Professional Responsibility Flashcards
Filing a complaint
Filed either through
1) an approved local bar association
2 or the office of disciplinary counsel
Filing is a privileged communication as a matter of public policy
True/ false: The Ohio state bar is voluntary
True
Who examines the complaint?
The Ohio Supreme Court disciplinary counsel or a local bar association certified grievance committee
Process called screening and hearing
If pursued- a non public hearing is held
8 general prohibitions in Ohio rules
- Violate or attempt to violate the Ohio rules of professional conduct
- Commit an illegal act that reflects negatively on the lawyers honesty trustworthiness or fit was as a lawyer
3 engage in conduct involving dishonesty fraud deceit or misrepresentation
4 engage in conduct prejudicial to the administration of justice
5 state or imply an ability to improperly influence a government agency or official
- Knowingly assisted judge or judicial officer in conduct that violates the Ohio rules Judges rules or other laws
- Engage in professional conduct involving discrimination prohibited by law due to race color religion age gender sexual orientation marital status or national origin or disability
- Engage in any other conduct that adversely reflects on the lawyers fitness to practice law
Three types of discipline that can be imposed on an attorney
- Public reprimand
- Definite or indefinite (at least two years) suspension
- Disbarment
Two prong duty when you know of a violation
1) duty to report what you know
2) must be available to testify (cannot report anonymously)
Lawyers licensed in more than one state
Disciplinary action in one state does not mean there will necessarily be discipline in another.
But just because bad conduct occurred outside the state does note an that Ohio cannot discipline you
Temporary multi jurisdictional practice
Lawyer has to:
Associate with an active local lawyer
Special permission: pro hac vice
Clients involved in multistate business (corporate counsel)
Anything reasonably related to the lawyer’s home state practice
Who makes the decision in legal matters?
Client: anything that impacts merits of the case (settle, take stand etc)
Attorney: anything involving strategy or tactic (client can veto if too expensive)
What is client does not have or loses the ability to make a clear decision? ( child or impaired)
Have a guardian appointed but respect and involve the client as much as possible
What does competence include?
- Physical or mental ability
- Legal knowledge
- Time
If not competent, what do you tell client to do?
- Get another lawyer
- Offer to hire co counsel
- Offer to learn the area of law
Ancillary services
Financial services, trust, real estate counseling, tax return prep etc
If services are not distinct from legal services then all of the lawyers services are subject to the rules.
Lawyers must insure that clients know of their interest and that the services are not legal services and there is no Atty client protection
Any lawyer who controls or owns an ancillary business is obligated to
Tell the customer that they may obtain legal services elsewhere before performing legal services
Cannot require any customer to agree to legal representation as a condition of engagement
Ohio imposes these requirements on every lawyer in the firm who knows of the business interest of their colleague in the ancillary business
Non compete
Cannot enter into a non compete with current partners or associates except as a condition of retirement or settling a claim or controversy
Doesn’t apply to restrictions in the sale of a law practice
Sale of a law practice
Have to sell whole practice unless conflicts of interest prevents transfer of a certain client or class of client including goodwill
1 fees charged to clients cannot increase
2 sale agreement may include a reasonable non compete
- Written notice must be given to each client delivered by certified mail or personally and specifies among other things the clients right to retain another attorney or take their file back
Client consent is presumed if the Client takes no action or does not object within 90 days. Notice can be published if client cannot be found
Can’t but a law practice just to resell it
Firm names
No trade names, can’t have names of lawyers that don’t exist on the name
If a named partner is suspended, disbarred or leaves the practice can their name remain?
If it is temporary it can remain, if permanent has to go. Ambassadorship is considered permanent
Specialization
Specialization recognized in patent trademark or admiralty law
Have to be certified as a specialist approved by Ohio supreme ct or the commission on certification of attorneys as specialist and the name of the certifying organization is clearly identified in the communication
Advertising
Communications must be true and not misleading and standards apply to any type of communication including ads office signs, business cards letterhead brochures letters and recorded telephone messages
Every ad must include name of at least 1 lawyer responsible for content
In Ohio you cannot take a case only to refer it away t/f
True
Advertising contingent fees
Clearly state the terms and bases of the fee
You must make it clear in any advertising that refers to contingent fees whether the client will be responsible for any costs
Targeted mail
You can direct mail to groups of people likely to need legal services
The words advertising material or advertisement only must appear on the outside envelope and at the beginning and end of any recorded or electronic communication waived when dealing with another lawyer, friend relative
Solicitation of clients
Cannot seek professional employment by means of direct personal contact when a significant motive is lawyers pecuniary gain
1. No solicitation may occur when a prospective client makes it known that they do not wish to be solicited or the solicitation involves coercion or harassment
Exceptions to solicitation
- Family member: close personal relationships/ lawyers
- Prior client
- Federal law prohibits communications with victims of an airplane accident or their families until 45 days after the incident
Prior to making a solicitation a lawyer must:
Verified by consulting the court docket that service has been made on a defendant in a civil action
Communication Soliciting professional employment for a perspective client or the relative within 30 days of an event
Must be accompanied by understanding your rights information
If you give in person unsolicited advice
Cannot accept employment resulting from such advice
An expectation of protection in the relationship will be seen as established if:
- Client manifest an intent that there is a representation and lawyer agrees
- Client manifest intent and lawyer fails to make it clear that there is not representation and lawyer knows or should know that the perspective client is reasonably relying on representation
Exceptions to confidentiality
- May reveal as required by law court order or ethics rules
- Disclosure with consent or implied authority in order to carry out the representation
- May prevent death or substantial bodily harm or injury
- To prevent or rectify substantial financial losses including the disclosure necessary to mitigate the loss Which has resulted from the clients commission of an illegal or fraudulent act in the furtherance of which the client has used the lawyers services
- To collect a legal fee or protect a lawyer facing criminal or civil charges based upon conduct in which the client was involved or to respond to a disciplinary proceeding
- To get confidential legal advice about the lawyers personal duty to comply with legal ethics rules
Can you disclose a past crime?
No past crimes cannot be disclosed
Safeguard client property
Has to be in a bonded warehouse
Accept a conflict when?
All clients have given their informed consent and a reasonable prudent lawyer would have taken the case
Client agrees to proposed course of conduct after lawyer sufficiently explains material risks and reasonable alternatives
Sexual relationships
If pre-existing are not subject to discipline but if not pre-existing are subject to discipline
consent or harm is irrelevant
no rule of imputation but a screening is required
When can a lawyer be a witness for a client?
1 cannot be. Necessary witness
2 exceptions: uncontested matter/ ministerial, legal fees
Criminal cases: can lawyer Acquire an interest in the subject matter of the litigation?
Not until all appeals are over and the case is final
Drafting a will: will gives the Lawyer, lawyer’s partner, associate ,paralegal, of counsel, law clerk or other employee of the firm, or a person related to the lawyer as parent child sibling or spouse?
Lawyer must not prepare the end Shermans unless the client is related to the donee
Lending money to clients
You cannot give any loans to a client unless it is for case expenses
Payment of fees by third parties
It is possible but the attorney-client relationship is with the clients and not the third-party
Limiting malpractice exposure
You cannot get your client to agree not to sue you for malpractice
Except: When client knows you are incompetent (Not your area of law ) but insists That you represent them. That agreement has to go through another attorney
You may represent a current client in an action against a former client except:
- When your current client wants to sue your former client involving a matter or transaction in which you represented the former client OR
- When during representation of the former client you learned confidential information that is now relevant to the action by the client. Unless: The information is no longer confidential or if the former client consents
Lawyer cannot represent adverse interests of client or perspective client unless:
- Lawyer fully explained risks and alternatives: informed consent
- Client agrees in writing. Can be electronic
Representing a corporation or partnership
The lawyer represents the entity and not any of the individuals or directors involved
A lawyer can DataDirect her of the company but no attorney-client privilege is present in board meetings
There is a duty to report illegal activity up the chain of command to the CEO.
If there’s not an appropriate response you must report to the Board of Directors and you may report outside authority (But may not reveal information protected as confidential)
Screening out other lawyers
Give written notification to the other side and the lawyer is kept out of the case without fees and no access to the files
If the document is inadvertently sent
You must promptly notify the sender that you have it
How do you determine whether a fee is reasonable?
You can consider basically everything Including time and labor novelty and difficulty of the question requisite skill customary fees within the locality experience ability reputation etc.
When can you charge a contingent fee?
- You cannot charge a contingent fee in a criminal case
- You must not charge a contingent fee in a Domestic Relations Case. You can charge a contingent fee and alimony or child support case that is really a breach of contract
Dividing legal fees with nonlawyer
Generally no but two exceptions:
- Salaries, retirement plans,bonuses, profit sharing
- Survivors of deceased partners to pay fees earned by the deceased partner
Referral fee
Can divide fees if:
- Total fee is reasonable
- The client is advised
- The client does not object
Retainers
- Advance on fees (Has to be in a separate account you do not get the fee until you earn it)
- Availability retainer (You earn it immediately)
Rules of trust accounts
Keep records of its use and do not commingle with Your operating account
- Must be within institution authorized to do business in Ohio.
- Must be maintained in Ohio assuming that is where the attorneys office is
- Must be designated client trust account or IOLTA
- Accounts must be interest-bearing and the interest is swept out and sent to Ohio legal assistance foundation
- Ancillary business? Shall Maintain client funds that cannot earn any net income for the clients in an interest-bearing trust account and must notify the Ohio legal assistance foundation of the existence of the account
Record-keeping requirements
- Must be kept for seven years after termination
- Must keep a copy of the fee agreement, record for each client on whose behalf the funds are held, each bank account, and all statements, deposit slips, and canceled checks for each account
- Perform a monthly reconciliation
What to do with Contested fees?
The uncontested fee is going to operating account and the contested fees stay in the client trust account until the problem is resolved
Records in the dissolution of a law firm
Former partners must promptly account for all client funds and arrange for one of them to maintain all records
Client funds in the sale or transfer of the law firm
A lawyer or law firm or estate of the deceased lawyer who sells the practice must account for and transfer all funds held to the purchaser at the time the client funds are transferred
Subordinate lawyers
Ohio does not mandate but has an aspiration that a lawyer of managerial authority will establish policies to ensure that all lawyers conform with rules
- Subordinate lawyers must abide by the rules, If they violate the rules the defense is that they acted in accordance with the supervisors reasonable resolution of a question of professional duty
Ex parte communications with the jury or judge
Avoided with the jury
Judge in de minimis and emergency situations
Speaking directly with an adverse party
You cannot do this you have to go to the lawyer unless the other party is pro se. The parties themselves can speak with each other
Duty to disclose adverse authority
A lawyer has an affirmative duty to disclose Contrary or adverse authority from a controlling jurisdiction
When information learned as part of the attorney-client privilege comes into conflict with duty to the tribunal
Try to resolve conflict but you may have to withdraw
When must an attorney withdraw from representation?
- When representation will result in a violation of the rules or other law
- When physical or mental capacity is materially impaired
- Client fires lawyer
When may an attorney withdraw from representation?
- Client has used lawyer services to perpetrate a crime or fraud
- Clients objective is repugnant to lawyer
- Client fails to substantially fulfill an obligation to lawyer
- Representation results and in an unreasonable financial burden
- Other good cause
Note: Lawyer must continue representation when ordered by the court regardless of good cause. The judges decision is generally based on the particular stage of matter when the motion is made
Trial publicity
Lawyer connected with case must not make a public statement outside the court room at the lawyer reasonably should know what have a substantial likelihood of materially prejudicing the case
- Lawyer can speak publicly what a reasonable lawyer would believe is required to protect client from substantial undue prejudicial effect of recent publicity not initiated by the lawyer or client
Special duties of the prosecutor
- Must proceed only on probable cause
- Shall not subpoena a lawyer in a criminal proceeding to present evidence about a client with a reasonable belief that the information is not protected by privilege the evidence is essential to the ongoing investigation and there is no feasible alternative to obtain the information
- Must disclose evidence tending to negate guilt. The Brady rule
Accepting appointments
Lawyers must not seek to avoid an appointment by the court except for good cause such as:
- Violation of the rules
- Presents an unreasonable financial burden
CLE requirements
24 (60 minute) hours of continuing legal education for each two-year reporting period.
Two hours of professional responsibility
Two hours of professional conduct and 30 minutes of substance abuse
Misconduct of lawyers
A lawyer having knowledge of any action in action or conduct that is considered misconduct under the rules must inform the appropriate professional authority
Exception: Disclosure not required of information protected as confidential or gained through participation in approved lawyers assistance program that deals with substance abuse by which aid is rendered to an impaired lawyer
Pro bono work
A lawyer should render public interest legal service
This responsibility is discharged by:
1. Providing work free or fee reduced
2. Giving money to organizations that provide this work
3. Participating in activities that improve the profession
Who does judicial conduct govern?
Judges magistrates and referees.
Those performing judicial functions including court commissioners and special masters
Part time judges
Several portions of the code do not apply but:
- Retired judges subject to recall can serve as an arbitrator or mediator but not while serving as a judge
- Exempt from some but not all provisions restricting outside activities and political activities
Appearance of impropriety
When judges conduct creates a reasonable perception that the code has been violated or that otherwise reflects adversely on the judges honesty impartiality temperament or fitness as a judge
Abuse judicial prestige
- Cannot use judicial letterhead for personal business
- Can write a letter of recommendation based on personal knowledge on official letterhead if: Reference is personal and there is no likelihood that the letter could reasonably be perceived as an attempt to exert pressure
Competence of judges
- Requires legal knowledge, skill, thoroughness and preparation necessary to perform duties which includes:
1 Promptly dispose of court business
2 Devote adequate time to duties
3 Be punctual in attending court
Ex parte communication by judges
Not permitted except:
- Expressly authorized by law
- Mediation or settlement with party consent
- Emergency or de minimis
- Inadvertent receipt of on authorized Ex parte communication: Judge must notify parties and give opportunity to respond
Administrative appointments
Must be made him partially and based on merit not on the basis of nepotism or favoritism
Disqualification of a judge
Parties can remit for all of these
- Must disqualify when impartiality might reasonably and objectively be questioned
- Should disclose any information that the parties or lawyers might consider relevant even if the judge does not believe there is a reasonable basis for disqualification
- In an emergency necessity overrides the rule of disqualification
- Must step down with personal knowledge or bias of possible disputed facts
- Must step down as prior involvement has material witness lawyer associate of key lawyer and judge and other court government employee Concerning the proceeding
- Cannot have economic interest in the matter or one of the parties before her ( Except de minimis: No reasonable question regarding impartiality). Except: Interest held by judges spouse partner parents or child or any family member living in the judges home OR Mutual funds unless the proceedings could impact the value of the deposit
- If former partner or close relative is a party attorney material witness or person with more than a de minimis interest that could be substantially affected by the proceedings before the judge
- Judge knows a party attorney or firm has contributed more than the jurisdictions specified amount to his or her campaign election committee
- When a judge makes a public statement other than court proceedings that commits or appears to commit the judge to a particular position or a result
Parties cannot remit a judge for
Personal bias toward a party or one of the lawyers
