Study your flashcards anywhere!

Download the official Cram app for free >

  • Shuffle
    Toggle On
    Toggle Off
  • Alphabetize
    Toggle On
    Toggle Off
  • Front First
    Toggle On
    Toggle Off
  • Both Sides
    Toggle On
    Toggle Off
  • Read
    Toggle On
    Toggle Off
Reading...
Front

How to study your flashcards.

Right/Left arrow keys: Navigate between flashcards.right arrow keyleft arrow key

Up/Down arrow keys: Flip the card between the front and back.down keyup key

H key: Show hint (3rd side).h key

A key: Read text to speech.a key

image

Play button

image

Play button

image

Progress

1/123

Click to flip

123 Cards in this Set

  • Front
  • Back
Where are the rules governing the conduct of NY attorneys found?
In the NY Code of Professional Responsibility (which is a modified version of the old ABA Code of Professional Condcut)
What is the structure of the NY Code?
1) Cannons: broad statements of norms expressing in general terms the expected standard of professional conduct;
2) ECs (Ethical Considerations): Aspirational; can't get into trouble for violating an EC;
3) DRs (Disciplinary Rules): Mandatory; if you violate, you get in trouble.
Who investigates complaints involving NY attorney's conduct?
The Departmental Disciplinary Committee (or any Department of the Appellate Division_
Are hearings public?
No. Filing a complaint in NY is a privileged communication; hearings are not public.
What are the tyeps of discipline that can be imposed on a NY attorney?
1) Letter of admonition: says don't ever do this again;
2) Public or private censure from the court: public would appear for bar journasl; private takes form of a letter, but it's official and it's in your file;
3) Suspension: temporary revocation of your right to practice law;
4) Disbarment: permanent revocation of your right to practice law.
Besides disciplinary investigation, what other measures are NY attorneys subject to?
Malpractice claims by their clients. But, the commission of malpractice doesn't necessarily mean the conduct which led to the claim is subject to, rises to the level of, or is appropriate for discipline.
What is the rule for requiremenst for admission to the bar?
SC has said they must be rationally related to the practice of law.
What is rational?
1) Requiring that you graduated from an ABA accredited law school;
2) Refusing to admit you if you refuse to take the oath upholding or defending the NY state or federal Constitution;
Does NY require that you graduated from an ABA accredited law school?
In NY, admission may be granted for an applicant who has completed one year of law school and studied law in a NY office under the supervision of a licensed NY attorney for a period of time that when combined with your law school attendence aggregates to four years.
What is not rational?
1) Requiring that you be a US citizen;
2) Requiring that you live in NY;
3) Requiring that you not be a communist.
Whar are the NY Bar Examination Requirements?
Pass a written bar exam and the MPRE
How can an applicant be considered without examination?
If the applicant has:
1) graduated from an ABA accredited law school;
2) Been admitted to practice in another state AND that state would admit a NY lawyer without examination, known as reciprocity, AND
3) Practiced law for at least five of the last seven years preceding application for admission.
What requirements are on the applicant when he applies to the bar?
1) Truth and full disclosure - burden on applicant to show "good moral character";
2) Duty to cooperate
What requirements do applicants have regarding OTHER applicants?
1) For good applicants, your input is aspirational/"should"
2) For bad applicants, there is a duty to report on moral turpitude, i.e., conduct contrary to justice, honesty, modesty, or good morals.
What are examples of moral turpitude?
Perjury, bribery, and theft. A single arrest for possession of pot for personal use probably does not rise to the level that you would have to report.
What is the regulation of lawyers after admission?
1) Regulated by highest state court (and through its agencies);
2) Self-regulating profession;
What is the lawyer's duty where he knows ofa violation?
1) Must report, unless it's a confidence or secret (e.g., if you represent lawyers in disciplinary actions);
2) Must be available to testify against that person (can't do it anonymously)
Can you avoid the duty to report wrongful conduct if it is for the benefit of a client?
No.
What is the rule where a lawyer learns of the bad conduct of another lawyer through representation of that lawyer as a client?
The duty of confidentiality will trump the duty to report the misconduct to the bar.
May an attorney who represents another attorney in a disciplinary matter recommend that lawyer for admission to another state?
No.
What is the effect of discipline by one state in another?
Discipline by one state does NOT mean there will be discipline in the other. Other states make independent determinations of whether the conduct complained of violates that state's ethical rules. But, most other states will give some effect to a sister state's determination on the basis of the Full Faith and Credit or comity.
What is the rule with respect to unauthorized practice?
Can't practice where not admitted.
What is permissible temporary multi-jurisdictional practice?
1) Associate with an active local lawyer;
2) Special permission called pro hac vice;
3) Mediation or arbitration out of home-state practice;
4) Anything reasonably related to laywer's home-state practice;
5) Multi-state firms: lawyer only practices where admitted and the firm letterhead must indicate the states of admission.
What is the rule with respect to choice of law in multi-jurisdictional matters?
1) If licensed in NY only, then NY law and rules apply;
2) If admitted to NY and another state, rules of the state will apply in which the lawyer principally practices unless teh conduct's key effect is in another state, then that OTHER state's rules will apply.
Where will out of state violations be investigated when the lawyer is licensed in more than one state?
All states in which the lawyer is licensed will investigate.
What does it mean to be a lawyer?
You're a lawyer 24 hours a day/7 days a week worldwide wether you're performing professional or personal activities.
Which decisions is the client empowered to make in legal matters?
1) Whether to appeal, settle case, sue, bench or jury trial;
2) Whether to testify
Whic decisions is the attorny empowered to make in legal matters?
1) Depositions (*but, clients can veto based on cost);
2) Granting continuances.
In what situations does an attorney NOT have to abide by the client's wishes?
Where doing so would be illegal, unethical, or immoral.
What if the client loes the ability to make a clear decision?
You don't start making decisions for them - you get a guardan appointed.
May lawyers reject cases/
Lawyers have a general freedom to reject cases, although they should take cases involving the oppressed or defenseless and should do their fair share of pro bono publico work. When a conflict or other problem arises, a lawyer may need to withdraw from representation.
When MUST an attorney withdraw from a representation?
1) Where we know that the claim is frivolous or harassing;
2) Where we are impaired in our ability to represent;
3) Where we would be violating a DR;
4) Where we are fired.
When MAY an attorney withdraw from a representation?
1) If withdrawal can be accomplished without material adverse effect on interests of client;
2) Client's claim or defense is frivolus;
3) Client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent;
4) Client insists that the lawyer pursue a course of conduct that is illegal or is prohibited by a DR;
5) Other conduct that makes it unreasaonbly difficult for lawyer to carry out employment effectively;
6) Client insists in matter not pending before the court that the lawyer engage in conduct that is contrary to the judgment and advice of the lawyer, even if not prohibited by DR;
7) Client deliberately disregards an agreement or obligation to hte lawyer as to fees or expenses;
8) Client uses lawyer's services to perpetrate a crime or fraud;
9) Lawyer's continued employment is likely to result in violation of DR;
10) Lawyer's inability to work with co-counsel indicates that the best interests of the client are served by withdrawal;
11) Client knowingly and freely agrees to termination;
12) Other good cause for withdrawal (but lawyer and client may NOT agree to alter these rules and allow for withdrawal for any reason)
NOTE: In a civil case, a motion to withdraw will always be granted but in a criminal case, it's discretionary.
What cases should lawyer take?
Only those cases he or she is competent to handle or encourage client to seek other counsel.
What does competence include?
Being physically and mentally able and that you have the legal competence/knowledge to handle the matter, and the time to devote to the case.
How can you overcome a lack of competence or expertise?
ALE
1) A - Associate with a lawyer who is competent;
2) L - Learn in time;
3) E - Emergency
What is the rule with respect to others engaging in unauthorized practice of law?
Only lawyers may engage in the practice of law. Lawyers may not help OTHERS engage in the unauthorized practice of law.
What is the practice of law?
Everything thhat requires a law license. Specifically, attending hearings, taking depositions, drafting documents like wills/contracts/trusts/pleadings. Without a law license, you CAN interview people, write legal memos, and fill in forms.
Can a lawyer give a non-lawyer who is proceeding pro se advice about strategy?
Yes. Helping a non-lawyer proceed pro se is not helping the unauthorized practice of law.
What is the rule with respect to non-compete agreements?
A lawyer may not enter into a non-compete agreement or provision with his current partners or associates because clients have a right to hire whoever they want.
There are two exceptions:
1) If, as a condition of retirement from the firm, you agree to a reasonable non-compete clause, that's OK (b/c you're getting consideration for that);
2) Separation or withdrawal from the firm where part of your separation package is a non-compete provision.
What restrictions exist on law firm names?
1) NY does not permit trade names;
2) Cannot have a name that could be misleading to a lay person;
3) Can't have made-up names in the firm name;
4) If a named partner leaves the firm, whether or not his name can stay in the firm name depends on whether he's left temporarily (can stay) or permanently (can't stay); doesn't have anythign to do with whether he left for a good (ambassadorship) or bad (disbarment) reason.
Is an ambassador appointment temporary or permanent?
Assumed to be permanent. If they say "acting ambassador," that would be temporary.
What is the rule with respect to specialists?
Can't hold yourself out as a specialist unless you are certified as a specialist or practice patent, trademark or admiralty. Can only say you're a specialist if you:
1) Have been certified by a private organization which has been approved to certify by the ABA and;
2) That certifying organization is identified; and
3) Lawyer states that certifying organization is not affiliated with any governmental authority, certification is not required for practice of law in NY, and certification does not indicate greater competence of the lawyer over other non-certified by experienced lawyers in the area.
What can you instead do to let people know you practice primarily in a given area?
Say your practice is "limited to" that area.
For the excepted out areas of admiralty, patent, or trademark, what is required to call yourself a specialist?
Nothing more than passing the NY bar - no experience required.
What is the rule with respect to lawyer advertising?
It is permissible, but must avoid false or misleading statements.
What is the test for false or misleading?
Whether a layperson would find the statement or advertising misleading.
What may lawyer ads include?
1) Educational background and degrees;
2) Dates of admission to bar and areas of practice;
3) Public offices and teaching positions held;
4) Memberships in bar associations and other professionial organizations;
5) Foreign language ability (must be fluent);
6) Names of regularly represented clients if the clients consent in writing;
7) Acceptable credit arrangements and participation in group or prepaid legal services programs;
8) Legal fees, contingent fee rates, range of fees for services, hourly rates and fixed fees for specific services (if fees are advertised, you cannot change the rate until after a reasonable period of time).
What is misleading?
1) Promising outcomes;
2) Improperly comparing yourself with another lawyer;
3) Suggesting an ability to get results from teh clout that you have
What is the rule with repect to television and radio ads/
They must be prerecorded, approved by the lawyer, and include the name, office address, and telephone number of the lawyer or firm who's services are being offered, and records must be kept for at least one year.
What special rules apply to advertising contingent fees?
1) You must clearly state the terms and basis of the fee.
2) You must make it clear in any advertising that refers to contingent fees whether the client will be responsible for any costs. 3) You must also make it clear that contingent fees are not permitted in all types of cases.
What is the rule with regard to direct mailings?
1) You may send direct mail to groups of people likely to need legal services (e.g. everyone arrested for drunk driving in Buffalo last week)
2) A copy of the letter you're sending must be filed with the Department Disciplinary Committee of the appropriate judicial department and the letter/advertisement must not refer to the fact that it has been filed;
3) A list of the recipients and their addresses must be kept for at least one year;
4) There is a 45 day federal waiting period for contacting victims of national disasters such as plane crashes, terrorist attacks, hurricanes, etc.
When is a NY lawyer not permitted to solicit professional employment from a prospective client by written or recorded communication?
A NY lawyer must not solicit professional employment from a prospective client by written or recorded communication if:
1) the communication is false, deceptive or misleading; or
2) the client has made known to lawyer a desire not to be solicited, or
3) solicitation involves coercion, duress, or harassment, or
4) lawyer knows or reasonably should know that hte age or physical, emotional, or mental state of the client makes it unlikely that client will be able to exercise reasoanble judgment in retaining a lawyer; or
5) lawyer intended or expects, but does not disclose that the legal services will be performed primarily by anotehr lawyer who is not affiliated with the soliciting lawyer as a partner, associate, or counsel; or
6) written communication is sent by a method that requires the client to travel to a location other than that at which the client ordinarily receives business or personal mail.
What is the rule regarding in person or telephone solicitation?
Lawyer must not solicit proepective clients by in-person or telephone contact unless that prospective client is:
1) A close friend;
2) relative; or
3) current client
BUT, representing someone NOT for pecuniary gain or hope of fee is OK e.g., ACLU
What is the rule of imputation?
Whatever you can't do, you can't have your partner do for you.
Can non-lawyers solicit clients for lawyers?
No. Can't send non-lawyers out to do what the lawyers can't properly do themselves.
What are the exceptions to this rule?
1) Family members and close friends;
2) Prior clients;
3) Public interest work
What if you give in-person, unsolicited advice?
You cannot accept employment resulting from such advice.
If a person asks for your advice, can that be construed as solicitation?
No, as long as they come to you, it's ok.
What duties does the attorney owe to the client?
1) Maintain confidences of prospective, current and former clients and keep client secrets as well;
2) Safeguard client property
What is a client secret?
Anything derogatory, embarrassing or hurtful regarding your client, no matter what the source.
*NOTE: this duty is broader than the attorney-client privilege which addresses communications b/t attorney and client and the duty survives death of client.
What is the rule in NY with respect to revealing a client confidence where he intends to commit a future crime?
In NY, a lawyer may, but is not required to reveal the intention of a client to commit a crime, but if you do reveal it, you have to limit your disclosure to the information necessary to prevent that crime. (Probably best on exam if you have the lawyer choose to reveal)
What should you do if your client perjures himself on the stand and you know it?
1) First, try to get the client to recant;
2) If the client will not, then we make a motion to withdraw. In a civil case will always be granted, but in a criminal case, it may not be.
3) If you have to stay on, don't ask the client any related questions and don't argue any of it in the closing argument.
If you terminate a client relationship, how must you do so?
In a manner that does not prejudice the client. This means giving the client some notice, giving file back, giving them chance to find a new lawyer.
What are the exceptions to confidentiality?
1) Where disclosure is required by law or court order;
2) To obtain legal or ethical advice for lawyer (use of hypotheticals with colleague is OK if discrete to protect identity of client).
What must you do where disclosure of client confidence is required by law or court order?
1) First, try to get client's permission;
2) If not given, then have to go to court and make every good faith argument why you don't have to disclose;
3) If you lose, you have to disclose.
Where must you keep client property that you are safeguarding?
In a bonded warehouse.
What restraints exist on public statements regarding trials?
No statement may be made by a lawyer that a reasonable person would expect to be disseminated if lawyer knows or reasonably should know it will be prejudicial to proceedings re:
1) character, reputation or criminal record of party;
2) identification of witness or expected testimony;
3) possibility of a guilty plea;
4) existence of a confession;
5) results of any exam or test;
6) opinion as to guilt or innocence of D or suspect;
7) information lawyer knows or reasonably should know will be inadmissible as evidence;
8) fact that D is charged with crime unless stating it is merely an accusation and that the D is presumed innocent.
What may the lawyer state publicly regarding trials?
1) General nature of claim or defense;
2) Public information or record;
3) That an investigation is in progress;
4) Scheduling or result of any step in litigation;
5) Warning of danger where there is a reason to believe of a likelihood of substantial harm to a person or public interest;
6) In a criminal case, information necessary to aid in apprehension of an accused person;
7) Right of Reply
What is the right of reply?
Lawyer may make a statement to the extent necsesary to protect a clietn from substantial prejudicial effect of recent publicity not initiated by the laweyr or client.
What is the basic rule of conflicts of interest?
Avoid conflicts and exercise independent professional judgment. But, in the event of a conflict, refuse to accept or continue the representation in most cases.
What is the bar exam rule of thumb?
On the bar, look for anythign that might drive a wedge b/t a lawyer and her client. Look for obligatiosn to other clients, a lawyer's obligation to herself, or obligations to the firm.
When may a lawyer accept a case with a conflict?
Only if all clients have given their informed consent and a prudent lawyer would have taken th ecase.
What steps must you take for informed consent?
1) Client must agree after
2) the lawyer explains material risks and reasonable alternatives; and
3) the client agrees in writing.
After these steps you must hten decide if a reasonably prudent lawyer would take tha case.
What is the rule with respect to lawyers testifying on behalf of clients?
Lawyers cannot testify on behalf of a client unless:
1) It is an unconstested matter like witnesses the signing of a K;
2) Fees, because in certain kinds of cases like Antitrust cases, we're entitled to attorney's fees and the only person who can testify is the lawyer;
3) There will be a substantial hardship to the client if we didn't
What is the general rule of conflicts?
Lawyers cannot represent adverse interests of client or prosepctive client unless lawyer fully explains risks and alternatives and client agrees in writing.
What is the rule with respect to interests in publications rights and mortgages on client's property?
Lawyers cannot accept as payment of their fee an interest in the subject matter of the litigation, including an interest in publication rights related to the case subject matter.
Lawyers also cannot take a mortgage on a client's property to secure a fee.
May a lawyer accept gifts from clients?
Lawyers may accept gifts from clients, but may not suggest that the gift be made and must affirmatively advise the client to seek disinterested advice before making a gift. There is a presumption of undue influence raised in this situation.
If a client has you draft his will and wants to leave something to you, what should you do?
Have another lawyer draft the will. You don't want to draft a will that leaves anything to you at all, or certainly not anything that is not de minimis.
What is the exception to this will rule?
1) Family members;
2) De minimis or nominal gifts (objective test)
What is the rule on lending money to clients?
Can't lend money to clients under any circumstances.
What is the rule for payment of fee by a third party?
This is OK if client gives informed consent and client remains the client, and lawyer-client confidentiality privilege remains.
What is the rule with respect to sex with clients?
1) Lawyers cannot demand sex as a condition of representation;
2) Pre-existing sex is OK;
3) Cannot coerce a client into a sexula relationship or enter into a sexual relationship in a domestic relations matter during the representation.
Is there a rule of imputation with regard to sexual relationships?
No. The limitation is only a personal one.
What is the rule with respect to doing busines with clients?
A lawyer is generally prohibited from doing business with clients, unless the transaction is fair to the clietn. In such case, client should be advised to seek independent legal advice, client consents in writing and all terms are fully disclosed in writing in a manner that can be reasonably understood by the client.
What is the exception to the doing business with clients rule?
Standard commercial or other ordinary transactions (e.g., banking or brokerage services) are OK
What is the rule for lawsuits between current and former clients?
You may represent a current client in an action agaisnt a former client EXCEPT:
1) When your current client wants to sue your former client involving a matter or transaction in which you represented the former client; OR
2) When during representation of the former client you learned confidential information that is now relevant to the action by the current client. (If the information is no longer confidential, or if the client consents, it's OK)
What is always a conflict?
Represneting a current client against a current client.
Who do you represent when the client is a corporation or partnership?
The entity, not any of the individuals or directors involved.
What is the rule with respect to lawyers serving as directors of companies?
1) A lawyer can be a director of a company, but no attorney-client privilege in board meetings;
2) Duty to report securities violations up the chain of command to CEO;
3) IF not appropriate response, MUST report to board of directors and MAY report to outside authority;
4) May reveal confidential information to extent necessary to protect client (corporation) and laywer has discretion in this regard;
5) Any measures taken shall be designed to minimize disruption of the organization and the risk of revealing confidential information to persons outside the organization
What is the rule when representing the insured?
Lawyer represents the insured NOT the insurance company paying the bills. Confidential information from the insured is protected from disclosure from the insurer and the insurance company cannot direct the case decisions. Engagement letter must be sent to both insurance company and insured.
What are the laywers duties with respect to fees?
Lawyer has the duty to explain fully the reasons for the fee and keep the fee reasonable.
NOTE: state bars cannot set either minimum or maximum fee schedules.
What are the permissible factors to be used to determine reasonableness?
1) Time and labor;
2) Novelty and difficulty of the questions involved;
3) Requisite skill to perform legal service;
4) Customary fee within the locality for similar work;
5) Experience, ability, and reputation of the attorney;
6) Interference with other employment by the attorney;
7) Time limitations imposed by the client or circumstance;
8) Whether fee is fixed or contingent.
Basically, anything. Just keep in mind, if you make a promise to a client, you have to keep it.
When can you not charge contingent fees?
1) In a criminal case or quasi-criminal proceeding (including where a professional may lose a license);
2) In a domestic relation case
Can you represent a client in an action for recovery of past due alimony and child support on a contingent fee basis?
No. The NY rule is that no contingent fees for domestic relations and bad debt or past alimony is NOT an exception (though it was on the MPRE)
When must a fee agreement be in writing?
In NY, if fees are projected to be $3000 or more, the fee agreement must be in writing (although client doesn't have to sign it). Doesn't apply if services are of the same general kind previously provided to client or if services involve a domestic relations matter.
What must the retainer agreement include?
1) Scope of legal services to be provided;
2) Explanation of attorneys' fees to be charged;
3) Expenses and billing practices;
4) Notice of client's right to arbitrate a fee dispute.
When do you not need a letter of engagement?
1) When the fee is expected to be less than $3000;
2) Where the services rendered are similar to those rendered in the past;
3) Where lawyer has no office in NY or no material portion of services are rendered in NY; or
4)in domestic relations matter where a specific letter is required.
What are domestic relations matters?
A lawyer representing a client in any action involving:
1) Divorce;
2) Separation;
3) Annulment;
4) Custody;
5) Visitation;
6) Maintenance;
7) Child support; or
8) Alimony;
9) Inludes: preliminary hearings, enforcement or judgment modification hearings and appeals.
What is the rule wit respect to representation in domestic relations matters?
1) Fee agreement must be in writing, signed by lawyer and client;
2) lawyer must provide prospective client with a statement of client's rights and responsibilities at the initial conference and prior to the signing of a written retainer agreement;
3) No non-refundable fees in domestic relations matters;
4) Cannot use contingency fee to collect unpaid alimony or child support;
5) Fee disputes in domestic relations matters must be resolved by arbitration at the election of the client;
6) Periodic billing must be sent out every sixty days and at conclusion of case, attorney must send back any unused portion of the retainer.
What is the rule with respect to attorney relationships with non-attorneys?
Laywer cannot be partner with a non-lawyer if any part of the partnership involves the practice of law.
What can and can't lawyers do with non-lawyers?
1) Never divide a legal fee with a non-lawyer;
2) But an attorney and a non-attorney can share office space so long as the space is physically spearate in fact and appears so to the public.
What are the exceptions to the fee-splitting rule?
1) Salaries, retirement plans, bonuses, profit-sharing;
2) Spouses of deceased partners to pay fees earned by the deceased partner
What is required where attorney and nonattorney share office space?
precautions must insure that the non-lawyer's clients are not coerced to use the lawyer for legal matters.
What is the rule for referral fees?
Referral fees are unethical.
If you seek to bring in counsel expert in a given area, what must you do?
1) The fee must be divided proportionally to the work performed;
2) The client must be advised and must not object;
3) The total fee must be reasoanble.
What are the two tyeps of retainers?
1) Advance on fees retainer (belongs to client - goes into trust account)
2) Availability retainer (belongs to attorney immediately - goes into lawyer's account)
What types of account must every lawyer have?
1) Operating (where your money goes);
2) Trust (where client money goes. Only money of yours that you may have in client trust account is enough to cover bank fees)
What is the general rule of trust accounts?
Have one, use it, keep records of its use, and don't mix up your trust account with your operatingg account.
Whar are the specific rules of trust accounts for NY?
1) The account must be in NY or elsewhere with the client's written consent;
2) The only money of yours you can have in that account is enough to cover bank fees.
What is the effect of taking money out of the client trust account and using it for other purposes?
it is conversion and it is disciplinable.
When do you have to take earned money out of the client trust account?
Immediately, as soon as earned (or in reasonable regular periods, like weekly)
Where attorney has earned $10,000 according to the fee agreement, but client says she only thinks she should have to pay $3000, and currently all the money is in the client trust account, what should attorney do?
She should give the client any amount that is not in dispute and that is the client's; she should take out any amount that is not in dispuate and is the attorneys ($3000) and put it in her own account; and the amount in dispute ($7000) must stay in the trust account until the dispute is resolved.
How are fee disputes resolved?
Where representation commenced on or after January 1, 2002 in a civil matter, fee disputes b/t lawyer and client are subject to arbitration at the client's option. Client must be told about this option in the letter of agreeement (whehre required) and when a fee dispute arises.
What are the exceptions to this mandatory program (when can lawyer go right to court)?
1) Fee disputes in criminal matters;
2) Where the amount in dispute is less than $1000 or more than $50,000;
3) Where the claim involves malpractice
What is the rule with respect to subordinate lawyers?
Must abide by the rules. If your defense is that you were just following orders from supervisor, it must also be at least arguable that you thought what you did was OK.
What is the rule with respect to supervising lawyer?
Must abide by the rules themselves AND make sure that their subordinates do as well. Can get in trouble for violation of subordinate if they told you to do it, or if they know about a rule that you violated and they didn't report you.
What is the rule with respect to ex parte communications during trial?
1) With jury: NONE at all - not even de minimis;
2) With judge: only de minimis or in an emergency or as part of a settlement conference;
3) With adversarial party: only through their lawyer;
4) With witness: That's OK. No such thing as a defense witness or P witness - you can talk to any witness you want.
What is the problem area with talking to witnesses?
Corporations - who is hte party and who is just a witness?
How can you disinguish b/t parties and mere witnesses in case of corporation?
Anyone with superviosry or managerial responsibility will be considered a party and you'll have to go through attorney for them; others are witnesses, and you can talk to them.
What is the lawyer's duty with respect to adverse authority?
A lawyer has an affirmative duty to disclose contrary or adverse authority, which means cases or statutes, but only from the controlling jurisdcition, but duty does not extend to facts or witnesses. (Have to distinguish the cases after disclosing)
What are the special duties of the prosecutor?
1) Proceed only on probable cause;
2) Must disclose (in a timely manner) evidence tending to negate guilt or which could mitigate the degree of the offense or reduce the punishment (Brady Rule)
What is the rule with respect to personal references and loans to judges or public officials?
Must uphold the integrity of the profession and its members by not making unfair or derogatory personal references to other lawyers and not giving or lending any items of value to a judge or other public official except as permitted by the Code of Judicial Conduct (contributoins to campaigns are OK).