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58 Cards in this Set
- Front
- Back
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When is the sale of a law firm permissible?
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Must be sold in its entirety
Must be in existence at least 5 years (unless death of selling attorney) Purchaser must send written notice to clients informing them of right to choose another counsel Client consent presumed if no objection in 60 days |
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Where can an attorney practice law?
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Where admitted
Another state IF Pro hac vice (file motion with court for particular case) Corporate counsel so long as advice is limited to the corporation Temporary basis if in association with a MD lawyer who actively participates in the matter On a temporary basis if the matter is reasonably related to the lawyer's practice in the jurisdiction where admitted |
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What are the restrictions on a disbarred attorney?
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If employed by a law firm, must perform work from an office staffed full time by a supervising attorney AND under direct supervision of a supervising attorney
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What is the unauthorized practice of law?
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L can't assist another person to engage in the unauthorized practice of law
Must supervise a paralegal and be aware of what he's doing |
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What is a permissible firm name?
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Can use names of dead partners
Can't use false or misleading firm names Can use trade names but can't imply connection with govt agency, charitable or public legal service |
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What is MD's policy on pro bono work?
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Encouraged, not required
50 hour goal All hours must be reported |
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What fees are ethical?
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Must be reasonable; look to:
Time Skill Whether attorney had to turn down other work Customary fee in area |
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What expenses are ethical?
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Must have a reasonable relationship to the actual cost
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When are contingency fees permitted?
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NOT for:
criminal cases domestic relations cases (except for collection for past support) Personal Injury Protection Requirements Must be in writing Signed by C Writing must state percentage, whether percentage is calculated before or after expenses, who is liable for expenses if no recovery At conclusion, L must give a written accounting of expenses and fees Percentage must be reasonable (50% is probably highest if a complex case) |
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What are reverse contingency fees?
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Percentage of the amount D does not owe P is paid to D's lawyer
Must be reasonable |
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What are L's fees if fired?
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Fired without cause: immediate quantum meruit
L quits b/c of C's misconduct: immediate quantum meruit Fired for cause: reasonable value of services but only if C recovers Fired for serious misconduct: nothing |
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When can fees be divided?
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Among Ls in same firm: ok
Among Ls in different firms: ok if: Total amount is reasonable C agrees to joint representation and agreement is confirmed in writing Fee split based on amount of work done OR each lawyer assumes joint responsibility With non-Ls: No business can provide both legal and nonlegal services; L can't give a referral fee to non-L With nonprofit hired for the case: L can share court-awarded legal fees |
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When can L get paid by someone other than C?
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C gives informed consent
Confidentiality is protected There's no interference with the AC relationship |
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What are the conflicts of interest between L and C?
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Business deal
Substantial gift Financial aid to C Prospectively limiting malpractice Settling a malpractice suit Family members as opposing counsel Media rights |
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When can L and C engage in a business deal?
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Terms must be fair and reasonable to C
Terms must be fully disclosed in writing to C C must be advised in writing of recommendation to seek independent counsel and given reaosnable opportunity to do so C must give informed consent in writing and signed |
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When can L solicit a substantial gift from C?
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L cannot solicit a substantial gift from C or prepare an instrument giving L or his relative a substantial gift UNLESS
L or the recipient is related to C OR C is represented by counsel |
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When can L provide financial aid to C?
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Generally no EXCEPT court costs/litigation expenses can be given in contingency cases or where C is indigent
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When can L prospectively limit malpractice?
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NO unless C is independently represented
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When can L settle with C accusing him of malpractice?
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NO unless he advises C in writing of recommendation to seek independent counsel and gives him reasonable time to do so
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When can a family member be opposing counsel?
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NO if it is a parent, sibling, spouse, or child
But doesn't disqualify the law firm C can waive the conflict |
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When can L seek transfer of media rights?
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Not until after conclusion of case
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When does L have a conflict of interest between Cs?
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L cannot represent a C if representation of one C would be directly adverse to another C
L cannot represent a C if representation would be materially limited by responsibility to another C UNLESS L reasonably believes he can provide competent and diligent representation AND each C gives informed consent in writing |
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When can L represent more than one C in the same case?
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2 or more on same side of civil case is probably ok
Aggregate settlements not permitted unless each C gives informed consent in writing signed by C Representing 2 or more criminal Ds is ok but no aggregate plea bargain allowed unless upon informed consent in writing signed by C |
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When is there a conflict between new and former clients?
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Can't represent both a new and former client if:
It regards the same or substantialyl related matter OR L has confidential info about a former client relevant to the new case BUT former client can waive conflict upon informed consent in writing |
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Who does L represent if the client is the corporation?
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The corporation, not the board, SH, directors
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When is a law firm disqualified because of a conflict of interest?
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If one L has a conflict, the entire firm is disqualified EXCEPT if conflict is b/c of a new L:
Screen the L AND Make sure he doesn't share in the fee |
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When is there a conflict between a new client and clients represented by a former L?
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If an L leaves, old firm can represent person with interests materially adverse to those of client represented by former L UNLESS matter is same or substantially related OR anyone at the firm has confidential info
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When does a former govt lawyer have a conflict?
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L can't represent anyone in connection with a matter in which he participated personally and substantially as a govt officer UNLESS
Agency gives informed written consent BUT firm not disqualified if L is screened and doesn't share in fees |
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When does a current govt lawyer have a conflict?
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If he formerly represented client in matter where he gained confidential info, he must get C's informed written consent to work on the same matter for the govt
If it was a matter in which he personally and substantially participated, he'd need govt's written consent |
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What is the general rule on confidentiality? What are the exceptions?
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L must not reveal confidential info unless C gives informed consent
L MAY reveal: To prevent reasonably certain death or substantial bodily harm To prevent a fraud or crime reasonably certain to result in substantial injury to the financial interest or property of anotehr AND in furtherance of which C has used or is using L's services To mitigate substantial injury to the financial interest or property of another reasonably certain to result or that has resulted from C's commission of a crime or fraud in furtherance of which C has used L's services In a controversy between C and L where C sues L In defense of any criminal, civil, disciplinary charge L MUST disclose: if court orders disclosure |
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What is the implied authority exception to confidentiality?
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L has implied authority to disclose what is reasonably necessary to carry on the representation (but not gossip)
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When does confidentiality protect physical evidence?
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Protects viewing of physical evidence
Does NOT protect touching or possession |
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When are conversations with corporate employees confidential?
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Confidential, but board can waive confidentiality, so L should tell employees this
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What duties does L have to prospective clients?
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Confidentiality
Conflict of interest: can't represent new C if same/substantially same subject matter (but can be waived by both Cs in writing; doesn't disqualify firm if L is screened and doesn't share in the fee) |
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What types of legal claims can L make during litigation?
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Non-frivolous claims:
Are in good faith C was loser in past but has good faith argument for reversal Insufficient facts but discovery is upcoming L thinks case is a loser but there's good faith argument |
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What legal authority must L disclose to the court?
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Controlling authority that is directly adverse, if other side doesn't disclose it
MD Court of Appeals, SCT |
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What should L do if he knows C is/will perjure himself?
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Tell him not to do it or to correct himself
If C refuses, ask court for permission to withdraw If court refuses, threaten to disclose Disclose NOTE: if L only has a reasoanble belief that info is false, he can still offer the testimony |
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When can L pay witnesses?
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CAN'T pay fact witnesses (except for reasonable expenses)
Can pay expert witnesses but not on contingency basis |
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When can L be witness?
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Can testify as to:
Uncontested matters Nature/value of his legal services Not testifyign would create a substantial hardship to C Firm is not disqualified unless L's testimony is contrary to C's position L can't assert personal knowledge or opinion at trial |
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How can L interact with jurors?
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Pre-trial: no communication with anyone on potential juror list
During trial: no communication with any juror Post-trial: can communicate but can't harass |
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What are appropriate dealings with judges?
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Campaign contributions
NOT Gifts/bribery Ex parte communucations Improper influence |
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When is trial publicity unethical?
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L can't tell media anything that has substantial likelihood of materially prejudicing the trial
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What is L's duty of competency?
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Can be competent through
Research Associating with an attorney who is competent Can give limited advice in emergency |
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Where must L keep C's property?
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Must keep C's property separate, can't commingle funds
L must keep complete records L must create a trust account for C (all Cs can be together), L can't keep interest With informed written consent, L can transfer $ out as he earns legal fees L can deposit $ in for bank service charges All disbursements by check or electronic transfer |
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What are L's obligations to pay medical providers when C settles in a personal injury suit?
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If C signs authorization for L to withhold sums from the settlement to pay medical providers, L has duty to the 3d party claimants to protect agaisnt C's wrongful interference
When funds are received, L must notify the interested party and then promptly deliver them Upon request, L must render a full accounting If there's dispute, L must keep teh $ separated until the dispute is settled |
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When must L withdraw? When may L withdraw?
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Must:
L has physical or mental impairment Continued representation would constitute breach of a rule MAY: C not prejudiced by withdrawal C hasn't paid fee C and L have fundamental disagreement Other good cause L must return all papers and unearned fees |
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Who has control over decisions made in the L/C relationship?
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Objectives: C
Civil case: C decides as to settlement Criminal case: C decides as to plea, waiver of jury trial, whether to testify L may limit scope of representation upon informed consednt of C L can't counsel C to engage in crime/fraud but can discuss consequences |
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When may L reject a court appointment?
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Would be an unreasonable financial burden
Representation would violate a rule C is too repugnant |
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What is the no contact rule?
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L can't communicate with person represented by another L unless other L consents
If opposing party is a corp: L can't contact person with managerial responsibility (directors, officers) without other L's consent L can't contact current employees who regularly communicate with corp's Ls OR who may bind hte corp to liability without L's consent L can't contact former employees to discuss confidential info they may have, without L's consent L can contact unrepresented 3d parties but can't act as if disinterested, can't give legal advice other thant to get a lawyer |
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What kind of information is prohibited from advertisements?
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Can't contain false or misleading info about L
Statements about L's prior record unless it has a disclaimer that states something like "each case is different" Celebrity endorsements (unless bona fide preexsiting C) Unjustified expectations Comparisons with other Ls' If ad says no fee unless recovery, it must say who's liable for expenses Copy of the ad must be kept for 3 years along with a record of when/where it was used, must state name of at least one L responsible for its content |
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When can L give a gift of value to person for recommending his services?
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NO unless it's a reciprocal referral agreement that is nonexclusive AND C knows about it
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When is in person solicitation permitted?
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NOT if motive is financial gain
CAN if motive is public interest CAN solicit other Ls, family members, persons of close personal or prior professional relationship, past Cs CAN'T if C's physical, emotional, or mental state is such that he can't exercise reasonable judgment in employing L |
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When is direct mail permitted?
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Direct mail is sending letter to person whom L knows needs an L
Permitted unless C's physical, emotional, or mental state is such that he can't exercise reasonable judgment in employing L |
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What are general rules on advertising?
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Every written, recorded, electronic communication soliciting employment from someone known to be i nneed must include "advertising material" on outside of every envelope and beginning and end of every recorded or electronic communicaiton
Letters/faxes/emails/calls prohibited for 30 days after personal injury accident Ls can't hold themselves out as specialists (except patent attorneys) |
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What are a partner's ethical duties in running a law firm?
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Must have an ethical compliance system in place
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Who can be held liable for misconduct in a law firm?
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Supervising attorney: if he ordered, ratified, failed to take reasonable remedial measures
Associates: for following directions |
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What are the various forms of discipline?
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Disbarment
Suspension Reprimand |
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What conduct can be disciplined?
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Violation of a rule
False statements in bar admissions application Refusal to cooperate with an investigation Improper activities outisde the practice of law that indicate dishonesty, fraud, deceit, misrepresentation (stalking, internet solicitation of a minor, domestic violence, spousal abuse) Criminal conduct that reflects adversely on honestfy, trustworthiness (tax evasion, coke possession, stealing computer files) L implies ability to improperly influence a judge Conduct prejudicial to the admin of justice Sexual harassment Sexual relations with C if representation is materially limited L manifests bias based on race, sex, religion, national origin, disability, age, sexual orientation, class while acting in professional capacity |
