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89 Cards in this Set
- Front
- Back
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Becoming a lawyer.
Moral fitness: |
Test - "must have a rational connection with the applicant’s fitness or capacity to practice law."
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Information from applicant
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it is an ethical violation for an applicant to knowingly lie or fail to disclose on bar application
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Recommendation for admission to bar by lawyer
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lawyer who writes letter of recommendation must have good faith belief that applicant qualified to practice law
duty of confidentiality does apply |
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Misconduct subjecting lawyer to discipline
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less than criminal activity
(a) Crimes of dishonesty and moral turpitude. (b) Conduct involving dishonesty, fraud, deceit or misrepresentation. (c) Violation of Rules of PR. |
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Disciplined for acts outside of state?
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Yes
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Lawyer's responsibility for acts of others.
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If someone under Lawyer's supervision violates Rules of PR or engages in conduct subject to discipline, you are subject to discipline if you order the conduct
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Lawyer's duty to supervise
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Lawyer must act reasonably to ensure that those under her authority act ethically
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Advertising/Solicitation
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general rule – lawyer can advertise, but can’t solicit clients
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ADvertising
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A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services
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Disclaimer in ad
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If the ad is accurate and a disclaimer renders ad not misleading, OK
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Comparing lawyer’s services or fees in ad
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Not OK unless comparison can be factually substantiated
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Firm names.
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Can not claim or appear to be a partnership unless really are.
Can use a trade name so long as use is not misleading Specialist. (if certified as such by jurisdiction – clear in advertising as to who certified) Can state emphasis or limitations to subject matter of practice, but can’t call self expert or specialist unless certified Admitted elsewhere.- must be indicated by firm with multiple offices |
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Retain copies of advertising
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2 years
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Client by name in Ad
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OK if attorney/firm regularly represemts client and client consents
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Paying for referrals.
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Lawyer is not to give anything of value to another person for recommending the lawyer’s services.
(except can pay for advertising and can pay cost of a not-for-profit lawyer referral service) |
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Solicitation: Distinction between 2 classes of solicitation
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(a) in-person, live telephone, or real-time electronic contact with a prospective client. (exception - family members, business associates, former clients)
and (b) written, recorded, or electronic communications to prospective clients known to need legal services |
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in-person, live telephone, or real-time electronic contact with a prospective client. (exception - family members, business associates, former clients)
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Must be objective of pecuniary gain to lawyer for solicitation to be subject to discipline
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Other prohibitions on contacts with potential clients
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Can’t communicate with prospective clients who has made known not to want communication
Can’t solicit if involves coercion, harassment or duress |
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written, recorded, or electronic communications to prospective clients known to need legal services
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must state “advertising material” on the outside of the envelope or at beginning and end of communication
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mass mailings
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don’t need phrase "advertising material" because not all known to need legal services (not solicitation)
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Solicitation by 3rd parties
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Attorney subject to discipline if solicitation in person and primary purpose is financial gain of the attorney and directed by the attorney
-Motives of third party irrelevant -3rd party not acting at attorney’s direction, not solicitation |
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Attorney not initially competent may only:
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(i) Decline representation or withdraw during representation;
(ii) Make self competent without unreasonable delay or unreasonable expense to client (iii) Associate w/ competent counsel. (remember emergency exception) |
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Attorney not initially competent - may client consent to representation
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No
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Attorney not initially competent in emergency situation
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Attorney without competence can represent only to the extent of the emergency situation
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Attorney ability to limit civil liability for acting without competence
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only if jurisdiction permits, client consents and client represented by independent counsel
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Attorney bringing nonmeritorious claim (FRCP)
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Rule if an attorney knowingly advocates a non-meritorious claim or if an attorney continues to pursue a claim after discovering that it is non-meritorious, then the attorney faces the possibility of litigation sanctions (if w/in 21 days of motion for sanction, attorney charged with violation either withdraws claim or changes it so that claim is no longer non-meritorious, attorney will not be sanctioned.)
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Possible sanctions for attorney bringing nonmeritorious claims
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payments to court or opposing counsel
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Attorney fails to comply with discovery requests
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Rule - if one party seeks discovery and the other party fails to comply then the party seeking discovery can go to court to obtain a court order compelling the non-complying attorney to comply. If the non-complying attorney still fails to comply, sanctions may be imposed.
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Reasonableness of fees
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Fee must be reasonable.
Reasonable if it not clearly excessive to an ordinary prudent attorney in the area |
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Factors for reasonableness of fees
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1. time and labor involved
2. skill of attorney 3. amount of claim and results obtained 4. results sought 5. time taken from other clients 6. customary fee charged in area for similar work 7. time constraints imposed by client or circumstances 8. length and nature of professional relationship w/ client 9. whether fee is contingent or fixed |
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Fee Splitting with Attorneys outside firm allowed only if:
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the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation;
(2) the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing; and (3) the total fee is reasonable. |
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Contingent Fees prohibited in
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criminal cases or
matrimonial cases where fee contingent on a. securing of divorce, b. amount of alimony, or support or c. depends on amount of any property settlement in lieu of alimony or support |
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Writing as to fee arrangement necessary for
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Contingent Fees
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Client funds/property must be
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identified
kept safe (secure the property in a safe place, safe deposit, client trust fund account) kept separate - CAN’T COMINGLE ATTORNEY MONEY AND CLIENT’S MONEY. |
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Receipt of client money (i.e. settlement funds)
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notify client promptly and pay to client promptly
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Record-keeping re: client trust fund account
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Keep records for 5 years after representation ends
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Retainer
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non-refundable compensation for taking a case. Goes directly to attorney (if not clear whether retainer or advance, treat as advance fee)
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Advance fees
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payment applied to legal fees incurred – prepayment
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Conflicts of interest between the client and Lawyer
General Rule |
Adverse interests between attorney and client, attorney can’t represent client
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When is representation OK where adverse interest between attorney and client?
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1. Lawyer reasonably believes will be able to provide competent and diligent representation.
2. Client gives informed consent after consultation with outside counsel 3. Not prohibited by law. |
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Financial dealings between attorney and client (other than standard commercial transaction)
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OK if:
• Transaction objectively fair and reasonable. • Client informed in writing of terms of transaction in language client understands. • Client given opportunity to seek advice of independent counsel. • Informed consent in writing |
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Can Attorney acquire interest in book or media rights relating to representation?
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NO
Attorney may not acquire interest in book or media rights during representation. Attorney then has economic interest. 1. can acquire interest after representation (after appeal) 2. can get share of rights if subject of representation is book or media rights |
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Can attorney give client financial assistance?
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– generally NO, but can pay costs of litigation on behalf of indigent client
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Can attorney advance costs of litigation?
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Attorney can advance costs of litigation to any client if client agrees to repay costs. Promise to repay can be contingent and can be waived
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When can lawyer be a witness?
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– only if lawyer is a necessary witness (only person who can introduce evidence), or
1. also as to an uncontested matter (date of document signing) 2. if testimony involves nature or value of attorney’s legal services 3. if excluding lawyer as witness would impose substantial hardship to client |
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Conflict between current Clients
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Absent consent, a lawyer may not act as an advocate in one matter against a person the lawyer represents in some other matter, even when the matters are wholly unrelated.
General rule – A lawyer must not represent a client if that representation would be directly adverse to the interests of another client or be materially limited by the responsibilities owed to another client 1. unless lawyer reasonably believes representation will not be adversely affected, and 2. all affected clients consent after disclosure, 3. not otherwise prohibited by law includes transactional clients |
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conflict with former clients
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lawyer's duties of loyalty and independence may be materially limited by responsibilities to former clients under Rule 1.9 or by the lawyer's responsibilities to other persons, such as fiduciary duties arising from a lawyer's service as a trustee, executor or corporate director.
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Representation of parties to same lawsuit
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Can't represent opponents
Model Rules recommend against representing co-defendants or co-parties |
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Settlement where attorney represents co-parties
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to accept the settlement, must
i. disclose to each client nature and extent of all claims and the nature of each client’s participation in the settlement and ii. each client must consent |
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Clients in unrelated lawsuits
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General rule – can’t act as advocate against client in unrelated matter, and therefore should decline representation
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Large organization where client represents only part
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a. Must reasonably believe that representation will not be adversely affected by other representation
b. After full disclosure, all clients must consent, confirmed in writing c.Not prohibited by law |
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Multiple clients in business transactions
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Lawyer can represent clients in business transaction (not litigation) whose interests are potentially adverse, but attorney must guard against potential conflicts, considering
1. lawyer’s prior relationship with clients 2. the functions being performed by the lawyer 3. the likelihood that disagreements will arise 4. the extent of prejudice likely to occur |
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unconsentable conflict
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client consent will not work if a disinterested attorney would find conflict so severe that the client cannot consent – attorney must decline representation
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May a lawyer related to another lawyer, e.g., as parent, child, sibling or spouse represent a client in a matter where that lawyer is representing another party?
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NO, a lawyer related to another lawyer ordinarily may not represent a client in a matter where that lawyer is representing another party, unless each client gives informed consent.
The disqualification arising from a close family relationship is personal and ordinarily is not imputed to members of firms with whom the lawyers are associated. |
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Sexual relationship with client
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Not allowed unless predated attorney/client relationship
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informed consent for conflict purposes
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a writing showing consent may consist of a document executed by the client or one that the lawyer promptly records and transmits to the client following an oral consent
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can client consent to future conflict?
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client must understand nature of potential conflict and have agreed to waive specific conflict
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May a lawyer may take inconsistent legal positions in different tribunals at different times on behalf of different clients?
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Although, advocating a legal position on behalf of one client might create precedent adverse to the interests of a client represented by the lawyer in an unrelated matter, it does not create a conflict of interest.
A conflict of interest exists, however, if there is a significant risk that a lawyer's action on behalf of one client will materially limit the lawyer's effectiveness in representing another client in a different case |
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Is there attorney-client privilege between co-represented clients
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as between commonly represented clients, the privilege does not attach. If litigation eventuates between the clients, the privilege will not protect any such communications, and the clients should be so advised
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Common representation & confidentiality
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Duty of loyalty to each client, therefore can't keep things confidential from one another (clients may consent to keeping certain types, i.e. trade secrets, confidential)
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Representation of client against former client in substantially related matter
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Can't unless former client consents in writing after consultation with independent counsel
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Representation of client against a former client in any matter if:
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Received actual confidences from the former client that relate to proposed representation and could be used against the former client, (unless information now disclosed, generally known or obsolete)
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Can lawyer in new firm represent client adverse to client represented by old firm in the same or a related matter?
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Yes, unless the lawyer involved has actual knowledge of confidential information.
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Can firm represent client w/ interests adverse to client previously represented by attorney no longer associated with firm?
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Yes, unless matter is substantially related to prior representation and lawyer in firm has confidential information
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Can a former government lawyer represent a client against the government?
What if the gov't not a party to the litigation? |
Yes, except as to an exact matter in which attorney personally and substantially participated while with the government, unless government consents (confirmed in writing)
Same rule if gov't not a party - can't use gove't service to benefit private party |
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Can the firm of a former gov't lawyer barred from representing a client represent the client against the government?'
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No, unless the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom; and written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule.
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Can lawyer in public sector particpate in matter participated in while in private sector?
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No, if participated personally and substantially, unless governmental agency gives consent
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May public sector attorney negotiate for private employment with party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially?
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No, except that a lawyer serving as a law clerk to a judge, other adjudicative officer or arbitrator may negotiate for private employment
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When can Lawyer’s fee be paid by 3rd Party (e.g., Parent/Child, Insurance Co./Insured)
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OK if:
• Client consents after consultation with independent counsel. • No interference with lawyer’s exercise of professional judgment • Confidentiality is preserved |
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Vicarious disqualification of law firm.
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General rule. – If one member of a firm is disqualified, all members of firm are disqualified
Exceptions. • Screening when government is former client and attorney represented government on same issue and government does not consent or when lawyer personally disqualified (i.e. lawyer is necessary witness, personal business deal with client, personal interest in media rights, lawyer has personally provided financial assistance to client, or lawyer had sexual relations with client) |
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Mandatory withdrawal
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(i) Knowing violation of Model Rules or law by continuing to represent the client
(ii) Disability – mental or physical incapacity of attorney, so that can no longer adequately represent client (iii) Discharged by client (even if client’s bad motives) |
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Permissive withdrawal
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(i) Attorney reasonably believe client is going to violate the law or attorney’s services have been used to perpetrate a fraud or crime, may withdraw
(ii) Repugnant or imprudent objective. (iii) Unreasonable financial burden (iv) unreasonably difficult representation (client doesn’t cooperate) (v) Other good cause. (vi) No adverse effect may withdraw w/out good cause |
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Procedure for withdrawal
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(i) Permission of court if necessary (Once court has exercised jurisdiction)
(ii) Must protect client’s interests |
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Division of labor between attorney and client
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general rule – client has final say as to objectives and goals of representation (settlement or rejection of same) and decides whether or not s/he will testify. Attorney makles tactical and technical decisions. If decision would impose undue financial hardship on client or adversely affect 3rd party, then client gets final say. Agreement between attorney and client can limit scope of attorney’s representation
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Duty to disclose adverse law
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Affirmative duty to disclose to the court adverse legal authority from the controlling jurisdiction if adversary fails to do so
1. on point 2. from controlling jurisdiction |
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duty to disclose adverse evidence
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None, except
criminal prosecutor must disclose adverse evidence that would tend to negate guilt of defendant or would mitigate offense or punishment attorney must disclose adverse evidence when necessary to avoid assisting criminal or fraudulent activity by client |
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Client/witness committing perjury
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Attorney is to take “remedial measures” - convince not to lie or to recant if have testified, withdraw from representation or may tell the judge
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False evidence
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Attorney may not knowingly offer false evidence
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Evidence subsequently found to be false
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Attorney must take remedial measures unless proceeding has terminated and judgment has been affirmed on appeal
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Communications w/ 3rd parties not represented by counsel
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advise them to get counsel
Don't allow misimpression of disinterest by attorney |
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Attorney statements at trial
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May only make statements supported by evidence to be offerred. Attorney can't give personal opinion (incl as to innocence, or truthfulness)
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Trial Publicity
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Test – Will the communication by the lawyer (or anyone in firm) have a substantial likelihood of materially prejudicing an adjudicative proceeding
Can make statements to protect client from adverse publicity not caused by attorney |
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Communications with jurors after trial
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b. may not communicate with a juror or prospective juror after discharge of the jury if the communication is prohibited by law or court order, if the juror has made known to the lawyer a desire not to communicate, or the communication involves misrepresentation, coercion, duress, or harassment
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When can confidential information be disclosed?
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attorney may disclose information that client is about to commit crime in future to prevent reasonably certain death or substantial bodily harm
or An attorney may disclose confidential information 1. to prevent the client from committing a future crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the attorney’s services. |
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Disclosure of confidential information to protect attorney
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OK
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fee splitting with non-lawyer
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NEVER
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Misconduct by other attorneys or judges
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MUst be disclosed unless would require disclosure of client confidences
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Commenting on Judges and Candidates.
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Attorney may support or oppose candidate for judicial office, but may not make false of misleading statement about candidate (lawyer must know it is false or misleading or acts with reckless disregard as to whether it is true).
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Restrictions on lawyer's right to practice
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A lawyer shall not participate in offering or making:
(a) a partnership, shareholders, operating, employment, or other similar type of agreement that restricts the right of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement; or (b) an agreement in which a restriction on the lawyer's right to practice is part of the settlement of a client controversy. |
