Professional Responsibility

Front 1

Requirements for Sale of a law practice

Back 1

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

Front 2

Exceptions to Unauthorized Practice of Law

Back 2

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

Front 3

Rules regarding names of law firm

Back 3

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

Front 4

General Rule regarding lawyer employment covenants

Back 4

No restrictive employment covenants for non-lawyers

Agreements that lawyer not represent someone not allowed

Front 5

Utah rule regarding Pro-Bono work

Back 5

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

Front 6

General rule regarding legal fees

Back 6

CANNOT charge unreasonable legal fees

Front 7

Factors for determining reasonableness of legal fees

Back 7

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)

Front 8

When are contingency fees NOT allowed?

Back 8

1) Domestic relations cases (Exception: child support recovery)
2) Criminal cases

Front 9

Requirements for contingency fee arrangements

Back 9

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)

Front 10

Division of fees -- lawyers in the same firm

Back 10

No limits

Front 11

Division of fees -- lawyers in a different firm

Back 11

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

Front 12

Division of fees -- sharing with non-lawyers

Back 12

Generally not allowed.

Exceptions:
1) Paying non-lawyer staff out of profits
2) Paying estate of deceased lawyer under sale of practice rule

Front 13

Rule regarding joint legal and non-legal businesses

Back 13

Cannot share business with non-lawyer if any profits come from legal services

Front 14

Payment from non-clients

Back 14

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

Front 15

Media rights as payment

Back 15

Lawyer may not take their client’s media rights prior to the conclusion of the case

Front 16

Conflicts of Interest -- Business transactions between lawyer and client

Back 16

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

Front 17

Conflicts of Interest -- Gifts from clients

Back 17

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

Front 18

Conflicts of Interest -- Financial help from lawyer to client

Back 18

Generally prohibited.

Exceptions:
1) Court costs
2) Litigation expenses

Front 19

Conflicts of interest -- Prospectively limiting malpractice liability

Back 19

Generally prohibited

Exception:
Allowed with client is independently represented

Front 20

Situations that lead to a CONCURRENT conflict of interest

Back 20

1) Two clients -- directly adverse interests

2) Significant risk that representation of one client will be materially limited by responsibility to another

Front 21

General rule regarding concurrent conflicts of interest

Back 21

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

Front 22

Conflict of Interest -- New client vs. former client

Back 22

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

Front 23

Conflict of interest -- Corporate lawyers

Back 23

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

Front 24

Conflict of Interest -- Imputation to the law firm

Back 24

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

Front 25

General Rule regarding client confidentiality

Back 25

Lawyer shall not reveal information related to representation of his client

Front 26

Exceptions to Confidentiality rules

Back 26

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

Front 27

Confidentiality does NOT apply to:

Back 27

Physical evidence in the lawyers possession.

But...VIEWED evidence NOT in possession – still confidential

Front 28

Confidentiality -- Representing a corporation

Back 28

Information obtained in authorized interviews with employees is confidential. BUT, lawyer must report to the board.

Board may waive confidentiality for employees.

Front 29

Duties owed to PROSPECTIVE Clients

Back 29

1) Confidentiality
2) No Conflict of interest (if info is received from prospective client, lawyer may NOT represent opposing party)

Front 30

Court disclosure -- Adverse information

Back 30

Must disclose controlling adverse legal authority.

No obligation to disclose adverse facts.

Front 31

Rules for lawyer regarding false testimony

Back 31

Cannot offer testimony lawyer knows is false

Reasonable belief that testimony is false = option to refuse

Front 32

Options if Client wants to perjure himself

Back 32

1) Persuade him not to
2) Attempt to withdraw
3) Make disclosure

Front 33

Rules regarding paying witnesses

Back 33

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

Front 34

Advising witnesses not to speak with opposing counsel

Back 34

Generally prohibited.

Exception:
Witness is a relative or employee of client

Front 35

Rules regarding lawyers as witnesses

Back 35

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

Front 36

Major rule regarding evidence

Back 36

Unlawful obstruction of access to evidence is prohibited

CANNOT destroy evidence

Front 37

Rule regarding trial publicity

Back 37

Cannot make statements that will have substantial likelihood of materially prejudicing the trial

Cannot disclose inadmissible evidence

Front 38

Rules regarding competency

Back 38

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

Front 39

Mixing lawyer and client funds

Back 39

Rule:
Lawyer’s funds must be kept separate from client funds

Front 40

Client trust accounts

Back 40

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

Front 41

Client's right to fire his attorney is ______.

Back 41

absolute

Front 42

Attorney MUST withdraw if:

Back 42

1) Ability impaired by physical or mental condition
2) Representation violates ethics rules
3) Discharged by client

Front 43

Attorney MAY withdraw if:

Back 43

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

Front 44

After termination, lawyer must return:

Back 44

1) all unearned fees and
2) client file

Front 45

Decisions that ONLY the client can make:

Back 45

Civil case: client must approve ALL settlements

Criminal Case: Client decides 1) Plea, 2) Whether to waive jury trial, 3) whether to testify

Front 46

Contact with Represented Persons

Back 46

General Rule:
Cannot contact a person represented by another lawyer unless that lawyer consents

Front 47

Contact with Represented Persons -- Special rule for Government Lawyers

Back 47

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

Front 48

Contact with Represented Corporation

Back 48

May not Contact:
1) Board
2) Employees whose statements can be imputed to the corporation

Front 49

Contact with UNREPRESENTED persons

Back 49

Rule
1) Lawyer MAY NOT claim or imply to be disinterested
2) CANNOT give legal advise
Except: “Get a lawyer”

Front 50

Rule regarding mistakenly received documents

Back 50

Lawyer must promptly notify sender

Front 51

Rule on Misleading advertisements

Back 51

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

Front 52

Direct Contact with Potential Clients

Back 52

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

Front 53

Rule regarding Written solicitations

Back 53

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

Front 54

Advertisements -- Certifications

Back 54

Cannot claimed to be a certified specialist unless actual certifying organization is identified

Front 55

Rules regarding firm liability for Ethics violations

Back 55

Partners have a duty to establish a system for ethics compliance

Front 56

Supervisor liability

Back 56

Supervising attorney’s might be liable for violations if they:
1) Ordered the conduct
2) Ratified the conduct afterword
3) Failed to remedy

Front 57

Types of Discipline for violations

Back 57

1) Disbarment
2) Suspension
3) Reprimand

Front 58

Lawyer can be disciplined for:

Back 58

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

Front 59

Rule regarding sexual relations with clients

Back 59

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

Front 60

Reporting violations of other lawyers

Back 60

Must report other lawyers known violations
Exception: Confidential information

Front 61

Common Sense Rules:

Back 61

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

Front 62

When acting as a third-party neutral...

Back 62

• Lawyer must explain that he represents neither side

Front 63

Civility and Professionalism

Back 63

May not unreasonably and unprofessionally antagonize opponents or opposing counsel

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