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68 Cards in this Set
- Front
- Back
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Rules of Conduct for MAss
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Massachusetts Rules of Professional Conduct
Bar Association membership is voluntary |
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Board of Overseers
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Investigate complaints re: mass attorneys
Supreme Court appoints chief bar counsel, who makes preliminary investigation |
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Bar Counsel Recommendations
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- Dismissal of Complaint
- Admonishment - Formal Proceeding be started - Formal discipline by agmt |
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Four types of discipline
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- Admonishment (yell in letter form)
- Public Reprimand (published in high court reporter) - Suspension - Disbarment |
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Malpractice Claim impact on Discipline
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May be none; Different governing bodies
Matter will be closed for discipline absent a rules violation |
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Mass Bar Admission Requirements
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- Graduate from ABA accredited school, may practice if from school that statute gives power to issue JD
- Take an oath to uphold state/fed constiuttions Need good moral character (truth/full disclosure) on application, duty to cooperate Pass MPRE |
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Duty when you know of a violation that raises doubt re character/fitness of a lawyer
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- Inform bar counsel's office for lawyers; inform commission on judicial conduct for judges
- Must be available to testify against that lawyer/judge |
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What if you learn of an attorney's indiscretions through rep of him as a client?
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Duty of confidentiality trumps duty to report
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Permissible Temporary multi-jurisdictional practice
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- Associate with active local lawyer
- Pro hac vice (just this one case) - Mediation/arbitration out of home-state practice - Anything Reasonably Related to Lawyer's Home-State Practice |
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Discipline by Another state
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Most states give some effect to sister state's determination on basis of Full Faith and Credit
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What activities require license?
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- Appearing in court + depositions
- Drafting documents that impact substantial client rights - NEgotiating settlements |
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What activities do not require license?
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- Interview people
- Filing in forms - Writing legal memos |
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What decisions to Clients make?
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Decisions that impact the merits of the case
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What decisions do Attorneys make?
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Decisions of procedure, tactics, and strategy, though Client may veto based on cost
Duty to report may overrule client's correct decision |
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What if client loses ability to make clear decisions because of minority/mental impairment?
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- Maintain normal client-lawyer relationship
- If belief of physical, financial, or other harm, lawyer may" -- consult with family members or adult protective agencies --seek appointment of guardian -- confidential information may be disclosed to extent reasonably necessary |
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Competency includes:
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- physical/mental ability
- legal knowledge - time to handle the case |
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If incompetent at outset, what offer client?
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- Hire somebody else
- let me hire a co-counsel - give me time to learn the area of law |
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Help non-lawyers practice law?
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No, unless pro se party
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Non-Competes with current partners/associates?
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May not enter, unless retirement and settling a claim between partners/associates
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Firm Name rules
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Must be appropriate: if an idiot could be mislead, improper
May have dead partner's names If discipline is permanent, name comes off door, if temporary name stays on |
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How holding yourself out as specialist?
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Making statement that you concentrate/specialize in a specialized area of law
- list yourself in a directorythat way - any other way you choose to associate yourself with the specialized area |
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Certifications
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- Private organization must be named and indication that organization's standards are not regulated by commonwealth
or - certified by named government body |
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Advertising
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May not be false or misleading: whether a layperson would find the statement or advertising misleading (idiot test)
Can't make unverified comparisons unless factually verifiable Cannot suggest/guarantee results Can't tout connections Watch out for special rules re contingent fees and direct mail |
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Contingent Fee Advertising
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Must clearly state terms and basis of fees (who pays)
When client is responsible for costs, when calculated, whether permitted in all cases |
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Targeted Mail
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Lawyer may send truthful non-deceptive direct mail letters unless actual knowledge prospective client doesn't want comm from lawyer
Must include Disclaimer - "inaccurate/mislead, report to G.C. of Bar Assoc." Phrase "This is an advertisement" must be on envelope + letter and in video Mass - cannot send by certified mail |
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Restrictions on Advertising
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- Client names in the ad require consent
- Name of at least one lawyer responsible for the content must be in the ad - Ad must be kept for a period of two years after its last dissemination with a record of where + when it was used |
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Soliciting Clients
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Avoid soliciting prospective clients (which in Massachusetts, means for fee paying work) by means of direct personal contact
If you give in-person unsolicited advice, don't represent that person |
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Exceptions to No Soliciting Clients
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- Communication to other bar members
- Grandparents of the lawyer, spouses or descendent of g-parents - Prospective clients where there is a previous relationship - Communication with organization and persons in trade/commerce |
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Sale and Purchase of Law Practice allowed if:
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- Written notice to clients
- Let clients know of any fee arrangement changes (can't raise) - Client must be told they may get a new lawyer - Assume consent within 90-day no response - Must sell entire practice |
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General Rule for Client Confidences
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Can't reveal confidential information that is harmful to client regardless of source
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Exceptions to Confidentiality
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- Required by law or court order
- With client consent after consultation - May reveal CI to extent the lawyer reasonably believes necessary to prevent conduct likely to result in DEATH or SUBST. BODILY HARM or INJURY to the financial or property interests of another, and to rectify client fraud or collect a fee or protect reputation |
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Safeguarding Client Property
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Must keep property in a bonded warehouse
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Bar Exam Rule of Thumb for Conflicts
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Anything that may be a conflict, treat as a conflict
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How accept a conflicted case?
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- Client must agree after
- Lawyer explains material risks and alternatives; and - Client agrees in writing (electronic ok) |
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Interests in book/movie rights
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Can't acquire interest in book/movie rights in subject matter of litigation until case is over, appeals and all
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Will drafting requirements
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Do not write wills for clients who leave us things, except
- family members - de minimis or nominal gifts |
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Lending money to clients
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No loans to clients, but may advance the costs of litigation
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Third Party Payment
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- Do what client tells you to do, not what the third party demands
- Third party not client so no privilege |
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Malpractice limits
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Cannot limit by getting client to agree not to sue you for malpractice
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Business with clients
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Lawyer is generally prohibited from doing business with clients, unless fair to the clients
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Current versus Former client lawsuits
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May represent current in action against former, EXCEPT:
- When matter or transaction in which you represented former client or - learned confidential information re: former client now relevant (if no longer confidential or if consent) |
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Represent adverse interests of a client?
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No, unless:
- lawyer fully explains risks and alternatives (informed consent) - Client agrees in writing (can be electronic) |
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Partnership/Corp Representation
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- Represent entity, not individuals/directors
- Lawyer can be director of company, no A-C privilege in board meetings - Duty to report illegal activity up the chain of command to CEO - If not appropriate response, must report to board of directors and MAY report to outside authority |
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Sarbanes-Oxley
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- governs securities lawyers
- Must report to Board, discretion to go to outside counsel (on bar, any given amount is worthy of reporting) |
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Conflicts created by other lawyers in the office:
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Real world - screen conflicted lawyer
Bar Exam World - Any conflicts that occur better to impute conflict + prevent entire firm from representation |
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Fees must be...
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reasonable. Factors:
- Time/Labor - Novelty/difficulty of the questions involved - Requisite skill - Customary fee within locality for similar work - Experience, ability and reputation of the attorney - Interference with other employment by the attorney - Time limitations imposed by the client |
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Restriction on Contingent Fees
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Cannot charge in criminal case
- If quasi, cannot charge You cannot charge in domestic relations case - alimony + support are not domestic relations |
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Divide fees with non-lawyer?
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Cannot, except:
- Salaries, retirement plans, bonuses, profit sharing - spouses of deceased partners to pay fees earned by the deceased partner |
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Dividing fees with other firm
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May, only if:
- client consents to fee arrangement in writing to BOTH referring + referred lawyers - Total fees must be reasonable - Lawyer to whom referral is made must confirm compliance before arrangement |
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Fee Division
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- do not have to be in proportion unless each lawyer assumes joint responsibility with client's written consent
- don't need to disclose to clients the shares fees unless requested - payment to former partner/association not prohibited pursuant to an agreement Fired lawyer gets quantum meruit |
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Retainer
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Advance on Fees
Availability Retainer - lawyer earns $ immediately - Typically in criminal white collar cases |
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Accounts Every Attorney Must Have
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Operating - that's where lawyers money goes
Trust - client's account, lawyer's $ in to cover bank fees (may have pooled client account) |
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General Rule of Trust Accounts
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have one, use it, keep records, don't mix
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Specific Rules of Trust Accounts
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- Must be in Mass unless Consent
- Must notify promptly when funds come in - Must keep records for 6 years after termination of Rep |
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Rebuttal Presumption re Non-Deposit of Client Cash
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Lawyer received cash, did not deposit, cannot account for it, rebuttable presumption that lawyer misused client funds and client was permanently deprived of the funds
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Exceptions to Trust Account Requirement
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Retired lawyer
debt lawyer law professor judge inactive lawyers |
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IOLTA
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Interest on Lawyer's Trust Account - interest is swept out and given to Mass Legal Assistance Corp and other charities
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Subordinate Lawyer
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Must follow rules; Defense:
- told to do it; - at least arguable that what you did was ok |
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Supervising Lawyer
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Responsible if ordered or ratified and does not take steps to mitigate where they can
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Ex Parte Communications with Jury
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Only when permitted by court
- During trial: -- Jury selection, opening, closing - After Trial - may talk unless: -- court prevents it; juror prevents it; purpose is to harass |
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Ex Parte communications with Witnesses
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May talk to witnesses, if corp witness has managerial responsibility then they are a party and must go through GC
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Adverse Authority
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affirmative duty to disclose contrary/adverse authority from controlling jurisdiction
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Duties of Opposing Counsels
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Must be fair and must not
- unlawfully obstruct access to evidence - falsify evidence - knowingly disobey an obligation under the rules - make frivolous discovery requests - not allude in trial to a matter the lawyer reasonably believes cannot be supported by the evidence - request non-party from voluntarily providing information - Pay or offer to compensate witness contingent on testimony content - present/threaten criminal/disciplinary charges to gain advantage in civil matter - While appearing in professional capacity, engaging in bias or prejudicial conduct |
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Withdrawal
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Must:
- If rep would lead to rules violation - lawyer becomes impaired - fired May: - any reason, judge bases decision on stage of case |
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Perjuring Clients
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- Dissuade client in order to fix testimony
- Attempt to withdraw - Do what judge says Client takes stand, ask for his statement |
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Trial Publicity
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- Don't make public statements that reas should know would have substantial likelihood of material prejudicing
- can speak publicly what a reasonable lawyer would believe required to protect client from prej - Prosecutor can't make extra judicial comments that have substantial likelihood of heightening public condemnation of accused - MAY state dry facts |
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Special duties of prosecutor
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- Proceed only on PC
- Protect D's right to counsel - No seeking advantage from unrepresented - Must disclose evidence tending to negate guilt - Limiting extrajudicial statements of others under prosecutor's control |
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Avoiding Appointment by Court
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Lawyer may not avoid unless good cause:
- If rep would lead you to violate rules - if rep would create an unreasonable financial burden - cause is so repugnant it impairs your ability to perform |
