Professional Responsibility Flashcards

Question

May lawyers provide "law-related services"?

Answer 1

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).

Answer 2

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.

Answer 3

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).

Answer 4

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).

Answer 5

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.

Answer 6

(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.

Answer 7

A lawyer must sell her entire practice (not entire firm, but entire practice).

Answer 8

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.

Answer 9

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).

Answer 10

No. The fees charged to a client may not be increased by the sale. RPC 1.17(d).

Answer 11

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).

Answer 12

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.

Answer 13

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).

Answer 14

(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.

Answer 15

• 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

Answer 16

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.

Answer 17

Mere violation of a Rule of Professional Conduct will not automatically result in a finding of malpractice. It is not negligence per se.

Answer 18

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).

Answer 19

• Breach of contract for not fulfilling a duty • Intentional tort • Negligence

Answer 20

A lawyer can be found liable for malpractice for breaching an express or implied agreement with a client.

Answer 21

A lawyer may be liable for malpractice for intentional torts, including fraud, malicious prosecution, and abuse of process.

Answer 22

(1) Breach of a duty of care (2) Causation (3) Actual damages

Answer 23

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.

Answer 24

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.

Answer 25

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).

Answer 26

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).

Answer 27

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.

Answer 28

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).

Answer 29

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).

Answer 30

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).

Answer 31

In general, a lawyer is not under a duty to accept representation of any client. RPC6.2, cmt. 1.

Answer 32

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.

Answer 33

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.

Answer 34

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.

Answer 35

The lawyer-client relationship begins when the client reasonably believes that the relationship exists.

Answer 36

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).

Answer 37

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.

Answer 38

“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).

Answer 39

Advertising is generally allowed, subject to the following rules. RPC 7.2.

Answer 40

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.

Answer 41

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.

Answer 42

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.

Answer 43

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).

Answer 44

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).

Answer 45

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).

Answer 46

A lawyer may not use a firm name, letterhead, or other professional designation that is misleading.

Answer 47

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).

Answer 48

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).

Answer 49

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).

Answer 50

Lawyers may not state or imply that they practice in a partnership or other organization unless they actually do. RPC 7.5(d).

Answer 51

Direct contact includes direct personal contact through an intermediary and live contact by phone. RPC 7.3, cmt.2.

Answer 52

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).

Answer 53

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).

Answer 54

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).

Answer 55

Lawyers or law firms who primarily refer callers to other attorneys must disclose that information. RPC 7.2(c)(2).

Answer 56

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.

Answer 57

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.

Answer 58

No. Only contingent-fee arrangements must be in writing.

Answer 59

• 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

Answer 60

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.

Answer 61

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).

Answer 62

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.

Answer 63

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).

Answer 64

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).

Answer 65

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.

Answer 66

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.

Answer 67

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.

Answer 68

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).

Answer 69

Generally, a lawyer must not compensate a person or an organization for recommending his or her services.

Answer 70

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).

Answer 71

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).

Answer 72

Pursuant to a profit-sharing or retirement plan within a firm, former partners and associates of the primary lawyer may share in the fees.

Answer 73

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.

Answer 74

(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).

Answer 75

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).

Answer 76

A lawyer should hold the property of others with the care required of a professional fiduciary.

Answer 77

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).

Answer 78

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).

Answer 79

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).

Answer 80

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).

Answer 81

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).

Answer 82

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).

Answer 83

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).

Answer 84

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.

Answer 85

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).

Answer 86

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.

Answer 87

The lawyer may recover fees due (or the reasonable value of the work). RPC1.16, cmt. 4.

Answer 88

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.

Answer 89

A lawyer may seek to withdraw if she can do so without materially harming the client. RPC 1.16(b).

Answer 90

• 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).

Answer 91

A lawyer must give the client reasonable notice before withdrawing to give the client reasonable opportunity to obtain new representation. RPC 1.16(d).

Answer 92

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).

Answer 93

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).

Answer 94

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).

Answer 95

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

Answer 96

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).

Answer 97

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).

Answer 98

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.

Answer 99

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.

Answer 100

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).

Answer 101

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).

Answer 102

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.

Answer 103

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).

Answer 104

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.

Answer 105

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.

Answer 106

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.

Answer 107

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).

Answer 108

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.

Answer 109

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.

Answer 110

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.

Answer 111

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.

Answer 112

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.

Answer 113

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.

Answer 114

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.

Answer 115

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.

Answer 116

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.

Answer 117

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.

Answer 118

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.

Answer 119

A lawyer must control his workload to ensure that he can handle all matters competently. RPC 1.3, cmt. 2.

Answer 120

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.

Answer 121

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.

Answer 122

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.

Answer 123

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).

Answer 124

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.

Answer 125

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.

Answer 126

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.

Answer 127

Loyalty to a client generally does not allow a lawyer to undertake representation directly adverse to that client without that client’s informed consent.

Answer 128

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).

Answer 129

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).

Answer 130

If an impermissible conflict arises after representation has been undertaken, then the lawyer should withdraw from the representation. RPC 1.7, cmt. 3.

Answer 131

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.

Answer 132

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.

Answer 133

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.

Answer 134

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.

Answer 135

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.

Answer 136

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.

Answer 137

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.

Answer 138

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).

Answer 139

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).

Answer 140

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).

Answer 141

Lawyers representing indigent clients may advance court costs and litigation expenses, regardless of whether the funds will be repaid. RPC 1.8(e).

Answer 142

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).

Answer 143

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.

Answer 144

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.

Answer 145

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).

Answer 146

A lawyer may accept an unsolicited gift from a client if the transaction meets general standards of fairness. RPC 1.8, cmt. 2.

Answer 147

A lawyer may not use information gained during representation to the client’s disadvantage, unless the client gives informed consent. RPC 1.8(b).

Answer 148

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).

Answer 149

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.

Answer 150

The client's may give their informed consent.

Answer 151

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.

Answer 152

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.

Answer 153

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).

Answer 154

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.

Answer 155

“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.

Answer 156

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).

Answer 157

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).

Answer 158

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).

Answer 159

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).

Answer 160

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).

Answer 161

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).

Answer 162

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.

Answer 163

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).

Answer 164

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).

Answer 165

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).

Answer 166

“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).

Answer 167

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).

Answer 168

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).

Answer 169

(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).

Answer 170

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).

Answer 171

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).

Answer 172

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).

Answer 173

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).

Answer 174

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).

Answer 175

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.

Answer 176

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.

Answer 177

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).

Answer 178

Certain types of conflicts are considered to be personal to the individual lawyer and are not imputed to other lawyers in the firm.

Answer 179

(1) Attorney-client privilege (2) Work-product doctrine (3) Ethical duty of Confidentiality

Answer 180

(1) Attorney-client privilege (2) Work-product doctrine

Answer 181

Ethical Duty of Confidentiality

Answer 182

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.

Answer 183

Confidential communication between a client and his or her attorney.

Answer 184

(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.

Answer 185

The client holds and may waive attorney-client privilege.

Answer 186

The attorney-client privilege continues without ends (even after the representation terminates). It generally survives the client's death.

Answer 187

(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).

Answer 188

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).

Answer 189

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.

Answer 190

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.

Answer 191

A person who discusses the possibility of forming a lawyer-client relationship with respect to a matter is a prospective client.

Answer 192

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.

Answer 193

“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.

Answer 194

(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.

Answer 195

(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

Answer 196

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.

Answer 197

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.

Answer 198

A lawyer must not engage in conduct intended to disrupt a tribunal. This duty applies to any proceeding of a tribunal, including a deposition.

Answer 199

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.

Answer 200

A lawyer must not seek to influence a judge, juror, prospective juror, or other official by means prohibited by law.

Answer 201

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.

Answer 202

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.

Answer 203

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.

Answer 204

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.

Answer 205

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.”

Answer 206

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.

Answer 207

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.

Answer 208

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.

Answer 209

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.

Answer 210

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.

Answer 211

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.

Answer 212

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.

Answer 213

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.

Answer 214

A lawyer may properly pay a non-expert witness the statutory fee and reasonable expenses incurred as a result of testifying.

Answer 215

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.

Answer 216

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.

Answer 217

A lawyer must not falsify evidence and may not counsel a witness to testify falsely or assist a witness in testifying falsely.

Answer 218

A lawyer is prohibited from knowingly offering false evidence and may refuse to admit evidence that the lawyer reasonably believes is false.

Answer 219

The term “knowingly” means actual knowledge of the fact, which may be inferred from circumstances.

Answer 220

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.

Answer 221

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.

Answer 222

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.

Answer 223

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.

Answer 224

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.

Answer 225

Only communications involving “housekeeping” matters or emergency communications authorized by law or court order are permitted ex parte.

Answer 226

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.

Answer 227

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.

Answer 228

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.

Answer 229

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.

Answer 230

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.

Answer 231

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.

Answer 232

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.

Answer 233

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.

Answer 234

A lawyer may not make a prohibited communication through the acts of another.

Answer 235

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.

Answer 236

The lawyer must have actual knowledge of the fact of the representation. Such actual knowledge may be inferred from the circumstances.

Answer 237

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.

Answer 238

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.

Answer 239

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.

Answer 240

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.

Answer 241

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.

Answer 242

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.

Answer 243

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.

Answer 244

(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.

Answer 245

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.

Answer 246

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.

Answer 247

Prosecutors must avoid any conflict that might result from their obligation to seek justice on behalf of the public against any private client interest

Answer 248

A prosecutor must not prosecute a charge that the prosecutor knows is not supported by probable cause.

Answer 249

A prosecutor must not make any effort to prevent those accused from exercising their right to counsel.

Answer 250

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.

Answer 251

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.

Answer 252

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

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.