Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
125 Cards in this Set
- Front
- Back
- 3rd side (hint)
|
What is Confidentiality?
|
duty not to voluntarily reveal "information relating to the representation" - 1.6
|
|
|
|
What does ACP require?
|
5Cs - Client, Communicates, Confidentially, w/ Counsel, to obtain Counsel
|
|
|
|
Who in a corporation is covered under ACP?
|
corporate officers, directors, or employees; regardless of rank; as long as 5Cs are met
|
|
|
|
How to Waive ACP?
|
1. If intentionally reveals privileged info, discovery, or doesnt object to Q seeking privileged info. 2. Cant selectively waive privilege. 3. Waiver can be accidental, test being if party took R-adequate steps to protect priveleged docs against disclosure
|
|
|
|
ACP Crime/Fraud exception?
|
If C uses L's services to commit crime or fraud, then communications are NOT priveleged. Dependent on C's intent, not L's knowledge. (doesnt incl when L is hired to defend past crime/fraud)
|
|
|
|
ACP - joint clients exception
|
They lose the privilege if they get into a dispute with each other; and lose it w/ regard to everyone else, also.
|
|
|
|
ACP - advice of counsel defense
|
C waives ACP with respect to the issue he says he was advised on
|
|
|
|
What is WP?
|
Info recorded by L, C, or L's agent in anticipation of litigation. It protects tangible things, not oral communications. WP has broader exceptions than ACP, and is weaker.
|
|
|
|
Exception when WP can be obtained?
|
Party seeking it has substantial need and undue hardship without it. Opinion WP, however, is virtually immune from discovery, but subject to waiver.
|
|
|
|
Secrecy protection for Physical Evidence?
|
Civil: no obligation to turn over unless auto disclosure under FRCP or formal request (CID, subpoena, discovery request). Still no firm obligation w/ these requests.
|
Criminal: Statutes, subpoenas, ethics(R3.4), and discovery requests may require disclosure, but still not reqd to provide info about the evidence, except where found and if altered.
|
|
|
What if a "stranger" is present during a conversation between C and L?
|
No privilege for that conversation.
|
|
|
|
What is a "stranger" w.r.t. ACP?
|
Someone who is neither the lawer or the client nor one of their agents.
|
|
|
|
Standard for Competence?
|
That of a competent general practitioner. Special knowledge reqd if you practice a specialty. Maintain w/ CLE
|
|
|
|
What Skills do lawyers need?
|
Basic LR, LW, w/ thoroughness and preparation
|
|
|
|
Competency in Emergency?
|
Do what is R-necessary under the circ and we dont hold you to competency standard
|
|
|
|
Diligence?
|
Be diligent and prompt
|
|
|
|
Communication reqm w/ C?
|
call C back, communicate promptly, inform C about their case
|
|
|
|
Tests for UPL?
|
Incidental test (layman can perform legal services incidental to established practices in his biz); simple-complex test (simple legal tasks, but not difficult/complex tasks); Legal skill and knowledge test (if only ord. biz intelligence reqd, not if skill is peculiar to one trained/experienced in law)
|
|
|
|
What can non-lawyers do?
|
mediate, arbitrate, labor negotiations, lobbyist, courthouse facillitator. L can't help non-L engage in UPL
|
|
|
|
Rationale for UPL rules?
|
Protect the public and our own jobs. Only want ppl trained in AL law practicing AL law. But globalization requires mobility
|
|
|
|
Rules for practicing in unlicensed jurisdiction?
|
Can: advised non-L who proceeds pro se.
CANNOT: make an office; continued/systematic presence; advertise to public that you are licensed there |
|
|
|
Can you practice temporarily in unlicensed jurisdiction?
|
Yes, and could be temporary even if recurring or extended time.
1. Associate with local counsel 2. Pro hac vice (court's premission to appear) 3. Alt Dispute Res if R-relates to representation in juris you are licensed in. (juris may require p.h.v.) 4. in-house counsel 5. if law allows it comment (can do preliminary things if R-expect to get p.h.v.; subordinate lawyer can help p.h.v. L out; Katrina rule; may have to submit to juris' regs and CLE if presence is established) |
|
|
|
Whose law applies when practicing out of jurisdiction?
|
The law of the juris where conduct occurred. BUT, either L's home juris or visiting juris can sanction L.
|
|
|
|
What constitutes misconduct?
|
violation of these rules; criminal acts reflecting adversely on fitness as a L or honesty; dishonest, fraud, misrepresentation; conduct prejudicial to admin of justice; bribing; assist judge in violative conduct
|
|
|
|
Who is a client?
|
Person who reasonably believes she is your client.
|
|
|
|
How can you protect yourself from misunderstanding of client status?
|
disengagement letter: telling C relationship is over
non-engagement letter: telling person you are not taking their case |
|
|
|
When can you reveal info about a client w/o exception?
|
1. If C gives informed consent (C understands implications of disclosure and alternatives to it)
2. If asking other ppl in your firm (unless C says no) (ask in terms of a hypothetical) 3. Implied authorization (in order to carry out representation) |
|
|
|
When MAY you reveal info about a client (exceptions)?
|
1. to prevent death or SBH
2. to prevent or stop crime/fraud when C is using L to perpetuate it. 3. to prevent or mitigate harm to financial interests R-certain to result from C's commission of crime where C used L 4. to secure legal advice so you can follow Rules of Ethics 5. Lawyer Self Defense 6. to comply with other law or court order 7. when the info is generally known |
|
|
|
How can you not use generally known knowledge?
|
To your advantage
|
|
|
|
To what extent may you disclose info for self-defense and what are the 3 situations?
|
only to the extent necessary
malpractice cases against you; when you are defending yourself in a civil/criminal case; in any proceeding concerning your reputation |
|
|
|
When MUST you disclose confidential information?
|
1. False evidence offered to the court by your C or W (take remedial meaures)
2. Criminal or fraudulent conduct related to proceedings before the court BY ANYONE (covers past, present, and future crimes) |
|
|
|
Who can raise ACP?
|
C, L, or sua sponte
|
|
|
|
When do you have to disclose C's identity?
|
Generally, it is not privileged. You only must disclose it when a crime is continuing to be committed. Balancing test: some guilty may go free
|
|
|
|
Does the privelege apply when C dies?
|
Balancing test: harm to dead guy in disclosing v. need for info
|
|
|
|
Explain ACP for an organization?
|
If L KNOWS that officer, employer, person associated with Organization, acts or intends to act in matter related to the representation that is violation of legal obligation to org (or violation of law that R-may be imputed to org), and that is likely to result in substantial injury to the org, then L shall proceed as R-necessary in best interest of org, and if necessary, shall work his way up the ladder.
|
|
|
|
What if working up the ladder doesnt work for an organization?
|
Despite efforts to work up ladder, if highest authority fails to act or acts in violation of law, AND L believes violation is R-certain to result in substantial injury to the org, then L MAY reveal info relating to representation, regardless of 1.6 (This doesnt apply if L is hired to investigate violations w/in the org)
|
|
|
|
What does L do if he believes he was fired for disclosing things in an organization?
|
He should inform the higher-ups.
|
|
|
|
Who is protected by ACP in an organization?
|
Control Group Test: does the person you are talking to have control to make important decisions about the org?
Subject-matter test: is the matter w/in the realm of possibility for the lawyer to go and ask questions in order to give the client (entity) advice? |
|
|
|
Are facts discussed by a Witness to a Lawyer privileged?
|
No, talking about them with a lawyer doesnt make them privileged, however, advice given to C/W is privileged.
|
|
|
|
Is representation info privileged if not within employee's scope of duty?
|
The lawyer is representing the employee, not the organization.
|
|
|
|
Is expert info WP?
|
Trial Expert: you can get their stuff
Consultant Expert: hard to get their stuff |
|
|
|
What are consequences of destruction of evidence?
|
adverse inference charge to jury, fines, attny fees, etc.
Rationale: punitive, remedial, and deterrent function Try to preserve evidence if you know litigation is impending |
|
|
|
Explain documents and ACP?
|
Unless the doc meets 5 Cs, it isnt confidential just because given to L.
|
|
|
|
Must the lawyer assert ACP?
|
He is obligated to do so b/c of reqm to zealously represent client.
|
|
|
|
ACP: communications vs. facts
|
Only what the C said or wrote to L is priveleged. What C knew or did is NOT priveleged.
|
|
|
|
What are the 13 exceptions to Duty of Confidentiality?
|
1. Clients IC
2. Implied Authority 3. Preventing R-certain death or bodily harm 4 & 5. Preventing C from committing crime/fraud R-certain to injure financial interests or property of another where C has used L's services in furtherance of. Also to mitigate or rectify injury that has already occurred or that will occur 6. Obtain legal advice about L's own compliance with ethical rules. 7. Self-defense 8. Complying with other law 9. Complying with court order 10. Dealing with info that has become generally known after representation has ended 11. Dealing with false evidence that has been offered to a tribunal 12. When L knows of crime/fraud conduct related to proceeding before a tribunal 13. (C is Organization). Dealing with a clear violation of law to prevent subst. injury to the organization |
|
|
|
What are the 3 exceptions and 4 waivers to ACP?
|
1. testamentary exception
2. crime-fraud exception 3. deceased client exception 4. Waiver by disclosure 5. Waiver by failure object 6. Waiver by attacking a lawyer's work 7. Waiver by putting the advice of counsel at issue |
|
|
|
Explain Principles of adversary system
|
L should defend C zealously w/in bounds of the law. Represent the guilty, as in Zenger (printer criticizing gov). Frankel says our system is based more on due process rather than truth.
|
|
|
|
Reqms before bringing a claim?
|
Must be meritorious and nonfrivolous in law or fact. Good faith effort can be made to change the law.
(frivilous when L cannot make good faith argument on merits) Criminal: defend and require EVERY element be proven. |
|
|
|
Expediting litigation?
|
L must make R-efforts to expedite ligitation. Dilatory practices (those which R-L would say has no subst. purpose other than delay) are not proper.
|
|
|
|
Lawyer should be an advisor. What considerations other than law can he use?
|
moral, economic, political factors
|
|
|
|
When can a L avoid an appointment?
|
1. When representing would violate these rules (incompetence)
2. When representing would be unR- financial burden 3. When C or cause is so repugnant, would impair A/C relationship |
|
|
|
What must we balance in negotiations?
|
winner takes all v. fairness to everyone
|
|
|
|
What is required in truthfulness in statements to others?
|
1. L can't knowingly make a false statement of MATERIAL law or fact (but what is material)
2. L can't fail to disclose material fact when disclosure is necessary to avoid assisting crime/fraud by client |
|
|
|
What is the rationale behind the No Contact Rule?
|
We dont want to undermine the A/C relationship: might waive ACP, C might admit liability, generally messes with A/C relationship
|
|
|
|
What is L's responsibility when dealing with unrepresented party?
|
-dont state or imply that you are disinterested when acting on behalf of a client
-make R-efforts to clarify your role -L can't give advice other than to seek counsel if L knows interests may be in conflict |
|
|
|
Candor toward the court?
|
THESE DUTIES TRUMP 1.6
-dont make false statement or fail to correct material false statement -dont fail to disclose legal authority in juris known to lawyer that is directly adverse to their position and not known to opposing counsel -dont offer evidence that L KNOWS is false (must take R-remedial measures) -L MAY refuse to offer evidence he R-believes is false (except crim D testifying) -L's have a duty to protect the integrity of the court |
|
|
|
What is L's duty of candor in ex parte?
|
Disclose all facts known to you, even if adverse.
|
|
|
|
When do you tattle on a witness for being untruthful?
|
ONLY if you KNOW beyond a R-doubt that they are lying.
|
|
|
|
How does L protect himself if he believes criminal client plans to lie on the stand?
|
-tell judge C is testifying against your counsel
-try to keep C off the stand -tell C it is a bad idea to lie -ask only Qs that will not elicit false testimony -move to withdraw counsel |
|
|
|
When is withdrawal mandatory and when is it optional?
|
Mandatory- when representation violates these rules; L's physical or mental condition impairs his ability; when lawyer is fired.
Optional- if you can withdraw w/o materially hurting C; C proceeds in course of action that L thinks is crime/fraud; C uses L's services for crime/fraud; C wants to take action L thinks is repugnant; C fails to pay fees and L gives warning; L will suffer unR- financial burden; C makes representation unR- difficult |
|
|
|
What must you do to protect C's interest after quitting?
|
-give notice to C
-allow C to get new representation -give papers and property back to C -refund advanced pmt of legal fees |
|
|
|
Who is ultimate authority with in allocation of power?
|
Client
|
|
|
|
Can L limit scope of representation?
|
Yes, if he has IC and the limitation is reasonable.
|
|
|
|
Allocation of power when C has diminished capacity?
|
-L should try to maintain normal A/C relationship
-If C is at risk of harm, L should consult ppl or try to get guardian appointed, but can reveal only info necessary to protect C. -Dont disclose diminished capacity if to disadvantage of client - In emergency, L can take action on behalf of C |
|
|
|
Can L counsel C to commit crime/fraud?
|
No, but L can counsel C on potential consequences of proposed conduct.
|
|
|
|
What is a concurrent conflict?
|
Conflict b/twn current client and some other person/interest (current client, non-client, L's own interest) when L cannot give 100% loyalty to current client.
|
|
|
|
When can you oppose a client?
|
NEVER, in any matter, w/o client's consent
|
|
|
|
What is a successive conflict?
|
Conflict b/twn current client and former client
|
|
|
|
When can you oppose a former client?
|
as long as matter L is working on now is NOT substantially related to matter worked on for former client
|
|
|
|
What is the TEST for current vs. former client?
|
A person is a current client if he R-believes he is a current client. (so you need to write a dis-engagement letter)
|
|
|
|
No Contact Rule: when can L communicate with represented C?
|
Only when:
-C's lawyer consents (depositions); or -it is authorized by law or court C's personal consent is irrelevant. |
|
|
|
No Contact Rule: Criminal
|
Prosecutor can communicate with C before indictment, as long as prosecutor doesn't engage in egregious conduct.
|
|
|
|
No Contact Rule: Corporations
|
Generally applies management level employees and sometimes lower-level employees. Rarely applies to former employees (but L can't induce or listen to testimony subject to Corp's ACP and must abide by 4.3-unrepresented persons).
|
|
|
|
Successive Conflict: When is a matter substantially related?
|
3 tests:
-same transaction or legal dispute -same object but different claims -nature of prior relationship When you would normally have been expected to learn confidential info about your former client in the course of the former representation that could be used against the former client on behalf of the current client. |
|
|
|
Concurrent Conflict: Direct Adversity Conflict - can you represent both sides?
|
Litigation: You cannot represent both sides of the same litigation
Transactions: You can handle both sides if you get consent (no per se rule) |
|
|
|
Concurrent Conflict: Materially Limiting Conflict - What is it?
|
When there is a significant risk that your judgement on behalf of one client will be limited by competing loyalties to: other current client, former client, third party, personal interests
|
|
|
|
When can you continue with Conflicting Representation?
|
Must meet ALL 4 prongs:
-must R-believe you can provide competent (can use everything at your disposal for your client) and diligent representation to each client -Representation must not be prohibited by law -You can't handle both sides of same litigation -Each C must give IC in writing. |
|
|
|
What does L do when can't meet prongs to continue Conflicting Representation?
|
L MUST withdraw or reject representation
|
|
|
|
What are the 3 levels of conflict?
|
Immaterial - trivial, don't have to disclose
Consentable - conflicts tath can be waived Non-consentable - conflict so severe/inherently dangerous that cannot be cured or avoided, even w/ consent |
|
|
|
Explain difference b/twn personal and vicarious conflicts.
|
Personal: L's OWN interests are at odds with C's interests. These are NOT imputed to the firm.
Vicarious: Conflicts imputed to the firm. Screen Test- law firm may avoid disqualification by building a screen between DQ'd L and rest of firm |
|
|
|
How do you get IC from a client?
|
Get consent in writing after telling all info C would find important in deciding whether to retain you.
-any existing or potential conflicts that might limit you to represent zealously -likelihood conflict might grow to point where you must withdraw -what damage will happen to C if you withdraw |
|
|
|
What are the 8 events that can trigger conflicts?
|
NEW: clients, matters, parties, issues, attorneys, relationships, witnesses
and need for L's testimony |
|
|
|
What are the consequences of conflicts?
|
To L or firm: disqualification, discipline, dollars
To Client: deprived of L familiar with case, delayed proceeding, must pay new lawyer fees to become familiar To justice system: delays |
|
|
|
When is a conflict consentable?
|
1.7 - When L R-believes he can provide competent and diligent representation to each affected client.
|
|
|
|
When can Conflict be imputed?
|
(only applies to former clients) It is imputed when any L in the firm couldn't represent the client if practicing alone.
Exceptions: -if conflict is personal and wont limit representation by other Ls -if conflict is from L's work at old firm and L is timely screened and doesn't get part of the fee; written notice is given to any affected former client; certs of compliance are |
|
|
|
What are the characteristics of an effective screen?
|
-DQ'd L cannot discuss case with other Ls
-Firm should send out firm-wide memo and keep case files under lock, away from DQ'd L -Screen ASAP when conflict is apparent |
|
|
|
Can L simultaneously represent C's in unrelated matters when their interests are only economically adverse?
|
Yes. Ex: If you represent both McD and BK, you can sue someone else w/o getting McD's consent. Or you could help BK get more franchises.
|
|
|
|
Is mediation a proceeding before a tribunal?
|
No, but you still must be able to represent both sides competently and diligently.
|
|
|
|
Can you get consent to represent adverse parties in the future?
|
If general and open-ended, Cts are unlikely to enforce it, unless client is R-informed and sophisticated
|
|
|
|
Explain a positional conflict?
|
If your position in one case could create precedent that could seriously weaken another case, a conflict exists. Dependent on jurisdiction, procedural or substantive, etc.
|
|
|
|
Who is your client when you represent an estate?
|
Regardless, clear it up from the beginning.
|
|
|
|
If a husband and wife make a will together, what does L do if wife wants to make a different will?
|
L must tell the husband.
|
|
|
|
Is there privilege when L represents a corporation and is on the board?
|
When you are sitting on the board, some things you say may not be privileged.
|
|
|
|
Can L enter into biz transactions with a current C?
|
NO, UNLESS:
-transaction/terms are fair, R-, and written so C can understand (doesnt apply when L buys something C is in the biz of selling) -advise C, in writing, to get a lawyer -C must give IC in writing and state whether you are representing them in the transaction |
|
|
|
Can L use info about C and the representation?
|
Yes, as long as it isn't to C's detriment.
Yes, even if to C's detriment if: -1.6b or 3.3 require -generally known (matter of public record) |
|
|
|
Can L receive gifts from C?
|
No, not even testamentary unless related.
|
|
|
|
Can L negotiate for media rights to the representation of C?
|
Not before representation ends. (we don't want L to act differently just to make a good story)
|
|
|
|
Can L give financial assistance to C?
|
No, UNLESS:
-you are advancing court costs, legal fees on contingent basis -you can pay court costs and litigation expenses for indigent C |
|
|
|
Can L accept compensation for representation from someone other than C?
|
NO, not w/o C's IC, no interference with L's independence, and info about C is protected by 1.6
|
|
|
|
How does L accept aggregate settlements?
|
Each C must give IC in writing.
|
|
|
|
Can L acquire property interest in a cause of action?
|
NO, UNLESS:
-lien to secure fee -K w/ C for contingency fees |
|
|
|
Can L sex C?
|
NO, UNLESS:
-they were doing it before A/C relationship |
|
|
|
Can L ever represent C adverse to a former C in a substantially related matter?
|
Yes.
Rebuttable presumption: if the firm represented old C, but L can prove that he got no confidential info, by showing the info was locked away -IC in writing -NOT if L personally worked for former C on subst related matter (irrebuttable presumptiion) |
|
|
|
What are the perils of preliminary interviews?
|
L must get enough info from C to determine whether to take the case. They are current clients during the interview, but former Cs if you reject them and you cannot sue them in subst related matter UNLESS C has no R-expectation of representation from L
|
|
|
|
What is a phantom client?
|
Person who might R- conclude that they are your client, such as trade association members, co-parties, trust fund issues
|
|
|
|
What care should you use when dealing with unrepresented people?
|
Don't give them advice that could make them think you are their L. Give a disclaimer.
|
|
|
|
Give some examples of people that are never Cs, b/c unR- for them to think they are.
|
-corporate officers/directors when L is representing the corp
-parents, when child is the C -3rd party paying legal fees when they are not the C |
|
|
|
What is a prospective client?
|
a person who talks with a L about the possibility of forming an A-C relationship
|
|
|
|
What are L's duties to a Prospective Client?
|
Even if no A-C relationship forms
-L must not disclose info except if generally known (1.9) or other exceptions (1.6, 3.3) -L can't represent materially adverse C if L has info harmful to the prospective C |
|
|
|
What steps must be taken to allow firm to take a case when L has received disqualifying info from prospective client?
|
Both prospective C and affected C must give IC
OR L took measure to avoid exposing the info, DQ'd lawyer is screened, and written notice given to prospective C |
|
|
|
When does a current client become a former client?
|
-express statement of termination by L or C
-lapse of time -acts inconsistent with continuation of relationship (complaining to bar) |
|
|
|
What are the requirements for an advertisement by L?
|
-cant be misleading
-must be true -can't guarantee results |
|
|
|
When is a communication (advertisement) false or misleading?
|
-it contains material misrep of fact or law OR
-it omits a fact necessary to make the statement considered as a whole not materially misleading |
|
|
|
Can you use an illustration or re-enactment in an ad?
|
Yes, as long as you say its a re-enactment
|
|
|
|
When can you solicit employment by C in real person or real time communication?
|
-it is a laywer
-C has family, close person, or prior professional relationship with you -otherwise not protected by 1st |
|
|
|
When can you NOT solicit employment by C in written, record, phone, realtime?
|
-Prospective C says not to bug him
-Your solicitation involves coercion, duress, harassment |
|
|
|
What must EVERY written/electronic advertising communication have on it?
|
"advertising material"
|
|
|
|
When can L advertise as a specialist?
|
If L is certified as a specialist by accredited/approved organization
-L must state name of certifying org |
|
|
|
How much of the fee is a L entitled to in fee division?
|
only an amt proportional to services worked
|
|
|
|
Fees must be Reasonable. What factors?
|
-time and labor reqd
-novelty and difficulty of the Qs involved -skill needed to perform the services properly -customary fee in same locality with similar services -amt involved and results obtained -experience, reputation, ability of L -whether fee is fixed or contingent |
|
|
|
What is the responsibility of those with managerial power in a firm?
|
(5.1) SHALL make efforts to ensure that firm has measures to ensure all Ls in firm conform to ethical rules.
Responsible for other L violating a rule if: -you order or ratify the conduct OR -you are a partner and know of counduct when its consequences can be avoided or mitigated by fail to take remedial action |
|
|
|
What is the responsibility of a subordinate lawyer in a firm?
|
(5.2) L is bound by the rules even if just following orders
-BUT, you do not violate the rules if you follow boss's R-resolution for an arguable question of profession duty |
|
|
|
When MUST you tattle?
|
(8.3) When you KNOW other L (or judge) has vioalted the rules that raises a Q to L's honesty, trustworthiness, or fitness. Inform appropriate professional authority.
|
|
|
|
What is the procedure for tattling on misconduct of another?
|
-You must KNOW (R-lawyer in circ would form firm belief that the conduct in Q had more likely than not occured)
-Report promptly -Report to the appropriate authority |
|
