professional responsibility review

Question 1

MR 8.1: an applicant for admission to the bar SHALL NOT do what?

Answer 1

(a) knowingly make a false statement or material fact; or
(b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority.

Question 2

What are the two exceptions to MR 8.1 (what an applicant for admission to the bar shall not do)?

Answer 2

1) 5th amendment (must indicate you are invoking the 5th amendment)
2) client confidentiality

Question 3

MR 8.3: what shall a lawyer when they know that another lawyer has committed a violation of the RPCs that raises a substantial question as to the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects?

Answer 3

The lawyer shall inform the appropriate professional authority.

Question 4

Is the reporting duty under MR 8.3 mandatory?

Answer 4

yes, however, under the Washington rules it is discretionary.

Question 5

Can a lawyer violate or attempt to violate the RPCS or knowingly assist or induce another to do so, or do so through the acts of others?

Answer 5

No, that is professional misconduct under MR 8.4(a).

Question 6

Is it professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer’s dishonestly, trustworthiness or fitness as a lawyer in other respects?

Answer 6

Yes, under 8.4(b).

Question 7

Is it professional misconduct for a lawyer to engage in conduct involving dishonestly, fraud, deceit or misrepresentation?

Answer 7

Yes, under 8.4(c) a.k.a. the kitchen sink rule of professional misconduct.

Question 8

Is discrimination misconduct?

Answer 8

yes, under 8.4(g) it is professional misconduct for a lawyer to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. HOWEVER, this rule does not limit the ability of the lawyer to accept, decline, or withdraw from representation in accordance with Rule 1.16.

Question 9

What does discrimination and harassment by lawyers in violation of 8.4(g) include?

Answer 9

• Harmful verbal or physical conduct that manifests bias or prejudice towards others.
• sexual harassment and derogatory or demeaning verbal or physical conduct.

Question 10

What are a supervising lawyers’ responsibilities?

Answer 10

MR 5.1 says it is a supervising attorney’s responsibility to make reasonable efforts to ensure that the other lawyers below them conform to the RPCs. A supervising attorney is also responsible if they order or ratify the conduct involved or know of conduct but fail to take remedial action.

Question 11

What are the responsibilities of a subordinate lawyer?

Answer 11

MR 5.2 says that a lawyer is bound by the RPCs notwithstanding that the lawyer acted at the direction of another person. However, a subordinate lawyer does not violate the RPCs if that lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty.

Question 12

What about non-lawyer assistants?

Answer 12

MR 5.3 says that there must be reasonable efforts to ensure firm’s conformance with the rules. You can’t order someone else to do the prohibited act to keep your hands clean. & you must take remedial action if you know of a subordinate’s error.

Question 13

Elements of a legal malpractice claim?

Answer 13

• duty to the plaintiff (usually an attorney-client relationship)
• failure to exercise competence and diligence normally exercised by attorneys in similar circumstances (i.e. breached duty of care)
• breach caused harm

Question 14

How may one trigger a legal malpractice claim?

Answer 14

1) ignoring conflicts of interest
2) sue your former client for a fee
3) accept any matter that comes along
4) do business deals with your client
5) practice outside of your field of expertise
6) failure to communicate with your client
7) settle a matter without written authorization from your client

Question 15

is a written fee agreement required when forming a lawyer-client relationship?

Answer 15

No, it is encouraged under the rules but not required.

Question 16

Under MR 1.1 a lawyer shall provide competent representation to a client… what does competent representation require?

Answer 16

competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Question 17

Can lawyers accept work in an area of law in which they have no experience?

Answer 17

1.1 comment 2 says they can IF they compensate through study or affiliation with a more experienced lawyer and IF they don’t over bill.

Question 18

When

Question 19

does an attorney client relationship arise?

Answer 19

Restatement section 14 says that an A/C relationship arises when:
1) a person manifests to a lawyer the person’s intent that the lawyer provide legal services and either:
a) the lawyer manifests to the person consent to do so; or
b) the lawyer fails to manifest a lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services; or
2) a tribunal with power to do so appoints the lawyer to provide the services.

Question 20

When is terminating/declining representation mandatory?

Answer 20

MR 1.16(a) says it is mandatory if:
(i) representation would violate the MRs or other law
(ii) the lawyer is impaired
(iii) the lawyer is discharged

Question 21

When MAY a lawyer withdraw from representing a client?

Answer 21

MR 1.16(b) covers permissive withdrawal and says that:
(1) it is always okay if no material adverse effect on the client.
(2) regardless of effect if:
(a) client persists in crime or fraud involving lawyer
(b) client has sued lawyer to commit crime or fraud
(c) client insists on repugnant or disagreeable action
(d) client fails to meet obligations after warning
(e) representation = unreasonable financial burden or difficulty
(f) other good cause.

Question 22

What fiduciary duties are owed to clients?

Answer 22

Restatement 16(d) says a lawyer has a duty to…
- comply with obligations concerning the client’s confidences & property
- avoid impermissible conflicting interests
- deal honestly with the client
- not employ advantages arises from a/c relationship in a manner adverse to client.

Question 23

What items of authority are reserved for the client?

Answer 23

MR 1.2 covers the scope of representation/allocation of authority and says that the items reserved for the client are:
- objectives of representation
- whether to settle
- IN CRIMINAL CASES, whether to
a) plead guilty
b) waive jury trial
c) testify
- right to be consulted as to means.

Question 24

What duties does a lawyer have to a client with diminished capacity?

Answer 24

MR 1.14 says that:
(a) when a client has diminished capacity to make considered decisions, “the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.
(b) the lawyer may “take reasonably necessary protective action” including appointment of a guardian ad litem, or conservator or guardian.

Question 25

What is the basic confidentiality rule?

Answer 25

MR 1.6 states that a lawyer shall not reveal information relating to the representation of a client UNLESS
- the client gives informed consent
- the disclosure is impliedly authorized in order to carry out the representation, or
- the disclosure is permitted by paragraph (b)…

Question 26

May a lawyer reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to prevent reasonably certain death or substantial bodily harm?

Answer 26

yes under 1.6(b).

Question 27

May a lawyer reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to prevent the client from committing a crime or fraud reasonably certain to cause injury to substantial financial or property interests (where the client has used or is using the lawyer’s services)?

Answer 27

Yes under 1.6(b)

Question 28

May a lawyer reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to prevent, mitigate, or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services?

Answer 28

yes under 1.6(b)

Question 29

May a lawyer reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to secure legal advice about professional responsibility rule compliance?

Answer 29

Yes under 1.6(b).

Question 30

May a lawyer reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to establish a lawyer’s claim or defense against a criminal charge or civil claim?

Answer 30

yes under 1.6(b).

Question 31

May a lawyer reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary comply with other law or a court order?

Answer 31

Yes, however, while you may refuse to disclose you may still risk contempt or other adverse consequences and appeal any adverse consequence from your refusal.

Question 32

May a lawyer reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to detect conflicts of interest from change in employment?

Answer 32

Yes, but only if it won’t compromise a/c privilege or otherwise prejudice the client.

Question 33

What is a confidence?

Answer 33

all information relating to the representation, whenever and however obtained.

Question 34

Does the duty of confidentiality under MR 1.6 bar admission of evidence at trial?

Answer 34

No!

Question 35

What is A/C privilege?

Answer 35

a common law evidence rule that has a narrower scope than MR 1.6 duty of confidentiality but applies to communications made in confidence from the client to the lawyer, for the purposes of seeking legal advice.

Question 36

Do both A/C Privilege and duty of confidentiality survive forever?

Answer 36

Yes! It even survives the client’s death.

Question 37

Are the underlying facts of a client’s communications privileged under the a/c privilege rule?

Answer 37

No, underlying facts are not privileged - lawyers or clients can be questioned about them. This means that what happened may not be privileged but what the client said to their lawyer about what happened is privileged.

Question 38

When can a/c privilege be asserted?

Answer 38

in opposition to official requests for information or to deny admission of evidence at trial.

Question 39

What are the elements of a/c privilege?

Answer 39

1) communication between lawyer (or other privileged person) and client. (communication may be either face-to-face or communicative acts through other means such as an email or memo).
2) communication was made in confidence
3) communication was for the purpose of seeking legal assistance/advice.

Question 40

what are the factors used to determine whether a communication was made in confidence?

Answer 40

1) were the circumstances reasonably private?
2) would the client reasonably believe communication was confidential?
3) was there a reasonable expectation of privacy? (were there third parties present?)

Question 41

What is the crime-fraud exception?

Answer 41

There is no a/c privilege when the client is seeking a lawyer’s advice or assistance in connection with the commission of a crime or a fraud. (Attorney need not be a co-conspirator).

Question 42

What does the work-produce doctrine apply to?

Answer 42

• notes and other materials
• that a lawyer prepares
• “in anticipation of future litigation”

Question 43

What is work product protected from?

Answer 43

generally discovery in civil cases…

Question 44

ordinary work product v. opinion work product

Answer 44

ordinary encompasses all materials created in anticipation of litigation that contains facts related to the case whereas opinion consists of the mental impressions, conclusions, and trial tactics of a lawyer.

Question 45

when is ordinary work product generally subject to discovery?

Answer 45

in civil cases ONLY IF the party seeking disclosure (i) demonstrates a substantial need for the information and (ii) cannot obtain the information by any other means without undue hardship.

Question 46

Is opinion work product almost always protected from discovery?

Answer 46

Yes, regardless of another party’s need for the information or inability ti otherwise obtain it.