Reading...
Play button
Play button
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;
59 Cards in this Set
- Front
- Back
|
What are the general substantive standards of the lawyer disciplinary process?
|
Under Ohio Professional Responsibility law, a lawyer may not :
a. violate a disciplinary rule or as a judicial candidate, violate applicable provisions of the Code of Judicial Conduct b. Circumvent a Dsciplinary Rule through the actions of another c. Engage in illegal conduct involving moral turpitude. d. Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation e. Engage in conduct prejudicial to the administration of justice f. Engage, in a professional capacity, in conduct involving discrimination or g. Engage in any other conduct which reflects adversely on a lawyer's fitness to practice. |
|
|
What are the penalties for engaging in uprofessional conduct in Ohio?
|
(i) disbarment
(ii) suspension (iii) probation for a time following suspension and (iv) public reprimand by the Ohio Supreme Court. |
|
|
What is the attorney's duty to report Disciplinary violations?
|
Where an attorney has unprivileged knowledge of another attorney's violation of the Disciplinary Rules, the attorney must report such knowledge to the appropriate authority. Attorneys also have a duty to assist in the investigation of complaints, to testify in disciplinary hearings, and to respond to request for information regarding a complaint against herself.
|
|
|
The Code of Professional Conduct 's prohibition on the unauthorized practive of law?
|
The Code of Professional Conduct prohibits the unauthorized practice of law, defined as the rendition of services for others that calls for the professional judgment of a lawyer.
|
|
|
What are the rules for legal Corporations?
|
Under Ohio Disciplinary rules, lawyers may incoporate, but the liability of the lawyer to the client may not be limited. Additionally, a lawyer may not practice in a legal corporation if a nonlawyer i) owns an interest therein (ii) is a corporate director or officer thereof; or (iii) has theright to direct or control a lawyer's professional judgment.
|
|
|
What may an ohio lawyer include in an advertisement?
|
An ohio lawyer may include : his educational background and degrees conferred, dates of admission ot the Ohio and federal bars, membership in bar associations, technical and professional licenses, foreign language ability, and fee information, if the information is accurate and presented in a dignified manner. Statements that are false or misleading, defined as mistating or failing to state material information, creating unjustified expectations, or making unverifiable comparisons are prohibited.
|
|
|
What is the rule for solicitation of legal work?
|
A lawyer must not seek fee-paying work by initiating a personal or live telephone contact with a prospective client with whom the lawyer has no family or prior professional connection.
|
|
|
When may a lawyer hold herself out as a specialist?
|
A lawyer may hold herself out as a specialist only if the lawyer is admitted to practice before the United states Patent and Trademark office , or a lawyer who is engaged in admiralty practice may indicate so on letterhead or office sign. Additionally, where a lawyer who has received certification as specialist from a private organization in a particular field of law may communicate the fact of certification if the certification is issued only to lawyers who meet objective and consistently applied standards relevant to practice in that field of law that are higher than those required for admission for the practice of law, and certification is available to all lawyers who meet the standards. *a certified lawyer must complete 12 hours of CLE's every two years in the certified area of law.
|
|
|
When is an attorney obligated to reject a client?
|
An attorney should turn down employment if she is unable to render competent serice, if the proprosed cleint wishes to bring an action merely to harass or maliziously injury anohter person, if the proposed client has not terminated a relationship w/ another attorney or if that attorney does not approve of the new attorney's entery or if the Code requires the attorney's partner, associate or any other affiliated attorney to withdraw form or decline employment.
|
|
|
When may an attorney appointed to a case bya a court or requested by a bar association to represent an individual unable to obtain counsel withdraw from such a case?
|
If appointed by a court or requested by a bar association to represent an individual, an attorney should seek to be excused only for compelling reasons.
|
|
|
What is the rule for conflict of interest dealing with lawyer's own interests?(prof. resp?)
|
A lawyer must refuse employment when his professional judgment will or reasonably may be affected by his own financial, business, property, or personal interests, unless the client consents to the employment after full disclosure of the potential conflict.
|
|
|
What is the rule for conflict of interest dealingwith conflicts arising out of litigation
|
A lawyer should never represent in litigation multiiiple clients whose interests actually differ. Where the interests of multiple clients are only otentially in conflict, the lawyer may represent them in litigation if the lawyer can protect their disparate interests effectively, the lawyer discloses the potential disadvantages of joint representation to the clients, the clients consent, and the lawyer withdraws if an actual conflict arises.
Additionally, a lawyer may not accept employment in a matter in which he acted on the merits in a judicial capacity or where he had substantial responsibility s a public officer or employee. |
|
|
What is a lawyer's basic obligation of competence and care?
|
A lawyer must act competently and w/ care in handling legal matters for a client. THe lawyer may accept employment n an area in which she is not qualified if she expects to become qualified and her preparation would not result in unreasonable expense or delay to the client.
|
|
|
What is the lawyer's duty regarding confidences and secrets of clients?
|
A lawyer has a duty to preserve the confidences and secrets of a client. "Confidences" refer to information received by the lawyer that is protect by the attorney client privilege. "Secrets " encompasses other information received by the lawyer pursuant to the relationship w/ the client.
|
|
|
When does the attorney client privilege cover a corporate client?
|
The attorney-client privilege covers confidential communications between the attorney and an employee of the corporation if the employee communicates with the attorney at the direction of the employee's superior, the employee knows that the communication is to help the corporation get legal advice and the communication concerns a subject w/in te scope of the employee's duties for the corporation.
|
|
|
What is the duration of the attorney client privilege?
|
The attorney-client privilege continues indefinitely, even if the attorney-client relationship has terminated.
|
|
|
What is the unique scope of client confidences and secrets?
|
Client confidences and secrets are different from attorney client privilege. THe duty to preserve client confidences and secrests is not limited by the presence of others, the duty xtends to matters of public record, the duty extends beyond time lmits of the professional relationship, and the duty extends beyond mere nondisclosure, meaning that the information acquired in the course of representing a client may not be used to the disadvantage of hte client or for the advantage of the lawyer absent infomred consent by the client.
|
|
|
When may a lawyer reveal client secrets or confidences?
|
A lawyer may reveal confidences or secrets if the client knowingly and voluntarily consents after being fully informed as to the consequences of consent or if the confidence or secret is required to be disclosed by law or court order, or is permitted to be revealed under the Disciplinary rules, if the communication concerns the intention of the client to commit a crime and the information is necessary to prevent the crime, and if the disclosure is necessary to establish or collect a fee or to defend against accusations of wrongful conduct.
|
|
|
What does the attorney's duty to protect a client's property entail?
|
An attorney must keep separate from her own property all property belonging to the client. All funds of the client paid to the lawyer must be deposited in an indentifiable bank account. The lawyer must notify the client when he receives property that belongs to the client, maintianing a record regarding such property, and must promptly deliver the property on the request of the client.
|
|
|
What must a lawyer do if she does not maintain malpractice insurance covering at least 100,000 per occurence and 300,000 in the aggregate?
|
The lawyer must provide written notice to her clients (and the clients must sign the notice).
|
|
|
What decisions should be made by the lawyer, and which should be made by the client?
|
Decisions involving procedural detainls of the litigation are generally made by the lawyer; decisions affecting the merits of a case or substantially prejudicing the client's rights may be made only by the client.
|
|
|
What are the basic proscriptions on zealous representation?
|
A lawyer may not:
Bring an action, assert a position or take any other action when it serves to harass or maliciously injure another. -Knowingly advance a claim or defense that is unwarranted underexisting law unless there is a good faith argument for an extension, modification, or reversal of the existing law. -obstruct justice by concealing or knowingly failing to disclose that which the law requires to be revealed. --KNwoingly use perjured testimony or false evidence, --Counsel or assist a client in conduct the lawyer knows is illegal or fraudulent. --Knowingly engage in other illegal conduct or conduct that is contrary to a disciplinary rule. |
|
|
May a lawyer speak with another person who is represented without her counsel present?
|
A lawyer may not communicate on the subject of the representation w/ a party he knows is represented by counsel unless the party's counsel consents or the communication is authorized by law.
|
|
|
May a lawyer threaten criminal prosecution?
|
A lawyer may not threaten either an opposing party or his counsel with criminal charges solely to obtain an advantage in a civil case.
|
|
|
What must a lawyer do if he learns that a client has, in the course of representation, perpetrated a fraud on a person or tribunal?
|
IF an attorney lenas that a client has in the course of representation, perpetrated a fraud on a person or tribunal, the lawyer must request that the client rectify the fraud. If the client is unable or refuses to comply, the lawyer must reval the fraud to the person or court.
|
|
|
What must an attorney do in the course of litigation?
|
In the course of litigation, an attorney must respect the rules of court, reveal his client's identity unless privileged, and must reaveal adverse, controlling legal authority.
|
|
|
What acts are prohibited during trial?
|
In presenting the client's cadse, a lawyer is subject to discipline if he refers to any matter that he has no reasonable basis to believe will be relevant to the case or supported by admissible evidence; states a personal opinion wrt the justness of a cause, credibility of a witness, civil litigant's culpability or accused's guilt or innocence; poses questions that are not releveant and intended to degrade a person; fails to comply with known local customs of courtesy or practice of the bar or a court or engages in undignified or discourteous conduct that can be characterized as degrading to the tribunal.
|
|
|
What are the duties of a lawyer before termination of an attorney-client relationship?
|
Before attempting to terminate the relationship at any state of the proceedings, the lawyer must obtain permission from the tribunal (if required), take whatever reasonable steps are necessary to avoid foreseeable prejudice to the rights of her client, and return any unearned advance fee.
|
|
|
When is withdrwawal mandatory?
|
Withdrwawal is mandatory if the client's legal actions are intended to merely harass or maliciously injure any person; continued employment will violate a disciplinary rule; the lawyer's mental or physical condition renders it unreasonably difficult for her to carry out the employment effectively or the lawyer is discharged by the client.
|
|
|
When is withdrawal permissive?
|
Withdrawal is permissive (after compliance with relevant court procedures if the lawyer's continued employment is likely to result in a violation of a disciplinary rule, the lawyer is unable to work effectively with co-counsel, the lawyer's mental or pysical condition renders it difficult for the lawyer to carry out the employment effectively; the lawyer's cleint insists upon presenting a claim or defense that is not warranted by law or good faith argument...see page 18 of conviser review for more..
|
|
|
An attorney is required to take only cases that she is competent to handle, what does "competence" include?
|
1. Legal Knowledge
2. physical and mental ability to handle legal representation. 3. time to give adequate representation. |
|
|
What should an attorney do if she is not copmetent to take a case?
|
Give the client this advice:
1. Hire someone else to take the case 2. Ask for permission to hire someone to work with the attorney. 3. Ask for time to learn enough to be competent** |
|
|
What are the things a lawyer ad may include?
|
a. Lawyer names, law firm and prof. associates.
b. Firm address and phone # c. Office hours and answering service info d. Credentials w/ designation of lawyer, attorney, or firm e. Fields of practice and limitations of practice f. Date and place of birth g. Schools attended h. Dates of admission to Ohio and federal bars i. Membership in bar associations j. Technical or porfesional licenses k. Military service l. Foreign languages (if fluent) m. Participation in prepaid or group legl service plans. n. Fee information: whether credit arrangements are availabble and whether credit cards are accepted. |
|
|
What are the requirements (other than the permissible elements) of an attorney ad?
|
Ohio attorney advertisements must be accurate and dignified. They must not contain any misleading information.
|
|
|
What is the Ohio Rule on Direct Mail Solicitation within 30 days of accidents involving personal injury or wrongful death claims?
|
Under Ohio rules of professional responsibility, a direct mail solicitation occurring within 30 days of an accident involving personal injury or wrongful death claim must include the heading "Understanding your rights" and must inform the addressee the importance of 1. obtaining and keepng records 2. not isgning anything or giving a statemet w/out a lawyer 3. possible conflicts between addressee and insurance company 4. Need to determine time limits 5. Advisability of getting settlement offer in writing 6. Advisability of consulting w/ an attorney before signing a release 7. Means of finding an attny through recommendations of riends or relatives or bar association and the right to check out lawyer qualifications and to discuss fees and costs. Additionally, the letter must include:
1. How the lawyer learned of the need for an attny 2. a disclaimer of unwarranted prior contact 3. Must not express a predetermined evaluation of the merits of a case 4. Must include on envelope and text in RED INK: "Advertisement only" |
|
|
What is the basic rule of maintaining client confidences?
|
An attorney must maintain the confidences of former, current and prospective clients. This means that an attorney must not disclose anything derogatory or hurtful about a client; but there is an implied right to share relevant information with members of the firm.
|
|
|
What is the basic rule for conflict cases?
|
An attorney may accept a case with a conflict only if all clients have given their informed consent. The client(s) must agree after the lawyer explains material risks and reasonable alternative and the clients agree in writing. After these steps, the attorney must then decide if a reasonably prudent lawyer would take the case in light of the conflict.
An attorney must NOT take cases that involve representing a current client against a current client. |
|
|
What is the rule regarding representing a corporation or partnership:
|
As a lawyer for a corporation or partnership,the lawyer represents the entity, and not the individuals involved. A lawyer can be a director of a corproation, but no attny client privilege covers board meetings. The attorney for a corporation has a duty to report illegal conduct up the chain of command to the CEO. If there is not an appropriate response, the attorney must report to the Bd of directors and MAY report to outside authorities.
|
|
|
What aare the factors used to determine the reasonableness of fees?
|
1. Time and labor
2. Novety and difficulty of thequestions involved. 3. Requisite skill 4. Customary fee w/in the locality for similar work 5. Experience, ablity and reputation of the attorney 6. Interference w/ other employment by the attorney 7. Time limitations imposed by the client [Basically everything -- generally bar examiners will not ask whether a fee is reasonable) |
|
|
What are the two types of cases where contingent fees are not allowed?
|
1. Domestic relations cases (not including actions for past-due alimony or child support, because these are collections actions)
2. Criminal cases |
|
|
How does an attorney bring in expert counsel to help with an area she is not familiar with?
|
In order to bring in co-counsel in an ethical manner, the attorney must seek and obtain client consent to the hiring of the additional lawyer, the division of the fees between the attorneys must be in proportion to the work each performs, and the total fee must be reasonable.
|
|
|
What are the rules regarding client trust accounts?
|
In general, an Ohio attorney must maintain an interest bearing Trust account in Ohio for client funds, and must keep records of its use, and must keep the client funds separate from the attorney's operating account. The attorney must notify the client promptly when funds of the client's are received.
|
|
|
What should an attorney do with adverse authority that the opposing party has not disclosed?
|
Disclose it and distinguish it (why it shouldn't apply to this case).
|
|
|
What are the CLE requirements for the attorney?
|
24 hours for every 2 year reporting period, including 2 hours devoted to ethics, and 30 minutes to substance abuse.
|
|
|
What is the general rule for conflicts of interest?
|
A lawyer must be careful not to enter into a relationship where there is a potential conflict of interest that is likely to adversely affect his ability to exercie independent and professional judgment.
|
|
|
What is the "Problem with testifying for the client?"
|
A lawyer may not represent a client in litigation where the lawyer or a firm member should be called as a witness for the client (refuse or withdraw). There are 4 exceptions to this rule:
i) the testimony will relate to an uncontested manner ii) the lawyer's testmony will relate to a matter of formality and no substantial evidence is likely to be offered in opposition iii) If the lawyer's testimony will concern only the nature and value of legal services rendered to the client, and the withdrawal of the lawyer for the purpose of testifying would result in substantial hardship to the client. |
|
|
When may a lawyer represent clients with differing interests?
|
A lawyer should never represent in litigation multiple clients whose interests actually differ. Where there is a potential conflict, the lawyer may represent them in litigation if the lawyer can protect their disparate interests effectively; if the lawyer discloses the potential disadvantages of joint representation to the clients, the clients consent, and the lawyer withdraws if an actual conflict arises.
|
|
|
What is the rule for aggregate settlements?
|
A lawyer must not enter into an aggregate settlement on behalf of 2 or more clients unless the lawyer obtains the consnt of each client to the aggregate settment after consultation.
|
|
|
What is the rule for representing successive clients in related matters?
|
Where a substantial relationship can be shown between the subject matter of a former representation and that of the subsequent representation of a new client, the lawyer may not undertake to represent the new client unless both clients consent after full disclosure.
|
|
|
What is the general rule for conflicts of interest?
|
A lawyer must be careful not to enter into a relationship where there isa potential conflict of interest that is likely to adversely affect hisability to exercise independent and professional judgment.
|
|
|
What are the "problems with testifying for a client"?
|
Alawyerordinarily may not represent a client in litigation where the lawyer or a firm member shouldbe called as a witness for the client.The lawyer should refuse employment or withdraw. 4 exceptions:
1. The lawyer's testimony relates to an uncontested matter. 2. The lawyer's testimony will relate to a matter of formality and no substantial evidence is likely to be offered in opposition 3. If the lawyer's testimony will concern only the nature and value of legal services rendered the client 4. If the withdrawal of the lawyer for the purpose of testifying would result in substantial hardship to the client becuse of the distinctive value of the lawyer. |
|
|
What are the rules regarding multiple representation?
|
A lawyer should never represent in litigation clients whose interests actually differ. Where the interest of multiple clients are only potentially in conflict,the lawyer may represent if:
the lawyer can protect their disparate interests effectively, the lawyer discloses the potential disadvantages of joint representation to the clients; the clients consent; and the lawyer withdraws if conflicts arise. |
|
|
What is the rule regarding aggregate settlements?
|
A lawyer must not enter into an aggregate settlement on behalf of 2 or more clients unless the lawyer obtains the consent of each client to the aggregate settlement after consultation.
|
|
|
When are the rules regarding corporate representation?
|
A lawyer may represent both a corporation and its governing components if the lawyer believes that differing interests are not present.
|
|
|
What is included in a judge's duty to diligently and impartially perform judicial duties?
|
1. A judge must propmptly decide all matters assigned to her unless disqualification is required.
2. A judge must be faithful to the law,and must maintain competence in it. 3. A judge must maintain order and decorum in the court 4. A judge must be patient, dignified, and courteous to those w/ whom the judge deals in an official capacity. 5. A judge must avoid bias and prejudice 6. A judge must give every person who has a legal interest in a proceeding the right to be heard in acccordance with the law. 7. A judge may not initiate, permit or consider an ex parte communication unless authorized by law or concerns an emergency or scheduling matter (See page 21 of the conviser mini review) |
|
|
For what may a judge be disqualified?
|
A judge must disqualify herself in a proceeding in which her impartiality might reasonbly be questioned. The judge should disclose any info that the parties or their lawyers might consider relevant to the question of disqualification, even if the judge does not believe there is a reasonable basis for disqualification. In cases of necessity, a judge who would otherwise be disqualified may rule on a matter, but he should disclose the ground for disqualification and should use reasonable efforts to transfer the matter to anohter judge as soon as possible. A judge may be disqualified for :
1. Bias or personal knowledge of evidentiary fact 2. Prior invovlment as witness or as lawyer/etc 3.Economic or other interest that is not de minimis 4. Invovlement of a relative- relative w/in the third degree to the judge |
|
|
What extra judicial activities may a judge not engage in?
|
1.A judge may not engage in financial and buiness dealings that might be perceived to exploit her position or that involve her in frequent transactions w/ persons likely to come before the court on which she serves.
2. A judge must not use the prestige of her office for fund-raising or membership solicitation for an organiz. 3. A judge may not be an officer, director, manager, general partner, adviser, or employee of any business entity 4.A judge(+household members) should not accept gifts, bequests, favors, or loans from anyone 5. Generally, a judge may not serve as a fiduciary (except for family (as long as not interference) 6. A full time judge may not act as an arbitrator or mediator 7. A judge may not practice law. |
|
|
What are the general prohibitions for a judge or a judicial candidate's activities in political campaigns?
|
Except where specifically permitted by the CJC, a judge or judicial candidate may not:
1. Act as a leader or hold office in a political organization. 2. Make speeches on behalf of a political orgniaization or another candidate at a plitical meeting, or publicly endorse or oppose a candidate for another public office. 3. Make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office. 4. Make statements that commit the judge or judicial candidate wrt cases or controversies that are likely to come before the court. 5. Comment on any substantive matter relating to a specific pending case on the docket of a judge. 6. Knowingly misrepresent her identity, qualifications, present position, or other fact or such of the opponent. 7. Jointly raise funds w/ a candidate for nonjudicial office. |
|
|
What is the rule regarding Campaign solicitations for a judge?
|
A judicial candidate must prohibit public employees subject to her control from soliciting or receiving campaign contributions. The candidate must also not personally solicit or receive campaign funds. However, she may est. a committee to receive and manage campaign funds and to obtain statements of support. In addition, a judicial candidate may not spend funds in her judicial campaign that were contributed to her candidacy for a nonjudicial office. Also, she may not contribute campaign funds in support of or opposition to a candidate for public ofice, other than the office to which she is seeking election.
|
