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;
68 Cards in this Set
- Front
- Back
|
WHen can a lawyer not competent in an area of law help his client?
|
lawyer not competent in field may assist CLIENT n emergency = but assistance should not exceed what is REASONABLY NECESSARY to meet the emergency
|
|
|
Does a violation of an ethics rule mean lawyer automatically committed malpractice?
|
NO: violation does not mean malpractice was committed nor even a presumption of malpractice. BUT it is relevant evidence of malpractice
|
|
|
Attorney owes duty of care ONLY to client?
|
NO. attorney owes duty to client AND any third party who is intended to benefit from attorney's services
|
|
|
The standard of care used in case will change if attorney represents herself to be more competent or will exercise more diligence than normal" attorneys?
|
YES. attorney is held to the higher standard she represents to client. You boast, you are bound
|
|
|
are mere errors of judgment a breach of duty of due care?
|
NO. attorneys not liable for "mere errors of judgment" AS ALONG AS they were well-informed and reasonably made judgment calls. (if you weren't qualified to take on a specialized case and a reasonably prudent attorney would have referred to a specialist, your failure to refer can be a breach of duty of due care
|
|
|
What is the causation standard in a malpractice case?
|
"but for"...Plaintiff must prove that injury would not have happened "but for" lawyer's negligence...and it's fair to hold the lawyer accountable for the unexpected injuries
|
|
|
What are the elements to proving a malpractice case?
|
duty, breach, causation (but for), damages (direct losses and indirect but foreseeable losses)
|
|
|
Can attorneys be held liable for negligence of others?
|
YES. attorneys can be held liable for injuries caused by negligent secretaries, legal clerk, other people acting within his scope (partners, etc)
|
|
|
Is Lawyer allowed to contract with client to limit malpractice liability?
|
NO. UNLESS... lawyer not allowed to contract with client to prospectively limit malpractice liability, UNLESS client had independent counsel when making the contract
|
|
|
Can lawyer settle malpractice claim wth unrepresented client or former client?
|
YES, BUT must first advise that person, IN WRITING, to seek independent counsel about the settlement (CAN"T TAKE ADVANTAGE OF THEM!!)
|
|
|
Can lawyer who breached duty to client seek to avoid discipline by reimbursing cost for any loss?
|
NO
|
|
|
What does the attorney-client privilege prevent?
|
prevents the government from compelling privileged information from disclosure
|
|
|
What does ethical duty of confidentiality prevent?
|
prevents attorney from VOLUNTARILY disclosing or misusing confidential information without client's written consent....or using confidential info against client, former client, prosepctive client without informed written consent (catch all for any instance the attorney-client privilege DNA)
|
|
|
What kind of information does ACP protect?
|
only confidential communications between ATTORNEY and CLIENT or their respective agents
|
|
|
What kind of info does ethical duty cover?
|
communications protected by ACP AND any other info attorney gets relating to representation (NO MATTER WHAT SOURCE)
|
|
|
Who is the "client" in corporate client situations?
|
Client is the corporation.
|
|
|
Who is covered under ACP when corporation is the client?
|
ACP covers communication between lawyer and high ranking corporate official AND employees if 3 conditions are met. (1) employee communicates to lawyer when supervisor direct them to --> not voluntarily (2) employee knows the purpose of talking to lawyer is to get legal advice for CORPORATION (3) communication is about something within scope of employees duties for corporation (not personal matters)
|
|
|
Is client's identity or fee arrangement covered under ACP?
|
Not generally... unless disclosing facts is tantamount to disclosing privileged info
|
|
|
Can a client turn over evidence to attorney to "protect it" and keep it from being compelled in court?
|
NO...preexisting document or thing doesn't become privileged just because it is now in hands of lawyer. What if it was something used in crime? Lawyer must eventually turn over to proper authorities (but can keep long enough to get info needed to represent client)
|
|
|
Does a third party who is not present to further the ATP relationship destroy the privilege?
|
YES. If you talk in front of people who aren't there to help you (accountants, secretaries, etc)...you lose privilege.
|
|
|
True or false: Client is the only one who can claim or waive the Attorney client privilege.
|
TRUE. Client is the only one...not attorney...this ACP continues even in death of client. Attorney must not reveal what was communicated.
|
|
|
What if the attorney talks about case and reveals privileged info in front of a third party who wasn't involved? ACP not broken right? but attorney gets disciplined?...
|
?
|
|
|
Exceptions to ACP privilege: If client seeks lawyer's help to commit a future crime or fraud
|
then ACP does not apply: and lawyer may reveal information
|
|
|
Exceptions to ACP privilege: Can lawyer reveal info if he is sued?
|
YES: lawyer can reveal info without client's consent if client sues lawyer (issue of breach of duties arising out of ACP relationship_
|
|
|
Exception to ACP privilege: what if two persons who were previously joint clients...can lawyer reveal privileged info?
|
YES.
|
|
|
What if lawyer is asked for evidence about the competency or intent of a client who has attempted to dispose of property by will or inter vivos transfer? privileged info allowed to be revealed?
|
YES: Only about the competency or intent of the client (nothing else)...and only when client attemped to get rid of property by will or inter vivos transfer
|
|
|
Applicant may be refused bar admission due to mental and emotional instability?
|
YES
|
|
|
Can a judge personally make telephone calls and solicit funds for scholarship?
|
NO. judge cannot personally solicit contributions...but ok to solicit from family an other juges
|
|
|
A lawyer with personal conflict with client...may or must withdraw
|
may reject case
|
|
|
client's movtive is harrassment....may or must
|
must reject case
|
|
|
lawyer is too busy or too inexperienced to handle case...may or must withdraw
|
must reject/withdrawe
|
|
|
strong personal feelings...lawyer may or must reject
|
must reject case
|
|
|
impaired mental or physical condition...lawyer may or must reject
|
must reject
|
|
|
if lawyer learns of confidential info from client in previous case...and appointed to same client on opposite side..may or must withdraw
|
must reject...if lawyer must violate law or disciplinary rule...here he would violate ACP
|
|
|
even if client doesn't hire or lawyer doesn't take case...lawyer cannot represent clients in...
|
same or related matter if CONFIDENTIAL INFORMATION would be harmful to prospective client: and must keep property given to lawyer safe, use reasonable care to dispense advice.
|
|
|
fee schedules: ok to give an estimated number of hours and then later amend with more hours after learning matter was more complex?
|
YES...but must notify client within reasonble amount of time and preferrably in writing
|
|
|
can a lawyer just say "can't really tell how much this will cost you but assure you it will be fair" after the third appointment with client?
|
NO. subject to disciplinary action here if NEW CLIENT. Need to tell client earlier and with a little more certainty. I fold client...more leeway.
|
|
|
unreasonably high attorneys fees or expenses NOT enforceable and lawyer will be subject to discpline...true or false
|
TRUE
|
|
|
Lawyer cannot charge client for ordinary overhead expenses (running office, staffing, equipment....business expenses of running practice) but everything else he can charge client (secretarial overtime)
|
TRUE
|
|
|
attorney cannot charge client MORE than her actual cost for third party services (court reporters, travel agents, witnesses) CANNOT DOUBLE BILL
|
TRUE. cannot bill travel time and work time if lawyer worked on plane. But can divide time between two clients
|
|
|
retainer fee = need to be returned if lawyer fired or withdraws?
|
NO. retainer fee solely given to ensure availability of lawyer NON REFUNDABLE. IF (1) amount was reasonable and (2) if lawyer didn't violate retainer agreement
|
|
|
fees paid in advance (if lawyer asks for fees paid in advance), any unused portions must be returned
|
TRUE
|
|
|
Any confusion in fee arrangements, terms, etc...construed in favor of
|
Client and against lawyer, who drafted it.
|
|
|
lawyer MAY accept property (ownership interest in business) in return for services..UNLESS
|
does not affect cause of action and no conflict of interest.
|
|
|
If lawyer says all fees must be paid in advance and then in the middle of trial says to client that fees used up and if he doens't pay more, he'll stop work...proper?
|
NO. Subject to discipline
|
|
|
contingent fees prohibited in two scenarios
|
defending criminal defendant using continget fee NOT OK
NOT OK to use this in domestic relations cases (securing divorce, amount future alimony or support, amount of settlement)...don't want the lawyer to work harder just to get himself more money |
|
|
when can lawyers use contingent fee for domestic relations case?
|
when getting past due alimony or support. because amount already set...lawyer can't be persuaded by self interest for getting more
|
|
|
cannot use contingent fee when lawyer is knew he could clearly win...
|
can't put a large contingent fee on a case you will clearly win...(point of contingent fee defeated)...
|
|
|
amount of contingent fee must be reasonable...1/3 of all proceeds reasonable?
|
NOT reasonable
|
|
|
contingent fee agreement must be in writing and signed by client, and..
|
must be detailed detailed detailed!! including litigation and other expenses, when deductions made, what client will pay, and at the end lawyer must give client clear, written statement showing outcome of case and how calculations made
|
|
|
may lawyers keep documents, money, property of client until fees paid?
|
YES, many states allow this. But majority view says cannot hold client files to compel payment
|
|
|
if fee disputed, lawyer may keep disputed amount in client trust account until
|
dispute is resolved
|
|
|
generally lawyers cannot split fee with another lawyer (EXCEPT 3 instances)
|
1. lawyers within firm (partners and associates may pool, split)
2. separation and retirement agreements --> can agree to give percentage of monthly billings while working for retirement 3. lawyers from other firms if criteria met |
|
|
when can lawyers send a single bill to client and split fees with lawyers from other firms?
|
1. total fee is reasonable
2. split is proportional to work done, or if take on joint responsibility, some other reasonable proportion 3. client agrees to split 4. writing that details the share each lawyer will receive |
|
|
lawyer cannot accept payment from anyone (including lawyer) for referrals
|
TRUE
|
|
|
reciprocal referrals with lawyer or non lawyer OK when:
|
1. nonexclusive
2.lawyer's client is informed of the nature of the agreement |
|
|
The five decisions that are the client's to make...TPAWS)
|
Testify as client in criminal trial
Plea criminal case Appeal Waive jury trial criminal case Settlement offer |
|
|
lawyer can limit her responsibilities...say that she'll represent dispute but if dispute is arbitrated or litigated, client must hire another lawyer
|
TRUE...client must give informed consent
|
|
|
What if client expects lawyer to help break the law or ethics rule...
|
1. lawyer must first explain why she cannot do what client expects
2. if client still insists 3. lawyer MUST withdraw |
|
|
what if lawyer discovers client begun illegal course of action and action is continuing
|
1. lawyer must stop all things that might assist
2. MUST withdraw 3. sometimes 'noisy withdraw' necessary |
|
|
emergency legal assistance to nonclient with seriously diminished capacity
|
May take legal action on her behalf IF lawyer thinks this person doesn't already have a lawyer.
2. and action must be related to anything reasonably necessary to avoid harm |
|
|
normally lawyer would not seek money for emergency actions for nonclients
|
TRUE
|
|
|
contingency fee case...lawyer fired..lawyer can only sue if client wins
|
then lawyer entitle to his reasonable fees.
|
|
|
lawyer MAY withdraw if he REASONABLY believes client is doing something criminal or fraudulent
|
TRUE. If lawyer KNOWS that there is something criminal and client has used lawyer's services to do something criminal, MUST withdraw
|
|
|
civil liability =
|
malpractice suit
|
|
|
malpractice = only if duty of care, meaning only if there is an attorney-client relationship. If just prospective client, and attorney's actions has misled alleged client...
|
court could conclude there was a AT relationship and lawyer is liable.
|
|
|
lawyer can also be responsible for damages to 3rd parties intended to benefit from his services
|
trust agreements naming 3rd party
|
|
|
opposing party can't sue lawyer for bringing a case without factual basis
|
TRUE. this party was not intended to benefit from lawyer's service, NO malpractice claim
|
