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37 Cards in this Set
- Front
- Back
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What are the four types of discipline that can be imposed on an NC attorney (increasing in severity)?
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1. Private censure/reprimand
2. Public censure 3. Suspension for a definite term 4. Disbarment |
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What is the choice of law in multi-jurisdictional matters?
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1. If licensed in NC only, then NC rule and laws apply.
2. If admitted to NC and another state, rules of the state will apply which the lawyer principally practices unless the conduct's key effect is in another state, then that other state's rules will apply. |
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What cannot be required in order to be admitted to a state bar?
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1. US citizen
2. resident of the state |
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When is there permissible temporary multiple jurisdictional practice?
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a. Associate with an active local lawyer
b. Special permission called pro hac vice 1) Allow in just to handle one case. c. Mediation or arbitration out of home-state practice d. Anything reasonably related to lawyer's home state practice 1) Real estate lawyers, for example. |
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When are the only times a lawyer may enter into a non-compete agreement with his current partners/associates?
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Retirement
Settlement of claim/controversy |
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Can trade names be used in practice in NC?
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Yes, as long as not misleading
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When must your name come out of the firm name?
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If whatever happens to you is permanent (including ambassador appointments!)
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When can you hold yourself out to be a specialist?
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a. Been granted certification by NC State Bar
b. Been granted certification by organization accredited by NC State Bar c. Been granted certification by organization accredited by the ABA |
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What is the test for whether advertising is false/misleading?
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whether a layperson would find the statement or advertising misleading.
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What are the special rules relating to advertising contingent fees?
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1. You must clearly state the terms and basis of the fee agreement.
2. You must make it clear in any advertising that refers to contingent fees whether the client will be responsible for any costs. You must also make it clear that contingent fees are not permitted in all types of cases. a. Clear and thorough. Disclaimers. |
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Does NC require lawyers to keep copies of advertisements made?
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No.
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When can you solicit clients through direct personal contact (unless they object)?
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a. Family members, close friends, lawyers
b. Prior clients c. Pro bono matters (not for personal gain) |
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What is the basic rule regarding client confidences?
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can't disclose anything derogatory or hurtful about your client regardless of the source.
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What are the exceptions to the rule regarding client confidences?
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1. Required by law or court order
2. To obtain legal or ethical advice for lawyer. Use of hypos with colleague is ok if discrete to protect identity of client. 3. May disclose to prevent future crime of reasonably certain death or substantial harm or injury. |
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When can you take a case with a conflict?
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Accept a case with a conflict only if all clients have given their informed consent and a reasonably prudent lawyer would have taken the case.
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you may represent a current client in an action against a former client except:
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1. When your current client wants to sue your former client involving a matter or transaction in which you represented the former client, OR
2. When during representation of the former client you learned confidential information that is now relevant to the action by the current client. |
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What are the steps to take regarding conflicts created by other lawyers in the office?
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1. Notify other side that lawyer works for you
2. Notify that lawyer has no access, input, or fees to or from the case. |
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When can you not charge a contingent fee?
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1. You cannot charge a contingent fee in criminal case.
a. Including quasi-criminal cases. 2. You cannot charge a contingent fee in a domestic relations case. b. Getting past due alimony and child support is not considered domestic relations. |
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When can legal fees be divided with non-lawyers?
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a. Salaries, retirement plans, bonuses, profit sharing
b. Spouses of deceased partners to pay fees earned by the deceased partner. |
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How must referral fees be handled?
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1. Division of the fee must be in proportion to work performed.
2. Client must be advised and agree. 3. Total fee must be reasonable. |
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What are the rules regarding retainers?
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Advance on fees - held in separate account until earned.
Availability retainer - earned immediately. |
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What two types of accounts must every lawyer have?
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Operating - where the lawyer's money goes
Trust - client money. Can only put lawyer money in for bank fees. |
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What are the specific rules regarding trust accounts in NC?
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a. Must be in NC
b. Must notify client promptly when funds come in c. Must keep client records for 6 years from end of representation and must reconcile accounts at least quarterly. |
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Who doesn't need a trust account?
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Dead/retired lawyers. Law professors. Judges. Inactive members of the state bar.
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What are some common trust account problems?
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1. Conversion of client's funds to own (with intent to repay + interest later)
2. After earning the money, can withdraw that from trust account to operating account. Must take out money earned on a regular basis. 3. Return money won to client less attorney fees. If there's a dispute, can only move fees not disputed to operating account. Leave disputed fees in trust account until dispute resolved. |
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What is IOLTA?
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Interest On Lawyers Trust Account. Who gets the interest? Swept out quarterly and given to NC Bar Foundation.
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What are the rules on ex parte communications?
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a. Jury - No ex parte communications. Period. Ignore the jury.
b. Judge - de minimis and emergency communications are ok. ADR are ok if parties agree. c. Adverse Party - No, unless other lawyer agrees. Parties can have ex parte contacts with other parties. |
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What is a lawyer's duty as to adverse authority?
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a lawyer has an affirmative duty to disclose contrary or adverse authority - but can attempt to distinguish the facts/law of the case.
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When must an attorney withdraw?
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a. Representation would lead to violation of the rules
b. Become impaired c. Fired |
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When may an attorney withdraw?
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a. Any reason at all.
b. More likely granted early on, less likely later. |
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If you know your client is going to lie...
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either don't put them on the stand or don't ask questions. Duty to notify court of false testimony.
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If your client lies on the stand and you know...
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try and get them to correct their testimony. If they don't, motion to withdraw.
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If you terminate a client relationship...
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do so in a manner that does not prejudice the client:
a. Give them their file b. Give them notice |
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What are the special duties of the prosecutor?
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1. Proceed only on probable cause
2. Protect defendant's right to counsel 3. No seeking advantage from unrepresented - disclose your role 4. Must disclose evidence tending to negate guilt (Brady Rule) 5. Limiting extrajudicial statements of others under prosecutor's control |
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What are the NC CLE requirements?
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12 hours/year, 2 hours of legal ethics
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How can the pro bono publico duty be discharged?
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a. Providing the work.
b. Giving money to organizations that provide the work c. Doing things to help improve the system |
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When you are ready to give it all up, observe the rules regarding the sale of your practice:
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1. Sell whole practice or at least entire field of practice to competent buyer.
2. Clients must consent in writing 3. Clients must be told that they can get a new lawyer and their case file. 4. Buyer must take entire practice - can't pick and choose cases/clients. |
