Term
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Definition
Cannot:
- knowingly make false statement to the Court
- fail to correct one previously made.
- fail to disclose a material fact if necessary to avoid assisting crime or fraudulent activity (affirmative duty even if confidential)
- disclose all material facts to court in ex parte proceeding.
May:
- refuse to offer evidence you reasonably believe is false, except for testimony of a D in a criminal matter.
- refuse to disclose adverse legal authority to opposing parties, but must disclose to the court. |
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Term
| Must an atty report an ethical violation by another atty or judge ? |
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Definition
Yes, if:
1) atty "knows"of the misconduct; &
2) violation raises substantial questions about the atty's honesty, trustworthiness, or fitness.
UNLESS:
- info came from confidential sources (duty of confidentiality trumps duty to report) |
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Term
| May a law student appear in court for a client? |
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Definition
| Only under state student practice laws. However, a corporation must ALWAYS be represented by a lawyer. |
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Term
| May a lawyer practice in jx where they are not admitted? |
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Definition
| No, unless it arises out of practice where the person is admitted. |
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Term
| May lawyers split legal fees? |
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Definition
| Only with fellow lawyers. But they may share court awarded fees with a non-profit organization. |
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Term
| May lawyers enter into partnerships? |
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Definition
| Yes, but must only enter into partnerships with lawyers if ANY PART of the partnership business is the practice of law. |
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Term
| Are lawyers responsible for ethical violations of subordinates? |
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Definition
Yes, if the lawyer:
- orders or ratifies the conduct; OR
- knew of the conduct when its consequences could have been avoided or mitigated. |
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Term
| When should an atty reject representation? |
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Definition
- if it results in violation of law or disciplinary rule.
- if it is a frivolous claim; or
- if the atty is not competent to handle the matter. |
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Term
| May a lawyer represent a frivolous claim? |
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Definition
| No. He may take a case where the law is against the client's position so long as the lawyer believes that a GF effort can be made to change the law. |
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Term
| May an atty agree to represent a client in a case that he is incompetent to handle? |
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Definition
Only if:
- he reasonably believes he could become competent; or
- they retain co-counsel to assist with incompetency. |
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Term
| Under what 4 circumstances MUST a lawyer withdraw from representation? |
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Definition
When: 1) the client fires you
2) client's primary purpose is to harass or delay
3) it "necessarily" requires violation
4) health makes it unreasonably difficult to effectively represent |
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Term
| Requirements for a lawyer to withdraw |
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Definition
1. Timely notice/opportunity to replace counsel
2. Return all unused funds
3. Return files; &
4. Get Ct permission IF in litigation |
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Term
| May a lawyer represent a client if the representation would be materially limited by a his own interests or responsibilities to a 3rd party? |
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Definition
NO, unless:
1) Lawyer "reasonably believes" it won't be adversely affected AND
2) Informed written consent |
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Term
| If a member of a law firm is disqualified from representation, are all members of the firm disqualified? |
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Definition
Yes, unless:
1) Lawyer disqualified b/c necessary witness
2) Lawyer disqualified for personal reasons (e.g., business deal w/ client)
3) Disqualified lawyer is screened from representation |
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Term
| When may a disqualified lawyer be screened from representation? |
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Definition
If reason for disqualification is b/c:
1) Discuss w/ prospective client AND:
- He reasonably avoids exposure to more disqualified info
- He is given no part of fee
- Present client receives timely written notice of the situation.
2) He formerly served the gov't, AND:
- Written notice to govt
3) He changed firms, AND:
- is given no part of fee
- written notice is given to any former client to ensure compliance w/ screening rule. |
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Term
| May an atty sue a current client? |
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Definition
| No, even in an unrelated matter. |
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Term
| May an atty represent multiple parties in a lawsuit? |
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Definition
Yes, so long as:
- he can represent them all effectively; AND
- they all agree. |
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Term
| True or false? An atty representing multiple clients may participate in aggregate settlements & guilty pleas. |
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Definition
True, so long as all clients:
- are informed of all agreements; AND
- give informed written consent. |
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Term
| May an atty act as a neutral 3rd party? |
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Definition
| Yes, if he explains that role to all parties involved. |
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Term
| May an attorney draft a client's will that contains a bequest to the lawyer? |
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Definition
| Yes, but shouldn't. Attys shall not solicit a substantial gift from a client or prepare an instrument giving one to the atty or atty's relative, unless client is related to lawyer. |
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Term
| May an atty pay a client's court costs & litigation expenses? |
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Definition
| Yes, but he may not give financial assistance to the client in connection w/ contemplated or pending litigation (includes paying client's rent, food, medical expenses). |
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Term
| 4 requirements to make business deals w/ clients |
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Definition
Yes, so long as:
- Transaction is fair & reasonable;
- Terms disclosed in a manner reasonably understandable to client
- Client must be advised in writing to seek advice of another atty & given reasonable chance to do so; AND
- Client must consent in writing. |
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Term
| May an atty acquire literary or media rights to his client's story? |
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Definition
| Not prior to the completion of representation b/c he might act against the client's best interest to increase the value of the story. |
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Term
| Lawyer should only acquire a proprietary interest in the cause of action when: |
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Definition
1) There's a lien to secure lawyer's fees & expenses; or
2) Reasonable contingency fee. |
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Term
| May an atty advocate in a trial where he is likely to be a witness? |
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Definition
No, unless:
- Atty's testimony relates to an uncontested issue
-Relates only to the value of legal services provided; or
- Atty disqualification would impose substantial hardship to client. |
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Term
| May an atty have sexual relationship with his client? |
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Definition
| Only if the relationship existed prior to lawyer-client relationship. |
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Term
| If representation is paid for by other than the client organization, must org give written consent? |
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Definition
| No. Unwritten consent will suffice, although client MAY give written consent. |
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Term
| May an atty represent an entity & the entity's officers/employees? |
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Definition
Yes, so long as:
- atty reasonably believes he can do so effectively; AND
- all consent;
- authorization to represent the entity is from individuals not being represented |
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Term
| If an atty for organization believes entity is violating law, what steps SHOULD he take to act as reasonably necessary to protect the organization? |
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Definition
1) Ask entity to reconsider its decision
2) Refer the matter to higher authority
3) If highest authority fails to take appropriate action, may report info to appropriate persons outside organization. |
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Term
| Should an atty represent a current client against a former client? |
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Definition
No, if:
- Atty acquired confidential info from former client material to the current litigation; OR
- Current matter is substantially related to former representation.
UNLESS: Both clients consent in writing |
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Term
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Definition
1) Atty may not contractually limit malpractice liability, UNLESS:
- For prospective malpractice liability; AND
- Client is represented by another lawyer.
2) Atty cannot settle malpractice claims w/o advising client in writing to see another atty. |
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Term
| DUTY OF CONFIDENTIALITY general rule.. |
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Definition
Cannot reveal any info "relating to representation of the client" without client's informed consent; AND
- Cannot use the info against curent or former clients. |
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Term
| ABA Exceptions to Duty of Confidentiality |
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Definition
A Lawyer MAY (but is not req'd to)reveal info for the following reasons:
1) Implied authorization to carry out representation
2) Client's informed consent
3) To prevent death or substantial bodily harm
4) To seek legal advice on compliance
5) Self-defense
6) Disclosure req'd by law/court order (must keep client informed on this one)
7) To prevent client from crime or fraud that will result in substantial financial harm to a person or their property. |
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Term
| May an atty disclose to the court that his client has committed perjury? |
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Definition
No, he should:
1) Urge client to rectify the fraud.
2) If client refuses, he must withdraw from case. |
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Term
| Must an atty refer only to law when advising a client? |
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Definition
| No, he may also refer to moral, economic, social, & political considerations. |
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Term
| May an witness be paid to testify? Expert witness? |
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Definition
No, cannot pay witnesses to testify, but may compensate witnesses for expenses incurred in giving testimony (e.g. transportation, meals, parking)
Yes, experts may be paid so long as the fee:
- Is reasonable; AND
- Not contingent upon the outcome of the case. |
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Term
| May attys communicate with jurors at all? |
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Definition
1) Before trial, No!
2) During trial, only in proceeding.
3) After trial, yes unless juror objects. |
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Term
| Attys may split fees with other attys as long as: |
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Definition
1) Client agrees
2) Reasonable fee
3) Fee divided proportionate to work done, or with client's written consent |
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Term
| May attys commingle client's money w/ personal funds? |
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Definition
May commingle personal funds in a client trust acct only to pay bank fees.
Lawyer MUST:
- Keep client's property safe in client trust acct
- Promptly pay all money owed to client; AND
- Keep record of client funds for at least 5yrs after representation. |
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Term
| Judges must avoid any appearance of impropriety, for example.. |
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Definition
- Personal knowledge of disputed facts
- Acted as a lawyer in the matter
- Financial interest in the case
- Judge or his family involved in the case
UNLESS:
- Parties agree & give informed written consent; OR
- Necessity (i.e., only judge in dist) |
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Term
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Definition
1) Practice law or serve as a fiduciary
2) Be biased or participate in discriminatory orgs
3) Commend or criticize jurors outside of an opinion or order
4) Make comments that will impact case's outcome
5) Accept gifts, UNLESS incident to:
- Speeches
- Bar functions; or
- Law book publishers |
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Term
| May judges attend political gatherings? |
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Definition
| No, neither can candidates for judicial office. |
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Term
| What are the 6 Rules of Survival? |
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Definition
1) Never create a duty you don't want to create.
2) Always be prepared to walk away.
3) Assume everything you do or say will become publicly known.
4) Never mistake the client's problem for your own.
5) Never do anything you find repugnant
6) If you mess up, fess up. |
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Term
| What are the main differences btwn ABA & CA duty of confidentiality? |
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Definition
- CA does not allow you to disclose for financial harm; &
- CA duty to preserve client info is broad; violated even w/ GF & honest intentions. - |
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Term
| Does an atty owe a duty to opposing counsel for inadvertently disclosures? |
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Definition
Yes, atty owes ethical duty upon receipt of privileged or work product info. Lawyer MUST:
- Refrain from examining info upon ascertaining it is privileged.
- Immediately notify sender
- Sequester or return document until privile claim is resolved. |
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Term
| Factors to determine whether fees are reasonable |
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Definition
1)Time, skill, & labor required to perform the legal services
2)Opportunity costs: The extent representation will preclude atty from other legal work
3)Local custom: Fee customarily charged for similar work in the community
4)Stakes for client: the amt charged & results obtained. Reasonable to charge higher for case of greater importance.
5)Atty's experience: atty's reputation & ability to perform. Senior partner may obviously charge more than junior associate fresh out of law school. |
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Term
| What is the policy behind contingency fees? |
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Definition
| Contingency fees are designed to provide an incentive for a lawyer to accept a risk of nonrecovery, to handle the case efficiently, & to discourage filing frivolous lawsuits. |
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Term
| CA Duty of Confidentiality exceptions |
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Definition
MAY disclose to prevent or rectify
1)crime/fraud in which atty involved; or
2)death/substantial bodily harm |
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Term
| Waiver of attny-client privilege or work product w/ inadvertent disclosure |
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Definition
Extends only to subject-matter, & not beyond communication disclosed.
Inadvertent disclosure in a fed proceeding does not waive privilege if:
- Disclosure was unintentional
- Disclosing party took reasonable steps to guard against disclosure;
- Disclosing party promptly took reasonable steps to rectify the error. |
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Term
| Lawyers are prohibited from charging contingency fees in which 2 types of cases? |
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Definition
1) Criminal cases; &
2) Domestic Relations cases |
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Term
| What is required for a contingency fee to be proper? |
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Definition
MUST be in..
1) writing; &
2) signed by the client |
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Term
| What are the requirements for splitting fees among lawyers of different firms? |
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Definition
1)Reasonable: cannot raise fee b/c additional atty
2)Consent: client's informed written consent
3)Proportionality: fee either shared in proportion to work done or lawyers assume equal responsibility for outcome |
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Term
| What are all the duties owed to the client? |
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Definition
1)Duty of Loyalty & Confidentiality
2)Duty to Communicate
3)Duty of Competence & Diligence |
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Term
| Are lawyers responsible for the conduct of subordinates? |
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Definition
| Yes, if atty learned of conduct when consequences could've been mitigated |
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Term
| Are lawyers allowed to share their personal opinion with a juror? |
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Definition
No, lawyers cannot express personal opinions to jurors about:
- Justness of the clients' case;
- Witnesses' credibility; or
- Guilt, innocence, or culpability of a party |
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Term
| Do subordinate lawyers have a duty to question the ethical judgment of supervisory lawyers? |
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Definition
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Term
| In what ways can lawyer's & client's interests conflict? |
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Definition
1) Business deals
2) Gifts
3) Literary & media rights
4) Financial assistance to client
5) Sexual relations
6) Lawyer as witness |
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Term
| May a lawyer represent his girlfriend? Engage in sexual relations w/ a client? |
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Definition
Yes, may represent a client with whom he had a preexisting sexual relationship with UNLESS:
- He believes it will materially interfere w/ misrepresentation. |
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Term
| What is the main difference btwn Duty of Confidentiality & the Atty-Client Privilege? |
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Definition
Confidential ALL info that relates to representation & is not generally known.
Atty-client privileged info is confidential communication btwn client & atty for purpose of providing legal services. |
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Term
| What's the difference btwn work product privilege under the Model Rules & CA? |
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Definition
ABA defines as "Mental impressions (opinion) of counsel & work done (facts) on client's behalf in preparation for litigation."
WHEREAS
CA defines as "All work for a client!"
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Term
| What are the 5 duties owed to the tribunal? |
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Definition
1) Duty to avoid frivolous claims
2) Duty of Candor
3) Duty of Impartiality
4) Duty of Fairness to opposing counsel
5) Duty to avoid Prejudicial Trial Publicity |
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Term
| A lawyer cannot communicate about the subject of representation with a person he knows is represented by a lawyer in with the matter UNLESS: |
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Definition
1) Client's lawyer consents; OR
2) Authorized by law or Ct order |
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Term
| Are attys allowed to communicate with unrepresented ppl? |
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Definition
Yes, but..
- Cannot imply that you are disinterested; AND
- If person confused about atty's role, atty must clarify |
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Term
| A lawyer may ask a person other than client to refrain from offering relevant information to another party IF: |
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Definition
1) the person is a relative or employee/agent of his client; AND
2) lawyer reasonably believes the person's interests won't be adversely affects by refraining |
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Term
| A subordinate lawyer is not liable for violation if: |
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Definition
| He acted in accordance w/ supervisory lawyer's reasonable resolution of an arguable question of professional duty. |
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Term
| Do subordinates have an incentive to follow supervisory orders since they can escape liability of violations? |
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Definition
Not really, because subordinates ALWAYS have a duty to question supervisory lawyer's ethical judgments & oppose illegal commands even in the presence of the rule.
Rule simply permits subordinates to defer to supervisors in appropriate cases once debate is exhausted & decisions must be made. |
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