Term
A lawyer must accept a court-appointment unless:
4 under MRPC
1 additional Cal |
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Definition
1. Appointment would cause substantial financial burden
2. Appointment would cause a conflict of interest
3. Appointment would cause the violation of law or ethical rule
4. Attorney could not handle the matter competently.
California-The client wants to assert a frivolous claim or defense not warranted under existing law and the attorney cannot make a good faith argument to extend the law. |
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Term
| What decisions must be made by the client only? |
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Definition
Decisions relating to the ends of the representation:
1. Whether to accept a settlement or plea offer
2. Whether to testify in a criminal case
3. Whether to waive right to a jury trial in a criminal case |
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Term
| When does the attorney client relationship begin? |
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Definition
| When the client reasonably believes it does. |
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Term
| When can an atttorney reveal confidential information about a client under a disability? |
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Definition
| Under the model rules, the lawyer may reveal confidential information to the extent reasonably necessary to protect the client |
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Term
| A lawyer must withdraw under the model rules and california rules when: |
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Definition
1. Continued representation would be counseling or assisting a client in conduct the client knows is a crime or a fraud.
2. When the lawyer knows or should know that continued representation will result in violation of law or ethical rules
3. When the attorney's physical or mental condition materially impairs his ability to represent the client.
4. When the client fires him for any reason. |
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Term
| A lawyer must withdraw under the model rules and may withdraw under the CA rules for: |
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Definition
1. When a client insists on asserting a claim or defense not warranted under the law and can't make a policy argument to extend the law.
2. The client insists on pursuing an illegal course of conduct |
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Term
| A lawyer may withdraw under the model rules but CA does not allow withdrawal for this reason: |
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Definition
1. If the lawyer can withdraw without a material adverse effect to the client, he can withdraw for any reason.
2. If the lawyer finds the client's cause repugnant.
3. The lawyer's services were used in the past to perpetrate a crime or fraud |
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Term
| Withdrawal under these circumstances is permissive under either California or Model rules |
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Definition
1. When a client's conduct makes representation unreasonably difficult
2. When the client insists the lawyer take action contrary to the lawyer's judgment
3. The client has failed to pay the lawyer
4. Other good cause exists |
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Term
| What are an attorney's duties upon termination? |
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Definition
1. Lawyer must promptly return all papers and property to which the client is entitled.
2. The lawyer must promptly refund any part of a fee paid in advance that has not been earned with the exception of retainer fees. |
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Term
| What are the requirements for fee agreements? |
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Definition
All fees under the MRPC must be reasonable and communicated with the client prior to commencing action.
All fees under the California must not be unconscionable.
Take into account:
1. Sophistication of the parties
2. Novelty and difficulty of the case
3. Precluding other employment
4. Results |
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Term
| When must a fee agreement be in writing? |
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Definition
Under model rules, only contingency agreeements.
Under California, contingency fee arrangements and when it is reasonably foreseeable that the amount paid will exceed 1,000. |
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Term
| What are the requirements for a contingency fee arrangement |
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Definition
1. They must be in writing
2. They must be signed by both parties (only client under MR)
3. Disclose fee rates and how fees will be paid
4. CA-Whether the client has to pay addditional costs outside the contract.
5. That the fee is negotiable. |
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Term
| When can a lawyer split client fees with another? |
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Definition
| 1. If they are in the same firm. 2. Payments made to a partner's estate 3. Law firm staff 4. Court-ordered legal fees split with a non-profit that retained the attorney. |
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Term
| When can an attorney enter into a reciprocal referral agreement? |
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Definition
1. If the reciprocal referral agreement is non-exclusive
2. The client be informed of the existence of the relationship. |
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Term
| What should a lawyer do with money subject to a fee dispute? |
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Definition
| A lawyer must never co-mingle client funds, so he must keep the disputed funds in the client trust account. |
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Term
| What are the elements of attorney-client privilege? |
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Definition
1. Confidential
2. Communication
3. Client holds the privilege
4. That lasts indefinitely (under CA lasts until the estate is settled) |
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Term
| What are the exceptions to the attorney client privilege |
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Definition
1. The planning of a future crime or fraud
2. A fee dispute between the attorney and the client. |
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Term
| What is the professional obligation of confidentiality? |
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Definition
An attorney is prohibited from disclosing information from any source relating to the representation unless disclosure is authorized by the informed consent of the client or impliedly authoirzed by the nature of the representation.
A lawyer must take reasonable precautions to ensure the confidentiality of prospective and current clients. |
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Term
| Under what circumstances can an attorney reveal information without violating the obligation of confidentiality? |
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Definition
Permissive:
1. Disclosure will avoid reasonably certain death or substantial bodily harm. Under CA, the attorney must try to persuade the client not to take the action if the client is the cause.
2. Under the model rules, a lawyer may reveal information to the extent it is reasonably necessary to avoid substantial financial harm to another.
3. To secure legal advice about the lawyer's compliance with the rules of professional conduct. (MR only)
4. Controversy between the attorney and the client (MR only)
5. Compliance with law or court order (MR only) |
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Term
| A lawyer may not represent a client if the representation may be materially limited by the attorney's own interests unless: |
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Definition
1. The lawyer reasonably believes that he will be able to provide competent and filigent representation
2. The representation is nnot prohibited by law
3. The affected client gives consent in writing |
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Term
| Can an attorney represent a client where the opposing attorney is related? |
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Definition
| Only if each clients give informed consent. |
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Term
| Sexual relations with a client are: |
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Definition
MR-ok if the attorney client relationship started after the sex.
CA-As long as they don't affect lawyer judgment |
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Term
| When can the lawyer act as a witness? |
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Definition
1. The testimony relates to an uncontested issue
2. The testimony relates to the nature and value of legal services
3. Disqualification would cause substantial hardship to the client (MR ONLY)
4. The laywer has obtained informed consent. |
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Term
| Under the model rules, a lawyer may not obtain a proprietary interest in the litigation unless |
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Definition
1. The lawyer obtains a lien granted by law to secure payment of a fee
2. The lawyer contracts for a reasonably contingent fee
3. Advance court fees and costs in contingency fee arrangements
CANNOT
1. Pay client to bring lawsuit
2. Solicit gifts from clients
3. Enter into a business ventre with client unless they are represented by independent counsel and the terms are fair. |
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Term
| Can an attorney represent two clients in the same litigation? |
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Definition
| 1. If informed written consent is obtained from each client and the attorney reasonably believes litigation won't be affected. |
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Term
| When can an attorney represent a current client against a former client? |
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Definition
An attorney may not generally represent a current client against a former client in the same or substantially related matter without informed consent
CA-He can't if the attorney has obtained material confidential information against the former client unless the former client consents
MR-Attorney can't if the matters are the same or substantially related without informed consent.
These rules apply to lawyers moving to new firms. |
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Term
| Can a government lawyer work on the same or substantially related matter he worked on as a govt lawyer? |
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Definition
| Only if the government consents. |
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Term
| A conflict is imputed to the attorney's new firm unless: |
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Definition
1. The attorney is timely screened
2. The client is notified that he can watch the screen
3. The attorney is not apportioned any of the fee from the litigation. |
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Term
| Conflicts of interests don't apply to: |
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Definition
| A lawyer providing legal services to low income clients. |
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Term
| A lawyer may not accept payment for representation from someone other than the client unless: |
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Definition
1. The client gives informed consent
2. There is no interference with the lawyer's professional judgment
3. Attorney-client confidentiality is preserved
4. CA requires written consent |
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Term
| When must a lawyer report up the chain of command when representing an organziation? Report out? |
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Definition
1. He must report up if the action of an employee is likely to cause substantial injury to the organization.
2. He may report out for activity that is a clear violation of the law that the lawyer reasonably believes is reasonably certain to result in substantial injury to the organization.
UNDER CA THE LAWYER MAY NOT REPORT OUT, HE MUST WITHDRAW |
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Term
| What duties does an attorney owe to the court? |
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Definition
1. honesty/candor-attorney cannot offer false statements and must correct false statements when they are discovered
2. Must not introduce evidence he actually knows is false and may refuse evidence he reasonably believes is false.
3. A criminal defendant who intends to testify falsely under MR must take remedial measures and withdraw if nothing works. Under CA, if you can't persuade him, he must testify in narrative form.
4. If cliennt has already introduced false evidence, under MR he must persuade client to come clean and then withdraw, under CA he must not disclose client perjury. |
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Term
| What duties are owed to opposing counsel |
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Definition
1. Must not suppress evidence
2. May not pay a witness to induce testimony
3. May not violate discovery rules
4. Must keep client reasonably informed |
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Term
| What is the duty of competence? |
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Definition
Ann attorney must provide competent representation annd must possess the legal knowledge skill and preparation necessary.
An attorney may
1. Become competent through reasonable preparation
2. Through association with another lawyer
3. A lawyer may give advice or assistance in an emergency, but assicatance should be limited. |
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Term
| If a lawyer lacks competence, what should he do? |
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Definition
1. Decline or withdraw
2. Become competent without unreasonable delay
3. Associate with competent counsel. |
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Term
| What is the duty of diligence? |
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Definition
| A lawyer must act with reasonably diligence and promptness when representing a client. |
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Term
| Under what theories can an attorney be brought on malpractice charges? |
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Definition
1. Breach of contract
2. Breach of fiduciary duty
3. Intentional tort
4. Negligence |
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Term
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Definition
1. Cannot communicate ex parte with a judge
2. Cannot communicate with jurors until proceedings end
3. Cannot knowingly make false statements to 3rd parties
4. Must notify sender of accidentally sent email or letter
5. Cannot communicate with a person known to be represented absent lawyer consent
6. Cannot make a statement to the media that could reasonably prejudice the proceeding.
7. Not make frivolous claims
8. Not to make material false statements of law or fact to 3rd parties. |
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Term
| What are the duties of a prosecutor? |
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Definition
1. Not to prosecute a charge not supported by probable cause
2. Make reasonable efforts to ensure defendant's right to counse;
3. Not to make public comments to cause disdain for the accused
4. Must reveal brady information
5. Must reveal brady information post conviction. |
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Term
| What are the limits on lawyer advertisement? |
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Definition
1. No false or misleading statements. In CA, testimonials are presumed misleading as are advertisement that does not bear the word advertising material.
2. Guarantees, warranties on the outcome, that the lawyer can obtain immediate cash/settlements
3. Cannot claim to be a specialist without a degree.
PERMISSIBLE
Area of practice, name, firm name, fees, degrees, licenses |
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Term
| In person solicitation is improper unless |
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Definition
1. They are a lawyer
2. There is a close family relationship |
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Term
| Targeted advertising is improper where |
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Definition
1. The attorney solicits at the scene of an accident or en route to a hospital
2. Delivers a communication to a person who the lawyer knows or should know is not in a proper mental or physcial state to make a decision
3. Using runners/cappers on behalf of the attorney |
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