Professional Responsibility Flashcards
Admitting and Disciplining: Regulation of Attorney Admissions (What They Can and Cannot Require)
Can Require: You are a graduate of an ABA accredited law school
Cannot Require: 1) You to be a US citizen, and 2) you to be a state resident
Admitting and Disciplining: Forms of Discipline
1) Reproval (public or private)
2) Suspension
3) Disbarment
Duty to Maintain the Integrity of the Profession: What to do if you know another lawyer violated rules regarding honesty, trustworthy, or fitness?
A lawyer who knows another lawyer has violated the rules so as to raise a substantial question as to that lawyer’s honesty, trustworthiness, or fitness SHALL INFORM THE DISCIPLINARY BOARD
Activities that Require a License
1) Court appearance and deposition
2) Drafting legal documents
3) Conducting settlements
Activity that Does Not Require a License
1) Filing paperwork with the court
2) Interviewing witnesses
3) Completing forms
Temporary Licensure Requirements in PA
Lawyer must be in good standing in home jurisdiction, and
1) associate with a PA lawyer, or
2) involves pending litigation in another jurisdiction, or
3) services provided to lawyer’s employer
Reporting and Testifying Violations + (1) Remember Jurisdiction Specific Rules + (2) Remember Testify Availability
If you witness another lawyer violating RPC or committing an untrustworthy or dishonest act, you must report to the disciplinary board
(1) : The rules ARE NOT jurisdiction specific
(2) : You MUST be available to testify
Accepting Employment: Ability to Accept or Reject Cases
A lawyer generally has the ability to take on or reject any client he desires
Accepting Employment: Duty of Competence
A lawyer owes a duty of competence which requires the necessary knowledge, skill, thoroughness, and preparation for representation
Accepting Employment: Exceptions to Freedom to Reject Cases
A lawyer should represent:
1) Defenseless or oppressed clients,
2) Fair share of pro bono
A lawyer MUST represent a client via:
1) Court appointment, unless it is an unreasonable financial burden or you have the duty to reject
Accepting Employment: Duty to Reject Cases + Exceptions + Tips for Exceptions - ALE
1) Inability (lawyer is physically or mentally inability to represent client)
2) Incompetence
3) Conflict
4) Strong feelings against purpose, and
5) Frivolous case (no meritorious defense)
Exceptions: 1) Associate with counsel WITH CLIENT’S PERMISSION
2) Learn the law
3) Emergency
Tip: ALE (Associate, Learn, Emergency)
Accepting Employment: Conflicts - Rule of Imputation
What you cannot do, your partner/associates are also prohibited from doing and vice versa
Specialization by Attorneys - National
Patent law and admiralty law
Solicitation: Rule for False or Misleading Facts
A lawyer is prohibited from making a false or misleading communication about the lawyer’s services
Solicitation: Rule for In Person/Face-to-Face Solicitation + Exceptions + Remember Pecuniary Gain
Rules prohibit in person, telephonic, or real time electronic communication directly or through an intermediary from someone with whom the lawyer has no (EXCEPTIONS) family, close friends, current or former clients with.
Remember: Cannot be done for PECUNIARY GAIN, but if offered for free this is okay
Solicitation: Direct Mail + Exceptions
Direct mail is NOT PROHIBITED because it is not face-to-face
Exceptions: 1) Prospective client cannot exercise reasonable judgment
2) Person explicitly told lawyer he does not want communication, or
3) Coercion, duress, or harassment
Publicity and Advertising: Prohibition of Untruthful or Misleading Ads + (1) Remember Firm Names and Letterheads + (2) Remember Municipality/Public Officer in Letterhead + (3) Remember Endorsement from Public Figures
1) Cannot create unjustified expectations;
2) Cannot make unverifiable comparisons
3) Cannot imply results by improper means (e.g. friends with judge)
(1) Firm names and letterheads may include deceased attorneys
(2) The name of a municipality or public officer MAY NOT be mentioned in letterhead
(3) Public figures may not endorse your firm via TV or radio
Non-Lawyer Partners or Officers of Law Firm
Non-lawyers are prohibited from being partners or being in charge of a law firm
Dual Professions Prohibition + (1) Remember Privilege Carrying Over + (2) Remember Ancillary Businesses
A lawyer is permitted to have dual professions, but may not solicit from one profession to the other,
(1) Privilege DOES NOT carry over from one profession to the next
(2) Ancillary businesses are okay
Legal Fees: Excessive Fees + Factors in Setting Reasonable Fees
Excessive fees are prohibited
Factors: Experience, expertise, complexity of subject matter
Legal Fees: Contingent Fees Prohibition + Exceptions + (1) Remember Writing Requirement + (2) Remember Fired Lawyers During Contingent Fee Cases
1) No contingent fees or incentive fees in CRIMINAL CASES
2) Prohibited in DOMESTIC RELATIONS cases (Exceptions - past due alimony and past due child support)
(1) : Must be in writing, unless regularly represented client
(2) : Fired lawyer may receive quantum meruit, meaning paid for services rendered, BUT CANNOT HOLD FILES UNTIL PAID
Legal Fees: Fee Splitting with Other Lawyers + Exceptions + Remember PA Referral Fees
Generally, it is prohibited to split fees with other lawyers outside of a firm, UNLESS:
1) The client is advised and does not object, or
2) The total fee of the lawyers is not illegal or excessive
Remember: PA allows referral fees
Legal Fees: Fee Splitting with Non-Lawyers + Exceptions
No fee splitting with non-lawyers
Exceptions:
(1) Payment to heirs of firm partners,
(2) Purchase of law practice,
(3) Pension, bonus, retirement plans, or
(4) Nonprofit organizations
Restrictions on the Right to Practice + Exceptions
Generally, there are no restrictions on the right to practice (non-competes are prohibited)
Exceptions: 1) part of a retirement plan, and
2) If the practice is sold
Lawyer-Client Relationship: Duty of Diligence
Lawyer should act with reasonable diligence and promptness in the representation of the client
Lawyer-Client Relationship: Duty of Communication + Remember Informed Consent Requirements
Lawyer must keep client informed and provide client with enough information to make INFORMED DECISIONS
Remember: Informed consent requires the client agree to proposed conduct after advised of MATERIAL RISKS and REASONABLE ALTERNATIVES
Duty of Confidentiality + Remember Broadness
Requires a lawyer keep confidential ALL information relating to the representation unless impliedly authorized to make the information known to others
Remember: This is BROADER than attorney-client privilege and work product doctrine
Duty of Confidentiality Exceptions
A lawyer MAY reveal such information to the extent the lawyer reasonably believes necessary to:
1) Prevent reasonably certain DEATH OR BODILY HARM
2) Prevent the CLIENT from committing a CRIMINAL ACT likely to result in SUBSTANTIAL FINANCIAL OR PROPERTY HARM to others (past crimes are secrets)
3) Prevent, mitigate or rectify criminal or fraudulent acts WHERE THE LAWYER’S SERVICES WERE USED
4) Establish a claim or defense in a DISPUTE WITH A CLIENT
5) Effectuate SALE OF LAW PRACTICE,
6) Secure LEGAL ADVICE about RPC, or
7) Comply with LAW or COURT ORDER
Duty of Confidentiality Timespan
This duty lasts FOREVER, even after client-lawyer relationship has terminated
Conflict of Interest: Types of Conflict
1) Conflict with current clients
2) Conflict between lawyer’s interest and client
3) Conflicts with Former Client
Conflict of Interest: Current Clients Rule + Remember When Concurrent Conflict Exists
A lawyer shall not represent a client if the representation involves a concurrent conflict of interest
Remember: A concurrent conflict exists if: 1) Representation of one client is DIRECTLY ADVERSE to another client, or 2) there is a significant risk that representation will be MATERIALLY LIMITED by the lawyer’s responsibilities to another client, former client, or a third person or a personal interest
Conflict of Interest: Current Client Conflict Exceptions
If a concurrent conflict exists a lawyer may represent a client if:
1) the lawyer reasonably believes that the lawyer will be able to provide COMPETENT AND DILIGENT representation to each client; and
2) The representation is NOT PROHIBITED BY LAW, and
3) Representation does not involve assertion of a claim by one client against another in the SAME LITIGATION or other proceeding, and
4) Each affected client gives WRITTEN CONSENT
Conflict of Interest: Lawyer Own Interest and Client’s Interest Conflict Prohibitions + Exceptions + Remember Gifts from Clients
1) Loan money to a client (EXCEPT to advance the cost of litigation),
2) Acquire interest in subject of litigation (EXCEPT contingent fee or attorney’s lien),
3) Buy property at a legal sale,
4) Acquire interest adverse to client,
5) Enter into business transaction w/ client (EXCEPT if fair and reasonable, and disclose nature of the deal and obtain informed consent in writing and recommend independent counsel)
6) Acquire literary or media rights to an account based on subject of representation
7) Prepare legal instrument where lawyer is beneficiary (EXCEPT if related to devisee)
8) Sexual relations with client (EXCEPT when relations existed before lawyer-client relationship)
9) Accept compensation for representing client from someone other than client (EXCEPT full disclosure and informed consent, no interference with lawyer’s independent judgment, and client confidentiality is protected)
Remember: Gifts are okay, so long as they are not solicited
Conflict of Interest: Former Clients Conflict with Current Client + Remember New Matters
A lawyer MAY NOT represent a person in the same or substantially related matter adverse to the related matter UNLESS the former client gives INFORMED CONSENT
Remember: A lawyer may not use information relating to representation to the disadvantage of the former client EXCEPT 1) permitted by Rules (consent, prevention of death or financial injury, etc.), or 2) information is generally known
Conflict of Interest: Imputed Disqualification - Requirements for Another Attorney Representing Interest Adverse to Another Lawyer’s Former Client + Exception
When a new lawyer joins a firm, the firm may NOT KNOWINGLY represent someone in the same or substantially related matter where new lawyer had represented an adverse person and learned confidential information, UNLESS:
1) the lawyer is SCREENED from the matter and does not share in the fee, and 2) the former client is NOTIFIED
Conflict of Interest: Imputed Disqualification - Lawyer Leaves Firm and Adverse Client Becomes Old Firms Client
If a lawyer leaves a firm, the firm may represent persons adverse to former lawyer’s client UNLESS it is the same or substantially similar matter and ANY remaining lawyer has information CONFIDENTIAL to former client
Conflict of Interest: Organization as a Client - Confidentiality
Lawyer represent the organization which acts through its agents; communications with those agents are privileged
Conflict of Interest: Organization as a Client - Reporting Up
If a lawyer learns an agent has acted or intends to act in a manner contrary to duty to the corporation, or illegally, the lawyer MUST refer the matter to higher authority in the organization
Conflict of Interest: Organization as a Client - Resignation
If the higher authority in the organization fails to alter action that is a clear violation of the law and will likely injure the corporation, the lawyer MAY resign
Duty of Candor Toward Tribunal Rule + Remember Correcting False Statements
A lawyer SHALL NOT knowingly make a false statement of material fact to the tribunal
Remember: Lawyer must correct a false statement of material fact made to the tribunal BY THE LAWYER
Duty of Candor Toward Tribunal: False Evidence + (1) Remember Ex Parte Reveal + (2) Remember Timeline of Duty to Disclose False Evidence
Lawyer must not offer false evidence, and must refuse to offer evidence if the lawyer REASONABLY BELIEVES is false
(1) : In an ex parte proceeding, lawyer must reveal all material facts known to the lawyer even if ADVERSE to your position
(2) : Duties continue TO THE CLOSE of proceedings, not after
Fiduciary Duty to Client Rules
1) May not COMMINGLE MONEY (e.g. trust account separate from business account),
2) Safeguard client’s property,
3) Notify, account, and pay over promptly, and
4) Only lawyer signs checks on trust accounts
Authority of Attorney and Client Respectively: Important Decisions Made by Client
Client should decide the following:
1) Sue,
2) Settle,
3) Testify,
4) Plea,
5) Jury/bench, and
6) Appeal
Authority of Attorney and Client Respectively: Decisions Made by Attorney
Attorney should decide the following:
1) Court,
2) Depositions,
3) Discovery, and
4) Continuance (except monetary or harmful to 3rd party)
Terminating the Attorney-Client Relationship: If Lawsuit has been Filed + Remember Client’s Right to Fire
Must seek court’s permission and return client’s property (files)
Remember: Client has the right to fire the attorney at ANY TIME (if for incompetence, no payment required, if not for incompetence, payment required)
Terminating the Attorney-Client Relationship: When Attorney Must Withdraw
1) Representation will result in violation of RPC
2) Lawyer’s ability to represent client is IMPAIRED
3) Lawyer is DISCHARGED, or fired by client
Terminating the Attorney-Client Relationship: When Attorney May Withdraw
Attorney MAY withdraw if:
1) Client persists in using lawyer’s services illegally or fraudulently,
2) Client has used lawyer’s services to commit crime or fraud,
3) Client’s conduct is repugnant or lawyer has fundamental disagreement,
4) Client fails to cooperate,
5) Financial burden upon lawyer, or
6) For other good cause
A Lawyer May Sell a Law Practice If:
1) Seller refrains from practicing in private practice in PA,
2) practice or area of practice is SOLD IN ENTIRETY to a single lawyer or firm, and
3) Notice of sale is provided to seller’s clients by seller
Duties to Legal System: Lawyer as an Advocate
A lawyer must provide zealous representation within the bounds of the law
Duties to Legal System: Inadvertent Disclosure
If a lawyer receives inadvertent disclosure or confidential information, he must notify the lawyer it was received, anything after that is fair game
Duties to Legal System: Supervisors Responsibility of Subordinate + Remember When Subordinate is Not Responsible + Remember Inclusion of Supervisor Responsibilities
Supervisor is responsible for subordinate IF he: 1) knew and did nothing, or 2) told subordinate to do it
Remember: Subordinate is NOT RESPONSIBLE if conduct is arguable
Remember: Supervisor responsibility includes NON LAWYERS
Fairness to Opposing Party and Counsel: Contacting Opposing Party
You may not contact opposing party represented by counsel UNLESS you get counsel’s permission
Fairness to Opposing Party and Counsel: Witnesses - Contingent Fees + Remember Speaking to Witnesses and Corporate Employees
Contingent fees are PROHIBITED for expert witnesses
Remember: No need for permission of other side to talk to or interview W, EXCEPT corporate employees whose acts could be imputed to corporation
Fairness to Opposing Party and Counsel: Advising W Not to Testify
You may advise a W not to testify, IF:
1) person is related or an agent of the party, and
2) Person’s interest would not be harmed
Speaking to Jurors: During Trial
During trial, NO LAWYER AT ALL can talk about the case to a juror, and NO LAWYER ON THE CASE can speak with a juror at all
Speaking to Jurors: After Trial + Remember Trial Publicity
It is permitted to speak with a juror after trial BUT no harassment
Remember: No statement that would “materially prejudice” the case shall be made
Fairness to Non-Clients Rule + Remember Disinterest + Remember No Means of Embarassment
Lawyer MUST be TRUTHFUL in representation of client to non-clients
Remember: Lawyer cannot appear to be disinterested to the unrepresented (i.e. not stating your purpose or job)
Remember: In representation of a client, a lawyer SHALL NOT use means that have no substantial purpose other than to embarrass, delay, or burden a third person
Fairness To Your Adversary: Ex Parte Proceedings + Exceptions
No ex parte communication with judge
Exceptions: 1) de minimis communication, and
2) emergency situations
Fairness To Your Adversary: Obstruction of Evidence
You cannot unlawfully obstruct another party’s access to evidence or falsify evidence
