Professional Responsibility Flashcards
What are the rules governing lawyers’ conduct?
GA Rules of Professional Conduct
3 expectations as a lawyer
- uphold the integrity of the profession
- report lawyers’ misconduct
- perform pro bono work for poor and underrepresented
What happens if a complaint is filed against a lawyer? Who handles it?
A panel of the disciplinary board investigates
Then, if they find probable cause of a violation, a formal complaint may be filed with the GA Supreme Court.
Special master conducts a hearing
What are the 6 types of discipline? (listed least severe to most)
- formal admonition
- investigatory panel reprimand
- review panel reprimand
- public reprimand
- suspension
- disbarment
What if you get suspended or disbarred but you continue to work?
This is a crime which is a misdemeanor - unauthorized practice of law
What if a lawyer is disciplined in one state, does the other state have to discipline too?
No. Each state will make an independent determination whether the lawyer’s conduct violated the state’s ethical rules.
Usually it will give some effect to the other state’s determination based on full faith and credit
Which state’s RULES should be used when evaluating allegations of misconduct?
The state where the lawyer primarily practices UNLESS the lawyer’s conduct had a primary effect on another state
Can a lawyer be disciplined in more than one state?
Yes. Lawyer will be disciplined in the state she is admitted and where the misconduct occurs (if different state)
How long do you have to bring a disciplinary proceeding after the wrongful act? What about for a legal malpractice claim (statute of limitations)?
4 years
What is pro hace vice?
Allows a lawyer who is a member of a bar in a state and has good standing to be admitted in another state to represent a client in FEDERAL COURT
Can a lawyer partner with a non-lawyer and provide legal services?
NO!
Must a corporation be represented by a lawyer in court or can it act pro se?
Corporation must have a lawyer.
What is someone acting pro se asks for a lawyer’s advice?
Lawyer can only provide advice on non-substantive issues - but be careful about possible malpractice
Can lawyers enter into non-competes?
No. Clients have an absolute right to the lawyer of their choice
What do you do if you want to sell your practice?
- Sell the firm in its entirety to another lawyer or law firm
- Give written notice to all clients
What if a client doesn’t take action after receiving notice of the sale of the firm?
If 90 days have passed, client consents to the sale.
Law firm names - can there be a trade name?
Not unless a lawyer’s name is also included. Firm name must be appropriate
Law firm names - what can’t be included in the name?
The word “clinic” or “Georgia” or “Atlanta” – unless you are providing free services
can’t imply connection w/ the state/city
What if gov’t requires disclosures in advertising?
This is okay as long as not unduly burdensome and reasonably related to a state interest (intermediate scrutiny)
Whose names can be part of a firm name?
Only actual partners.
Deceased or retired partners OK if they once worked there
What if a partner is part of the firm name and he gets suspended or disbarred?
Suspended- name can stay
Disbarred - name must be removed
What type of advertising is NOT allowed by lawyers?
In person solicitation (or any form of direct advertising like phone calls, skype)
How do you determine if an advertisement is misleading?
Whether a lay person would find it misleading
Can you mention your personal connections or your public service when advertising?
NO
If the lawyer and client agree to a contingency fee, what must occur?
Clearly state the terms in writing and the basis of the fee
Make clear whether client will be responsible for court costs
What must you do if you advertise contingency fee basis?
Make sure to make it clear that contingency fees are not available in all types of cases and make it clear whether client will be responsible for any costs.
How long must lawyers keep their advertising copies?
2 years
Who can you directly solicit?
Family, prior clients, pro bono, other lawyers
Can you send targeted mail to a group? Are there any exceptions?
You can send targeted mail to people likely to need your services.
Plane crash: must wait 45 days
Other disasters: must wait 30 days
What must a mailed/emailed advertisement contain?
The word “ADVERTISEMENT” on the envelope and every page of the letter (this applies to emails too)
What if you give someone unsolicited advice in person?
Do not represent them
Can lawyers pay fees to people for referrals?
No. General rule is that a lawyer cannot pay anything of value to a person for a referral.
Exception: if the lawyer pays dues as part of a lawyer referral service
Rule of imputation: what is it?
It means that you can’t get others to do what you aren’t allowed to do yourself
When can you hold yourself out as a specialist?
Only if you are a patent, trademark, or admiralty attorney OR
MUST BE CERTIFIED as a specialist by a bona fide entity
Can you state on your advertising that you do NOT practice in a particular field?
Yes. You can state what you do and do not practice in.
What if a lawyer is APPOINTED to handle a case? When does a lawyer NOT have to do it?
Lawyer has an affirmative duty to represent the client UNLESS
- the representation is likely to result in a violation of the rules
- the client insists on pursuing an objective that is repugnant or imprudent
- good cause (too busy, unreasonable financial burden)
When is a person competent?
- requisite legal knowledge and skill
- physical and mental ability
- requisite time and resources to finance the case
What if a lawyer is not competent: what is the lawyer’s options?
- learn the material but do not charge your client - get consent from the client
- tell the client to seek other counsel
- associate with a competent attorney - get consent from client
Who makes what types of decisions: attorney or client?
Attorney: strategy, procedural
Client: determines the purpose of the representation (as long as it’s legal), substantive issues (testifying, plea agreements, settling the case)
What if a client wants to use your services to commit a crime?
You must withdraw.
What if suspect your client is incompetent?
Interact with client as normally as possible.
Seek protection action IF lawyer reasonably believes client cannot adequately act in his own interest (guardian ad litem)
Communication: what must a lawyer do?
Keep client informed of the objectives and status of representation. Promptly comply with reasonably requests from the client for information.
What does client confidentiality entail?
Not disclosing ANY information about your client gained during your representation
Does the duty of confidentiality survive the client’s death?
YES
When MAY a lawyer reveal confidences?
- to prevent harm or substantial financial loss as a result of criminal behavior
- to prevent serious bodily injury or death
- to establish a legal defense if client later sues you
- with the client’s consent
What if you learn from a former client after trial is over that a client perjured himself?
Lawyer must maintain confidentiality
What if a current client insists on committing perjury?
Lawyer cannot reveal confidences but must withdraw if lawyer can’t get client to change his mind
When MUST a lawyer withdraw?
- when representation will result in a violation of the rules
- when lawyer is fired
- when a conflict arises
- lawyer can’t physically or mentally represent the client adequately
When MAY a lawyer withdraw?
- when client pursues a repugnant or imprudent objective
- when client fails to fulfill an obligation (payment, etc)
When can you NOT represent a CURRENT client against a FORMER client?
- Current client wants to sue former client regarding an issue you represented the former client on
OR - Lawyer learned confidential information during representation of former client and that information would be relevant in the current action
When will there be a irrebuttable presumption that the lawyer gained confidential info from a former client?
When the two causes of action are the same or substantially related
How do you get consent from a former/current client if there is a conflict?
- explain the conflict
- explain potential negative consequences in writing
- give client time to think about it and give client opportunity to consult with independent counsel
When can you still represent when there is a conflict?
- Can still represent the client if the lawyer reasonably believes the representation will not adversely effect the relationship with the other client
- get consent from both clients IN WRITING
When can you not waive conflicts?
- those prohibited by law
- two clients involved in substantially similar or the same litigation
- codefendants
- domestic matters - can’t represent husband and wife
What if you draft a will for a client. What can’t you do?
Do not make yourself a beneficiary of the will UNLESS the will is your family member’s will or the will gives de minimis gifts.
What duty does a lawyer owe to beneficiaries under a will?
Lawyer may owe duty not only to testator but beneficiaries (minority law)
Can you loan any money to clients?
No. You CAN advance litigation costs though.
Can another person pay the lawyer to represent the client?
Only if:
- lawyer maintains confidences of client
- client consents
- lawyer must exercise independent judgment
Can you limit your malpractice by making your client agree not to sue?
NO
When can you do business with a client?
Standard commercial transactions OR if the transaction is fair, give client time to seek independent counsel, client consents
In a wrongful death action, who does the lawyer owe a duty to?
- statutory beneficiaries even if they are not the lawyer’s clients
Representing a corporation: what do you need to make clear
That you represent the ENTITY not any individuals
What if a CEO takes action that is hurting the corporation?
Lawyer must proceed as reasonably necessary in the best interests of the corporation.
When is a conflict not imputed to other members of a firm?
When two lawyers are related in a matter where the lawyers’ clients are directly adverse
What can you do to try to avoid imputation of conflict?
Screen the lawyer who has the conflict.
*on the bar, these screens normally don’t work
Fees must be reasonable. List the factors
- time and labor
- difficulty and novelty involved
- requisite skill
- customary fee w/in the locality
- experience, ability, and reputation of the attorney
- whether representation would interfere with attorney’s other employment opportunities
- time restraint imposed by client
In what cases can you NOT charge a contingent fee?
Criminal cases
Domestic cases
When can you divide a fee with a non-lawyer. (exceptions)
salary
retirement plans
PROFIT SHARING
When can you divide a fee with a lawyer in another firm?
When the fee is divided proportionately to the work done
Client is advised and agrees
Total fee is reasonable
What 2 types of accounts should every lawyer have?
- operating account
2. trust account: for client’s money
What happens if your client disputes a fee that is charged?
- pay client undisputed amount of the award
- pay yourself the undisputed amount
- put the disputed portion in the trust account until it is resolved
What happens to the interest earned on trust accounts?
Neither lawyer nor client gets the money
- goes to the GA bar
How should you terminate a client relationship?
- provide adequate notice
- return file and work product to client
- clarify that the relationship has ended
When is a subordinate lawyer NOT responsible for a rules violation?
If she acted pursuant to a supervisor’s reasonable resolution of an ARGUABLE question of professional duty
When will a supervisor be liable for a subordinate’s violation?
- when he ratified it or ordered the conduct
2. knows of conduct when consequences could have been avoided
Partners: duty to ensure compliance with rules
- have measures in place at firm to ensure compliance
- standard is known or should have known of conduct
Person represented by counsel - what should opposing lawyer do?
Lawyer can’t talk to someone he KNOWS is represented by counsel
UNLESS he has permission from the opposing lawyer
What if a corporation is represented? How can a lawyer talk to people w/in the corporation?
- Get consent from corporation’s counsel
- Attorney does not have ACTUAL knowledge corporation is represented in the matter
- Communication is authorized by law
OR - Communications concerns matters outside the SCOPE of representation
Who must a lawyer get permission to talk to from a corporation?
- people w/ managerial responsibilities
- a person whose conduct might be imputed to organization
- a person whose statements would constitute an ADMISSION
With regard to evidence: what must a lawyer NOT do?
- can’t obstruct other side’s access to evidence
- can’t falsify evidence
- can’t request for someone not to talk to another party
What happens if lawyer engages in ex parte communication with judge or juror?
Report it
What authority must be reported to court?
directly adverse legal authority IF opposing counsel hasn’t disclosed it
What if client has committed perjury and trial is still going on?
- try remedial measures
2. if client refuses, withdraw
What type of evidence can a lawyer refuse to offer?
Must refuse to offer evidence he KNOWS is false
MAY refuse to offer evidence he reasonably believes is false
Prosecutor’s special responsibilities
must timely disclose all information that negates guilt or mitigates the offense
When can a lawyer make a knowing false statement or fail to disclose a material fact?
ONLY if disclosure would violate confidentiality
What if a person is unrepresented?
Lawyer cannot state or imply she is disinterested.
CANNOT give advice other than to secure counsel
What regulates the conduct of judges in GA?
Code of Judicial Conduct
Who regulates the conduct of judges in GA?
Judicial qualification commission (under authority of GA Supreme Court)
The judge must avoid the appearance of impropriety. This includes
- voluntarily appearing as a character witness
- cannot be a member of an illegally discriminatory organization
- engage in personal relationship that create an appearance of impropriety
- engage in misuse of judicial prestige
What can’t judges do? (can they practice law? act pro se?)
Judges CANNOT practice law.
May act pro se
May give advice to family
When can judge engage in ex parte communications?
- when expressly authorized
- when judge is a mediator in a settlement conference
- emergency matter (TRO)
- scheduling and administrative matters
What does the judge do if he engaged in ex parte communications?
- provide notice to the other side and give opportunity to respond
What happens if a judge comments on the evidence or expresses an opinion about the merits?
Reversible error
When is a judge disqualified from hearing a case?
- judge has personal knowledge of the case
- judge has prior involvement with the case
- judge has an economic interest in the case
- relative of the judge plays a substantial role
- bias or prejudice would affect partiality
Can judges lecture, speak, etc?
Yes. They may receive a fee.
Can judges fund raise for a group?
NO
When will a lawyer be disqualified in a case?
When there is a conflict of interest (lawyer possesses confidential info about former client, etc)
AND
Lawyer’s client would not be unduly prejudiced by the lawyer’s disqualification.
