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109 Cards in this Set
- Front
- Back
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Torts
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1) Malpractice -substantive law or negligence
2) competence 3) bar admission fraud 4) overzealous representation - fraud 5) Abuse of Process/Malicious Prosecution 6) Vicarious Liability 7) Lawyer cannot treaten criminal action to obtain a civil advantage 8) contingency fees |
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Contracts
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1) contigency fees
2) exoneration for malpractice not permitted 3) Waiver of conflicts 4) fraud crossover 5) lawyer cannot threaten criminal action to obtain a civil advantage |
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Property
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1) confidences - self dealing
2) improprieties - fraud 3) competence of counse' 4) conflict of interest - joint clients |
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Remedies
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1) Malpractice - damages required
2) Commingled Bank Accounts, 3) Negative covenant 4) Fraud - Tort/Contracts crossover |
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Crimes
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1) General misconduct- felony
2) Lawyer practicing law/smoking gun evidence 3) competence of counsel 4) Impropriety of frunds - embezzlement/theft crimes 5) Lawyers cannot threaten criminal action to obtain a civil advantage 6) Contigency fees 7) conflict of interest 8) Attorney - client privilege |
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Criminal Procedure
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1) Prosecutorial abuse of power
2) Competency of counsel 3) Indigents (pro bono) 4) Joint Clients 5) Jury misconduct 6) Publicity 7) No consitutional right to lie on stand |
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Evidence
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1) Relevance - attorney's opinion
2) Expert witness 3) attorney client privilege |
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Constitutional Law
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1) Equal Protection - Wealth
2) First Amendment Speech a) commerical speach must no be false or misleading b) Use of testimonals c) Ommissions (torts) d) Specialists e) Solicitation - direct mail permitted f) Trial Publicity |
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Wills
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1) Attorney improprieties - fraud
2) Conflict of interest 3) Fee splitting with death partner's estate |
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Trusts
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Improprieties
attorney misue of trust funds conflict of interest Commingled bank accounts |
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Community Property
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1) Contingency fees
2) Conflict of interest 3) Advertising |
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Civil Procedure
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1) Overzealous Representation
2) Trial Court Conduct 3) Jurisdiction issues |
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Corporations
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1) conflict of interest
a) fraud b) entity conflicts c) multiple clients 2) competence of counsel 3) Unauthorized practice of law - a non lawyer may not be a partner of a law corporation |
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False statements/failure to disclose material fact on bar application
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One who lies on his or her bar application will be subject to discipline after passing the bar. However, good faith mistakes are permissible.
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What is disciple
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It is an administrative action undertaken by the state bar to protect the public from dangerous bad lawyers.
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General Misconduct: Duty of Honesty and Integrity (a catch all)
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1) pubich should be protected from those who are not qualified to be lawyers
2) criminal or moral turpitude insie and outside lawyers job |
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Misconduct a lawyer should not:
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1) violate rules of profession conduct or assist or induce another in such violation
2) engage in conduct involving moral turpitude 3) engage in conduct prejudicial to the administration of justice 4) Engage in conduct that adversely reflects on his fitness to practice law 5) state or imply that she has the ability to influence the government or a governmental offical 6) knowingly assist a judicial officer in violtion of the rules |
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Reporting Ethical Violations (Whistle Blowing)
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A lawyer who knows that another lawyer or judge has committed a violation shall inform the appropriate authority, unless the information is privileged.
CA only requires the attorney to report her own misconduct |
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Improving the legal system
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1) pro bono work
2) must not turn down appointed cases 3) should not belong to a discriminatory organizations 4) lawyers should work for law reform |
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What is the practice of law
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Work that requires a lawyer's skill and knowlege
1) giving legal advice 2) one must have a law license to represent in court 3) Preparing documents - ok to delegate to secretary, etc., attorney is fully responsible for all such work |
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Sharing fees
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1) an agreement by a lawyer with is firm, partner, or associate may provide for payment of money to one or more specified person
2) retirment plan or profit sharing 3) fee-sharing with non laywers is prohibited but can give mutual referrals to other professionals without a fee 4) A lawyer shall not allow a non lawyer to direct or control the professional judgment of a lawyer |
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Improper Business Relationships
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Non lawyers cannot own law firms, and a lawyer cannot form a partnership with any individual not licenses to practice law if any activities of that partnership will be the practice of law
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Proper Identification
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1) phone, cards, door, letterhead
2) failure to tell suspended status 3) An attoney who is not a certified specialist may not advertise that she is a certified specialist |
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Multi-jurisdicitional practice
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Multi jurisdictional practice acceptable if an ABA school graduate, five years of practice and in good standing
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Competence Generally
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An affirmative duty to utlize the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
1) CA - Keep client informed and promptly comply with reasonable request for information OK - Association -writing consent required |
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Diligence and promptness
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A lawyer shall act with reasonable diligence and promptness in representing a client
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Communication
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Inform and promptly comply with reasonabl request for information
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Written settlement offers
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Lawyers must communicate to their clients all written offers of settlement made by opposing parties.
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Duty - Minster of Justice as well as advocate for goverment
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1) must personally believe there is a likelihood of guilt and belief must be reasonable, otherwise refrain from prosecuting
2) make reasonable efforts to assure the accused has been advised of the rights to and the procedure for obtaining counsel 3) refrain from waivers 4) make timely disclosures of evidence that tends to negate the guilt of the accused or mitigates the offense 5) exercise reaonable care to prevent investigators, etc., from making improper extrajudicial statements 6) do not subpoena lawyer for testimony - no alternative |
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Malpracice
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(tort crossover) neligece is the most common theory Civil suit for breach of the standard of care owed which caused damages
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Malpractice- standard of care
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Where defendant is a professional (possess knowledge or skill greater then the average person) the reasonable person to whom he is compared is a member of his trade with the customary level of specializing knowlege of a practitioner in good standing
** Specialist are held to a higher standard |
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Breach of Duty of due care
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An attorney is not liable for mere errors or judgment. The failure to find the answerto a legal question constitutes breach if reasonably competent use of standard legal research techniques would have revealed the answer
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Causation
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Plaintiff must prove that the breach of duty was the actual and proximate cause of damage
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Damages
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Direct losses and indirect but foreseeable losses
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Liability
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Lawyers can be liable for damages caused by negligence secretaries, clerks, etc.
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Malpractice - limit liability
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1) must not attempt to limit malpractice liability
2) an agreement limiting malpractice liability is permissible only if the client is independently represented in making the agreement, and the agreement is in writing CA - malpractice should not be limited and malpractice settlements shall not be made prior to informing the client he may seek independent legal advise |
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Acceptance of Employment
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Do not take merely to harass opponents
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Identity of Trust Account Funds
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1) Notify, deposit, identify, keep records, for five years, render accounting on demand
2) account must be in the same state as lawyer's office unless client consents |
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Trust accounts
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Unnecessary if the attorney is on salary. However, if the attorney receives mony that is part of his own and part of the client's or receives an advancement of fees it must be deposited in a trust account
1) commingling - not permitted 2) dispute - the dispute amount must be left in the account 3) interest - is legal because no harm to the client |
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Payment in form of chattels
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Must be labeled and kept in separate safe deposit box
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Contact with officials
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1) do not give/lend anything of value to one connected to tribunnal
2) no ex parte communication with judge |
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Public Office Lawyers shall not
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1) unfairly use position for herself or client
2) use posision to influence the tribunal 3) accept gifts |
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Advertising
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General announcement to the general public regarding availability of legal services
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Advertising cannot be
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misleading
1) technical rules - keep copies for two years after dissemintation ; include the name of one responsible lawyer 2) no material misrepresentation of facts or law or ommissioin of fact 3) must not be likely to create unjustified expectatin about results 4) must not imply ability to achieve results by illegal means 5) must not compare services with other lawyer's |
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Using the words "very reasonable rates" misleading?
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No
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Must attorneys tell clients that they are responsible for fees and costs
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Yes
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Names of Firms
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Any name is permissible if not misleading
Misleading 1) falsely identifying the firm as a partership when in fact the lawyers are only sharing an office 2) implying affliation with the government or charitable organization |
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Notices/Letterhead
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1) must be in dignified form
2) Model Rules - must not be misleading 'ADVERTISING MATERIAL" or the like must be written on the envelope and the first page of the letter |
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Soliciation (defined)
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Attorney -initiated contact with a specific indivdiual regarding a potential legal problem
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Solicitation General Rule
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Solicitation is prohibited unless the solicited individual is a family member or there was a prior professional relationship. Solicitation is prohibited if it constitutes "coercision, duress or harrassment"
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A lawyer who has given unsolicted advise to a layperson that she needs a lawyer shall not accept employment resulting from that advise except:
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1) employment by close friend, relatie, or former client
2) Employment resulting from participating in activities designed to educate laypersons 3) employment resulting from a referral from a legal assistance organization that recommended the lawyer 4) Employment resulting from the joinder of other in a class action dependent on the joinder of those others |
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When is direct contact with prospective clients permissible
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1) family or prior professional relationship
2) properly labeled ad 3) prepaid legal service plan |
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In person solicitation
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A state may forbid in person solicitation for pecuniary gain if the situation is one which makes "adverse consequences: to the client likely
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Group or Prepaid Legal Plans
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Such services are permitted t market their services by in person or telephone contact so long as the persons contracted are not known to need legal services in a particular matter, and the lawyer does not own or direct the organization.
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Direct mail
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States cannot competely ban targeted direct mail advertising, letters, homeowners, subject to foreclosure okay.
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Recommending Legal Assistance
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A lawyer may not give anything of value to a person for recommending the lawyers services.
Exceptions, payments of reasonable advertsing costs. |
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Amount of Attorneys fees
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Must be reasonable and factors considered in the reasonableness analysis as follows:
1) time, labor, novelty and skill required 2) fee customarily charged for similar work in that locality 3) the amount of the fee and the result obtained 4) time limitations imposed by client or the circumstances 5) experience reputation or lawyer 6) nature/lenght of relationship with client 7) whether the fee is fixed or contingent |
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Contingency fees
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Majority - no permitted in criminal cases
Majority - not permitted in domestic relations cases where the fee depends upon any of the following a) securing a divorce b) upon the amount of alimony/support c) upon the amount of any property settlement in lieu of alimony or support (CA =ok) d) Model Rule and CA - Contigency fee agreement must be in writing and explained. The writing must explain the method by which the fee is calculated including percentages payable upon settlement what expenses will be deducted from the recovery and whether the expenses are to be deducted before or after the fee determination e) CA all fee agreement must be in writing if the fee is likely to be $1000 or more |
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Divison of Fees amoung lawyers
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CPR- Requires client consent. The fee shall not be increased as a result of the division of labor, and shall be in proportion to the work done or responsibility imposed on each lawyer
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Cal Rules - fees
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1) referral fees are permissible provided it is disclosed to the client in writing and the fee is not increased as a result of the division of labor
2) gifts to referring lawyers are permissible so long as not offered or given in consideration of any agreement for future referrals |
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Fee Dispute/Collection of Fees
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If there is a dispute about the attorney's fees, the funds should be left in the account and the attorney should suggest arbitration. If a third party creditor makes a claim tothe money, it should be left in the trust account
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Arbitration
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1) Majority - lawyer should offer arbitration if there's a fee dispute
2) Cal B&P Lawyer must offer arbitration (written notice) |
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Restriction of the right to practice law
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1) non-competition clauses: the majority of jurdisidction do not allow law firm to enter non-competition agreements with its lawyers, with a limitation
2) settlement agreement- a lawyer must not participate in the offering or making of an agreement in which a restiction on a lawyer's right to practice is part of the settlement of a controversy |
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Conflict of Interest (actual)
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Actual - an attorney must not take a case that poses an actual conflict of interest
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Conflict of Interest (Potential)
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If there is only a mere potential for conflict, the attorney can take the case if she fully discloses that potential to the client (CA waiver in writing)
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Waiver of Conflicts
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Clients can waiver potential conflicts but not actual conflicts
a) lawyers shall not accept cases where there is a potential conflice of interest unless the client gives an informed consent b) MRPC - Client can consent (waiver) if the lawyer has reasonable belief the client will not be adversely affected by the representation. 3) CA Rule - Requies written notice to the client of the potential conflict of the type of conflict |
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Conflict of interest between the client and the lawyer
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A lawyer must not represent a client if the representation of that client may be materially limited by the lawyer's own interests, unless the lawyer reasonably believes there will be no adverse affect and the client consents after consultation
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Sexual Relationship with client
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Majority - does not permit new sexual relationships with clients. CA allows dating of clients provided the relationship is not in return for legal services, the legal services do not suffer or the fee is not increased
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Financial/Business Relations
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An attorney cannot enter business deal with a client whre the deal is somehow adverse to the interests of the client. Mere informed consent is insufficientr, there must be general fairness
1) writing required 2) can not prepare document to give himself a gift 3) Book rights - An attoeny must not get book rights to a trail before it is over |
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Advance is simple costs and fees
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If the advance is simply costs and fees, it is acceptable in all jurisidictins. In a majority, repayment of such can be contigent on the positive outcome. In Minority must pay back regardless of outcome
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Advance is a loan
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If the advance is a loan, it is illegal in almost all states. However, in CA provided the loan is fair, it occurs after employment has begun and it is promised in writing,that such will be repaid it is legal
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Conflict of interest between client and third parties
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A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyers responsibility to another client or to a third person unless
1) the lawyer reasonably believes the representation will not be adversely affected 2) the client consent after consultation |
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Corporation
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1) the corporation is the client, not the employee
2) lawyer knows an officer will do wrong or has done wrong, he must proceed as reasonably necessary in the best interest of the corporation based upon the seriousness of the threat to the corporation 3) Confidential information obtained - advise each member to get independent counsel and keep the information obtained confidential 4) Withdraw if no resolution 5) when conflict arises with an officer the attorney must immediately explain that she is the attorney of the corporation and not the officer or employee 5) Okay to represent corporation and officer with permission from the corporation granted by an officer other than the one receiving the representation 6) CA may allow a wrongful termination lawsuit by a corporation attorney, provided no privileged material is compromised |
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Legal services paid for by third parties
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1) third party payment is permissible if the client consents
2) Duty - the lawyer's duty of loyalty is owed to the client not the payer 3) loyalty - the lawyer must inform the payer that his loyalty is to the client and that the duty of confidentiality owed to the client will not be breached, the lawyer must not reveal the client's confidences to the payor |
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Conflict of interest between clients (former Clients)
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A lawyer who has formerly represented a client shall not thereafter represent another person in the same substantially related matter in which that person's interests are adverse to the interests of the former client
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Multiple Representations/Simultaneous Client
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Lawyer should try to avoid multiple representation .
Model Rule - Attorneys must not represent a client if the representation of that client will be adverse to another cient, unless a) the attorney resonably believes there will be no adverse affect on the relationship b) the client consents after consultation |
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Divided Loyalty
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A lawyer must not take a client if there loyalty is divided. Although it is permissible to take muliple clients, if an actual conflict of interest develops the lawyer must withdraw from all of them
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Imputed Disqualifications when a lawyer changes jobs
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When a lawyer changes firms, her new firm is disqualified from taking cases against her former clients if she acquired confidential information about those clients. The lawyers in her new firm are vicariously disquailied, ie disquailfied is imputed to the whole firm because every lawyer in a firm is deemed to know everything about every case the firm has. Exceptions
1) Vicarious disqualifed lawyers leaves the firm and joins another his new firm is not disqualied 2) waiver by opposing party 3) Former government lawyers in private practice |
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Former Government lawyers in private practice
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1) The Model rules provide that a lawyer who has worked personally and subtantially on a matter while working for the government shall not represent that matter in private practice
2) the firm takes setps to provide the conflict from becoming imputed to all attorneys a) screening the ex-government attorney for the matter b) not sharing any fees from the matter with that attorney c) notifyiing the government of the possible conflict of interest so that the government can ensure that proper preventative measures are taken |
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Client Decisions
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The client has final authority over the big structual decison whether or not to settle, what plea to enter, whether or not to take the case to trial, whether or not to demand trial by jury, whether to appeal
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Attorney decisions
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The attorney has decision making authority over legal strategies and tactics, what witnesses to call and what order to call them in
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Advisor
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Lawyers have a duty to exercise independent professional judgment and render candidi advise, which may include moral, economical and political consideration
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Intermediary
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A lawyer may act as intermediary between clients with potential conflicting interest if the following conditions are satisfied:
a) informed consent to each client b) the lawyer reasonably believes there is a risk of material prejudice c) the lawyer reasonably believes he can offer impartial representation d) must withdraw if any of the cients so request. |
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Communication - Confidence (keep it to yourself forever)
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Communication between the attorney and client for purposed of representation and observations which are the fruit of clients communication
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Disclosure by lawyer prohibited unless
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1) client consent
2) necessary to prevent a dangerous crime 3) necessary to collect attorney's fees |
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Smoking Gun - and other evidence (look don't touch)
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1) the protection ceases when tangible evidence is in the possession of the attoenyor when the attorney interferes with the material evidence
2) if the attorney does nto possess the item of evidence or interfere with it, she is precluded from revealing any information about it |
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Disclosure by lawyer of all information about a client relating to the representation. Confidence rule survives death of client
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Prohibited unless:
1) client consents 2) disclosure implied authoried to carry out representation 3) prevent criminal act 4) dipute between lawyer and the client 5) disclure is necessary to prevent/rectify perjury |
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Disclosure - client's desire to kill, etc
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Must disclose confidence which lawyer reasonably believes necessary to prevent client from committing a future physically dangerous crime.
Beginning July 1, lawyers will be allowed to disclose client's plan to kill or seriously injure someone without worrying about violating attorney-client confidentiality |
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Secrets
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Information gained in the professional relationship that the client has requested be kept secret, or that which would be embarrssing or would be likely to detrimental to the client....
SECRETS MAY BE REVEALED |
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Effect of Sale of Law Practice
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1) must give notice to each of his client and obtain client consent before revealing confidences to the purchaser
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Zealous Representation
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Meritiorious, speedy, candid, fair
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Fairness to opposing party
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1) lawyer must not obstruct another party's access to evidence
2) lawyer must not ask person other than their client to refrain from giving relevant information to another party unless the person is a relative |
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Perjured/False Evidence
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Lawyer must not falsify evidence or counsel a witness to testify falsely
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Truthfulness in statement to others
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Lawyers must not make false statements of fact or law to a third person or fail to disclose a material fact when necessary to avoid assisting a crime or fraud by a client
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Candor toward Tribunal
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1) lawyer must not create or offer false evidence and must take remedial measures if he comes to learn that his offered evidence was false
2) a lawyer must not knowingly fail to disclose legal authority contrary to his client's position and not disclosed by opposed counsel |
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Threatening Criminal Charges to Gain Advantage in Civil Cases
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1) Model Rules, prohibits/ ABA proper to threaten criminal action that is related to civil action
2) Cal Rul - prohibits a lawyer from threatening a person with criminal administrative or discriplinary charges in order to obtain an advantage in civil dispute |
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Transaction with Person other than clients
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Do not communicate with represented party (attorney ok)
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Trial conduct
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1) follow court rules
2) be honest, fair, courteous 3) leave out personal opinions 4) avoid contact with jurors 5) witnesses - no contigent fees; can pay reasonable expenses fee 6) notify opposing party re ex parte motions |
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Publicity (Criminal and Civil)
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Lawyer must not make extrajudicial statemenst likely to prejudice the proceedings, talking about the identity of witnesses, the reputation of the accussed, etc. Indamissible evidence should not be discussed in trial publicity
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What you can say
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1) general nature of a claim or defense
2) Information of public record 3) Investigatin in progress 4) Result of any step in litigation 5) Request for assistance re evidence or information 6) warrning abot a person if dangerous 7) rebut the opposing side saying CA Rule - Bars lawyers from uttering out of court statements if there is s substantial likelihood that such utterances will prejudice a pending case |
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Mandatory Withdrawal
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1) Client choice (fired)
2) court order 3) Lawyer's incapacity - physical/mental/substance abuse |
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Permissive Withdrawal
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1) client uncooperative, unreasonable or attempting illegal conduct
2) hardship on attorney 3) 90 days notice for sale of law practice |
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Procedural Requirements
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1) promptly turn over files
2) Refund unearned fees promptly 3) judical approval 4) attorney must continue to honor client confidentiality |
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Canon 1 (judges)
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Uphold integrity and independence of judicary
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Canon 2
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Avoid appearance of impropriety in all activities
Do not discriminate in any way on or off bench |
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Compensation - Judges
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Judges may receive compensation as long as the nature of the source of the compensation does not gie the appearance of impropriety
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Activities to improve legal system
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Ok as long as no conflices
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Political Activity
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Avoid improriety when running for office
a) be honest and not misleading b) do not solicit funds - let campaign committee handle all monies c) freedom to express their views on disputed issues |
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Performing Duties as a Judge
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Do it impartially and diligently
1) be fair/courteous to all in the courtroom 2) do not talk in public about pending proceedings 3) disqualify himself/herself where impartiality might reasonably be questioned. Examples Bias Serves as lawyer Family Close Family member who is a party. |
