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47 Cards in this Set
- Front
- Back
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So Cal Clients Love Fierce Counsel Donning Rolex Watches...
Courts Feel Differently |
Duties to Client/Parties
(1) Sensibility (2) Confidentiality (3) Competence (4) Loyalty (5) Fiduciary (6) Communication (7) Diligence (8) Withdrawal Duties to Court: (1) Candor/truthfulness (2) Fairness (3) Decorum/dignity |
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A lawyer who is admitted to practice in one state, and is not disbarred or suspended from practice in any state may provide legal services in a second state on temporary basis in what four situations?
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(1) Association with a local lawyer
(2) Pro Hac Vice (particular matter) (3) Arbitration/mediation arising out of practice in home state (4) Temporary practice arising out of practice in home state |
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What are the major exceptions to the duty of confidentiality?
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(1) Consent
(2) Crimes - *In CA make good faith effort + must tell him you plan to reveal (3) Fraud crime/financial -*Not in CA (4) Defending yourself (5) Compelled by law/ct order/ethical duty |
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A lawyer may enter into business with a client or obtain an interest adverse to hers ONLY if: [4 necessary factors]
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(1) terms are fair to client; and
(2) full written disclosure understandable to client; and (3) client has opportunity to consult outside counsel; and (4) client provides written consent |
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May a client sell his lawyer the publication rights to his story while the litigation is pending?
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ABA: not until the representation has ended.
CA: discourages but tolerates if the judge is satisfied that the client clearly understands and consents. |
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May a lawyer advance or loan money to a client?
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ABA: No, except for costs and litigation expenses for indigent and advance of litigation expenses in contingent fee cases.
CA: only after lawyer is hired by client, lawyer may loan/advance money to client for all (even non-litigation) purposes with written loan agreement. |
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May a lawyer jointly represent two clients in a civil litigation if their interests are potentially in conflict?
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Yes, if lawyer reasonably believes that he can represent both clients effectively and obtains the CONSENT of both clients after CONSULTATION.
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Does a lawyer provided by an insurance company represents the insurer or the insured?
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Jurisdictions vary, but in CA the insured and insurance company are considered JOINT CLIENTS.
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Can an attorney represent two clients who are in present and actual conflict?
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Absolutely not. Attorney must advise client to seek separate counsel.
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What is the Supreme Court's ruling regarding lawyer advertisements?
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Although traditionally banned by professional ethics rules, the Supreme Court has held that attorney advertising is Constitutionally protected commercial speech. A state, however, may ban advertising that is false or misleading.
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What are the various rules regarding attorney loans to clients?
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Model Rules prohibit in context of pending litigation, although lawyer may advance court costs and litigation expenses.
CA: permits loans to the client so long as written loan instrument in which client promises to repay. |
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May an attorney send communications (letters, telephone calls) to a person whom he knows faces a specific legal problem (example: accident victim)?
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Yes, if they are truthful and not deceptive and as long as attorney does have knowledge that the client does not want to receive communications.
In CA: communications that are delivered to potential client in a time of physical or mental stress or delivered at accident scene, hospital, or health care center are PRESUMED TO BE FALSE AND MISLEADING. Lawyer must rebut this presumption. In person communication, however, is not allowed.. |
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Mailings that seek fee-paying work must be clearly...
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LABELED AS ADVERTISEMENTS!
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When is a lawyer guilty of assisting a non-lawyer in the unauthorized practice of law?
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When a lawyer encourages or assists a non-lawyer to do things that call for the professional judgment of a lawyer (example: can't have secretary draft will).
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Under the California Rules, when can and when cannot an attorney lend a client money?
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CAN'T: pay the personal or business expenses of a PROSPECTIVE client.
CAN: lend money to client for ANY PURPOSE, provided there is a written loan agreement. |
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Under the Model Rules, ALL written communications with prospective clients must include:
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the words "Advertising Material"
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What is the California presumption regarding written communications that are delivered to potential clients?
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PRESUMED FALSE AND MISLEADING if delivery occurs in a time of physical or mental stress, or are delivered to an accident scene, hospital, or health care center.
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What is a lawyer's duty of confidentiality to a client?
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Lawyer MUST NOT reveal any information relating to the representation of his client.
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What is included in a lawyer's duty of fairness to the court?
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(1) Duty to present facts and evidence truthfully
(2) Duty to produce evidence (3) Duty to state the law truthfully (4) Duty to uphold the law |
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What are a lawyer's duties with regards to evidence?
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Must not falsify, alter, destroy, or conceal.
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What are a lawyer's ethical obligations where he knows his client has, or is about to, testify falsely in his own defense?
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Model Rules: Persuade client not to testify falsely. If that fails, should withdraw or inform court.
CA: Persuade client. MAY allow the perjurious testimony in a NARRATIVE FASHION. Also, MAY seek court's permission to withdraw. |
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A lawyer who receives incriminating evidence form a client MUST:
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turn it over to the proper authorities. However, attorney may not reveal where it came from because of confidentiality to client.
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May a lawyer in a criminal trial who knows that his client is guilty continue to defend him?
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YES, he must! A lawyer may conduct the defense so that every element of the case must be established
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May a lawyer contract with his client to limit or avoid the the lawyer's malpractice liability?
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No. A lawyer is subject to discipline for attempting to avoid or limit malpractice liability to a client.
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Can a lawyer settle a malpractice claim against him with his client?
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No, a lawyer must not settle a malpractice claim with an unrepresented client without first advising the client, in writing, to seek advice from an independent lawyer about the claim.
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What is the rule concerning opposing a former client?
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A lawyer must not oppose a former client who has imparted confidential which would be relevant to the new matter.
California requires full disclosure and written consent of the former client. |
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A lawyer must not acquire a proprietary interest in the cause of action except for:
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contracting with a client for a reasonable contingent fee in a civil case.
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An attorney's fees must be:
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reasonable. Unconscionable fees are prohibited.
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An attorney may withdraw from representing a client if:
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it can be done without material harm to the client.
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An attorney who withdraws from a matter must...
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take reasonable steps to protect the client's interest and must give the client reasonable notice of the withdrawal (can't just cut her off).
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May a lawyer use a contingent fee arrangement in a domestic relations case, such as divorce?
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ABA Model Rules: NO, not where the contingency is the securing of a divorce or the amount of the property settlement.
CA: YES, unless the agreement encourages the breakup of a marriage or is otherwise against public policy. |
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May an attorney who withdraws or is otherwise relieved as counsel keep the client's papers and property until he is paid?
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NO, under both ABA and CA rules, the attorney must return all papers and property to which the client is entitled.
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What are the ABA exceptions to the confidentiality duty, where an attorney MAY reveal a client's confidential information?
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(1) has consent or implied authority
(2) to prevent death or serious bodily harm (3) to prevent or rectify substantial financial loss (4) if required by court, ethics rules, or law (5) if necessary to collect a fee or protect lawyer (6) to obtain legal ethics advice |
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The attorney-client privilege covers:
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direct communications between the lawyer (and his agents) and his client (and his agents) WITHIN the course of the ATTORNEY-CLIENT relationship.
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In what situations does the attorney-client privilege NOT apply?
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(1) client seeks attorney's services to commit future crime/fraud
(2) attorney malpractice defense (3) civil litigation between former joint clients (4) evidence of client's competency when executing will |
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Who and what does the attorney-client privilege apply to when client is a corporation?
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It applies to confidential communications between the attorney and a high-ranking corporate official.
It may also apply to another employee if: (i) the employee communicates with lawyer at the discretion of his superior; (ii) employee knows that the communication is to assist the corporation; and (iii) the communication concerns a subject within the scope of employee's duties for corporation. |
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May an attorney waive the attorney-client privilege?
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NO! The client is the holder of the privilege and, as such, he is the only person who may waive it.
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When is withdrawal mandatory?
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(1) representation will result in violation of ethics rules or other law;
(2) lawyer's physical or mental condition materially impairs the lawyers ability to represent the client; (3) lawyer is discharged |
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Can a lawyer contract with client for publication rights of client's story during trial?
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ABA: no
CA: discourages, but allows if client understands and consents |
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Can a lawyer ever represent two clients on opposite sides of the same matter?
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NEVER OK.
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Can an attorney represent multiple clients in the same matter?
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Yes, with informed written consent BUT if actual conflict arises, attorney must withdraw and advise clients to retain separate counsel.
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A lawyer must not accept compensation from a third person for representing a client unless:
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(1) the client consents after consultation;
(2) the third person doesn't interfere with the lawyer's independence or the representation of the client; and (3) the arrangement does not compromise the client's confidential information |
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Bringing a frivolous lawsuit.
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Subject to discipline, but not if merely asserting a position without fully substantiating all of the facts.
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Client perjury in civil case.
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If lawyer knows that her client in civil case intends to commit perjury, she must refuse to call the client as a witness.
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Future crime or fraud.
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Attorney-client privilege does not apply if the client seeks the lawyer's services to enable or aid in the commission of a future crime or fraud.
Lawyer can only reveal, if she thinks that it is necessary to prevent the client from committing a crime that may result in substantial bodily injury or death. |
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Discovering illegal conduct.
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Must inform client that she can no longer represent him and withdraw.
Under the Model Rules, the lawyer may reveal enough of the client's confidential information to prevent the injury or rectify or mitigate it ("noisy withdrawal"). |
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Duty of candor.
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Under the MR, in a mater pending before a tribunal, a lawyer must volunteer harmful material fact where necessary to avoid assisting client in crime or fraud.
No such exception in CA. |
