Term
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Definition
A lawyer shall provide competent representation to a client.
Competent representation means that a lawyer shall not handle a matter which the lawyer knows or should know to be beyond the lawyer's level of competence without associating another lawyer who the original lawyer reasonably believes to be competent to handle the matter in question.
Competence requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. |
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Term
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Definition
A lawyer shall act with reasonable diligence and promptness in representing a client.
Reasonable diligence means that a lawyer shall not without just cause to the detriment of the client in effect willfully abandon or willfully disregard a legal matter entrusted to the lawyer.
The maximum penalty for a violation of this Rule is disbarment. |
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Term
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Definition
In representing a client, a lawyer shall exercise independent professional judgment and render candid advice.
A lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client. |
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Term
| A lawyer may undertake an evaluation of a matter affecting a client for the use of someone other than the client if: |
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Definition
| the lawyer reasonably believes that making the evaluation is compatible with other aspects of the lawyer's relationship with the client; and the client gives informed consent. |
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Term
| In the representation of a client, a lawyer shall not: file a suit, assert a position, conduct a defense, delay a trial, or take other action on behalf of the client when: |
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Definition
| the lawyer knows or when it is obvious that such action would serve merely to harass or maliciously injure another; knowingly advance a claim or defense that is unwarranted under existing law, except that the lawyer may advance such claim or defense if it can be supported by good faith argument for an extension, modification or reversal of existing law. |
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Term
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Definition
| (a) A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client. |
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Term
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Definition
A lawyer shall not knowingly: make a false statement of material fact or law to a tribunal; fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client; fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or offer evidence that the lawyer knows to be false.
If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures. The duties stated in paragraph (a) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by confidentiality.
A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.
In an ex parte proceeding, other than grand jury proceedings, a lawyer shall inform the tribunal of all material facts known to the lawyer that the lawyer reasonably believes are necessary to enable the tribunal to make an informed decision, whether or not the facts are adverse. |
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Term
| False Statements to Third Persons |
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Definition
| In the course of representing a client a lawyer shall not knowingly: make a false statement of material fact or law to a third person; or fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by confidentiality. |
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Term
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Definition
A lawyer shall maintain in confidence all information gained in the professional relationship with a client, including information which the client has requested to be held inviolate or the disclosure of which would be embarrassing or would likely be detrimental to the client, unless the client gives informed consent, except for disclosures that are impliedly authorized in order to carry out the representation, or are required by these Rules or other law, or by order of the Court.
b. A lawyer may reveal information covered by [this rule] which the lawyer reasonably believes necessary: to avoid or prevent harm or substantial financial loss to another as a result of client criminal conduct or third party criminal conduct clearly in violation of the law; to prevent serious injury or death [not otherwise covered by other provisions of this rule.
c. [A lawyer may reveal information in order] to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; to secure legal advice about the lawyer's compliance with these Rules. |
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Term
| Means without Substantial Purpose |
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Definition
| In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person. |
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Term
| Responsibility to a Client |
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Definition
| Responsibility to a client requires a lawyer to subordinate the interests of others to those of the client, but that responsibility does not imply that a lawyer may disregard the rights of third persons. It is impractical to catalogue all such rights, but they include legal restrictions on methods of obtaining evidence from third persons the unwarranted intrusions into privileged relationships. |
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Term
| Lawyers as Officers of the Court |
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Definition
Attorneys are officers of the court, and their statements in their place, if not objected to, serve the same function as evidence.
The duties of a defense lawyer are those of a personal counselor and advocate. It is often said that lawyers are "officers of the court." But a lawyer representing a client is not, by virtue of being an officer of the court, a state actor. A defense lawyer characteristically opposes the designated representatives of the State. The system assumes that adversarial testing will ultimately advance the public interest in truth and fairness. A defense lawyer best serves the public not by acting on behalf of the State or in concert with it, but rather by advancing "the undivided interests of his client." This is essentially a private function, traditionally filled by retained counsel, for which state office and authority are not needed. |
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Term
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Definition
The basic duty defense counsel owes to the administration of justice and as an officer of the court is to serve as the accused's counselor and advocate with courage and devotion and to render effective, quality representation.
ii. If counsel entirely fails to subject the prosecution's case to meaningful adversarial testing, there has been a denial of Sixth Amendment rights which makes adversary process itself presumptively unreliable.
i. Defense counsel should not intentionally communicate privately with persons summoned for jury duty or impaneled as jurors prior to or during the trial. Defense counsel should avoid the reality or appearance of any such communications. Defense counsel should treat jurors with deference and respect, avoiding the reality or appearance of currying favor by a show of undue solicitude for their comfort or convenience. After discharge of the jury from further consideration of a case, defense counsel should not intentionally make comments to or ask questions of a juror for the purpose of harassing or embarrassing the juror in any way which will tend to influence judgment in future jury service. If defense counsel believes that the verdict may be subject to legal challenge, he or she may properly, if no statute or rule prohibits such course, communicate with jurors to determine whether such challenge may be available. |
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Term
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Definition
The office of the prosecutor is charged with responsibility for prosecutions in its jurisdiction.
The prosecutor is an administrator of justice, an advocate, and an officer of the court; the prosecutor must exercise sound discretion in the performance of his or her functions.
The duty of the prosecutor is to seek justice, not merely to convict.
While he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
i. A prosecutor should not intentionally communicate privately with persons summoned for jury duty or impaneled as jurors prior to or during trial. The prosecutor should avoid the reality or appearance of any such communications. The prosecutor should treat jurors with deference and respect, avoiding the reality or appearance of currying favor by a show of undue solicitude for their comfort or convenience. After discharge of the jury from further consideration of a case, a prosecutor should not intentionally make comments to or ask questions of a juror for the purpose of harassing or embarrassing the juror in any way which will tend to influence judgment in future jury service. If the prosecutor believes that the verdict may be subject to legal challenge, he or she may properly, if no statute or rule prohibits such course, communicate with jurors to determine whether such challenge may be available. |
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Term
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Definition
Avoid impropriety and the appearance of impropriety in all activities, and should conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. The judge should not allow family, social, political or other relationships to influence judicial conduct or judgment. During the course of official proceedings, the trial judge should avoid contact or familiarity with the defendant, victims, witnesses, counsel, or members of the families of such persons which might give the appearance of bias or partiality.
A judge should not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion, national origin, disability, age, or sexual orientation.
It is the responsibility of the trial judge to attempt to eliminate, both in chambers and in the courtroom, bias or prejudice due to race, sex, religion, national origin, disability, age, or sexual orientation. The judge should also avoid bias in hiring, and strive to achieve diversity in his or her staff.
A judge should not be influenced by actual or anticipated public criticism in his or her actions, rulings, or decisions. |
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Term
| Formation of Attorney-Client Relationship |
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Definition
The relationship of attorney-client may be expressly created by written contract, or may be inferred from the conduct of the parties. Although generally, the test of employment is the fee, the basic question in regard to the formation of the attorney-client relationship is whether it has been sufficiently established that advice or assistance of the attorney is both sought and received in matters pertinent to his profession.
Attorney-client relationship cannot be created unilaterally in mind of would-be client; reasonable belief is required. |
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Term
| Defense Attorney & Client Relations |
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Definition
| 1. Defense counsel should seek to establish a relationship of trust and confidence with the accused and should discuss the objectives of the representation and whether defense counsel will continue to represent the accused if there is an appeal. Defense counsel should explain the necessity of full disclosure of all facts known to the client for an effective defense, and defense counsel should explain the extent to which counsel's obligation of confidentiality makes privileged the accused's disclosures. |
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Term
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Definition
In determining the amount of the fee in a criminal case, it is proper to consider the time and effort required, the responsibility assumed by counsel, the novelty and difficulty of the questions involved, the skill requisite to proper representation, the likelihood that other employment will be precluded, the fee customarily charged in the locality for similar services, the gravity of the charge, the experience, reputation, and ability of defense counsel, and the capacity of the client to pay the fee.
Defense counsel should not imply that his or her compensation is for anything other than professional services rendered by defense counsel or by others for defense counsel. Defense counsel should not divide a fee with a nonlawyer, except as permitted by applicable ethical codes of conflict. Defense counsel not in the same firm should not divide fees unless the division is in proportion to the services performed by each counsel or, by written agreement with the client, each counsel assumes joint responsibility for the representation, the client is advised of and does not object to the participation of all counsel involved, and the total fee is reasonable.
Defense counsel should not enter into an arrangement for, charge, or collect a contingent fee for representing a defendant in a criminal case.
When defense counsel has not regularly represented he client, defense counsel should communicate the basis or rate of the fee to the client, preferably in writing, before or within a reasonable time after commencing the representation. |
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Term
| Client Choices in Representation |
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Definition
| A lawyer shall abide by a client's decisions concerning the scope and objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify. |
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Term
| A lawyer shall not represent a client, or shall withdraw from representation when: |
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Definition
| The representation will result in violation of the Georgia Rules of Professional Conduct or other law; the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client; or the lawyer is discharged |
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Term
| A lawyer may withdraw from representation when: |
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Definition
| Withdrawal can be accomplished without material adverse effect on the interests of the client, or if the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent; the client has used the lawyer’s services to perpetrate a crime or fraud; the client insists upon pursuing an objective that the lawyer considers repugnant or imprudent; the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or other good cause for withdrawal exists. |
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Term
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Definition
| A lawyer may advertise through all forms of public media and through written communication not involving personal contact so long as the communication is not false, fraudulent, deceptive or misleading. |
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Term
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Definition
| i. Unless otherwise stipulated, one-half of the fee in any case is a retainer and is due at any time unless the attorney, without sufficient cause, abandons the case before rendering service to that value. |
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Term
| Out-of-Ccourt conduct and speech |
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Definition
| a. A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that a person would reasonably believe to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity. |
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Term
| Prosecutors and Expert Witnesses |
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Definition
| i. A prosecutor who engages an expert for an opinion should respect the independence of the expert and should not seek to dictate the formation of the expert’s opinion on the subject. To the extent necessary, the prosecutor should explain to the expert his or her role in the trial as an impartial expert called to aid the fact finders and the manner in which the examination of witnesses is conducted. A prosecutor should not pay an excessive fee for the purpose of influencing the expert’s testimony or to fix the amount of the fee contingent upon the testimony the expert will give or the result in the case. |
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Term
| Prosecutors and Bringing Charges |
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Definition
| i. The decision to institute criminal proceedings should be initially and primarily the responsibility of the prosecutor. Prosecutors should take reasonable care to ensure that investigators working at their direction or under their authority are adequately trained in the standards governing the issuance of arrest and search warrants and should inform investigators that they should seek the approval of a prosecutor in close or difficult cases |
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Term
| Prosecutors and Grand Juries |
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Definition
| A prosecutor should only make statements or arguments to the grand jury and only present evidence to the grand jury which the prosecutor believes is appropriate or authorized under law for presentation to the grand jury. . . The prosecutor should also inform the grand jurors that they have the right to her any available witnesses, including eyewitnesses. |
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Term
| Attorney-Client Privilege Burden of Proof |
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Definition
The person asserting the attorney-client or attorney work product privilege has the burden of establishing the existence of the attorney client relationship.
Once that party establishes facts necessary to support a prima facie claim of privilege, the communication is presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof to establish the communication was not confidential or that the privilege does not for other reasons apply. |
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Term
| a. The following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by the attorney-client privilege or work-product protection. When the disclosure is made in a federal proceeding or to a federal office or agency and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in a federal or state proceeding only if: |
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Definition
i. the waiver is intentional;
ii. the disclosed and undisclosed communications or information concern the same subject matter; and
iii. they ought in fairness to be considered together. |
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Term
| Attorney-Client Privilege: When made in a federal proceeding or to a federal office or agency, the disclosure does not operate as a waiver in a federal or state proceeding if: |
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Definition
i. the disclosure is inadvertent;
ii. the holder of the privilege or protection took reasonable steps to prevent disclosure; and
iii. the holder promptly took reasonable steps to rectify the error, |
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Term
| Exceptions to Attorney-Client Priviliege |
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Definition
1. Protecting Human Life - MAY, serious bodily injury or death
2. Crime-Fraud Exception - doesn't extend to future crimes |
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Term
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Definition
| i. A person to whom a lawful oath or affirmation has been administered commits the offense of perjury when, in a judicial proceeding, he knowingly and willfully makes a false statement material to the issue or point in question. |
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Term
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Definition
| i. A person commits the offense of subornation of perjury or false swearing when he procures or induces another to commit the offense of perjury or the offense of false swearing |
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Term
| Limits of Cross-Examiantion |
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Definition
| Make the interrogation and presentation effective for the ascertainment of the truth; avoid needless consumption of time; and protect witnesses from harassment or undue embarrassment. |
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Term
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Definition
A lawyer is required to be truthful when dealing with others on a client’s behalf, but generally has no affirmative duty to inform an opposing party of relevant facts.
A misrepresentation can occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is false.
Misrepresentations can also occur by partially true but misleading statements or omissions that are the equivalent of affirmative false statements. |
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Term
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Definition
The movant for recusal of a trial judge need not show any actual impropriety on the part of the trial court judge; the fact that her impartiality might reasonably be questioned suffices for her disqualification.
The phrase “impartiality might reasonably be questioned,” as a basis for recusal of a trial judge, means a reasonable perception of lack of impartiality by the judge, held by a fair minded and impartial person based upon objective fact or reasonable inference. |
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Term
| If there is a significant risk of conflict of interest, a client can give informed consent after: |
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Definition
consultation with the lawyer
Having received in writing reasonable and adequate information about the material risks of and reasonable available alternatives to the representation, and
having been given the opportunity to consult with independent counsel. |
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Term
| Client informed consent against conflict of interest is not permissible when: |
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Definition
| the representation: is prohibited by law or these Rules; includes the assertion of a claim by one client against another client represented by the lawyer in the same or substantially related proceeding; or involves circumstances rendering it reasonably unlikely that the lawyer will be able to provide adequate representation to one or more of the affected clients |
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Term
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Definition
- Lawyers can't enter into business deals with clients
- Laweyers can't acquire pecuniary interest adverse to the client UNLESS the transaction and terms are fair and reasonable to the client and fully disclosed in writing to client, and client is given opportunity to consult with independent counsel
- Prior to conclusion of representation, lawyers can't get literary or media rights related to case
- Lawyers can't provide financial assistance, except for court costs |
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Term
| Conflict of Interest with Former Clients |
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Definition
| A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing. |
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Term
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Definition
A lawyer shall not represent or continue to represent a client if there is a significant risk that the lawyer's own interests or the lawyer's duties to another client, a former client, or a third person will materially and adversely affect the representation of the client.
(a) Included within the constitutional right to counsel is the right to representation that is free from conflicts of interest. |
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Term
| Conflict of Interest Analysis |
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Definition
| The critical question is whether the conflict significantly affected the representation, not whether it affected the outcome of the underlying proceedings. That is precisely the difference between ineffective assistance of counsel claims generally, where prejudice must be shown, and ineffective assistance of counsel claims involving actual conflicts of interest, which require only a showing of a significant effect on the representation. A significant effect on the representation may be found, for example, where counsel is shown to have refrained from raising a potentially meritorious issue due to the conflict; where counsel negotiates a plea bargain for more than one defendant in a case conditioned on acceptance of the plea by all such defendants; or where one of the State's witnesses was a current client of defense counsel in an unrelated criminal matter, thereby constraining counsel's ability to cross-examine the witness. |
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Term
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Definition
| A lawyer may advertise through all forms of public media and through written communication not involving personal contact so long as the communication is not false, fraudulent, deceptive or misleading |
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Term
| A communication is fraudulent or misleading if: |
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Definition
contains a material misrepresentation of fact or law or omits a fact necessary to make the statement considered as a whole not materially misleading;
is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the Georgia Rules of Professional Conduct or other law;
compares the lawyer's services with other lawyers' services unless the comparison can be factually substantiated;
fails to include the name of at least one lawyer responsible for its content; or
contains any information regarding contingent fees, and fails to conspicuously present the following disclaimer:
1. "Contingent attorneys' fees refers only to those fees charged by attorneys for their legal services. Such fees are not permitted in all types of cases. Court costs and other additional expenses of legal action usually must be paid by the client."
contains the language 'no fee unless you win or collect' or any similar phrase and fails to conspicuously present the following disclaimer:
1. "No fee unless you win or collect" [or insert the similar language used in the communication] refers only to fees charged by the attorney. Court costs and other additional expenses of legal action usually must be paid by the client. Contingent fees are not permitted in all types of cases.” |
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