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78 Cards in this Set
- Front
- Back
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Lawyers: rule & code of PR - lawyers
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lawyers, lawyer and client issues and lawyer's duty to profession
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Lawyers: rule & code of PR - lawyers- becoming a lawyer
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1) moral fitness - rational connection with applicant's fitness to practice law - 2) info on fitness sources bar application , letters of recommendation by atty GF belief - letter must not conceal relevant information except subject to duty of confidentiality 3) qualifications - education, bar exam or maybe advocates unlawful overthrow of US govt
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Lawyers: rule & code of PR - lawyers- disciplining a lawyer -misconduct
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1) crimes of dishonesty 2) torts of fraud or deceit even though no actually a tort 3) violation of PR rules 4) advocacy of violent overthrow of govt 5) conditioning a settlement on client not filing disc charges
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Lawyers: rule & code of PR - lawyers- disciplining a lawyer - outside the state
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yes any act in another state renders atty subject to D - you are an Atty all the time where ever you are - CA practicing in another state and violates CA can D unless other state law authorizes the condduct
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can atty admitted in CA for single case be Ded ?
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CA has rights and can D - deemed a lawyer of CA
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lawyers: rule & code of PR - lawyers and clients 3 categories
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1) getting clients 2) keeping clients and 3) representing clients
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lawyers: rule & code of PR - lawyers and clients - getting clients 2 categories
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1) advertising and 2) solicitation
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lawyers: rule & code of PR - lawyers and clients - getting clients - advertising fundamental rule
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shall not make false or misleading communication about lawyer or services - no
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lawyers: rule & code of PR - lawyers and clients - getting clients - advertising - applied - not good
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unjustified expectations or comparing lawyer's services - no unjustified comparisons like I am the best DUI lawyer in the state unless can be substantiated
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lawyers: rule & code of PR - lawyers and clients - getting clients - advertising - applied - CA
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1) must label as advertising 2) no coercive, intimidating or obtrusive ie on way to hospital 3) client results testimonials - no longer allowed in CA rebuttable presumption ad is false or misleading
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lawyers: rule & code of PR - lawyers and clients - getting clients - advertising - applied - allowed
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1) legal clinic permissible so long as is not misleading ie university legal clinic 2 ) specialist ok if certified under JDN rules and only in that JDN and limited to split ABA cod ok but ABA rules not ok CA no position 3) admitted elsewhere atty name can appear in letterhead so long as communicated admissions
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lawyers: rule & code of PR - lawyers and clients - getting clients - solicitation - general rule
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no in person or live telephone contact but family or former client ok - written or recorded communication is all out banned
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lawyers: rule & code of PR - lawyers and clients - getting clients - solicitation - pecuniary gain -shapiro decision
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solicitation requires pecuniary gain - pro bono offers are ok - writen must say advertising material and recorded must say advertising material at beginning and end of recording even to known clients known to need services
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lawyers: rule & code of PR - lawyers and clients - getting clients - solicitation - no good under 2 conditions
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1) no soliciting notice or 2) coercive, intimidating or obtrusive
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lawyers: rule & code of PR - lawyers and clients - getting clients - solicitation - written or recored communications
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1) must label as advertising CA present and former clients too, 2) not permitted if client says no 3) not permitted if coercion, harassment 4) prospective clients known to need legal services
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lawyers: rule & code of PR - lawyers and clients - getting clients - solicitation - by others
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deemed to be solicitation by the lawyer if 1) in person or live contact 2) pec gain, 3) atty directed 3p actions
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lawyers: rule & code of PR - lawyers and clients - keeping client - competence - 3 areas
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1) initially competent 2) knowledge or experience 3) competent atty acting incompetently
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lawyers: rule & code of PR - lawyers and clients - keeping client - competence - initially competent
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if not competent 1) decline representation or withdraw 2) make self competent w/o unreason delay or client expense 3) associate w competent counsel
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lawyers: rule & code of PR - lawyers and clients - keeping client - competence - definition
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sufficient knowledge or experience to handle a client's problem
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lawyers: rule & code of PR - lawyers and clients - keeping client - competence - knowledge or experience
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sufficient knowledge or experience to handle a client's problem or acquire sufficient
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lawyers: rule & code of PR - lawyers and clients - keeping client - competence - competent atty acting incompetently
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look for tort crossover
1) civil - can limit malpractice if client agrees, permitted by law and client gets independent counsel 2) CA & CODE cannot limit malpractice liability 2) criminal - 6th A ineffective counsel |
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lawyers: rule & code of PR - lawyers and clients - keeping client - competence - competent atty acting incompetently - settlement agreement
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CA atty must give client written notice that client is entitled to independent counsel concerning agreement
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lawyers: rule & code of PR - lawyers and clients - keeping client - competence - initially incompetent - emergency
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permits incompetent atty to continue only so long as the emergency is concluded
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lawyers: rule & code of PR - lawyers and clients - keeping client - fees and client funds - fees
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1)prohibition on excessive fees 2) feesplitting
3) contingent fees 4) writing requirements |
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lawyers: rule & code of PR - lawyers and clients - keeping client - fees and client funds - fees - no excessive fees
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fees must be not clearly excessive to ordinarily prudent atty in the area
Factors are 1) time spent 2) atty prestige 3) risk 4) expertise |
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lawyers: rule & code of PR - lawyers and clients - keeping client - fees and client funds - fees - feesplitting
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prohibited unless 1) in proportion to services rendered 2) clients must consent 3) must be reasonable fee
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lawyers: rule & code of PR - lawyers and clients - keeping client - fees and client funds - fees - feesplitting - CA & CODE
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disproportionate ok if overall fees reas & not increased and client gives written consent
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lawyers: rule & code of PR - lawyers and clients - keeping client - fees and client funds - fees - contingent fees rules
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rules & CODE criminal or family law or marital prohibited
CA allowed |
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lawyers: rule & code of PR - lawyers and clients - keeping client - fees and client funds - fees - writing rules & Code and CA
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rules & Code recommended but no required
CA writing required if expected fee exceeds $1k |
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lawyers: rule & code of PR - lawyers and clients - keeping client - fees and client funds - client funds 3 areas
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1) trust fund
2) misappropriation 3) commingling |
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awyers: rule & code of PR - lawyers and clients - keeping client - fees and client funds - client funds - trust fund account
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must establish and maintain client trust fund account
1) give prompt notice of funds 2) provide prompt records and 3) prompt delivery of accounting |
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lawyers and clients - keeping client - fees and client funds - client funds - misappropriation - disbarment
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automatic disbarment
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lawyers and clients - keeping client - fees and client funds - client funds - commingling
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all funds in whole or part to client must be deposited in account - disputed portions must remain in separate account
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lawyers and clients - keeping client - conflicts - client ~ lawyer general
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atty interest adverse to client's
1) atty must reas believe representation not adversely effected 2) client consent after disclosure |
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lawyers and clients - keeping client - conflicts - client ~ lawyer - financial dealings
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must be
1) objective fair and reasonable 2) client informed in writing in language lay-client can understand Rules& CA require writing ABA code does not 3) client has reas opportunity to get independent counsel and 4) client consents |
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lawyers and clients - keeping client - conflicts - client ~ lawyer - special problems - book and media rights
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1) book and media rights -
cannot do because may cloud lawyer's judgment until representation is over |
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lawyers and clients - keeping client - conflicts - client ~ lawyer - special problems - standard commercial transactions
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need not satisfy 4 steps of financial dealing because it is a standard transaction - atty shopping at client store
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retainer
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non-refundable fee for agreeing to take the case - any ambiguity then treat as advance of fees
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advance of fees
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atty bills against an advance of fees and refunds unused portion - any ambiguity as between retainer or advance then treat as advance of fees
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lawyers and clients - keeping client - conflicts - client ~ lawyer - special problems - financial assistance
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3) atty can advance litigation costs if
Code - client remains liable to pay back Rules - client remains liable to repay and can be made contingent on case outcome CA -no position but atty can loan $ if client makes written agreement to pay and representation is over |
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lawyers and clients - keeping client - conflicts - client ~ lawyer - special problems - lawyer as witness
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necessary witness if atty is the only person who can introduce piece of evidence
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lawyers and clients - keeping client - conflicts - client ~ lawyer - special problems - sex with client
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rules -
CA must look these up |
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lawyers and clients - keeping client - conflicts - client ~ client - present clients - same lawsuit
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cannot represent P and D
criminal case multiple Ds = no prohibited but strongly recommended that it not take place - same on civil side |
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lawyers and clients - keeping client - conflicts - client ~ client - former clients rule
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cannot represent present client against former if atty has 1) actual confidences 2) issues substantially relate
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lawyers and clients - keeping client - conflicts - client ~ client - present clients - unrelated lawsuits - general rule and exceptions
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no cannot rep new client in suit against existing client except is permitted if 1) atty reas believes rep will not adversely affect rep and 2) both clients must consent after full disclosure
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lawyers and clients - keeping client - conflicts - client ~ client - former clients against present - actual confidences
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precludes atty unless 1) ALREADY REVEALED 2) GENERALLY Known 3) OR are otherwise discoverable
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client - conflicts - client ~ client - present clients - biz deals
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permitted if 1) atty reas believes rep will not adversely affect rep and 2) both clients must consent after full disclosure
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lawyers and clients - keeping client - conflicts - client ~ client - former client against present - issues substantially related
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1) written consent
2) disinterested lawyer test conclude conflict so severe should not happen at all |
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lawyers and clients - keeping client - conflicts - client ~ client - former clients - govt as former client
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atty cannot rep private party as to a matter that atty participated personally and substantially unless the govt consents where matter must be exactly same subject matter - even if same govt can consent
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lawyers and clients - keeping client - conflicts - client ~ 3d p - fee paid by 3d p - permissible?
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yes if 1) client consents 2) no interference by 3d p with atty's professional judgment 3) and confidentiality must be preserved
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lawyers and clients - keeping client - conflicts - client ~ 3d p - special problems -non-lawyer boss
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atty must be allowed to exercise their particular will and judgment as to how to handle the case
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lawyers and clients - keeping client - conflicts - client ~ 3d p
special problems - one law firm member disqualified then all members are disqualified |
one out all are out - Chinese wall is not held in favor nowadays
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lawyers and clients - keeping client - conflicts - resolution of conflict - what to do
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1) withdraw from one or both clients 2) unless consent
3) if disinterested atty would not represent because he think client consent under circumstances the conflict should not be sought then atty mist withdraw |
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lawyers and clients - keeping client - conflicts - withdrawal 3 issue areas
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mandatory, permissive and procedure
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lawyers and clients - keeping client - conflicts - withdrawal - mandatory
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must withdraw if 1) continued rep will result in knowing violation of rules, code or other law, 2) atty mental or physical ability is impaired or 3) if atty is discharged by client
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lawyers and clients - keeping client - conflicts - withdrawal - permissive
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may withdraw if
1) criminal or fraudulent client -involving atty services - CA if client persists against atty advice then permitted to W 2) client has used atty service to perpetrate crime or fraud 3) client insits on objective the atty considers repugnant or imprudent 4) unreas financial burden or difficulty 5) other good cause |
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lawyers and clients - keeping client - conflicts - withdrawal - procedure
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1) must get permission from court if once court obtains JDN permission is required so after mutual filing
2) must take all reasonable steps and precautions to protect client interest |
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lawyers and clients - keeping client - conflicts - withdrawal - permissive no adverse effect rules
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rules - if W can be accomplished absent material adverse effect on the client's interest then atty can W
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awyers and clients - keeping client - conflicts - withdrawal - permissive - CA rules
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1) can W if cannot work w co-counsel especially where client benefits 2) mental/physical condition of atty makes rep difficult permissive - extremely= mandatory
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lawyers and clients - representing client 2 areas
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zealous representation and confidentiality
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lawyers and clients - representing client - zealous representation - duties
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1) no frivolous claims 2) must be candid to court 3) fair to other party
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lawyers and clients - representing client - zealous representation - trial publicity
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prohibited where creates a substantial likelihood of materially prejudicing the proceedings
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lawyers and clients - representing client - zealous representation - general rule
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doing everything that is legally and ethically necessary to advance client interest - unless client motive is to harass or maliciously harm another
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lawyers and clients - representing client - zealous representation - division of labor - duties
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client has final say regarding objectives and goals of rep - settle and atty has final say regarding tactical decisions & strategy unless involves client expense or 3d p welfare
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lawyers and clients - representing client - zealous representation - duties - candor to court
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1) find adverse authority from controlling JDN tat other side has not discovered must reveal to court 2) perjury - remedial measure 1st talk client out of it or recanting next attempt to withdraw and then reveal to court in chambers 3) CA cannot state represents client when in fact you do not and obligation to report juror misconduct immediately
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lawyers and clients - representing client - zealous representation - duties - duty of fairness to opposing counsel. party
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1) can't hide evid 2) can't pay for testimony contingent on outcome 3 CA can't threaten criminal charges
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lawyers and clients - representing client - confidentiality
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confidences and secrets
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lawyers and clients - representing client - confidentiality - confidences vs secrets
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information cannot be revealed if that info is protected by client/atty priv or it is detrimental to client
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lawyers and clients - representing client - confidentiality
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confidences is anything protected by atty/client priv where atty may be called upon to testify where as a secret is anything learned during course of rep no matter from what source - confidence cannot be compelled to reveal where as secret can be compelled
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lawyers and clients - representing client - confidentiality - exceptions crimes
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client intends to commit crime atty can reveal or client seeks criminal or fraudulent advice serves as exception ABA code once info of intent then lawyer may disclose ABA rules any crime involving death or substantial injury but lawyer is not required
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lawyers and clients - representing client - confidentiality - exceptions - atty problems - malpractice perjury collection of fees
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1) allegation of malpractice duty of confidentiality is lifted so far as is necessary for atty to defend themselves in pleadings and hearings and trial
2) perjury or threaten to perjure the atty can tell judge 3) info required to collect fees are not protected |
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lawyers and clients - representing client - confidentiality - exceptions - identity of client/retainer
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CODE & Rules- not covered as confidential
CA - written fee K as a confidential communication |
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lawyers and clients - representing client - confidentiality - exceptions - client consents
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must be informed consent in order to lift duty
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lawyers and clients - representing client - confidentiality - duration
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continues after relationship
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lawyers and clients - duty to profession 2 areas
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unauthorized practice and reporting misconduct
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lawyers and clients - duty to profession - unauthorized practice
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atty is subjected to discipline if assisting a lay person practicing - practice is legal judgment is a opposed to legal knowledge - legal judgment is where someone dispenses knowledge about how courts might act - lawyer must supervises paralegal work and retains responsibility no problem
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lawyers and clients - duty to profession - reporting misconduct
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others - absolute duty to report misconduct of other atty unless reveling would be breach of of duty confidentiality
yourself - cannot condition settlement on agreement on client agreeing not to report violation |
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fee split with lay person
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atty may never split fee with lay person but paralegal may be paid from fees but paralegal cannot share % of fee
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