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78 Cards in this Set
- Front
- Back
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T or F in Utah you can sale your entire law practice or just an area of practice.
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True.
*Seller must cease to engage in the private practice of law, or the area sold. BUT can work for gov't or corporation. Can sale to more than one buyer. Written notice given to clients and right to retain other. Fee cannot be increased. Client consent if presumed if no objection w/in 90 days. |
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How can an out of state lawyer practice in Utah?
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MUST not be disbarred or suspended:
Pro hac vice - file a motion w/ the court to handle a specific case. Corporate house counsel - can give advice to corporation. On a temporary basis in association w/ a Utah lawyer who actively participates in a matter. On a temporary basis if reasonably related to potential proceeding and lawyer expects to be authorized to appear. (there is no case to file pro hac, but lawyer expects to be admitted, can provided services leading up to the time) On a temporary basis if the matter is reasonably related to and arises out of the lawyer's practice in a jurisdiction where the lawyer is admitted. |
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What can't an out of state lawyer do in Utah?
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You can't have an office in Utah.
You can't have a systematic and continuous presence in Utah. You can't hold yourself out as a Utah lawyer. |
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What is the unauthorized practice of law with paralegals.
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Lawyer must supervise and be aware with what is going on.
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Lawfirm names
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A lawfirm cannot have a FALSE and MISLEADING name.
TRADENAMES are generally permitted. If you pick a trade name you can't pick anyone that has a connection w/ a government agency. (legal center for the wrongfully accused - is okay) You can't falsely apply that persons are partners (using joint letterhead) You can't use name of lawyer holding public office if lawyer is not actively and regularly practicing w/ firm. |
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What is the situation with Utah Pro Bono work?
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In Utah Pro Bono service is NOT required. However, they hope you will do 50 hours per year. OR 10 dollars and hour for each hour under 50. We have VOLUNTARY reporting, most have MANDATORY which means you are not required to tell state bar how much you did.
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What is a restrictive covenant?
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Agreement not to practice after atty leaves a lawfirm. NOT permitted.
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Can a lawyer agree NOT to represent someone?
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No. (usually comes up as a settlement in PL case)
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Fees cannot be unreasonable. How do you know if a fee is unreasonable?
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1) Time spent on the case.
2) Time constraints placed on you by the client. 3) Skill and experience of a lawyer. 4) difficulty of issues 5) amount of money involved. 6) whether the case creates a conflict w/ other cases 7) fee customarily charged in the area. |
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How do know if expenses are reasonable
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Must be reasonably based on the actual charge.
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What is the deal with continguency fees in Utah?
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Not permitted in divorce, child custody, alimony, child support. (but can do it for PAST DUE support or alimony).
Not allowed in a criminal case. Not permitted in PIP claim. Must be in WRITING. (must state percentage before or after expenses are deducted, must state who is liable for expenses if no recovery, must be a written accounting at conclusion of the case, percentage must be reasonable. |
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If you are partners in the same firm, how can you divided fees.
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There are NO rules w/in a law firm.
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How can you divide fees among lawyers in different law firms?
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1) The total fee must be reasonable.
2) The fee is divided based on either the amount of work performed by each lawyer OR each lawyer assumes joint responsibility. 3) the client must agree to this arrangement, including share each will receive. Must be confirmed in WRITING and SIGNED by client. |
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How can you divide fees among non-lawyers?
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You CAN'T.
No partnerships w/ non-lawyers. No kickback or referral fees. |
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Can a lawyer create a professional corporation?
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Yes, but no non lawyer stockholders, directors, or officers.
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Can someone else pay for the client?
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Yes. Parent and insurance companies.
Client must give informed consent. Confidentiality must be protected. No interference w/ atty - client relationship or attorney's independent judgement. |
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Can you transfer a clients literary or media rights to lawyer prior to conclusion of representation?
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No. Don't want you to sensationalize the case.
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Business transactions between lawyer and client
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1) terms must be reasonable to client.
2) terms must be fully disclosed in writing. 3) client must be advised in writing of desireability to seek independent counsel and given reasonable opportunity to seek such counsel. 4) client must give informed consent in writing signed by client to essential terms of the transaction and lawyer's role in the transaction. |
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What is the rule for substantial gifts from client?
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You can't solicit them.
You can't prepare any instrument which gives a lawyer or anyone related to lawyer a substantial gift UNLESS the lawyer or gift recipient is RELATED (Broad - close family type relationship) |
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Can you give financial help to a client?
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No. Cannot pay clients bills or give them money or lend them money. EXCEPTIONS you can pay court costs and litigation expenses in contingency case. Also, can pay MINOR EXPENSES if client is indigent (basic telephone service and a bus pass for an indigent)
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Can you agree with a client that they will never sue for malpractice?
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No. It's unethical. Utah allows agreements to arbitrate.
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A lawyer who has been accused of malpractice...
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cannot settle with the client w/out advising client to get another lawyer and giving opportunity to do so.
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Can family members be opposing counsel?
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No. However, it does not disqualify the entire firm. But clients can waive this.
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Representing conflicting clients at the same time.
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A lawyer shall not represent a client if there is a CONCURRENT conflict of interest (directly adverse).
Or, if there is a significant risk to limit representation. Waiver: A lawyer must reasonably believe that he can handle it. Each affected client must give informed consent IN WRITING * you can't represent both in prenuptial agreement. Cannot waive. |
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Can you represent two or more clients on the same side of the same civil case?
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Probably. But a conflict can be created by a aggregate settlement offer. In this case, each client must give informed consent in writing and signed by client after full disclosure of claims and participation of others.
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Can you represent two or more clients on the same side of the same criminal case?
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No ineffective as a matter of law, but it's not wise. Can easily become conflicting.
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Conflict of interest w/ former clients.
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Prohibited if the same subject matter.
Prohibited if lawyer has confidential info about the former client relevant in the new case. |
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Conflict of interest in a corporate setting.
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A corporate lawyer's client is the corporation.
Cannot represent the employee if they are adverse. In shareholder derivative suit, cannot represent directors and corp. |
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Law firm disqualification
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Generally, if one lawyer has a conflict, the entire firm is disqualified.
If a conflict is caused by new lawyer joining the firm, the entire firm is not disqualified if the new lawyer is "screened from the case" The client must be notified in WRITING that this is going on. Family member as opposing counsel does NOT disqualify the entire lawfirm. If lawyer conflicting lawyer leaves the firm, can her old lawfirm handle the case? You look to see if anyone else has confidential information. |
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When can a lawyer disclose client information?
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Informed consent
MAY To prevent reasonably certain death or substantial bodily harm (not if already killed). MAY to prevent crime or fraud reasonably certain to lead to financial injury and client has used your services. MAY reveal to mitigate or rectify a substantial injury to financial injury or property of another. MAY disclose information reasonably necessary to DEFEND yourself. MAY to respond to allegations in any proceeding concerning the lawyer's representation of the client. (client has done nothing) MUST to comply w/ court order. (other than that Utah are all MAY disclose). |
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What is the implied authority exception to confidentiality?
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Disclosure to carry out the representation. Co-workers, insurance adjusters etc...
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What about when an attorney possesses or touches physical evidence?
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No confidentiality, you must turn it over to police.
What if you only view it, it's confidential. |
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Confidentiality and corporate lawyers
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authorized interviews w/ employees of corp are confidential, but lawyer must report to the board.
The board can waive confidentiality. (you must explain to the employee) |
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Confidentiality w/ prospective clients
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Owe a duty of confidentiality.
If lawyer received info from prospective client, it may cause a conflict so you loose business w/ a current client. Even if there is no valid client waiver, there entire lawfirm is not disqualified if the one that did the interview is screened from the case. A lawyer may use email to transmit confidential information. |
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Must a lawyer disclose legal authority controlling on the court?
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Yes, have to be known to the lawyer, the other side didn't bring it up, it must be controlling authority, you must disclose it.
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What are the lawyer perjury rules?
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If you know it's false, you cannot offer it.
If you has a reasonable belief, you have the OPTION. If client wants to commit perjury, try to persuade them not to do it or correct testimony if already given. If persuasion is ineffective, attempt to withdraw. IF withdrawal is not possible, make disclosure to the court to remedy the situation. *no difference between civil or criminal. *for many years in a criminal case they thought it violated right to assistance of counsel. But not true. *Duty exists only to the conclusion of proceeding. |
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What happens if criminal says "i did it", but V can't identify me. Can you cross the V?
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Yes, ethical to make P prove every element of the case.
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Can you pay a witness to testify at trial?
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No inducements to a fact witness.
An expert witness can be paid an expert witness fee, but not continguent on the outcome. All witnesses can be reimbursed for REASONABLE, ACTUAL expenses. (lost wages, travel) |
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Can you tell a witness not to talk to the other side?
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No. Unless client or relative/employee of client.
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Can a lawyer be a witness at a trial she is handling?
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No. Unless it's an uncontested matter.
Or unless you are testifying to the nature and value of legal services. Or if disqualification would cause substantial hardship. The lawfirm may only be disqualified if the testimony is against the client. You can't have a partner cross examine you. |
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Can a lawyer assert personal knowledge or opinion at trial?
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No. Not in closing or opening or anything.
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Communication w/ a judge.
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No. You can't bribe a judge. Make gifts to judges. Or have any ex parte communication. (talk about the case outside the hearing).
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Trial publicity
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No statements that will have a substantial likelihood of materially prejudicing the trail can be made.
You cannot talk to media about anything inadmissible at trial. |
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Competency
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You can only accept a case if you are competent. 1) experience 2) research ability 3) skill.
If you are not competent, you can associate w/ a lawyer who is and accept a case. |
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Can you give legal advice in an emergency?
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Yes, even if you are not competent you can give legal advice in an emergency.
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Lawyer funds
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Must be kept separate from client funds
You must have a client trust account. (you only need one) Advances for expenses and fees must be put in client trust account and you withdraw them only as they are earned and incurred. Lawyer can put in some of its own money to cover bank service charges. |
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When can a client fire the lawyer?
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Client has an absolute right.
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When must you withdraw from the case?
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MUST If physical or mental condition impairs ability to represent the client.
If continuing would violate PR rules. you MUST withdraw. If you are fired you MUST withdraw. MAY withdraw if no material adverse effect on client. MAY withdraw if client uses your services for crime or fraud. MAY withdraw if lawyer will suffer unreasonable financial burden. MAY withdraw if client has not paid your fee. MAY withdraw for any other good cause including fundamental disagreement. *must return any unearned fee. *must return file. *don't have to return research notes, internal memos, and unfiled pleadings. *unexecuted legal documents are NOT to be returned. |
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Who decides whether to accept a settlement?
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client
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Who decides whether to waive a jury file or to testify in a criminal case?
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client
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No contact rule (different in Utah)
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Lawyer cannot contact a person represented by another lawyer unless the other LAWYER consents.
Government lawyers are allowed to contact a represented person w/out permission if: imminent risk of death, bodily harm, or substantial property damage. OR communication is made at the time of arrest and the person voluntarily waives right to counsel. OR communication is initiated by represented person, and there has been a prior waiver of counsel. |
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What if an organization is an opposing party, what is the no contact rule?
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No contact with any member of the control group w/out lawyer's permission.
No contact w/ employees whose acts could be imputed to organization, w/out permission. |
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Limitations on communications with represented person (government lawyer rules)
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Never allowed to ask about privileged communications or litigation strategy.
Never allowed to induce a person to forego representation. Never allowed to engage in negotiations for plea, settlement, or immunity. *no contact rule does not apply to getting a second opinion. |
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How do you communicate with an unrepresented third person?
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You cannot act as if you are disinterested and you cannot give them any legal advice except get your own lawyer.
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What happens if a document is mistakenly sent to the other side?
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You shall promptly notify the sender.
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Advertisements
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No false or misleading communications.
No unjustified expectations. No unsubstantiated comparisons w/ other lawyers (misleading). Appropriate disclosures may preclude a finding that a statement is misleading. All ads must include name of at least one lawyer. |
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What are Utah's rules against direct contact
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Direct contact is: Face to face, Live telephone calls, emails, and email chat rooms.
Not allowed when motive is financial gain. Is permitted w/ other attorneys, family members, former clients, and close personal friends. Public interest organizations are allowed to have direct contact because motive is not financial. Every written communication from a lawyer to someone known to need a lawyer, must include ADVERTISING MATERIAL on the outside of the envelope and the BEGINNING of any electronic communication. |
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Claiming to be certified as a specialist.
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Can't claim to be certified unless actually certified by the ABA or state bar.
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Ethics compliance system at the firm
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Partners have a duty to have an ethics compliance system in place at the firm.
A supervising lawyer can be held liable for unethical conduct of others if supervisor ordered, ratified, or failed to take reasonable remedial action. Following directions is no excuse except if ethical issues was arguable, and resolution was reasonable. |
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You can be disciplined for many different reasons
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Violate any of the model rules.
For any false statement in application for admission. Failure to respond to a lawful demand for information. Any conduct involving dishonesty, fraud, deceit or misrepresentation. Criminal acts that reflect adversely on honesty, trustworthyness, or fitness. To state or imply your influence of gov. officials, or to knowingly assist a judge violate rule of judicial conduct. Any conduct prejudicial to the administration of justice. (catch-all - Utah says it includes bias prejudice based on race, sex, disability, age, or socioeconomic status WHILE representing a client). |
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Can lawyer engage in sexual relationships with clients?
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No. There is a rebuttable presumption that all sexual relations between atty and client is exploitive UNLESS the lawyer and the client are MARRIED or if there was an EXISTING SEXUAL RELATIONSHIP BEFORE ATTY CLIENT RELATIONSHIP.
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When should you turn other lawyers in?
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When a lawyer knows of another lawyers has violated a rule that raises a substantial question of honesty, trustworthiness, or fitness as a lawyer must report lawyer.
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Lawyer assistance programs
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You can't turn in a lawyer that goes to AA or the like.
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If a lawyer obtains confidential information
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Cannot use it for own benefit (?) or to disadvantage the client.
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How swiftly must a lawyer act?
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Must act w/ reasonable diligence and act to expedite the case
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How involved should a lawyer keep a client?
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reasonably informed.
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Misleading others
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A lawyer must not mislead a court or a third person
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Can a lawyer be a mediator?
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Sure. Can serve as a third party neutral but must explain that he is not the lawyer for any party.
Lawyer serving as a mediator may prepare documents memorializing agreement, but must recommend that parties get independent legal counsel before signing. Lawyer serving as |
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Standards of professionalism and civility.
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A lawyer shall not reflect any ill will that the clients have for each other.
Do not seek sanctions lightly. And do not attribute to counsel a position not taken. You must adhere to your agreements and not file false things with the court. When drafting court orders, they must reflect the courts order. Always try to arrange a mutually convenient time. |
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Can lawyer engage in sexual relationships with clients?
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No. There is a rebuttable presumption that all sexual relations between atty and client is exploitive UNLESS the lawyer and the client are MARRIED or if there was an EXISTING SEXUAL RELATIONSHIP BEFORE ATTY CLIENT RELATIONSHIP.
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When should you turn other lawyers in?
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When a lawyer knows of another lawyers has violated a rule that raises a substantial question of honesty, trustworthiness, or fitness as a lawyer must report lawyer.
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Lawyer assistance programs
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You can't turn in a lawyer that goes to AA or the like.
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If a lawyer obtains confidential information
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Cannot use it for own benefit (?) or to disadvantage the client.
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How swiftly must a lawyer act?
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Must act w/ reasonable diligence and act to expedite the case
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How involved should a lawyer keep a client?
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reasonably informed.
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Misleading others
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A lawyer must not mislead a court or a third person
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Can a lawyer be a mediator?
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Sure. Can serve as a third party neutral but must explain that he is not the lawyer for any party.
Lawyer serving as a mediator may prepare documents memorializing agreement, but must recommend that parties get independent legal counsel before signing. Lawyer serving as |
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Standards of professionalism and civility.
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A lawyer shall not reflect any ill will that the clients have for each other.
Do not seek sanctions lightly. And do not attribute to counsel a position not taken. You must adhere to your agreements and not file false things with the court. When drafting court orders, they must reflect the courts order. Always try to arrange a mutually convenient time. |
