Flashcards in Ethics Deck (61):
What are the two types of conflicts of interest for lawyers?
(1) Client vs. client
(2) Lawyer vs. client
What are the three steps to answering a Conflicts of Interest question?
(1) Who is a client here?
(2) Is this a former or current conflict?
(3) How do we resolve this conflict?
Who is a client?
A person/entity seeking legal service from a lawyer.
What is a current client and what is a former client, and what is the test for distinguishing?
(1) Current = ongoing representation
(2) Former = the matter is completed (probably paid)
(3) TEST =
the client's reasonable expectation
How do you know if a lawyer would have a conflict by accepting a new current client?
If accepting the client would violate either of the lawyer's TWO duties owed to current clients, then there is a conflict of interest.
What are the TWO duties that a lawyer owes a current client?
(1) Duty of confidentiality: maintain confidences/secrets of clients
(2) Duty of loyalty: duty to act in general best interest for client
Clear statement regarding lawyer's conflict of interest duties:
Thus, if taking on the new client could require the lawyer to either potentially reveal current client's confidences or to act against the interests of a current client, then the lawyer cannot do it.
A gives L, lawyer, a retainer for legal services. B comes to L asking for representation suing A. What steps does L need to take to analyze whether this is a conflict of interest? (6)
(1) Who is L's client? A
(2) Is A a current or former client? Current
(3) Did or would L have learned confidential information about A that L might be required to reveal in representing B?
(4) Would L be required to contend for or reveal on behalf of B, what he has a duty to oppose on behalf of A?
(5) In other words, are the two matters substantially related?
(6) Is suing A disloyal? Yes! Even if there is no confidentiality problem because the matters of representation are not substantially related.
What duties are owed to a former client?
Duty of confidentiality.
What is the ultimate test for a conflict regarding the duty of confidentiality?
Are the two matters substantially related?
What duties can be consented to violation by clients?
Former clients: can consent to violation of duty of confidentiality
Current clients: can consent to violation of duty of loyalty
What is required for proper consent regarding duties owed to clients?
BOTH clients must consent after FULL DISCLOSURE.
What is required for a client to consent to a violation of a lawyer's duty?
(1) Who the clients are and lawyer's role for each client
(2) Discuss risks of adverse use of confidences and secrets
(3) Discuss risks to lawyer's zeal
(4) Recommend independent counsel.
If lawyer switches firms, may he or his new firm represent clients that have a conflict with one of lawyer's clients from prior firm?
Lawyer cannot represent client in suing his client from prior firm.
His new firm can only represent the client if lawyer is SCREENED from the matter entirely.
What are the procedures for a lawyer to be screened from an otherwise conflicting matter?
(1) Lawyer must serve affidavit on former firm stating that he will not participate/discuss matter w/ members of new firm (2) written notice of screen to former client
(3) Member of lawyer's new firm must serve affidavit to former firm stating:
-(a) awareness of conflict, AND
-(b) procedures for effective screening
What if a lawyer and client have differing interests in a business transaction?
If client expects lawyer to use professional judgment in the transaction for the protection of the client,
then lawyer may not accept the representation if the lawyer's judgment will be affected by the lawyer's
business, financial, property, or personal interests
Is there any way that a lawyer may continue to represent a client if there is a lawyer-client conflict of interest? (4 requirements)
(1) The terms of transaction are fair and reasonable to the client,
(2) the terms are fully disclosed and transmitted to the client in a manner that is reasonably understood,
(3) The client is advised in writing and given an opportunity to seek independent counsel, and
(4) the client gives consent in writing, both to the essential terms of the transaction, AND the lawyer's role in the transaction
What is the rule for lawyers receiving gifts from clients?
(1) Lawyer may not solicit any substantial gifts from client, and
(2) lawyer can't prepare an instrument giving lawyer or his/her relative a substantial gift UNLESS lawyer is related to client.
What are the rules regarding lawyer and literary or media rights?
During representation, a lawyer shall not make an agreement giving the lawyer literary or media rights to an account based on the representation.
Can a third party pay the client's legal fees?
(1) client provides informed consent (full disclosure)
(2) there is no specific interference with the professional relationship, and
(3) confidential information is still protected
Can a lawyer acquire an interest in the cause of action or subject matter of the litigation?
NO, lawyer may not acquire a proprietary interest in the cause of action or subject matter of litigation EXCEPT:
(1) a lien to secure the lawyer's fees, or
(2) reasonable contingency fee
Can a lawyer testify on behalf of his client?
(1) Generally no, can't be advocate and witness.
-(a) uncontested matter
-(b) nature and value of legal services
-(c) disqualification would cause substantial hardship
-(d) Lawyer is pro se party
-(e) Another member of the firm is the witness
Can a lawyer testify if he isn't doing so at his client's request?
(1) after undertaking employment
(2) in contemplated or pending litigation
(3) lawyer or member of his firm
(4) learns or it is obvious
(5) that the lawyer/firm member may be called as a witness other than on behalf of client,
lawyer may continue in representation until it is apparent that the lawyer's testimony is/may be prejudicial to the client.
Is it ethical for a lawyer to have sex with his clients?
Current: only if the sex started prior to representation
What types of things does an attorney's duty to maintain confidences apply to?
All information relating to the representation of a client.
(1) All info that would be privileged if it were being analyzed under rules of evidence
(2) Secrets: all other info learned during representation that the client has asked to be in confidence, would be bad for client, or would be detrimental to client.
Are documents covered by the ethical duty of confidentiality?
If created before A-C relationship, probably not.
If created during A-C relationship, probably yes if created FOR attorney
What are the rules regarding confidentiality and clients committing crimes?
(1) Client's past crimes: can't reveal, but must urge client to rectify
(2) Client asking for advice on crimes: no confidentiality
(3) Client tells of intent to commit a crime: lawyer MAY tell, but isn't required to
If an attorney chooses to reveal a client's intent to commit a crime, what information may be revealed?
Only enough to:
(1) evidence client's intention, and
(2) prevent client from committing the crime.
What if the client reveals intention to substantially harm or kill someone?
Lawyer may reveal to prevent, regardless of whether the conduct might constitute a crime.
What if a lawyer comes in contact with a child that he has reasonable cause to believe is being abused?
(1) Report immediately to law enforcement or Child services
information was learned during representation where disclosure would be detrimental to client.
What are the seven principles for lawyer trust accounts (LTAs)?
(1) If $ belongs to client, give it back.
(2) If client wants attorney to hold $, put it in LTA
(3) If client wants attorney to hold property, guard it properly
(4) If $ belongs to lawyer, get it OUT of the LTA
(5) If ownership of $ is disputed, leave in LTA and mark "disputed"
(6) Notify client promptly of ANY ACTION regarding her $
(7) Only a small amount of attorney's $ can be in LTA, just to cover bank fees
What is the one instance where fees paid in advance of service can be deposited into lawyer's personal account?
If there is a CLEAR WRITTEN AGREEMENT that fees paid in advance constitute a NON-REFUNDABLE retainer that is earned immediately upon receipt.
What is the rule regarding dishonesty by lawyers?
Oregon prohibits a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation that reflects adversely on the lawyer's fitness to practice law.
*This may be stacked on top of any other violations*
What are five examples of lawyer dishonesty that are common bar exam?
(1) False advertising
(2) Lying to other side about status of a motion
(3) Misleading the court
(4) Lying to client about how far along work is (even if it is done before official deadlines anyway)
(5) Not correcting obvious settlement mistakes by the other side
What is the ONE exception to the lawyer dishonesty rule?
Lawyer may advise clients/others about lawful covert activity IF:
lawyer in good faith believes that there is a reasonable possibility that unlawful activity has, is, or will take place.
What does a lawyer have to do if he becomes aware that his client intends to lie on the witness stand?
(1) Try to dissuade client from lying,
(2) If client can't be dissuaded, must withdraw
(3) If in the middle of litigation, just seek leave of court to withdraw
***Keep in mind, perjury is a crime, and lawyer may reveal client's intention to commit future crime.***
What if lawyer is aware that client intends to lie on the witness stand, but the lawyer continues and client DOES lie on the witness stand?
Lawyer has violated:
(1) rule against knowingly using perjured testimony,
(2) rule against participating in creation of false evidence,
(3) Rule against assisting client w/ illegal or fraudulent conduct
(4) dishonesty rule, and
(5) Rule against engaging in conduct prejudicial to the administration of justice.
If the lawyer knows that client intends to lie on witness stand, but is afraid about violating his duty of confidentiality, what should he do?
Perjury is a crime, and no duty of confidentiality for client's intent to commit future crimes.
Lawyer may reveal.
What if the lawyer, client, or witness has offered evidence that the lawyer LATER finds out is false?
Lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.
What is the general rule regarding Attorney Advertising, and what are some examples?
No false/misleading advertising.
(1) claim about expected results
(2) ads that compare skills
(3) Dramatizations must be disclosed
(4) Can't imply an improper
What is the rule regarding an Attorney's direct contact with prospective clients?
(In-person, telephone, text message)
Lawyer may not solicit professional employment from a prospective client if a significant motive is the lawyer's pecuniary interest.
(1) other lawyers
(3) close friends
(4) current clients
(5) former clients
What is a great way to distinguish current clients from former clients?
What limits are there on Attorney's written solicitation of prospective clients? (even apply to excepted parties under the solicitation rule)
Lawyer may not solicit AT ALL, when:
(1) prospective client's physical, emotional, or mental state can't exercise reasonable judgment about employing lawyer
(2) prospective client has made known to the lawyer a desire not to be contacted
(3) solicitation that involves coercion, duress, or harassment
Can a lawyer send a written, recorded, or electronic communication to someone who the lawyer knows is in need of a particular service?
(1) envelope, and beginning, and ending of letter must say ADVERTISEMENT in noticeable and clearly readable writing
Prospective client falls into one of the excepted categories
May a lawyer pay others to find clients for them?
(1) Finder is a lawyer
(2) client consents w/ full disclosure, and
(3) the total fee does not exceed reasonable compensation for all legal services that were rendered to the client
What are the limits on attorney's fees?
Fee may not be "clearly excessive":
= lawyer of ordinary prudence is left with a definite and firm conviction that the fee is excessive
What are the factors for determining whether an attorney's fees were reasonable?
(1) Time spent
(2) Labor of lawyer
(3) skill of lawyer
(4) difficulty of the matter
(5) preclusion of other employment that is known, and
(6) custom in the area
What are the rules regarding contingency fees?
(1) Must be plain language in writing, w/ right of recission for 24 hours
(2) NO CONTINGENCY FEES FOR:
-(a) criminal cases, and
-(b) domestic relationship settlements (alimony, custody, divorce)
What are the rules regarding contacting the opposing party?
If lawyer knows (actual knowledge) opposing party is represented by counsel, can't communicate with the other party about case unless opposing counsel has granted permission or the lawyer is otherwise authorized by law.
Can a lawyer threaten the other side with criminal charges to obtain an advantage in a civil case?
(1) lawyer reasonably believes the charge to be true, AND
(2) the lawyer's PURPOSE in making the threat is to compel or induce the person threatened to take reasonable action to make good on the wrong that is the subject of the charge.
What duties do lawyers have with respect to trial witnesses?
(1) No compensation for testimony (contrast from paying expert for TIME), and
(2) No advising witnesses to hide or flee to avoid testifying
What are the rules regarding lawyers and trial publicity?
Lawyer shall not make extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication IF:
lawyer knows or should know that statement will have substantial likelihood of materially prejudicing the jury
What are the two ways that a licensed attorney may violate the prohibition on unauthorized practice of law?
(1) Practice in a jurisdiction in which lawyer is NOT licensed, OR
(2) assist another who is not a member of the bar w/ practicing law (failure to supervise)
May the lawyer be in a partnership with nonlawyers?
Not if any of the partnership activities include or constitute the practice of law.
What mitigation is there for subordinate lawyers who are uncertain about an ethical duty?
Subordinate lawyer does not violate the Rules of Professional Conduct IF:
(1) he acts in accordance w/ a supervising lawyer's
(2) reasonable resolution of an arguable question of professional duty.
When is a supervising attorney responsible for another lawyer's unethical conduct?
Supervising lawyer responsible if they:
ORDER OR RATIFY the conduct involved, or if the supervisory lawyer is a partner in the firm or has direct supervisory authority over the lawyer, and the lawyer knows of the unethical conduct and fails to take reasonable remedial action.
What are the three general duties owed to clients?
(2) Diligence (can't neglect the matter)
(3) Communication - keep client reasonably informed about case and not neglect requests for information
What two special duties do Prosecutors bear?
(1) Duty to refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause, and
(2) Duty to timely disclose to the defense all mitigating or negating information known to the prosecutor that tends to help the defense. (including mitigating circumstances during sentencing)
What are the four key principles of terminating representation of a client?
(1) Give reasonable notice of termination
(2) Give time for substitution of counsel if necessary
(3) Surrender to client all papers/property that belongs to client
(4) RETURN UNEARNED FEES
What are the three reasons that a lawyer MUST withdraw from representation?
(1) Representation would violate ethical rule,
(2) lawyer's physical/mental condition materially impairs representation, and
(3) if lawyer is fired!