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147 Cards in this Set

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8.4(b)
L subject to discipline for criminal acts that reflect adversely on honesty, trustworthiness or fitness as a lawyer
For a criminal act to constitute professional misconduct it must involve...
a characteristic relevant to the practice of law MR 8.4 (b)
Examples of elements of criminal acts which constitute professional misconduct
dishonest, breach of trust, substantial interferance w/admininstration of justice, most violent crimes
Examples of elements of criminal acts which do NOT generally constitute professional misconduct
solicitation of prostitution, single offense DUI, possession of MJ joint
Which MR deals with criminal acts = professional misconduct
8.4 (b)
Is a lawyer who fails to file a personal income tax form knowing they owe a significant amount of tax guilty of professional misconduct
yes, even though it is not connected with the L's legal practice it is a crime related to honesty, so the L is subject to discipline
Is a lawyer who gets arested for soliciting sex subject to professional discipine
probably not b/c that crime does not show dishonesty, untrustworthiness or unfitness to practice law
Which rule generally defines professional misconduct
MR 8.4(a)
general definition of professional misconduct rule 8.4(a)
It is professional misconduct for L to:
1) violate/attempt to violate any of the rules of professional conduct
2) knowingly assist/induce another to violate the rules
3) use acts of another person to commit a violation
Rule that says fraud, deceit & misrepresentation = professional misconduct
MR 8.4(c)
Does fraud, dishonesty, deciet or misrepresentation need to rise to the level of a crime to be professional misconduct?
No
A lawyer cheats on the bar exam, this isn't a crime are they guilty of professional misconduct?
Yes, MR 8.4(c) says that ANY conduct involving dishonesty, fraud, deciet, or misrepresentation is professional misconduct
A lawyer defrauds his firm by misusing expense accounts is he guilty of professional misconduct?
Yes, MR 8.4(c) any conduct that involves dishonesty, fraud, deceit or misrepresentation constitutes professional misconduct
8.4(c)
dishonesty, fraud, deceit & misrepresentation = professional misconduct
8.4 (b)
criminal acts that = professional misconduct
8.4 (a)
professional misconduct generally
8.4 (d)
conduct prejudicial to administration of justice
If L during representation of a C knowingly manifests bias based on race, sex, religion national origin, disablity, age, sexual orientation, or socioec onomic status AND the action is prejudicial to the administration of justice which rule is the L violating?
8.4 (d) conduct predjudicial to the administartion of justice
8.4 (e)
stating or implying ability to improperly influence officials
stating or implying ablity to improperly influence offi?cials violates which rule
8.4(e)
conduct prejudicial to administration of justice violates which rule?
8.4(d)
Can a L mention his father is a prominent judge or his mother is govenor in an employment interview?
That would be improper under 8.4(e) implying ability to improperly influence an official
If a C mentions a L's prominent gov't official relative what should the L do?
Explain that L has no special influence to wield on the client's behalf or the L will be in violation of 8.4(e) "stating or implying ability to improperly influence officials"
8.4 (f)
knowingly assisting a judge or judicial officer in conduct that violates judicial code or other law = professional misconduct
or judicial officer in conduct that violates judicial code or other law = professional misconduct
8.4 (f)
Duty to report professional misconduct
8.3 (a) must report naughty lawyers
8.3 (b) must report naughty judges
When must you report another L to the appropriate professional authority
when you KNOW that the other L has violated the rules in such a way that ir raises a SUBSTANTIAL question about the L's honesty, trustworthiness or fitness as a L
L1 tells another L2 he cheats on taxes is L2 required to rat L1 out?
Yes L2 MUST report L1 b/c this rule violation raises a substantial question about L1's honesty, trustworthiness or fitness as an L
L1 finds out that L2 has formed a partnership this an Accountant, is L1 required to rat L2 out?
No, L1 may but does not have to report L2's violation of the rule against forming p-ship with non-L b/c it is NOT a violation that raises substantial question about L2's honesty, trustworthiness or fitness as an L
Define knowledge
actual knowledge, but it may be inferred from the circumstances, more than mere suspicion
Is mere suspicion sufficient knowledge to MANDATE a L rat out another L for a rule violation?
needs to be more than mere suspicion, msut be actual knowledge/actual knowledge inferred from circumstances
Define substantial
a matter of clear & weighty importance
A L ____ report suspected misconduct and ____ report known misconduct.
may
must
T or F failure L1 to report L2 when L1 KNEW L2 engaged in conduct which raised a substantial question about his honesty, trustworthiness or fitness to practice law can result in discipline for L1?
Yes, failure to report this type of misconduct subjects you to discipline for violating the rule 8.3 which requires disclosure
If a L learns about another L's misconduct through a privaleged communication with the other L is he required to disclose under MR 8.3?
No, confidential knowledge is exempted, and the L would actually be disciplined for disclosing CI if he did report
What are the two exemptions from the rule 8.2 duty to disclose another L's misconduct?
1) obtained the knowledg through privaleged communication
2) obtained knowlege through approved lawyers substance abuse assistance program
L asks Mentor about what to do about a piece of falsw evidence, L is asking M for legal advice, M advises L not to offer the evidence and finds out L ignored his advice? What obligations does M have to report or not report L's misconduct
L was seeking M's legal advice so that communication was privileged. L would be disciplined for disclosing a privileged communication so L cannot report.
L1 bumps into L2 on his way to court. L2 is wasted and in no shape to appear before a judge. What obligations does L1 have to report or not report L2's misconduct?
L1 MUST report, he has actual knowlege of misconduct which substantially casts doubt on L2's fitness to practice as an L. He did not obtain the knowlege through an approved lawyers assistance program or through a privileged communication, so he is not exempt from the obligation to report
If you file a professional misconduct complaint about an L can you be sued for filing that complaint?
No, filing a complaint is considered privileged and cannot be the basis of an action against the complaintant
May a complaintant appeal if the grievance committee dismisses the complaint?
No, the grievance committee decision to dismiss is final
who has the burden of proof in a disciplinary hearing?
party prosecuting the charge
what is the standard of proof for a disciplinary charge?
beyond a preponderance of the evidence but less than beyond a reasonable doubt
what kind of evidence is required?
Most states only permit evidence that would be admisssible under the rules of evidence
What are the most common sanctions imposed on a L who has committed professional misconduct?
private/public reprimand/censure
suspension of L's licence (set period of time)
disbarment (permanent)
probation
restitution
cost of disciplinary proceeding
limitations on L's practice
8.5 (b)(2)
choice of law in disciplinary proceedings
What is the choice of law for misconduct that is unconnected to a tribunal proceeding?
either rules of where the misconduct occured or where the predominant effect of the conduct was. 8.5(b)(2)
8.5 (b) (2)
choice of law for misconduct unconnected to tribunal proceeding is rule from area where misconduct occured or where the predominant effects of the misconduct were felt
8.5 (b) (1)
choice of law for misconduct connected to tribunal proceeding is the rules where the tribunal sits, unless otherwise provided
Does suspension or disbarment in jurisdiction affect a L's ability to practice in another jurisdiction?
Not automatically
Is disicplinary action imposed by one state binding on another?
not necessarily, majority view is that sister states accept disiplinary action as proof of the misconduct, but are free to impose their own sanction
5.5 (a)
L's cannot help non Ls engage in unlicenced practice of the law. & L's cannot practice in a jurisdiction where they are not admitted to practice
4 situations under which a L may practice on a temporary basis in which they aren't admittited
1. special permission to practice from the ct. 5.5(c)(2)
2. mediation or arbitration arising out of practice in home state 5.5 (c) (3)
3. association with a local L who actively participates in the matter 5.5 (c) (1)
4. other temp. practice arising out of home state 5.5 (c) (3)
pro hac vice
special permission from local ct to handle a matter in that tribunal even though you haven't been admitted to practice there
activities that constitute law practice include . . .
appearing in jucidial proceedings
engaging in settlement negotiations,
drafting docs that affect a substantial legal right or obligation (contract, will, trust)
Under what condition may a L delegate tasks to a non L
if they carefully supervise and must be ultimately responsible for the results 5.5 comment 2
can a L advise a person who wishes to appear pro se?
yes
Can you hire a disbarred or suspended L to do work for you?
If it is work a lay person could do YES
If it is work that requires specialized knowlege/constitutes practice of law NO
When evaluating a K between an L & a C who will court weigh against
the L because they have a fiduciary duty to the C
what reasons can a L use to refuse service to a person who would like to use the L's service (no client relationship est. yet)
L may refuse service for any reason
when does a Lawyer-Client relationship arise?
person manifests intent that the L provide legal service
AND
1) L agrees
2) L fails to make it clear that they do not want to rep the person & L knows the person is reasonably relying on the L to provide the services
ALSO when a tribunal appoints L to rep client
Person writes L a letter asking L to rep them in a personal injury case, L never responds, a year later the statute of limitations expires on the claim and the person sues L for malpractice for failure to file suit. Is L liable?
No, b/c there was no atty-client relationship. L didn't expressly decline but there was no implied acceptance b/c it was not reasonable to rely on representation based on an unanswered letter
when is assent to represent a potential client implied?
if the L fails to clearly decline and the prospective client reasonably relies on the representation
Guy gets arrested for dui, he calls L and gets secretary because L is out of the office, tells S that he has a ct date in 10 days and S tells him to send over relevant papers but doesn't tell him L will decide to take case or not only after reviewing papers. L calls one day before ct. date and tells him she won't rep him. Is L guilty of professional misconduct?
yes, Guy's reliance was reasonable, L's agent responded to his request by asking for papers, and she should have declined while there was still time for him to get another L
MR 6.2
L must not seek to avoid representing ct appointed clients
L must not seek to avoid representing ct appointed clients
MR 6.2
When must L decline a ct apt. client?
if acceptance would require L to violate a law or disciplinary rule. [6.2(a)]
Ct appoints L to rep a D who has attempted to murder a former Client, Can the Lawyer do so?
No, the L must decline b/c he has learned lots of confidential info about the former C which is relevant to D's defense.
when may a L seek to be exused from representing a court appointed client?
if it would impose an unreasonable financial burden on the L [6.2 (b)]
or
If L finds the client or the cause so personally repugnatnt that it would impair the L's ability to rep C effectivley [6.2(c)]
6.2 (a)
L MUST decline ct apt. C if it would require the L to violate a law or disciplinary rule
6.2(b)
L may ask to be excused from ct apt. C if it would impose an unreasonable financial burden on L
6.2(c)
L may ask to be exused from ct apt. C if they find the C or the cause so morally repugnant it interferes w/ability to rep
When must a L refuse employment?
1) client motive is harasment [4.4(a)]
2) unsupportable factual or legal position ie frivolous [3.1]
3) L not competent [1.1]
4) strong personal feelings which impair ablity to rep client [1.16 (a) (1), 1.7 (a)(2)
5) impaired mental or physical condition [1.16 (a) (2)
Is a case frivolous if the L does not have all the facts on hand but expects to develop them during discovery?
No
What exceptions to fivolous rule [3.1]?
L may defend criminal client to extent allowed by const. law even if the defense would normally violate rule 3.1
L thinks he can make a good faith argument that the facts are as claimed
L thinks he can make a good faith argument that the present law shold be changed
L expects to be able to develop facts in discovery
what duties are owed to a prospective client?
1) L must protect confidential info (incl. declining to rep other clients in the same or related matter if CI would harm PC)
2) protect any PC property
3) Use reaonable care in giving legal advice
[REST 15]
who gets the benefit of the doubt in a fee dispute?
The C
When must a L communicate information about the fee?
before or w/in a reasonable amount of time after commencing the representation
What factors are considered in determining the reasonableness of a fee?
1) time & labor required
2) novelty & difficulty of the Q's involved
3) skill needed
4)extent to which this will prevent L from doing fee paying work for other C's
5) fee customary in that area for that kind of work
6) amount at stake and results obtained for C
7) time limitations
8) nature & length of the relationship between L & C
9) experience, reputation & ability of L
10) whether fixed or contingent
Can a L charge a C for ordinary overhead expenses?
no
What types of expenses are considered ordinary overhead?
Costs associated w/ staffing, equipping & running the L's office
What kinds of expenses can an L charge to the client?
can charge actual cost to the L of special services
What types of special services can the L charge to the C?
actual cost of photocopying, long distance calls, computer research, special deliveries, secretarial overtime..
Can an L charge client more than the L's actual cost for services provided by 3rd parties?
NO
L spends 3 hours working on C1's case while flying to take a deposition for C2. L can bill
a) 3 hours to C1
b) 3 hours to C2
c) 3 hrs to C1 + 3 hrs to C2
d) C1 for x hrs C2 for y as long as x + y = 3
e) D or A or B
e) L can bill either client for the full amount or apportion it
answer c) would be considered double billing which is a violation of an ABA formal opinion
If a C pays L an advance and then decides to fire the L what happens to the advance?
any unearned portion must be refunded to the C
Is a retainer the same as an advance payment of a fee?
No, a true retainer is $ paid solely to ensure the L is available
Does L need to refund retainer if fired by C?
No, generally the L need not refund a true retainer, retainers are $ paid to ensure L's availablity
An Oil co pays an eco defense lawfirm a monthly retainer of $1000 to be available in case of an oilspill. Retainer fee agreement says this $ will not be credited against hours spent on Oil Co's legal work. Law firm withdreaws from a Oil Co case. Does Lawfirm get to keep retainer?
Yes, if ...
1) retainer amt is reasonable
2) Lawfirm has not violated the retainer agreement
L agrees to rep C in a divorse for $100/hr. Writen contract says that C would pay a $2500 "non-refundable retainer" which will be "credited against C's charges." C fires L after $1000 worth of work. Does C get a refund?
Yes, L must refund the unearned portion of $1500 b/c the contract does not clearly explain the meaning of non-refundable retainer & cts will construe ambiguities against the L b/c the L drafted it
Can L accept property in return for services?
Yes, as long as it does not involve a proprietary interest in the cause of action or subject of litigation
If an L recieves an ownership interest in a business as payment for services what are rules does the L need to be wary of
Rule barring the acceptance of proprietary interest in the cause of action or subject of litigation

possible conflict of interest b/c it may be considered a business transaction between the L & C
L agrees to rep a client in a drug smuggling case. Contract has a clause that says all work must be paidin advance. C pays L a $2000 advance. Midway through L tells C the money has been used up and C nees to pay more or the work will stop. Is this acceptable conduct?
No L must not make a fee agreement that could curtail services in the middle of a realtionship and put the C at a bargaining disadvantage
Can L take an interest bearing promissory not from C to secure payment of fees?
Yes [see hulland v. state bar]
Can L use statutory, common law, or contractual atty's lien to secure the payment of a fee?
yes where permitted by local law
Can a Client pay fee by credit card?
Yes per ABA formal opinion 00-419 (2000)
T or F an L can charge a contingency fee for any kind case?
F, cannot use contingency for criminal defense cases or in domestic relations cases where fee is contingent on securing a divorce or amt of alimony/support/property settlment
Can L use contingency in a domestic relations case where the C is suing to recover money that is past due under an alimony or support decree?
Yes
Can a lawyer set whatever contingency agreement they want?
No the contingency fee must be a reasonable amount
What are the requirements for a contingency fee agreemnt?
amt must be reasonable
it must be in WRITING signed by C
writing must state how fee is calulated (percentage L gets if case settles/wins trial/wins after appeal), what expenses will be deducted from recovery & whether they will be deducted before or after the contigent fee is calculated, what expenses will C pays win or lose
What information needs to be included in a writen contingency agreement
how fee is to be calculated (% L gets if settled/won at trial/won at appeal

what expenses will be deducted from the recovery

whether deductions for expenses will be made before or after contingency fee is calculated

what expenses must be paid by client whether the case is won or lost
What does L need to include in the writen statement to the C at the end of a contingent fee case?
outcome of the case

remittance to the C

and how remittance was calculated
Can a L uses confidential info to collect unpaid fees?
No, L cannot employ collection methods forbiden by law, improperly use confidential info, or harrass a client
If a C refuses to pay some or all of the L's fee what options does the L have to collect?
Common law or statutory charging lien w/recovery as security for L's fees (most states)

Retaining lien where L keeps docs, funds , & C property until fee is paid (Most states but strong contra minority view)
What is a retaining lien?
lien that permits L to retain C's docs, funds & property until fee is paid
What can a L do if he recieves funds on behalf of a C from which the fee is to be paid and the client disputes the amount of the fee? Can the L hold it all? take out what the L believes he is paid?
The L needs to pay the C the amount not in dispute but can keep the disputed amount in a client trust account until the dispute is resolved
Generally is a L allowed to split fees?
No
What are the exceptions to the bar on splitting fees?
L's & Associates in a law firm may pool & split fees

separation & retirement agreements

If Ls from dif. firms work together on a case they may split if 1) fee is reasonable, 2)split in proportion to services performed by each L, & 3) C agrees to split in writing disclosing share of each L
Can two Ls set up an exclusive referal agreement
No, they can set up a referal agreement but it cannot be exlusive & C must be informed of agreement
Can L pay a referral fee?
No
What decisions are to be made by C?
1) whether to accept settlement offer
2) what plea to enter in a criminal case
3) whether to waive jury trial in criminal case
4) whether C will testify in criminal case
5) whether to appeal
Can an L include a provision in a contingency agreement thast the L will not settle before trial without L's consent?
No only C an decide to settle or not
Can the scope or objective of representation be limited?
Yes, C & L can define/limit scope & objective via agreement
If L wants to limit scope of representation what is necessary?
limit must be reasonable under the circumstances
C must give informed consent
Can L agree to rep client in dispute with C's Landlord but stipulate if the dispute has to be arbitrated or litigated the C will hire another L for that purpose?
Yes as long as C gave informed consent, the limit is reasonable
What options does L or C have if L cannot resolve a disagreement w/ C about how to handle a case
L may withdraw or C may fire L
What should L do if C expects assistance that violates the law or an ethics rule?
1st explain why cannnot do what C expects

If C insists then L must withdraw
noisy withdrawl
in situations where L finds out C has begun an illegal course of action and the action is continuing the L may have to make a noisy withdrawl, one where L disaffirms any prior opinions docs, affirmations that the C is using to carry out wrong doing
What are L's duties to C with diminished capcity
as far as is reasonably possible L should maintain normal L-C relationship, treat C with attention & respect.
If C with diminished capcity has guardian how should L treat C?
L should sitll treat C as a C particularly in communicating significant developments
When can L take action to protect C with diminished capacity
when C faces substantial risk of physical, financial or other harm L may take reasonable actions to protect C
What kind of actions can L take to protect C with diminished capacity who is at substantial risk of harm
L can consult w/ people or entities who can protect C

if appropriate L can seek appointement of surrogate or guardian
Can an L reveal a diminished capacity C's confidential info when taking protective action?
yes, but only to the extent necessary to protect the C
informed consent means
that the client agrees to a proposed course of conduct after the lawyer has sufficiently explained the material risks and reasonable alternatives
What is the lawyers obligation to keep client informed
L must keep client reasonably informed about the status of the matter and about the means L plans to acomplish the C's objectives
In a real estate negotiation C says "you have complete authority- just get the best deal you can." do you have to keep C advised of the progress of the negotiation?
Yes L should keep C advised of progress and if there is time to do so L should review the materiall issues with C before taking final action
A C calls and makes a reasoanble request for information, what are the L's obligations?
L must respond promptly, if that isn't possible, must tell C when the info will be available
If the C is an org or group who does the L communicate with
the appropriate officer
Is it ever ok to delay the transmission of information to a client?
L may delay if C would be likely to react imprudently to an immediate communication but L should never withhold info to serve L's or 3rd persons interest or convinence
2 defendants charged with felony murder of V. They are granted separate trials. D 1 is depressed and vows suicide if D 2 is convicted. That same day D 2 is convicted. Can L withhold that info?
Yes L can withhold until D1 can react to the information more rationally
Under what circumstances can a C fire L?
any law allows C to fire the L at any time w/ or w/o cause
If C fires L for no good reason is C liable for breach of K?
No for policy reason cts construe all L employment contracts as being termianble at will by C
L & C have contract that provides a flat or maximum fee. C fires L,can L recover more than provided by the express contract?
No
L does some work for C, C unhappy with L so fires L, does C have to pay L any fees?
C owes L for reasonable value of the work the L did before being fired
* Double Check

IL Model Rule 77
= rule on sanctions.

This sets out the basic framework for discipline within the jurisdiction of the disciplinary commission.
Who controls access to the bar?
The state supreme courts control access to the bar.

- Under provisions, the state Supreme Court has exclusive jurisdiction over regulation of the bar, which is a function of separation of powers.
In order for courts to be an independent branch of government, what must they have the power to do?
In order for courts to be an independent branch of government, they must have the power to regulate people that appear before the court and are an essential part of the court process.
What are the exceptions to the requirement that states that one of the prerequisites for acceptance to the bar is graduation from an ABA approved law school?
1. IL MR 711 is a provision for law students to practice before they graduate.

2. IL MR 712-718 permits lawyers, educated in other countries to practice in Illinois under certain limitations. For these purposes, teaching law is considered practice.
Where are the specific provisions setting up a state's court system located?
The state constitution has specific provisions setting up its court system.
- Whatever the legislature does in those states has to be within that framework.
How many circuit and appellate courts does IL have?
One of each.
The Illinois constitution says we have one circuit court that sits in various circuits that can be created by the legislature but it is one court. The first circuit is the circuit court of Cook County. This is conceptualized as one court because it makes it possible for the Supreme Court to shift judges around between circuits.

By the same token, there is one appellate court that sits in five districts.
Does this usually cause a problem?
Usually this doesn’t make a difference but there are some rare situations where it can make a difference. The legislature can control and modify the number of subdivisions of federal court.
How does the federal system work? Which federal court is set up by the constitution?
Only the Supreme Court. The court has the power to interpret the constitution. They left it up to Congress to build a lower court system. Congress chose to do so on a state-by-state basis. In states that have multiple districts, they have chosen to set them up as separate judicial entities. Under classic theory, the federal district court has only that jurisdiction which Congress allocates to them.
As a lawyer, where are you allowed to practice?
As a lawyer you can practice only in the unit to which you have been admitted. Geographic boundaries still make a big difference although it is gradually becoming possible for lawyers to practice in multiple jurisdictions. It’s not easy to appear in a foreign jurisdiction (a jurisdiction where you are not licensed), you either need special permission or you have to have been admitted.
What does the first section of the Illinois preamble say about a lawyer's role? (3)
We are a national profession, licensed and regulated in a fragmented basis.
1. One role is to represent clients.
2. The second is to act as an officer of the legal system, and the
3. third is to help people get justice.
What isn’t said about who represents a large part of the system?
What isn’t said is that non-lawyers represent large parts of the system. Which parts? The Internal Revenue Code, patent office, immigration, federal trade commission. For all of these you can practice in this code without being a lawyer. When I say practice I mean you could do it in your own name in the status of your own licensing. You don’t have to operate as an agent for another attorney. These agencies make most of the decisions that control our lives.

- As a licensed attorney when you are trying to develop a practice base, when you are dealing with those agencies, your competition is not just lawyers.
What does Disciplinary rule 77 basically say?
Disciplinary rule 77 basically says a lawyer can be sanctioned for a violation of the rules of conduct or for defeating the administration of justice.
What are the three violations that you can be sanctioned for, which are outside of the rules?
1. The first is a violation of fiduciary duty.
--> Using the fiduciary relationship to benefit yourself instead of your client.

2. The second is for overreaching.
--> Overreaching is a particular kind of fiduciary duty.

3. The third is a conversion of somebody else’s property.
--> Anytime you mix funds it is technically considered a conversion.
What are the duties the fiduciary owes to the beneficiary?
1. The duty of loyalty where you can’t do anything to undercut the client’s position,

2. The duty of confidentiality.