Professional Responsibilities

Front 1

Acomment to Rule 8.1, Bar Admission and Disciplinary Matters, says “This Rule issubject to the provisions of the Fifth Amendment.” The comment goes on toexplain how it must be used by an applicant. What does the comment say aboutthat?

Back 1

A person relying on such provisions in responseto a question, however, should do so openly and not use the right ofnon-disclosure as a justification for failure to comply with this Rule.

Front 2

Whathistorical event led the ABA to require the teaching of a course in the history,goals, structure, duties, values and responsibilities of the legal professionaland it members in all accredited law schools?

Back 2

Watergate

Front 3

Youdon’t have to report all misconduct by another attorney. List three situationsor conditions mentioned in Rule 8.3, Reporting Professional Misconduct, inwhich you don’t have to report misconduct.

Back 3

(1) If an attorney does not “know” that theethical violation has taken place (2) An attorney leans of ethical violationfrom a valid attorney assistance program (3) if reporting would violate clientconfidentiality (Rule 1.6).

Front 4

TheABA requires accredited law schools to teach a class in ethics.

Back 4

True

Front 5

TheABA was chartered by Congress in 1878

Back 5

False

Front 6

Membershipin the ABA is a requirement of the practice of law

Back 6

False

Front 7

TheABA always works to protect client’s interests, even at the expense of thelawyer’s interest

Back 7

False

Front 8

TheABA is a voluntary trade organization

Back 8

True

Front 9

TheABA always works to promote lawyer’s interests, even at the expense of client’sinterest

Back 9

False

Front 10

Describethe difference between ABA Rule 8.3 and SCR 20:8.3 with regard to theactions an attorney is supposed to take in the following situations: Theattorney knows of misconduct by another attorney that should be reported to disciplinary authority, but reporting would require attorney to discloseinformation that should be kept confidential under Rule 1.6.

Back 10

If the information revealing misconduct isconfidential, the lawyer shall consult with the client about the matter andabide by the client's wishes. ABA rule encourages, but does not require,attorney to consult with client.

Front 11

Followingthe U.S. Supreme Court’s ruling in Batesv. Arizona that permitted lawyers to advertise, the ABA created Rule 7.1,Communications Concerning a Lawyer’s Services, which says that lawyeradvertising cannot be… what? The correct answer consists of two words.

Back 11

False orMisleading. A communication is false or misleading if it contains a materialmisrepresentation of fact or law, or omits a fact necessary to make thestatement considered as a whole not materially misleading.

Front 12

Howmany hours of pro bono work is a lawyer required to provide annually under Rule6.1, Voluntary Pro Bono Service?

Back 12

Zero

Front 13

Ifyour supervisor tells you to do something that violates the Rules ofProfessional Conduct, and you do it, what is the circumstance in which you arenot subject to discipline?

Back 13

A subordinate attorney is not subject todiscipline for following orders of a supervising attorney if supervisingattorney has reasonably considered an arguable question of ethicalresponsibility and made a decision based on professional judgment.

Front 14

Whatdid the court rely on in Togstad v.Vesley to find that an attorney-client relationship had been formed?

Back 14

Implied relationship. The client reasonablybelieved that they were receiving legal advice.

Front 15

Sincethe Supreme Court has no jurisdiction over non-lawyers, and non-lawyers have nolicense to take disciplinary actions against, how does a state such asWisconsin prevent the unauthorized practice of law?

Back 15

Enactingcriminal statutes to prohibit unauthorized practice of law.

Front 16

Giveone argument for Washington State’s decision to allow Limited License LegalTechnicians to practice some law.

Back 16

LLLTs can provide greater access to legalservices to the public through lower cost representation.

Front 17

Giveone argument against the decision to allow LLLTs?

Back 17

Limitedtechnicians may not be able to identify legal issues outside of their limitedexpertise that arise from the legal issues that are within their limitedexpertise.

Front 18

Youare Guardian ad Litem for an 8-year-old girlwho has been removed from her family by County Social Services based onallegations of neglect and abuse. Your investigation convinced you that theallegations are true and the she should be placed with a foster family. She hastold you she wants to return home. What standard of representation do youfollow?

Back 18

As GAL, I must provide interest of the client,even if against the client’s expressed wishes.

Front 19

WhichABA rule, if any, sets forth the GAL standard of representation?

Back 19

No ABA Rule. Wisconsin SCR 20:4.5 (lawyerappointed to act as a guardian ad litem or as an attorney for the bestinterests of an individual represents, and shall act in, the individual’s bestinterests, even if doing so is contrary to the individual’s wishes.)

Front 20

Whatis the one word in ABA Model Rule 1.5, fees, that says what an attorney’s feemust not be?

Back 20

Unreasonable.

Front 21

What are the factors to assess the reasonableness of attorney's fees?

Back 21

(1) the time and labor required, novelty anddifficulty of questions involved, and skill requisite to perform thelegal service properly;(2) likelihood, if apparent to the client, that theacceptance of particular employment will preclude other employment by lawyer;(3) the fee customarily charged (4) amount involved and results obtained;(5) time limitations imposed by client (6) nature and length of professionalrelationship with client;(7) experience, reputation, and ability of the lawyeror lawyers performing the services; and(8) whether the fee is fixed or contingent.

Front 22

Name2 of the 8 factors in Rule 1.5 that the Court of Appeals might have relied onin finding that the fee in BrobeckPhleger Harrison v. Telex Corp was not excessive?

Back 22

(1) complex nature of the work involved (2)level of skill and training of the attorneys who worked on the matter.

Front 23

Rule 1.8 says that a lawyer shall not: (1) make an agreementprospectively limiting the lawyer’s liability to a client for malpracticeunless the client is independently represented in making the agreement or (2)settle a claim or potential claim for such liability with an unrepresentedclient... What additionalprohibition was added to that rule when it was adopted in Wisconsin?

Back 23

A lawyermay not require a client to forgo reporting an attorney’s violation ofprofessional rules to OLR (Office of Lawyer Regulation).

Front 24

Whatis one exception to the rule than an attorney may not deposit any of herpersonal or business funds into a client trust account?

Back 24

An attorney may desposit funds to pay foraccount services fees (bank fees).

Front 25

Whendisciplinary complaints have been filed against attorneys for providingfinancial assistance to clients in connection with pending or contemplatedlitigation, courts have ruled that the financial assistance is improper and arule violation, unless it was necessary in order for the client to maintain herparticipation in the litigation. True or False?

Back 25

False. The lastclause makes the statement inaccurate; except for contingency fee arrangements,an attorney may not provide financial assistance to a client).

Front 26

Ifa lawyer plans to represent one legal position in one case and the oppositelegal position for a different client in another court (and there is not dangerof one establishing a precedent for the other)

Back 26

It isokay, and the lawyer may do so without violating any rule.

Front 27

If a lawyer finds herself in a conflict situation under Rule 1.9 (duties to former clients) she may continue to represent the current client if…. What conditions must the attorney meet in order to continue with the representation?

Back 27

(1) Obtain informed consent, in writing (2) have no issues with confidentiality or outstanding fiduciary duties.

Front 28

If lawyer has two current clients whose interests conflict, the lawyer may represent both clients only if four conditions are satisfied:

Back 28

(1) attorneyreasonably believes able to provide diligent and competent service to both clients (2)representation is not prohibited by law (3) representation does not involve claims directly against one client by another client. (4) informed consent in writing. Rule 1.7

Front 29

SarbanesOxley has a requirement that an attorney must report a suspected violation ofthe securities laws. Who (what office or person or persons) should the attorneyreport to first?

Back 29

Chief Legal Officer

Front 30

SarbanesOxley Act says that after going through themandatory reporting procedure, including reporting higher in the organizationif necessary, an attorney “may reveal” confidential information to the extentnecessary to “prevent the issuer from committing a material violation that islikely to cause substantial injury to the financial interest or property of theissuer or investors.” Who (what office or person) may the attorney reveal thatinformation to?

Back 30

SEC

Front 31

Whichof the following has an attorney-client relationship with a lawyer hired torepresent an organization? (1) organization’s officers (2) board of directors(3) shareholders (4) employees (5) organization’s duly authorized constituents

Back 31

None of the above; lawyer represents organization as a whole, not its individual components

Front 32

Inthe Upjohn v. U.S. case, what did theSupreme Court decide with regard to the level of employee within the companywhose information was protected?

Back 32

Anyemployee acting within the scope of her employment who has the ability toaffect the legal status of the company.

Front 33

Ifa client communicates with her attorney about the subject matter ofrepresentation without anyone else being present, the communication is:

Back 33

(1)confidential (2) protected from disclosure by attorney-client privilege (3) tobe protected from disclosure by the attorney under Rule 1.6, Confidentiality ofClient Information.

Front 34

Ifthe client then shares the attorney-client privileged information with a friend (not anessential agent or representative)…

Back 34

theinformation is no longer protected by the attorney-client privilege.

Front 35

Whatmay the fact-finder in a civil proceeding do if a person invokes the FifthAmendment to avoid testifying?

Back 35

The fact finder may makes an inference based onthe person’s unwillingness to testify.

Front 36

Whatis the specific language in rules 1.11 and 1.12 that relaxes the standard forfinding a conflict for former and current government officers and employees andformer judges, arbitrators, mediators, and other third-party neutrals?

Back 36

Lawyer shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation.

Front 37

Whyare there special rules for former and current government officers andemployees and former judges, arbitrators, mediators and other third partyneutrals?

Back 37

To encourage persons to take public servicepositions by limiting the possibility of conflicts from preventing that personfrom taking other positions outside of government.

Front 38

Whatwas the testimony that Whiteside wanted to present (but did not) in the triallevel case that led to the Supreme Court decision in Nix v. Whiteside.

Back 38

Whitesidewanted to say that he “saw something metallic” in his victim’s hand, to bolster his self-defense theory.

Front 39

Whatwas the Supreme Court’s ruling in Nix v.Whiteside?

Back 39

There isno 6th Amendment right to present untruthful testimony.

Front 40

In the Matter ofBar Admission of Anderson, 715 N.W.2d 586 (2006)

Back 40

Held: incidents involving petitioner were sufficiently remote in time and not of sufficient gravity to warrant conclusion that petitioner did not possess requisite character and fitness for admission to state bar.Bar applicant had problematic incidents in his background. Later, Anderson applies to WI bar. Board found that Mr. Anderson failed to “demonstrate that he has the temperament to conduct himself in a manner required” and that he failed to demonstrate that “he has the honesty to conform to that Code.” Overturned.

Front 41

Strickland v.Washington, 466 U.S. 668 (1984)

Back 41

Ineffective assistance must (1) identify acts or omissions of counsel that are alleged not to have been result of reasonable professional judgment and (2) must determine whether, in light of all circumstances, identified acts or omissions were outside wide range of professional competent assistance. No second guessing strategic decisions. Sixth Amendment right to counsel is violated when lawyer’s performance fails to meet an objective standard of reasonableness and the lawyer’s deficient performance prejudiced the defendant.

Front 42

In Re Himmel,533 N.E.2d 790 (Ill. 1988)

Back 42

Attorneys agree to settle case, so long as lawyer does not report ethical misconduct to the bar. Himmel was charged with violating his duty to report ethical misconduct, modern Rule 8.3. His law license was suspended for a year. The number of attorney reports of ethical violations by their peers increased sixfold.

Front 43

Bates v State Barof Arizona, 433 U.S. 350 (1977)

Back 43

AZ law only allowed yellow pages advertising. Bates' firm provided and advertised basic legal services – no fault divorce, wills, etc. Held: Blanket prohibition on advertising violated first amendment. Supreme Court thought persons of moderate income should be able to find out about such services, and it struck down the Arizona law as a violation of free(commercial) speech. Court holding narrowly applied to advertisements for “routine legal services."

Front 44

Togstad v. Vesely,Otto, Miller & Keefe, 291 N.W.2d 686 (Minn.1980)

Back 44

Held: Attorney-client privilege can be created by implied relationship, e.g. client reasonably believes to have been given legal advice. Person visits attorney about a med-mal case. The lawyer declined that case, but offered to check with his partner. Ultimately, he decided not to take the case. The attorney claims that he said he didn’t want the case because it wasn’t the type of work he did. The client claimed that he said that there was no case. She forgoes the case, and the claim runs out. She sues him for legal malpractice. Court awarded the client the amount that she would have been awarded in the med mal case.

Front 45

What should a lawyer do to prevent attorney-client relationship being formed by implication?

Back 45

Lawyer should write letter to client following the interview to clarify that an attorney client relationship was not created by the meeting, and also that the interviewee should consult with another lawyer about her case if she wanted to pursue it.

Front 46

Jones v Barnes,463 U.S. 745 (1983)

Back 46

Held: defense counsel assigned to prosecute appeal from criminal conviction does not have constitutional duty to raise every non-frivolous issue requested by defendant. Defendant gave attorney list of defenses. The attorney determined that a number of them were not allowed on appeal. It is not ineffective assistant of counsel for an attorney to decline to argue every point.

Front 47

Brobeck Phleger Harrison v. Telex Corp., 602 F. 2d 866 (9th Cir.1979)

Back 47

IBM and Telex in civil case. Brobeck firm was hired to appeal Telex loss at Court of Appeals. Brobeck firm was hired for Supreme Court appeal; prepare cert petition (not much work). When Supreme Court granted cert, the parties settled. Brobeck charged $1m legal fee, which was negotiated before hand as a contingency fee. Telex sued, arguing that it was an unreasonable. Ninth Circuit upheld the fee as reasonable.

Front 48

In re Fordham,423 Mass. 481 (1996)

Back 48

Attorney discipline action was brought, alleging that attorney charged excessive fee for defending client in prosecution for OWI and other related charges. Attorney had never done an OWI before, so had to do significant research. Held: (1) charging of excessive fee warranted public censure because normal fee for experienced attorney would have been much lower.

Front 49

Upjohn Co. v.United States, 449 U.S. 383 (1981)

Back 49

Held: Communications by petitioner's employees to counsel in scope of business are covered by the attorney–client privilege. Employee must have ability to affect the legal status of the corporation. Petitioner pharmaceutical manufacturing corporation was informed that one of its foreign subsidiaries had made questionable payments to foreign government officials. Company had lawyers send questionnaire to all foreign managers seeking detailed information concerning such payments. IRS issued a summons demanding production of the questionnaires, memoranda and notes of the interviews.

Front 50

Nix v Whiteside,475 U.S. 157 (1986)

Back 50

Held: No 6th Amendment right to present false testimony. Criminal client, whose attorney advised him that he would seek to withdraw from representation if he insisted on committing perjury, petitioned for habeas relief from his state conviction for murder on the ground of ineffectiveness of counsel. Right to assistance of counsel was not violated by attorney who refused to cooperate in presenting perjured testimony.

Front 51

What is the difference between ABA Rule 1.5 and Wisconsin SCR 20:1.5?

Back 51

InWisconsin, if total cost of representation is greater than $1,000, it must becommunicated in writing to the client. ABA Rule does not have "in writing" requirement.

Front 52

What is the difference between ABA Rule 1.7 and Wisconsin SCR 20:1.7?

Back 52

In circumstance where a conflict of interest arises from representing two present clients, Wisconsin requires that allwaivers of conflicts be in writing and signedby each affected client.

Front 53

What is the difference between ABA Rule 1.15 and Wisconsin SCR 20:1.15?

Back 53

Wisconsin has six year record retention requirement for safeguarding client’s property; Modelrule has five year retention requirement.

Front 54

What is Wisconsin SCR 20:4.5?

Back 54

Alawyer appointed to act as a guardian ad litem or as an attorney for the bestinterests of an individual represents, and shall act in, the individual's bestinterests, even if doing so is contrary to the individual's wishes. There is no equivalent provision in ABA Model Rules.

Front 55

What are the primary circumstances where an attorney reveal client's confidential information?

Back 55

(1) client gives informed consentor

(2) the disclosure is impliedlyauthorized in order to carry out the representation.

Front 56

Under what circumstances may an attorney reveal client confidential information without the client's consent?

Back 56

(1) to prevent reasonablycertain death or substantial bodily harm

(2) prevent clientfrom committing crime/fraud that is reasonably certain toresult in substantial injury to financial or property interests ofanother and client has used or is using thelawyer's services;

(3) after the fact, to mitigate effects of client crime/fraud causing substantial injury

(4) secure legal adviceabout the lawyer's compliance with these Rules

(5) establish defense on behalf of the lawyer

(6) to comply with other lawor a court order; (7) to detect and resolveconflicts of interest arising from the lawyer’s change of employment, but only if revealedinformation would not prejudice the client

Front 57

What must a lawyer do to prevent disclosure of confidential client information?

Back 57

A lawyer shallmake reasonable efforts to prevent the inadvertent or unauthorized disclosureof, or unauthorized access to, information relating to the representation of aclient

Front 58

Flat fees become the property of...

Back 58

the lawyer (subject to termination rules; have to give it back if lawyer does not perform the services)

Front 59

Retainers become the property of...

Back 59

The lawyer

Front 60

Advances become the property of...

Back 60

The client. Shall be deposited into client account, and withdrawn by the lawyer only as they are earned.

Front 61

What is the hot potato rule?

Back 61

A lawyer/law firm cannot drop a client mid-representationto cure a conflict of interest in order to take on a larger client. Rule 1.16

Front 62

Difference between current and former client conflictrules...

Back 62

With current client, you cannot represent another client in a proceeding against him.

With former client, you can represent another client in a proceeding against him so long as the matter does not substantially relate (no confidentiality issues) to the previous representation.

Front 63

Duties to former clients

Back 63

A lawyer who has formerly represented a client in amatter shall not thereafter represent another person in the same or a substantially related matter in which thatperson's interests are materiallyadverse to former client.

Front 64

Concurrent conflict of interest exists when

Back 64

(1) client directly adverse to another client; or

(2) representation is materially limited by the lawyer's responsibilities to:

(a) another client

(b) a former client

(c) a third person who lawyers owes duty or

(d) by a personal interest of the lawyer.

Front 65

A lawyer may withdraw representation so long as...

Back 65

“withdrawal can be accomplished without materialadverse effect on the interests of the client.” 1.16(b)

Front 66

Supervising attorneys ethical responsibilities

Back 66

Individualsupervising lawyers may be subject to discipline for inadequate oversight ofanother lawyer for whom the supervisor has “direct supervision authority.”

Front 67

Multi-jurisdictional practice of law is ok if...

Back 67

(1) lawyer works with another lawyer admitted in that jurisdiction

(2) legal issue is arises out of or is reasonably related to work in home jurisdiction Rule 5.5

Front 68

Multidisciplinary practice

Back 68

Thegeneral thrust of the rules against multi-disciplinary practices (MDP) is to protect the independent professionaljudgment of the lawyer from being influenced by the financial interests ofnon-lawyer members. Rule 5.4

Lawyers employed by a corporation (in-house counsel) may provide legal counselto the corporation, but not directly to the clients of the corporation.

Front 69

Client with diminished capacity...

Back 69

Thelawyer shall, as far as reasonably possible, maintain a normal client-lawyerrelationship with the client.

Front 70

What is an Upjohn Warning?

Back 70

An Upjohn Warning gives a company's employee notice that the company attorneys represent the company, and not the individual. Upjohn warning should make clear:

(1) attorney-client privilege belongs solely to, and is controlled by, the company.

(2) company may choose to waive the privilege and disclose what the employee informs the attorney.

Front 71

Representing an organization

Back 71

A lawyer employed or retained by an organizationrepresents the organization acting through its duly authorized constituents. Rule 1.13

Front 72

Why do the rules require entire law firm, or entiresection of law firm, to be sold?

Back 72

In service to the client; if the whole sectionor firm is sold, the service to the client does not suffer

Front 73

Do the ABA Rules endorse attorneys using client papers as security toobtain payment for services?

Back 73

No, but it does not explicitly disallow the practice; the answer depends on state law. Wisconsin law is silent on this matter.

Front 74

Is there a limit on general allowance for attorneys toturn down representing a client?

Back 74

Yes, attorney can’t routinely discriminate against a protected category in deciding to turn down clients.

Front 75

Howmany states have adopted the ABA Model Rules in their entirety?

Back 75

None; however all state ethics rules are based on the ABA model rules

Front 76

What is the only rule covered in class that applies to non-lawyers?

Back 76

Rule 8.1 is one of the only rules that may apply tonon-lawyers, because it covers bar applicants (non-lawyers) as well as lawyers.

Front 77

Why do states regulate lawyers?

Back 77

Lawyers are placed in a position of trust

Front 78

Islaw a self-regulating profession?

Back 78

Yes

Front 79

Is attorney client privilege the same as confidentiality?

Back 79

No, attorney client privilege is an evidentiary device that prevents disclosure of communications between attorney and client. Confidentiality is an ethical requirement that prevents attorneys from disclosing information obtained in confidence from a client.

Front 80

When will a former client create a conflict of interest with representing a current client?

Back 80

(1) If lawyer represent another person in the same or a substantially related matter and

(2) that person's interests are materially adverse to the interests of the former client.