Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
173 Cards in this Set
- Front
- Back
|
These activities require a license (are "practice of law")
|
1. appearances in
(a) court proceedings (b) judicial proceedings (c) depositions 2. drafting docs that impact substantial legal rights of a client (i.e. wills, trusts, K) 3. Negotiation settlements |
|
|
Activities that do not require a license (are not "practice of law"
|
1. interviewing (not deposing) 2. filling in legal forms (not K drafting) 3. legal memos |
|
|
Responsibility of supervisors over non-lawyers |
Must make reasonable efforts to ensure that non lawyers (within and outside firm) are conforming to Model Rules |
|
|
Lawyers can NOT split client fees with a NONlawyer UNLESS: |
1. heir of deceased attorney (i.e. wife is partner and had contingency case and dies. Husband can get the fee) 2. Salaries, bonuses, pensions for non lawyer EEs of firm (based on overall profitability of the firm) 3. Can share court-awarded legal fees with non-profit org that employed, retained, or recommended employment of lawyer in that matter. |
|
|
Lawyers must NOT imply that they are partners or otherwise associated with each other in a firm unless they really are. To the public, a law firm includes lawyers who: |
Frequently consult, work jointly, have access to each others' files. |
|
|
Only lawyers can be partners (or officers if corp), if ANY part of the partnership biz is the practice of law EXCEPT: |
SHs and only temporarily by operation of law (i.e. heirs of deceased partner) |
|
|
If you have dual professions (i.e. lawyer and CPA), you CAN list them BUT you can't use your dual profession to: |
Solicit legal biz (can't pretend you're not a lawyer) |
|
|
Does attorney-client privilege apply to dual profession? |
NO |
|
|
When are ancillary (or law-related) services subject to the Model Rules? |
When a lawyer reasonably provides them in conjunction with and related to legal services he is providing. |
|
|
Non-legal services provided by entity controlled by a lawyer and is not her law office are subjected to the model rules UNLESS: |
the lawyer takes reasonable steps to assure that the client knows of the lawyer's interest and that it is not legal services subject to the rules (i.e. privilege) |
|
|
Generally, you cannot enter into an agreement that restricts the right to practice law EXCEPT: |
1. as a condition of retirement agreement 2. to settle a claim between lawyers (law firm imploding and lawyers are suing each other, it's ok to have a reasonable noncompete |
|
|
What duties does a solo practitioner have in case of his death/disability? |
Designate another attorney to (1) review the files (2) notify clients (3) take protective action |
|
|
Lawyers can generally reject or accept cases. EXCEPT they SHOULD take when: |
1. client is defenseless or oppressed
2. 50 hours of pro bono |
|
|
Lawyers can generally reject or accept cases. EXCEPT they MUST take when: |
1. Judge appoints you to take a case |
|
|
If a judge appoints you to a case, you can avoid if you can show: |
Good cause. Examples: (1) MUST decline if acceptance would be a violation of law or disciplinary rule (2) MAY if it would pose unreasonable financial burden on lawyer (3) MAY if personal inability to rep client effectively (super repugnant D such that relationship would be impaired) |
|
|
Lawyer has duty to REJECT (must reject) if: |
(1) client's motive is to harass (2) frivolous claim or defense (3) strong personal feelings (4) physical or mental incapability (5) lawyer is not competent (too busy or inexperienced) (but has exceptions) |
|
|
If a lawyer is not competent to handle a matter, he MUST reject OR: |
ALE: (1) Associate: work with someone competent (2) Learn it (3) Emergency situation: take the case in an emergency |
|
|
Clients get to decide whether to: |
(1) Sue (2) Settle--must inform client of ALL settlement offers UNLESS client specifically and with INFORMED CONSENT authorized a specific rejection/acceptance range (3) Testify in crim case (4) Plea (5) jury vs bench trial (6) appeal |
|
|
Lawyers get to decide: |
(1) law, tactics, strategy (2) Depositions: Whether or not to take (3) Discovery: whether and what to seek/produce (4) Continuances: whether to request/grant
|
|
|
Lawyers get to decide procedural/tactical issues EXCEPT with regards to: |
case expenses |
|
|
If you knowingly make a false statement of fact to the court OR fail to correct a previously made false statement of material law/material fact: |
subject to discipline |
|
|
Four Types of Discipline for Violating a Mandatory Rule
|
a) Private Reprimand/Censure, Barassociation yelling at you via letter, Stays in your fileb) Public Reprimand/Censure, Available to people whowant to check you outc) Suspension (for a finite period): can’tpractice law name stays on door!d) Disbarment: ultimate level of discipline
|
|
|
Who Determines Rules of Discipline?
|
a. U.S. Supreme Courtis ultimate authorityb. State’shighest court determines rules for state
|
|
|
What is the legal standard for requirements to admission to the bar?
|
U.S. Supreme Court says state requirements for admission to bar need to be rationally related to the practice of law.
|
|
|
Examples of what are rationally or not rationally related to the practice of law
|
What is rational?1) grad from an ABA accredited law2) Refusal to take an oath to uphold state or federal const.What is not rational?1) US Citizenship2) Residency in the state
|
|
|
What are the two requirements for you when you apply to the bar?
|
Truth and full disclosure: you have to prove that you should be allowed in. Have to comply with what they ask about. It is a privilege to come into the professionDuty to cooperate
|
|
|
What are the requirements for lawyers regarding applicants to the bar?
|
Lawyers have affirmative duty to tattle on applicantsa. Good applicants – your input is aspirational/“should”b. Bad applicants – duty to report when asked, or to correct something you believemay have arisen in the matterc. No statute of limitations
|
|
|
Who regulates lawyers after admission?
|
Regulated by highest state court (and through its agencies)
|
|
|
What responsibilities/duties do lawyers have to report on other lawyers
|
Two-pronged duty when you know of a violationa. you must report what you know unless protected by privilegeb. have to be available to testify against the lawyer you reported on (can't be anonymous)
|
|
|
Examples of conduct that other lawyers must report?
|
1. If unethical conduct is a crime, must be relevant to some aspect of practice of law.a. dishonest, breach of trust, etc. reflects on characterb. single instance of pot - prob will cut you some slack if single instance stuff, more than once might become an issue2. A lawyer who commits fraud in the conduct of a business is subject to discipline, even ifthe lawyer is not active in the practice of law.
|
|
|
Rules regarding reporting on lawyers who commit fraud?
|
Lawyers are subject to discipline, even if the lawyer is not active in the practice of law.a. Can get in trouble no matter what you're doing (doesn't have to be during the practice of law)1) Ex: Clinton part of depo with paula jones perjured himself. Arkansas bar disbarred him
|
|
|
Where a lawyer learns of the bad conduct of another lawyer through representationof that lawyer as a client . . .
|
the duty of confidentiality will trump the duty to report themisconduct to the bar, OR through membership in an approved lawyer's assistance program that helps lawyers and judges with substance abuse problems.
|
|
|
Permitted Practice of law is restricted to . . .
|
where a lawyer is admitted
|
|
|
Lawyers may temporarily practice law in jurisdictions where they are not admitted in four situations
|
a. Associate with an active local lawyer - Affiliate yourself with a lawyer licensed in that stateb. Special permission called pro hac vice - "for this case only" - judge is likely to say yes but work with a locally licensed lawyerc. mediation or arbitration arising out of home state practiced. Anything reasonably related to lawyer's home state practice - i.e. real estate in another state. At the closing, will have a locally licensed lawyer, for ex.
|
|
|
Foreign lawyers may practice temporarily in the United States . . .
|
under similar circumstances as American multi-jurisdictional practice or they may provide legal services temporarily in the U.S. if the services are governed primarily by international law or the law of a foreign jurisdiction
|
|
|
When is it permissible for lawyers to permanently have a multi-jurisdictional practice
|
A lawyer who is employed by her only client which has several offices (applies to BOTH U.S. or foreign lawyers)a. i.e. corp lawyer (general counsel for Macy's for ex) or gov lawyer
|
|
|
The disciplinary consequences of practicing in multiple states are that . . .
|
The lawyer is subject to both jurisdiction's rules - can get in trouble for violating the rules of both jurisdictions
|
|
|
When a law firm has offices in more than one jurisdiction they may use the same name in each jurisdiction, but . . .
|
identification of the lawyers in an office of the firm shall indicate the jurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located
|
|
|
General Responsibilities of Partners, Managers, supervising subordinate lawyers
|
if you are an associate in a law firm and you violate the rules you are in trouble and your boss can be in trouble for something you did. (I was just doing what I was told)
|
|
|
Supervisor responsible for acts of subordinate if
|
they knew of misconduct at a time when consequences can be avoided or mitigated and the lawyer failed to take reasonable remedial action ORif the violation raises a substantial question of the lawyer's character and supervisor either ordered or ratified the conduct
|
|
|
Subordinate is not responsible for his/her own acts IF
|
You were told to do it ANDits a least arguable that what you did you thought was ok to do (i.e. technical violation)
|
|
|
How do you terminate the client-lawyer relationship
|
1. Need court permission when matter is in litigation and must return client's property, including the case file and unused portion of retainer.2. Judge's decision is often affected by the particular stage of the matter when the withdrawal is sought.
|
|
|
Four situations of Mandatory withdrawal
|
a. Duty to reject (see II.A.1.c.2)b. Client committing fraud and refusal to rectifyc. Client "insists" on violation of law or ethical provision d. Client has begun an illegal course of action
|
|
|
Permissive withdrawal
|
a. Can be for any reason where there’s no material harm to client, orb. If client consents, orc. Where one of these conditions is met:1) client persists in criminal or fraudulent conduct2) client has used attorney’s services to commit past crime or fraud3) client’s objective is repugnant or imprudent4) client breaks promise to lawyer to pay the fee5) unreasonable financial hardship for attorney’s practice6) client will not cooperated. But cannot abandon client. Must take the proper steps to avoid material adverseeffect on client.
|
|
|
Client-Lawyer Contracts
|
1. Lawyer can limit representation BUT,2. Basic rules of contract construction apply contract drafter get construed against you
|
|
|
Fee arrangement (scope of representation, basis or rate of fee, and expenses for which clientwill be responsible) shall be communicated to client before (or within a reasonable timeafter) representation starts. EXCEPT
|
When a lawyer will charge a regularly represented client on the same basis or ratein subsequent matters.
|
|
|
Factors in setting a reasonable fee (can use anything to set the fee just be clear about what the fees are)
|
a. Time and laborb. Difficulty and novelty of questionsc. Experience, reputation and abilitiesd. Relationships: nature and lengthe. Exclusions (whether lawyer must turn away other cases if client knows of this)f. Fixed or contingent (contingent can be higher) g. Fees customarily charged
|
|
|
Contingent fee arrangements requirements
|
1. must be reasonable2. must be signed by the client
|
|
|
Contingent fee arrangements may not be used in . . .
|
1. Criminal Cases2. No percentage of publication rights based upon representation until the case is over, appeals and all.3. Domestic relation casesExcept:(1) They'll give scenario where ex wife says he hasn't paid me in 2 years. Will you get the $ and I'll pay you from the proceeds.(a) NOT a domestic relations case, so it's ok. It's a collections issue. "Past due" support payments are debt and therefore okay
|
|
|
Contingent fee must be explained – in writing(s) and must notify the client of anyexpenses for which they are liable, whether or not the client wins the case.
|
1) Before you take the case2) After the case is concluded (settlement letter)
|
|
|
Lawyers can sell and buy a law practice (including goodwill) IF
|
the ENTIRE practice or ENTIRE field of practice is sold and purchased
|
|
|
Seller of law practice must exercise competence in . . .
|
Identifying a competent and qualified purchaser i.e. don't sell bankruptcy practice to someone who practices totally different area of law
|
|
|
Seller of law practice must provide written notice to clients regarding:
|
(1) the sale(2) clients' right to get their files returned(3) clients' right to get new counsel(4) consent will be presumed if the client takes no action within 90 days of the receipt of the notice. If notice cannot be given for some reasons, then a court order is required to authorize the transfer of the representation.
|
|
|
Exceptions to privilege |
(1) Waived by client (2) client seeks attorney's service to engage in or asset in future crime/fraud (3) Communication is relevant to issue of breach of atty-client relationship (4) civil litigation btw 2 ppl who were formerly joint clients of the atty (5) variety of situations where atty can furnish evidence about the competency or intention of client who has attempted to dispose of property by will or inter vivos transfer |
|
|
Exceptions to confidentiality |
(1) waived by client (2) required by ct order/law (3) informed consent (4) implied authority (5) to rectify false testimony before the end of proceedings (appeals too) (6) hypos with other lawyers to get advice (7) prevent reasonably certain death/bodily harm (8) prevent substantial financial harm or fraud IF client is or has used atty in this matter (9) dispute concerning atty's character (10) detect and resolve CoI BUT do min necessary and can't prejudice client |
|
|
Generally, lawyers can NOT rep client if COI. Conflict in some cases can be cured if: |
(1) Informed consent AND (2) confirmed in writing and (3) lawyer reasonably believes he can do it competently |
|
|
Lawyers can NOT give loans (even de minimus) to clients in connection with pending or contemplated litigation EXCEPT: |
advancing the cost of litigation |
|
|
Rule of imputation |
if one lawyer has a conflict, we all do. EXCEPT: (1) lawyer as witness (2) conflict is uniquely personal to lawyer (sexual relationship) |
|
|
Lawyers can NOT acquire an interest in litigation UNLESS: |
(1) contingent fees (2) security lean (bring your checkbook and then ill do your will) |
|
|
Lawyers can NOT oppose a former client in any matter where confidential info would be relevant UNLESS: |
(1) informed consent (2) in writing OR info is now commonly known; OR exception to confidentiality applies |
|
|
For joint representation to avoid COI problems: |
(1) reasonable belief of no adverse effect of ripping more than one person in a case (2) informed consent (3) in writing |
|
|
When repping 2 or more clients, lawyer can NOT make aggregate settlement UNLESS: |
(1) informed consent (2) in writing (3) agreement includes (a) clients agree how sum will be shared (b) disclosure to clients RE (i) total amount, (ii) details of each client's participation, (iii) how the atty fees and costs will be settled |
|
|
An expectation of protection and an atty-client relationship established with prospective client IF: |
(1) client manifests intent that there is representation and lawyer agrees (2) Client manifests intent and lawyer fails to make it clear that they're not dating and lawyer knows or should know that the client is reasonably relying on representation (SEX) |
|
|
Lawyers can NOT oppose their parent/child/sibling/spouse UNLESS |
(1) full informed consent *no rule of imputation |
|
|
Maintaining competence is 2 prong duty: |
(1) malpractice (doesn't auto mean disciplinary rule has been violated) (2) Professional responsibility (doesn't auto mean malpractice) |
|
|
Purpose of civil malpractice claim is: |
Compensation! *recovery comes from COA in K, tort, or fiduciary relationship. Requires money lost AND but for causation. (but for what you did or didn't do, I would have won) |
|
|
Purpose of professional responsibility disciplinary process is: |
Punishment. *doesnt require $ loss or causation (coming after you bc you violated a rule and you're evil) |
|
|
Lawyers connected with a case must NOT make a public statement outside the courtroom that she should...: |
reasonably should know would have a substantial likelihood of prejudicing the case. EXCEPT: A lawyer may state: (1) the claim, offense or defense involved and, except when prohibited by law, the identity ofthe persons involved; (2) information contained in a public record; (3) that an investigation of a matter is in progress; (4) the scheduling or result of any step in litigation; (5) a request for assistance in obtaining evidence and information necessary thereto; (6) a warning of danger concerning the behavior of a person involved, when there is reason tobelieve that there exists the likelihood of substantial harm to an individual or to the publicinterest; and (7) in a criminal case (i) the identity, residence, occupation and family status of the accused; (ii) if the accused has not been apprehended, info necessary to aid in apprehension ofthat person; (iii) the fact, time and place of arrest; and (iv) the ID of investigating and arresting officers or agencies and the length of theinvestigation. |
|
|
Lawyer can speak publicly tothe extent that...: |
a reasonable lawyer would believe is required to protect client from substantial undue prejudicial effect of recent publicity not initiated by the lawyer or client. |
|
|
Lawyers CANNOT be necessary witnesses for client UNLESS: |
(1) uncontested or ministerial matter (2) testimony about legal fees |
|
|
Lawyers who wish to speak to opposing clients MUST: |
Go through the person's atty, even if party initiates or consents. "a lawyer shall notcommunicate about the subject of therepresentation with a person the lawyerknows to be represented by another lawyer inthe matter, unless the lawyer has the consentof the other lawyer or is authorized to do soby law or a court order." *BUT clients can communicate directly with each other |
|
|
When communicating with unrepresented clients, lawyers MAY negotiate a transaction or settle a client's dispute, but can NOT: |
(1) Give legal advice (2) appear disinterested |
|
|
Lawyer as advisor: |
(1) client entitled to all info (2) should give legal, moral, ethical, or economic advice. |
|
|
Lawyer as Evaluator (legal audit, possible law suits): |
(1) must be compatible with other aspects of rep (2) need informed consent (protect ya neck) |
|
|
Lawyer as negotiator: |
(1) can exaggerate but not lie about estimates of price and value as to what client would accept to settle (2) must promptly notify sender if doc sent to lawyer by mistake (but can read it etc) |
|
|
Lawyer as arbitrator, mediator, or other third party neutral: |
(1) must explain that there is no atty-client relationship to unrepped party (2) must withdraw if ends up being litigated |
|
|
Prosecutors must NOT prosecute without: |
probable cause |
|
|
If a prosecutor knows of clear and convincing evidence that D was innocent, he MUST: |
seek to remedy the conviction of a D in her J |
|
|
If a prosecutor knows of new, credible andmaterial evidence creating a reasonable likelihoodthat a convicted defendant did not commit an offenseof which the defendant was convicted, the prosecutorSHALL: |
(1) promptly disclose that evidence to an appropriate courtor authority, and (2) if the conviction was obtained in the prosecutor’sjurisdiction, (i) promptly disclose that evidence to the D unless a courtauthorizes delay, and (ii) undertake further investigation, or make reasonable efforts tocause an investigation, to determine whether the D wasconvicted of an offense that the D did not commit. |
|
|
When permitted by law, a lawyer MAY serve as a state legislator or hold other public office but may NOT |
use that office to attempt to influence a tribunal in a pending matter. Must be SEPARATE + NO CONFLICT |
|
|
Lawyer can serve as a director, officer, or member of an org involved in: |
reform of the law or its administration, even if the reform may affect the interests of a client of the lawyer. |
|
|
When lawyer works on law reform project and is asked to participate in a decision that will materially benefit a client...: |
MUST disclose that fact but may not name the client. |
|
|
Client trust accounts: Lawyer MUST |
(1) Keep all clients’ money in a separate (trust)account and may NOT mix client funds with lawyer funds
(2) NOT removeany funds from the client fundaccount for any use other than the client’s case as doing so would becalled CONVERSION. *Both ofthese actions are disciplinable. |
|
|
Pooled trust account: |
Lawyers can use for small sums but can NOT use one client's $ for the benefit of another client. |
|
|
For large sums of client $ held for a long time, must be separate interest-bearing acct with interest going to client. EXCEPT: |
Can cover bank service charges |
|
|
Lawyer's advertising must NOT be false or misleading. Types of false or misleading communications: |
(1) outright falsehoods (2) true communications that mislead (3) Communications that create unjustified expectations (4) Unsubstantiated comparisons |
|
|
Solicitation is seeking fee paying work (not worried about pro bono) through a targetedcommunication, initiated by the lawyer, that is directed to a specificperson, that offers to provide or can reasonably be understood as offering to provide legal services through in person, live telephone, or through real time electronic contact. OK if: |
soliciting from a lawyer or from a person with whomthe lawyer has a family, close personal or previousrelationship. (mom/dad, formerclient, or good friend) |
|
|
Permissible solicitations: |
(1) Targeted mail; BUT state or fed can restrict. ex: requiring envelope to say "advertisement" (2) Group and prepaid legal services--as long as the memberships or subscriptions for theplan are not solicited from specificpersons or targets who are known toneed legal services (similar to insurance if you need a lawyer) (can’ttarget illegal immigrants) (3) Education: OK to give seminars the educate public but no individualized advice (4) close friends/family; former/present client |
|
|
Lawyers' duties to the public and the legal system: |
MUST -accept appts unless good cause, etc. CAN NOT -crit judges and adjudicating officials -make political contributions to obtain engagements of appointments -improperly influence gov officials MAY -pro bono -serve in legal services org (i.e. ACLU) |
|
|
Code of judicial conduct applies to: |
(1) judges (2) magistrates (3) court commissioners (4) referees (5) special masters *anyone who performs a judicial function |
|
|
Retired judges who are subject to recall can serve as arbitrators or mediators but NOT: |
while serving as a judge |
|
|
Judges: must not create an appearance of impropriety: |
when judge's conduct creates a reasonable perception that the CJC has been violated or that otherwise reflects adversely on the judge's honesty, impartiality, temperament, or fitness of a judge (triggers this code) |
|
|
Judges can NOT use personal letterhead for personal biz but MAY: |
write letter of rec based on personal knowledge on official letterhead as long as (1) says the ref is personal and (2) no likelihood that it could reasonably be perceived as an attempt to use judicial office to exert pressure |
|
|
Judges can NOT coerce parties to settle but MAY |
encourage settlements |
|
|
A judge may consult with other judges and court personnel regarding amatter, BUT indoing so...: |
the judge must make reasonable efforts to avoid receiving factual information that is not part of the record and the judge must not abrogate responsibility to decide the matter. |
|
|
Judges must not partake in ex-parte communication UNLESS: |
(1) Expresslyauthorized bylaw (ex. Drug or mental healthcourts where judges assume a moreinteractive role with parties) (2) Mediationor Settlement (with consent of the parties) (3) Emergencyor de minims (thanks for candy) (4) Inadvertent Receipt of Unauthorized Ex Parte Communication including electronic information—Judge mustnotify parties and give an opportunity to respond |
|
|
Judges may not make public or nonpublic comments that...: |
may affectcase outcome or other- wise interfere with a fair trial |
|
|
Judges must not make pledges, promises, or commitments that are: |
inconsistent with the impartial performance of duties. |
|
|
Can judges criticize jurors for their verdict? |
NO BITCH |
|
|
Judges making administrative appointments (court personnel, special masters, guardians) must do so with impartiality and base on merit
|
not on the basis of nepotism or favoritism |
|
|
A Judge who has actual knowledge that another judge hasviolated the CJC (or a lawyerhas violated the Rules of Professional Conduct) in a manner that raises asubstantial question as to the otherjudge’s/lawyer's character or fitness MUST: |
MUST report *where judge receives such info from another, judge, must take appropriate action |
|
|
Judges running for office MAY speak at gatherings but must NOT: |
with respect to cases, controversies or issues that are likely to come before the court, make pledges,promises, or commitments that are inconsistent with impartial performance of duties |
|
|
Can judges hold office or make speeches on behalf of a political org? |
NO BETCH |
|
|
Can judges use court staff, facilities or other court resources in a campaign? |
NO BETCH |
|
|
Under what circumstances may judges respond to false or misleading statements issued by an opponent, or media? |
They can respond with factually accurate response, which may be done personally, but preferably through someone else. |
|
|
Judges or candidates for judgeship can organize a fundraiser but must be through: |
establishing a campaign committee and can do so for a specified period before and after a specified number of days after election. Can't go out and personally get $. Must meet all reporting requirements. |
|
|
If a judge wants to run for a non-judicial elected office: |
must resign from the bench if the law requires. *Not necessary to resign judgeship if appointed office. |
|
|
The definition of Privilege and Confidentiality
|
Privilege protects confidential communication; confidentiality covers the same AND any other information obtained by the attorney relating to representation, regardless of the source, including that which may be embarrassing or derogatory to the client.a. Privilege is held by the client and NOT by the attorney
|
|
|
What duty do lawyer's have to protect confidential and privileged information
|
Lawyers have an affirmative duty to protect information; i.e., lawyers MUST makereasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorizedaccess to, information relating to a client’s representation. a. Reasonableness of the lawyer’s efforts depends on factors including: the sensitivityof the information, the likelihood of disclosure absent safeguards, the cost anddifficulty of implementing such safeguards, and the extent to which safeguardsadversely affect the lawyer’s ability to represent clients.
|
|
|
Does the presence of a third person necessarily destroy confidentiality
|
NO. The presence of a third person does not destroy confidentiality if the third person was present to help further the attorney-client relationship.
|
|
|
Is an attorney's work product immune from discovery?
|
Yes, material prepared by a lawyer for or in anticipation of litigation is immune from discovery UNLESS the other side shows a substantial need for the material and an inability to gather the material without undue hardshipi.e. defective product destroyed during testingA lawyer's mental impressions and opinions are always immune from discovery regardless of need, UNLESS immunity is waived.
|
|
|
Disclosures expressly authorized by Client
|
Express authorization requires informed consent: client agrees to proposed course ofconduct after lawyer sufficiently explains material risks and reasonable alternatives.
|
|
|
Disclosures impliedly authorized by Client
|
2. Implied authorization to carry out representation (except screened member)
|
|
|
General Rule for Conflict of Interest for Judges and Government Employees
|
Judge or gov EE who later goes into private practice may not represent a party on a matter she worked on personally. Rule: Cannot take “matters” where previously acted or had substantialresponsibility absent informed consent by appropriate gov agency, confirmed in writing, but no rule of imputation—solong as lawyer is “screened off” from the case.
|
|
|
Matters in which a a lawyer in private practice can take, even though as a government lawyer/judge, he or she did the work.
|
a) drafting laws - can fight the law you draftedb) compiling statistics can fight the stats
|
|
|
Matters in which a a lawyer in private practice cannot take, when as a government lawyer/judge, he or she did the work.
|
a) Drafted a Kb) as a judge if you rule on the merits of a caseHowever, someone else in the firm can take the case - so long as the former government lawyer is timely "screened."
|
|
|
What are the elements of a Screen
|
1) Written disclosure to the other side2) No working on or discussing case or access to file by “screened-off” attorney3) No fee to “screened-off” attorney
|
|
|
Quick Advice Programs are . . .
|
sponsored by court or “nonprofit” organization: lawyer-clientrelationship exists but only through the quick-advice stage and informed consent to thelimited scope of relationship required.
|
|
|
Quick Advice Programs rules regarding conflict of interest
|
Conflict of Interest rules: they relax because lawyer has no time to run a conflicts check, BUT where a conflict is actually known to the lawyer, it cannot be ignored.Actual knowledge of a conflict can be inferred from the circumstances
|
|
|
When a client hires a lawyer after the quick advice (for regular and continued representation) . . .
|
the conflicts rules WILL apply. Have to run a full conflicts check before you fully take that case.
|
|
|
Lawyers must exercise diligence and care is these five ways
|
1. Reasonably consult with client about the means by which the client’s objectives are tobe accomplished2. Keep client reasonably informed about status of/developments in the case3. Promptly comply with reasonable requests for information4. Explain matters to client to extent reasonably necessary to permit client to makeinformed decisions regarding representation5. Communicate all settlement offers not specifically addressed in blanket authority fromclient
|
|
|
Can a lawyer limit liability for malpractice
|
Lawyer can’t do it prospectively unless client hasindependent representation in making the agreement.
|
|
|
Are lawyers required to have malpractice insurance
|
No. Prudent lawyers carry malpractice insurance but are not required to
|
|
|
Does a lawyer have to reveal an adverse decision or statute of a controlling jurisdiction
|
Yes, a layer must reveal adverse decision or statute of controlling jurisdiction.1. Can’t bury adverse decision2. No explanation is required to be given to court3. Can distinguish away4. Can offer a good faith argument to change the law
|
|
|
Are lawyers required to be civil to opposing party or counsel
|
No civility and courtesy are aspirational
|
|
|
Rules regarding meritorious claims and contentions
|
Lawyer must have good faith basis for actions; make only meritorious claims and contentions.
|
|
|
Fees for Witnesses
|
a. No contingent fees for expertsb. Can pay reasonable expenses and lost wages, but can’t condition payment on testimony
|
|
|
Does a lawyer need permission from the other side to interview a witness
|
No EXCEPT corporate employees of managerial responsibility or whose actscould be imputed to corporation requires consent of organization’s in-housecounsel—and if corporate employee has independent counsel, then theconstituent’s attorney’s consent (rather than corporate counsel’s) is sufficient.
|
|
|
Can lawyers speak to a juror during the trial
|
No. A lawyer connected with the case cannot talk about case with a juror unlessauthorized by law or court order. No de minimis exception.Can't even say hello if you walk into the same elevator
|
|
|
After trial a lawyer must not communicate if any of these 3 conditions are met:
|
1) court says no2) juror tells you no3) if the purpose of your communicating is to involve coercion or harrassment
|
|
|
General rule when a lawyer represents a corporation/entity
|
You represent the corporation/entity, not an individual officeror director
|
|
|
If a lawyer is a director of a company . . .
|
no attorney-client privilege in board meetings
|
|
|
If lawyer for organization learns that an act has been or is about to be committedin a way that violates a duty to the organization or a law in a way that might beimputed to the organization, AND if the violation is likely to cause substantialinjury to the organization, the lawyer must proceed as is reasonably necessary toprotect the interests of the organization in these three ways
|
1) Must report violation to higher authority (president) and to outside directors ifnecessary. 2) May report relevant information to appropriate persons outside the organizationonly if, and to the extent that, the lawyer reasonably believes suchreporting is necessary to prevent substantial injury to the organization. 3) Narrow range of discretion: lawyer need not report violation if she reasonablybelieves that the organization’s best interests do not require the violation to bereported.
|
|
|
Security Violations – Sarbanes-Oxley Act
|
There is a Duty of Securities lawyers to report up the chain of command to CEO; If not appropriate response, must report to board of directors and may report to SEC.1) Consequences of Reporting: SEC protects lawyer
|
|
|
Lawyers may reveal confidential corporate information . . .
|
only to extent necessary to protect corporation.
|
|
|
Two Types of Retainers
|
An Advance of fees: (belongs) to client (goes into trust account) andis transferred to operating account once earned; and any unearned portion must bereturned if lawyer is fired or withdraws.Availability retainer: (belongs) to attorney (goes into lawyer’s account)
|
|
|
Rules regarding Gifts from Client
|
Lawyer may accept a reasonable gift from client, but must not draft deed of gift or will,unless related to donor.So if mom wants you to draft a will that includes you, that's fine.
|
|
|
If a lawyer and client have a dispute regarding fees . . .
|
If disputed, that portion remains in the client trustaccount.Following the receipt of settlement, the lawyer must notify the client promptly, keep records, render accounting, and pay out promptly.
|
|
|
Lawyers are allowed to pay referral fees if these four conditions are met . . .
|
okay to split fees with other lawyers outside of firm as follows:1. Work together,2. With client’s informed consent to the agreement (including the share each lawyer willget), confirmed in writing3. Paid proportionally to work done (OR, some different proportion IF each lawyer assumes joint responsibility for the matter.)4. One reasonable fee in total
|
|
|
Lawyers can enter into a reciprocal referral arrangements withanother lawyer, or non-lawyer professional, with the following restrictions:
|
a. Arrangement cannot be exclusiveb. Referred client must be told of the arrangement and if the arrangement creates aconflict of interest for either the referring or receiving lawyer, then the lawyer mustget the client’s informed consent, confirmed in writing.c. The referral agreement must not interfere with the lawyer’s professional judgmentas to making referralsd. The agreement should not be of indefinite duration and should be reviewed periodically to be sure it complies with the Rules.
|
|
|
Can lawyers list their specializations
|
No UNLESS patent and admiralty
|
|
|
Can a lawyer call themselves a "certified specialist"
|
Not okay, unlessyou are certified by an organization approved by the state or ABA and identify it
|
|
|
A judge must disqualify herself . . .
|
when impartiality might reasonably (and objectively…notbased on party whim) be questioned. In an emergency, necessity overrides the rule of disqualification.
|
|
|
When must judges disclose information are could lead to their disqualification
|
Judge should disclose any information that parties or lawyers might consider relevanteven if the judge does not believe there is a reasonable basis for disqualification.
|
|
|
Do judges have to step down if they have personal knowledge/bias of possibly disputed facts
|
Yes, a judge must step down with personal knowledge/bias of possibly disputed facts.
|
|
|
A judge must step down if she had prior involvement as . . .
|
as material witness, lawyer, associateof key lawyer in case, presided as judge in another court, served as governmentemployee in a capacity concerning the proceeding.
|
|
|
General rule regarding judges with economic interests in a matter in which they preside
|
Judge cannot have economic interest (personally or as fiduciary) in the matter or one ofthe parties before her — except de minimis.De Minimis interest: an insignificant interest that raises no reasonable question regarding the judge's impartiality.a. Includes interests held by judge’s spouse, domestic partner, parent or child(wherever the kid resides) or any other family member living in the judge’s homeb. Exceptions: Mutual Funds (unless judge participates in the management of thefund or the proceeding could substantially affect the value of the interest; securitiesheld by an organization, bank deposits or mutual insurance policies…UNLESSthe proceedings could impact the value of the deposit/policy).
|
|
|
Rules regarding judges relatives and disqualifications
|
If former partner or close relative (that is within the 3rd degree of relationship) is party,attorney, material witness, or person with more than a de minimis interest that couldsubstantially be affected by the proceeding that is before the judge.cousin is ok but anyone closer is not. In-laws count as mother/father/brother/sister
|
|
|
Rules regarding those who have contributed to judges electoral campaigns
|
When judge knows a party (or attorney or law firm) has contributed more than thejurisdiction’s specified amount to his (her) election campaign committee within a designatednumber of prior years to the judge’s election.
|
|
|
Rules regarding disqualification of judges who make public statements
|
When judge or a candidate for judge makes a public statement other than courtproceeding/opinion that commits or appears to commit the judge to a particular position or result.
|
|
|
Can parties waive issues that prompt judge disqualification
|
Parties can waive for all the aboveEXCEPT the judge is personally bias towards a party or one of the lawyers.
|
|
|
Can a judge testify as a witness
|
NO except a judge may testify as a character witness if compelled by subpoena (cant offer)
|
|
|
Judge may take part in educational, religious, charitable, fraternal or civic organizationsand activities that are not for profit. Suchactivities include:
|
a. Solicitation of contributions for the organization, but only from family members orother judges over whom the judge has no supervisory or appellate authorityb. Appearing or speaking at, receiving an award at, or being featured on the programof the organization’s event (if the event is a fund-raiser, the event must concern thelaw, legal system or administration of justice)c. Serving as an officer, director, trustee or nonlegal advisor unless the proceedingswould ordinarily come before the judge.
|
|
|
What action must judges take if they are members of organizations that discriminate on the basis of race, sex,gender, religion, national origin, ethnicity, or sexual orientation….
|
Once judge learns of the discrimination, must resign immediately.a. Even if not member, must not use the benefits or facilities of that organizationb. May attend an event there if it is an isolated event that cannot be perceived as anendorsement of the organization’s practices.c. Exception: OK to be a member of a religious organization (which is a lawfulexercise of freedom of religion) BUT has to be religious in nature
|
|
|
Can judges have fiduciary relationships
|
judge must not serve as an executor, administrator,trustee, guardian or other fiduciary—except for a family member—and then onlywhere:a. There is no interference with official duties,b. Proceedings would not ordinarily come before that judge (in judge’s own court), orc. Matter will not involve adversary proceedings in a court under that judge’s appellatejurisdiction
|
|
|
Rules regarding judges working for businesses
|
Generally, a judge may not serve as an officer, director, manager, general partner,advisor, or employee of a business. But the judge may hold and manage her own investmentsand those of her family unless such activity will:a. Interfere with official dutiesb. Lead to frequent disqualification of the judgec. Involve the judge in proceedings that will likely come before the judge
|
|
|
Can judges receive reasonable compensation for speaking, teaching or writing
|
Yes unlesssuch payment could appear to undermine impartiality. Judges may be reimbursed fornecessary expenses (travel, food, lodging, etc.) or have fees waived when associatedwith the judge’s participation in permitted activities.
|
|
|
Rules regarding Judges accepting gifts
|
Judges must not accept gifts, loans, bequests or other things of value where prohibitedby law or where such may appear to undermine impartiality.a. Where not prohibited, judges may accept without reporting di minimus items(plaques, certificates), ordinary social hospitality, gifts from people whose appearanceor interest in a case would lead the judge to be disqualified anyway (ex.Family members and close friends). b. Where not prohibited, judges may accept and MUST report: invitations to attendwithout cost an activity related to the law or legal system or an event associatedwith the judge’s educational, religious, charitable or civic activities if that invitationis offered to non-judges engaged in similar ways, and gifts, loans, bequests or otheritems of value if the source is someone who is likely to come before the judge
|
|
|
Judges do not engage in the full-time practice of law, except:
|
a. Pro seb. Advice for family members (but may not act in a forum)
|
|
|
A lawyer shall not enter into a business transactionwith a client unless: |
(1) the transaction and terms on which the lawyer acquiresthe interest are fair and reasonable to the client and arefully disclosed and transmitted in writing in a manner thatcan be reasonably understood by the client; (2) the client is advised in writing of the desirability ofseeking and is given a reasonable opportunity to seek theadvice of independent legal counsel on the transaction;and (3) the client gives informed consent, in writing, to the essential terms and thelawyer's role in the transaction, including whether thelawyer is representing the client in the transaction. |
|
|
When does right to effective counsel (6th Amend) attach and apply? |
Attaches: At initiation of formal adversary proceedings.E.g., indictment, complaint filed etc. Applies: At all pretrial stages, trial, guilty plea (if any), first direct appeal (ends once 1st appeal is lost) |
|
|
What is the standard for vacating a conviction due to ineffective assistance of counsel? |
Deficient performance by counsel AND resulting inprejudice, with performance being measuredagainst an ‘objective standard ofreasonableness,’ In judging the D's investigation,hindsight is discounted by pegging adequacy to‘counsel's perspective at the time’ investigativedecisions are made, and by giving a ‘heavymeasure of deference to counsel's judgments.’” (Strickland case) Performance AND prejudice prongs. |
|
|
A lawyer shall not accept compensation for representing a client from one other than the client unless: |
(1) the client gives informed consent; (2) there is no interference with the lawyer'sindependence of professional judgment or withthe client‐lawyer relationship; and (3) information relating to representation of aclient is protected as required by Rule 1.6. |
|
|
the attorney‐client privilege may be invoked with respect to: |
(1) a communication (2) made between privileged persons (3) in confidence (4) for the purpose of obtaining or providing legal assistance for the client. |
|
|
4 most common exceptions to duty of confidentiality: |
(1) “the disclosure is impliedly authorized inorder to carry out the representation.” 1.6(a) (2) “the lawyer reasonably believes [it is]necessary . . . to comply with other law or acourt order” 1.6(b)(6) (3) “the client gives informed consent.” 1.6(a) (4) “the lawyer reasonably believes [it is]necessary” to reveal in controversiesinvolving lawyer and client, e.g., suit aboutfees, malpractice action |
|
|
A lawyer shall not enter into a biz transaction witha client or knowingly acquire an ownership, possessory,security or other pecuniary interest adverse to a clientunless: |
(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client; (2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and (3) the client gives informed consent, in a 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. |
|
|
lawyer repping a client before alegislative body or administrative agency in anonadjudicative proceeding shall: |
(1) disclose that the appearance is in a representative capacity and (2) shall conform to the provisions of Rules 3.3(a) through (c) (candor to tribunal), 3.4(a) through (c) (fairness to opposing party and counsel), and 3.5 (impartiality and decorum of the tribunal) |
|
|
A lawyer who knows that a judge hascommitted a violation of applicable rules of judicial conduct that raises a substantialquestion as to the judge's fitness for office shall |
inform the appropriate authority. |
|
|
Upon a D's request, the government must permit the D to inspect and to copy or photograph books, papers,documents, data, photographs, tangible objects, buildings orplaces, or copies or portions of any of these items, IF: |
the item is within the government's possession, custody, or control and: (i) the item is material to preparing the defense; (ii) the government intends to use the item in its case‐in‐chief at trial; or (iii) the item was obtained from or belongs to the defendant.” |
|
|
A Brady violation occurs when: |
1. evidence favorable to the accused 2. in possession or control of state and notturned over to defense, either willfully orinadvertently 3. withheld evidence was “material” *This is about exculpatory evidence |
|
|
Gov must turn over these kinds of evidence to D: |
(1) Evidence going to guilt/innocence (2) Evidence going to sentencing exposure(Brady itself) (3) Evidence impeaching govt. witnesses (“Gigliomaterial”) (4) Evidence going to affirmative defense (Agurs) |
|
|
Evidence is material when: |
there is a reasonable probabilitythat, had the evidence beendisclosed to the defense, the resultof the proceeding would havebeen different. A ‘reasonableprobability’ is a probabilitysufficient to undermine confidencein the outcome (US v Bagley) *Courts recently getting tougher on materiality standard--has to really undercut sufficiency of gov's evidence |
|
|
When a prosecutor knows of clear andconvincing evidence establishing that aD in the prosecutor’s J wasconvicted of an offense that the Ddid not commit, the prosecutor SHALL: |
seek to remedy the conviction. |
