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Bar Exam > Professional Ethics > Flashcards

Professional Ethics Flashcards

1
Q

False or Misleading Statements

A

A communication may not be false, fraudulent, deceptive, or misleading.

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2
Q

Material Misrepresentation or Omission

A

Results if a statement:

  1. is likely to create a unjustified expectation about results the lawyer can achieve
  2. compares the lawyer’s services with other lawyers’ services, unless the comparison can be factually substantiated
  3. fails to include the name of at least one lawyer responsible for its content
  4. includes any info regarding contingent fees, and fails to conspicuously present the disclaimer OR
  5. includes the language “no fee unless you win or collect” and fails to conspicuously present the disclaimer that court costs must be paid by client.
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3
Q

Advertisement

A

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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4
Q

Solicitation

A

A lawyer may not accept employment when she knows or it is obvious that the employment was the result of prohibited conduct in the form of solicitation. Solicitation is contact targeted at specific individuals for the purpose of engaging them for representation in a particular matter.

Cannot solicit through direct, personal contact or through live telephone contact with a non-lawyer who has not sought advice regarding employment of lawyer.

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5
Q

Written Communications

A

May not send a written communication to a prospective client for the purpose of obtaining professional employment if the communication concerns an action for personal injury or wrongful death, or otherwise related to an accident or disaster involving the person to whom the communication is addressed or a relative of that person, unless the accident occurred more than 30 days prior.

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6
Q

Fee Arrangements

A

Don’t have to be in writing, but must always be reasonable.

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7
Q

Prohibited Contingent Fees

A
  1. domestic relations
  2. divorce
  3. alimony or support
  4. property settlement
  5. D in criminal case
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8
Q

Contingent Fee

A

Must be in writing and state

  1. the method the fee will be determined
  2. the percentages that will accrue to the lawyer if the case is settled, tried, or appealed
  3. whether litigation and other expenses are to be deducted from the recovery AND
  4. whether the expenses will be deducted before or after the contingent fee is calculated
  5. at conclusion of the matter provide a written statement of the outcome and fee awards
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9
Q

Division of Fees

A

When two or more lawyers who are not from the same firm share a fee. If the attorney’s fee is divided with another lawyer who is not a partner in or an associate of the lawyer’s firm, the statement must show the amount of fee received by each and the manner in which the division was determined.

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10
Q

Safekeeping of Property and Funds

A

Must hold property of clients or 3rd person in a separate account. Funds must be in designated Attorney Trust, Escrow, or Fiduciary Account.

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11
Q

Violation of Rule

A
  1. violate or attempt to violate the GRPC, knowingly assist or entice another to do so, or do so through the acts of another
  2. be convicted of a felony
  3. be convicted of a misdemeanor involving moral turpitude that relates to fitness to practice
  4. engage in professional misconduct involving dishonesty, fraud, deceit, or misrepresentation
  5. fail to pay any final judgment rendered against the lawyer for money collected within 10 days after the time appointed in the order or judgment
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12
Q

Unauthorized Practice of Law

A
  1. practicing law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction OR
  2. assisting another person in doing so
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13
Q

Temporary Legal Service Provided by Non-GA Lawyer

A
  1. pro hac vice
  2. in association with legal counsel
  3. in relation to a proceeding
  4. in relation to alternative dispute resolution
  5. in transactions
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14
Q

Non- Temporary Legal Service Provided by Non-GA Lawyer

A
  1. authorized to provide by federal law or other law of GA
  2. services are provided to the lawyer’s employer or its organizational affiliates are not service for which the forum requires pro hac vic admission
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15
Q

Notice

A

A written communication must be plainly marked as an ad on the face of the envelop and on top of each page of the communication in the same size font

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16
Q

Referals

A

A lawyer may not pay or give anything of value to a person or organization for referrals, but can pay reasonable cost of advertising and reasonable cost of non-profit services.

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17
Q

Rejection of Clients

A
  1. rep. will result in violation of the GRPC

2. lawyer’s physical or mental condition materially impairs ability to rep client

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18
Q

Competency

A

Should not accept rep in a matter unless it can be performed competently, promptly without improper conflict of interest and to completion.

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19
Q

Decision Made by Client

A
  1. decision whether to accept settlement
  2. plea
  3. waive jury
  4. whether to testify
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20
Q

Attorney Responsibility

A

Attorney has responsibility for technical and tactical decisions, but must consult client about the means and defer to client’s decision if 3rd party or expense is affected.

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21
Q

Factors to Determine Reasonableness of Fee

A
  1. time and labor and novelty of cause of action
  2. likelihood of lawyer accepting this employment will affect ability to accept other employment
  3. amount involved and result sought
  4. time limitations imposed by client or other circumstances
  5. nature and length of relationship between client and attorney
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22
Q

Retainers

A

Lawyer may collect a fee in advance in the form of retainer. Can be non-refundable if the lawyer foreclosed herself from other valuable legal work by agreeing to represent a client.

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23
Q

Payment of Fees

A
  1. credit card or arranging a bank loan for client

2. property (that is not an interest in litigation)

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24
Q

Accounting Disputes

A

The portion in dispute must be kept separate until the dispute is resolved.

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25
Q

Trust Account

A

May keep personal funds in the account to cover bank fees.

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26
Q

IOLTA Accounts

A

All client funds held for more than a very short period must be placed in either an interest bearing account with the interest being paid to the GA bar.

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27
Q

Duty of Competence

A

A lawyer shall not handle a matter that the lawyer knows or should know is beyond her level of competence without associating another lawyer whom she reasonably believes is competent to handle the matter in question.

Emergencies may excuse the ordinary standards

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28
Q

Duty of Diligence

A

Must act with reasonable diligence and promptness in representing a client. Shall not, to the detriment of the client, in effect willfully abandon or willfully disregard a legal matter entrusted to him without just cause.

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29
Q

Duty of Communication

A

A lawyer must:

  1. promptly inform the client of any decision or circumstance with respect to which the client’s informed consent is required
  2. reasonably consult with the client about the means by which the client’s objectives are to be accomplished
  3. keep the client reasonably informed
  4. promptly comply with reasonable requests for info AND
  5. consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows the client expects assistance not permitted by the law
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30
Q

Duty of Confidentiality

A

Protects all info related to the representation of a client, regardless of its source and prohibits the disclosure of confidential info regardless of whether a judicial proceeding is involved. Duty continues until attorney client relationship ends.

31
Q

Implied Authority to Carry Out Representation

A

Allow to make disclosure about a client when appropriate in carrying out representation, unless client specifically states otherwise.

32
Q

Express Consent for Disclosure

A

A lawyer may reveal protected info if the client consents after consultation or disclosure is implicitly authorized. A consultation involves the communication of info reasonably sufficient to permit the client to appreciate the significance of the matter in question.

33
Q

Rule Permitting Disclosure

A
  1. avoid/prevent harm or substantial financial loss to another as a result of client’s criminal conduct or 3rd party’s criminal conduct
  2. prevent serious injury or death
  3. establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client
34
Q

Lawyer’s Own Interests

A

Not allowed to rep a client if the lawyer’s own interest or duties to another client, former client, or 3rd person will materially and adversely affect the rep of the client

35
Q

Prohibition on Suing Clients

A

A lawyer may not act as advocate directly against a person she is representing in another matter, even if unrelated.

36
Q

Consent Exception

A

A lawyer may rep a client, despite a conflict of interests, if each client consents, preferably in writing, to the rep after:

  1. consultation with the lawyer
  2. having received in writing reasonable and adequate info about the material risks of the rep AND
  3. having been given the opportunity to consult with independent counsel
37
Q

Simultaneous Representation of Multiple Litigants

A

May be possible, unless:

  1. a substantial discrepancy in parties’ testimonies
  2. incompatibility in positions in relation to the opposing party
  3. substantially different possibilities of settlements of the parties claim/liabilities in question
38
Q

Representing Criminal Co-Ds

A

Almost never permitted because of great possibility of conflict

39
Q

Two Clients with Inconsistent Positions

A

Lawyer may rep parties having antagonistic positions on a legal question that has arisen in different cases as long as rep of neither client is adversely affected .

40
Q

Conflicts Between Current and Former Clients

A

If lawyer has rep-ed client in a matter, the lawyer cannot rep another client in the same matter or substantially related matter unless former client consents

41
Q

Substantially Related

A

Lawyer worked on a specific matter an that matter became an issue in litigation by the new client.

42
Q

Entering into Business Transactions with Client

A

Lawyer is prohibited from entering into business transaction with a client and from knowingly acquiring an ownership interest adverse to client.

43
Q

Permissible Business Deals

A
  1. client consents in writing
  2. client is given reasonable opportunity to seek advice from independent counsel
  3. terms are fair and reasonable
  4. terms are fully disclosed and transmitted to client in writing in a form client can reasonably understand
44
Q

Gifts from Client

A

Lawyer may not prepare an instrument giving himself, or a person related to him as parent, child, sibling, or spouse, any substantial gift from a client, including a testamentary gift, except where the client is related to the donee.

45
Q

Acquiring Media Rights to Client’s Story

A

Prior to the conclusion of representation of a client, a lawyer may not make or negotiate an agreement giving him literary or media rights to a portrayal or account of the case based in substantial part on info relating to the rep

46
Q

Acquiring an Interest in or Financing Client’s Litigation

A

May not acquire any pecuniary interest in subject matter of litigation. Must not provide financial assistance to a client in connection with litigation, unless:

  1. may advance court costs and expenses of lit, the repayment can be contingent on outcome of case
  2. if client is indigent the lawyer can pay court costs and lit expenses without repayment
47
Q

Prospective Agreement

A

May not make an agreement limiting liability for malpractice, unless client is rep-ed by independent counsel and it’s permitted by law.

48
Q

Claim Settlement

A

Only allowed if client is advised in writing of the wisdom of seeking independent counsel and is given time to do so.

49
Q

Imputed Disqualifications

A

If one lawyer is disqualified others at the firm are disqualified.

50
Q

Payment by a 3rd Party Representing a Client

A

May not accept compensation for rep-ing a client from one other than the client, unless

  1. the client consents after consultation
  2. confidentiality of info is preserved
  3. there is no interference with lawyers exercise of professional judgment
51
Q

Legal Services Organizations

A

A lawyer can serve as a director, officer, or member

52
Q

Law Reform Activities

A

If they might materially benefit a client, then the lawyer has to make an appropriate disclosure within the organization when he knows a private client might be materially benefited.

53
Q

Duty to Warn

A

Must explain the identity of client when it is apparent that org’s interests are adverse to those of the constituents with whom the lawyer is dealing.

54
Q

Client under Disability

A

When a client’s ability to make decision is impaired by age, mental or physical disability, or some other reason, the lawyer must reasonably maintain a normal attorney client relationship with the client. But when the lawyer believes that the client cannot act in his own interest, she can ask for a guardian to be appointed.

55
Q

Improper Conduct by Members of Organization

A

Lawyer must proceed as reasonably necessary in the best interest of the org if she knows that an officer/employee is engaged in action, intends to act, or refuses to act.

56
Q

Lawyer’s Former Firm

A

Law firm can rep a person with interests materially adverse to those a client represented by a former associate, unless lawyers remaining at the firm have info protected by confidentiality and use of former client info is material.

57
Q

Successive Gov. and Private Employment

A

Lawyer leaving public service for private practice is disqualified from subsequently rep-ing a client against the gov. if the lawyer participated personally and substantially in the same matter, unless gov. consents.

58
Q

Responsibility for Violation of a Lawyer

A

A lawyer is responsible for the violations of another lawyer if:

  1. partner/supervisor lawyer ordered, or with knowledge of the specific conduct ratified the conduct
  2. lawyer is a partner at the firm and knew of the conduct at the time when its consequences could have been mitigated but failed to do so
59
Q

Responsibility of Subordinate Lawyers

A

Doesn’t violate rules if she acts in accordance with supervising attorney’s reasonable resolution of an arguable question of professional duty.

60
Q

Responsibility of Non-Lawyer Assistants

A

Partners in a law firm must make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that conduct is compatible with rules. Lawyer may be responsible for non-lawyer’s action if:

  1. lawyer ordered ethical conduct or ratified it with knowledge
  2. learned of the conduct within time to remedy it and failed to do so
61
Q

Assisting in the Unauthorized Practice of Law

A

Allowed to delegated responsibilities so long as the lawyer supervises the delegated work and retains complete professional responsibility for the work. GA requires lawyers to be involved in the conveyance of land/deed.

62
Q

Fee Division with Non-Lawyer

A

May not share legal fees with non-lawyers, unless is compensation/retirement plan for employees.

63
Q

Non-Lawyer in Professional Organization

A

Non-lawyer cannot

  1. own any interest in corporation
  2. be a corporate director/officer
  3. have the right to direct/control professional judgment of lawyers
64
Q

Covenant not to Compete

A

Cannot restrict right to practice law

65
Q

Selling Firm

A

Actual written notice must be given to each of the seller’s clients

66
Q

Conduct in the Court of Litigation

A

Lawyer must not knowingly

  1. make a false statement of material fact or law to a tribunal
  2. fail to disclose a material fact to tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client
  3. fail to disclose to a 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
  4. offer evidence that lawyer knows to be false
67
Q

Duty to Raise Non-Frivolous Arguments

A

If the lawyer can make a good faith argument in support of the claim then it isn’t frivolous.

68
Q

Made False Statement to Tribunal

A

Take remedial measures, like

  1. if perjured testimony/false evidence is offered try talking to client
  2. if client fails to rectify the situation, seek to withdraw as counsel
  3. if you cannot withdraw, lawyer should disclose the falsity to court
69
Q

Duration of Obligation of Candor

A

Continues until conclusion of proceeding.

70
Q

Paying Witnesses

A

Can pay expenses reasonably incurred by a witness in giving testimony, reasonable compensation for witness losses, and reasonable fees for expert (cannot be contingent on outcome)

71
Q

Lawyer’s Contact with Jurors

A

Not allowed until case is over

72
Q

Commincations with Unrepresented People

A

Lawyer cannot

  1. state or imply that he is disinterested
  2. give advice other than the advice to obtain counsel OR
  3. initiate any contact with a potentially adverse party in a matter concerning personal injury or wrongful death less than 30 days prior.
73
Q

Reporting Professional Misconduct

A

May report if a lawyer knows of another lawyer’s violation that raises a substantial question as to the lawyer’s honesty, trustworthiness, or fitness as a lawyer

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