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82 Cards in this Set
- Front
- Back
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CONFIDENTIALITY
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An attorney cannot reveal anything related to the representation of a client without consent. The duty of confidentiality applies regardless of whether the client requested it to be kept confidential or whether its revelation might harm or embarrass the client.
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CONFIDENTIALITY EXCEPTIONS
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A lawyer shall not reveal information relating to the representation of a client unless: the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted or required by the rules.
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RULES REQUIRING A LAWYER TO BREACH CONFIDENTIALITY
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the lawyer reasonably believes it necessary to prevent the client from committing a crime that is likely to result in death or substantial bodily harm. the lawyer's client intends to commit a crime and the information revealed is necessary to prevent the future crime the information related to the representation of a client to the extent the lawyer reasonably believes necessary: to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services; to mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services; to secure legal advice about the lawyer's compliance with these Rules; to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or An attorney must reveal confidential information if compelled by law, other controlling ethical duties, or a final court order.
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OUTSIDE SOURCES
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The duty of confidentiality applies to any information about the legal matters of a client even if obtained by an outside source.
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CONFIDENTIALITY DISTINGUISHED FROM ATTORNEY CLIENT PRIVILEGE
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The duty of confidentiality applies regardless of whether or not the information is privileged.
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LOYALTY
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An attorney has a duty of loyalty to the client. If an attorney has a personal interest, an interest of another client, or that of a third party that materially limits or is directly adverse to loyal representation there is a potential or actual conflict of interest.
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CONFLICTS OF INTEREST
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DUTY OF CONFIDENTIALITY PRECLUDES CONSENT
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If the duty of confidentiality prevents the attorney from fully disclosing the information to the client then consent may not be possible.
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IMPUTED DISQUALIFICATION
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means that the attorney and all members of the firm are treated as one for the purposes of conflict.
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EXCEPTIONS TO IMPUTED CONFLICTS
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Exceptions to imputed conflicts are when a conflict arises from previous government service, which is governed by separate rules; and when the conflict of the lawyer arises from a purely personal relationship that would not affect the ability of other firm members to represent the client. In these limited cases only, an ethical wall may make representation reasonable by blocking off any contact on the matter between the lawyer with the conflict and other lawyers of his firm.
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SCREENING
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AZ allows screening of attorneys and non-lawyer personnel who may have acquired client confidences from previous work when their new firm has interests adverse to that client, if the disqualified lawyer's work did not involve a proceeding before a tribunal in which the lawyer’s role was substantial, and if the client gets written notice.
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REMEDIES FOR CONFLICT OF INTEREST
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An attorney may refuse to take the case, advising multiple clients to get separate counsel or withdraw
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INTEREST IN THE SUBJECT OF LITIGATION
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a lawyer should not become "interested" in the subject matter of the litigation.
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EXCEPTIONS FOR INTEREST IN THE SUBJECT OF LITIGATION
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an attorney's lien on property to secure payment of fees, and work on a contingent fee basis (big loophole!).
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PUBLICATION RIGHTS CONTRACT
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Representation must have ended before an attorney may buy the rights to a client’s story.
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BUSINESS TRANSACTIONS OR ADVERSE INTERESTS
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An attorney may enter into business with a client or obtain an interest adverse to hers only if the terms are fair to the client, fully disclosed in understandable writing, the client has opportunity to consult an outside lawyer, and your client provides written consent.
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LOANS AND ADVANCES TO YOUR CLIENT
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Do not financially assist your client with litigation, except for: costs and litigation expenses when representing an indigent client, or the advance of expenses if the client promises to pay them back. Repayment contingent (contingency agreement) on recovery is OK.
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LIMITING LIABILITY
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You cannot proscriptively limit your client's right to report you for ethical or other professional violations. Similarly, you cannot limit your malpractice liability unless the client is independently represented in making the agreement. If a client later does make a malpractice claim against you, you can only settle after written advise to the client to consult an outside lawyer first
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USE OF INFORMATION
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Use or communication of information relating to the representation of a client to her disadvantage and without consent violates the duties of both confidentiality and loyalty
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GIFTS TO THE LAWYER OR LAWYER'S FAMILY
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You must not solicit a substantial gift from a client, or draft a legal instrument for a client who is not your close relative if it provides a substantial gift to you or your relative.
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HAVING SEX WITH CLIENT
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is never allowed unless you already had a consensual sexual relationship when the representation commenced. This conflict is not imputed to other firm members.
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CLOSE RELATIONSHIPS OPPOSING COUNSEL
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You can't oppose a party represented by a relative without informed client consent.
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"CLOSE RELATIONS"
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clearly include your spouse, parent, child or sibling. In addition, watch out for any relationships that would compromise your competence or independent professional judgment.
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TRIAL COUNSEL AS A NECESSARY WITNESS
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The general rule is an attorney cannot serve as counsel and witness in the same trial except if the lawyer's appearance as a witness will not prejudice the client and the testimony is uncontested, or regarding the nature and value of services rendered if the attorney’s distinctive value to the case would mean withdrawal would impose substantial hardship on the client
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ACTUAL CONFLICT BETWEEN CLIENTS
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A lawyer shall not represent a client if the representation involves a concurrent conflict of interest.
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CONCURRENT CONFLICTS
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A concurrent conflict of interest exists if: the representation of one client will be directly adverse to another client; or there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to: another client, a former client or a third person or by a personal interest of the lawyer.
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WHEN A LAWYER MAY REPRESENT CONCURRENT CLIENTS IN CONFLICT
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A lawyer may represent a client if each affected client gives: informed consent, confirmed in writing, and the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; the representation is not prohibited by law; and the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal.
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POTENTIAL CONFLICTS BETWEEN CLIENTS
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generally, you may represent clients with potential conflicts with the proper reasonable consent of all.
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CONCURRENT CLIENTS ON OPPOSITE SIDES OF THE SAME MATTER
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An attorney cannot represent a party adverse to a present client of the attorney’s firm. Imputed disqualification prohibits the representation on the same matter.
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OPPOSING PRESENT CLIENT'S INTERESTS
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if the clients interests are adverse, but in separate proceedings, representation of both may be possible with consent from all or if disqualified lawyers are timely screened and notice is given.
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CONCURRENT CLIENTS IN THE SAME MATTER ON THE SAME SIDE
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is ok, with reasonable consent, unless the clients may come into direct conflict during the case.
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COMMON EXAMPLES OF MULTIPLE REPRESENTATIONS OF CLIENTS
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insured and insurance company; a corporation and any of its directors, officers, employees, or shareholders both spouses in a prenuptial agreement, divorce or will
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DUAL REPRESENTATION IN CRIMINAL MATTERS
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In criminal matters, dual representation may not only compromise your duty of loyalty; but also impede the 6th Amendment guarantee of "effective assistance of counsel."
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NEW CLIENTS IN MATTERS RELATED TO FORMER CLIENTS
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If confidential information from another client might be relevant to work on a new client's matter, you may be violating your continuing duty of confidentiality as well as your duty of loyalty to your former client. You cannot take on a new client with interests materially adverse to a former client without the former's informed consent, confirmed in writing.
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CONFLICT DUE TO THIRD PARTY INTERFERENCE
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An attorney’s sole duty is to the client, not to any third party. Compensation for attorney services may be paid by a third party so long as the client gives informed consent.
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ORGANIZATION AS CLIENT
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A lawyer must act as reasonably necessary in the best interest of the entity even if an officer, employee, or other associated person acts to the contrary.
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BALANCING ADVERSE INTERESTS IN AN ORGANIZATION
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In determining how to proceed, the lawyer shall give due consideration to the seriousness of the violation and its consequences, the scope and nature of the lawyer's representation, the responsibility in the organization and the apparent motivation of the person involved, the policies of the organization concerning such matters and any other relevant considerations.
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ACTIONS INTENDED TO MINIMIZE DISRUPTION OF ORGANIZATION
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asking for reconsideration of the matter; advising that a separate legal opinion on the matter be sought for presentation to appropriate authority in the organization; and referring the matter to higher authority in the organization, including, if warranted by the seriousness of the matter, referral to the highest authority that can act on behalf of the organization as determined by applicable law.
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RESIIGNATION
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If, despite the lawyer's efforts, the highest authority that can act on behalf of the organization insists upon action, or a refusal to act the lawyer may resign
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FIDUCIARY DUTIES
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an attorney owes a fiduciary duty to his clients.
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ATTORNEY’S FEES
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A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses.
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CALCULATION OF ATTORNEY’S FEES
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The factors to be considered in determining the reasonableness of a fee include the following: time and labor, novelty and difficulty, preclusion of other employment, local custom, time limits imposed by the client or by the circumstances, nature and length of the professional relationship with the client experience, reputation, and ability of the lawyer or lawyers, the degree of risk assumed by the lawyer, and the amount involved and the results obtained.
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NO CONTINGENCY FEES
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for a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof; representing a defendant in a criminal case; or a fee denominated as "earned upon receipt," "nonrefundable" or in similar terms unless the client is simultaneously advised in writing that the client may nevertheless discharge the lawyer at any time and in that event may be entitled to a refund of all or part of the fee.
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CONTINGENT FEE AGREEMENTS
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A contingent fee agreement shall be in a writing signed by the client and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal, litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated.
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DIVISION OF FEES
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A division of fee between lawyers who are not in the same firm may be made only if each lawyer receiving any portion of the fee assumes joint responsibility for the representation; the client agrees, in a writing signed by the client, to the participation of all the lawyers involved; and the total fee is reasonable.
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CLIENT TRUST ACCOUNTS
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A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property. Funds shall be kept in a separate account. A lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred.
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DUTY OF COMPETENCE
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A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
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DUTY OF COMPETENCE IN SPECIAL MATTERS
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if a matter is more specialized the relevant factors include the relative complexity and specialized nature of the matter, the lawyer's general experience, the lawyer's training and experience in the field, the preparation and study the lawyer is able to give the matter and whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question.
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DUTY TO COMMUNICATE
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A lawyer has a duty to promptly inform the client of any action which the client's informed consent is required, reasonably consult with the client about strategy; keep the client reasonably informed about the status of the matter; promptly comply with reasonable requests for information; and consult with the client about any relevant ethical limitation.
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INFORMED DECISIONS
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A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
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PLEA OFFERS
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In a criminal case, a lawyer shall promptly inform a client of all proffered plea agreements.
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ADVERTISING
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A lawyer may advertise services through written, recorded or electronic communication, including public media. Such advertising shall include the name and office address of at least one lawyer or law firm responsible for its content.
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FALSE OR MISLEADING COMMUNICATIONS
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A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.
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PAYOLA
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A lawyer shall not give anything of value to a person for recommending the lawyer's services except that a lawyer may pay the reasonable costs of advertisements or communications pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service. A qualified lawyer referral service is a lawyer referral service that has been approved by an appropriate regulatory authority; and
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ADVERTISING LAWYER’S FEES
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every advertisement (including advertisement by written solicitation) that contains information about the lawyer's fees must state the percentage of contingency fees. A lawyer advertising hourly rates must inform the client that totals will vary. An advertised fee must remain open for 90 days.
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SOLICITATIONS
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A lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional employment from a prospective client when a motive for the lawyer's doing so is the lawyer's pecuniary gain, unless the person contacted is a lawyer; or has a family, close personal, or prior professional relationship with the lawyer.
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DO NOT CALL
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If the prospective client has made known to the lawyer a desire not to be solicited by the lawyer or the solicitation involves coercion, duress or harassment the lawyer may not solicit employment.
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THE LAWYER HAS A DUTY OF __________ TO ____________.
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Confidentiality, loyalty, fiduciary, competence to clients; and
candor, fairness and dignity and decorum to the court and the public. |
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DUTY TO PRESENT EVIDENCE TRUTHFULLY
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A lawyer shall not make a false statement of fact to a tribunal or fail to correct a false statement of material fact previously made to the tribunal by the lawyer.
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DUTY TO STATE THE LAW TRUTHFULLY
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A lawyer shall not make a false statement of law to a tribunal or fail to correct a false statement of law previously made to the tribunal by the lawyer or fail to disclose to the tribunal adverse legal authority in the controlling jurisdiction known to the lawyer and not disclosed by opposing counsel.
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DUTY TO CORRECT A FALSITY
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If a lawyer, the lawyer's client or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
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DUTY NOT TO SUBORN PERJURY
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A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.
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DUTY TO PRODUCE EVIDENCE
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a lawyer shall not unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act.
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DUTY TO UPHOLD THE LAW
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a lawyer shall not knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists
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EX PARTE COMMUNICATIONS
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a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so
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MERITORIOUS CLAIMS AND CONTENTIONS
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A lawyer shall not bring or defend a claim unless there is a good faith basis in law and fact for doing so that is not frivolous.
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CRIMINAL CASES INVOLVING NON-MERITORIOUS CLAIMS
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A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.
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DEALING FAIRLY WITH OTHERS
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In the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person; or fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited
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DISINTERESTED PARTY
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In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested.
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CONFUSED PARTY
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When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.
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ADVICE TO UNREPRESENTED PARTIES
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The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.
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WRONGFUL USE OF PROFESSION
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a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden any other person, or use methods of obtaining evidence that violate the legal rights of such a person.
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INADVERTANT RECIEPT OF DOCUMENTS
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A lawyer who receives a document and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender and preserve the status quo for a reasonable period of time in order to permit the sender to take protective
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DEALING WITH THE PRESS
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A lawyer shall not make comments to the media that might materially prejudices a client or an adjudicative proceeding.
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A LAWYER MAY TELL THE PRESS
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A lawyer may state the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved; information contained in a public record; that an investigation of a matter is in progress; the scheduling or result of any step in litigation; a request for assistance in obtaining evidence and information necessary thereto; a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and In a criminal case, in addition to the above a lawyer may state the identity, residence, occupation and family status of the accused; if the accused has not been apprehended, information necessary to aid in apprehension of that person.
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IMPARTIALITY AND DECORUM
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A lawyer shall not seek to influence a judge, juror, prospective juror or other official of a tribunal by means prohibited by law; communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order; communicate with a juror or prospective juror after discharge of the jury.
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EXPEDITE CASES
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A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.
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NO UNAUTHORIZED PRACTICE OF LAW
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A lawyer shall not practice law in violation of the regulation of the legal profession, or assist another in doing so. A lawyer who is not admitted to practice shall not establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.
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MANAGING PARTNERS
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A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.
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EMPLAWYER LIABILITY
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A lawyer shall be responsible for another lawyer's violation if the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
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LAWYER AS SUPERVISOR
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A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.
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SUBORDINATES
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A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person. A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty.
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