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77 Cards in this Set

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What four things can happen to complaint?
1. dismissal of complaint
2. admonishment of lawyer
3. formal proceeding take place
4. formal discipline by agreement of lawyer
Four types of discipline that can be imposed on MA atty
1. disbarment
2. suspension (temp. revocation)
3. public reprimand
4. admonishment (private reprimand)


**also subject to malpractice claims by clients
4.
Two forums for discipline
1. trouble with bar

2. malpractice claims by clients

**forums not connected. One can go forward without the other.
Rationally related requirements for admission to bar
1. grad from aba accredited law school

2. oath to uphold state and fed constitutions

**Cant require that be us citizen or state resident
Truth and full disclosure
applicant cant make any knowingly false statement of material fact

Or fail to disclose
duty to cooperate
applicant to bar has duty
duties of applicants to bar and lawyers writing on behalf of appplicants to bar
1. truth and full disclosure (can't knowingly make false statement of material fact or fail to disclose)
2. duty to cooperate
Duty of lawyer who knows of violation that raises substantial question of lawyer's character and fitness
1. report
- for bad lawyer, bar counsel's office
- for bad judge, commission on judicial conduct

2. available to testify

**duty of confidentiality TRUMPS this duty, but still can't recommend for admission to other bar
What is effect of discipline by one state on status in other state
Most states give some effect to a sister state's determinatoin of violation of ethical rules under full faith and credit clause.
When can lawyer represent someone in state where not licensed?
--permissible termporary multi-jurisdictional practice

1. associate with an active local lawyer

2. special permission called pro hac vice (this matter only)

3. mediation or arbitration out of home-state practice

4. anything reasonably related to lawyer's home state practice
What activities require license (constitute practice of law)
1. appearances in judicial proceedings and depositions

2. drafting docs that impact substantial legal rigths (ultimately lawyer responsible)

3. negotiating settlements


Doesn't require license to: fill in forms, interview, and write legal memos.
What are client's decisions?
to settle, appeal, file case

to take stand in criminal case
What are lawyer's decisions?
decisions of strategy and tactic

--clients can veto decisions based on cost reasons
What does atty do when client loses ability to make clear decisions?
appoint guardian
Lawyers can only take cases competent to handle. What does competent mean?
1. physical and mental ability
2. legal knowledge
3. time
What does atty do if not competent to handle case?
1. tell them to hire other lawyer

2. offer to co-handle with other atty

3. ask to give time to learn legal area
When can lawyers help non-lawyers engage in practice of law?
NEVER, except can give advice to pro se litigant
Can lawyer enter into non-compete agreement with current partners or associates?
No, bc clients have right to hire who want.

UNLESS
1. can have non-compete as condition of retirnement
2. can have non-compete as condition of departure from firm
**both situations likely involve negotiations and money
Rules for naming practice
1. Cant be misleading (legal clinic or the law firm of massachusetts bc suggests state sanctioning)
--standard whether lay person would be mislead

2. In MA trade names are ok

3. Can't make up names of firm to give self credibility
When must firm remove name from firm title?
1. must remove when lawyer leaves permanently
--e.g. ambassadorship

2. when lawyer leaves temporarily, name can stay
--e.g. lawyer suspended
Can lawyer call self specialist?
Yes, so long as not deceptive.

--can say specialize if focus on that area
--can't say certified if only focus on that area
How does lawyer hold self out as specialist?
Ok so long as not deceptive

1. making statement that concentrate or specialize in specific area

2. appearing as specialist in atty directory of phone book

3. any other way that associate self with particular area of law
What must atty do to say certifie din specific subject in MA?
1. certified by private organizatoin which is named and indication that standards are not regulated by commonwealth

2. certified by named gov body

2.
Requirements for lawyers advertising?
1. Cant make false or misleading statements

2. can't make reference to clout or connections

3. can't make comparisons with other lawyers

4. Can't guarantee results or establish inappropriate expectations

5. Must state terms and basis of fee agreement when advertising contingent fees. Must be clear whether client will be responsible for costs. Make sure detailed ad.

6. Targeted mail ads ok when include disclaimer, not misleading and say "this is an advertisement", and don't send by certified mail.

7. client names in ad require consent

8. name of at least one lawyer responsible for content must be in ad

9. Ad must be kept for period of 2 years after its last dissemination with record of where and when ad used
Ad for med mal firm says "all members of this firm are juris doctors".

Valid?
No, bc lay person could be confused and think real doctors
A advertises that as good as B and only charges half as much. Valid?
No, can't make comparisons with other lawyers bc no way to verify.
Targeted mail ads. Valid?
Can't solicit clients.
Can use targeting mailing when
(1) disclaimer
(2) not sent by certified mail
(3) states "this is an advertisement
(4) not misleading
A's new billboard reads "No charge for initial consultation. We don't get paid unless you recover" OK?
No because continget fee ads must clearly state terms and basis of fee agreement. Must also tell wehther client will be responsible for any costs.
Can solicit clients?

Solicit defined?
No, including friends, relative, former clients

Solicit means
(1) live in-person, telephone, or instant electric,
(2) others soliciting for you.
(3) giving in-person, unsolicited advice and later taking case

Exception: Can solicit pro bono clients
Requirements for sale of law practice
1. written notice to clients
2. can't change fees on existing clients as result of sale
3. Can change fee arrangements, BUT must specify new terms
4. tell clients that can get new lawyer
5. consent presumed by client if take no action in 90 days
Rule for maintaining client confidences
Can't disclose info that could be derogatory, embarassing or hurtful to client. Doesn't matter what source of info. Survives death of client

UNLESS
1. required by law or court order
2. to obtain legal or ethical advice for lawyer. Use hypos to protect identity
3. to extent lawyer reasonably believes necessary to prevent conduct likely to result in death or substantial bodily harm or substantial injury to the financial or property interests of another, or the wrongful execution or incarceration of another.
Duty to safeguard client property
keep property in bonded warehouse
When see possible conflict of interst on case
play it safe and refuse to accept or continue representaion in most cases
Can atty take interest in subject matter of case?
No, unless case is over, appeals and all.

E.g. cant take book or movie rights in litigation as payment
Can lawyer draft instrument that gives atty substantial gift for client?
No, UNLESS
(1) family member
(2) de minimis or nominal gift (objective test)
Can atty lend money to client?
No, UNLESS has to do with advancing litigation costs
What effect when third party pays clients fee?
Third party gets no confidentiality.

Clients still gets to make decisions and confidentiality
Can atty limit malpractice exposure by getting clietn to agree not to sue?
No, UNLESS

informed consent that atty is incompetent to take case
when client has independent representation????
Can atty do business with client?
No, UNLESS fair to client

**remember that non-lawyers can NEVER be partners in business involving practice of law
Who is client when laywer for corp?
Client is microsoft, not any individual within corp.
Duty when represnting corp
1. must report illegal activity up the chain of command to CEO

2. If not appropriate response, then MUST go to board of directors and MAY go to appropriate outside authority.
Atty client privilege in board meetings?
Yes

BUT not if lawyer is a director of company
How to handle conflicts created by other lawyers in office?
Can screen off laywer so long as no fees/info/anything goes to that lawyer.

Best on bar to conclude that entire firm should be screened out
What can be considered when determining whether fee reasonable?
everything
When cannot charge contingency fee?
(1) criminal case
(not when kind of criminal case--such as you lose your license)

(2) domestic relations (e.g. setting child support and alimony)
--except can take contingency fees when COLLECTING past due alimony and child support

--really only appropriate when jury damages...
Can lawyers divide legal fees with non-lawyers?
No,
EXCEPT
(1) salaries, retirement plans, bonsues, profit sharing with employees of firm;

(2) spouses of deceased partners to pay fees earned by teh deceased partner
Can laywers divide legal fees with lawyers in other firm?
No these are unethical.
(basically referral fees but don't call them this)

Can split money if:

(1) client consents to fee arrangment in writing for both referring and referred lawyers

(2) total fee is reasonable

(3) burden for obtaining this acknowledgement is on referring lawyer (but both lawyers must have written acknowledgement)
Quantum meruit for lawyers
Lawyer can get reasonable value of wervices, but limited by contingency actually recovere/paid.
Types of retainers
1. advance on fees (in client trust account)

2. availability retainer (paid to be available when needed--if needed, then take from that retainer for payment. if never needed, atty keeps retainer.
What kind of accounts must lawyers have?
1. operating acct for atty funds

2. trust acct for client funds (only atty money allowed is to cover bank fees)

**but inactive lawyer, judge, law professor, retired lawyer doesn't need trust acct
Rules for trust accounts
1. must be in MA, unless clients want elsewhere

2. must notify client promptly when money arrives

3. keep records for 6 years after termination of representation
Can laywer take money for self out of client account?
never, no matter whether pay back with interst.

--except must take money on regular frequent basis when become earned (otherwise impermissible comingling)
What does lawyer do with settlement payment when client disputes lawyer fee?
1. give client undisputed payment for client
2. lawyer can take undisputed lawyer fee
3. lawyer can give client disputed fee or keep in client trust until dispute resolved
IOLTA defined

Who gets interest?
interest on lawyers trust account

MA legal assistance corp or other charities gets interest
What happens when subordinate lawyer violates rule of professional responsbility
When arguable, defend that told to do it
What happens when supervising lawyer violates rule of professional responsbility?
Responsible for own violations

Responsible for violations of subordinate lawyers following supervising lawyers instructions

Responsible for violations of subordinating lawyer that knew about or found out about and didn't fix
When can laywer talk to juror:

1. during trial?
2. after trial?
1. jury selection, opening and closing

2. ok UNLESS
a. court order prohibits
b. juror refuses
c. purpose to harass
When can layewr talk to adverse party?
only through lawyer
When can lawyer talk to witness?
any time
when does lawyer have duty to disclose ocntrary or adverse authority
when comes from from controlling jurisdiction
Duties of opposing counsel
1. must be fair
2. must not unlawfully obstruct access to evidence
3. can't falsify evidence
4. knwoingly disobey an obligation under rules
5. make frivolous discovery requests
6. not allude in trial to matter the lawyer reasonably believes can't be supported by evidence
7. request a non-party to refrain from voluntarily providing info
8. pay or offer to compensate witness contingent on testimony
9. threaten criminal or disciplinary charges to gain advantage in civil matter
10. engage in bias or prejudicial conduct while appearing in proffessional capacity
When must atty withdraw from represnetation
1. atty impaired
2. fired
3. when represtnation would lead to violating rule or law
When may atty seek to withdraw?
anytime
What to do when know client will lie?
1. dissuade
2. seek to withdraw
3. follow judge's order
What to do if client is going to lie on stand and judge wont' let atty out?
ask no questions
When can lawyer connected with case make public statement outside courtroom?
when no substantial likelihood of material prejudice to case

--basically dry facts about case
When can prosecutor connected with case make public statement outside courtroom
Can't make extra judicial comments that have substantial likelihood of heightening public condemnation of accused
When can laywers seek to avoid appointemnt for case
When good cause such as
1. taking case would create conflict leading to violation of rules

2. unreasonable financial burden

3. repugnant cause
Uphold integrity of profession req
1. involved in bar
2. report unfit applicants
Request by lawyer to client to drop complaint
charge in itself
Req for pro bono work
Lawyers should but not required
special duties of prosecutors
1. proceed only on probable cause

2. protect defendant's right to counsel

3. no seeking advantage from unrepresented

4. ***must disclose evidence tending to negate guilt

5. limiting extrajudicial statements of others under prosecutor's control
When is a conflict of interest between multiple clients of one atty permissible?
**informed consent

1. Representation of one client that is adverse to interests of another client
(a) the lawyer reasonably believes that represenattion will not adversely affect relationsihp with other client, and
(b) each client consents after consultation

2. represent client against former client in substantially related matter
(a) former client consents after consultation

3. Representation of client in substantially similar matter in which former firm represented client with materially adverse interests AND who lawyer acquired material information protected by RPC
(a) former client must consent after consultation
Standard for lawyer gaining advantage possibly at expense of client

1. entering into business transaction with client

2. knowingly acquiring an ownership or pecuniary interest adverse to a client
1. terms must be fair and reasonable to client

2. terms must be fully disclosed in writing to client in understandable manner

3. client must be given reasonable opportunity to seek advice of independent counsel

4. client consents in writing
Representation of one client that is adverse to interests of another client
the lawyer reasonably believes that represenattion will not adversely affect relationsihp with other client, and
(b) each client consents after consultation
represent client against former client in substantially related matter
former client consents after consultation
Representation of client in substantially similar matter in which former firm represented client with materially adverse interests AND who lawyer acquired material information protected by RPC
former client must consent after consultation