Unit 1 Flashcards
6th amendment
- in all criminal prosecutions
- the accused shall enjoy the right to a speedy and public trial
- by an impartial jury of the state and district where the crime was committed; the district shall have been previously ascertained by law
- and to be informed of the nature and cause of the accusation
- to be confronted by witnesses against him, to have a compulsory process for obtaining witnesses in his favor
- to have the assistance of counsel for his defense
7th amendment
- in suits at common law, where the value in controversy exceeds $20
- the right of trial by jury shall be preserved
- and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States
- then according to the rules of the common law
fundamental principle: confidentiality
confidentiality of information relating to representation
AC Privilege law: 24-5-501, 24-9-24, and 24-4-501
covers all conversations with attorneys’ staff even experts and agents that the attorneys hire - anything shared with those people as a part of legal advice
attorney-client privilege
work-product doctrine; law of evidence established in professional ethics
Duty to maintain confidentiality begins when?
even before formation of the A-C relationship when the client is simply perspective; applies to disclosure made by the client in the course of lawyer-assessing (sans agreement by attorney or payment)
Rule 1.6 and Rule 4-102
AC privilege; requirement of maintaining confidence of all information gained in the professional relationship with a client
Rule 1.6 (b)(1)
can report information to avoid or prevent harm or substantial financial loss as the result of criminal conduct;
(ii) to prevent serious injury or death not otherwise covered above
(iii) est. a claim or defense on behalf of the lawyer in controversy between the lawyer and the client
(iv) to secure legal advice about the lawyer’s compliance
(v) to. detect or resolve conflicts of interest arising from lawyers’ employment
barratry
criminal accountability for disbarred attorneys offering legal advice to clients despite disbarment
Only clients may _____ attorney-client privilege
waive; even death does not terminate the relationship
Swidler & Berlin v. United States 524 U.S. 399 (1998)
est the principle that attorney-client privilege extends after death
In re. Michael Eddings, 314 Ga. 209 (2022)
IF someone is represented by an attorney, AND IF you know this, THEN you as an attorney cannot attempt to contact or get information from that person without their attorney’s permission
failure to communicate:
effective communication as an attorney is more about listening and not talking; also understanding the emotions of the client
personal rapport
communication
a process of
; in face-to-face conversation, communication is 55 percent nonverbal, 38 percent vocal, and 7 percent words, according to researcher Albert Mehrabian
active listening
the practice of paying full attention to and absorbing what someone is saying to make the exchange between the listener and speaker productive and fulfilling; It is an attempt to demonstrate unconditional acceptance and unbiased reflection, according to researcher Harry Weger
7 active listening techniques
- focus on the intent and purpose of the conversation
- pay attention to body language
- give encouraging verbal cues
- clarify and paraphrase information
- ask questions
- refrain from judgment - remain neutral
- summarize, share, and reflect - if prompted give your thoughts
3 areas of interviewing:
- planning and preparation
- know your objectives
- research your client
- prepare your questions
- schedule the interview
concluding the interview - set aside time to contemplate the initial interview
Once the interview begins, 4 important tasks:
- build rapport
- demonstrate empathy
- clarify and probe
- after the interview write notes
What are the 7 lamps of advocacy?
1) honesty 2) courage 3) industry/work 4) wit 5) eloquence 6) judgment 7) professional fellowship
The McNaughton Rule:
presumption of sanity unless the defense proved at the time of the crime, the party was under such defect of reason that cannot understand 1) the nature and 2) the quality of the act
The DSM-5 does what?
used by clinicians and researchers to diagnose and classify mental disorders
Rule from Harper v. State 1982:
evidence based on a scientific principle or technique requires two things: 1) the validity of the techniques and their capability of producing reliable results 2) the person performing the test in an acceptable manner
The Daubert Rule:
whether the scientific, technical, or other specialized knowledge will assist the trier of fact to determine a fact at issue, a witness qualified by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise
behavioral science:
the study of human and animal behavior
mental health:
successful performance of mental functionality
Rule from Grace v. Hopper 1978
insanity is an affirmative defense that the accused must prove by a PREPONDERANCE of evidence
Rule from Lawrence v. State 1995:
IF at the time the criminal act was committed AND IF the accused could distinguish between right and wrong AND IF he can prove by a preponderance of evidence he suffered from delusional compulsion AND that this overmastered his will to resist committing a crime
general partnership:
all partners is referred ti all partners equally
LLC partnership:
depends on partnership agreements and are either GENERAL or LIMITED liability
LLP:
provides the same pass-through taxation without all of the formality of the corporation
Tiegreen v. State 2012:
the defendant alleging incompetence must prove by a preponderance of the evidence that he was not competent to stand trial
Rule from Cooper v. Oklahoma 1996:
a def. must have a sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding [preponderance of evidence]
Sole proprietorship:
a one-person business that is not registered with the state as a corporation or LLC
Common forms of layer costs are divided into three categories:
- hourly fees 2. flat rate fees 3. contingency fees
flat-fee billing:
a specified retainer amount for immigration, patents, wills, trademarks, bankruptcy and uncontested divorces
Estimating annual costs includes 3 things:
Salary, business expenses, and profit expectations
Attorney’s Fees Considerations
- time and labor, novelty and difficulty of Q’s involved
- the likelihood that acceptance of employment will preclude employ by another attorney
- fee customarily charged in the locality
- $ involved + results obtained
- time limitations imposed by client
- nature and length of the relationship
- experience, reputation, and ability of the lawyer(s)
A lawyer shall not enter into an arrangement for, charge, or collect:
1) any fee in a domestic relations matter, contingent on securing the dissolution or upon alimony
2) contingency fee for representing someone in a criminal case
Rule 4-101:
enforcement of Georgia Rules of Prof Conduct; authorized by the GA SC to hold a special hearing
Rule 6.2:
accepting appointments
Goal of discovery:
the fair resolution of legal disputes to remove the potential for secrecy and hiding material; to enable the parties to be fully prepared on issues and facts for the trial
Discovery is:
- issue formulation 2. factual revelation
Scope of discovery:
much broader than issues of admissability includes all matter relevant to the subject matter (9-11-26(b))
It is not grounds for objection (slide 4)
that info sought will be inadmissible at the trial
Georgia does not follow the Fed Rule limitation of _____ for the time taking of a deposition.
one seven-hour day
Depositions are often the first time you have:
a first impression of the defense
Why are admonitions done?
wiser to use them as a sword, rather than a shield; to prevent striking or misunderstandings at trial over lack of clarity
What kinds of objections are appropriate to raise in deposition?
vague, compound, lacks foundation objections, must be made in depos or are WAIVED
OR privacy or privilege
Stewart v. Colonial Western CL rule:
the only objections that can be made when you instruct a witness NOT to answer on privacy or privilege
challenge for cause