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84 Cards in this Set

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Lawyer must ask for REASONABLE FEE considering:

- time/labor, novelty/difficulty, skill needed to perform service
- liklihood of case precluding other employment
- customary charge for that service in that locality
- money involved and possible outcome of case
- time limitations imposed by client or circumstances
- nature and length of professional relationship with client

-basis or rate of fee shall be communicated to the client preferably in writing

ABA:
- communication with client on fees doesn't have to be in writing where the lawyer is charging the regularly represented client on the same basis or rate.
FEES

1.5
- fee may be contingent
- contingent fee agreement made in writing and state how fee will be determined
- Cannot enter into a contingent fee in any DOMESTIC RELATIONS MATTER
CANNOT enter a contingent fee in a CRIMINAL CASE

ABA:
- CLIENT MUST SIGN WRITTEN CONTINGENT FEE AGREEMENT
Contigent Fees

1.5
Must have reasoanbly necessary
- Competent Representation
- legal knowledge
- skill
- thoroughness
- preparation
COMPETENCY

1.1
Only make a division of fees between lawyers not in the same firm where
- division is in proportion to the services performed by each lawyer
- written agreement of client
-where each lawyer assumes joint responsibility of representation
-MUST ADVISE CLIENT of division and he must not object to participation of any of the lawyers involved

*total fee must be reasonable

ABA:
- division can be made where CLIENT agrees to the arrangement
-client also agrees to SHARE EACH LAWYER RECEIVES
-AGREEMENT CONFIRMED IN WRITING
Division of Fees

1.5
A lawyer shall act with reasonable diligence and promptness

workload must be controlled so matters are handled COMPETENTLY and ADEQUATELY
Diligence

1.3
Lawyer shall abide by clients decsisions
- Crim: jury, plea, testimony
- Civil: settlement
- lawyer may limit the scope of representation after consultaiton with client
ABA:
- lawyer may act for client to extent that is impliedly authorized
- representation does not mean that a lawyer endorses client's views
- scope may be limited if it is REASONABLE UNDER THE CIRCUMSTANCES
Scope of Representation

1.2
ABA RULE ONLY!!!

prospective client: person who discusses the possiblity of forming an attorney/client relationship WITH RESPECT TO A MATTER
Duties to PROSPECTIVE CLIENT

1.18
Keep a client REASONABLY INFORMED, PROMPTLY INFORM and comoply with REASONABLE REQUESTS for INFORMATION

Explain matters to teh extent that cient will be able to make an INFORMED decision
Communication

1.4
- Lawyer can't reveal information learned from prospective client even if no relationship is developed (excepting Rule 1.9 situations)
Duties to PROSEPECTIVE CLIENT
-disclosure-
1.18
an attorney cannot represent a client with materially adverse interests to those of a prospective client (PC)

-if the pc has disclosed info to atty that would be harmful to the PC in the matter the lawyer is disqualified from representation and no other lawyer in firm may knowingly continue representation in the matter (unless allowed by subsequent rules
Duties to PROSPECTIVE CLIENT
- disqualification-

1.18
Representation is Permissible WHERE:

- both the PC and the affected client give INFORMED WRITTEN CONSENT OR
- lawyer receiving info took REASONABLE MEANS TO AVOID EXPOSURE OF INFO than was reasoanbly necessary to represent PC AND
-disqualified lawyer is timely screened from any participation in matter and is given no fees therefrom AND
- PC is promptly given WRITTEN NOTICE
Duties to PROSPECTIVE CLIENT
- exceptions from disqualification-

1.18
- partner shall make reasoanble efforts to ensure all measure have been taken so all attorneys in firm meet RPC
- lawyer having direct supervisory authority over antoher shall make reasonable efforts to enrsuer the other lawyer conforms to RPC


Lawyer is responsible for another's violations IF
- lawyer orders or with knowledge ratifies the conduct involved OR
- lawyer is a partner or has direct supervisory authority and knows of the conduct at the time when its consequences can be avoided but doesn't take remedial action

ABA: states it is a parterner or attorney with "comparable managerial authority"
Responsibility of Partners and Supervising Lawyers

5.1
Lawyer SHALL not represent a client if reperesentation will be adverse to another client UNLESS:

-lawyer reasonably believes representation will not adversely affect the relationship with the other client
- each client CONSENTS AFTER CONSULTATION

only represent both if it will not hinder ability to represent
- reasonably believes representation won't be adversely affected
- CLIENT CONSENTS AFTER CONSULTATION
- must explain implication of representing mutliple clients in single matter
Conflict of Interest
OBA
1.7
ABA:
Lawyer SHALL NOT represent a client if it involves a concurrent conflict of interest
- where the representation of one will be adverse to another client
- where representation could be materially limited by responsiblities to another client, former client or 3rd person OR by a personal interest of lawyer

Lawyer MAY represent client if
- lawyer believes he can provide COMPETENT and DILIGENT representation to each client
-representation isn't prohibited by law
- representation doesn't include one represented client against another in the same litigation or other proceeding before the tribunal
- each client gives INFORMED CONSENT IN WRITING
Conflict of Interest
ABA
1.7
Lawyer SHALL NOT represent a client or withdraw from commenced representation IF:

- respresentiont violate RPC
-atty's physcial or mental condition impairs ability to represent
- client persists in course of action that lawyer belives to be CRIMINAL OR FRAUDULENT
- client has used lawyers services to perpetrate crime
- the lawyer is discharged


Lawer MAY withdraw if it can be done without material adverse affect or IF:
- client insists on course of action that is REPUGNANT or IMPRUDENT so as to impair atty/client relationship or ability to represent the client
- client fails obligation to lawyer after being warned such failure merits withdraw
- representation results in UNREASONABLE FINANCIAL BURDEN or is UNREASONABLY DIFFICULT
- other good cause for withdrawl

Lawyer shall continue representation where ordered to by tribunal

ABA: doesn't have same requirement of withdrawing having no material adverse effect on the interests of the client

- a laywer must comply with the requirements of law to give notice of withdrawl to tribunal
Declining or Terminating Representation

1.16
A lawyer should render public interest legal service and may discharge this responsibility by:
- providing services to people of limited means, groups or organizations OR
- serving without pay in activities that impreove law/legal system/legal profession
-financially supporting organizations that help poor people

ABA:
highly suggests 50 hours of serivce
- lawyer should get most of hours by giving legal services to people and groups of limited means
- after that they can follow the above actions suggested.
VOLUNTARY Pro Bono Service

6.1
Where a lawyer is appointed to represent a client he should accept the appointment UNLESS
- doing so would cause him to commint an ethical violation
- it would cause him an "UNREASONABLE FINANCIAL BURDEN"
-the lawyer feels that he cannot represent the client well bceause he is so repulsed by the client or client's cause

- appointed lawyers have the same duties as freely retained ones
Accepting Appointments

6.2
Lawyer can't enter into business transaction or take over interest from a client UNLESS
- transaction terms are FAIR AND REASONABLE to client and transmitted in WRITING and is REASONABLY UNDERSTOOD by client
- client is given reasonable opportunity to get advice from outside counsel
- CLIENT CONSENTS IN WRITING

ABA:
- client should be advised in writing of desiribility of seeking outside counsel
- client must give SIGNED INFORMED CONSENT
Conflict of Interest: PROHIBITED TRANSACTIONS
- when lawyer can take interest
1.8
a lawyer SHALL NOT use information to the disadvantage of the client UNLESS client consent after consultation or disclosure is required by 1.6 or 3.3

ABA:
- client should give INFORMED consent
Conflict of Interest: PROHIBITED TRANSACTIONS

1.8

can/should lawyer use informaiton to disadvantage of client?
Only where the lawyer is related to the donee should he prepare an instrument giving the lawyer any substantial gift from a client (including a testamentary gift)
Conflict of Interest: PROHIBITED TRANSACTIONS

1.8
can a lawyer prepare an instrument giving him a testamentary gift?
prior to end of representation lawyer SHALL NOT negotiate or make an agreement to get the rights of an action substantially relating to representation
Conflict of Interest: PROHIBITED TRANSACTIONS
1.8

media rights
Lawyer SHALL NOT offer financial assistance of representation EXCEPT

- may advance court costs with repayment contingent on outcome

ABA:
- laywer can pay court costs of and indigent client
Conflict of Interest: PROHIBITED TRANSACTIONS
1.8

Can lawyer pay for services?
Lawyer SHALL NOT accept compensation from anyone but represented client UNLESS

- client CONSENTS AFTER CONSULTATION
- there's no interference in lawyer's profession judgement or atty/client relationship
- information is still protected by 1.6

ABA: INFORMED consent
Conflict of Interest: PROHIBITED TRANSACTIONS
1.8

Who can lawyer accept payment from?
Lawyer SHALL NOT participate in the settlement between 2 clients or in a criminal case as to guilty or nolo contendre pleas UNLESS
- each client consents after consultation
-lawyer will disclose nature of all claims or pleases involved and disclose participation of both clients

ABA:
INFORMED consent
IN WRITING
SIGNED BY CLIENT
Conflict of Interest: PROHIBITED TRANSACTIONS
1.8

how does a lawyer handle the settlement of 2 clients
Lawyer can't have sex with a client unless they were already involved before atty/client relationship began.

rule applying to 1 lawyer applies to all within the firm
Conflict of Interest: PROHIBITED TRANSACTIONS
1.8

ABA SPECIFIC
Lawyer SHALL NOT reveal info UNLESS
- client consents after consultation
- lawyer is impliedly authorized to disclose
-rules permit disclosure
Confidentiality of Information

1.6
Lawyer will disclose where it is believed to be REASONABLY NECESSARY

- to prevent reasonably certain DEATH or SUBSTANTIAL BODILY HARM
- to prevent client from committing a crime or fraude REASONABLY CERTAIN to reult in SUBSTANTIAL injury to teh financial interests or proerpty of another and where the client used the lawyer's service to do so
- to prevent, mitigate, rectify SUBSTANTIAL injury to financial interests or property of oanother that is reasonably certain to result or has resulted form the client's commission of a crim eor fraud in the furtherance of which the client has used the alwyer's sercies
- to secure legal advice
Confidentiality of Information

1.6

ABA
a lawyer may revealt to teh extent he reasonably believes is necessary

- to disclose the intention of the client to commit a cimre and the information necessary to prevent crime
- to rectify consequence of criminal or fradulent action where lawyer's services where used so long as lawyer attempted to have client rectify the situation on his own
- where required to disclose by the court
Confidentiality of Information

1.6

OBA or BOTH
Lawyer shall not knowingly:

- make a false statement OR FAIL TO CORRECT A FALSE STATEMENT OF MATERIAL FACT OR LAW PREVIOUSLY MADE TO THE TRIBUNAL BY THE LAWYER

- fail to disclose legal authroity that the lawyer knows of but also knows to be against his position

-offer evidence lawyer knows to be false
Candor Toward the Tribunal

3.3
- when a client has offered false evidence laywer will instruct client to rectify matter or where client fails will do so himself

- when a person other then client makes false statemetns the atty will alert the tribunal of the falsehood

- applies even where disclosure is protected by 1.6

- in an ex parte proceeding a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decisionk whether or not the facts are adverse.
Candor Toward the Tribunal

3.3

what measures does lawyer take where false evidence is offered?
- In representation a lawyer won't use means with no purpose but to embarass, delay or burden 3rd person
- won't use methods of obtaining evidience that violates the right of a 3rd party

ABA:
lawyer should notify the sender when he receives a docuemnt that he knows or reasaonbly should know was mistakeningly sent.
Respect for Rights of Third Persons

4.4
2.1 Advisor
exercise INDEPENDENT PROFESSIONAL JUDGMENT and render CANDID ADVICE

take the law and other considerations into account
- moral, economic, social, political factors
2.2 Intermediary

when can lawyer act as intermediary
ONLY OK

when atty has each clients' consent to the common representation after explaining risks, advantages and implications
2.2 Intermediary

when can lawyer act as intermediary
where lawyer believes matter can be resolved on terms w/best interest of clients interest and that each client cna make and ADEQUATELY informed decision and there is little risk of material prejudice where anticipated outcome doesn't occur
2.2 Intermediary

when can lawyer act as intermediary
when lawyer REASONABLY belives he cna handle representation impartially and still maintain other responsibilities to clients
2.2 Intermediary

how should atty act as intermediary
- consult with clients on all decisions to be made so they make INFORMED decisions
3.1

Meritorious Claims and Contentions
do not bring or defend claim unless there is a basis in law

defend so that you require that every element of the case be established
3.2

expediting litigation
make every effort to expedite litigation wehre its in the best interest of the client
4.1

Truthfulness in statements to others
Do not knowingly

- make false statement of fact/law to 3rd person

- fail to disclose fact to 3rd party when its necessary to prevent fraudulent or criminal act (unless prohibited by 1.6)
2.2 Intermediary

When should atty withdraw from representation?
when a client requests such action

when previously stated conditions are not longer satisfied

the lawyer will not represent any client in a matter that was subject to the intermediation after withdrawl
2.4 ABA ONLY

Lawyer Serving as 3rd Party Neutral
- service as an arbitrator/mediator/etc (assisting 2 or more persons that aren't his client)

- make sure lawyer informs them that he is not representing them
if lawyer knows or should know they don't understand EXPLAIN IT
1.3
Organization as a client

who does atty represent
represents the organziation acting through its duly authorized constituents
1.3
Organization as a client

When does the lawyer act to maintain the best interest of the organization
Act for best interest of org. where atty learns at one associated with organization intends to act/doesn't act in accordance to legal obligation.

where it is likely tha t reuslt will include substantial injury to the orgnaization
1.3
Organization as a client

what should lawyer consider in acting
-serious of violation and consequences

- schopes of and nature of lawyer's representation

- responsibiltiy in the organization/motivation of person involved

- policies of organization on such matters

- other relevant considerations
1.3
Organization as a client

what are the goals of the measures taken
to minimize disrugption of the organization and the risk of revealing infomration relating to the representation to persons outside the organization
1.3
Organization as a client

ABA: who should lawyer contact and when
Laywer should contact the higher authority in organziation - the highest authority that cna act when necessary
1.3
Organization as a client

What measures can be taken
- asking reconsideration of matter

- advising another legal opinion so issue can be properly presented to the correct authority

- referring matter to a higer authority (to the highest where warranted)
1.3
Organization as a client

When can laywer withdraw
lawyer may resign in accordance with 1.16 where the highest authority refuses to act and such refusal will likely result in SUBSTANTIAL INJURY TO ORGANIZATION
1.3
Organization as a client

ABA:
when can the lawyer reveal info
where violation is reasonably certain to result in substantial injury

- where lawyer believes it necessary to prevent substantial injury to organization
1.3
Organization as a client

ABA: what must lawyer do if he terminates
lawyer must make sure the company knows and understands his termination
1.3
Organization as a client

when should lawyer explain who the client is
when the lawyer sees that the needs of the organization does not match those members of the organization with whom he deals (officers, directors, share holders, etc).
1.3
Organization as a client

Can lawyer represent company and members?
yes subject to 1.7
1.3
Organization as a client

Who consents to dual representation?
consent must be given (where required by 1.7) by an appropriate official other than the individual who the lawyer will represent
4.2

Communications with Person Represented by Counsel
- don't communicate about subject of representation with a person you know is being represented by someone else

- you can communicate if you have the consent of the other atty OR law or court order instructs it
4.3

Dealing with unrepresented person
- do not act disinterested w/ unrepresented person but make sure they know you are not representing them

- do not give unrepresented persons any advice other than to secure counsel when it is apparent their interests are or could be in conflict with clients

- ABA if laywer knows or REASONABLY SHOULD KNOW unrepresented party misunderstands his role, he SHALL make REASONABLE efforts to correct the misunderstanding
8.3 Reporting Professional Misconduct

what must atty have to speak against another atty
lawyer must have knowledge that other atty violated RPC that raises question of his honesty, trustworthiness, or fitness as a laywer and should notify proper authority
8.3 Reporting Misconduct

what must attyhave to speak against judge
atty must have knowledge that the judge has commiteed a violation of the rules of judicial conduct and raises a question of his fitness in that respect.
8.3 Reporting Misconduct

What does this rule not require
this rule doesn't require disclosure information that is protected by 1.6
8.3 Reporting Misconduct

ABA: what does this rule not require
reporting info protected by 1.6 OR

reporting info gained by atty/judge while participating in lawyer assistance program
8.3 Reporting Misconduct

Who does this rule not apply to?
laywer swho obtain knowledge or evidence while acting with Ethics Council or serving with OBA's Managment Assistance Program

- knowledge received in this manner has protection of atty/client privilege
1.9 Conflict of Interest

Duty to Former Client
- lawyer will not represent person in the same or substantially related matter if that person's interests conflict with former client UNLESS client consents

- lawyer won't represent person in matter that is teh smae or substantially related to a matter the lawyer's firm represented a former client with
where interests are similar
AND
about whome the atty has protected info under 1.6 (unless the client consents)
1.9 Conflict of Interest

Duty to Former Client

INFORMATION
information regarding a former client shall not be used by atty or firm

- at the disadvantage of the client unless permitted by 3.3 or info becomes generally known
OR
- reveal info unless required by 3.3 or 1.6 with respect to the client
1.10 Imputed Disqualification
- lawyers in firm SHALL NOT knowingly represent a client another atty is prohibited from representing

- when lawyer terminates firm can represent persons with materially adverse interes of former client IF client isn't associated with firm

- above applies UNLESS the matter is the same of substantially related or the laywer or firm has info protected by 1.6 or 1.7
1.11 Special Conflicts of Interest for Gov't
duties of former client apply where lawyer moves from gov't work to private work...same duties of confidentiality...not working on cases without consent, etc
1.12 Former Judge or arbitrator
if you've judged a client you can't represent them and vice versa

EXCEPT in some negotiations where atty was serving as a law clerk and notifies the judge/arbitrator AND opposing coucil
2.3

Evaluation for use by 3rd persons
if lawyer thinks its okay and compatible with interests of client he can conduct an evaluation.

Infomration is protected by 1.6

ABA: evaluation shall not be provided when atty knows it will materially and adversely affect the client without his consent
5.2

Responsibilities of Subordinate lawyer
bound by RPC even when following directions of another atty

not violation if actions are directed by another atty who reasonably believes they are allowable
5.4c

professional independence of lawyer
lawyer shall nto allow a person who recommeneds emploiys or pays for services to direct or regulate lawyers judgement in rendering services
1.14

Client with diminished capacity under disability
- maintain as much as possible a normal client laywer relationship

- request a guardian where client cannot act for himself
1.14

Client with diminished capacity under disability

ABA
lawyer can protect client where he believes it saves physical, financial or other harm and where client can't act for himself

- info about client protected under 1.6 unless it is necessary to reveal in an effort to protect the clients interest
7.2 Advertising

how may a lawyer advertise
through public media or written or recorded communication
7.2 Advertsing

How long must copy or record of advertising be kept
3 years after dissemination along with record of how and when it was used
7.2 Advertsing

what must atty keep for mailing and how long?
maintain records necessary to determine the names of those person the adverstisement is mailed to for 3 YEARS
7.2 Advertsing

what must communictaions fo this rules include
the name and office address of at least one lawyer responsible for its content
7.2 Advertsing

What must apply to be allowed to send direct mail to targeted recipients
conditions of rules 7.1, 7.2 and 7.3
7.2 Advertsing

What must be included on every wrtten or recorded communication? where?
statement of how to act to misrepresentation

that it is an advertisement (in font as large as largest font) on front of envelope
7.2 Advertsing

what will be described in advertisements with fee info?
whether the client remains responsible for the expesnse of litgation and describe wheterh any contigent fee advertised is determined before or after the deduction of costs and expenses
7.2 Advertsing

how does ad including fee affect services
laywer must render adverstised sevice for no more then advertised fee (bound for 30 days unless differnt time frame is advertised)
7.3

Direct Contact with prospective client
don't directly contact person for pecuniary gain unless they are a laowyer or has a close relationship with a lawyer

can ask for professional employment from friend, contact, contact of past client, relative, former client

no contact with duress or coersion OR if party doesn't wish to be contacted.
7.4

Communication of Fields of Practice and Certificcation Specialization
Lawyer can advertise of state that he specializes in areas including:
- Patent and Trademark Law
- Admirality
- specialist in a particular
field by the Supreme
Court of Oklahoma (may
only communicate this in
accordance with court rule
- atty liscensed in a specialized area in another state pursuant to that state's licensing rules
7.4

Communication of Fields of Practice and Certification Specialization

ABA
pretty much the same rules but as to other specialites:

- only state you have speciality where lawyer has been approved by orgnaization approved by an appropriate state authorty OR accredited by ABA AND

-name of certifying organization is clearily identified in teh communication
5.6

Restrictions on Right to Practice
lawyer shall not participate in offering or making
- a partnership or employment agreement that restricts his right to practice after termination of relationship (except agreement on retirement benefits)
OR
- an agreement in which a restriction on the lawyer's right to practice is part of the settlement of a client cotnroversy between private parties
7.1

Communication Concerning a Lawyer's Services
don't mislead about services:

- communication containing material misrepresentation of fact or law or omitting a necessary fact that would keep it from being misleading

- communication that will produce unjustified expectation of what lawyer can achieve

- communication stating that lawyer can obtain results through means which violate professional, legal, judicial rules

- communication comparing lawyers services when that comparison can't be factually substantiated.
8.2

Judicial and Legal Officials
- a laywer shall not make a false/reckless statement concerning the integrity of a judge or legal official

- a lawyer who is a candidate for judicial office shall comply with the applicable provisions of the Code of Judicial Conduct