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26 Cards in this Set
- Front
- Back
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What is the top level issue constellation for professional responsibility?
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1. Duty of Integrity to the Profession
2. Duties to Clients (CLIENTS LOVE FIERCE COUNSEL) -Duty of Confidentiality -Duty of Loyalty -Duty as Fiduciary / Trustee (financial responsibility) -Duty of Competence -Other Reasonable Things 3. Duties to the Court (COURTS FEEL DIFFERENTLTY) -Duty of Candor -Duty of Fairness -Duty of Dignity 4. Duties to the Public and to Third Persons -Duty of Candor -Duty of Fairness |
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Are targeted direct mailings a violation of a lawyer's duty of integrity to the profession?
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No, non-harassing targeted direct mailings are generally ok, so long as they 1) are not false or misleading 2) are clearly labeled as "ADVERTISING" 3) identify one attorney responsible for the content 4) records are retained for 2 years 5) claims of legal specialization must be approved by the state bar or accredited by ABA and identify certifying organization
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When can truthful, nondeceptive advertising be regulated?
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Regulation of commercial speech is subject to intermediate constitutional scrutiny, which means that it may be regulated only if: 1) the government asserts a substantial interest 2) the government demonstrates that the restriction directly and materially advances the interest 3) the regulation is narrowly drawn.
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What do we presume when an attorney solicits clients at a hospital or accident scene?
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Any kind of solicitation at a hospital or accident scene will be presumed misleading advertising. Sanctions for this type of violation of the lawyer's duty to the profession are suspension, disbarment and civil penalties.
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Can a lawyer advertise as a "specialist" in a given field?
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A lawyer cannot advertise that she is a specialist unless she has certification in a recognized specialty through the ABA or her state bar association. Lawyers advertising specialization without certification violate their duty to the profession to advertise truthfully.
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Can a lawyer share fees with a nonlawyer?
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No. A lawyer may not share fees with a nonlawyer, but may pay regular costs for advertising or join a referral service.
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Who is a lawyer permitted to solicit in-person?
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A lawyer may only solicit relatives, friends or former clients for the purpose of obtaining fee paying work, however a lawyer is generally allowed to send targeted direct mail ads with the word ADVERTISEMENT on both the envelope and the actual ad.
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Can a lawyer solicit directly by live or telephone contact with a prospective client?
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ABA: Neither lawyer, nor agent, may seek profit by initiating live or realtime electronic contact with a prospective client, unless that person is a close friend, relative or former client.CA: chatrooms OK unless clients are known to not be in physical or mental state of reasonable judgment.
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Can a lawyer make representations of a successful outcome or the size of a recovery?
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No, a lawyer may not advertise or solicit in a way that creates unjustified expectations though false or misleading statements.
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May a lawyer "buy the litigation?"
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No, a lawyer is discouraged from "buying the litigation" by acquiring an interest in the outcome to induce the client to retain the lawyer.
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May a lawyer solicit by offering a prospective client financial support?
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No, a lawyer may not offer prospective financial support during the litigation to induce the client to retain the lawyer.
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Can a lawyer practice while suspended or while in a state where the lawyer is not licensed?
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No, this is unauthorized practice of law UNLESS: 1) allowed by law 2) pro hac vice or 3) under limited exceptions.
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In CA, what exceptions are made for unlicensed attorneys to practice without committing UPL?
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- registered legal services attorneys
- registered in-house counsel - temporary practice w/in the state -must still register w/ bar, pay dues, do CLE and observe ethical rules |
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Can a lawyer encourage litigiousness?
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No. After being retained by a client, a lawyer must not encourage litigiousness by predicting the outcome or extent of recovery.
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Can a lawyer refuse to accept a case of the defenseless or oppressed if the only reason to refuse is selfish?
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No, but how are they really gonna bust you on that one?
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What about a lawyer's duty to report the ethical violations of another attorney?
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CA: self-reporting for felony charges, civil liability for fraud or breach of fiduciary duty, discipline in another Jx, sued for malpractice or sanctioned (discovery sanctions excepted, lol).
ABA: if misconduct raises a substantial question of honesty, trustworthiness or fitness as a lawyer, MUST report another's violation of the Rules. |
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What about duties within the law firm?
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Generally, a lawyer owes other lawyers reasonable efforts to ensure professional conduct. Sanctions include suspension, disbarment and civil penalties.
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Is a subordinate responsible for a clear ethical violation if his boss told him to do it?
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There is no Nuremberg defense available to junior associates. IF a senior lawyer tells you to do a bad thing, and you know it is a clear ethical violation, you will be responsible.
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What about a debatable ethical violation?
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The partner / supervisor will be responsible for the debatable ethical violation where the supervisor ratified the conduct or knew of it and failed to take action.
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What is a managing partner's responsibility?
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Managing partners must make reasonable efforts to ensure every member and employee's conduct, to include nonattorney assistants, comports with the rules of professional conduct.
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What result in CA if a lawyer knows of a fellow firm member's disciplinary violation and does nothing to prevent it?
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Under the CRPC, a lawyer can be disciplined for merely knowing about a fellow firm member's disciplinary violation and doing nothing to prevent it.
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What legal tasks can nonattorney employees perform?
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Lawyers may employ nonattorneys to assist with legal tasks such as fact investigation and witness interviews, subject to the constraints of the duty of competence.
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What legal tasks are nonattorney employees FORBIDDEN from doing?
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Nonattorney employees may NOT engage in negotiations, conduct settlement talks or meetings or execute documents.
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What is the duty of confidentiality and is it broader or more narrow than privilege?
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The duty of confidentiality is broader than A/C privilege.
Because of the duty of confidentiality, a lawyer can NEVER reveal anything related to the representation w/o the client's objective, informed consent. |
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How long does the duty of confidentiality last?
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For freakin' ever. It is a CONTINUING duty.
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What are the exceptions to the duty of confidentiality?
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Lawyer may violate the duty of confidentiality if:
1) the client consents after consultation 2) the lawyer is ordered by law 3) the Lawyer must defend self in a malpractice claim or to recover $$ in a fee dispute 4) or, under the ABA but NOT in CA: to prevent a future crime involving reasonably certain death, imminent bodily harm or substantial financial loss |
