Quick Sheet Flashcards
1
Q
Duties owed to the client
A
- Competent representation
- Diligence
- Confidentiality
- Safekeeping of property
2
Q
Client’s rights
A
- To be informed
- To make decisions
3
Q
Competent Representation: Duties owed
Rule 1.1
A
- legal knowledge
- skill
- thoroughness
- preparation
- must not neglect a legal matter
- must not take on matter attorney knows she is not competent to handle
4
Q
Diligence
Rule 1.3
A
Duties owed:
- lawyer shall act with reasonable diligence and promptness
- no procrastination
- zealous advocate
- carry matters through to conclusion
5
Q
Duty owed: Confidentiality
Rule 1.6
ABA
A
Exceptions:
- Comply with court order or law (by subpoena)
- Prevent reasonably certain death or substantial bodily harm (SBH)
- Prevent crime/fraud resulting in substantial financial injury ONLY IF lawyer was used to commit it
- Secure legal advice about compliance w/rules
- Establish lawyer’s claim/defense against client
- Or to protect oneself in connection w/client
6
Q
Safekeeping client’s property
Client’s property held separately
A
- Client’s property must be held separately
- funds: separate trust account
- lawyer can only use own money for bank fees
- must deposit all advance fees and withdraw only when earned
- records: must keep for 5 years
- funds: separate trust account
7
Q
Safekeeping client’s property
miscellaneous
A
- must promptly notify and deliver funds due to client
- in a dispute w/client, funds must be kept separate by lawyer until resolved
- personal property must be safeguarded
8
Q
May sell law practice if:
Rule 1.7
A
- seller ceases to practice law in that area
- the entire practice area or firm is sold to a lawyer or firm
- written notice to client
- fees charged clients may not be increased because of the sale
9
Q
Attorney as a witness
Rule 3.7
A
- Can’t be an advocate if going to be a necessary witness
- exceptions
- testimony on uncontested issues
- testimony relates to legal services rendered
- substantial hardship on client if disqualified
10
Q
Client’s right to be informed
A
- prompt response to requests for info
- explain sufficiently so client can make informed decisions
- consult regarding means to accomplish objectives
- reasonably informed of status
- organization as a client- communicate w/appropriate officer
11
Q
Client’s right to make decisions
A
- generally client decides objectives and attorney decides means
- attorney has final say on strategy and procedure
- client has final say regarding expenses
- client has final decision on whether to settle
- in criminal cases: client has final decision on plea, waiver of jury trial, and whether client testifies
12
Q
May an attorney limit the scope of representation?
A
Yes, if limitation is reasonable under the circumstances and client gives informed consent.
13
Q
client’s fraudulent or criminal conduct
A
- Must not counsel client to engage in, or assist client in, fraudulent or criminal conduct
- discuss consequences of proposed action and counsel as to meaning
- withdraw if client insists on pursuing action
14
Q
Client has diminished capacity
(minor, disability, or any other reason)
A
- seek appointment of guardian
- maintain as normal an attorney-client relationship as reasonably possible
15
Q
Withdrawal
Mandatory
A
- lawyer shall not represent a client or shall withdraw if:
- attorney’s disability impairs ability
- illegality
- attorney is fired
16
Q
Withdrawal
Permissive
A
- lawyer may withdraw from representing a client if:
- there is no material harm to client
- client persists in criminal or fraudulent conduct involving attorney assistance
- client used attorney’s services to commit past crime or fraud
- client’s objective is repugnant
- financial burden on attorney
17
Q
Actions taken upon withdrawal from representation
A
- give notice or get permission
- if ordered not to withdraw, lawyer must contine despite good cause
- Reasonably protect client’s interests
- allow time to obtain new counsel
- refund unearned fees
- return property, files (does not have to include work product)
18
Q
Is there a conflict?
A
Go through list of 1.8. If the conflict is not covered, then do the general analysis of 1.7.
19
Q
If Attorney Smith’s adversary is spouse, brother, etc…..
A
….then do 1.7 analysis. There is no specific 1.8 rule to address this. Can overcome it, but must disclose.
20
Q
1.7 Conflicts of Interest analysis:
A
- must not represent if directly adverse to another client
- must not represent if limited by:
- responsiblity to another client
- responsibility to a 3rd person
- attorney’s own interests
- EXCEPTIONS!
- reasonable belief that it will not adversely affect relationship with other client; AND
- not prohibited by law; AND
- each client consents; AND
- representation is not regarding claim by one client against the other
21
Q
1.7 Conflicts of Interest: elevator statement
A
There is a conflict of interest if there is a substantial likelihood that your service to a client would be materially limited by your responsibilities to yourself or another person.
22
Q
Duties to others: Third parties
Fairness to opposing party and counsel
A
- must not obstruct acces to or alter, destroy, or conceal evidence; or counsel another to do so
- must refrain from examining material evidence received in error
- must not falsify evidence or assist witness to testify falsely
- must not make frivilous discovery request or fail to comply with discovery requests
23
Q
Duties to others: Third parties
Truthful statements to others
A
- may not make false statement of material fact or law to third person
- must disclose material facts to avoid assisting client in crime or fraud
24
Q
Duties to others: third parties
communication
A
- Must not communicate with another attorney’s client without consent or legal authority
- Unrepresented persons:
- must not imply disinterest
- must make reasonable efforts to correct misunderstandings
- must not give legal advice other than to secure counsel
25
Duty of candor to the tribunal
1. must not make false statement of material fact or law, or fail to correct a previous false statement
2. must disclose material fact to court when necessary to avoid assisting criminal or fraudulent act by client
3. must not offer evidence known to be false
1. perjury procedure:
1. elicit truth from the client
2. if that fails, seek to withdraw
3. if that fails, disclose to court in chambers
26
Trial Publicity
Must not....
... make out-of-court statment as a reasonable person would expect to become public where there is a substantial likelihood of materially prejudicing proceedings
27
Trial publicity
permissible out-of-court statements
* general nature of claim or defense
* info in public record
* general scope of investigation
* scheduleing or disclosing result of stage of litigation
* request for public assistance for evidence or info
* warning of danger if likelihood of harm
* rebuttal to comments made by others to mitigate prejudice
* in criminal case:
* identity of accused
* info necessary to apprehend accused
* facts regarding arrest
* identify of officers involved in the arrest
28
Conflict of interest: 1.8 Analysis
1. must not enter into business transactions
1. unless terms are reasonable, disclosed, in writing; and advised to seek other counsel
2. must not solicit gift or prepare will giving gift to attorney unless giver is related
3. must not negotiate for literary or media rights prior to conclusion of representation
4. cannot acquire proprietary interest in cause of action
1. exception: contingency fees or liens to secure fee
5. must not provide financial assistance
1. exception: advancing court costs and litigation expenses or paying for costs for indigent clients
6. shall not have sex unless relationship already existed
29
1.8 analysis
first 5
1. business transactions
2. disadvantage of client
3. gifts, wills
4. media rights
5. financial assistance
30
1.8 analysis
last 5
1. 3rd party payor
2. no aggregate settlements
3. can't limit liability
4. no proprietary interest
5. sex
