Flashcards in Fun Stuff Deck (16)
What is the Character and Fitness Exam used for?
1) To protect clients;
2) To protect the public from bad lawyer, and protect the court from lying lawyers;
3) Protect the public image of lawyers in the eyes of the public.
What is one of the worst offenses in the eyes of the Bar Examiners?
The misuse of money is one of the harshest punished offenses a lawyer can commit.
How far back can the Character and Fitness Board go back into a candidates history?
There is no statute of limitations. They go back forever if they want to.
What is does Rule 8.1: Bar Admission and Disciplinary Matters state?
(1) An applicant for bar admission, or a lawyer with bar admission application or disciplinary matter, shall not:
(a) Knowingly make a false statement of material fact; or
(b) Fail to disclose a fact necessary to correct a misapprehension; or
(c) Fail to respond to an admission or disciplinary body’s demand for information.
What are the top 3 functions of lawyer discipline?
1) Cleansing Function – Identify and remove from the profession all seriously deviant members
2) Deterrence Function – To deter normative deviance and maximize compliance with norms among lawyers.
3) The Public Image Function – Maintain a level of response to deviance sufficient to forestall public dissatisfaction.
What is "neglect of duty" by a lawyer?
Neglect involves indifference and a consistent failure to carry out the obligations which the lawyer has assumed to his client or a conscious disregard for the responsibility owed to the client. Neglect usually involves more than a single act/omission. Neglect cannot be found if the acts or omissions complained of were inadvertent or the result of an error of judgement made in good faith.
What does Rule 8.4: Misconduct state?
(a) It is professional misconduct for a lawyer to:
(1) Violate or attempt to violate the Rule of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.
(2) Commit a criminal act that reflects adversely on the lawyers’ honest, trustworthiness, or fitness as a lawyer in other respects.
(3) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
(4) Engage in conduct that is prejudicial to the administration of justice.
(b) Commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in respects
(c) – Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
(d) – Engage in conduct that is prejudicial to the administration of justice.
Under Rule 8.4(b) [Misconduct]: "Commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in respects," does a lawyer have to be criminally convicted to violate the rule?
In almost every state, a lawyer does not need to be criminally charged with an action for it to be a criminal act. But Illinois is one of the few where you must be convicted to fall under (b).
What does Rule 8.3: Reporting Professional Misconduct state?
(a) A lawyer who knows that another lawyer has committed a violation of 8.4(b) or (c) shall inform the appropriate professional authority.
(c) The rule does not require disclosure of information: (1) protected by the attorney-client privilege; or (2) information gained by a lawyer or judge while participating in an approved lawyers’ assistance program.
What were Himmel's defenses when he did not report another attorney for violating the rules, and why didn't they work?
1) Confidential Communication under attorney-client privilege
Defense 1) Because of the presence of the mother and fiancé, that broke privilege.
2) Client told him not too.
Defense 2) Court rejected this because this rules cannot be waived by the client.
3) The client had already complained to the ARDC about the first attorney, so Himmel did not need to report it because it had already been reported.
Defense 3) The rules do not say that if it has already been reported then it cannot be reported again.
What does Rule 8.5(b): Disciplinary Authority; Choice of Law state?
(b) In a disciplinary matter in Illinois, the rules of professional conduct to be applied should be as follows:
(a) For conduct in connection with a matter pending before a tribunal, the rules of the state where the tribunal sits…; and
(b) For any other conduct, the rules of the jurisdiction in which the lawyer’s conduct occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction shall be applied to the conduct.
What are the Elements of a Civil Legal Malpractice Case?
1) There must be a duty established by an attorney-client relationship.
2) Breach of Duty
3) Causation/ Proximate cause of damages.
What is the general rule and the exceptions to that rule for duty in an attorney-client relationship?
General Rule: Only the client can sue the lawyer, not anyone else.
(a) Prospective Client
(b) Third-party Beneficiaries
(c) Greycas v. Proud
(d) Insurance Companies
How does someone usually prove a lawyer breached their duty to a client?
Using expert witnesses.
What are the elements to a criminal legal malpractice claim?
1. There must be a duty established by an attorney-client relationship.
2. Breach of Duty
3. Causation/ Proximate cause of damages
4. Client must prove his actual innocence of the crime. Not the jury would have found him not guilty, but that he actually did not commit the crime.