowledge or experience must: • Decline or withdraw from the representation; • Become competent without unreasonable delay; or • Associate with competent counsel.
Can a client consent to incompetent representation?
A client cannot consent to less than competent representation. Even if the client does “consent” (perhaps because the lawyer’s services are offered at a low fee or because of friendship), the lawyer providing incompetent services is subject to discipline.
What is “reasonable diligence”?
Reasonable diligence means that a lawyer must not willfully abandon or willfully disregard a legal matter entrusted to the client, without just cause. RPC 1.3.
What is the required dedication to the client’s interests?
The lawyer must be dedicated and committed to the interests of the client despite obstruction or inconvenience to the lawyer. A lawyer is not bound to press for every possible advantage that might be realized for a client. The lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or prohibit treating all persons involved in the legal process with courtesy and respect. RPC 1.3, cmt. 1.
What is the “workload” requirement to professional diligence?
A lawyer must control his workload to ensure that he can handle all matters competently. RPC 1.3, cmt. 2.
What is the “reasonable promptness” requirement?
A lawyer must act with reasonable promptness in representing a client. A lawyer’s duty to act with reasonable promptness does not prohibit the lawyer from agreeing to a reasonable request for a postponement that will not prejudice the lawyer’s client. RPC 1.3, cmt. 3.
What policy supports the “reasonable promptness” requirement?
A client’s interests can often be adversely affected by the passage of time or a change of conditions. Unreasonable delay can cause a client anxiety and undermine confidence in the trustworthiness of the lawyer.
Regarding professional diligence, what is the “completion” requirement?
The lawyer should follow through on all matters until completion as outlined by the agreement between the lawyer and the client. Whether the lawyer is obligated to pursue an appeal for a client depends on the agreed-upon scope of the representation. If there is any doubt about the status of the relationship, then the lawyer should clarify it, preferably in writing. RPC 1.3, cmt. 4.
What are the requirements regarding communications between the attorney and his or her client?
Lawyers have a duty to communicate with clients, to keep them informed of the status of the matter, and to respond to clients’ reasonable requests for information, so that clients can make informed decisions. A lawyer must promptly comply with reasonable requests for information and copies of significant documents when necessary to keep the client informed. RPC 1.4(a).
What must an attorney do upon receiving a plea bargain (in a criminal action) or a settlement offer (in a civil controversy)?
A lawyer must promptly inform the client of its substance, unless the client has previously indicated that the proposal will be acceptable or unacceptable or has authorized the lawyer to accept or reject the offer. RPC 1.4, cmt. 2.
When may an attorney withhold information from a client?
A lawyer may be justified in delaying transmission of information when the client would be likely to react imprudently. A lawyer may not withhold information to serve the lawyer’s own interest or convenience or those of another person. RPC 1.4, cmt. 7.
May local rules or court rules impact an attorney’s duty to inform a client?
In some instances, local rules or court orders governing litigation may provide that information supplied to a lawyer may not be disclosed to the client. A lawyer is required to comply with such rules or orders. RPC 1.4, cmt. 7.
What is the general duty owed to current clients?
Loyalty to a client generally does not allow a lawyer to undertake representation directly adverse to that client without that client’s informed consent.
When can an attorney not represent a client due to the lawyers responsibilities to a current or former client?
A lawyer must not represent a client if there is a significant risk that the representation will be materially limited by the lawyer’s responsibilities to a current or former client, unless each affected client or former client gives informed consent to the representation, confirmed in writing, after: (1) Consultation with the lawyer in a manner reasonably sufficient to permit the client to appreciate the significance of the situation; (2) Receiving in writing reasonable and adequate information about the material risks and available alternatives; and (3) Being given the chance to consult with independent counsel. RPC 1.7(b).
When will a current or former client’s informed consent not allow for a representing an adverse client?
Client consent is not permissible if the representation: (1) Is forbidden by the rules or law; (2) Includes assertion of a claim by one client against another client in the same or a substantially related proceeding; or (3) Is reasonably unlikely to allow the lawyer to provide adequate representation to one or more of the affected clients. RPC 1.7(c).
What must a lawyer do if after representation is undertaken that lawyer discovered an impermissible conflict?
If an impermissible conflict arises after representation has been undertaken, then the lawyer should withdraw from the representation. RPC 1.7, cmt. 3.
May an attorney represent opposing parties in the same lawsuit?
epresenting opposing parties in the same lawsuit or transaction is prohibited. This includes simultaneous representation of parties whose interests may conflict, such as co-plaintiffs or co-defendants.
When may an attorney represent a client against a former client?
Ordinarily, a lawyer also may not act as an advocate in one matter against a person whom the lawyer represents in some other matter, even when the matters are wholly unrelated. A lawyer may advocate against a client if both clients give informed consent and neither the lawyer-client relationship nor the suit is adversely affected. RPC 1.7, cmts. 7, 8.
What relevant factors assess “conflict in matters other than litigation”?
whether there is a conflict include the duration and extent of the lawyer’s relationship with the client, the functions being performed by the lawyer, the likelihood that an actual conflict will arise, and the prejudice to the client from the conflict, if it arises. RPC 1.7, cmt. 11.
May an attorney represent adverse clients in an unrelated matter if they are only economically adverse?
Simultaneous representation in unrelated matters of clients whose interests are only economically adverse does not ordinarily constitute a conflict of interest. It may not require consent of the respective clients. RPC 1.7, cmt. 4.
What is the material limitation requirement regarding representing clients?
Even if clients are not directly adverse, a conflict of interest will exist if there is a significant risk that a lawyer’s ability to consider, recommend, or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer’s other responsibilities or interests.
How does an attorney judge the “material limitation” requirement?
The mere possibility of subsequent harm, though, does not by itself preclude the representation. The lawyer must evaluate the likelihood that a difference in interests will occur, and whether that difference will materially interfere with the lawyer’s independent professional judgment in considering alternatives that reasonably should be pursued on behalf of the client. RPC 1.7, cmt. 2.
What is the general rule regarding attorney-client relationship as affected by the attorney’s personal interest?
A lawyer must not represent a client if the representation may be materially limited by the lawyer’s own interests, unless the client gives informed consent, confirmed in writing, after: • Consulting with the lawyer, • Receiving a written explanation about the material risks, and • Getting the opportunity to consult with independent counsel. RPC 1.7.
What is the general rule about opposing related lawyers?
A lawyer related to another lawyer may not represent a client in a matter in which that lawyer is representing another party, unless each client gives informed consent. Disqualification arising from a close family relationship is personal and ordinarily is not imputed to members of firms with whom the lawyers are associated. RPC 1.8(i).
What is the “proprietary interest” rule?
A lawyer must not obtain a proprietary interest in the cause of action or the subject matter of litigation in which a client is represented, except when: • The lawyer acquires a lien granted by law to secure payment of a fee; or • The lawyer contracts for a reasonable contingent fee, provided the case is not a criminal or matrimonial/domestic matter. RPC 1.8(j).
May an attorney financially assist his or her client?
The RPC prohibits financial assistance to a client with respect to pending or planned litigation, EXCEPT that a lawyer is permitted to advance litigation costs (including the expenses of medical examination and the costs of obtaining and presenting evidence) to the client. Although the client usually must remain ultimately liable for those costs, repayment may be made contingent on the outcome of the case. RPC 1.8(e).
What special rule applies to financially assisting indigent clients?
Lawyers representing indigent clients may advance court costs and litigation expenses, regardless of whether the funds will be repaid. RPC 1.8(e).
What is the business transactions rule?
A lawyer must not enter into a business transaction with a client or knowingly acquire any interest adverse to a client, unless the terms are fully disclosed in writing, are fair and reasonable to the client, and the client understands the terms. The client must be advised in writing of the desirability of seeking independent counsel and be given an opportunity to do so. The client must consent in a signed writing to the transaction and its terms after a full written disclosure of the terms and the lawyer’s role in the transaction. RPC 1.8(a).
What is the exception to the business transaction rule?
Standard commercial transactions between the lawyer and the client for products or services that the client generally markets to others (e.g., banking or brokerage services, medical services, products manufactured or distributed by the client, and utilities’ services) are exempt from this rule. RPC 1.8, cmt. 1.
When may an attorney secure the literary or media rights to a client’s litigation?
In Georgia, a lawyer is prohibited from negotiating for literary or media rights for an account relating to representation of a client before the conclusion of the representation. RPC 1.8(d). A lawyer representing a client in a transaction concerning literary property is not prohibited from agreeing that the lawyer’s fee will consist of a share in ownership of the property, if the arrangement does not result in an unreasonable fee and meets the rules regarding business transactions with a client and contingency fees. RPC1.8, cmt. 3.
What is the gift rule as it applies to legal instruments?
Unless the lawyer is related to the client, the lawyer may not prepare an instrument that gives a substantial gift to the lawyer or the lawyer’s spouse, parent, child, grandparent, grandchild, or sibling. RPC 1.8(c).
What is the gift rule as it applies to unsolicited gifts from clients?
A lawyer may accept an unsolicited gift from a client if the transaction meets general standards of fairness. RPC 1.8, cmt. 2.
What rule controls an attorney’s knowledge of their clients?
A lawyer may not use information gained during representation to the client’s disadvantage, unless the client gives informed consent. RPC 1.8(b).
What is the general rule regarding accepting payment for representation from a third-party?
A lawyer may not accept money to pay for representation from anyone except the client, unless: (1) the client gives informed consent, (2) there is no interference with the lawyer’s independent professional judgment or the lawyer-client relationship, and (3) confidential information is protected as required by Rule 1.6. RPC 1.8(f).
What is the rule regarding aggregate settlements?
A lawyer may not, if representing two or more clients, make an aggregate settlement of the claims of or against the clients. In a criminal case, this applies as to pleas of guilty or nolo contendere.
What is the general exception to the rule regarding aggregate settlements?
The client’s may give their informed consent.
May a lawyer have sex with his or her clients?
A lawyer’s sexual relationship with a client likely violates the lawyer’s fiduciary duty to the client and Rule 1.7(a), which states that a lawyer shall not represent or continue to represent a client if there is a significant risk that the lawyer’s own interests will materially affect the representation of the client.
May an attorney sever as an Executor or Trustee?
It is not improper for an attorney to be named as executor or trustee in a will or trust he has prepared so long as the lawyer does not consciously influence the client in the decision, and obtains the client’s written consent or gives full disclosure of possible conflicts of interest in writing.
What is the general rule regarding conflicts between current and former clients?
A lawyer who has previously represented a client in a matter must not subsequently represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client, unless the former client gives informed consent, confirmed in writing. RPC 1.9(a).
What is “scope of a matter” as it applies to conflicts between current and former clients?
The scope of a “matter,” for the purposes of determining a conflict, depends on the facts of each particular situation or transaction. If a lawyer was directly involved in a specific transaction, then subsequent representation of other clients with materially adverse interests in that transaction is prohibited. If the lawyer commonly handled a type of problem for a former client, then the lawyer is not prohibited from later representing another client in a factually different problem of the same type, even though the subsequent representation involves a position adverse to the prior client. RPC 1.9, cmt. 2.
What is “substantially related” as it applies to conflicts between current and former clients?
“Substantially related” matters involve the same transaction or legal dispute, or involve substantial risk that confidential factual information normally obtained in the prior representation would materially advance the new client’s position in the subsequent matter. Information previously disclosed to the public or to other parties adverse to the former client generally will not cause disqualification. RPC 1.9, cmt. 3.
What is the rule regarding information obtained in a former representation?
A lawyer who has formerly represented a client or whose present or former firm has represented a client in a matter is not permitted to use information relating to the representation to the disadvantage of the former client, except when the ethics rules allow confidential information to be revealed or when the information has become generally known. RPC 1.9(c).
When a lawyer switches private firms, what is the limitations on the new firm?
A lawyer is not permitted to knowingly represent a person in the same or a substantially related matter in which the lawyer’s former firm represented a client whose interests are materially adverse to that person and about whom the lawyer had acquired confidential information that is material to the matter. However, the former client may give informed consent, confirmed in writing, to permit such representation. RPC 1.9(b).
When a lawyer switches private firms, what is the limitations on the old firm?
If a lawyer has terminated an association with a firm, the firm is not prohibited from subsequently representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless: (1) The matter is the same or substantially related to that in which the formerly associated lawyer represented the client, and (2) Any lawyer remaining in the firm has confidential information that is material to the matter. RPC 1.10(b). A client may give informed consent, in writing, to overcome a disqualification. RPC 1.10(c).
What is the general rule regarding an attorney’s conflicts while serving as an arbitrator, mediator, or judge?
A lawyer may not represent anyone in a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer, law clerk, arbitrator, mediator, or other third-party neutral unless all parties to the proceeding give informed, written consent. RPC 1.12(a).
What is the general acceptation regarding the attorney’s conflict rule while serving as an arbitrator, mediator, or judge?
An arbitrator selected as a partisan of a party in a multimember arbitration panel is not prohibited from subsequently representing that party. RPC 1.12(d).
Does a lawyer disqualified for having participated as a judge or other similar officer spread to the rest of the firm?
If a lawyer is disqualified for having participated personally and substantially as a judge or other officer then no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in the matter, unless: (1) The disqualified lawyer is timely screened from any participation in the matter and gets no part of the fee, and (2) written notice is promptly given to the appropriate tribunal to enable it to determine if the ethics rules have been met. RPC 1.12(c).
May an attorney serving as a judge, mediator, or arbitrator negotiate for employment with any persons who is a party or lawyer for their case?
A lawyer participating personally and substantially as a judge or other adjudicative officer, arbitrator, mediator, or other third-party neutral may not negotiate for employment with any person who is either a party or lawyer for a party in the matter.
What are the limits placed on Government lawyers on accepting outside clients?
The RPC prohibits a former government lawyer from representing a client in a matter in which the lawyer participated personally and substantially as a government lawyer, unless the appropriate government agency gives its informed, written consent to the representation. RPC 1.11(a).
Does a former Government lawyer disqualified for having participated as a Government lawyer spread to the rest of the firm?
If a former government lawyer is disqualified from representation, then no lawyer in his firm may knowingly undertake or continue representation in such matter, unless: (1) The disqualified lawyer is timely screened from any participation in the matter and gets no part of any fee from the matter, and (2) Written notice is promptly given to the client and the appropriate government agency to enable it to ascertain whether the lawyer and firm are in compliance with the conflict rules. RPC 1.11(a).
What is the general rule regarding the use of confidential information obtained while serving as a government attorney?
Except as the law expressly permits, a government lawyer who acquires confidential government information about a person may not later represent a private client whose interests are adverse to that person in a matter in which the information could be used to that person’s material disadvantage. RPC 1.11(b).
What is “confidential government information”?
“Confidential government information” means information obtained under governmental authority and which, at the time the rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose and that is not otherwise available to the public. RPC 1.11(e).
May a law firm continue representing client if a government attorney possessing confidential information is within the firm?
A firm with which the former government lawyer is associated may undertake or continue representation in a matter in which that lawyer is disqualified because of possession of confidential government information only if the disqualified lawyer is timely screened from any participation in the matter and receives no part of the fee from the representation. RPC 1.11(b).
What is the general conflict rule as it applies to government attorneys?
Except as expressly provided by law, a lawyer currently serving as a government employee is subject to the general ethics rules relating to current and former clients. The government lawyer is not permitted to participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment unless there is no one under applicable law that is authorized to act in the lawyer’s stead in the matter. RPC 1.11(c).
What is “matter” as it applies to the conflicts affecting current or former government lawyers?
(1) Any judicial or other proceeding, contract, claim, controversy, investigation, arrest, charge, accusation, or other matter involving a specific party or parties; (2) Any other matter covered by the conflict of interest rules of the appropriate government agency. RPC 1.11(d).
What limitation is placed on government lawyers who wish to obtain private employment?
A current government lawyer is not generally permitted to negotiate for private employment with any person who is involved as a party or lawyer for a party in a matter in which the lawyer is participating personally and substantially. RPC 1.11(c)(2).
To whom does a lawyer owe a duty when he or she represents an organization?
A lawyer who represents an organization, such as a corporation, owes the duties of loyalty and confidentiality to the organization, not to its individual constituents, such as officers, directors, or employees. RPC 1.13(a).
May a lawyer concurrently represent an organizations and its employees?
A lawyer may represent both the organization and its constituents as long as no other conflict exists. If the organization’s consent to the dual representation is required, then the consent must be given by an appropriate official within the organization other than the individual who is to be represented, or by the shareholders. RPC 1.13(g).
When dealing with an organization’s agents, what must an attorney representing that organization explain?
A lawyer must explain the identity of the client for whom the lawyer acts whenever the lawyer knows or reasonably should know that the organization’s interests are or may become adverse to those of the constituents with whom the lawyer is dealing. The lawyer must not mislead such a constituent into believing that the constituent may communicate confidential information to the lawyer in a way that will not be used in the organization’s interest if that interest is or becomes adverse to the constituent. RPC 1.13(f).
To whom should an attorney representing an organization report misconduct?
Unless the lawyer reasonably believes that it is not in the best interests of the organization to do so, the lawyer must refer the matter to a higher authority in the organization, including, if warranted by the circumstances, the highest authority that can act on behalf of the organization as determined by applicable law. RPC 1.13(b).
To whom should an attorney report misconduct if the highest authority within the organization has failed to address the conduct in a timely and appropriate manner or refused to act?
If the lawyer reasonably believes the conduct is a clear violation of law and the lawyer reasonably believes the violation is reasonably certain to result in substantial injury to the organization, then the lawyer may reveal information relating to the representation, only if and to the extent that the lawyer believes it is necessary to prevent the substantial injury.
What should an attorney do if he or she has been discharged from an organization because he or she reported misconduct or withdrew under circumstances permitted by the RPC?
The attorney must proceed as he or she reasonably believes is necessary to ensure the organization’s highest authority is informed of the discharge or withdrawal.
What is the general rule regarding imputed disqualification?
Generally, if one lawyer in a firm is unable to represent a client because of a conflict of interest, then the prohibition applies to all other lawyers in the firm. RPC 1.10(a). Such a disqualification may be waived by the affected client if: (1) After consulting with the lawyer, (2) receiving in writing adequate information about the material risks and reasonable alternatives to the representation, and (3) having been given the opportunity to consult with independent counsel, the client gives informed consent, in writing. RPC 1.10(c); 1.7(b).
What is the exception to the general imputed disqualification rule?
Certain types of conflicts are considered to be personal to the individual lawyer and are not imputed to other lawyers in the firm.
What is the three components to the attorney-client confidentiality rule?
(1) Attorney-client privilege (2) Work-product doctrine (3) Ethical duty of Confidentiality
What confidentiality principle applies in judicial or other legal proceedings?
(1) Attorney-client privilege (2) Work-product doctrine
What confidential principle applies in circumstances other than judicial or other legal proceedings?
Ethical Duty of Confidentiality
In what matters does the attorney-client confidentiality apply?
It applies matters communicated in confidence by a client and to all information relating to the representation of the client, from any source. A lawyer may not disclose such information except as authorized or required by the applicable ethics rules or other law. RPC 1.6, cmt. 5.
What is “attorney-client privilege”?
Confidential communication between a client and his or her attorney.
What are the elements to attorney-client privilege?
(1) Confidential—The communication must be intended to be confidential to be privileged. Communication made in the knowing presence of a third party generally destroys privilege. The presence of, or communication by or through, a representative of the client or the lawyer does not destroy the lawyer-client privilege. (2) Communication—The communication must be for the purpose of seeking legal advice or representation, but the lawyer is not required to give advice or agree to the representation for the privilege to exist.
Who holds the attorney-client privilege?
The client holds and may waive attorney-client privilege.
How long does attorney-client privilege remain?
The attorney-client privilege continues without ends (even after the representation terminates). It generally survives the client’s death.
What are the exceptions to the attorney-client privilege?
(1) Future crime or fraud (2) Disputes between the attorney and client(s) (3) A lawyer may provide evidence as to competency or the intentions of a client as related to a will or inter vivos transfer. Manley v. Combs, 30 S.E.2d 485, 493 (Ga. 1944).
What is the general professional obligation of confidentiality?
A lawyer is prohibited from disclosing information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized to carry out the representation or other specific exceptions apply. RPC 1.6(a).
What is the “protected information” regarding professional obligation of confidentiality?
The ethical duty of confidentiality applies not only to confidential client communications, but also to all information relating to the representation, regardless of the source, including lawyer observations and third-party communications.
What is the extent of the professional obligation?
The prohibition applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person. A lawyer’s use of a hypothetical to discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved.
Who is considered “a prospective client”?
A person who discusses the possibility of forming a lawyer-client relationship with respect to a matter is a prospective client.
What is the professional obligation of confidentiality to prospective clients?
Even if no lawyer-client relationship is formed, a lawyer who has had discussions with a prospective client is generally not permitted to use or reveal information learned in a consultation with the prospective client.
What is the “informed consent” doctrine as it applies to revealing confidential information?
“Informed consent” means the agreement of the client to the proposed course of conduct after the lawyer has adequately communicated the material risks and reasonably available alternatives.
What implied authority do attorney’s possess regarding the professional obligation of confidentiality?
(1) A lawyer may disclose information relating to the representation of a client if the disclosure is impliedly authorized to carry out the representation. However, a client’s instructions or special circumstances can limit such authority. (2) Lawyers in a firm may, in the course of the firm’s practice, disclose to each other information relating to a client of the firm, unless the client has instructed that particular information be confined to specified lawyers. Disclosure may also be made to non-lawyers in a firm when necessary to carry out the representation. The firm must have procedures in place (including training) to ensure that non-lawyers do not violate the duty of confidentiality.
What are the exceptions to attorney-client confidentiality principles?
(1) Substantial hardship to another (2) Prevent serious injury or death (3) Controversy between a lawyer and client (4) Securing legal advice about a lawyer’s compliance (5) Compliance with other law or Court order
What is “substantial hardship” as it applies as an exemption to the confidentiality principles?
A lawyer may reveal confidential information concerning the representation of a client to the extent the lawyer reasonably believes necessary to avoid or prevent harm or substantial financial loss to another as a result of client criminal conduct or third-party criminal conduct clearly in violation of the law.
What limited circumstances may an attorney breach attorney-client confidentiality principles due to a controversy between the attorney and the client?
A lawyer may reveal confidential information concerning the representation to the extent that the lawyer reasonably believes it necessary: • To establish a claim or defense on the lawyer’s behalf in a controversy between the lawyer and the client; • To establish a defense to a criminal charge or civil claim against the lawyer based on conduct in which the client was involved; or • To respond to allegations in any proceeding concerning the representation of the client.
What is the standard for conduct before the tribunal?
A lawyer must not engage in conduct intended to disrupt a tribunal. This duty applies to any proceeding of a tribunal, including a deposition.
What is the rule for civility and courtesy?
As an advocate for the client, the lawyer’s role is to present evidence and argument so that the cause may be decided according to law. As an advocate, a lawyer must refrain from abusive or hostile conduct.
What is the rule to avoid improper influence?
A lawyer must not seek to influence a judge, juror, prospective juror, or other official by means prohibited by law.
What is the general rule as to the duty not to abuse legal process?
A lawyer is prohibited from knowingly advancing a claim or defense unwarranted by existing law. However, a good-faith argument for an extension, a modification, or a reversal of existing law is appropriate.
What is a “frivolous” legal action?
An action will be considered frivolous under the RPC if the lawyer is unable either to make a good-faith argument on the merits of the action taken or to support the action taken by a good-faith argument for an extension, modification, or reversal of existing law.
What is the general rule regarding “aggressive” lawsuits?
A lawyer must not file a suit, assert a position, conduct a defense, delay a trial, or otherwise take action on behalf of the client when the lawyer knows or it is obvious that the action serves merely to harass or maliciously injure another. The lawyer must not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that the lawyer knows violate the legal rights of such a person.
What is the general rule regarding the duty to expedite litigation?
A lawyer must make reasonable efforts to expedite litigation consistent with the interests of the client. In doing so, a lawyer must balance the duty to use legal procedures to the fullest benefit of the client with the duty not to abuse them.
What is the test regarding the duty to expedite litigation?
The reasonableness of a lawyer’s effort to expedite litigation must be judged by controlling factors, and it will be considered sufficient if reasonable under the circumstances. “Reasonable efforts” do not equal “instant efforts.”
What is the duty of candor to the tribunal?
A lawyer representing a client in any proceedings of a tribunal has the duty of candor, discussed below in detail. This duty also applies when the lawyer is representing a client in an ancillary proceeding conducted pursuant to the tribunal’s adjudicative authority, such as a deposition.
When does the duty of candor to the tribunal terminate?
The duty of candor applies through the conclusion of the proceeding, which is defined as when a final judgment has been affirmed on appeal or the time for review has passed. It applies even if compliance requires disclosure of information otherwise protected by the ethical duty of confidentiality.
How does the duty of candor to the tribunal apply to statements about the law? Controlling adverse legal authority?
A lawyer must not knowingly make a false statement of law to the court but is free to make non-frivolous arguments of law that favor the client. A lawyer must disclose controlling legal authority that is known to the lawyer to be directly adverse to the position of the client and that is not disclosed by opposing counsel. The lawyer may argue against the authority and seek to have it overturned or attempt to distinguish it from the case at bar.
How does the duty of candor to the tribunal apply to factual statements?
A lawyer must not knowingly make a false statement of fact to a tribunal, unless the purpose is to prove its falsity. Although a lawyer is responsible for pleadings and other documents prepared for litigation, she is not required to have personal knowledge of matters asserted in the pleadings and documents, which are generally assertions by the client, or by someone on the client’s behalf, and not assertions of the lawyer. If an assertion purports to be based on the lawyer’s own knowledge, then it may be made only when the lawyer knows the assertion is true or believes it to be true following reasonably diligent inquiry. The prohibition applies only to evidence that the lawyer knows to be false, not to evidence that the lawyer reasonably believes to be false.
How must an attorney remedy providing a statement he or she believes to be true but subsequently discovers is false?
The lawyer must speak with the client confidentially, advise the client of the lawyer’s duty of candor, and seek the client’s cooperation with respect to the withdrawal or correction of the false statement.
How does “failure to disclose” generally affect the lawyer’s duty of candor to the tribunal?
A lawyer is not under a general duty to reveal facts unfavorable to the client, unless doing so is necessary to avoid assisting the client in a criminal or fraudulent act. Under certain circumstances a failure to disclose would be the equivalent of an affirmative misrepresentation. Thus, if the lawyer fails to correct a court’s erroneous understanding of a fact, such failure would be improper.
Is there a duty to disclose ex parte proceedings to the Court?
In an ex parte proceeding other than a grand-jury proceeding, a lawyer must inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse. Because there is no opposing counsel, there is no balance of presentation. The purpose of the tribunal is to obtain a just result, and it has an affirmative responsibility to accord the absent party just consideration.
What is the duty of fairness to opposing party and counsel as it applies to evidence?
A lawyer must not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value. A lawyer must also not counsel another person to do or assist another person in doing any such act.
What is the duty of fairness to opposing party and counsel as it applies to non-expert witnesses?
A lawyer may properly pay a non-expert witness the statutory fee and reasonable expenses incurred as a result of testifying.
What is the duty of fairness to opposing party and counsel as it applies to expert witnesses?
An expert witness may be paid a reasonable fee for the expert’s professional services and be compensated for reasonable expenses incurred as a result of testifying.
May an attorney request that a person other than the client refrain from voluntarily giving information to another party?
A lawyer must not request a person other than a client to refrain from voluntarily giving relevant information to another party unless: (1) The person is a relative or an employee or other agent of the client or the lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving the information; and (2) The information is not otherwise subject to the assertion of a privilege by the client.
May a lawyer falsify evidence or assist in witness perjury?
A lawyer must not falsify evidence and may not counsel a witness to testify falsely or assist a witness in testifying falsely.
May a lawyer knowingly use false evidence?
A lawyer is prohibited from knowingly offering false evidence and may refuse to admit evidence that the lawyer reasonably believes is false.
What is “knowingly” as it applies to using false evidence?
The term “knowingly” means actual knowledge of the fact, which may be inferred from circumstances.
What must an attorney do if he or she learns subsequently offered evidence or testimony is false?
If a lawyer, the lawyer’s client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, then the lawyer must take reasonable remedial measures.
What are “reasonably remedial measures” as it applies to offering false evidence or false testimony?
Reasonable remedial measures can include confidentially advising the client of the lawyer’s duty of candor and urging the client’s cooperation with respect to the withdrawal or correction of the false statements or evidence. If that measure fails, then the lawyer is required to take further remedial action. If withdrawal from the representation is not permitted or will not undo the effect of the false evidence, then the lawyer must make such disclosure to the tribunal as is reasonably necessary to remedy the situation, even if doing so requires the lawyer to reveal information that otherwise would be protected as confidential.
What must an attorney do if he knows a criminal defendant will offer false testimony?
A lawyer is required to take remedial measures if he knows that the testimony will be or was false. The lawyer should confidentially attempt to dissuade the client from testifying falsely or attempt to persuade the client to correct the false statement. If the client refuses before trial, then the lawyer may withdraw. In connection with a request for permission to withdraw premised on a client’s misconduct, a lawyer may reveal information relating to the representation only to the extent reasonably necessary to comply with the RPC. If the tribunal denies withdrawal, then the lawyer should disclose the false testimony to the tribunal even if doing so would reveal confidential information.
What is the general rule regarding ex parte communications?
A lawyer is not permitted to communicate ex parte with persons serving in an official capacity in the proceeding, such as judges, masters, or jurors, unless authorized to do so by law.
What is the scope of the ex parte communications rule?
The rule includes all forms of communication, including written communications. If a copy of a written communication is also sent to the other party or to opposing counsel, it will not be ex parte.
What are permitted ex parte communications?
Only communications involving “housekeeping” matters or emergency communications authorized by law or court order are permitted ex parte.
May an attorney communicate with jurors or members of the panel that jurors will be chosen?
Out-of-court communication with jurors or members of the panel from which jurors will be chosen is prohibited during the proceeding. This includes all communication, even about matters unrelated to the case. A lawyer may not communicate with jurors through her client, and she may be held responsible for the client’s communication with a juror, if the lawyer was aware of the client’s intent and assisted the client in making contact.
What is the general rule of “truthfulness in statements to others”?
In representing a client, a lawyer must not knowingly make a false statement of material fact or law to a third person. Although a lawyer does not generally have a duty to inform an opposing party of relevant facts, the lawyer is not permitted to misrepresent facts.
What is “misrepresentation” as it applies to the “truthfulness in statements to others” rule?
Misrepresentation can occur if the lawyer incorporates or affirms a statement of another person known to be false. Misrepresentations can also occur by failure to act.
What is “statements of fact” as it applies to the “truthfulness in statements to others” rule?
Whether a statement is one “of fact” depends on the circumstances. In negotiations, certain types of statements are not generally considered statements of material fact.
When must a lawyer disclose material facts to third parties?
A lawyer must also not fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a client in the commission of a criminal or fraudulent act, unless disclosure is prohibited by RPC 1.6 regarding confidentiality.
What is the general rule regarding communicating with persons represented by counsel?
A lawyer is not permitted to communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.
What is the scope of the rule regarding communicating with persons represent by counsel?
This prohibition applies to communications with any person represented by counsel with regard to the matter to which the communication relates. The rule applies even if the represented person initiates or consents to the communication.
What is considered outside the scope of the rule regarding communicating with persons represented by counsel?
The rule does not prohibit communication with a represented person, or an employee or agent of such person, with regard to any matter outside the scope of the representation. The rule also does not prohibit communication with a represented person who is seeking advice from a lawyer who is not representing a client in the matter.
May a lawyer communicated with a person represented by counsel through a third party act?
A lawyer may not make a prohibited communication through the acts of another.
Are parties prohibited from directly communicated with each other?
Parties to a matter may communicate directly with each other, and a lawyer is not prohibited from advising a client concerning a communication that the client is legally entitled to make.
What is “knowledge” regarding the rule regarding communicating with persons represented by counsel?
The lawyer must have actual knowledge of the fact of the representation. Such actual knowledge may be inferred from the circumstances.
How does the rule regarding communications with persons represented by counsel generally apply if the “person” is an organization?
A lawyer is prohibited from communicating with a constituent of the organization: • Who supervises, directs, or regularly consults with the organization’s lawyer concerning the matter, • Who has authority to obligate the organization with respect to the matter, or • Whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability. This rule does not prohibit communication with a represented person, or an employee or agent of such a person, concerning matters outside the representation.
How does the rule regarding communications with persons represented by counsel generally apply if the “person” is an organization and the lawyer wants to speak with a former constituent?
In Georgia, a lawyer can contact and interview former employees of a represented organization to obtain relevant, non-privileged information ONLY if the lawyer makes full disclosure as to the identity of his client, and the former employee consents.
What is “good faith” as it applies to the rule regarding communications with persons represented by counsel generally apply if the “person” is an organization?
Evidence of good faith includes an immediate and candid statement of the interest of the person on whose behalf the interview is being taken, a full explanation of why that person’s position is adverse to the interests of the entity with which the interviewee is associated, the exploration of the relationship issue at the outset of the interview, and the cessation of the interview immediately upon determination that the interview is improper.
What is the general rule regarding dealing with persons unrepresented by counsel?
A lawyer is not permitted to state or imply that he is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role, the lawyer must make reasonable efforts to correct the misunderstanding. The lawyer is not permitted to give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such person are or have a reasonable possibility of being in conflict with the interests of the lawyer’s client.
What must an attorney do while dealing with unrepresented parities?
As long as the lawyer has explained that the lawyer represents an adverse party and is not representing the person, the lawyer may inform the unrepresented person of the terms on which the lawyer’s client will enter into an agreement or settle a matter, prepare documents that require the person’s signature, and explain the lawyer’s own view of the meaning of the document or the lawyer’s view of the underlying legal obligations.
What is the general rule regarding trial publicity?
A lawyer who is participating or has participated in the investigation or litigation of a matter is not permitted to make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.
What is an exception to the trial publicity rule?
A lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity that was not initiated by the lawyer or the client. The statement must be limited to information necessary to mitigate the recent adverse publicity.
What statements are likely to be prohibited?
(1) The character, credibility, reputation, or criminal record of a party, a suspect in a criminal investigation, or a witness; the identity of a witness; or the expected testimony of a party or witness; (2) The possibility of a plea of guilty to the offense or the existence or contents of any confession, admission, or statement given by a defendant or suspect or that person’s refusal or failure to make a statement; (3) The performance or results of any examination or test, the refusal or failure of a person to submit to an examination or test, or the identity or nature of physical evidence expected to be presented; (4) Any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration; (5) Information that the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and that would, if disclosed, create a substantial risk of prejudicing an impartial trial; or (6) The fact that a defendant has been charged with a crime, unless the remarks include a statement explaining that the charge is merely an accusation and that the defendant is presumed innocent until proven guilty.
How does the rule regarding trial publicity apply to associated attorneys?
The rule with regard to trial publicity applies to any lawyer associated in a firm or government agency with a lawyer who is participating or has participated in the investigation or litigation of a matter.
What is the special responsiblity a prosecutor posesses regarding the rule for trial publicity?
The prosecutor is not only an advocate, but also a minister of justice. The prosecutor’s responsibilities include the obligation to lay charges only when they are supported by probable cause, to see that the defendant is accorded all of his constitutional due-process rights, to seek a guilty verdict based on the evidence and a showing of proof beyond a reasonable doubt, and to take special precautions to prevent and reverse the conviction of innocent defendants.
What is the prosecutor’s duty to avoid conflicting with private interests?
Prosecutors must avoid any conflict that might result from their obligation to seek justice on behalf of the public against any private client interest
What is the prosecutor’s duty to not prosecute without probable cause?
A prosecutor must not prosecute a charge that the prosecutor knows is not supported by probable cause.
What is a prosecutor’s duty to advise of the right to counsel?
A prosecutor must not make any effort to prevent those accused from exercising their right to counsel.
What is a prosecutor’s duty to disclose evidence?
A prosecutor is required to timely disclose all known exculpatory evidence or information that tends to disprove the guilt of the accused or that mitigates the offense. Before sentencing, the prosecutor must disclose to the defense and the court all known, unprivileged mitigating information, unless a protective order of the court relieves the prosecutor of that duty.
What is a prosecutor’s duty regarding extrajudicial statements?
Prosecutors must refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused, except for those necessary to inform the public of the nature of the prosecutor’s action and that serve a legitimate law-enforcement purpose. They must also prevent those under their direct supervision from making such statements.
What is a the general rule of lawyer’s serving as witnesses?
A lawyer is not permitted to act as an advocate at a trial in which the lawyer is likely to be a necessary witness, unless:
• The testimony relates to an uncontested issue;
• The testimony relates to the nature and value of legal services rendered in the case; or
• Disqualification of the lawyer would be a substantial hardship on the client
