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63 Cards in this Set

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Requirements for Sale of a law practice
1) Seller must cease that portion of his practice in the geographical area
2) May sell to one or more buyers
3) Written notice must be given to all clients regarding: A) Identity of Purchaser and B) Client’s right to retain other counsel
4) Fees cannot be increased
5) Client consent is implied if no objection to file transfer is raised within 90 days
Exceptions to Unauthorized Practice of Law
1) Pro hac vice – file motion with Utah court to handle specific case
2) Corporate House Counsel – need not be admitted in Utah (Advice limited to that corporation)
3) Temporary basis -- association with Utah Lawyer
4) Temporary basis – reasonably related to potential proceeding and lawyer expects to be authorized to appear
5) Temporary basis – matter is reasonably related to or arises out of practice in admitted jurisdiction
Rules regarding names of law firm
1) No false or misleading names (Eg., Roberts, Alito, and McBeal: Your Supreme Court Law firm)

2) Non-Partners Cannot be listed in the name

3) Lawyers holding public office -- Cannot be used in law firm name if they are not actively and regularly practicing with the firm
General Rule regarding lawyer employment covenants
No restrictive employment covenants for non-lawyers

Agreements that lawyer not represent someone not allowed
Utah rule regarding Pro-Bono work
1) Not required in Utah
2) Aspirational Goal: A) 50 hours a year, B) $10 per hour for hours under $50
3) Voluntary reporting encouraged
General rule regarding legal fees
CANNOT charge unreasonable legal fees
Factors for determining reasonableness of legal fees
1) Time (Amount of time spent on case; Time constraints imposed by client)
2) Skill and Experience of the lawyer
3) Difficulty or novelty of the issue
4) Amount of money involved in the case
5) Conflicts with other cases
6) Customary fees in relevant legal area
7) Expenses must be reasonable (Eg., $500 for a fax is unreasonable)
When are contingency fees NOT allowed?
1) Domestic relations cases (Exception: child support recovery)
2) Criminal cases
Requirements for contingency fee arrangements
1) Must be in writing
2) Details stated up front
3) Must designate who is liable for expenses if no recovery
4) Written accounting must be provided to client at conclusion of case
5) Percentage must be reasonable (Generally – 50% is max for reasonableness)
Division of fees -- lawyers in the same firm
No limits
Division of fees -- lawyers in a different firm
1) Total fee must be reasonable
2) Fee divided according to: A) amount of work performed by each lawyer; B) Joint responsibility = equal fee sharing
3) Client must agree
Division of fees -- sharing with non-lawyers
Generally not allowed.

Exceptions:
1) Paying non-lawyer staff out of profits
2) Paying estate of deceased lawyer under sale of practice rule
Rule regarding joint legal and non-legal businesses
Cannot share business with non-lawyer if any profits come from legal services
Payment from non-clients
Payment from non-client is allowed if:
1) Client has given informed consent
2) Non-client is not entitled to confidential information
3) No Interference from non-client
Media rights as payment
Lawyer may not take their client’s media rights prior to the conclusion of the case
Conflicts of Interest -- Business transactions between lawyer and client
Allowable if:
1) Deal is fair to client
2) Terms of the deal are disclosed in writing
3) Client is advised to seek outside counsel
4) Client gives informed consent
Conflicts of Interest -- Gifts from clients
Lawyer may not solicit any substantial gift from client

Lawyer may not prepare instrument conveying gift to lawyer or person related to the lawyer

Exception:
Lawyer is related to client
Conflicts of Interest -- Financial help from lawyer to client
Generally prohibited.

Exceptions:
1) Court costs
2) Litigation expenses
Conflicts of interest -- Prospectively limiting malpractice liability
Generally prohibited

Exception:
Allowed with client is independently represented
Situations that lead to a CONCURRENT conflict of interest
1) Two clients -- directly adverse interests

2) Significant risk that representation of one client will be materially limited by responsibility to another
General rule regarding concurrent conflicts of interest
Lawyer cannot represent client if it creates one.

Exception --
May represent if:
1) Lawyer reasonably believes he can provide diligent representation to both clients
2) Both clients give informed consent in writing
Conflict of Interest -- New client vs. former client
Prohibited if:

1) Same matter or substantially related matter

2) Lawyer has confidential information about former client relevant to new case

Waiver:
Valid if informed consent and in writing
Conflict of interest -- Corporate lawyers
Client is corporation – not directors or officers

Rule:
Cannot represent individuals if interests are adverse to corporation

Shareholder derivative suits – cannot represent directors and corporation
Conflict of Interest -- Imputation to the law firm
General rule:
Conflict with one lawyer = whole firm disqualified

Exceptions:
1) Lawyer w/ conflict is new and screened from the case
2) Personal conflicts (family-related, etc.) do not disqualify whole firm
General Rule regarding client confidentiality
Lawyer shall not reveal information related to representation of his client
Exceptions to Confidentiality rules
Lawyer may reveal information:
1) to prevent reasonably certain death or substantial bodily harm
2) to prevent crime or fraud reasonably certain to result in substantial financial injury IF lawyer’s services were used for the crime
3) Controversy between Lawyer and Client
4) To respond to allegations concerning representation
5) To comply with Court order
Confidentiality does NOT apply to:
Physical evidence in the lawyers possession.

But...VIEWED evidence NOT in possession – still confidential
Confidentiality -- Representing a corporation
Information obtained in authorized interviews with employees is confidential. BUT, lawyer must report to the board.

Board may waive confidentiality for employees.
Duties owed to PROSPECTIVE Clients
1) Confidentiality
2) No Conflict of interest (if info is received from prospective client, lawyer may NOT represent opposing party)
Court disclosure -- Adverse information
Must disclose controlling adverse legal authority.

No obligation to disclose adverse facts.
Rules for lawyer regarding false testimony
Cannot offer testimony lawyer knows is false

Reasonable belief that testimony is false = option to refuse
Options if Client wants to perjure himself
1) Persuade him not to
2) Attempt to withdraw
3) Make disclosure
Rules regarding paying witnesses
1) Cannot pay witness to induce testimony.
2) Can pay EXPERT witness, but not contingent on the outcome
3) Can reimburse for reasonable expense of any witness
Advising witnesses not to speak with opposing counsel
Generally prohibited.

Exception:
Witness is a relative or employee of client
Rules regarding lawyers as witnesses
General rule: lawyer CANNOT BE WITNESS in a trial he is handling

Exceptions:
1) Uncontested Matters
2) Nature and value of legal services
3) Not testifying creates substantial hardship to the client
Major rule regarding evidence
Unlawful obstruction of access to evidence is prohibited

CANNOT destroy evidence
Rule regarding trial publicity
Cannot make statements that will have substantial likelihood of materially prejudicing the trial

Cannot disclose inadmissible evidence
Rules regarding competency
1) Can only handle case if competent because of: Experience, Research, or skill
2) If not competent, lawyer can associate with competent lawyer
3) Can give limited advice in emergency
Mixing lawyer and client funds
Rule:
Lawyer’s funds must be kept separate from client funds
Client trust accounts
1) Must have for all clients
2) Advances for expenses and fees placed in account
3) Can only withdraw from CTA as fees are earned and expenses are incurred
4) May deposit own funds ONLY for the purpose of paying bank service charges
5) Must be with an in-state bank
Client's right to fire his attorney is ______.
absolute
Attorney MUST withdraw if:
1) Ability impaired by physical or mental condition
2) Representation violates ethics rules
3) Discharged by client
Attorney MAY withdraw if:
1) No material adverse effect on client
2) Services are used to engage in a crime or fraud
3) Lawyer will suffer unreasonable financial burden
4) Client doesn’t pay bills
5) Other good cause – including “fundamental disagreement” between L and C
After termination, lawyer must return:
1) all unearned fees and
2) client file
Decisions that ONLY the client can make:
Civil case: client must approve ALL settlements

Criminal Case: Client decides 1) Plea, 2) Whether to waive jury trial, 3) whether to testify
Contact with Represented Persons
General Rule:
Cannot contact a person represented by another lawyer unless that lawyer consents
Contact with Represented Persons -- Special rule for Government Lawyers
Gov’t lawyer engaged in civil or criminal enforcement may contact represented person if:
1) communication is to protect against imminent risk of, death, serious bodily harm, or substantial damage to property
2) Communication is made at the time of arrest and the person voluntarily waives right to counsel after being Mirandized
3) Communication is initiated by represented person – prior waiver of counsel
Contact with Represented Corporation
May not Contact:
1) Board
2) Employees whose statements can be imputed to the corporation
Contact with UNREPRESENTED persons
Rule
1) Lawyer MAY NOT claim or imply to be disinterested
2) CANNOT give legal advise
Except: “Get a lawyer”
Rule regarding mistakenly received documents
Lawyer must promptly notify sender
Rule on Misleading advertisements
Ad may NOT:
1) Contain material misrepresentations or omissions
2) Create unjustified expectations
3) Make unsubstantiated comparisons w/ other lawyers

NOTE: Appropriate disclosures may preclude finding that a statement is misleading
Direct Contact with Potential Clients
General Rule:
Not allowed when significant motive is financial gain (does not apply to public interest groups not seeking profit)

Exceptions:
1) other attorneys
2) family members
3) former clients
4) close friends
Rule regarding Written solicitations
Every written communication from a lawyer soliciting employment from a prospective client known to be in need of legal services in a particular matter shall include “ADVERTISING MATERIAL” on the outside envelope and at the beginning of any electronic communication
Advertisements -- Certifications
Cannot claimed to be a certified specialist unless actual certifying organization is identified
Rules regarding firm liability for Ethics violations
Partners have a duty to establish a system for ethics compliance
Supervisor liability
Supervising attorney’s might be liable for violations if they:
1) Ordered the conduct
2) Ratified the conduct afterword
3) Failed to remedy
Types of Discipline for violations
1) Disbarment
2) Suspension
3) Reprimand
Lawyer can be disciplined for:
1) violation or attempted violation of ethics rule
2) False statements in application for admission
3) Failure to respond to a lawful demand for information from admissions or disciplinary authority
4) Any conduct involving dishonesty, fraud, deceit, or misrepresentation
5) Criminal act that reflects adversely on lawyer’s honesty
6) State or imply an ability to improperly influence a government official
7) Knowingly assist a judge in violation of a judicial conduct rule
8) Conduct prejudicial to administration of justice
Rule regarding sexual relations with clients
1) No sex with client that exploits lawyer-client relationship
2) Rebuttable presumption that all sexual relations between attorney and client are exploitive

Except: Married couples; Pre-existing relationship
Reporting violations of other lawyers
Must report other lawyers known violations
Exception: Confidential information
Common Sense Rules:
A lawyer must:
1) Not use confidential information for his own benefit or to disadvantage client
2) Act w/ reasonable diligence and to expedite case (avoid delays)
3) Keep client reasonably informed
4) Comply with court orders
5) Not make false statements or mislead a court or third person
When acting as a third-party neutral...
• Lawyer must explain that he represents neither side
Civility and Professionalism
May not unreasonably and unprofessionally antagonize opponents or opposing counsel

Must do best to adhere to agreements made outside of court with opposing counsel