Professional Responsibility Flashcards
What are the two bodies of law that apply in VA PR issues?
ABA model rules - as adapted by VA
Connons of Judicial Conduct (rarely tested)
What are the main duties owed to your clients?
Confidentiality
Loyalty
Financial Responsibility
Competence
& other reasonable things
(Clients Love Fierce Counsel)
What are the duties owed to entities other than clients?
Candor/truthfulness
Fairness
Dignity/Decorum
& other reasonable things
Courts Feel Differently
What is general rule for Duty of Confidentiality owed to clients?
Don’t reveal any information PROTECTED BY ACP or gained through the professional relationship that would HARM OR EMBARASS your client, or that your client has requested be kept confidential
What are the ACP exceptions?
1) Client consents
2) defending yourself (client sues you, brings disciplinary action, or refuses to pay you)
3) Running your office
4) compelled by court order or law (and to prevent crimes)
What procedure must you follow if you want to disclose information gained through ACP that your client is about to commit a crime?
1) advise him possible legal consequences of his actions
2) urge him not to commit the crime and
3) warn him that you must reveal his intention if not abandoned
(if involving perjury, must seek to withdraw)
What is the black letter Duty of Loyalty?
You have a duty of loyalty to your client. I an interest of another client, yourself, or a 4rd party creates a SIGNIFICANT RISK OF MATERIALLY LIMITING your representation - or if representation directly adverse to another, you have A CONCURRENT CONFLICT OF INTEREST
Many conflicts can be tolerated if by a FACTUAL ANALYSIS establishes 3 elements:
1) you reasonably believe you can represent everyone effectively
2) you consult with each affected client. If your duty of confidentiality prevents you from fully disclosing info the client needs to understand the conflict, then consent may not be possible AND
3) The client CONSENTS, CONFIRMED in WRITING. your writing to the client memoralizing her oral consent is sufficient
If you were a GOv lawyer who worked ___________on a MATTER you cannot work on the same matter in later private practice without the government’s consent.
personally & substantially
What are the 3 ABA conditions for an exception to imputed disqualification of colleagues of former government lawyers:
1) you are screened off; and
2) you do not share any part of the fee in the matter and
3) your former Gov employer is informed
You must not solicit a substantial gift from a client or draft a legal instrument for a client who is not your close relative, if it________________
Provides a substantial gift to you or your relative
When may you enter into business with a client or obtain an interest advers to hers:
First Discuss Over Coffee
1) terms are FAIR to the client
2) DISCLOSED in understandable writing
3) the client is advised to consult an OUTSIDE lawyer; AND
4) you client provides CONSENT in writing
To have a contigent fee arrangement, what are the writing requirements?
written, signed by the client, and contain:
1) your percentage and
2) what EXPENSES will be deducted from recovery AND
3) Whether your percent is taken BEFORE or AFTER EXPENSES
What are the limits on contingent fees?
Cannot agree to collect contingent fees in any CRIMINAL and most DOMESTIC RELATIONS cases.
How are fees set?
Fees must be REASONABLE, taking into account the LABOR, NOVELTY, DIFFICULTY, SKILL and TIMING required, result obtained, experience and other demands on attorney
Referral fees among lawyers are unethical, BUT in VA, __________
they are indirectly allowed if the referring lawyer stays in the case and agrees to a joint fee arrangement
Contracts to split fees with a non-lawyer are___________
against PUBLIC POLICY and VOIDABLE
Duty of Competence: you have a duty to render competent service to your client, which means:
Using the LEGAL KNOWLEDGE, SKILL, THOUROUGNESS and PREPARATION reasonably necessary for the representation
Duty of Diligence: you have the duty to___________
DILIGENTLY, PROMPTLY, and ZEALOUSLY pursue your case to completion
Duty to Communicate: You have the duty to keep your client informed about the case, anwser client communications AND
convey settlement offers
What is the procedure to withdraw?
1) provide timely notice to the court
2) in a reasonable time return: a) unspent fees and expenses AND b) all of the client’s property and material papers.
What is the basic idea of duty of candor to 3rd parties?
A state can regulate attorney advertising and solicitation subject to your constitutional right to free speech.
This is protected under the limited commercial speech doctrine of 1st amdenment, which is subject to STRICT SCRUTINY (serves SUBSTANTIAL GOVERNMENT INTEREST, is DIRECTLY AND MATERIALLY ADVANCES THAT INTEREST AND is NARROWLY TAILORED to that interet)
What are judges duties?
1) Duty to preserve the decorum and impartiality of the tribunal
2) Duty to expedite cases
3) Ethical duties
a) maintain high standards of integrity and independence
b) disqualify themselves if the have a personal or financial interest
c) avoid appearance of bias or prejudice
d) must report income from all sources and no accept substantial gifts or loans
-active judges must not serve as a private judge, arbitrator or mediator, practice law or run for office
A lawyer is subject to discipline for engaging in deceitful conduct:
Only when it reflects adversely on her fitness to practice law.
Restrictions on the right to practice law (so-called “covenants not to compete”) are allowed: when included in a ________AND__________
settlement agreement and approved by a court.
