Roles of Lawyers Flashcards
What is the role of a lawyer as an advisor?
Must exercise indep. judgment - be candid and honest- can give client moral, econ, social, and political advice.
Can a lawyer give a client moral, economic, social, or political advice in addition to legal advice?
Yes
Can a lawyer evaluate a client’s affairs for a third party?
Yes if doing so is compatible with other responsibilities owed to the client.
In evaluating a client’s affairs for a third party, when does the attorney have the implied authority to disclose information to a third party?
When there is no significant risk to the client - can communicate directly with them.
In evaluating a client’s affairs for a third party, when does the attorney have to obtain the client’s consent before disclosing information to a third party?
When the information can be materially harmful to the client.
What is the lawyer’s responsibility as negotiator?
Cannot provide false statements of material facts in a negotiation.
If a lawyer is a negotiator, do they have to voluntarily give up information?
No
Can mere puffery be punished in a negotiation?
No
What items are puffed about?
Price
Settlement Limits
What is the lawyer’s responsibility as third party neutral?
Must make sure that an unrepresented party understand that the lawyer does not represent them.
What is the lawyer’s responsibility as prosecutor?
Must have probable Cause
Cannot violate the accused due process rights
Cannot attempt to get accused to waive pretrail rights
Must a prosecutor disclose evidence favorable to the defendant?
Yes
Must a prosecutor promptly disclose any new credible and material evidence of wrongful conviction?
Yes
What is the prosecutor’s responsibility if clear and convincing evidence of innocence and conviction is in its own jurisdiction?
Try to remedy the issue must take an actual step
Can a prosecutor subpoena a lawyer to get evidence about their clients?
No unless it is essential - non priv and can’t be obtain otherwise.
What is the lawyer’s responsibility in appearing in a non-adjudicative proceeding?
Need to state that you are appear on behalf of a client but dont need to give name.
What is the responsibility of a lawyer who reps an org?
Duty of loyalty to the organization - not the people.
How can a lawyer rep an org and the people?
Both parties must waive informed consent. Lawyer must tell them that if a conflict breaks out, you don’t rep the person and communications are not priv.
What happens if a person at the org keeps taking after you tell them you rep the org and what they said will hurt the org?
You must report it internally. If they ignore you, you MAY report it externally to prevent substantial injury.
If you were hired by a company to do an investigation of a violation, do you have a right to externally report violations?
No
Can a lawyer urge client to seek advice from a professional?
Yes
Can a lawyer volunteer advice to a client without being asked?
Yes
Does the duty of evaluation apply when the client asks you to evaluate the affairs of a third party?
No - only when you analyze the client’s affairs for a third party.
True or false: A lawyer who is hired to evaluate affairs for a third party can be liable to the third party for negligence in doing the eval?
True
When does a lawyer have a special obligation to be complete, accurate, and candid?
When the lawyer agrees to certify facts to a large number of people who will rely on this.
What cases lead to wide certifications?
Securities cases - related to prep of disclosure documents for investors. Can be held liable for misstatements and omissions of fact.
Tax shelter opinions.
True or false: If disclosures are inconsistent, lawyer has a duty to inquire about the correct facts?
True
Is there a conflict when a lawyer who served as a partial arbitrator later becomes their lawyer
No
Prosecutor and public statement about Def.
subject to the general rule against making statements that are likely to prejudice a trial. Furthermore, except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, a prosecutor must not make extrajudicial statements that have a “substantial likelihood of heightening public condemnation of the accused.” A prosecutor also must take reasonable care to prevent investigators, police, employees, and others assisting in a case from making statements that violate these rules.
True or False: A prosecutor also must take reasonable care to prevent investigators, police, employees, and others assisting in a case from making statements that violate rules.
True
True or False: A prosecutor must promptly disclose new, credible, and material evidence that creates a reasonable likelihood that a defendant was wrongly convicted. This is true even if the conviction occurred in a different jurisdiction.
True
The Sarbanes-Oxley Act imposes additional obligations on securities lawyers who come across evidence of a material violation of the securities laws by their client.
How does the Sarbanes-Oxley Act differ from the ethical rule relating to violations by organizational clients?
If a securities lawyer becomes aware of credible evidence that her client is materially violating a federal or state securities law, she must report the evidence to her client’s chief legal officer (“CLO”).
True or False: A prosecutor may obtain from an unrep person a waiver of pretrail rights.
False
Can a protective order prevent a prosecutor from disclosing mitigating information?
Yes but otherwise must disclose to def. all unpriv info.
A prosecutor must not make ____ statements that____
Extrajudicial
Have the substantial likelihood of heightening public condemnation of the accused.
What is the limit of a govern lawyer over civil lit matters?
Should not institute or continue actions that are obviously unfair.
Can a gov lawyer use their power to harrass parties or coerce settlement?
No must develop a full and fair record.
True or false: When a lawyer represents a client before a legislative body, it must follow the same rules as though in court.
True
The duty of administrative rep and duties of candor and respect do not apply when:
- Lawyer represents a client in bi-lateral negotiations with government.
- An application for a license.
- When the gov is investigating the client.
- when the government is investigating client’s compliance with reporting requirement.
If a conflict breaks out between an ORG you represent and a person who works there, what should you do?
Tell them that you don’t represent them.
Tell them to get a lawyer.
When a lawyer for an org learns that a person within the org has or will act in a way that violates a duty to the organization, and it will cause substantial injury, what must they do?
Do what is reasonably necessary to protect the interests of the organization.
True or False: A lawyer need not report a violation to the highest authority in a corp if they reasonably believe that the org’s best interest do not require it to be reported.
True
If a lawyer reports the violation to the highest authority in an org and they do nothing, the lawyer ___ report the relevant information outside of the org.
May
What is the standard for a lawyer to report outside of the org?
Must reasonably believe that reporting is necessary to prevent substantial injury to the organization.
Is there a duty to report if you are hired by the org to investigate a violation or to defend the org against a violation?
No
If a lawyer believes that they were fired because they reported issues up the chain, they ____ proceed as they reasonably believe necessary to assure the highest authority knows of the firing or withdrawal.
Must
Can you rep an org and a person?
Yes - must get informed consent from both parties and it cannot be the same person on both sides.
Can a lawyer serve as both a director and lawyer to an org?
Yes
If the attorney participates in a board meeting as a director and not a lawyer, does the attorney client priv apply?
No
If there is a risk that the attorney cannot be both a director and keep its duties as lawyer, they must..
resign from one position.
What is the law of lawyering?
Rules made by the SEC for securities lawyers who discover their clients are violating federal or state securities law.
What lawyers does the SEC rules apply to?
Those who represent an issue of securities and who practice before the SEC.
Do the SEC rules cover lawyers who give advice about a document that is filed by the SEC or about whether a documents should be filed by the SEC?
Yes
If a securities lawyer becomes aware of credible evidence that her client is violating federal or state securities law, she ___ report the evidence to client’s _______ or ____.
Must
Chief Legal Officer or CEO.
If a securities lawyer becomes aware of credible evidence that her client is or has breached a fiduciary duty under federal or state law, she ___ report the evidence to client’s _______ or ____.
Must
Chief Legal Officer or CEO.
When you report a securities violation to the CLO, what must they do?
Investigate the situation to determine if the violation occurred or turn it over to the legal compliance committee.
What does a CLO have to do if it determined that no violation occured?
Report that to the securities lawyer
What does a CLO have to if they determine a violation occurred?
Must take reasonable steps to get the client to make an appropriate response for client to stop of remedy situation and must report to securities lawyer
What must a securities lawyer do if it determines that CLO did not take appropriate action?
Must report the evidence to: - clients whole board of directors - audit committee of the board or -a committee made up of outside directors.
Is reporting required under Sarbanes=Oxley?
Yes
True or False: A securities lawyer can reveal to the SEC without the client’s consent any confidential info?
True
Under what cases can a securities lawyer reveal confidential info to the SEC?
- Stop client from committing substantial injury to client to client or investors
- rectify financial injury if lawyer’s services were used
- prevent the client from committing perjury in the SEC or lying to the FEDs.
True or False: A securities lawyer that violates Sarbanes Oxley can be disciplined by SEC.
True
True or False: A securities lawyer who complies with Sarbanes Oxley can be held civilly liable for doing so.
False and cannot be discipline under any inconsistent state rule.
If a securities lawyer is fired for complying with Sarbanes Oxley, she ___ report the firing to the client’s board of director.
may
