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Bar Exam > Legal Ethics > Flashcards

Legal Ethics Flashcards

1
Q

Duty to Report

A

Under the ABA, a lawyer who knows that another lawyer has committed a violation to he Rules that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects must inform the appropriate professional authority.

There is no corresponding rule in california.

Must KNOW about the violation

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2
Q

Duty to report exceptions

A
  1. Cannot report if disclosing information violates duty of confidentiality
  2. Learned of violation while participating in an approved lawyer’s assistance program (i.e. counseling efforts for substance abuse, etc)
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3
Q

Choice of law in Disciplinary Proceeding

A

For conduct connected to a case, rules of the jdxn where case is adjudicated applies

For other conduct, rules of the jdxn where the conduct occurred applies.

Safe Harbor: A lawyer not subject to discipline if conduct proper in jdxn where she believes predominant effect of her conduct will occur

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4
Q

Activities that constitute practice of law

A

Appearances at judicial proceedings and depositions

Drafting documents that affect substantial legal rights

Negotiating settlements

Giving legal advice to clients

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5
Q

Duty of Confidentiality

A

Ethical duty that prohibits you from revealing confidential information in any setting without client consent, and applies to all information relating to representation

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6
Q

Duty of confidentiality ends

A

Can attach before a relationship is formed, or even without a relationship.

Once attached, your duty of confidentiality continues, even after formal representation ends, through the client’s lifetime.

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7
Q

Exceptions to duty of confidentiality under ABA

A
  1. prevent reasonably certain death or substantial bodily harm
  2. consent or implied authority
  3. prevent substantial financial harm
  4. compelled by court, ethics, law
  5. malpractice defense
  6. collect attorneys fees
  7. seek ethics advice
  8. address conflict from change in lawyer’s employment
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8
Q

Types of Conflicts of Interest

A
  1. Direct adversity

2. Materially limited representation

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9
Q

Even if representation at risk of material limitation, OK if

A

A Lawyer may still represent the client if:

(1) the lawyer reasonably believes that she can competently and diligently represent the client,
(2) the representation is not prohibited by law,
(3) representation does not involve asserted a claim that is directly adverse to another client, and
(4) the parties have given consent, confirmed in writing. (CA requires informed written consent).

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10
Q

CA written disclosures requirement

A

California requires additional disclosures where if a lawyer has personal, legal, business, financial, or professional relationship with a party, a witness, or the other lawyers, the lawyer must provide written disclosures to the client even if there is no significant risk that the relationship would materially limit representation

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11
Q

Conflicts with Joint Representation:

A

The nature of joint representation creates a significant risk that the representation of each client will be materially limited by the interests of the others

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12
Q

Business Transactions

A

OK If (1) terms fair and reasonable to client, (2) terms are in writing, (3) attorney advises client in writing to seek counsel, and (4) client gives informed written consent

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13
Q

Sexual Relationship

A

Under the ABA, a lawyer must not have sexual relationship with a client unless the relationship was established BEFORE the lawyer-client relationship began.

CA allows for an additional exception when a lawyer and client are spouses or registered domestic partners.

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14
Q

Third Party Payment

A

A lawyer must not accept compensation for representing a client from someone other than the client unless

(1) the client gives informed consent (CA requires in writing),
(2) there is no interference with the lawyer’s independence of professional judgement or with lawyer-client relationship, and
(3) client information remains confidential

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15
Q

Duty of Competence ABA

A

Under the duty of competence, a lawyer must act with the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation (this includes the duty to communicate and duty of diligence). A lawyer may become competent in a field through adequate preparation.

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16
Q

Duty of Competence CA Add’t Requirements

A

California recognizes mental, emotional and physical ability in determining competence

Duty to keep abreast of changes in the law and its practice, including benefits and risks associated with relevant technology

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17
Q

Duty to Communicate

A

A lawyer must keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

• All settlement offers MUST be conveyed to the client.

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18
Q

Sarbanes Oxley Act

A

Under this act, lawyers who reveal information to the SEC cannot be held civilly liable or disciplined for inconsistent rule statements

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19
Q

Attorney Client Privilege

A

This is an evidentiary privilege that allows a CLIENT to refuse to testify and prevent his attorney from testifying in court about confidential COMMUNICATION between the two or their respective agents. attaches and applies even if a lawyer is subsequently removed from a case

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20
Q

Attorney Client Privilege with Corporation in CA

A

In the corporate context, the attorney-client privilege, in California, protects communications made by a spokesman for the corporation or by someone whose actions could be imputed to the corporations for purposes of liability

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21
Q

Noncontingent Fee Agreement ABA

A

ABA does not require writing for non contingent fee agreements.

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22
Q

NonContingent Fee Agreement CA

A

California requires written fee agreements if the fee will exceed $1,000, except if: (1) the client is a corporation, (2) the client states in writing that he does not want a fee agreement, (3) the client has previously received and paid for the same kind of legal services, (4) the lawyer acted in an emergency to protect the client’s rights, or (5) a writing was impractical.

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23
Q

Contingent Fee Agreement

A

This type of agreement must indicate litigation and other expenses to be deducted from the recovery, and whether such expense are to be deducted before or after the contingent fee is calculated.

24
Q

Financial Assistance to Client under ABA

A

ABA prohibits a lawyer from providing financial assistance to a client in connection with pending or contemplated LITIGATION unless

(1) lawyer is advancing litigation costs, where repayment is contingent on outcome,
(2) lawyer representing indigent client may pay court costs, and
(3) where lawyer is representing a pro bono client, then can give clien modest gift.

25
Q

Financial Assistance to Client under CA

A

CA applies to all contexts, not just litigations and it :

(1) prohibits a lawyer from buying a potential client with a promise to pay personal or business debts, and
(2) after a lawyer is hired, the lawyer may lend the client money for any purpose IF the client gives him written promise to repay the loan.

26
Q

Duty of Candor

A

(1) A lawyer must not offer evidence that he knows to be false or misleading and must seek to rectify any false evidence presented.
(2) Lawyers have a duty to disclose law that is contrary to the client’s position, but not required to disclose facts that are not helpful to the client.

27
Q

If a lawyer reasonably believes that a witness will testify falsely

A

If a lawyer reasonably believes that a witness will testify falsely, the lawyer

  1. must try to convince the witness or client not to testify falsely
  2. If that fails, the lawyer must allow the witness or client to testify.
  3. If a client does testify falsely, under the ABA rules the lawyer may notify the court or appropriate tribunal
  4. Under the ABA and CA rules, a lawyer may then seek to withdraw.
28
Q

Duty to Opposing Parties in Litigation

A

Attorneys have a general duty to

  1. behave honestly
  2. not harass others
  3. not use threats of disciplinary actions as leverage in a civil dispute.
29
Q

Work Product Doctrine CA

A

In California, the work product privilege applies solely to materials prepared by the ATTORNEY in anticipation of litigation.

30
Q

Work Product Doctrine

A

the work product doctrine applies generally to materials prepared in anticipation of litigation that are comprised of the attorney’s mental impressions, notes, or opinions,

These docs are absolutely protected and are not discoverable.

31
Q

Qualified Work Product

A

Other materials prepared in anticipation of litigation received are qualified work product. These materials may be discoverable upon a showing of SUBSTANTIAL need and inability to acquire the materials elsewhere.

32
Q

Formation of Lawyer Client Relationship

A

A lawyer-client relationship is formed when:

(1) a person seeks legal services from a lawyer; AND
(2) the lawyer either
(a) manifests consent to provide services, OR
(b) fails reject case and knows/should know that the person would reasonably rely on the lawyer to provide legal services.

CA considers reasonable perception of a client

33
Q

Who has the power for what in the client-lawyer relationship?

A

Client controls the objectives and makes substantive decisions

Lawyer controls the means to accomplish the objectives.

34
Q

When can a lawyer limit scope

A

(1) if it is reasonable under the circumstances, and

(2) if the client gives informed consent

35
Q

Liability for breach of Duty of Competence

A

ABA: (1) discipline by the bar; (2) disqualification of the lawyer from a litigation matter, AND/OR (3) a civil malpractice lawsuit.

CA: subject to discipline if she intentionally, reckless, acts with gross negligence, or repeatedly fails to perform legal services with competence.

36
Q

Duty of Diligence

A

Lawyer shall

  1. act with reasonable diligence and promptness in representing a client.
  2. must pursue the case to the end unless properly terminated
37
Q

Exceptions to duty of confidentiality under CA

A
  1. client consents
  2. lawyer reasonably believes diclsoure necessary to prevent a crime that will likely result in deth or substantial bodily injury
  3. defend malpractice action
  4. recover legal fees
  5. comeplled by court or law
38
Q

CA disclosure of confidential information to prevent crime resulting in death/bodily injury

A

Requires lawyer to:

  1. make a good faith attempt to counsel client out of commiting crime, and
  2. inform client of lawyer’s ability to disclose the information
39
Q

Reporting Up

A

ABA: Allows it, then after reporting up, allowed to disclose to outside source if necessaryt o prevent substantial injury to the organization

CA does not allow reporting to outside source unless to prevent death or substantial bodily harm

40
Q

Inadvertent disclosure

A

ABA: if receives doc, must promptly notify sender

CA: if it obviously is privileged, must:

(1) refrain from examining materials,
(2) immediately notify sender, and
(3) proceed to resolve situation by agreement or court

41
Q

Duty to safeguard property

A

lawyer must hold property for client in a separate account from lawyer’s property

42
Q

Conflict of Interest - Former Clients

A

Unless former client gives informed consent, lawyer CANNOT represent another person in the same or substantially related matter when the persons’ interest are materially adverse to former clients

43
Q

Prospective client definition

A

Someone who consults with lawyer about

  • ABA: possibility of forming relationship with respect to a matter
  • CA: for purpose of hiring or securing legal services
44
Q

Proprietary Interst in Case

A

ABA: Cannot acquire this interest in cause of action lawyer is conducting for a client UNLESS lien authorized by law to secure atty fees, or contract for contingency fee in civil case

CA: no retaining liens allowed

45
Q

Use of Current Client’s Info

A

A lawyer CANNOT use a client’s confidential information to the disadvantage of the client UNLESS:

(a) the client gives informed consent; OR
(b) the use is permitted by the relevant ethical rules.

46
Q

Organization as a client

A

Lawyer must act in the best interest of the organization and must explain identity of client when dealing with people with adverse interests to organization

47
Q

Mandatory Withdrawal

A

MUST withdraw if:

  1. discharged
  2. physical or mental conditions exists or
  3. representation violates ethics rules or law

CA must withdraw if:

  1. client brings action without probable cause
  2. purpose of action is to harass or maliciously injure a person

mandatory to go to EDC but if you go in CA, don’t take the PC H

48
Q

Permissive Withdrawal ABA

A

A lawyer MAY withdraw from representing a client if:
F- Fundamental disagreement with client
F- Fraud or illegality pursued by client
F- Financial burden too great on lawyer
F- Fee agreement breached by client (after reasonable warning)
F- For other good cause

49
Q

Permissive Withdrawal CA

A

In CA, a lawyer MAY also withdraw if:

(1) client consents
(2) representation will likely lead to ethical violation
(3) condition (physical or mental)
(4) can’t work with co-counsel & withdrawal is best interest of client
(5) client asserts position that can’t be supported by good faith argument

50
Q

Settling Malpractice claims

A

In settling malpractice claims with current/former client,

(1) must advice client in writing to seek independent counsel and
(2) give her a reasonable chance to consult counsel

51
Q

Withholding client docs

A

Upon termination, lawyer must take reasonably practical steps to protect client’s interest. This includes giving client papers and property back.

52
Q

When are matters substantially related

A

if they involve

(1) the same transaction or dispute, or
(2) if there is a substantial risk that confidential info obtained that would materially advance client’s position in a new matter.

53
Q

Duty to Supervise

A

(1) may delegate tasks but must supervise work carefully and
(2) must be ultimately responsible for the results.
(3) make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer.

54
Q

Assisting in Unauthorized practice of law

A

lawyer must not assist a person who is not a member of the bar in performing activities that constitute unauthorized practice of law.

55
Q

sharing fees with nonlawyer

A

a lawyer may not share fees with a non-lawyer

Bar Exam (5 decks)

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