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64 Cards in this Set
- Front
- Back
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Current COI
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L shall not rep a C if rep involves a concurrent COI. A COI exists if: 1) Rep of 1 C will be directly adverse to another rep; and 2) There is a substantial risk that rep will be materially limited by L’s responsibilities to another C, former C, 3P (inc. prospective clients), or by L’s personal interest.
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Permissible COI
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1) L reasonably believes he will be able to provide competent & diligent rep to each affected C; 2) Rep not prohibited by law; 3) Rep doesn’t involve assertion of 1 C’s claim against another C in the same litigation or proceeding; and 4) Each affected C gives ICW
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Conflict test
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L can provide competent & diligent rep if it would not be materially limited b/c of L’s other responsibilities or interests.
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Business Transactions
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L may not enter or knowingly acquire interest adverse to client unless: 1) Transaction is fair & reasonable; 2) Fully disclosed in writing; 3) C advised in writing to seek independent counsel and given reasonable time to do so; and 4) C gives ICW
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Gifts
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L shall not solicit a substantial gift from C, or prepare an instrument giving L one unless L is related to donor. Related = L maintains close, familial relationship with them
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Media Rights
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L shall not make or negotiate agreement giving L literary or media rights to a portrayal or account based in substantial part on info relating to the rep before conclusion of rep.
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Financial Assistance
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L shall not advance or guarantee $ to C. But L can advance court costs & litigation expenses as long as repayment is required. L can advance litigation expenses in a class actions and repayment may be contingent on outcome.
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Payment from 3P
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L shall not accept compensation from a 3P unless: 1) C gives informed consent; 2) L’s independent judgment not compromised; and 3) Info relating to rep is protected.
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Aggregate Settlements & Pleas:
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L who represents 2+ C’s shall not make an aggregate settlement of claims or aggregate agreement as to guilt or innocence, unless each client gives informed written consent (requires that each client knows what he’s getting).
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Limiting Liability
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L shall not prospectively limit malpractice liability unless C independently represented in making the agreement & permitted by law. Settling: L shall not settle a claim or potential claim for malpractice w/ unrepresented C or former C unless L advises in writing that C seek independent counsel & gives him reasonable opportunity to do so.
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Proprietery Interests
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L shall not acquire in a matter L is involved in but can: 1) Acquire a lien to secure L’s fee or expenses; and 2) K w/ a client for a reasonable contingent fee in a civil case.
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Related Lawyer
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L shall not rep C in a matter directly adverse to a C represented by a related L, unless C gives ICW & rep not a concurrent COI.
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Imputed Conflict
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If 1 L in firm is disqualified, entire firm disqualified as to current clients & former clients. While lawyers associated, none shall knowingly rep a C when any practicing alone would be prohibited, unless: 1) based on prohibited lawyer’s personal interest; and 2) doesn’t present sig risk of materially limiting rep of client by remaining lawyers.
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L's termination w firm: who can firm rep?
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Firm can generally rep clients adverse to clients who left w/ departing lawyer. Firm not permitted to rep C w/ interests materially adverse to C repped by former colleague if it’s the same or substantially related matter and a L remains who has confidential info.
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L's association w firm
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No firm L shall knowingly rep a person in a matter in which any of them is disqualified relating to former clients unless: 1) Disqualified L screened & apportioned no part of fee; 2) Former clients of disqualified L receives notice of conflict & screening mechanism; and 3) Firm shows no info relating to former rep was transmitted by disqualified L.
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After govt service
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L shall not rep C in matter L participated personally & substantially in while in govt unless appropriate agency gives informed written consent. If disqualified L screened & agency given notice of screening, other members of firm can rep.
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Use confidential govt info
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L w/ confidential govt info about a person acquired when L was a public official/employee cant rep private C whose interests are adverse to that person & info could be used to their material disadvantage. Firm can rep if former govt L screened.
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Govt service after private employment
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L serving as public officer subject to COI rules for current & former clients. He cant participate in a matter in which he participated personally & substantially while in private practice, unless appropriate govt agency gives informed written consent.
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Employment Negotiation
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: L serving as public officer/employee shall not negotiate for private employment in matter in which L participating personally & substantially. (Law clerk may negotiate after his judicial officer employer is given notice)
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Former judge acting as lawyer
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L shall not rep anyone in matter he participated personally & substantially in as judge or other adjudicative officer, arbitrator, mediator, unless all parties to the proceeding give informed written consent.
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Confidentiality
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L shall not reveal info relating to rep unless the client gives: 1) Informed consent; 2) Disclosure is impliedly authorized; or 3) Disclosure is permitted by RPCs.
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Death or subs bodily harm
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L shall reveal to prevent certain death or substantial bodily harm.
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c intends crime
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L may reveal to prevent C from committing a crime.
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c intends fraud
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L may reveal to prevent, mitigate, or rectify substantial injury to the financial or property interests of another that is reasonably certain to result or has resulted from C’s commission of a crime or fraud where C used L’s services.
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to secure legal advice
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L may reveal to secure legal advice about L’s RPC compliance
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to protect l
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L may reveal: 1) Establish claim/ defense in a controversy between L & C; 2) Defend against charge or claim against L based on conduct C was involved in; or 3) Respond to proceedings concerning the rep.
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disclosure for admin purposes
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L may give limited, necessary info to an outside agency for purposes like bookkeeping, if reasonable steps taken to ensure info kept confidential.
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disclosure to employees and firm members
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L permitted to share client info w/ employees & other firm members unless C gives instructions to contrary.
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Physical evidence
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wledge of physical evidence is protected, but possession is not. Atty who receives weapon used in crime, robbery proceeds must turn it over to proper authorities. He should preserve it in conditioned received & protect C’s identity & other confidential info.
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Client perjury and other false evidence
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L must be candid w/ tribunal and must not offer evidence L knows is false. If L learns evidence is false, L shall reveal fact to tribunal unless prohibited by RPCs. If prohibited, L shall take reasonable steps to obtain client consent to disclosure. If C refuses, L may withdraw. (May be fraud using L’s services if L put C on stand)
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Subordinate Lawyer
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L must abide by RPCs. If L asked to do something by supervisor, L doesn’t violate if he acts in accordance w/ supervisor’s reasonable resolution of an arguable question of professional duty.
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Supervisor Duties & Liability
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f. Supervisory Duties & Subordinate Lawyers: Partners & supervising lawyers shall make reasonable efforts to ensure firm & lawyers conform to RPCs.
i. Supervisor Duty: Shall take reasonable steps to assure those they supervise comply w/ RPCs ii. Imputed Liability: L is responsible for another L’s violation of RPCs if: 1) L orders or ratifies the conduct w/ specific knowledge; or 2) knows of the conduct when its consequences can be avoided or mitigated, but fails to take reasonable, remedial action. |
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Nonlawyer Assistant RPC Violation
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Partners, managers, or supervising lawyers shall make reasonable efforts to assure nonlawyer’s conduct is compatible w/ L’s professional obligations. L responsible for nonlegal personnel actions if their conduct would violate RPCs and: 1) L orders or ratifies the specific conduct w/ knowledge of it; and 2) L has managerial/supervisory authority and knows of conduct when its consequences can be mitigated but fails to take reasonable remedial action.
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General Rule for Advertisements
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L shall not make a false or misleading communication about L or his services. If a truthful ad is presented but would lead a reasonable person to form an unjustified expectation, then the statements are considered false or misleading.
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Referrals
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L may not give value for recommending his services except: 1) Reasonable costs of ads/communications; 2) Usual charges for non-profit referral service; or 3) Refer to another L as part of a non-exclusive reciprocal agreement between them and C is informed of existence & nature of agreement
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In-Person Solicitation
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L cant solicit professional employment when sig. motive is pecuniary gain unless: 1) To a L; 2) L has close relationship; or 3) Person referred from non-profit lawyer referral service.
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Direct Mail Solicitation
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L may send truthful written communications to potential Cs (targeted ok)
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Purchase of Law PRactice
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L may purchase a law practice if: 1) Entire practice or area of practice is sold; 2) Seller gives written notice to each C regarding proposed sale and right to retain other counsel; and 3) C fees don’t increase. Transfer may be presumed if C doesn’t object within 90 days.
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Authority
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L must reveal controlling authority directly adverse to position taken. (not other jdx’s
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L Personal opinions at trial
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L shall not refer to inadmissible evidence or make expressions of personal opinion as to justness, witness credibility, guilt/innocence.
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Lawyer as witness
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L shall not act as advocate at trial if L likely to be a necessary witness. If L has to testify, another L in the firm may act as an advocate unless it would constitute an impermissible conflict w/ a current or former client. L may be a witness if testimony relates to an uncontested issue.
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Statements to Media
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L must not make an improper (likely to substantially prejudice proceeding) extrajudicial statement to the media. Except statements made to protect from substantial UP not caused by L or C.
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Truthfulness to 3P
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L must not Knowingly: 1) Make a false statement of material fact or law to a 3P; or 2) Fail to disclose a material fact necessary to avoid assisting C’s crime/fraud
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Competence
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L must provide competent rep, which requires knowledge, skill, & prep necessary for the rep.
a. L shall not take a matter he is not competent to handle unless he can become competent w/o unreasonable expense or delay to client. If L doesn’t have knowledge or skill to rep client, he may refer it or associate w/ L of established competence (if C gives informed consent & total fee is reasonable) |
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Client decisionmaking
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C decides the objectives of the rep & has ultimate control. C decides whether to settle, how to plead, whether to waive jury trial or testify. L decides tactical decisions & must insure C decisions are informed by explaining matter to the extent reasonably necessary. L must promptly inform C of decisions/circs that require C’s IC.
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Reasonableness of Fees
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L’s fee must be reasonable & may take into account: 1) Time & labor required; 2) Novelty & difficulty of questions & issues; 3) Skill required; 4) Work L would forgo in taking on the case; 5) Fee customarily charged; 6) Amount involved and results obtained; 7) Time limitations imposed by C; 8) L's experience & rep; and 9) Whether fee contingent or fixed
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Fraud
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L may w/d if C persists in course of action L reasonably believes is criminal and fraudulent
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Settlement
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C makes substantive decisions (including settlement) & L makes tactical decisions. L must promptly inform C of any decision or circumstance that requires C's informed consent.
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Discrimination
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It is prof misconduct for L to commit a discriminatory act prohibited by state law
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Criminal Act
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It is prof misconduct for L to commit a criminal act that reflects adversely on L's honesty or trustworthiness
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Diligence
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L must expedite litigation and zealously advocate on C's behalf
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Prosecutor Responsiblities for Evidence favorable to defense
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Must disclose any info that tends to mitigate a finding of guilt
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Prosecutor Responsibilities for Pro Se D
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Must advise of need and procedure to obtain counsel. Must not seek to obtain a waiver of important pretrial rights from unrepresented accused
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Trial Publicity
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A lawyer must avoid making extrajudicial statements that could prejudice proceedings. And must exercise reasonable care to prevent persons assisting or associated with them from making statements they would be prohibited from making
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Inadmissible Argument
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A lawyer must not allude to any matter he does not reasonably believe is supported by admissible evidence at trial
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Communication with Represented Person
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L must not communicate about subject of rep with someone he knows is repped in the matter unless there is consent
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Harass 3rd Person
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In representing a C, L must not use means that have no substantial purpose other than to embarrass, delay, or burden a 3P, or use methods of obtaining evidence that violate 3P's rights.
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L as Witness
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L must not advocate at trial where likely to be a necessary witness. L may be a witness if testimony relates to an uncontested issue.
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Prompt Communication w C
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L must keep C reasonably informed about status of case and promptly comply w reasonable requests for information
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3P Interference
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The lawyer must not allow third-party to interfere with the representation of a client.
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Paralegals
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An attorney must take steps reasonably necessary to prevent the paralegal from violating the RPCs, even though paralegals are not responsible under the RPC.
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Comments about Witnesses
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An attorney may not make comments to the judge as to the truthfulness of a witness or client.
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Bribing Judge
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An attorney may not attempt to bribe a judge or do anything that would undermine the judges appearance of propriety.
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OPening Statements
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An attorney may not make false and misleading opening statements.
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