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39 Cards in this Set
- Front
- Back
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8.4 – Misconduct – what constitutes professional misconduct?
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(a) violate or attempt to violate RPC, knowingly assist or induce another to do so, or do so through the acts of another.
(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects (c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation (d) engage in conduct prejudicial to the administration of justice (e) state or imply an ability to improperly influence a government agency or official or to achieve results by means that violate the RPC or other law (f) knowingly assist a judge or judicial official in conduct violating rules of judicial conduct or other law |
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1.5 – Fees – factors for reasonableness of a fee
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(1) time and labor required, novelty and difficulty of the questions involved, skills requisite to perform the legal service properly
(2) likelihood, if apparent to the client, that accepting the task will preclude other employment (3) fee customarily charged in the area for comparable work (4) amount involved and results obtained (5) time limitations imposed by client/circumstance (6) nature and length of professional relationship with the client (7) experience/reputation/ability of the lawyer (8) whether fee is fixed or contingent |
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1.5 – Fees – exceptions to when contingent fees are ok
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(1) criminal case
(2) domestic relations case where fee is contingent on securing a divorce, amount of alimony/support, or property settlement |
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1.5 – Fees – conditions under which contingent fees can be split
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if lawyers aren't in same firm:
(1) division is in proportion to each lawyer's services or each lawyer assumes joint responsibility (2) client is informed of the arrangement, and how much each lawyer will receive, and agreement is confirmed in writing (3) amount is reasonable |
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1.16(a) – Declining/Terminating Representation - when you can't represent
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(1) representing would result in a violation of RPC or other law
(2) lawyer's physical or mental condition materially impairs his ability to represent the client (3) lawyer is discharged |
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1.16(b) – Withdrawing from representation
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(1) withdrawal can be accomplished without material adverse effect on the interests of the client
(2) client persists in a course of action, involving lawyer's services, that lawyer believes is criminal or fraudulent (3) client has used lawyer's services to perpetuate a crime or fraud (4) client insists on taking action lawyer finds repugnant or with which lawyer has a fundamental disagreement (5) client fails to substantially fulfill an obligation to the lawyer regarding lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled (6) representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client (7) other good cause for withdrawal exists |
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6.2 – Accepting appointments (when you can avoid appointments)
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good cause:
(1) representing client is likely to result in a violation of RPC (2) representing client is likely to result in unreasonable financial burden on the lawyer (3) the client is so repugnant to the lawyer as to be likely to impair th client-lawyer relationship or lawyer's ability to represent |
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5.4 – Professional independence of a lawyer
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(a) can't share fees with nonlawyers, except
(1) following a lawyer's death, his firm or partners can pay the lawyer's estate, beneficiaries, for a reasonable period of time (2) same, where you've purchased firm of deceased, disabled, or disappeared lawyer (3) including nonlawyer employees in a compensation or retirement plan, even where it's based on a profit-sharing arrangement (4) sharing court-awarded legal fees with a nonprofit that retained the lawyer in the matter NOTE: (b) - can't form a *partnership* with nonlawyer if the partnership's activities include practice of law (c) can't let nonclient who recommends, employs, or pays lawyer for the client's services to direct the lawyer's judgment in rendering those services (d) can't practice with or for a professional corporation or law practice if: (1) a nonlawyer owns any interest therein (2) a nonlawyer is a corporate director or officer (3) a nonlawyer can direct or control the profesisonal judgment of the lawyer |
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3.2 – Expediting litigation
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Just know that there’s an affirmative duty to do so (consistent with the interests of the client)
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1.7 – Conflicts of Interest – Current Clients – generally
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(a) CoI exists if
(1) representation of one client will be directly adverse to the interests of another client (2) significant risk that representation of one or more clients will be materially limited by lawyer's duties to another client, a former client, or a third person or by personal interest of lawyer (b) CAN represent if (1) reasonable belief that lawyer can provide competent and diligent representation to each affected client (2) representation isn't prohibited by law (3) representation doesn't involve assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal (4) EACH AFFECTED CLIENT GIVES INFORMED, WRITTEN CONSENT |
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1.8(a) – Conflicts of Interest – Current Clients – Specific Rules – entering into biz w. client
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(a) only if
(1) the transaction is fair, reasonable, and clearly explained in writing (can reasonably be understood by client), (2) the lawyer advises the client in writing of the desirability of seeking, and gives the client a reasonable opportunity to seek, another lawyer's advice, and (3) the client in a signed writing gives informed consent to the transaction's essential terms and the lawyer's role in the transaction, including whether the lawyer is representing the client in the transaction. The same requirements apply when a lawyer "knowingly acquires an ownership, possessory security or other pecuniary interest adverse to a client." |
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1.8(b) - Conflicts of Interest - Current Clients - Specific Rules - using information from representation to client's disadvantage
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can't to it unless client gives informed consent, except as permitted or required by the RPC
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1.8(c) - Conflicts of Interest - Current Clients - Specific Rules - receiving substantial gifts, writing wills in which lawyer (or lawyer's relative) is beneficiary
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Can't do unless lawyer or recipient of gift is related to the client
(child, parent, grandparent, or other close, familial relationship) |
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1.8(d) - Conflicts of Interest - Current Clients - Specific Rules - literary/media rights
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Can't negotiate them prior to the conclusion of the relationship
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1.8(e) - Conflicts of Interest - Current Clients - Specific Rules - financial assistance to client
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Can't do unless
(1) advancing court costs and expenses of litigation, repayment of which is contingent on outcome (2) advancing court costs and litigation expenses for indigent client |
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1.8(f) - Conflicts of Interest - Current Clients - Specific Rules - someone other than client paying for services
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can't do unless
(1) client gives informed consent (2) no interference with lawyer's professional judgment or client-lawyer relationship (3) Rule 1.6 isn't violated |
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1.8(g) Conflicts of Interest - Current Clients - Specific Rules - aggregate settlements for multiple clients
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can't do unless
each client gives informed consent, in writing lawyer gives disclosure including existence and nature of all claims/pleas involved and participation of each person in the settlement |
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1.8(h) - Conflicts of Interest - Current Clients - Specific Rules - limiting malpractice liability
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can't do it on the front end unless
(1) client is independently represented in making the agreement can't do it on the back end (settling a claim) unless (1) client is represented or is advised in writing of desirability of seeking representation AND is given a reasonable opportunity to do so. |
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1.8(i) - Conflicts of Interest - Current Clients - Specific Rules - acquiring a proprietary stake in cause of action or subject matter of litigation
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can't do it unless
(1) acquiring a lien authorized by law to secure atty fees and/or expenses (2) contract for a reasonable contingent fee in a civil case |
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1.8(j) - no sex with clients
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unless consensual sexual relationship predates the lawyer-client relationship
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1.8(k) - lawyers in the same firm
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all of the conflicts of interest in 1.8(a)-(i) are imputed to lawyers within the same firm, so they're all prohibited, as well. (note: not the ban on sex, though)
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1.6 – when can a lawyer reveal confidential information (in scope of representation)?
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(a) can NOT unless client gives *informed consent*, disclosure is impliedly authorized in order to carry out representation or permitted by section (b)
(b) lawyer MAY, to extent *believes* *reasonably* *necessary* to (1) prevent reasonably certain death or substantial bodily harm (2) prevent client from committing crime or fraud reasonably certain to result in substantial injury to financial or property interests of another (and client has been using lawyer's services to do so) (3) to *prevent*, *mitigate*, or *rectify*, substantial injury to financial or property interests that's reasonably certain or has resulted from client's crime or fraud, in furtherance of which client has used lawyer's services (4) to secure legal advice about lawyer's compliance with RPC (5) to establish claim or defense on behalf of lawyer in controversy between lawyer and client; to establish civil or criminal defense for lawyer, stemming from conduct in which client was involved; to respond to allegations in any proceeding concerning the lawyer's representation of the client (6) to comply with a court order or other law |
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3.7 – Lawyer as witness
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Can't do it, unless
(1) testimony relates to an uncontested issue (2) relates to nature and value of legal services rendered in the case (3) disqualification of the lawyer would work substantial hardship on the client (b) a lawyer may act as advocate in a trial where another lawyer in the firm is going to be called as a witness (assuming no 1.7 or 1.9 disqualifications). |
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1.9 – Duties to Former Clients
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(a) can't represent new client in "same of substantially related matter," where new client's interests are materially adverse to old client's unless INFORMED, WRITTEN CONSENT.
(b) same goes, where the client was of a former firm and (1) former client's interests are materially adverse and (2) the lawyer has acquired information protected by 1.6 and 1.9(c) (3) unless informed, written consent (c) when you have (or some firm you're involved with has) information on a former client (1) can't use the information to disadvantage of former client, except as RPC permits, OR where info is generally known (2) use the information relating to the representation at all, except where the rules permit or require (seems redundant?) |
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1.10(a) – Imputation of Conflicts of Interest: General Rule – lawyer with conflict is with the firm
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can't do it, if 1.7 or 1.9 violation, unless
(1) prohibition is based on personal interest of the disqualified lawyer and does not present significant risk of materially limiting the representation of the client by the remaining lawyers in the firm. (2) prohibition is based on 1.9(a) or (b), and arises out of the disqualified lawyer's association with a prior firm and (i) the disqualified lawyer is timely screened from participation AND receives no portion of the fee (ii) written notice is given to any affected former client, to ascertain compliance with this rule (including description of screening procedures, statement of firm's and lawyer's compliance with RPC, statement that review may be available before a tribunal, agreement by the firm to respond promptly to written inquiries or objections about screening procedures AND (iii) certifications of compliance with RPC and screening procedures are provided to the former client by the lawyer and the firm, at reasonable intervals upon the former client's written request and upon termination of the screening procedures |
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1.10(b) – Imputation of Conflicts of Interest: General Rule – when lawyer leaves the firm
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if the lawyer was the only point of contact with the former client, firm CAN bring on a new client with materially adverse interests unless
(1) matter is the same or substantially related to that in which the formerly associated lawyer represented the former client (2) any lawyer remaining with the firm has information protected by 1.6 or 1.9(c) that is material to the matter |
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1.10(c) – Imputation of Conflicts of Interest: General Rule – overcoming the conflict
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Can be waived by the client, pursuant to conditions stated in rule 1.7(b)
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1.4 - Promptness
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lawyer must
(1) promptly inform client of decision or circumstance where client's informed consent is required (2) reasonably consult with client about means by which objectives are to be accomplished (3) keep client reasonably informed about the status of the matter (4) promptly comply with reasonable requests for information (5) consult about any relevant limitation on lawyer's conduct, where lawyer knows client expects assistance not permitted by RPC or other law (b) lawyer must make explanations to extent reasonably necessary to permit the client to make informed decisions regarding representation |
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3.3 – Candor Toward the Tribunal – what you do if you learn of falsity after the fact.
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(a)(3) – “reasonable remedial measures, including, if necessary, disclosure to the tribunal"
May refuse to offer evidence lawyer knows to be false (exception: testimony of defendant in crim trial) |
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3.8 - Special responsibilities of a prosecutor
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(a) no charges unsupported by probable cause
(b) reasonable effort that accused is aware of how to obtain counsel (c) don't seek waiver of important rights, where accused in unrepresented (d) timely disclosure to defense of all exculpatory evidence (except where relieved of this duty by tribunal) (e) not subpoena a lawyer to testify about client unless (1) not privileged, (2) essential evidence, and (3) no feasible alternative (f) reign in extrajudicial comments that might prejudice the accused (g)-(h) disclose exculpatory evidence discovered after the fact |
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4.2 – Communication with party represented by counsel
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Can’t do it, if you know they’re represented, unless [1] you have consent of the other party’s lawyer or [2] are allowed to do it by law or court order.
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4.3 – Dealing with an Unrepresented Person
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Can’t state or imply that you’re disinterested
Where you know/should know that person misunderstands your role, reasonable efforts to correct the misunderstanding No legal advice to the unrepresented person (beyond securing counsel), IF you know that this party’s interest may (or reasonably might) be in conflict with your client |
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3.5 – Impartiality and Decorum of the Tribunal – lawyers talking w jurors (note: also applies to judges)
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(b) can’t do it during the proceeding unless authorized by law or court order
(c) CAN do it after proceeding unless (1) prohibited by law or court order, (2) juror has made it known to lawyer that he/she has no desire to communicate, (3) communication involves lie or harassment |
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3.5 – Impartiality and Decorum of the Tribunal – not fucking shit up
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(a) can’t attempt to illegally influence judge, juror, prospective juror or official
(b)can’t engage in conduct intended to disrupt the tribunal |
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7.2 – Advertising – when a lawyer can give things of value to parties recommending that lawyer’s services
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(1) costs of advertising
(2) charges of a legal services plan or lawyer referral service (3) paying for a law practice, per 1.17 (4) referrals to other lawyers or professionals pursuant to an agreement that doesn't violate RPC and where (1) agreement is not exclusive and (2) client is informed of nature and existence of agreement |
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7.1 – Communication Concerning a Lawyer's Services
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generally: cannot be a false or misleading communication.
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7.5 – Firm Names & Letterheads
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generally, that this is ok. Some exceptions
if you've got multiple offices, need to identify each lawyer's jurisdictional limitations if lawyer holds public office, can't use his or her name where they're currently not actively and regularly practicing with the firm |
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7.4 – Communication of Fields of Practice and Specialization
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can only advertise it where you've *been* certified by appropriate state authority or accredited by ABA and name of certifying organization is clearly identified.
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8.3 – Reporting Professional Misconduct
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gives you some wiggle room. No affirmative duty where it doesn’t seem like the lawyer is a menace.
(a) *know* that other lawyer has violated RPC, creating *substantial* question of lawyer's honesty, trustworthiness, or fitness as a lawyer, then *shall* inform appropriate professional authority (b) same with judges (c) does not require disclosures otherwise protected by 1.6 or info obtained through lawyers assistance program like JLAP |
