BOUNDS OF ADVOCACY (15 QUESTIONS) Flashcards
(94 cards)
1
Q
What is the American Academy of Matrimonial Lawyers GOALS for Family Lawyers?
A
To provide leadership that promotes the highest degree of professionalism and excellence in the practice of family law
2
Q
What are the 9 categories set forth in the AAML Bounds of Advocacy?
A
- Competence & Advice
- Communication & Decision Making Responsibility
- Conflict of Interest
- Fees
- Client Conduct
- Children
- Professional Cooperation and the Administration of Justice
- Mediator
- Arbitrator
3
Q
What is the primary purposes of the BOA?
A
Is to guide matrimonial lawyers confronting moral and ethical problems
4
Q
Why?
A
BC existing codes often do not provide adequate guidance
5
Q
What is often the problem with looking to ABA Model Rules of Professional Conduct for guidance in family matters?
A
It is addressed to ALL lawyers regardless of the nature of their practices so issues relevant to a specific area of law often are not addressed in detail
6
Q
What do the BOA for AAML try to address
A
The “gray” zone issues where even experienced lawyers need more guidance
7
Q
Can violations of the BOA be used for malpractice liability or state bar discipline?
A
NO - it is aspirational bc it requires a level of practice above the minimum requirements of the rules of professional conduct
8
Q
What shift do the AAML BOA reflect?
A
A shift toward the role of constructive advocacy, counseling and a problem solving approach for a family member in need of assistance in resolving difficult issues and conflicts within the family
9
Q
What is the first topic in the BOA
A
- Competence and advice
10
Q
What is BOA 1.1
A
1.1: An attorney is responsible for the competent handling of all aspects of a representation no matter how complex
11
Q
What is BOA 1.2
A
1.2: An attorney should advise he client of the emotional and economic impact of divorce and explore the feasibility of reconciliation
12
Q
What is BOA 1.3
A
1.3: An attorney should refuse to assist in vindictive conduct and should strive to lower the emotional level of a family dispute by treating all other participants with respect
13
Q
What is BOA 1.4:
A
1.4: An attorney should be knowledgeable about different ways to resolve matrimonial disputes, including negotiation, mediation, arbitration and litigation
14
Q
What is BOA 1.5?
A
1.5: An attorney should attempt to resolve matrimonial disputes by agreement should consider alternative means of achieving resolution
15
Q
What is topic 2 of the BOA?
A
2 - Communication and Decision Making Responsibility
16
Q
What is BOA 2.1?
A
2.1: An attorney should accord clients respect
17
Q
What is one predicate to a successful attorney client relationship?
A
Treating the client with respect
18
Q
What is BOA 2.2?
A
2.2: An attorney should provide sufficient information to permit the client to make informed decisions
19
Q
What can happen if a lawyer fails to provide complete information to a client
A
It may result in criticism, disciplinary action or a lawsuit
20
Q
Does a lawyer have discretion in when he/she provides relevant info?
A
Yes - a lawyer may be justified in delaying transmission of info when the client would react imprudently to an immediate communication.
21
Q
What is a general guidelines when expressing opinions of oc or judges or the law you don’t agree with?
A
- Don’t lie or tell the client anything less than the truth
- Answer specific questions
- Do not criticize the court, oc or system unless necessary for client to make informed decisions
22
Q
What is BOA 2.3?
A
2.3: An attorney should keep the client informed of developments in the representation and promptly respond to communications from the client
23
Q
The duty to keep a client reasonably informed usually includes?
A
Promptly returning calls - typically by end of next business day
24
Q
What is BOA 2.4?
A
2.4:
An attorney should share decision making responsibility with the client but should not abdicate responsibility for the propriety of the objectives sought or the means employed to achieve those objectives
25
May a lawyer counsel it's client not only as to the law but also other considerations such as moral, economic, social an political factors relevant to the client's situation?
Yes
26
What is the exception to when an attorney doesn't have to abide by the client's decisions as to the objectives of the representation?
Lawyer must always act in accordance with the rules of ethics or other law despite a client's demand
27
What is BOA 2.5?
2.5: When the client's decision making ability appears impaired, the attorney should try to protect the client from the harmful effects of the impairment
28
What should an attorney do if he or she legit things their client is incompetent?
Seek the appointment of a guardian
29
If a client is impaired as a result of substance abuse or other physical or psychological condition, does that necessarily render them incompotent?
No
30
What is BOA 2.6?
2.6: An attorney should not permit a client's relatives, friends, lovers, employers or other third persons to interfere with the representation, affect the attorney's independent professional judgment or, except the client's express consent, make decisions affective the representation.
31
When can a lawyer accept payment from a 3rd party for a client the lawyer represents?
When doing so will not interfere with the attorney's ability to continue representation without interference by the payor with the attorney client relationships and preserve confidentiality with the client.
32
If the minor daughter of one of your friend's comes to you to find a jurisdiction that will allow her to marry underage without parental consent, can you tell your friend if you think the marriage is a bad idea?
No - under current ethic rules and the BOA you cannot act contrary to client's desires but you can point out your concerns to the client.
33
What is BOA 2.7?
2.7: An attorney should not allow personal, moral or religious beliefs to diminish loyalty to the client or usurp the client's right to make decisions concerning the objections of representation
34
Should a lawyer withdraw from representing a client if their personal, moral or religious beliefs are likely to cause the attorney to action adverse to the client's best interest?
Yes
35
What is BOA 2.8?
2.8: An attorney should discourage the client from interfering in the client's spouse's effort to obtain effective representation
36
If a client requests a list of matrimonial lawyers and you suspect it is so your client can conflict out those attorneys from representing their spouse, should you oblige?
No
37
What is BOA 2.9?
2.9: An attorney should not communicate with the media about an active case under most circumstances
38
When can an attorney speak with the media about a client's case?
With the client's prior knowledge and consent
39
When is a client's consent not required in speaking to the media?
When obtaining client consent is not obtainable
40
Why is it inappropriate for an attorney to discuss with the media a client's family law matter?
It may be inappropriate since family law matters tend to private and intimate
41
Why is it bad if there is public discussion about a case?
It tends to obstruct settlement, cause embarrassment, diminish the opportunity for reconciliation and harm the family - particularly children also
it tends to prejudice an adjudicative proceeding
42
Can an attorney withdraw if a client disobeys instructions to not speak to the public about the case?
Yes
43
When may it be necessary for an attorney to address the public on their client's behalf?
To mitigate recent adverse publicity and it is necessary to protect the client's legitimate interests
44
What is BOA 3.0?
3.0: Conflict of Interest
45
When does a conflict exist?
When a significant risk that the representation of a client will be materially limited by the lawyer's responsibility to another client, former client or 3rd person or by a personal interest of the lawyer.
46
What is BOA 3.1?
3.1: An attorney should not represent both H and W even if they do not wish to obtain independent representation
47
What is BOA 3.2?
3.2: An attorney should not advice an unrepresented party.
48
What should an attorney do if a party decides to proceed without a lawyer?
1. I am your spouse's lawyer
2. I don't represent you
3. I will at all times keep your spouse's interest in mind not yours
4. Any statement I make to you in this case should be considered negotiations or argument on behalf of your spouse
5. I urge you to hire a lawyer
49
What is BOA 3.3?
An attorney should not simultaneously represent both a client and a person with whom the client is sexually involved.
50
What is BOA 3.4?
3.4: An attorney should not have a sexual relationship with a client, opposing counsel or judicial officer in the case during the time of representation.
51
What is BOA 3.5?
3.5: Limited scope of representation. An attorney may elect to enter into an agreement limiting the scope of representation but must be cognizant of local state bar rules.
52
What falls under BOA 4.0?
4.0 FEES
53
What is BOA 4.1?
4.1 Fee agreements should be in writing.
In some jurisdictions they must be in writing. They should delineate the scope of the representation and should be presented in a manner that allows the client to consider terms, consult another attorney and obtain answers to any questions to fully understand the agreement before entering into it.
54
What is BOA 4.2?
4.2 An attorney should provide periodic statements of fees and costs.
55
What is BOA 4.3
4.3 All transactions in which an attorney obtains security for fees should be properly documented.
When taking mortgages on real property from a client, the client should be independently represented. If attorney takes personal property as security, it must be appraised, photographed and identified by a qualified appraiser to establish its precise identity and value and then it should be placed in a safe deposit box.
56
What is BOA 4.4?
4.4 An attorney’s fee should be reasonable based on appropriate factors, including those listed in the Rules of Professional Conduct.
Clients as consumers should be able to negotiate fee agreements. Some jurisdictions have prohibited fees that were in any way based on the results obtained in the case holding such fees constituted contingent fees and courts in other jurisdictions have held the fact an hourly fee is enhanced on the basis of results obtained does not necessarily make it a contingent fee. Bounds of Advocacy says a fee that is based on an hourly rate but may be enhanced by a specified result is not the same as a traditional contingent fee and may be justified by the complexity of the case, the shortness of time between the attorney’s retention and impending proceeding, the difficult nature of opposing party and counsel, an attorney’s unique ability to settle case quickly and avoid lengthy and acrimonious trial or a substantial risk the representation will be unsuccessful due to unfavorable factual or legal context. A fee based on results obtained is permissible so long as the specified result does not include: obtaining a divorce, custody provisions, amount of alimony or child support awarded, and if the fee is reasonable under the circumstances, in addition to attorney’s hourly rate, based on factors clearly stated in writing and provided to client at the outset of the agreement, and agreed to in writing by the client at the outset of representation after full consultation and an opportunity to seek independent legal advice.
57
What is BOA 4.5?
4.5 An attorney should not charge a fee where the amount or payment is contingent upon obtaining a divorce, custody provisions or the amount of alimony or child support awarded
58
What is BOA 4.6?
4.6 An attorney may withdraw from a case when the client fails to honor the fee agreement
59
What is BOA 4.7?
4.7 An attorney may properly take all steps necessary to effect collection, including mediation, arbitration or suit from a client who fails to honor the fee agreement.
60
What falls within BOA 5.0?
BOA 5.0 Client Conduct
61
What is BOA 5.1?
5.1 An attorney should not condone, assist or encourage a client to transfer, hide, dissipate or move assets to improperly defeat a spouse’s claim.
62
What is BOA 5.2?
5.2 An attorney should advise the client of the potential effect of the client’s conduct on a child custody dispute
63
What is BOA 5.3?
5.3 An attorney should advise a client to take reasonable and good faith efforts to preserve electronic information that may be relevant to current or threatened litigation.
A lawyer must competently represent the interests of the client, but not at the expense of the children. The parent’s fiduciary obligations for the well being of a child provide a basis for the attorney’s consideration of the child’s best interests consistent with traditional advocacy and client loyalty principles.
64
What falls under the topic of BOA 6.0?
6.0 CHILDREN
65
What is BOA 6.1?
6.1 An attorney representing a parent should consider the welfare of, and seek to minimize the adverse impact of the divorce on, the minor children
66
What is BOA 6.2?
6.2 Attorney should not permit client to contest child custody for either financial leverage or vindictiveness
67
What is BOA 6.3?
6.3 When issues in representation affect the welfare of a minor child, an attorney should not initiate communication with the child, except in the presence of the child’s lawyer or GAL, with court permission or as necessary to verify facts in motions and pleadings.
68
What is BOA 6.4?
6.4 An attorney should not bring a child to court or call a child as a witness without full discussion with the client and a reasonable belief that it is in the BIC.
69
What is BOA 6.5?
6.5 An attorney should disclose information relating to a client or former client to the extent the lawyer reasonably believes necessary to prevent substantial physical or sexual abuse of a child
70
What is BOA 6.6?
6.6 An attorney should not make or assist a client in making an allegation of child abuse unless there is a reasonable basis and evidence to believe it is true
71
What falls under BOA 7.0?
7.0 - PROFESSIONAL COOPERATION AND THE ADMINISTRATION OF JUSTICE
72
What is BOA 7.1?
7.1 An attorney should strive to lower the emotional level of marital disputes by treating counsel and the parties with respect.
73
What is BOA 7.2?
7.2 An attorney should stipulate to undisputed relevant matters, unless inconsistent with the client’s legitimate interests
74
What is BOA 7.3?
7.3 An attorney should not deceive or intentionally mislead other counsel.
Although an attorney must maintain client’s confidences, the duty of confidentiality does not require the attorney to deceive or permit the client to deceive other counsel (i.e. attorney knows client had an affair and OC asks attorney if reconciliation is possible or if client is seeing someone else; its improper to suggest client has not had an affair as well as to tell OC lurid details on condition that not be disclosed; attorney should indicate unwillingness or inability to answer that question).
75
What is BOA 7.4?
7.4 An attorney should neither overstate the authority to settle nor represent that the attorney has authority that the client has not granted.
76
What is BOA 7.5?
7.5 An attorney should not induce or rely on a mistake by counsel as to agreed upon matters to obtain an unfair benefit for the client.
77
What is BOA 7.6?
7.6 An attorney who receives materials that appear to be confidential should refrain from reviewing the materials and return them to sender, as soon as it becomes clear they were inadvertently sent to the receiving lawyer
78
What is BOA 7.7?
7.7 An attorney may use materials intentionally sent from an unknown or unauthorized source unless the materials appear to be confidential.
Confidential materials should be deposited with the court and a ruling sought if the materials are the subject of a property discovery request but were improperly withheld to seek a ruling as to their proper disposition.
79
What is BOA 7.8?
7.8 An attorney should cooperate in the exchange of information and documents. BOA recommends adoption of MD in all states
80
What is BOA 7.9?
7.9 An attorney should grant to other counsel reasonable extensions of time that will not have a material adverse effect on the legitimate interests of the client.
81
What is BOA 7.10?
7.10 An attorney should clear times with opposing counsel and cooperate in scheduling hearings and depositions.
82
What is BOA 7.11?
7.11 An attorney should provide notice of cancellation of depositions and hearings at the earliest possible time
83
What is BOA 7.12?
7.12 An attorney should submit proposed orders promptly to opposing counsel before submitting to the court
84
What is BOA 7.13?
7.13 An attorney should not seek an ex parte order without prior notice to other counsel except in exigent circumstances.
Although local rules may allow ex parte proceedings, notice to other counsel usually will not be able to prevent appropriate relief from issuing.
85
What is BOA 7.14?
7.14 An attorney should not attempt to gain advantage by delay in the service of filed pleadings or correspondence upon other counsel.
86
What falls under BOA 8.0?
8.0 - MEDIATOR
87
What is BOA 8.1?
8.1: An attorney should act as a mediator only if competent to do so. Mediation involves skills that like advocacy, require study and training
88
What is BOA 8.2?
8.2 An attorney acting as a mediator in a marital dispute should remain impartial.
89
What is BOA 8.4?
8.4 An attorney acting as a mediator in a marital dispute should only give advice that will enable the parties to make reasonably informed decisions.
90
Is it permissible under BOA for a mediator to provide advice ?
Yes, but only under the following guidelines:
(a) tell participants they are free to reject it;
(b) evaluations of a predictive nature generally should be resorted to only after other more facilitative measures have failed to break an impasse;
(c) the mediator should offer other suggestions if possible in the guise of questions rather than definitive statements;
(d) provide a writing at the outset that indicates I am not acting as a lawyer for either of you, you should obtain independent advice before signing any agreement, I cannot act as a lawyer for either of you.
91
What falls under the the topic BOA 9.0?
9.0 - ARBITRATOR
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What is BOA 9.1?
9.1 An attorney should act as an arbitrator only if competent to do so. You should not do so without training.
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What is BOA 9.2?
9.2 An attorney acting as an arbitrator should comply with all relevant rules applicable to judges, including the Code of Judicial Conduct.
Disclosure of any prior relationships, social or professional, will increase the confidence of the participants in the objectivity of the arbitrator.
94
Do arbitrator have immunity protections?
Yes - bc they act in a quasi-judicial role
