Everything Flashcards
(65 cards)
1
Q
Can be disciplined where
A
- You are licensed and
- A place where you provided legal service even if you aren’t licensed there
2
Q
to maintain competence lawyer must
A
- make sure they have they have adequate competence and can get there through reasonable preparation
- keep abreast of changes in profession and technology
- CLE
3
Q
Bar Admissions Requirements
A
- can’t knowingly make false statements
- can’t fail to correct a misunderstanding
4
Q
Ineffective Assistance of Council 6th amendment must show
A
A reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have been different
5
Q
Two pronged test for Ineffective Assistance of Council
A
- Counsel’s performance was deficient and
- D was prejudiced by it
6
Q
Benchmark for Ineffective Assistance of Council
A
Whether counsel’s conduct so undermined the proper functioning of the adversary process that the trial cannot be relied on as having produced a just result
7
Q
Accidental client must have a
A
Reasonable belief you’re their attorney
- can be created by a unilateral contract
- assistance and paralegals can enact attorney client relationship
8
Q
Can’t always withdraw when client is
A
out of money
- must give them notice
9
Q
Client decides
A
- Objective of representation
- Plead or Settle
- Waive jury
- Testify
10
Q
Lawyer consults client on
A
the means of reaching the objective and everything else
11
Q
Impaired Client
A
maintain a normal relationship as much as possible
- can take reasonably necessary proactive steps when reasonably believe client is at risk of substantial harm
12
Q
Attorney Client privilege is established when
A
1) a communication 2) made between privileged persons 3) in confidence 4) for the purpose of obtaining or providing legal assistance for the client
13
Q
Privilege survives until when
A
after death
- can be waived
- doesn’t protect underlying facts
14
Q
When talking to corporations employees
A
warn that you work for the corporation and they get to decide what is privileged
15
Q
Court shall protect (work product)
A
against disclosure of mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning litigation
- disclosure is permitted when there is a substantial need and it can’t be obtained elsewhere without significant hardship
16
Q
Joint clients privilege
A
don’t have privilege if they fire the attorney and both get new ones
17
Q
Exceptions to Privilege
A
- Testamentary exception
- Crime fraud exception
18
Q
Testamentary Exception
A
Implicit waiver when would further the client’s testamentary intent
- wills
19
Q
Crime Fraud Exception Show
A
- Communications were in furtherance of an intended or present illegality and
- there is a connection between what was said and the client’s action
20
Q
Selective Waiver
A
if you produce privileged information for a case you can use selective waiver to say you shouldn’t have to provide it again
- hard to show
21
Q
Altered evidence is
A
not privileged
22
Q
Confidentiality general rule
A
shall not provide information related to the representation of a client unless client gives informed consent
23
Q
Lawyer may reveal confidential information to
A
- prevent reasonably certain death or substantial harm
- prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another that the client used the lawyers information to commit
- prevent, mitigate, or rectify substantial injury to the financial interests or property of another that is reasonably certain to be a result from the client’s commission of a crime or fraud that the client used the lawyers information to commit
- secure legal advice
- establish a claim or defense
- comply with other law or court order
- to detect and resolve conflicts of interest but only if it would not compromise the relationship or otherwise privileged info
24
Q
Types of Personal Interest Conflicts
A
- Business
- Gifts
- Literary or media rights
- Financial Assistance
- Compensation from not the client
- Aggregate settlement or agreements between multiple clients
25
To do business must
- Fair and reasonable terms that are disclosed in writing that can be reasonably understood
- Advised in writing that they should get another lawyer for that transaction
- Client provides informed consent in writing saying they understand you aren’t their lawyer in that business transaction
- Unless it’s their trade
26
Gift requirements
cannot solicit a substantial gift to yourself or family
- unless person getting gift is related to the client
27
Financial assistance that is allowed
- Advancing court costs
- gifts for food, rent, transportation, medicine, and other basic living expenses for indigent clients
28
Can get compensation from someone other than client if
- Client give informed consent
- no interference with the lawyer's independence of judgement or with client-lawyer relationship
29
Cannot
- limit the ability to sue for malpractice unless client is independently represented
- settle with unrepresented people or former clients unless they are told in writing that they should get a lawyer
- acquire proprietary interest in the cause of action or subject matter
- have sex with clients unless you already were
30
What can be screened out
- Personal interest conflicts
- Former client at former firm conflicts
- Prospective client conflicts
31
Imputation to firm when conflicted lawyer is still there
Those in firm cannot represent a client where anyone in the firm would not be able to represent them due to directly adverse with another client, risk that representation would materially limit the lawyer, or someone in the same or substantially related matter as a former client
- unless waiver
32
Imputation to firm when conflicted lawyer has left
Can represent people with materially adverse interests to someone formerly represented by the person who left the firm and is not currently represented by the firm
- Unless it is the same or substantially related matter as the client of the person who left and anyone at the firm has protected information that is material to the matter
33
Lawyer who has left a firm client conflicts
Can’t represent someone in the same or substantially related matter as someone who was represented by the former firm where the former firm had represented someone whose interests are materially adverse to that person and the lawyer had protected information
- unless waiver
34
Hot Potato Rule
Can't chose to drop a client because you want to go with a richer or better client
35
Fee must be
reasonable
36
Factors considered for reasonableness of fee
- The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly
- The likelihood that the acceptance of the particular employment will preclude other employment `
- The fee customarily charged in the locality for similar legal services
- The amount involved and results obtained
- The time limitations imposed by the client or by the circumstances
- The nature and length of the professional relationship with the client
- The experience, reputation, and ability of the lawyer or lawyers.
- Whether the fee is fixed or contingent
37
Scope of representation and basis for rate should be
in writing
38
Contingent fee should be
in writing signed by client and states the method determining the fee
39
no contingent fees for
- divorce
- criminal cases
40
Retainer
Fee paid, apart from compensation, to ensure the lawyer will be available for the client
41
Special Retainer
Advanced payment of fees
- put in a trust account and take out what you have earned and return the rest
42
Don't do what with money
co-mingle
- take out what you have earned
- if conflict take out what is agreed and leave what is in dispute
43
IOLTA
Interest on Lawyer's trust accounts
- goes to legal aid unless it is substantial
44
Can't lie to the court even by
omission
45
Have to try and talk client (client perjury)
out of lying on the stand
46
To withhold in criminal cases lawyer must
Know client is going to lie
47
To withhold in civil cases the lawyer must
reasonably believe client is going to lie
48
after the client lies must take
reasonable remedial measures
49
Perjury Trilemma
- Learn everything possible about the client’s case
- Keep confidential except to advance client’s interests
- Reveal confidential info to the court
- if doing so should become necessary to expose what the lawyer knows to be perjurious testimony by the client
50
Strangers with Lawyers
Cannot speak to them without their lawyers present or without their lawyer's consent
51
Don't speak with anyone represented
about the subject of representation
unless
- consent of the other lawyer
- authorized by law or court order
52
Unrepresented Stangers
Ok to talk to them
- clarify your role if they misunderstand
- Don't state or imply you are disinterested or give legal advice if their interests conflict
53
When not representing a client can't
engage in dishonest, deceit, or fraud (not necessarily a crime)
54
Must report another lawyer when
- You actually know an ethical violation occurred or
- a reasonable lawyer would firmly believe that it is more likely than not that an ethical violation occurred
55
Must report a judge when
You know that they committed a violation of the rules that raises a substantial question as to their fitness for office
56
Don't have to report
- yourself
- anything as part of an approved lawyers assistance program
57
Duties if you are a partner or have managerial authority
must make sure everyone is complying with the rules
58
Subordinate lawyers are
bound by the rules even if you act at the direction of someone else
- unless you act in accordance with a supervisor's reasonable accordance with an actual question about what is right
59
Non-lawyers must
follow the rules of professional conduct or you lose your license
60
Prospective client is someone who
consults with a lawyer about the possibility of forming a client-lawyer relationship
61
Duties to Prospective clients
- even when no client-lawyer relationship ensures if you have learned information you shall not use or reveal it
- shall not represent a client with interests materially adverse to those of a prospective client in the same or substantially related matter if they received some information that could be significantly harmful to that person in the matter
- no lawyer in the firm may knowingly undertake or continue representation in such a matter
62
When disqualifying information from a prospective client is received representation is permissable if
- both the affected client and prospective client have given informed consent in writing
- the lawyer who received the information took reasonable measures to avoid learning more disqualifying information and
- the disqualifying lawyer is timely screened out
- written notice is given to the prospective client
63
Cannot represent a concurrent client if
- representation would be directly adverse to that of another client
- there is significant risk that the representation of the clients will be materially limited by the lawyer's responsibility to other clients/former clients
64
Lawyer's duties to their own former clients
Cannot represent another person in the same or substantially related matter in which that person's interest are materially adverse to the interests of the former client unless the former client gives informed consent in writing
65
A lawyer's duty to their prior firm's former client
Cannot knowingly represent a person in the same or substantially related matter who interests are materially adverse and the lawyer has acquired protected information
