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46 Cards in this Set
- Front
- Back
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PA RPC Authority
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PA Supreme Court controls the power to regulate attorneys
Follows RPC |
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Regulation of Attorney Admissions
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C/require graduate of ABA-accredited law school
Cannot require: - US citizenship - State residency State laws support RPC = crimes of moral turpitude c/result in disbarment |
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Attorney Disciplinary Process
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Forms of Discipline include reproval (public or private), suspension, or disbarment
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Attorney Prohibitions Under RPC
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Attorneys Cannot:
- violate the RPC - commit criminal acts reflecting adversely on his honesty, trustworthiness, or fitness as an attorney - engage in conduct involving dishonesty, fraud, deceit or misrepresentation - engage in conduct prejudicial to the administration of justice - knowingly assist a judge or judicial officer to violate the PRC - or instruct agent to do so - imply an ability to improperly influence over gov't agency or to achieve results by means violating the RPC or other laws |
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Lawyer's Duty to Maintain the Integrity of the Profession
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M/inform the Disciplinary Board if A knows another A has violated the rules
- if it raises a substantial question of the other A's honesty, trustworthiness or fitness as a lawyer in other respects |
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Attorney License
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Prevents unauthorized practice of law!
M/h license for court appearances, depositions, drafting legal documents, and settlements License NOT needed to file paperwork w/ the court, interview Ws (u/l interviewee is under oath) and completing forms |
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Temporary Attorney License
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M/b in good standing in the other jdxn AND
- associate w/ a PA lawyer - matter involves pending litigation in another jdxn OR - services provided to lawyer's ER |
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Duty to Prevent Unfit Applicants from Admission to the Bar
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Applicants M/b truthful
Other People: - if they know the applicant, should write a letter if she's fit; MUST write letter if she is unfit - if they do NOT know the applicant, should not write |
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Duty to Report and Testify About RPC Violations
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M/rat on lawyer friends - duty is 24/7!
Rules are not jdxn-specific M/b available to testify - make sure jdxn can get in touch w/ you |
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Duty of Competent Representation
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Requiring all necessary knowledge, skill, thoroughness and preparation for the representation
Free to Reject - except: - should take cases of the defenseless or oppressed, do a fair share of pro bono work - Must accept court appointments u/l unreasonable financial burden or a certain type of case w/ which A c/n get involved |
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Duty to Reject
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Inability = physical or mental
Incompetence = complex, difficult issues u/l ALE - associate w/ co-counsel w/ client's permission - learn the law on your own time - emergency Conflict = imputes to partners/firm Strong Feelings = c/n/g fair representation Frivolous suits - except criminal |
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Attorney Specialization
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National level = patent and admiralty law
State level = advertising tool |
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Client Solicitation
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RPC Prohibit:
- false or misleading communications containing material misrepresentations of fact or law OR omitting a fact necessary to make the statement as a whole thoroughly misleading One-on-One/In-Person = includes telephone or real-time communication, directly or through intermediary, someone w/ whom A has NO family, close personal, or prior professional relationship Ex: permitted = lawyer referral services, group and prepaid legal services, educating laymen generally, volunteering legal advice w/o offering contact/services |
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Client Solicitation Exceptions
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C/solicit in-person
- relatives and close friends - current and former clients - through direct mail UNLESS - A knows or s/k that prospective client's physical, mental or emotional state leaves her unable to exercise reasonable judgment - person has made it known to A that she d/n want the communication OR - the communication involves coercion, duress or harassment |
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Publicity and Advertisement
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Advertising M/b truthful - c/n create
- unjustified expectations - unverifiable comparisons - imply results by improper means Radio & TV advertising = okay - limited in geographic scope to area A practices (signal originates in your area) - no endorsements from public figures - c/n hire a non-lawyer to represent you - M/b able to handle the cases for which A advertises - fees advertised M/b good for 90d Letterhead = dead As' names okay, M/b removed if disbarred |
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Dual Professions
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Cannot solicit from one profession to the other
Privilege does not carry over Ancillary businesses are okay! |
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Legal Fees
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M/n/b excessive - M/b reasonable
- amount of experience, expertise in the specific area, complexity of subject matter - represent C in the past - contingent fee, hourly fee, etc. |
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Contingent Fees
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NOT allowed in criminal and domestic relations cases
- except past-due alimony or child support M/b in writing u/l course of dealing w/ a regularly-represented client Fired As can seek fair value for services rendered through Quantum Meruit |
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Fee Splitting
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Not permitted unless
- payment to heirs - purchase law practice; selling A M/retire adn can receive a fee - pension, bonus or retirement - non-profit organizations that employed A |
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Practice Restrictions
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Not permitted
Exceptions = part of a retirement plan or negative covenants in sales agreements for sale of practice (i.e. non-compete) |
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Retainer Fees
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Okay in PA
Advancement on payment of fees for availability (giving up opportunity for other business) |
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Attorney Duty of Competence
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Requires legal knowledge, skill, thoroughness and preparation necessary for representation
Reasonable promptness and diligence in representation Keep C informed and provide her enough information to make informed decisions - informed consent = C agrees to proposed course of conduct after advised of material risks AND reasonable alternatives - get it in writing! |
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Duty of Confidentiality - Generally
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Broader than A-C privilege - extends to communications other than b/t the A and the C
- duty is owed to the C respecting secrets - secrets = anything derogatory or embarrassing about C A M/keep all information related to the representation confidential UNLESS C gives informed consent Duty continues FOREVER. |
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Duty of Confidentiality - Exceptions
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A c/reveal such information to the extent she reasonably believes necessary to:
- prevent reasonably certain death or substantial bodily harm (future conduct not just by C) - prevent C from committing a criminal act that A believes is likely to result in substantial injury to another's financial interest or property (future! past crimes are secrets!) - Prevent, mitigate or rectify criminal or fraudulent acts in which A's services were used - establish a claim or defense in a dispute w/ the C (malpractice, fees) - effectuate sale of the law practice - secure legal advice about compliance w/ PRC |
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Duty of Candor
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M/reveal such information necessary to achieve candor to the tribunal - being honest trumps duty of confidentiality
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Duty of Attorney-Lobbyist
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M/comply w/ registration and disclosure laws
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Duty to Avoid Conflicts of Interest - Current Clients
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A shall not represent C if it involves a concurrent conflict of interest
- representation of one C w/b directly adverse to another OR - significant risk that representation of one or more Cs w/b materially limited by A's responsibilities to another C, a former C, a 3P OR by A's personal interest |
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Concurrent Conflicts of Interest - When A May Represent
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A reasonably believes he w/b able to provide competent and diligent representation to each affected C
Representation is not prohibited by law Representation d/n involve the assertion of a claim by one C against another represented by A in the same litigation or proceeding before a tribunal AND Each affected C gives informed consent |
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Conflicts b/t A's Interests and Client's Interests
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A shall not:
- loan money to C except to advance litigation costs - acquire interest in the subject of the litigation (except CF agreements and attorney lien) - buy property at legal sale - acquire interests adverse to C - enter into business transactions w/ C EXCEPT: - fair and reasonable - disclosed to C in writing AND - informed consent - in writing! - acquire literary or media rights to an account based on the subject of the representation BEFORE the representation concludes - Prepare legal instrument for C in which A or a relative is a beneficiary (u/l A or the recipient is related to C) - have sexual relationship w/ C (u/l it existed prior to relationship forming; A w/b removed - no rule of imputation) - Accept compensation from another UNLESS - full disclosure and C's informed consent - no interference w/ A's independent judgment AND - protect C's confidentiality - gifts and favors |
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Conflicts with Former Clients
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C/n represent a person in the same or substantially related matter adverse to the interest of a former C UNLESS the former C gives informed consent.
A c/n use information relating to representation to the disadvantage of a former C u/l permitted under the exceptions to RPC Confidentiality OR if the information is generally known/public |
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Imputed Disqualification
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If one A is prevented from representing C, the entire firm is disqualified
For new As joining a firm = firm c/n knowingly represent someone in the same or substantially related matter in which the new A or his previous firm had represented an adverse person AND about whom A learned confidential information - UNLESS: - New A is screened - New A d/n share the fee AND - Former C is notified If A leaves the firm, the firm c/represent persons adverse to his former Cs u/l it is the same or substantially similar matter AND any remaining attorney has information Note: conflicts c/b waived! |
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Conflicts with Client-Organization
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Communications w/ Client-organization's agents are privileged.
If A learns an agent has/intends to act in a manner contrary to his duty to the organization, or illegally (that likely will injure the organization), A MUST take steps to remedy or prevent injury: - remonstrate w/ agent to reconsider - advise a separate legal proceeding be obtained - refer matter to higher authority w/in the organization (i.e. BOD) - if that authority fails to act, A c/resign No need to have corporate counsel's consent to contact former EEs, but M/h for current EEs A c/represent organization, its officers, directors, EEs, etc., so long as everyone's interests are the same. |
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Duty of Candor to the Tribunal
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A shall not knowingly:
- make false statement of material fact or law to the tribunal - fail to correct a false statement of material fact or law that A previously made to the tribunal - fail to disclose adverse legal authority in the controlling jdxn or not disclosed by opposing counsel - offer false E - w/h to take remedial action - c/refuse to offer E believed to be false Ex Parte Proceedings = A M/reveal all material facts she knows, regardless of adversity Duties continue to close of proceeding - after appeals period has run |
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Fiduciary Duty to Client
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Do not commingle money - keep business and trust accounts w/in practice jdxn
Safeguard property Notify, account and pay over promptly any funds received on C's behalf |
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Attorney vs. Client Authority
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Important Decisions = Client
- Sue or settle (M/b/g any settlement information and make the final decision) - Testify - Plea - Jury/Bench trial - Appeal Procedural/Tactical = Attorney - Court - Depositions - Discovery - Continuance EXCEPTIONS = monetary (i.e. C c/n afford) - C controls the purse strings; and if actions m/b harmful to a 3P W/r/t Clients w/ diminished capacity = let guardian make decisions on C's behalf |
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Terminating the Attorney-Client Relationship
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Court permission and return of C's property
Client can fire for any reason - but M/pay for services rendered A's permissive withdrawal A's mandatory withdrawal Sale of practice |
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Compulsory Withdrawal from A-C Relationship
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Representation will result in violation of RPC
A's ability to represent C is impaired Lawyer is fired or discharged |
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Permissive Withdrawal from A-C Relationship
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C persists in using A's services in a course of action that she reasonably believes is criminal or fraudulent
C has used A's services to commit crime or fraud in the past C's conduct is repugnant to A/fundamental disagreement w/ C's conduct Client fails to cooperate Financial burden on A Other good cause |
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Sale of Law Practice
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A or law firm m/sell if:
- Seller ceases to engage in private practice of law in PA - Practice is sold in its entirety to a single A or firm ND - Notice provided to seller's clients who can stay or leave firm |
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Duty of Zealous Representation
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Advocate = receives inadvertent disclosures and M/reveal to other side so they can cure
Supervisor = responsible for subordinate if he - knew and did nothing OR - told subordinate to do it - Note: subordinate not responsible if it's arguable/close call Adviser 3P Neutral (i.e. mediator/facilitator) Evaluator |
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Contacting Parties
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A c/n contact opposing party who is represented by counsel (not about the case) unless he first obtains OC's permission
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Duties w/r/t Witnesses
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No contingent fees for EWs
- c/pay reasonable expenses and lost wages for EWs and Lay Ws D/n need permission of OC to speak to Ws u/l they are corporate EEs whose acts c/b imputed to the ER Can advise W not to testify IF: - person is related to or an agent of a party AND - person's interests w/n/b harmed |
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Speaking with Jurors
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No A can talk about the case w/ a juror during trial - even if they aren't on the case
A on the case cannot speak to a juror during the trial - period. After trial = permitted, but NO harassment |
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Attorney's Courtroom Conduct
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No personal opinions!
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Trial Publicity
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No statements that would materially prejudice the case
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Fairness to Adversary
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No Ex Parte communications w/ a judge u/l it's de minimis (i.e. morning greetings) or an emergency.
Cannot unlawfully obstruct Cannot falsify E or advise another to do so |
