Professional Responsibility

Question 1

What must a lawyer do if she wants to claim she is a specialist and advertise her services as a specialist?

Answer 1

1. be certified by a private organization approved by the ABA
2. certifying organization must be identified in the ad
3. add must state that org. is not affiliated with the govt. or NY and does not indicate greater confidence than a non-certified lawyer

Question 2

What is the general test for whether an Ad is fradulent, deceptive, or misleading?

Answer 2

If a layperson would find the ad misleading or deceptive than it likely is and is a violation

Question 3

What are 3 examples of statements that are prohibited in Ads?

Answer 3

1. Comparisons between lawyers
2. clout or connections i.e. “I know the President”
3. guarantee results

Question 4

What are the 3 main exceptions to the rule that lawyers cannot solicit clients in-person or by telephone?

Answer 4

Potential client is:

1. family member/close friend
2. a prior client
3. a pro bono client

Question 5

What is the general rule regarding how a Lawyer should manage a client’s funds?

Answer 5

Client funds/accounts should never be commingled with lawyers funds/accounts

Question 6

How are funds handled when a client disputes whether a lawyer should receive funds?

Answer 6

The disputed funds remain in the clients trust account until the dispute is resolved?
**otherwise lawyer can withdraw funds from client trust account when they become due

Question 7

What is an availability retainer?

Answer 7

Reserves the lawyers availability for that client and gives up lawyers ability to take inconsistent representation – such funds can go directly into lawyers account

Question 8

What can a lawyer that is running for judicial office (judge) not do?

Answer 8

Generally must refrain from involvement with a political party – must remain seemingly unbiased.

Question 9

What does a lawyers duty of candor entail?

Answer 9

Must reveal law that is directly against his client’s position

Question 10

When may a lawyer have direct communication with an adverse party against the general rule?

Answer 10

1. when party is represented by a lawyer
2. when that lawyer consents
3. authorized by law
4. communication does not concern the representation

Question 11

When is it proper for a lawyer to have communication with the jury?

Answer 11

in NY after a trial, otherwise communication during trial is generally improper

Question 12

During he course of litigation, what does a lawyer have a duty to disclose?

Answer 12

1. evidence tending to negate guilt or which would mitigate the degree of the offense / reduce punishment
2. must disclose adverse authority

Question 13

In a civil case, what must a lawyer do if there client wants to (or is about to) commit perjury?

Answer 13

1. ask client to retract statement

2. if client refuses, inform opposing counsel or court

Question 14

In a criminal case, what must a lawyer do if there client wants to (or is about to) commit perjury?

Answer 14

1. advise client to refrain from testifying falsely
2. seek withdrawal from representation if in pre-trial phase
3. IF client already made statement, must reveal the perjury

Question 15

What is the general rule regarding lawyers making public statements about an ongoing trial?

Answer 15

Lawyer should not make statements that a reasonable person would expect to be disseminated if that lawyer knows or should know the statement will be prejudicial to the proceedings

Question 16

What 3 showings can generally overcome a lawyers incompetence?

Answer 16

1. a lawyers association with competent lawyer
2. lawyer expects to become competent via learning/study
3. emergency situations – it was in client’s best interest for lawyer to rep. him due to emergency

Question 17

What must be communicated to a client?

Answer 17

1. all settlement offers regardless of how ridiculous
2. information about a cases development
3. responses to clients request for information

Question 18

What is the standard for Malpractice?

Answer 18

lawyers negligence is the proximate cause of client’s injuries or damages

Question 19

What is the standard of skill that a lawyer is held to?

Answer 19

same degree of skill, prudence, and diligence possessed by a general practitioner.
**specialists are held to the general degree of skill of other specialists

Question 20

When can a lawyer not represent a current client against a former client?

Answer 20

1. when lawyer know confidential info about former client that is related to the current action
2. current action would involve a matter which lawyer represented the former client on

Question 21

What factors ensure fairness in business transaction between an attorney and her client?

Answer 21

1. client is advised to get independent counsel
2. client consents in writing
3. terms fully disclosed in writing in a manner that is reasonably understandable to client

Question 22

Can a lawyer represent multiple clients?

Answer 22

Yes, but only so long as their interests are not adverse – if an actual conflict of interest exists lawyer cannot represent both

Question 23

Can a lawyer represent multiple clients where a potential conflict exists?

Answer 23

Yes but only if,

1. all clients consent after full disclosure
2. lawyer reasonably believes he can competently represent the interests of each (objectively)
3. lawyer withdraws if an actual conflict arises

Question 24

What is the general rule regarding a lawyer’s independent professional judgment?

Answer 24

IF lawyers independent prof. judgment may be influenced by his personal interest lawyer should withdraw or reject case unless lawyer believes (objectively) that client will not be adversely affected and the client consents after full disclose of the relevant implications

Question 25

What types of cases may a former judge/govt. employee now in private practice not accept?

Answer 25

cases that involve a matter they worked on personally and substantially

Question 26

When can a lawyer serve as an arbitrator/mediator in matters that involve present or former clients?

Answer 26

after full disclosure to all parties

Question 27

Under what 3 conditions can a lawyer accept payment from a 3rd party (not client)?

Answer 27

1. lawyer takes instructions from client
2. client consents to payment arrangement
3. lawyer maintains confidences of client – does not reveal to 3rd party

Question 28

When representing a corp., what must a lawyer do to meet her duty to report security violations?

Answer 28

1. report violations up the chain of command to CEO
2. if no action taken, report to board of directors
3. may reveal to outside parties to the extent necessary to protect the client

Question 29

What are the exceptions to the rule that confidential communications between lawyer and client are privileged?

Answer 29

Lawyer may disclose confidential info to the extent reasonably necessary when/to:

1. client waives privilege via informed or implied consent
2. to prevent reasonably certain death or serious harm
3. to prevent client from committing a crime
4. to secure legal advice about complying with the rules of disclosures
5. in defense of a malpractice claim

Question 30

When will attorney work-product be discoverable against the general rule?

Answer 30

ONLY when denying discovery would be unfairly prejudicial

Question 31

During a representation, what types of decisions are made by a client? Lawyer?

Answer 31

Client: makes all decisions that affect the merits of the case ex; whether to testify, plead guilty, file and appeal, settle

Lawyer: makes procedural decisions ex: kind of discovery, venue

Question 32

What must a lawyer provide a client with in a domestic relations matter?

Answer 32

statement of clients rights and responsibilities (must be provided at he initial conference)

Question 33

Generally what information do letters of engagement/retainer agreements contain?

Answer 33

1. scope of representation
2. explanation of fees and billing procedure
3. notice of clients right to arbitrate a fee dispute (retainers)

Question 34

When MUST a lawyer withdraw from a representation?

Answer 34

1. when client’s purpose is frivolous/harassment
2. when lawyer is being used to perpetrate crimes/fraud
3. when lawyer is fired by client
4. when lawyer becomes physically or mentally impaired

Question 35

When MAY a lawyer withdraw from representation?

Answer 35

1. client insists on not following lawyers legal advise
2. client deliberately disregards a fee agreement
3. lawyer unable to work with co-counsel
   * *in any of above, lawyer can only withdraw if it can be accomplished without material adverse effect on interests of client

Question 36

In what two situations are contingency fees prohibited?

Answer 36

1. criminal/quasi-criminal cases

2. domestic relations cases

Question 37

What are the exceptions to the rule that a lawyer cannot divide a legal fee with non-lawyer?

Answer 37

payments must be:

1. in form of salaries, bonuses, retirement plans (staff)
2. payments made to spouses of deceased partners based on work partner completed

Question 38

When will a lawyer be responsible for conduct violations of another lawyer?

Answer 38

1. when the lawyer orders or ratifies the act

2. when the lawyer should have know about the violation and failed to mitigate

Question 39

Under what conditions can a lawyer split a legal fee with a lawyer that is not associated with their firm?

Answer 39

1. fee division is proportionate
2. both lawyers assume joint responsibility for representation
3. client agrees in writing after full disclosure (including fee division)
4. fee is not excessive

Question 40

What can overcome the general presumption that a person receiving non-legal services is the subject of a lawyer-client relationship?

Answer 40

A writing in which the lawyer advises the person that the services are non-legal and that the protections of a lawyer-client relationship does not exist