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23 Cards in this Set
- Front
- Back
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Confidentiality MR 1.6
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i. A-C Privilege; covers:
__a) communication __b) between privileged persons __c) in confidence __d) for the purpose of obtaining or producing legal assistance for the client __e) unless: ____1. an exception applies, or ____2. the privilege is waived ii. Ethical Duty; covers: __a) information relating to the representation of the client __b) unless: ____1. client gives informed consent, ____2. disclosure is impliedly authorized, or ____3. an exception applies ______i) for example, a court order to reveal privileged information |
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Crime-Fraud Exception
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1. client's purpose in communications with lawyer
2. is to use lawyer's advice or assistance 3. to further an intended future or continuing 4. crime or fraud |
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Exceptions to the Ethical Duty
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a) an attorney may reveal covered information to the extent the attorney reasonably believes necessary:
__1. to prevent reasonably certain death/substantial bodily harm __2. to prevent client's crime or fraud that is: ____i) reasonably certain ("rc) to result in substantial injury, ____ii) rc to result in substantial injury to financial interests/property of another, or ____iii) in furtherance of which client used/is using lawyer's services __3. and, where the client's fraud/crime is already committed, to prevent, mitigate, or rectify such injury |
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Duty of Candor with the Court MR 3.3
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i. lawyer shall take reasonable remedial measures (including disclosing, if necessary) if
ii. lawyer has offered evidence that lawyer knows is false, or iii. lawyers know that a person __a) will, has, or is engaging __b) in fraudulent or criminal conduct (and) __c) related to an adjudicative proceeding |
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Lawyers must disclose research
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1. legal authority
2. in the controlling jurisdiction 3. known by the lawyer to be directly adverse to the client's position 4. and not disclosed by the opposing counsel |
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Anti-Contact Rule; lawyer shall not...
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1. in representing a client
2. communicate regarding the subject of representation 3. with the person known to be represented in the matter 4. without the consent of the other lawyer 5. unless authorized by law or court order to do so |
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Lawyers cannot pretend to be disinterested
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1. in dealing with an unrepresented person
2. on behalf of a client 3. lawyer shall not state or imply disinterest 4. and if lawyer knows or should know the person misunderstands lawyer's role 5. then lawyer shall make reasonable efforts to correct the misunderstanding 6. also, no legal advice (other than to secure counsel) if reasonable possibility of interests conflict |
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Concurrent Conflicts; a lawyer cannot represent a client if...
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a) representation will be directly adverse to another client
b) or there's a significant risk that representation will be materially limited c) unless __1. the lawyer has a reasonable belief the representation of the current client will be competent (under 1.1) and diligent (under 1.3) __2. it's not prohibited by other law (which should always be true in rep.) __3. it's not a representation of both of two clients against each other in the same litigation (or other proceeding before a tribunal) __4. and (these all have to be true) each affected client gives informed consent confirmed in writing |
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Successive aka Former Client Conflicts MR 1.9
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a) same or subst. related matter?
b) material adversity of interests? c) if so, no representation of new client unless you get informed consent of former client, confirmed in writing |
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AC Conflicts MR 1.8 -- doing business with your client
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a) Don't do business with your client unless:
__1. it's fair, in writing, and the client is fully informed, __2. the client is advised, in writing, to obtain independent counsel, AND __3. the client gives informed consent, confirmed in writing |
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AC Conflicts MR 1.8 -- client information
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Don't use information your client gives you to your client's disadvantage
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AC Conflicts MR 1.8 -- gifts
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no substantial gifts (unless the recipient has a close familial relationship with the client)
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AC Conflicts MR 1.8 -- literary rights
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Lawyer gets no literary or media rights to the representation (at least until after rep.)
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AC Conflicts MR 1.8 -- financial assistance to client
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Don't provide financial assistance to client, unless:
__1. lawyer may advance court costs, repayment of which may be contingent on the outcome __2. lawyer of indigent client may pay court costs and expenses of litigation on behalf of client |
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AC Conflicts MR 1.8 -- payment for representation
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Don't accept payment for representation from someone other than your client unless:
__1. your client gives informed consent, __2. there's no interference in ACR or lawyer's independence, AND __3. client's info is protected as required by MR 1.6 |
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AC Conflicts MR 1.8 -- proprietary interests
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Don't acquire a proprietary interest in representation of client, BUT a lawyer may:
__1. obtain a lien authorized by law to secure the lawyer's fee or expenses; and __2. contract with a client for a reasonable contingent fee in a civil case |
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AC Conflicts MR 1.8 -- sex with clients
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Don't have sex with client unless you were doing it before representation
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AC Conflicts MR 1.8 -- application to firm
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If in a firm, if 1.8 applies to one attorney it applies to all
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Imputed Conflicts of Interest MR 1.10
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a) would any lawyer, practicing alone, be disqualified under rule 1.7 and/or 1.9?
b) if yes, then all the lawyers are disqualified unless: __1. it's a 1.7 disqualification for personal interest (of the “radioactive lawyer”) (but note that if the personal interests of the one lawyer materially limit the representation of the other lawyers in the firm, then they're still all disqualified), or ____i) ex: you're influenced by the personal interests of a partner because you want to make partner; this materially limits your representation __2. it's a 1.9 disqualification arising from a prior firm and there are adequate, timely screening measures, written notice to prior clients, and/or certification of compliance c) or unless (if you don't have any of the above, this is a way out): __1. there is a waiver of consent by the affected client (under 1.7 conditions) |
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Contingent Fees
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1. must be in writing, signed by client
2. must state method of determining the fee, including __i) % for lawyer __ii) treatment of expenses __iii) and if no recovery, what happens 3. at the end, lawyer must provide a written statement of accounting |
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Central Hudson standard for commercial speech/lawyer advertising
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a) the State can prohibit communications that
__1. are false or misleading, or __2. concern unlawful activities/matters b) other communications may only be restricted __1. in service of a substantial government interest __2. through regulations that directly advance that interest, and __3. are not more extensive than reasonably necessary |
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Government Lawyers MR 1.11
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part a: if the lawyer PPS in matter A while a government attorney, and later represents a client in matter A, he is going to be DQ'd unless the agency for whom s/he worked gives ICCIW
part b: if no consent, the lawyer's whole firm is DQ'd unless there is timely screening and written notice to the agency part c: if lawyer has confidential gov't info, lawyer cannot represent client in firm whose interests are materially adverse to the person lawyer has info about, but firm still can if lawyer gets no part of fee |
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lawyer moving from private practice to government
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- still subject to 1.7 and 1.9
- if lawyer PPS in a matter while in private practice, cannot participate at gov't unless the gov't agency gives ICCIW |
