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MPRE > Regulation of the Legal Profession > Flashcards

Regulation of the Legal Profession Flashcards

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1
Q

Sources of Regulation - State

A

a. Courts - have INHERENT power to regulate legal profession in and out of court. Ultimate power thus rests with the HIGHEST COURT in the state NOT state leg.
b. Bar Associations - administer bar exam, continue education for lawyers, and assist SC in reg professional discipline
c. Congress and State Leg

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2
Q

Sources of Regulation - Federal System

A

a. Courts - lawyer (L) who practices in FC/agency is constrained by fed statutes, fed case law, and rules of that particular court/agency. Each FC has its own bar which each L must become a member
b. Gov Attny - subject to SL and FL in EACH state attny engages in duty

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3
Q

Sources of Regulation - Multiple States

A

L is subject to regulation by EACH state in which L is ADMITTED to practice, regardless of where conduct occurred or where law actually practices.

If rules of states conflict, choice of law rules apply

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4
Q

Admission to the Practice of Law - The Application

What cannot be on the application?

A

a. FALSE STATEMENTS - applicant for admission or L in connection with a bar admission app, must not KNOWINGLY make false statement of material fact
b. FAILURE TO DISCLOSE INFORMATION - an applicant must not (1) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter or (2) knowingly fail to respond to a lawful demand for information from admissions authority

(rule doesn’t cover info protected by confidentiality provisions of RPC)

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5
Q

Admission to the Practice of Law

C&F (Investigative Procedure)

A

Applicant is required to fill out a detailed questionnaire and list references.

  1. BURDEN OF PROOF - on the applicant. Applicant owes a duty to cooperate in reasonable investigations by the state bar and make disclosures relevant to his fitness to practice law.
  2. PROCEDURAL RIGHTS - applicant has right to DP in committee proceedings
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6
Q

Admission to the Practice of Law

C&F (Conduct Relevant to Moral Character)

A

ALL aspects of an applicant’s past conduct that reflect on honesty and integrity are relevant to an evaluation of moral character. (includes acquittal or just a party)

  1. CRIMINAL CONDUCT - to cause disqualification the crime in question must involve in moral turpitude (ex. intentional dishonesty or violent crime)
  2. REHABILITATION - admission is possible despite past conduct involving moral turpitude if demonstrated sufficient rehab was received
  3. CONCEALMENT OF PAST CONDUCT CONSTITUTES MORAL TURPITUDE.
  4. POLITICAL ACTIVITY - failure to take oath may constitute denial of admission. However, membership is a particular political party is not sufficient enough for denial
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7
Q

Admission to the Practice of Law

C&F - Citizenship/Residency

A

A state cannot require that a person be a US citizen or state citizen to be admitted (violates EPC and PIC)

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8
Q

Regulation After Admission - What Constitutes Professional Misconduct?

a. VIOLATION OF THE RPC

A

Professional misconduct to (1) violate or ATTEMPT to violate any RPC (2) knowingly ASSIST OR INDUCE ANOTHER person to violate the rules or (3) USE THE ACTS OF ANOTHER PERSON to commit a violation

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9
Q

Regulation After Admission - What Constitutes Professional Misconduct?

b. CERTAIN CRIMINAL ACTS

A

criminal acts that reflect adversely on honesty, trustworthiness, or fitness as a lawyer in other respects. Crime must involve some characteristic that it relevant to practice of law.

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10
Q

Regulation After Admission - What Constitutes Professional Misconduct?

c. DISHONESTY, FRAUD, DECEIT, or MISREPRESENTATION

A

ANY conduct involving dishonesty, fraud, deceit, or misrepresentation constitutes ProMis

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11
Q

Regulation After Admission - What Constitutes Professional Misconduct?

d. CONDUCT PREJUDICIAL TO THE ADMIN. OF JUSTICE

A

subject to discipline if engaged in conduct prejudicial to the administration of justice

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12
Q

Regulation After Admission - What Constitutes Professional Misconduct?

e. STATING OR IMPLYING ABILITY TO IMPROPERLY INFLUENCE OFFICIALS

A

L must never state/imply ability to improperly influence a gov agency/official that achieve results that violate law/ethics

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13
Q

Regulation After Admission - What Constitutes Professional Misconduct?

f. ASSISTING A JUDGE IN VIOLATION OF JUDICIAL CODE

A

L is subject for KNOWINGLY assisting judge or judicial officer in conduct that violates Code of Judicial Conduct or other law

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14
Q

Regulation After Admission - What Constitutes Professional Misconduct?

g. HARASSMENT OR DISCRIMINATION IN LAW PRACTICE

and exceptions

A

L must not IN CONDUCT RELATED TO THE PRACTICE OF LAW engage in conduct that L knows or reasonably should know is harassment/discrimination

Exceptions: This rule doesn’t limit L’s ability to (1) accept/decline representation or limit practice to underserved populations (2) provide legitimate advice/advocacy that is consistent with RPC or (3) promote diversity/inclusion

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15
Q

Regulation After Admission

Duty to Report

A

A L who KNOWS that another lawyer has violated RPC that raises a SUBSTANTIAL question as to that lawyer’s honesty/trustworthiness/fitness as a L MUST report the violation to the appropriate professional authority (same for judges)

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16
Q

Regulation After Admission

Duty to Report - “Knowledge” and “Substantial”

A

knowledge - ACTUAL KNOWLEDGE (can be inferred from circumstances) more than mere suspicion. L MAY report suspected behavior but MUST report known.

substantial - a material matter of a clear and weighty importance

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17
Q

Regulation After Admission

Sanctions for Failure to Report Misconduct (and Exceptions)

A

L is subject to discipline for violating the rule requiring disclosure

Exceptions: (1) rules doesn’t require disclosure of confidential information (2) no duty to disclose information gained by lawyer/judge in approved lawyers assistance programs.

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18
Q

Regulation After Admission

Sanctions

A
  1. private/public reprimand or censure
  2. suspension
  3. disbarment (permanent)
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19
Q

If a L is admitted to practice in 1 state AND is not disbarred or suspended from practice in any state, then L can provide legal services in a 2nd state on a TEMPORARY BASIS when…

A
  1. Association with (active) Local Lawyer
  2. Special permission to practice in local tribunal (pro hac vice)
  3. Mediation or Arbitration arising out of practice in home state
  4. Other temp. practice arising out of practice in home state
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20
Q

Responsibilities of Partners, Managers, and Supervisory Lawyers

Partners’ Duty to Educate and Guide in Ethics Matters

A

(includes supervisory lawyers in gov) MUST make reasonable efforts to assure other lawyers adhere to RPC

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21
Q

Responsibilities of Partners, Managers, and Supervisory Lawyers

Duties of Direct Supervisor

A

Must make reasonable efforts to assure that the other lawyer adheres to RPC

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22
Q

Responsibilities of Partners, Managers, and Supervisory Lawyers

Ethical responsibility for Another Lawyer’s Misconduct

A

subject to discipline if:

(1) the 1st lawyer ORDERED the 2nd lawyer’s misconduct or KNEW ABOUT IT AND RATIFIED IT or
(2) 1st L is a partner/manager/direct supervisor over 2nd L AND knows about the misconduct at a time when its consequences can be avoided or mitigated and FAILED TO TAKE REASONABLE REMEDIAL ACTION

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23
Q

Responsibilities of Partners, Managers, and Supervisory Lawyers

Ethical Responsibility for Nonlawyer’s Misconduct

A

L is subject to discipline when nonlawyer does something that if done by a lawyer would violate a disciplinary rule. Subject to discipline if

(1) the lawyer ORDERED the conduct or KNEW about it
(2) L is partner/manager/supervisor AND knows about misconduct when the consequences could of still been avoided

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24
Q

Responsibilities of Subordinate Lawyers

Clear v. Debatable Ethics Questions

A
  1. Clear - orders from supervisor are NO EXCUSE for clearly unethical conduct
  2. Sub L does NOT violate rules of RPC by acting in accordance with supervisor’s reasonable resolution of an ARGUABLE QUESTION of professional duty.
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25
Q

Professional Independence of a Lawyer

Fee Splitting with NL and Temp. Lawyers (and Exceptions)

A

A L MUST NOT share legal fees with NL.

Exceptions:

  1. death benefits
  2. compensation and retirement plan for NL employees
  3. Sale of law practice
  4. Sharing court-awarded fee with Non-Profit
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26
Q

Professional Independence of a Lawyer

Partnership with Nonlawyer to practice Law

A

PROHIBITED

L musn’t participated if:

  1. a NL owns any interest in the firm/assoc.
  2. a NL is a corporate director/officer or equivalent or
  3. NL has the right to direct or control the professional judgement of a lawyer
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27
Q

Professional Independence of a Lawyer

Restrictions on the Right to Practice

A

L must not make/offer an agreement that RESTRICTS a lawyers right to practice after termination or make/offer restriction on the lawyer’s right to practice is part of the settlement of client controversy

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28
Q

Sale of a Law Pratice

When is sale permitted?

A
  1. the seller must CEASE TO ENGAGE IN THE PRIVATE PRACTICE OF LAW or in the sold field of practice in the area where the practice has been conducted
  2. the entire practice or the entire field of practice must be sold to 1(+) lawyers/firms AND
  3. WRITTEN NOTICE must be given to seller’s clients regarding the sale, right to retain other counsel, and consent that after 90 days.
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29
Q

Client-Lawyer Relationship

How is the relationship formed?

A

relationship arises when:

  1. a person manifest an intent that the L provide legal services and the lawyer AGREES
  2. A person manifests an intent to have L represent him, L fails to make clear that he does not want to, and the L knowns or should know that the prospective client is REASONABLY RELYING on L to provide the services or
  3. a tribunal APPOINTS a lawyer to represent a client
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30
Q

Client-Lawyer Relationship

Duty to Reject Certain Cases

A
  1. When client’s motive is harassment
  2. Unsupportable Factual or Legal Position
  3. Lawyer is not competent
  4. Strong personal feelings
  5. Impaired mental or physical condition
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31
Q

Client-Lawyer Relationship

Duties Owed to Prospective Client

A

L has duty to:

  1. protect the prospective client’s confidential information, which includes declining to represent other clients in the same related matter if confidential info would be harmful to prospective client
  2. protect any property the prospective client has given to the lawyer and
  3. use reasonable care in giving the person any legal advice
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32
Q

Client-Lawyer Relationship

Attorneys’ Fees

A

L MUST before or within reasonable time after representation communicate the basis or rate of the fee and expenses for which the client will be responsible.

Exception: clients who are represented regularly

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33
Q

Client-Lawyer Relationship

Discipline for Unreasonable Fee (10 factors)

A

to determine if the fee is unreasonable, 10 factors are considered.

  1. time and labor
  2. novelty and difficulty
  3. skill needed
  4. work will preclude L from doing fee-paying work for others
  5. fee customarily changed
  6. amount at stake and result obtained
  7. time limitations
  8. nature and length of the relationship between L and client
  9. experience, reputation, and ability of the L
  10. fixed or contingent fee
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34
Q

Client-Lawyer Relationship

Items that May/May Not be billed

A

MUST NOT - ordinary overhead expenses (staffing, equipment, etc)
MAY - actual cost to the attorney for special services

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35
Q

Client-Lawyer Relationship

Collecting and Financing Attorney Fees

A

Allowed

  1. payment in advance
  2. Property for service
  3. Credit Arrangement/security

Not Allowed
1. fee arrangement that could curtail services in the middle of representation

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36
Q

Client-Lawyer Relationship

Contingent Fees (Prohibited)

A
  1. Criminal cases

2. Domestic relations cases

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37
Q

Client-Lawyer Relationship

Contingent Fee Requirements

A
  1. Must be reasonable
  2. Must be in writing SIGNED BY THE CLIENT - which includes calculation, litigation deductions, whether deductions are made before/after, and what expenses client must pay.
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38
Q

Client-Lawyer Relationship

Fee Disputes (Remedies)

A
  1. Liens
  2. Retention of funds in trust account
  3. arbitration or mediation
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39
Q

Client-Lawyer Relationship

Fee Splitting with Other Lawyer

A 
NOT ALLOWED
3 exceptions
1. Lawyers within a firm 
2. separation and retirement agreements
3. Lawyers outside of firm IF (1) fee is reasonable, (2) split is proportion to services performed by each lawyer or joint responsibility and (3) client agrees in writing
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40
Q

Client-Lawyer Relationship

Mandatory Withdrawal

A
  1. Disability

2. Illegal or Ethical Violation

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41
Q

Client-Lawyer Relationship

Permissive Withdrawal

A

ANY REASON if it can be done without material adverse effect on the client’s interests or if consented.

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42
Q

Client-Lawyer Relationship

Attorney’s Duties Upon Termination of Representation

A
  1. provide client with REASONABLE NOTICE of withdrawal
  2. provide client with TIME to obtain another attny
  3. REFUND ATTORNEY FEES paid in advance and not yet earned AND
  4. RETURN ALL PAPERS AND PROPERTY to which client is entitled
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43
Q

Client Confidentiality

Attorney-Client Privilege v. Ethical Duty of Confidentiality

A
  1. protects only CONFIDENTIAL COMMUNICATION between attorney and client
  2. covers above AND ANY OTHER INFORMATION that the attorney obtains relating to the representation of the client no matter the source.
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44
Q

Client Confidentiality

Corporate Clients

A

Privilege covers communications between the lawyer and high ranking corporate official.

Also covers communications between the lawyer and another corporate employee IF:

  1. employee communicates with the lawyer AT THE DIRECTION OF THE EMPLOYEES SUPERIOR
  2. employee knows that the PURPOSE OF THE COMMUNICATION IS TO OBTAIN LEGAL ADVICE FOR THE CORPORATION and
  3. the communication concerns a SUBJECT WITHIN THE SCOPE OF THE EMPLOYEE’S DUTIES TO ACT for the corporation
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45
Q

Client Confidentiality

Duration of Privilege

A

INDEFINITELY

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46
Q

Client Confidentiality

Exceptions to Privilege

A
  1. Privilege doesn’t apply if the client seeks the attorney’s services TO ENGAGE IN OR ASSIST A FUTURE CRIME OR FRAUD
  2. Doesn’t apply to communications that are RELEVANT TO AN ISSUE OF BREACH OF THE DUTIES ARISING OUT OF AC RELATIONSHIP
  3. Doesn’t apply in CIVIL LITIGATION BETWEEN 2 PERSONS WHO WERE FORMERLY THE JOINT CLIENTS OF THE ATTNY
  4. Doesn’t apply in a variety of situations in which the attorney can furnish E about the COMPETENCY AND INTENTION OF A CLIENT WHO HAS ATTEMPTED TO DISPOSE OF PROPERTY BY WILL OR INTER VIVOS TRANSFER.
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47
Q

Client Confidentiality

Allowed Exceptions to the Duty of Confidentiality (8)

A
  1. Informed Consent
  2. implied authority
  3. Disclosure to prevent death or substantial bodily harm
  4. disclosure to prevent or mitigate substantial financial harm
  5. dispute concerning attorney’s conduct
  6. Disclosure to obtain legal ethics advice
  7. disclosure to detect and resolve conflicts of interest
  8. disclosure required by law/court order
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48
Q

Conflicts of Interests

COI before lawyer takes on matter vs. after

A

Lawyer must not take it on vs.

if informed consent will not solve the problem, then lawyer MUST withdraw

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49
Q

Conflicts of Interests

Consequences of a COI

A
  1. disqualification as counsel on matter
  2. professional discipline and
  3. civil liability for legal malpractice
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50
Q

Conflicts of Interests

When does a CONCURRENT CONFLICT exist? (2)

A
  1. the representation of one client will be DIRECTLY ADVERSE to another client OR
  2. there is SIGNIFICANT RISK that the representation of 1 client will be MATERIALLY LIMITED by the lawyer’s own interest or by the lawyer’s responsibilities to another client, former client, or 3rd person.
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51
Q

Conflicts of Interests

Despite concurrent COI when MAY a lawyer represent a client?

A
  1. the lawyer reasonably believes that he can completely and diligently represent each affected client
  2. representation is not prohibited by law
  3. representation does not involve asserting a claim by 1 client against another client represented by the lawyer in the same litigation AND
  4. each affected client gives informed consent IN WRITING SIGNED BY THE CLIENT
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52
Q

Conflicts of Interests

Business Transactions with Client

A
  1. terms if transaction must be fair to client
  2. terms are FULLY DISCLOSED IN WRITING covering ESSENTIAL TERMS and LAWYERS ROLE
  3. Client is advised IN WRITING and should get ADVICE OF AN INDEPENDENT LAWYER before entering into the arrangement
  4. Client gives INFORMED CONSENT IN WRITING AND SIGNS IT
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53
Q

Conflicts of Interests

Can a lawyer acquire proprietary interest in litigation?

A

NO.

Exceptions:

  1. Contingent Fees
  2. Attorney’s Lien
54
Q

Conflicts of Interests

Gifts to Lawyer from Client (who is not a relative)

A

A L must NOT SOLICIT a SUBSTANTIAL gift from a client who is not a relative.

Which includes preparing a legal instrument (will/deed) that leaves substantial gift/money to the lawyer

55
Q

Conflicts of Interests

Acquiring Literary/Media Rights in Client Case

A

Not allowed, but lawyer can acquire such rights AFTER the client’s legal matter is entirely completed.

56
Q

Conflicts of Interests

Financially Assisting Clients

A

A Lawyer CAN:

  1. advance litigation expense
  2. Paying Cost for Indigent Client
  3. Modest gifts for indigent client (cannot be promised, advertised, reimbursed)

All other is prohibited

57
Q

Conflicts of Interests

Aggregate Settlement Agreements

A

Lawyer must not participate in the making of an aggregate settlement agreement unless ALL of these conditions are met:

  1. L must assure that the CLIENTS HAVE COME TO AN AGREEMENT among themselves about how sum is shared
  2. L must DISCLOSE TO EACH CLIENT ALL OF THE TERMS of the settlement including the amount, nature of claims, and details of participation
  3. each client must give informed consent to the aggregate settlement agreement in a writing signed by the client.
58
Q

Conflicts of Interests

Compensation from 3rd Person

A

L must not accept compensation unless:

  1. client gives INFORMED CONSENT
  2. the 3rd person DOES NOT INTERFERE WITH THE LAWYER’S INDEPENDENCE or the representation of the client AND
  3. the arrangement DOES NOT COMPROMISE THE CLIENT’S CONFIDENTIAL INFORMATION
59
Q

Conflicts of Interests

Sexual Relationship Between Lawyer and Client

A

Puts L subject to discipline unless the relationship predated the lawyer-client relationship

60
Q

Conflicts of Interests

How to overcome a prospective client conflict?

A
  1. demonstrate that the lawyer who held discussions with the prospective client AVOIDED EXPOSURE TO ANY MORE CONFIDENTIAL INFO THAN WAS NECESSARY
  2. demonstrate that the disqualified lawyer is TIMELY SCREEN FROM ANY PARTICIPATION IN THE MATTER and will not share fee and
  3. give WRITTEN NOTICE to the prospective client
61
Q

Competence, Malpractice, and Civil Liability

Competence or Diligence Violation

A

a single violation is enough to impose professional discipline

62
Q

Competence, Malpractice, and Civil Liability

Attorney Duty of Care to Prospective Clients and 3rd Parties

A

owes a duty when

  1. the 3rd party was intended to benefit from legal services or
  2. the attorney invited the 3rd person to rely on her opinion/legal services
63
Q

Competence, Malpractice, and Civil Liability

Errors of Judgement

A

L is not liable for mere errors in judgement if judgement was well-informed and reasonably made

64
Q

Competence, Malpractice, and Civil Liability

Reimbursing client after breach of duty

A

L is still subject to discipline.

65
Q

Litigation and Other Advocacy

Asserting a Frivolous Position

A

A frivolous position is one that cannot be supported by good faith argument under existing law AND that cannot be supported by a good faith argument for changing the existing law

66
Q

Litigation and Other Advocacy

False statements of law

A

L is subject to discipline for knowingly making a false statement of law or failing to correct a previously made false statement

67
Q

Litigation and Other Advocacy

Failing to Disclose Controlling Authority

A

subject to discipline for not disclosing legal authority in the controlling jurisdiction that is directly adverse.

68
Q

Litigation and Other Advocacy

Obligation to Volunteer Harmful Facts (& exception)

A

None bc discovery proceedings can be use to find out facts from each side.

exception: in ex parte proceedings (one sided) L must reveal all material facts.

69
Q

Litigation and Other Advocacy

Discovery Evidence is False

A

L must speak confidentially with client

if client refused to withdraw the evidence L can ask court to withdraw

however, withdrawal alone is not a sufficient remedial step if it leaves false evidence before the tribunal.

70
Q

Litigation and Other Advocacy

Discovery Evidence is False (criminal)

A

L must speak confidentially with client

If client refuses, L can consider withdrawal

If all else fails the lawyer must reveal the situation to the judge even if it breaches confidential information

71
Q

Litigation and Other Advocacy

Paying Witnesses

A

Not allowed.

but L can pay for:
travel, meals, or lodging
loss of time
expert fees

72
Q

Litigation and Other Advocacy

Chicanery at Trial

A

L is not allowed to:

  1. refer to inadmissible material
  2. assert personal knowledge of contested facts
  3. assert personal opinions
73
Q

Litigation and Other Advocacy

Post Trial Communications with Jurors

A

L MUST NOT communicate if the following conditions are met:

  1. local law prohibits
  2. juror has told the lawyer that he doesn’t want to communicate
  3. the communication involves misrepresentation, coercion, or harassment
74
Q

Litigation and Other Advocacy

Facts that are permitted to say publicly

A
  1. claim, charge, or defense
  2. names of persons involved
  3. any information that is public record
  4. scheduling/result
  5. fact that investigation is ongoing
  6. routine booking information
75
Q

Transactions and Communication with Non-Clients

Conventional Puffery

A
  1. estimates of price/value

2. statement of a party’s intentions as to settlement of a claim

76
Q

Transactions and Communication with Non-Clients

Communication with Persons Represented by Counsel

A

Must not communicate about the matter with a person the lawyer knows to be represented UNLESS that person’s counsel consents OR court order.

True even if represented person initiates or consents to communication

77
Q

Transactions and Communication with Non-Clients

Communication with Persons Represented by Counsel - Organizations

A

L must get the consent of the organization’s counsel before communicating with the following constituents of the organization:

  1. a person who SUPERVISES DIRECTS OR REGULARLY CONSULTS WITH THE ORGANIZATION’S LAWYER about the matter at hand
  2. a person whose conduct may be IMPUTED to the organization for purposes of crim/civil liability or
  3. a person who has AUTHORITY to obligate the organization concerning the matter.
78
Q

Transactions and Communication with Non-Clients

Communications Allowed

A
  1. L can communicate with a represented person when the communication is authorized by law
  2. when the communication doesn’t concern the subject of representation
  3. represented persons can communicate with each other
  4. L can interview unrepresented person who is called as a witness by some other party
79
Q

Transactions and Communication with Non-Clients

Dealing with unrepresented persons

A

L must not state/imply they are disinterested

L must correct their role to unrepresented person

L must not give legal advice to unrep person if it conflicts with a current client

80
Q

Different Roles of the Lawyer

Giving Advice Beyond the Law

A

L can give legal advice and moral, economic, social, or political when relevant to the situation.

L can also urge client to seek additional advice from experts

81
Q

Different Roles of the Lawyer

Volunteering Advice

A

L has no duty to give advice until asked.

L MAY volunteer advice without being asked.

82
Q

Different Roles of the Lawyer

Evaluation for Use by 3rd Persons - Requirements

A

L may evaluate a client’s affairs for use of 3rd person if evaluation in compatible with lawyers other responsibilities

If evaluation is harmful, L must obtain client’s informed consent before making evaluation

83
Q

Different Roles of the Lawyer

Liability for Evaluation

A

L may be liable to a 3rd person for negligence in rendering an eval.

84
Q

Different Roles of the Lawyer

Due Diligence in Evaluations

A

L is not a guarantor of every fact.

If the disclosure are inconsistent, L has a DUTY TO INQUIRE to determine correct facts.

85
Q

Different Roles of the Lawyer

Lawyer as Negotiator

A

Prohibited from making a false statement of MATERIAL FACT.

L has no duty to do the other side’s fact research or volunteer any facts that would undermine the client’s position

86
Q

Different Roles of the Lawyer

Misapprehension

A

If L believes opponent is underestimating the strength of his client’s position has NO duty to correct unless the lawyer/client caused it.

87
Q

Different Roles of the Lawyer

Lawyer as 3rd Party Neutral

A

L does not represent either client and must state that clearly.

Attorney Client Privilege doesn’t apply

88
Q

Different Roles of the Lawyer

3rd Party Neutral - Conflicts of Interests

A

If L serves as 3rd party and must not thereafter become the lawyer for anyone involved in the matter UNLESS parties give informed consent in writing

89
Q

Different Roles of the Lawyer

Duties of a Prosecutor

A
  1. Must NOT prosecute without probable cause
  2. Must assume that the accused is (1) advised of the right to counsel (2) advise of the procedure for obtaining counsel and (3) given a reasonable opportunity to obtain counsel.
90
Q

Different Roles of the Lawyer

Waiver of PreTrail Rights

A

a prosecutor MUST not seek to obtain from unrep accused a waiver of important pretrial rights such as prelim hearing

91
Q

Different Roles of the Lawyer

Public Statement about Pending Matters

A

Pros must not make extrajudicial statement that have substantial likelihood of heighteing public condemnation of the accused.

Also must make sure subordinates don’t make the comments as well.

92
Q

Different Roles of the Lawyer

Advocate in Leg. and Admin. Proceedings (& exceptions)

A

When L appears on behalf of client, L must disclose that she is acting in representational capacity.

exceptions:

  1. when L represents a client in bilateral negotiations with the gov
  2. in an application for a license
  3. when the gov is investigating client’s affairs
  4. when the gov is examining the clients compliance with reporting req
93
Q

Different Roles of the Lawyer

Organization as a client

A

L owes duty of loyalty to the organization NOT the constituents.

94
Q

Different Roles of the Lawyer

Protecting the Organization’s Interests

A

L must proceed as is reasonably necessary to protect the interests of the organization.

L MUST report violation to higher authority but some discretion is allowed.

95
Q

Different Roles of the Lawyer

Serving as Both Director and Lawyer

A

it is not forbidden for lawyer to be director and lawyer for an org, but COI rules apply.

96
Q

Different Roles of the Lawyer

Securities Lawyer’s Duties under Sarbarnes-Oxley

A

Applies to transact business with the SEC and L who give advice on documents to be filed with SEC

L MUST report violations of fed/state securities law, if not action is taken then must report to a board.

97
Q

Safekeeping Funds and Other Property

Client Trust Fund Account

A

All money that a lawyer receives IN CONNECTION WITH A REPRESENTATION must be promptly placed in a clients trust fund account

If L has money for a long time, must be out in an interest bearing account and the interest belongs to the client.

98
Q

Safekeeping Funds and Other Property

Disputed Funds

A

if there is a dispute of funds, L must keep the disputed amount in client’s trust fund until matter is resolved.

99
Q

Safekeeping Funds and Other Property

Duties

A
  1. L must NOTIFY THE CLIENT PROMPTLY when a 3rd party turns over money to hold on client’s behalf
  2. L must KEEP COMPLETE ACCURATE AND UP TO DATE RECORDS of all money and property held on behalf of the client and must be preserved for 5 yrs
  3. L must RENDER APPROPRIATE ACCOUNTINGS held on behalf of client
  4. When time comes to PAY OVER OR DELIEVER L must do so promptly
100
Q

Communications about Legal Services

Basic Rule

A

Subject to discipline for ANY TYPE of communication about the lawyer or services that is FALSE OR MISLEADING

101
Q

Communications about Legal Services

False or Misleading Communications

A
  1. outright falsehoods
  2. omitted facts
  3. unfounded conclusions
  4. unjustified expectations
  5. unsubstantiated comparisons

disclaimers MAY preclude a finding that the advertisement or other communication is misleading

102
Q

Communications about Legal Services

Identification of Advertiser

A

Every advertisement must include the name and contact information that is responsible.

103
Q

Communications about Legal Services

Generally Permitted Information

A
  1. info about the name and address
  2. kinds of services
  3. basis on which fees are determined
  4. foreign language ability
  5. names of references
  6. other info that invites attention of persons seeking legal assistance
104
Q

Communications about Legal Services

Misleading with Non-Associated and NonLawyers

A

law firm name is misleading if it includes the name of:

  1. deceased lawyer who was not a former member of the firm
  2. name of any lawyer who is not associated with the firm or predecessor firm
  3. name of a non lawyer
  4. lawyers in public service who are not regular or active with the firm
  5. must not imply connection with public/charitable organization (disclaimer allowed) (includes geographical names)
105
Q

Communications about Legal Services

Identifying Fields of Practice

A

L must state if they do or don’t concentrates in, specializes in, or is a specialist.

L must not imply they are CERTIFIED AS A SPECIALIST unless:

  1. is certified by an ABA approved or state authority AND
  2. the name of the certifying organization is clearly identified in the communication
106
Q

Communications about Legal Services

Recommendations

A

L must not compensate, give anything of value, or promised to give anything of value to a person for recommending their services

107
Q

Communications about Legal Services

Exceptions to Recommendations

A
  1. L may pay reasonable cost permitted advertisements

2. L may use lead generator but generator cannot recommend L

108
Q

Communications about Legal Services

Reciprocal Referral Agreements

A

Allowed but:

  1. agreement must not be exclusive
  2. the referred client must me told about agreement
  3. reciprocal agreement must not interfere with the lawyer’s professional judgment as to making referrals
  4. the agreement should not be of indefinite duration and should be reviewed periodically
109
Q

Communications about Legal Services

Solicitiation

A

A communication initiated by a lawyer or firm that is directed to a specific person.

Not a solicitation:

  1. communication to general public
  2. responds to a request for information
  3. automatically generated response to an internet search
110
Q

Communications about Legal Services

Live Person-to-Person Solicitation (& exception)

A

generally prohibited when general motive is pecuniary gain.

Live means face-to-face, live telephone, or other real-time visual or auditory person to person communication.

exceptions: offering free legal services or political/ideological solicitation, other lawyers, person of close personal relationship, routine business users of the type of legal service.

email, tests, and chat room are not live and are gen. permitted.

111
Q

Communications about Legal Services

Circumstances when all contact is impermissiable

A

L is prohibited regardless of what method is used or who the target is if:

  1. the target of the solicitation has made known to the lawyer that she does not want to be solicited OR
  2. the solicitation involves coercion, duress, or harassment
112
Q

Lawyers Duties to the Public and the Legal System

Pro Bono

A

Recommended that every lawyer should spend 50 hours per year on pro bono work,

113
Q

Lawyers Duties to the Public and the Legal System

Court Appointments

A

L must not seek to avoid such an appointment except for good cause.

good cause = violation of law or disciplinary rule, unreasonable financial burden, personal inability to represent client effectively

114
Q

Lawyers Duties to the Public and the Legal System

Quick Advice programs

A

COI rules are relaxed

L must make clear short term status

Imputed Conflict rule is also relaxed unless L ACTUALLY KNOWS that he is disqualified

COI rules apply when quick advice leads to regular representation

115
Q

Lawyers Duties to the Public and the Legal System

Membership in Legal Services Organization

A

Usually permitted but:

  1. L must not knowingly participate in a decision or action of the org
  2. L must not knowingly participate in a decision or action of the organization if doing so would adversely affect representation
116
Q

Lawyers Duties to the Public and the Legal System

Statements about judicial and public legal officials

A

L must not make a statement that the lawyer knows is false about the qualification or integrity of the judge or statements of reckless disregard.

117
Q

Lawyers Duties to the Public and the Legal System

Lawyer Running for Judicial oFFICE

A

L must comply with Code of Judicial Conduct

118
Q

Lawyers Duties to the Public and the Legal System

Political Contribution (and exceptions)

A

Prohibited from making contribution for purpose of obtaining employment or appointment.

exception:
1. role is uncompensated
2. engagements or appointment made on the basis of experience
3. appointments made on rotating basis from a list without regard to political contributions

119
Q

Judicial Ethics

Who is Subject to the CJC?

A

All persons who perform judicial functions including magistrates, court commissioners, referees, and special masters.

Retired persons are exempt from some CJC.

120
Q

Judicial Ethics

Impropriety (and test)

A

Judges must comply with the law and must act to promote public confidence.

test: if judge’s conduct would create a reasonable perception that she has violated the CJC or acted in some other manner that reflects adversely on her honesty, impartiality, temperament, or fitness as a judge,

121
Q

Judicial Ethics

Judge as Reference or Recommendation

A

allowed and can be on official letter head if:

  1. the judge indicates that the reference is personal and
  2. there is no likelihood that use of the letterhead would reasonably be perceived as an attempt to use the judicial officer to exert pressure.
122
Q

Judicial Ethics

Judicial Duties (6)

A
  1. must hear and decide all matter assigned (unless disqualified)
  2. must uphold and apply the law
  3. must be fair and impartial
  4. must not be swayed by public clamor or criticism
  5. must allow every person to be heard (but may encourage settlements)
  6. must avoid bias, prejudice, and harassment
123
Q

Judicial Ethics

Ex Parte Communication

A

Judge must not engage unless

  1. expressly authorized by law
  2. mediation or settlement (with consent)
  3. emergencies or admin matters if (1) CIRCUMSTANCES require the judge to communicate with one side only (2) communication concerns an EMERGENCY OR A SCHEDULING OR ADMIN MATTER (3) the judge believes that NO PARTY WILL GAIN AN ADVANTAGE AND (4) the judge NOTIFIES the lawyers for the other parties and gives them an opportunity to respond
124
Q

Judicial Ethics

Public Comments

A

judge must not make any public comment or nonpublic that would impair a fair trial

125
Q

Judicial Ethics

Prior Involvement

A

A judge MUST disqualify if previouosly:

  1. served as a MATERIAL WITNESS in the matter
  2. Served as a LAWYER in the matter
  3. Was ASSOCIATED IN LAW PRACTICE with a person who participated substantially as a lawyer in the matter at the time they practiced together
  4. PRESIDED AS A JUDGE over the matter in another court or
  5. served in GOVERNMENTAL EMPLOYMENT
126
Q

Judicial Ethics

Involvement in the Proceeding - When must a judge disqualify herself?

A

judge must disqualify herself if the judge knows that she, her sig other, or person of third degree is:

  1. a PARTY
  2. a LAWYER
  3. a PERSON WITH MORE THAN A DE MINIMIS INTEREST or
  4. likely to be a MATERIAL WITNESS
127
Q

Judicial Ethics

Acceptance of Gifts

A

Judge must not accept if prohibited by law or would appear to undermine judge’s impartiality.

128
Q

Judicial Ethics

Gifts (without reporting) (7)

A
  1. plaques or certificates
  2. gifts from friend or family
  3. ordinary social hospitality
  4. commercial or financially opportunities (discounts)
  5. rewards and prizes open to persons who aren’t judges
  6. scholarships and fellowships ^
  7. gifts associated with business of spouse or person residing in household.
129
Q

Judicial Ethics

Gifts (Must be reported)

A
  1. gifts incident to public testimonial
  2. invitations to attend without charge related to the law or in relation to judges educational religious belief.
  3. gifts, loans, bequests, or other things of value
130
Q

Judicial Ethics

Reporting Requirements

A

J must report value if

  1. compensation received for extrajudicial activities
  2. gifts unless value received from same source during the same calendar does not exceed dollar amount set by state law. AND
  3. reimbursement of expenses.

MPRE (1 decks)

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