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43 Cards in this Set
- Front
- Back
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Ohio's modified version of ABA rules |
Ohio rules of Professional Conduct
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Education requirements for lawyer
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Bachelor degree |
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Ohio bar association membership
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Voluntary
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Procedures for complaint
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1) initiating and filing complaint with approved local bar association or Office of Displinary Counsel
2) screening and hearing- complaint examined by them Local bar- certified grievance committee 3)pursuing the complaint- non public hearing is held after notice to the attorney for investigation |
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Complaint
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Privileged communication with complainant protected from subsequent action by the attorney for defamation or malicious prosecution as a matter of public policy
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Obligation to police the profession
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Lawyers have a duty to report unethical and improper conduct of their fellow lawyers and assist in the investigation of complaints
2-fold! |
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Unauthorized practice of law
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-nonattorney may not practice law and attorney may not aid a nonattorney in practicing law
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Practice Of law
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Includes preparation of pleadings and other papers incident to proceedings on behalf of clients before judges and courts
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Practice of law- secretary, paralegal, law students
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Can help the lawyer as long as their work is supervised and attorney ultimately responsible for all client representation
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Rel estate brokers & title insurance professionals
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Can fill in blanks on contracts but may not draft them
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Corporation/ llc. Legal proceeding
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Corporation cannot be represented pro se. It must be represented by an attorney.
Officer/ owner of llc may represent in small claims court as long as he does not cross- examine, argue, or engage in other acts of advocacy |
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Licensing
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Attorney may not practice law in a jurisdiction where he is not licensed except as permitted by court of that jurisdiction. Often jurisdictions allow an attorney who is an employee of a client to have office in state where not licensed and give client legal advice but cannot represent them in court.
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Non lawyers |
Can engage in law-related business not requiring professional judgement such as title abstractor |
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Fee sharing w nonlawyer
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Lawyer may not go into business w/ non-lawyer, but may be partners in separate enterprise that doesn't involve practice of law (can't give legal advice or engage in legal services)
An attorney cannot split their fees with a non-lawyer unless they are a (i) retired lawyer or (ii) to the deceased lawyer’s family. |
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Advertisements
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Attorney ads must be true and not misleading
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Lying
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Wrong. In almost every context attorney who lies will be subject to discipline
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Specialization |
Attorney can specialize only in patent trademark and admiralty law. Otherwise must be certified as a specialist - commission on certification of attorneys as specialists. |
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Solicitation - direct contact |
Non-lawyer may not directly contact a nonclient to convince the nonclient to use her services , nor may attorney hire an agent to do so. (unless family member or past client).
If unsolicited advice is given in person , attorney cannot accept employment resulting from such advice |
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Targeted mail
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May send mail to ppl likely to need legal services but must include "advertising material" or "advertisement only" on the outside envelope and beginning and end of any recorded/ electronic communication |
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Adequate representation
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An attorney is competent to handle any case but he must adequately prepare and should advise the client of his lack of experience
If he consults another attorney that should be disclosed. |
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Fees
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Duty to discuss fees with a client.
Fee structure must be fully explained Agreement for reasonable fee is not sufficient But Fees must be reasonable- anything can be considered so everything reasonable |
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Contingent fees
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Prohibited in criminal cases
Generally allowed in civil cases except domestic relations Collecting past due alimony and child support isn't domestic relations Contingent fee arrangements must be put in writing |
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Sharing fees
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Lawyer generally can't share fees with non lawyer. Never client pay them himself
Exceptions -nonlawyers you work with - salary benefits, bonus, profit sharing -survivors of deceased partners |
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Referral fees
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Take care when dividing fees with lawyer in another firm
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Publication rights
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May not agree to work in exchange for publication rights in the subject matter-- worry conflict of interest
Lawyer must wait until conclusion of employment before seeking publication rights |
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Dual representation
2 clients at same time |
Cannot represent parties with adverse interests in litigation.
Note: always a conflict to represent current client against current client (even if they consent!) Nonlitigation have some room - must be able to represent both clients' interests adequately - client must be informed of potential conflict -- risks and alternatives - must get written informed consent |
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Conflicts between current client and former client
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Lawyer has duty to preserve confidences beyond the representation of the client
-can represent current client in action by former client Exceptions 1- current client wants to sue former client on matter or transaction you represented former client on 2- during representation of former client you learned confidential information now relevant to the action by the current client --> unless information no longer confidential or client consents |
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3rd party paying fee
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- lawyer can be paid by 3rd party to represent a client
-client must be informed of arrangement - client is still your only client! 3rd party has no control-- lawyers duties run to client |
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Rebates/kickbacks
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Anything lawyer receives from particular service provider must be disclosed to the client
- ex. Expert witness rebates $100 to attorney who hired him |
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Malpractice insurance
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Attorney who has less than $100000 on malpractice insurance must inform client of that
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Client funds/ property |
Must keep client funds in separate account
-notify clients when funds come in for them -properly inform client of the nature of any funds received -duty to safeguard client property that has been entrusted to the attorney |
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Bank accounts
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* operating account |
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Client interests first!
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Must always act in his client's best interest rather than his own self interest
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Concealing clients lies or fraud
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Attorney may not lie to the court
Attorney also can't obstruct justice by concealing or destroying evidence, or aiding others in doing so |
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Improper communications
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Lawyer must not communicate with persons who are represented - must contact the represented persons attorney
When he does establish contact he must disclose his representation |
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Permissible temporary multijurisdictional practice
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- associate with local lawyer
- special permission from judge. Pro hac vice -clients involved in multi state businesses - anything reasonably related to a lawyer's home state practice |
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Decison making
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Client- all important decisions that impact the merits of the case
Attorney- procedure, tactic, strategy - client can veto when based on cost -if client gives specific ranges for settlement you need not call them -attorney must abide by client wishes unless doing so would be illegal, unethical, of immoral -if client loses ability to make clear decisions b/c minor or impaired --> get a guardian appointed |
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Non competes
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Not allowed except as a condition of retirement or condition of settling a claim
- rule doesn't apply to restrictions included in terms of sale of law practice |
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Sale of law practice
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-lawyer may sell or purchase unless conflict of interest, including goodwill, prevents
- agreement may include reasonable non competes - entire practice must be sold, not just area of practice - fees charged to clients cannot increase - written notice to each client by certified mail or personal specifying clients right to retain other counsel or get the file back - client consent presumed if client takes no action , doesn't object without 90 days - cannot buy solely for purpose of reselling --> don't flip law practices |
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Firm names
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- no trade names
-no misleading names - only put names on door of actual partners/ associates |
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Lawyer client confidentiality exceptions
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May reveal to:
-comply with law , court order, ethics rule - consent/ implied authority in order to carry out the representation -prevent death or certain bodily injury -to extent reasonably believed necessary, disclose to rectify or prevent substantial economic loss --> includes disclosure necessary to rectify or mitigate the financial loss that resulted from the clients commission of an illegal or fraudulent act in furtherance of which the client has used the lawyers services -may to collect fee - protect lawyer from criminal or civil charges based upon conduct client involved in or to respond to disciplinary proceeding |
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Confidential communications. Past crimes
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Cannot disclose past crimes!!
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Confidential communications. Advice
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May get confidential legal advice about the lawyer's personal duty to comply with the ethics rules
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