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49 Cards in this Set
- Front
- Back
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What are 4 types of discipline imposed by disciplinary committee from least to most severe?
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1. Letter of admonishment – goes in your file
2. Public censure by the cts – published in NY bar association journal 3. Suspension: you cannot practice law for a finite period of time; so name can stay on LH and over door of firm 4. Disbarment: take your license away; name comes off door and LH—you may not practice |
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What is the Constitutional standard for rules governing admission to the NY bar? What rules fail?
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Requirements for admission must be rational related to practice of law; thus no:
1. US citizenship requirements 2. NY Residency requirements |
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Who regulates the profession? How?(2)
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Self-regulating profession: When you know of a violation: 1. MUST report what you know, unless info is protected as confidential
2. MUST be available to testify against violating atty |
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If a lawyer is admitted in NY and NJ and is suspended in NJ, what effect in NY?
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NY may sanction under full faith and credit and comity. But not required.
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Under what pretenses can a lawyer engage in temporary multi-jurisdictional practice? (5)
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1. Associate w/ local lawyer
2. Special permission – pro hac vice 3. Mediate or arbitrate out of home-state practice ADR in other jurisdictions OK 4. Anything reasonably related to lawyer’s home-state practice 5. Multi-state firms but Firm letterhead must indicate states of admission |
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What law governs the discipline of a lawyer?
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1. Law in state of admission (if admitted in 1 state only disciplined in 1 state)
2. Law where harm is caused by violation (if admitted in 2 states may be disciplined in state where primary impact) |
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What decisions are exclusive to client? (5)
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Those of substantive legal import; Whether to:
1. Sue, 2. Take an appeal, 3. Settle, 4. Trial before judge or jury 5. Whether to testify in criminal case |
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If client is incapacitated midway through trial and the other side gives you a settlement offer, what then?
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If client loses ability to make decisions have guardian appointed.
Settlement offers – MUST call client and do what client says or guardian in client's absence |
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When MUST atty seek to withdraw? (4)
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1. Knows client's position is frivolous; or to harass or maliciously injure another
2. If lawyer becomes impaired mentally or physically incapacitated 3. If an RPC would be violated in NY due to your representation 4. IF Client fires lawyer |
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when MUST a lawyer get a guardian for client? (3 part test)
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1. If client has diminished capacity, and
2. Client is at risk of substantial physical, financial or other harm, and 3. Client cannot act in their own interest |
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When MAY atty seek to withdraw from a case?
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Any reason if withdraw accomplished w/o material adverse effect on client’s interests, or
1. Client’s claim/defense frivolous 2. Client involved in action atty reasonably believes is criminal/fraudulent 3. Client deliberately disregards agreement/obligation to atty for fees/expenses 4. Client uses atty’s services to perpetuate crime/fraud 5. Continued employment likely to result in DR violation 6. Atty’s inability to work w/ co-counsel, best interest of client to withdraw |
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Under what circumstances should an attorney take a case? (3)
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Atty should take only cases competent to handle:
1. Physically/mentally able 2. Substantively competent 3. Time to devote to a case |
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Lawyer may not enter into non-compete agreements except: (2)
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1. Retirement –must be reasonable
2. Separation from firm |
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what does it mean to practice the law and who can/can't do it?
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Only those admitted, not clerks;
1. deposition, 2. judicial proceedings, 3. drafting substantive legal documents, 4. negotiating cases for settlement |
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when can a partner's name be in the name of the firm?
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Usually unless:
1. Disbarment (permanent) 2. Ambassadorship (permanent, unless acting) 3. Suspension (temporary) IF temporary then name stays |
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To hold oneself out as certified in an area, you must?
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Clearly establish:
1. Certified by a private organization who is approved to certify by ABA or NY state; AND 2. Must identify organization that certifies in the ad 3. Lawyer must state that: certifying org is non-government, cert. is not required for practice, and cert does not indicate greater competence |
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In NY, can ads include statements that are reasonably likely to create an expection about results?
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YES--distinguish this from 2 No-No's:
1. Promised outcomes 2. Ability to achieve results from inappropriate influence |
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Can a lawyer advertise that they advance the cost of adjudication?
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No. but they may advertise their rates.
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Can a law firm advertise a domain: www.wegetjudgments.com
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No. the domain name cannot imply an ability to obtain results in a matter.
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who MAY a lawyer solicit? (4)
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1. friends and family
2. former clients 3. existing client 4. pro bono clients |
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Can a lawyer pay for referrals?
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No.
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Can a lawyer send targetted mail to those likely in need of services?
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Yes. you send mail to recent drunk driver arrestees.
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At the scene of an acident you give advice to a victim--potential client?
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No Way! If you give in-person, unsolicited advice, DO NOT accept employment from such advice
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If you target victims of an accident, what restrictions apply?
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NO SOLICITATION for personal injury or wrongful death before the 30th day after the specific injury; or 15th day if filing requirements are sooner than 30 days
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What should you do if you know client is going to falsely testify? (4)
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1. Try to get client not to lie or correct lies
2. If he refuses go to court and seek to withdraw; do not argue any lies 3. Must seek to withdraw – judge decides 4. If cannot withdraw, just let client testify and don’t ask any questions |
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What's the difference between the duty of confidentiality and the attorney-client privilege?
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Confidentitality prevents disclosure of client secrets – anything derogatory, embarrassing or hurts your client
Duty broader than atty-client privilege and survives the death of the client Privilege makes communication a secret. |
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If you terminate client relationship what must you do? (3)
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Give client:
1.Notice to find a new lawyer 2.the case file, 3. unused portion of retainer, |
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When may you breach the confidence of a client? (6)
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1. Required by law/ct order
2. Obtain legal/ethical advice for atty, use hypos is ok if discreet enough to hide id of client 3. To prevent the client from committing a crime 4. To prevent reasonably certain death or substantial bodily harm 5. Used to protect vulnerable children from risk of harm in certain circumstances 6. Disclosure impliedly authorized to advance the clients best interest |
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How must an atty protect the money or preoperty of a client?
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Money must be escrowed or held in trust.
Property must be in a properly bonded facility |
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Can an atty take a case that present a conflict of interest?
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1. Clients must agree after informed consent
2. Lawyer explains material risks and reasonable alternatives 3. Clients agreement in writing (can be electronic) After these steps decide if a reasonably prudent lawyer would take the case—On exam reject the case and cite the Reasonably Prudent Lawyer std. |
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Can a lawyer seek a mortgage to secure a fee?
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YES in NY, if the security arrangement is in the retainer agreement, the mortgage ok.
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Can you make a loan to a client?
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Only if they are indigent or pro bono, and in NY
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If the atty fee is paid by 3rd party, can the lawyer take the client?
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YES but the 3rd party will NOT be privy to confidential/ privileged info. Think Insurance co.
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Can a lawyer have sex with his client?
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1. Cannot demand sex as condition of representation
2. Preexisting relationship ok 3. CANNOT enter into sexual relationship with client in domestic relations matter |
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Can a lawyer enter into a business deal with client?
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YES but Doing business with clients prohibited UNLESS transaction is fair to the client
-Client should be advised to seek independent legal advice -Client consents in writing -Terms fully disclosed in writing |
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Can a lawyer represent a current and former client at the same time?
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YES. However, cannot represent one against the other UNLESS:
the COA is one on which you represented the former client; or You have confidential info re: matter from former rep. |
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Can a lawer represent a current client v. a current client?
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NO-never
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When representing a corporation, what duty to D&O's?
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None. the duty is to the entity ONLY and often D & O interest is adverse in litigation.
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What factors can be considered in determining a reasonable fee?
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ANY. however, common:
1. Time and labor 2. Novelty and difficulty of case 3. Requisite skill to perform legal services 4. Customary fee w/I locality for similar work 5. Experience, ability and reputation of the atty 6. Interference w/ other employment by the atty 7. Time limitations imposed by the client or circumstance 8. Whether fee is fixed or contingent |
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In what type of cases are you prohibited from charging contingent fees?
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Criminal and Domestic Relations
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Retainer agreements must include? (4)
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1. Scope of legal services to be provided
2. Explanation of atty’s fees to be charged 3. Expenses and billing practices 4. Notice of client’s rights to arbitrate fee dispute |
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Retainers – 2 types?
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1. Advance on fees – money belongs to client, goes into trust acct
2. Availability retainer – money belongs to atty, goes in atty’s acct NOTE: no non-refundable availability retainers in NY |
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Two types of accounts every atty MUST have?
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1. Operating – firm account; your money goes in here
2. Client trust – client’s money, atty can use to pay fees |
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what is conmingling?
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mixing funds between client and operating accounts.
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Fee dispute's after June 2002 are subject to? Exceptions? (4)
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arbitration
1. Exceptions 2. Fee disputes in criminal matters 3. Amount in dispute less than 1k or more than 50k 4. Claim involves malpractice |
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An associate decides to follow the senior partner's advice on how to handle a sticky matter--any problem?
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No. However, when matter is clear, associate has duty to follow RPC. Senior lawyers liable for violations by associates
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Are ex parte communications during trial ok? 4 groups
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1. Jury – no communications w/ jurors, grounds for disbarment; after trial ok unless prohibited by court order, juror does not want to talk or purpose is to harass juror
2. Judge – de minimus, emergency, or ruling or settlement conference 3. Adversarial party – have to talk to their atty ONLY—they are represented 4. Witnesses – can talk to anyone • In corporate case, a witness in a supervisory role or corp liability possible, you must go through corp. counsel |
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Must a lawyer disclose adverse facts or witnesses to party opponent?
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NO. Atty has affirmative duty to disclose contrary/adverse authority: Cases or statues from controlling jurisdiction only
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Always Add:
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A lawyer shall represent his client zealously, within the bounds of the law.
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