GA Essays – Professional Ethics Flashcards

Question

When is a statement made by a GA lawyer (in an advertisement) misleading? | Ethical Issues in Client Development

Answer 1

A lawyer **cannot make false or misleading** statements about the lawyer or the services. The GA rules specifically provide that a statement is misleading if it: * (1) contains a **material misrepresentation** of fact or law or **omits** a fact necessary to make the statement considered as a whole not materially misleading; * (2) is likely to create an **unjustified expectation about the results** the lawyer can achieve; * (3) compares the lawyer's services with other lawyer's services **unless the comparison can be factually substantiated** * (4) Fails to include the **name of at least *one* lawyer responsible for its content**; * (5) Contains any information regarding **contingent fees without a conspicuous disclaimer** that they are not always permitted and that court costs and other expenses of legal action usually must be paid by the client; OR * (6) contains the language "no fee unless you win or collect" or any similar phrase without an explanatory **disclaimer**.

Answer 2

A lawyer can say that his or her practice is limited to a particular field, and can hold himself or herself out as a specialist through experience, specialized training or education, or certification by a **recognized and bonafide** professional entity.

Answer 3

An advertisement must include: * **N**ame, **A**ddress, and **P**hone number of each lawyer or firm paying for the ad; * That lawyer will **R**efer the matter to other attorneys (if applicable); * Use of any **N**on-lawyer spokesperson, portrayl of lawyer or client by an **A**ctor; or **P**aid testimonial or endorsement; * **L**abel of "Advertisement" if it resembles a pleading, notice, or other legal document | Think **NAP-R**; **NAP-L**

Answer 4

A GA lawyer must retain a copy of all advertisements for **2 years** from the date of the **last dissemination**.

Answer 5

**Misleading**

Answer 6

A trade name is allowed so long as it: * (1) does **not** imply a **connection with a government agency** or a public or charitable legal services organization; * (2) includes the name of **at least *one* lawyer practicing** under the firm name; and * (3) otherwise **complies with the rules regarding lawyer advertising**.

Answer 7

The name of a lawyer holding **public office** shall **not be used** in the name of the firm during **any substantial period in which that lawyer is *not* actively participating in the firm**.

Answer 8

A lawyer **cannot solicit** professional employment through **direct personal contact or live telephone** contact with any **nonlawyer**.

Answer 9

Written communications to prospective clients unless: * The lawyer **knows the person does not want to receive communications**; * Communication involves **coercion, duress, fraud, overreaching, harassment, intimidation, or undue influence** * Communication relates to **personal injury or wrongful death** actions (or otherwise relates to an accident or disaster involving the recipient or a relative) **within 30 days of the occurrence**; * The lawyer **knows or should know** that the recipient's physical, emotional, or mental state is such that he or she cannot exercise **reasonale judgment** in hiring a lawyer. * Any written communication to a prospectice client **who is not a close friend, a relative, or a former client**, must **be marked "Advertisement"** if it is for the purpose of obtaining professional employment.

Answer 10

A lawyer's fee must be **reasonable**. Factors to consider include: * **P**reclusion from other employment * **E**xpertise * **T**ime and labor * **C**ustomary fee in the community * **A**mount sought * **R**esults obtained * **D**ifficulty of the case * **S**kill that is required | Think "**PET CARDS**"

Answer 11

Contingent fee arrangements are not allowed in: 1. **Domestic Relations** cases in which the fee is **contingent** on obtaining a **divorce** OR on **recovering an amount of support** (e.g., spousal, alimony) 2. The representation of a **defendant** in a **criminal case**.

Answer 12

Contingent fee arrangements must be * (1) **in writing** and * (2) must **include explanation of the basis for computing the fee**, whether and which costs will be deducted from the recovery, and whether such costs will be deducted **before or after** computation of the contingent fee. The lawyer must also furnish a **written statement** explaining the outcomeof the matter; * if there is a recovery, the statement must explain the **amount payable** to the client and how it was computated.

Answer 13

Lawyers in the same firm may share fees freely.

Answer 14

When lawyers from **different firms** share fees, there are three requirements: * (1) Either the **proposed fee split is proportionate to the services rendered by each lawyer** or (with client consent) the lawyers assumed **joint responsibility** for the matter * (2) The client is advised of the proposed fee split and **does not object**; and * the total fee charged must be **reasonable**

Answer 15

Referral fees are **not allowed**, except a lawyer **can pay charges fom a bar-operated lawyer referral service**.

Answer 16

**Retainers** belong to the client and must be placed in a **client trust account** that is **separate from all other monies and either pays interest *to the client* or is structures as an IOLTA** (interest on lawyer trust account) operated by state courts or state bar.

Answer 17

* No funds belonging to a lawyer can be placed in a client trust account except **amounts used to pay bank charges**. * A lawyer must withdraw funds from an account once they **undisputabely** belong to the lawyer; otherwise, disputed funds must remain in the account until resolution.

Answer 18

Regardless of whether termination is voluntary or required, a lawyer has a duty to **mitigate any adverse impact** on a client.

Answer 19

A GA lawyer **must** withdraw from representing a client when: * (1) **V**iolation of the GA rules would result from the representation; * (2) **A**ttorney's health **materially impairs** the attorney's ability to represent; * (3) **C**lient discharged the lawyer, *unless ordered by the court to continue representation* | Think: "VAC"

Answer 20

A GA lawyer **may** withdraw from representing a client when: * (1) **C**riminal or fraudulent course of action insisted on by the client; * (2) **R**epugnant or imprudent course of action insisted on by the client; * (3) **O**ther good cause exists; * (4) **U**nreasonable burden to the lawyer (financial or difficulty) * (5) **C**lient fails to perform an obligation despite reasonable warning from the lawyer * (6) **H**armless to client; * (7) **S**ervices used by client to perpretrate crime or fraud | Think: "CROUCH-S"

Answer 21

1. **P**ermission from a court 2. **O**pportunity to obtain new counsel 3. **R**eturn client property, papers, and fees 4. **N**otice of withdrawal (mandatory or permissive) to the client | Think: PORN

Answer 22

In the lawyer-client relationship, decisions made by the client include: * (1) the **scope of the representation** * (2) **whether to settle** a matter * (3) In a criminal case, whether to testify, whether to demand/waive the right to a jury trial, and whether to enter a plea. | *Client controls the objectives of representation*

Answer 23

In the lawyer-client relationship, the lawyer decides the *means* of the representation, which includes: * (1) the **strategy and tactics** for achieving objectivies; but, * (2) the lawyer must **reasonably consult** with the client about choices

Answer 24

To the extent possible, a lawyer must maintain an **ordinary** attorney-client relationship with a client with diminished capacity. The lawyer ***may*** take *reasonably necessary protective action* IF the client: * Has diminished capacity; * Is at risk of substantial physical, financial, or other harm; and * Cannot adequately act in his/her best interest A lawyer taking action is **impliedly authorized** to reveal information about the client, but only as needed to protect the client's interest.

Answer 25

Whether a lawyer is competent in a matter depends on many factors, including: * (1) **N**ature of the matter; * (2) **E**xperience of the lawyer; * (3) **T**raining in the particular field; and * (4) **S**tudy the lawyer can devote to the matter. | Think: "NETS"

Answer 26

A lawyer who **lacks competence in a matter** has three options; the lawyer can: * (1) **B**ecome competent without unreasonable delay; * (2) **A**ssociate with competent counsel; or * (3) **D**ecline the representation | Think: "BAD"

Answer 27

A lawyer must act with **reasonable diligence** and **promptess** in representing a client.

Answer 28

Diligence is: * (1) Being committed to the client's cause despite a personal inconvenience; BUT a diligent lawyer **need not** press for every possible advantage, and should **not employ offensive** tactics on behalf of a client. * (2) Lawyer must control her workload to be sure all matters are handled competently.

Answer 29

Acting with promptness means acting **without unreasonable delay** during the representation.

Answer 30

Lawyers are obligated to keep clients informed of a matter's **status** *and* to **respond to reasonable requests** for information.

Answer 31

Settlement offers must be communicated **promptly** to the client, *unless* the lawyer and client have discussed and agreed otherwise.

Answer 32

1. Is there a Conflict? 2. Is the Conflict Consentable? 3. Has the Client received notice? 4. Has the Client Consented? Shortened: **C**onflict? **C**onsentable? **C**lient received notice? **C**onsent?

Answer 33

A conflict occurs in two ways: when there is * (1) **Direct Adversity**, meaning working for one client will directly hurt the personal or pecuniary interests of another client; or * (2) **Material Limitation**, meaning there is a significant risk that representation will be limited by a duty owed to another

Answer 34

Client consent to a conflic tof interest is **permissble**, UNLESS the representation: * (1) is **forbidden by law** (including the GA rules); * (2) involves the assertion of a claim by **one client against another** in the **same or substantially related proceeding**; or * (3) makes it reasonably unlikely that the lawyer will provide adequate representation to one or both of the affected clients.

Answer 35

A client has been given sufficient notice of a conflict of interest when the client has: * (1) consulted with the lawyer in a manner reasonably sufficient to let the client appreciate the **significance** of the situation; * (2) received **written information** about the material risks and available alternatives; and * (3) been given the opportunity to consult with **independent** counsel ## Footnote If each affected client after this has given informed consent in writing, then the representation may proceed. (step 4)

Answer 36

A lawyer **cannot obtain** a proprietary interest in the subject matyer of the representation, EXCEPT when: * There is an attorney lien/interest granted by law to secure payment of fee; or * It is a part of a permissible contingent fee arrangement.

Answer 37

A lawyer **cannot provide financial assistance to a client in connection** with pending or contemplated litigation, EXCEPT: * A lawyer may **advance** court costs and litigation expenses even if repayment is contingent on the outcome; * A lawyer may pay **court costs and litigation expenses** when the client is **indigent**.

Answer 38

A lawyer **cannot enter into a business transaction** with a client UNLESS there are **three writings**, including: * the **Terms** of the transaction and the lawyer's role must be fair to the client and fully diclosed in writing that can be *reasonably understood* by the client; * **Independent advice** – the client has been **advised in writing** of the desirability of seeking independent counsel (and given a *reasonable opportunity* to do so); * **Informed Consent** – the client gives informed consent in writing signed by the client

Answer 39

A lawyer **may not negotiate** for literary or media rights for an account related to the representation **before the conclusion** of the representation.

Answer 40

1. A lawyer **cannot** draft an instrument that **makes a substantial gift** from the client to the lawyer or a party related to the lawyer ***unless* the donee is related to the client**. 2. A lawyer **may accept** an **unsolicited gift** from a client IF doing so meets general standards of fairness.

Answer 41

A lawyer **cannot use** information learned during the representation to the disadvantage of client **without informed consent** from the client.

Answer 42

A lawyer may accept payment for representation from one who is not the client if: * (1) the client gives **informed consent**; * (2) there is **no interference** with the lawyer's **independent professional judgment** or the **attorney-client** relationship; and * (3) **Confidential Information** is protected.

Answer 43

No. Georgia case law makes clear that a **sexual relationship** between a lawyer and client creates a **conflict of interest**.

Answer 44

A lawyer who previously represented a client in a matter **cannot represent** another person in the same or a substantially related matter when that person's interests are **materially adverse** to the interests of the former client, *UNLESS* the client gives informed consent. ## Footnote * **Same Matter** - means identical subject (same transaction, same lawsuit, same document) * **Substantially related** - means it is reasonable to expect the lawyer learned **confidences** in the prior representation that could be used adversely to the former client in the new representation * **Materially Adverse** - materially adverse if the subsequent use of the former client's confidences would be harmful to the former client's interests.

Answer 45

A lawyer (or a lawyer's present or former law firm) who **formerly represented a client** may not use information relating to the representation to the **disadvantage** of the former client Except when: * (1) the GA rules would allow revelation of the confidences; or (2) when the information has become **generally known**. Also, a lawyer (or a lawyer's present or former law firm) who **formerly represented a client** may not **reveal** information relating to the representation, * except when the Rules woild allow revelation of the confidences.

Answer 46

A lawyer whose former law firm previously represented *a client* in a matter *cannot represent another person* in the **same or substantially related matter** when that person's interests are **materially adverse** to the interests of the former client IF: * the lawyer acquired **material confidential information** about that former client, *UNLESS* * the former client gives *informed written consent*

Answer 47

A lawyer's **old law firm** *may* represent a person with interests **materially adverse** to those of a client represented by a lawyer **formerly associated with the firm but not currently represented by the old firm**. EXCEPT: * When the matter is the same or substantially related to that in which the **formerly associated lawyer represented the client**; *AND* * any lawyer remaining in the firm has material confidential information about the matter, then the prior law firm is **disqualified absent informed written consent**.

Answer 48

A lawyer representing an organization owes **duties to the organization** and **not the individual constituents**.

Answer 49

In working with officers, directors, employees, members, owners, and other constituents, the lawyer **must explain** the **identity of the client** when the lawyer **knows or should know that the organization's interests are or may become adverse**.

Answer 50

Upon learning of a course of conduct that is either: * A violation of the organization's legal obligation; or * A violation of the law that can be **imputed** to the organization; *and* * will likely cause **substantial injury to the organization**, The lawyer **must** proceed in the organization's **best interest**. This means, the lawyer should first report **up the chain of command**, and if there is no correction of a clear violation of the law, the lawyer must **disclose to the appropriate external authorities**.

Answer 51

A lawyer may represent **both an organization and its constituents** if there is **no conflict of interest**.

Answer 52

A lawyer's conflict of interest IS **imputed to all lawyers in the same *Law Firm***. A client can waive the **imputed disqualification** if the client gives **informed written consent** after: * (1) **consultation** with the lawyer; * (2) **receiving adequate written information** about the *material risks*; and * (3) having been **given an opportunity to consult with independent counsel**.

Answer 53

Attorney-client privilege applies to (1) **confidential**; (2) **communication between the lawyer and client**, (3) for the **purposes of seeking legal advice**. *Presence of Third Parties?* * Communication in the **presence of (or through) a representative of the client or the lawyer** does not destroy the privilege. | See Exceptions

Answer 54

Attorney-client privilege does not apply to communications between the lawyer and client regarding: * *Future* crime or fraud; * Disputes between the lawyer and client; and * Estate disputes | NOTE, Future Crime (about past crimes doesn't defeat privilege)

Answer 55

A lawyer **may not disclose** information relating to the representation of a client *UNLESS* * (1) the client consents to the disclosure, * (2) the lawyer is **impliedly authorized** * (3) or the disclosure is allowed by the GA rules (see flashcard on exceptions to confidentiality) The duty to keep confidences applies *regardless* of the source of the information. ## Footnote Note for **Prospective Clients**: Even if no attorney-client relationship arises, a lawyer is *generally not permitted* to reveal information learned in consultation with a *prospective client*.

Answer 56

A lawyer does not have to keep confidential information relating to the representation of the client IF: * Informed **C**onsent from the client; * **I**mpied authority to disclose information to carry out representation; * Discussions within a law **F**irm; * To prevent substantial financial loss or harm from ongoing **C**riminal conduct; * To prevent serious **I**jury or death; * To **D**efend the lawyer in a controversy with the client; * To Secure **A**dvice about the lawyer's compliance with the rules; * To comply with other **L**aw or court order. | Think: "Can I Fly Coach In Delta Air Lines?"

Answer 57

* **No** conduct **intended to disrupt** any proceeding of a tribunal; * Refrain from **asbusive or hostile** conduct; * Avoid the improper influence of a **judge, juror, or propsectuve juror** * No advancing a claim or defense that is **unwarranted under existing law** (though, a **good-faith** argument for *extension or change* of the law if allowed) * No taking action when lawyer **knows it only serves to harrass or embarrass or cause undue delay**.

Answer 58

The duty of candors applies to **any phase** of a proceeding before a tribunal through the conclusion of the matter (defined as when a final judgment is affirmed or when the time for review/appeal has passed).

Answer 59

A lawyer cannot **knowingly make a false statement of law** to the court, and a lawyer *MUST* disclose adverse authority that is **controlling if opposing counsel has not** done so.

Answer 60

A lawyer cannot knowingly make a false statement of fact to the court, and must not offer evidence the lawyers knows to be false. * BUT, a lawyer is **not obligated** to disclose adverse facts *unless* it is an **ex parte** proceeding OR it is necessary to avoid assisting the client **in a crime or fraud**

Answer 61

* No **obstucting another party's access to evidence** * No **unlawfully altering, destroying, or concealing a document** or other item with potential **evidentiary value** (and not doing so through others) * No payment to **witness contingent on the content of testimony or outcome** of the matter, except that it is okay to pay a *non-expert* witness for travel expenses and to pay an *expert* witness a reasonable fee for the expert's services

Answer 62

A lawyer may not knowingly offer false evidence and may properly **refuse** to introduce evidence the lawyer reasonably believes to be false. BUT, in a **criminal defense matter**, the lawyer must honor a client's decision to testify unless the lawyer **knows** the testimony will be false: * If the client plans to give false testimony, the lawyer should **attempt to dissuade the client** from doing so, and seek to **withdraw if the client refuses**; * If the lawyer **only reasonably believes but does not know** the defendant's testimony will be false, the lawyer **must let the client testify** (GA goes not allow for *narrative* testimony).

Answer 63

A lawyer **cannot** communicate with judges or jurors **outside the presence of the other party** or its counsel. Except: for "housekeeping" matters and *emergencies* authorized by law.

Answer 64

A lawyer **may not knowingly make a false statement of material fact** to any third person in representing a client. This includes a **duty not to make misleading statements** of fact to the opposing party, though there are *exceptions* for statements made in negotiations.

Answer 65

A lawyer **cannot** have communication about the representation with a person the lawyer **knows to be represented by another lawyer in the matter** UNLESS: * the lawyer has *consent* from that other lawyer or * is authorized to do so by law or court order. In communicating with a represented **organization**, the lawyer cannot speak with a constituent that: * works with the organization's lawyer on the matter; * has the power to **bind** the organization on the matter; OR * can have his or her **action imputed to the organization** for criminal or civil liability purposes.

Answer 66

A lawyer **cannot** make extra-judicial statements that the lawyer **knows or should know** will be **disseminated to the public** and will have a **substantial likelihood of materially prejudicing** the proceeding. GA does NOT have an exception allowing a lawyer to discuss the **facts** of a case.

Answer 67

A lawyer **can** communicate with unrepresented persons (like witnesses), subject to limitations: * The lawyer cannot **state or imply** that the lawyer is **disinterested**; * If the lawyer *knows or should know* that the person **misunderstands the lawyer's role**, the lawyer msut make **reasonable efforts to correct it**; * the lawyer cannot give **legal advice** to the person, except advise to secure counsel.

Answer 68

1. Prosecutors must **only** bring charges when **supported by probable cause**. 2. Prosecutors must ensure that accused defendants are **accorded all constitutional due process rights**. 3. Prosecutors must **timely disclose any exculpatory evidence** or other evidence that tends to disprove guilt.

Answer 69

A lawyer **cannot serve** as an advocate in a trial at which the lawyer is likely to be a **necessary witness**, EXCEPT when: * testimony is about an **uncontested issue**; * testimony is about the **nature and value of legal services** rendered in the case; and * when **disqualification woild be a substantial hardship** to the client ## Footnote Note: If a lawyer is *disqualified* under this rule, another lawyer **in the same firm** can act as advocate *unless there is a conflict of interest*.

Answer 70

Judges shall personally **observe** such standards of conduct so that the **integrity and independence** of the judiciary is **preserved**.

Answer 71

1. Judges **shall** comply with the law and shall always act in a manner that **promotes public confidence** in the judiciary. 2. Judges shall **not** allow **personal relationships** to influence judicial conduct or judgment. 3. Judges should **not** testify voluntarily as a **character witness**.

Answer 72

Judges shall not be *swayed* by **partisan interests, public clamor, or fear of criticism**.

Answer 73

Judges must **require order and decorum** in proceedings over which they preside. Judges shall be **patient, dignified, and courteous** to litigatns, jurors, witnesses, lawyers, and others with whom they deal in their official capacity.

Answer 74

Judges shall not **by words or conduct** manifest **bias or prejudice based on race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic statuts**.

Answer 75

Judges may obtain the advice of a **disinterested judge** on the **law applicable to a proceeding before the court**, IF: * the judge gives notice to the parties of the person consulted and the substance of the advice, * and affords the parties reasonable opportunity to respond.

Answer 76

Judges shall dispose of all judicial matters **fairly**, **promptly**, and **efficiently** (in that order).

Answer 77

Judges shall not **commend or criticize** jurors for their verdict other than in a court order or opinion in a proceeding, * but may express **appreciation** to jurors for their service to the judicial system and the community.

Answer 78

Judges shall not, while a proceeding is pending or impending in any court, **make any public comment that might reasonably be expected** to affect its outcome or impair its fairness.

Answer 79

Judges who receive information indicating a *substantial likelihood* that **another judge or a lawyer** has committed a violation of professional conduct rules **should take appropriate action**. Judges having knowledge that another judge or lawyer has committed a violation of professional conduct rules that raises a **substantial question as to the other judge's or lawyer's fitness for office** shall inform the appropriate authority.

Answer 80

Judges shall **disqualify** themselves in any proceeding in which their **impartiality might reasonably be questioned**, including but not limited to instances when: * (1) the judge has a personal bias or prejudice concerning a party or a party's lawyer, or **personal knowledge**, of disputed evidentiary facts concerning the proceeding; * (2) the judge **served as a lawyer or witness** in the matter of controversy * (3) the judge or the judge's spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person or any other member of tje judge's family residing in the judge's household **is a party to the proceeding**, or is acting as a lawyer in the proceeding. * (4) The judge received aggregate campaaign contributions that **raise a reasonable question of s judge's impartiality** from one now appearing in the matter.

Answer 81

A judge cannot engage in an outside activity when doing so **would cast doubt** on the judge's capacity to decide impartially any issue that may come before him.

Answer 82

Judges may speak, write, lecture, teach, and participate in other activities **concerning the legal system and the administration of justice**.

Answer 83

Judges may serve as officers, directors, trustees, or non-legal advisors of educational, religious, charitable, fraternal, or civic organizations not conducted for the **economic or political** advantage of their members, subject to the following limitations: * Judges shall not serve if it is likely that the organization **will be engaged in proceedings that would ordinarly come before them**; * Judges shall not **solicit funds for any educational, religious, charitable, fraternal, or civic organization**; * Judges shall **not give investment advice** to such an organization, but they may serve on its board of directors or trustees.

Answer 84

Judges should refrain from financial and business dealings with lawyers, litigants, and others that * tend to **reflect adversely on their imparitiality**, * interfere with proper performance of their judicial duties, or * exploit their judicial positions.

Answer 85

Judges should manage their investments and other financial interests to **minimize the number of cases** in which they are disqualified. * As soon as they can do so *without serious financial detriment*, they should divest themselves of investments and other financial interests that might require **frequent disqualification**.

Answer 86

Neither judges nor *members of their families residing in their households* should **accept a substantial gift, favor, or loan from anyone** EXCEPT FOR: * ordinary social hospitality; * something from a relative, * a wedding or engagement gift; * a loan from a lending institution in its regular course of business on the same terms generally available to persons who are not judges, or * a scholarship or fellowship awarded on the same terms applied to other applicants).

Answer 87

Judges should not serve as **fiduciaries** EXCEPT: * for the estates or trusts of members of their families (and even then *only if* such service *will not interfere* with the proper performance of their judicial activities)

Answer 88

A judge **shall not** make speeches for a political organization or candidate or publicly **endorse** a candidate for public office.

GA Essays – Professional Ethics Flashcards

(112 cards)