Professional Responsibility

Question 1

8.1 Bar Admission and Disciplinary Matters (Candor Requirement)

Answer 1

An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not:

(a) knowingly make a false statement of material fact; or
(b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information . . . .

Question 2

8.4 It is professional misconduct for a lawyer to:

Answer 2

(a) violate or attempt to violate the rules of professional conduct, knowingly assist another to do so, or do so through the facts of another;
(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a layer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
(e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law;
(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law; or
(g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation . . . .

Question 3

8.3 Professional Conduct Reporting

Answer 3

(a) a lawyer who knows that another lawyer has committed a violation of the rules of professional conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects, shall inform the appropriate professional authority
(b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office shall inform the appropriate authority.
(c) This rule does not require disclosure of information otherwise protected by rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyer assistance program.

Question 4

5.1 Responsibility of Partners, Managers, and Supervisory Lawyers

Answer 4

partners must ensure compliance by subordinates - senior lawyers may be subject to discipline for conduct of subordinate

Question 5

5.2 Responsibilities of a Subordinate Lawyer

Answer 5

a lawyer is still bound by the rules of professional conduct although he acted at the discretion of another. A subordinate lawyer does not violate the rules if that lawyer “acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional responsibility.”

Question 6

5.3 Responsibilities Regarding Non-Lawyer Assistance

Answer 6

a lawyer who supervises a non-lawyer shall make reasonable efforts to ensure that the person’s behavior conforms to the rules of professional conduct. A supervisory lawyer will be held responsible for that person’s violation of the rules of professional conduct if the lawyer ordered or ratified the conduct

Question 7

1.6(a) Confidentiality

Answer 7

A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b)

Question 8

1.6(b) Exceptions to confidentiality

Answer 8

(1) to prevent reasonably certain death or bodily harm;
(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property interests of another and in furtherance of which the client has used or is using the lawyer’s services;
(3) to prevent, mitigate, or rectify substantial injury to the financial interests or property of another that is reasonable certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services
(4) to secure legal advice about the lawyer’s compliance with these rules;
(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and client
(6) to comply with another law or court order
(7) to detect and resolve conflicts of interest

Question 9

1.6(c) Inadvertent Disclosure and Confidentiality

Answer 9

(c) a lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

Question 10

4.1 truthfulness in statements to others

Answer 10

in the course of representing a client a lawyer shall not knowingly:

(a) make a false statement of material fact or law to a third person; or
(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client unless disclosure is prohibited by 1.6

Question 11

1.16 Declining or Terminating the Relationship. A lawyer shall withdraw from the representation if:

Answer 11

(1) the representation will result in violation of the rules of professional conduct or other law;
(2) the lawyer’s physical or mental condition materially impairs the lawyer’s ability represent the client; or
(3) the lawyer is discharged

Question 12

1.16 Declining or Terminating the Relationship. A lawyer may withdraw from the representation if:

Answer 12

(1) withdrawal can be accomplished without material adverse effect on the interests of the client;
(2) the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent;
(3) the client has used the lawyer’s services to perpetrate a crime or fraud;
(4) the client insists on taking action the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;
(5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled
(6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or
(7) other good cause exists

Question 13

1.16(d) Steps the lawyer must take after terminating representation

Answer 13

(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law.

Question 14

Elements of Attorney-Client Privilege

Answer 14

1. communication
2. between lawyer and client
3. in confidence
4. for the purpose of obtaining legal advice

Question 15

Crime-Fraud Exception to the Attorney-Client Privilege

Answer 15

there is no privilege if the client seeks the lawyer’s services in committing a crime or fraud. see also 1.6(b)(2)

Question 16

Upjohn

Answer 16

The Supreme Court held that in federal proceedings applying federal law, corporate entities could claim attorney-client privilege and that the scope of the privilege should depend on the subject matter of the communication, not on who was doing the communication

Question 17

Work Product Doctrine

Answer 17

parties may not discover documents and tangible things that are prepared in anticipation of litigation. But, those materials may be discovered if:

(1) they are otherwise discoverable; and
(2) the party shows that it has substantial need for the materias to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means

Question 18

1.2(b) scope of representation

Answer 18

representation does not equal endorsement

Question 19

1.1 Competence

Answer 19

A lawyer shall provide competent representation to the client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

Question 20

relevant factors to determine competence

Answer 20

a. how complex or specialized is the matter?
b. what is the lawyer’s experience?
c. does the lawyer have time to prepare and study?
d. can the lawyer refer mate to, or associate or consult with, a lawyer of established competence in the field?

Question 21

Strickland v. Washington Two prong test to determine whether ineffective assistance of counsel violated the six amendment:

Answer 21

1. deficient (clearly unreasonable) performance

2. prejudicial impact (reasonable probability of different outcome)

Question 22

1.3 Diligence

Answer 22

A lawyer shall act with reasonable diligence and promptness in representing a client

Question 23

2.1 Advisor (candor)

Answer 23

the client is entitled to straightforward advice. Pure technical advice is sometimes inadequate. It is proper for the lawyer to refer to relevant moral and ethical concerns

Question 24

1.2 Scope of the Representation

Answer 24

• the client decides the objectives of the representation
• civil case: the client decides when to settle
• criminal case: the client decides the plea
• a lawyer shall not counsel a client to act illegally, but may advise a client of her the consequences of her actions

Question 25

1.7(a) A concurrent conflict of interest exists if:

Answer 25

(1) the representation of one client will be directly adverse to another client; or
(2) there is significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third part or by the personal interests of the lawyer

Question 26

1.7(b) In spite of the fact that a conflict of interest exists, a lawyer may represent a client if:

Answer 26

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing

Question 27

Informed consent is:

Answer 27

an agreement to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct

Question 28

1.10(a) Imputation of conflicts

Answer 28

a firm of lawyer is essentially one lawyer for purposes of the rules governing loyalty to the client. If one lawyer has a conflict with a client of another lawyer represented by the firm, then so do all of the other lawyers in the firm

Question 29

1.18(a) Who is a prospective client?

Answer 29

a person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter

Question 30

1.18 Duties to Prospective client

Answer 30

• even when no lawyer-client relationship ensues, a lawyer shall not use or reveal information learned from prospective clients
• a lawyer shall not represent a client with interest materially adverse to those of a prospective client in the same or substantially related matter if the lawyer received information from the prospective client

Question 31

1.13 Organization as a Client

Answer 31

(a) the client is the entity itself
(b) if the lawyer learned that an employee or officer of the organization violated the law, he shall refer the matter to higher authority in the organization
(c) a lawyer may reveal information outside the corporation where: (1) the highest authority in the organization failed to address the matter; (2) reasonably believes violation will result in substantial injury to the organization

Question 32

1.8 (f) Accepting payment from third parties.

Answer 32

A lawyer shall not accept compensation for representing a client from on other than the client unless:

(a) the client gives informed consent;
(b) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and
(c) information relating to representation of a client is protected as required by 1.6

Question 33

1.9 Duties to former clients

Answer 33

• a lawyer cannot represent a new client in a the same or substantially related matter if the new client has interests adverse to those of a former client, unless the former client gives informed consent confirmed in writing
• a lawyer shall not use/ reveal information gained during the representation of a former client to that client’s disadvantage

Question 34

1.10 Imputation of conflicts. To remove an imputed conflict…

Answer 34

• The disqualified lawyer must be timely screened, given no part of the fee, written notice is given to the affected client(s)

Question 35

1.5(a) Factors to determine a reasonable fee:

Answer 35

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and the ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent

Question 36

1.5(b) Communications about fee arrangements

Answer 36

• the basis or rate of the fee shall be communicated to the client in writing before or within a reasonable time after commencing the representation

Question 37

1.5(c) contingent fees

Answer 37

a contingent fee shall:

• be in a writing signed by the client
• state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of a settlement . . . and whether such expenses are to be calculated before or after the contingent fee is calculated
• upon conclusion the lawyer shall inform the client of the outcome

Question 38

1.5(c) A lawyer shall not enter into a contingent fee:

Answer 38

(1) in a domestic relations matter; or

(2) when representing the defendant in a criminal case

Question 39

1.8(e) providing financial assistance to a client

Answer 39

a lawyer shall not provide financial assistance to a client, except:

(1) a lawyer may advance court costs, the repayment of which may be contingent on the outcome of the matter;
(2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client

Question 40

1.8(d) publication rights

Answer 40

a lawyer shall not acquire literary or media rights to a portrayal or account based in substantial part on the information relating to the representation

Question 41

1.15 Safekeeping property

Answer 41

(a) funds shall be kept separately from a lawyer’s own property, same state or with consent, complete records
(b) lawyer may deposit own funds for service charges
(c) lawyer shall deposit legal fees when paid and only withdraw fees earned
(d) prompt delivery to client or third person
(e) disputed property shall be kept separate until dispute is resolved

Question 42

1.8(a) Business Transactions with Clients

Answer 42

shall not enter into a business transaction unless:

(1) transaction terms are fair and reasonable and disclosed in writing;
(2) client is advised in writing to seek independent counsel;
(3) client gives informed consent in a writing signed by the client

Question 43

3.1 Meritorious Claims or Contentions

Answer 43

Not bring a claim unless there is a basis in law and fact

Question 44

3.3 Candor Toward the Tribunal

Answer 44

A lawyer shall not knowingly:

(1) make a false statement or fail to correct a false statement;
(2) fail to disclose legal authority in controlling jurisdiction the lawyer knows to be directly adverse to his client and not disclosed the by opposing counsel;
(3) offer evidence the lawyer knows to be false (must take reasonable remedial measures)

Question 45

3.3(b) when a lawyer knows his client plans to lie

Answer 45

lawyer shall take reasonable remedial measures and, if necessary, disclose to the tribunal

Question 46

Nix v. Whiteside

Answer 46

There is no right to testify falsely. The lawyer may threat to disclose.

Question 47

3.6 Trial Publicity

Answer 47

lawyer shall not make an extrajudicial statement that will have a substantial likelihood of materially prejudicing an adjudicative proceeding

Question 48

3.6 Trial Publicity. A lawyer may state:

Answer 48

(1) the claim, offense or defense involved, except when prohibited by law, the identity of the persons involved;
(2) information contained in a public record;
(3) that an investigation of the matter is in progress;
(4) the scheduling or result of any step in litigation;
(5) a request for assistance in obtaining evidence and information necessary thereto;

Question 49

3.6 Trial publicity. “Fire with fire” exception

Answer 49

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 not initiated by the lawyer or the lawyer’s client

Question 50

4.2 Communications With Persons Represented by Counsel

Answer 50

a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer

Question 51

4.3 Dealing with Unrepresented Persons

Answer 51

in dealing on behalf of a client, a lawyer shall not state he is disinterested, and shall not give legal advice to an unrepresented person other than the advice to secure counsel