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49 Cards in this Set

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  • Back
What is the rule for lawyers and fees?
Lawyers cannot charge excessive fees

1. time and labor, difficulty of the question, skill required to perform the legal services

2. lawyer will not be able to take other clients because of the legal matter

3. local fees for similar services

4. amount involved and the results

5. time limitations imposed by clients

6. nature and length of the professional conduct

7. experience, reputation, ability of the lawyers performing the services and

8. the fee is contingent
What are the rule for contingent fees?
contingent fee shall be in writing, no contingent fee for a criminal case or acivil case in which a contingent fee is agains tthe law.
What is the rule when there is a dispute between lawyer and a client.
a fee dispute between a lawyer and client, the lawyer needsto make reasonable efforts to advise his or her client of the existence of the NC state's bar program of fee dispute resolution at least 30 days prior to initiating legal proceedings to collec the disputed fee and place leave the funds in the trust account
When can a lawyer reveal confidential information?
1. to prevent the commission of a crime by the client

2. to prevent reasonably certain death or bodily harm

3. to prevent, mitigate, or rectify consequences of a client's criminal or fraudulent act in the commission of which the lawyer's service were used

5. to get advice to see if the lawyer complied with the rules

6. to create a defense on behalf of the lawyer in a controversy between the lawyer and client
What is the rule for an attorney sharing fees with another lawyer not employed at the lawyer's firm?
A lawyer may not split a fee with another lawyer who does not practice in her law firm unless the division is based upon the work done by each lawyer or the client consents in writing, the fee is reasonable, and responsibility is joint.
Can lawyer charge a contingent to collect child support?
Can attorney disclose information to defend against malpractice?
What is the rule for conflict of interest for former clients?
lawyer shall not represent a client if representation involves a concurrent conflict of interest such as:

1. representing adverse clients

2. lawyer's responsibilities to another client or a 3rd person or by a personal interest of the lawyer
When can lawyer represent a present client, even though there is a conflict?
conflict of interest may exist before representation is undertaken, in which event the representation must be declined, unless the lawyer obtains the informed consent of each client
What should a lawyer do, after representation has started, and a conflict arises?
If a conflict arises after representation has been undertaken, the lawyer ordinarily must withdraw from the representation, unless the lawyer has obtained the informed consent of the client
What is informed consent?
Informed consent requires that each affected client be aware of the relevant circumstances and of the material and reasonably foreseeable ways that the conflict could have adverse effects on the interests of that client
Exclusvie of a conflict of interest, when can attorney represent a client?
1. if the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client

2. representation is not against the law

3. representation is not dealing with direct adverse parties

4. each affected client gives informed consent, confirmed in writing.
What is the rule with lawyer entering in business transactions with clients?
a lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest directly adverse to a client unless:

1. the transaction and terms are fair and reasonable to the client and are fully disclosed

2. the client is advised in writing to seek independent counsel

3. client gives informed consent in writing signed by the client, to the essential terms of the transaction and the lawyer's role in the transaction, including whether the lawyer is representing the client in the transaction
What is the rule for attorney soliciting gifts?
a lawyer shall not solicit any substantial gift from a client, including gifts fro a will or prepare on behalf of a gift client an istrument giving the lawyer or person related to the lawyer any substantial gift.
What is exception for the lawyer recieving a gift?
the lawyer can get a gift, even under the will, if lawyer is related to the client, related persons are related persons include a spouse, child, grandchild, parent, grandparent or other relative or individual with whom the lawyer or the client maintains a close, familial relationship.
What is rule damaging information related to a client?
a lawyer shall not use information relating to a representation of a client to the disadvantage of the client unless the client gives informed consent.
What is the rule for media rights?
prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation.
Under 1.8, what is the rule for representing aggregate clients?
A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client gives informed consent, in a writing signed by the client.
Can a lawyer limit malpractice for a client?
a lawyer cannot make an agreement limiting the lawyer's malpractice, unless the client is independently represented in making the agreement
What is the rule when a lawyer has a proprietary interest in the pending litigation?
a lawyer shall not acquire a proprietary interest in teh ause of action or subject matter of litigation the lawyer is conducting for a client.
What is the excpetion to the rule of a lawyer having a proprietary interest in the pending litigation?
lawyer can acuire lien authorized by law to secure the lawyer's fee ro expenses

contract with a client for a reasonable contingent fee in a civil case
What is the rule for a duty to former clients?
a lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former unless the former client gives informed consent, in writing.
What is the rule imputating conflicting of interest?
lawyers in a firm, noe of them shall knowingly represent a client when any of them praticing alone would be prohibited from doing so, unless prohibition is based on personal interest of the prohibited lawyer, and the prohibition does not represent a significant risk of materially limiting the representation of the client by the remaining lawyer in the firm.
What does substantially related mean?
Matters are "substantially related" for purposes of this Rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that information as would normally have been obtained in the prior representation would materially advance the client's position in the subsequent matter
Under 1.11, what is rule for former and current government officers and employees?
a lawyer who was formerly served as a public officer or employee, unless the appropriate government agency gives informed consent in writing

Note: imputed to the firm, unless the disqualified lawyer is timely screened from any particiaption in the matter and written notice is given to the government agency
What is the rule for attorneys representing an organization?
a lawyer must act reasonably in the best interest to prevent harm to the organization, unless the lawyer reasonably bellieves that it is not necessary in teh best interest of the organization to do so, the lawyer shall refer the matter to higher authority in the organization, including if warranted by the circumstances to the highest authority that can act on behalf of the organization as determiend by applicable law:
Can a lawyer defend against a former client when he knows damaging information by former representation?
An attorney cannot defend an action brought by a former client when confidential information obtained during the prior representation would be relevant to the defense of the current action
Can a lawyer change the will between spouses, if the will adversly affects the other spouse?
A lawyer who jointly represented a husband and wife in the preparation and execution of estate planning documents may not prepare a codicil to the will of one spouse without the knowledge of the other spouse if the codicil will affect adversely the interests of the other spouse or each spouse agreed not to change the estate plan without informing the other spouse.
What is the rule for safekeeping entrusted property??
entrusted property shall be identified held and maintained seperate from the property
When can lawyer terminate representation?
1. the representation will result in violation of alw or the rules of professional conduct

2. lawyer's physical or mental condition materially impairs the lawyer's ability to represent the clietn or

3. the lawyer is discharged
When may lawyer withdraw?
1. withdrawal can be accomplished can be accomplished without material adverse effect on the interests of the client or

2. the client knowingly and freely assents to the termination of the representation

3. client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent or

4. client insists upon taking action that the lawyer considers repugnatn

5. lawyer has used the lawyer's services to perpetrate a crime or fraud

6. clients fails subsantially to fulfill an obligation to the lawyer regarding the lawyer's services

7. representation will result in an unreasonable financial burden on the lawyer

8. client insists upon presenting a claim or defense that is warranted under existin glaw

9. other good cause for withdrawal
What is the rule for sale of a law practice?
a lawyer or a law firm may sell or pruchase a law practice, or an area of law practice, including good will, if the following conditions are satisfied.

Note: seller does not engage in practice of law within a 100 mile radius of the purchased practice

Note: letters sent to clients
What is the rule of an evaluation for 3rd party?
a lawyer seving as a 3rd party neutral (mediator or arbitrator) shall inform unrepresented parties that the lawyer is not representing them.
Under 3.3, what is the rule for candor toward the tribunal?
a lawyer shall not knowingly make a false statemetn of amterial fact or law to a tribunal or fail correct such statemetn previously made to the tribunal

Note: lawyer cannot offer false evidence

2. Note: a lawyer cannot offer false evidence other than the testimony of a defendant in a criminal matter that the lawyer reasonably believes is false
What is the rule for a lawyer's fairness to opposing party and counsel?
a lawyer shall not:

1. obstruct another's party access to evidence

2. falsify evidence counsel or assist witness to testify falsely, counsel or assist a witness to hide or leave a jurisdiction

3. knowingly disobey or advise a client to disobey the rules of the tribunal

4. pretrial procedure: make frivolous discovery rquest, fail to comply with discovery
What s the rule for law firms and associations?
a lawyer shall be responsible for another lawyer's violation of the rules of professinal conduct if:

(i) lawyer orders, with knowledge of the specific conduct or

(ii) lawyer has managerial authority in the law firm or has direct supervisory authority over the other lawyer and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action to avoid consequences
What is the rule for a subordinate lawyer?
a subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty.
What is the rule for lawyers sharing a fees?
a lawyer or law firm shall not share legal fees.
What are the exceptions to the general for lawyers sharing a fee?
1. agreement for payment of money, over a reasonable period of time after teh lawyer's death to the lawyer's estae or to one or more specified persons;

2. lawyer purchase a practice from deceased, disabled lawyer pay the estate or representative

3. pay the estate of doing unfinished legal business for a deceased or disbarred lawyer

What is the general rule for the responsibilities as a prosecutor?
a prosecutor shall refrain from prosecuting a charge that the prosecutor knows is not suportable by probable cause

Note: a prosecutor make a timely disclosure to the defense of all evidence or information required to be disclosed, including all information that tends to negate guilt of the accused or mitigates the offense
What is the general rule for the unauthorized practice of law?
i. General Rule—a lawyer shall notice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction
What is the general rule for advertising?
i.General Rule—a lawyer may advertise services through written, recorded or electronic communication, including public media.

ii.General Rule—a lawyer cannot pay for referral

Note: a lawyer may participate in a referral service, the service can’t be for profit
What is the general rule personal advertising with potential clients?
i.General Rule—a lawyer shall not by in-person, live telephone or real-time electronic solicit professional employment form a potential client when a significant motive for the lawyer’s so is the lawyer’s pecuniary gain unless the person contacted: a lawyer; or

2.has a family, close personal, or prior professional relationship with the lawyer
What is the Limited exception where professional not required?
where the professional judgment of a lawyer is not involved, nonlawyers such as court clerks, abstracters, and many government officials are authorized to engage in occupations even if they require a special knowledge of law in certain areas.
What are the professions in which a lawyer may prepare certain documents?
1. Real Estate Documents

2. Title Insurance and Escrow Companies

3. Lay Tax advisers-may not counsel individuals as to the legal implications of their conduct but may, if qualified (accountancy training) prepare tax returns for clients.

4. Estate planners may not draft wills or prepare plans for specific individuals but may disseminate general information to the public through commercial or non-commerical means.
What is the rule for partnerships with laypersons that involve legal practice?
a lawyer may not be a partner with a nonlawyer if any of the partnership activities consists of the practice of law
What is the rule for sharing of legal fees with nonlawyers?
a lawyer or law firm must not hsare legal feees with a nonlawyer, except that (1) an agreement by a lawyer with the lawyer's firm, partner, or associate may provide for the payment of money, over a reasonable period of time after the lawyer's death, to the lawyer's estate, or to one or more specified persons; (2) a lawyer who purchases the practice of a deceased, disabled, or disappeared lawyer may pay to the estate or other representative of that lawyer
What is the definition of "false or misleading" advertisements?
a lawyer must not make a material misstatement of fact or law or make a statement that omits a fact necessary to make the statement, considered as a whole, not materially misleading?
What is the test for trial publicity?
a lawyer who is participating or has participated in the investigation or litigation of a matter must not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially predjuicing an adudicative proceeding in the matte.