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MA topics & distinctions > Professional Responsibility/93A > Flashcards

Professional Responsibility/93A Flashcards

1
Q

Complaints about attorney conduct are investigated by

A

Board of Overseers (appointed by SJC) – they appoint a Chief Bar Counsel to conduct initial investigation

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2
Q

Limitations on admission to profession must be

A

rationally related to the practice of law

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3
Q

You have a duty to report violations of other lawyers if those violations

A

raise a substantial question as to the lawyer’s character and fitness as a lawyer

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4
Q

If you report another lawyer for misconduct, you must also

A

be available to testify (no anonymity)

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5
Q

Temporary practice in a state where you aren’t licensed is OK in one of these four ways

A
  1. association with a local lawyer
  2. pro hac vice admission (requires case-by-case fee)
  3. mediation or arbitration that arises out of your home-state practice, or
  4. anything else reasonably related to home-state practice (e.g. negotiating a real estate deal, though not closing it)
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6
Q

What do you do if you have a client with an impairment?

A

Try to maintain normal attorney/client relationship. If client is at risk of serious harm (physical, financial, etc.) you can consult with client’s family or adult protective agencies. Can seek appointment of a guardian if reasonably necessary.

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7
Q

Can lawyers sign non-compete agreements?

A

NO, unless as a condition of retirement or settlement.

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8
Q

Trade names of practices are

A

OK if not misleading.

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9
Q

Can you hold yourself out as a specialist?

A

Yes, if not deceptive, but don’t say you’re certified unless you really have been

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10
Q

Making comparisons in your advertisements is

A

OK but only if they’re factually verifiable.

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11
Q

Two special rules for contingency fees are

A
  1. they must be laid out in writing
  2. must state the terms and basis for fee, including how expenses are calculated if the representation ends before the case is over
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12
Q

Five requirements for sending targeted mail are

A
  1. Can do it if truthful & nondeceptive
  2. Must have disclaimer that says person can report anything inaccurate or misleading to MA Bar Association
  3. Must say it’s an advertisement
  4. Can’t send y certified mail in MA
  5. Can’t contact anyone who you should know lacks capacity or anyone who doesn’t want to be contacted.
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13
Q

Three requirements for lawyer ads are

A
  1. Must include name of at least one responsible lawyer
  2. Must have client’s OK to use her name in an ad
  3. Must keep ads for at least 2 years with record of when and where they were used
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14
Q

Solicitation in person, by phone, or by “instant electronic communication” is

A

NOT OK if the work is fee-paying. Solicitation for pro bono work is OK.

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15
Q

Who are you allowed to solicit in person, by phone, or by instant electronic communication?

A

Existing/prior clients, other bar members, family (grandparents or their descendants), organizations in commerce, prospective pro bono clients

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16
Q

Do you have to give notice when selling your practice?

A

Yes, to clients in writing.

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17
Q

Where should you keep client property?

A

In a properly bonded warehouse.

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18
Q

Who counts as a prospective client?

A

Anyone who shows intent to have representation and lawyer agrees, or lawyer doesn’t make clear there’s no representation and should know prospective client is relying.

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19
Q

What to do if your client plans to give perjured testimony

A
  1. attempt to persuade her not to
  2. if that doesn’t work, seek to withdraw, pending court approval
  3. if you can’t withdraw, you can’t prevent client from testifying, but you also can’t elicit perjury. Solution: let client make statement to jury without asking questions.
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20
Q

A lawyer can accept a case in which she has a conflict of interest ONLY if

A

all clients have given informed consent AND a reasonable lawyer would have taken the case.

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21
Q

Can you advance costs of litigation to clients?

A

YES, with repayment contingent on outcome of case. But otherwise, no lending to clients.

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22
Q

Can you write a will for a client who’s leaving you stuff?

A

NO, unless it’s for a family member or the stuff they’re leaving you is de minimis.

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23
Q

Does client have to be indigent for you to advance costs of litigation for them?

A

NO, but you can only COVER the costs (i.e. permanently) of indigent clients.

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24
Q

Prospective agreements to limit your malpractice exposure are

A

generally not OK unless permitted by law AND client had independent representation in making the agreement.

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25
Q

Settling a claim for malpractice liability with an unrepresented client or former client is

A

not OK unless you’ve advised that person in writing that independent representation is a good idea.

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26
Q

Lawyers who are related to each other can represent directly adverse parties only if

A

they get clients’ consent after consultation.

27
Q

A lawyer may not represent a client in a matter in which he formerly represented another client (or a substantially similar matter), if the clients’ interests are adverse, unless

A

the former client consents after consultation.

28
Q

If a firm you were formerly part of represented a client, you can’t now represent someone adverse to that client if

A

you had confidential information about the client – unless the client consents after consultation.

29
Q

Cannot simultaneously represent two clients adverse to each other unless you

A

reasonably believe representation of the one won’t affect the relationship with the other, and both parties consent after consultation.

30
Q

Important steps to screen a lawyer from a matter are

A

Tell the other side you’re screening a lawyer; forbid that lawyer from accessing files or info about the case; don’t share fees from the case with that lawyer.

31
Q

What to do if you’re a lawyer for an organization and you learn of illegal activity in the organization?

A

You must report that activity up the chain to the CEO, then to the board if the the CEO doesn’t respond. Can report to outside authority if board doesn’t act, though you don’t have to.

32
Q

In MA, fee agreements must be

A

in writing, unless it’s a single consultation or the lawyer reasonably believes fee will be under $500

33
Q

No contingency fees can be charged in

A

criminal or quasi-criminal cases, domestic relations cases (e.g. alimony, child support).

34
Q

Can you split fees with (1) outside lawyers, or (2) nonlawyers?

A

(1) Yes, as long as you disclose that you’re fee splitting to client and the overall fee is reasonable.
(2) NO, unless via salaries, bonuses, retirement plans or profit sharing of nonlawyer employees of firm (or for spouses of deceased partners).

35
Q

The two types of retainer are

A
  1. advance on fees – these are earned only on performance
  2. availability retainer – earned immediately, but credited to client account only if lawyer ends up doing the work (if not, lawyer gets to just keep it)
36
Q

Lawyer’s money should go into client trust account ONLY

A

to pay bank fees.

37
Q

If bar counsel proves lawyer got cash from client, didn’t deposit it, and can’t account for it, there is

A

a rebuttable presumption that the lawyer misused the funds

38
Q

What to do with disputed fees?

A

Leave disputed portion in client’s account until the dispute is resolved.

39
Q

If it becomes necessary for a lawyer to be a witness in a case, she should

A

refuse to take the case, or, if she’s started already, withdraw.

There are a few exceptions where lawyers can testify as witnesses even when they’re advocates: (1) uncontested issues; (2) testimony concerns only the nature/value of legal services rendered to client; (3) withdrawal would cause substantial hardship to client.

40
Q

Can a lawyer communicate directly with an adverse party who’s represented by counsel?

A

NO, but the parties can talk among themselves.

41
Q

Can a lawyer communicate directly with witnesses?

A

YES

42
Q

A supervising attorney is responsible for misconduct of a junior attorney if she

A

ordered or ratified the rule-violating conduct.

43
Q

If you’re a junior attorney who was ordered to commit a rule violation, you can defend by arguing

A

that what you did was at least arguably OK.

44
Q

A lawyer has a duty to disclose to the tribunal any authority that is

A

adverse to her and from the controlling jurisdiction

45
Q

A lawyer may not allude in court to things she reasonably knows

A

cannot be supported by the evidence.

46
Q

Can a lawyer ask nonparties not to provide information to the other party?

A

Generally no, but you can ask relatives, employees, or other agents of your client not to VOLUNTARILY give info to the opposing party, as long as refraining wouldn’t harm the relative/agent’s interest.

47
Q

When MUST a lawyer withdraw from representation?

A
  1. Continued representation would lead her to violate the rules or the law
  2. She becomes impaired
  3. She’s fired by client.
48
Q

When MAY a lawyer withdraw from representation?

A

Any reason at all (e.g. client’s not cooperating, her course of action is repugnant to you), as long as you can withdraw in a way that doesn’t prejudice your client.

49
Q

A lawyer can speak outside the courtroom about the case if _____________ or if _____________ but not if ___________.

A

she’s stating dry facts about the case; a reasonable lawyer would believe speaking is necessary to protect client from bad publicity initiated by someone else

she reasonably should know the statements would have a chance of materially prejudicing the case.

50
Q

A prosecutor may not make public statements that would

A

heighten public condemnation of the accused.

51
Q

A lawyer shouldn’t avoid an appointment to represent someone, unless

A
  1. the representation would lead her to violate the rules
  2. the representation would create an unreasonable financial burden on the lawyer, or
  3. the case is so repugnant that the lawyer doesn’t think she can do a good job.
52
Q

Chapter 93A applies only to transactions that occur

A

primarily and substantially in MA.

53
Q

True/false: Both parties in a 93A action must be businesses.

A

FALSE. At least one party must be a business, but they don’t both have to be.

54
Q

Section 11 of 93A applies to suits ___________ and requires, as a prerequisite to bringing an action, that ____________________.

A

between businesses; the plaintiff exhausted all administrative remedies before filing suit.

55
Q

Section 9 of 93A applies to suits _____________ and requires, as a prerequisite to bringing an action, that ___________________.

A

where an individual is suing a business; the plaintiff sent a 30 day demand letter to the defendant requesting a settlement offer to be made.

56
Q

In a 93A case involving two sophisticated businesses transacting at arm’s length, the plaintiff must show that the defendant used unfair or deceptive practices AND

A

“a level of rascality that would raise an eyebrow of someone inured to the rough and tumble world of commerce.”

57
Q

A 93A demand letter must include

A
  1. name of claimant
  2. reference to 93A or consumer protection act
  3. reasonable description of unfair act and injuries
  4. relief requested
  5. expectation of settlement offer within 30 days
  6. statement that multiple damages and attorney’s fees will be pursued if relief is denied.
58
Q

Relief under chapter 93A is available in what types of actions?

A

Tort or contract.

59
Q

The statute of limitations for 93A claims is ____, but if claim is based on misrepresentation or breach of warranty, it is ________.

A

4 years; 3 years

60
Q

Financial loss must be proven under ________ but not under _________.

A

section 11; section 9.

61
Q

If the violation is knowing or willful, or if refusal to grant relief was in bad faith, court may award

A

double or treble damages.

62
Q

If D makes a reasonable settlement offer, plaintiff’s recovery is

A

limited to the relief tendered (no double or treble damages) – true in both Section 9 and Section 11 claims.

63
Q

Party can recover attorney’s fees under 93A unless

A

the defendant’s offer of settlement was timely and reasonable.

64
Q

To communicate with members of an organization that’s an opposing party at trial, a lawyer must

A

get consent from the organization’s counsel before communicating with a person who has managerial responsibility, is alleged to have committed the acts in issue, or has authority to make decisions for the organization regarding the litigation.

MA topics & distinctions (9 decks)

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