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Flashcards in PR- General Knowledge Deck (110):
1

Lawyer Misconduct- conditions?

1. It is misconduct in Florida for lawyer to violate or knowingly assist someone to violate the RPC.

2. Criminal acts showing lack of honesty, trustworthiness, or fitness to practice law.

3. Conduct involving dishonesty, fraud, deceit, or misrepresentation.

4. Conduct PREJUDICIAL to the administration of justice (heavily tested).

5. Failing to respond to bar inquiry in writing.

6. Refusing to pay child support

7. Sexual relations with client during representation

2

True or False: all fee agreements must be in writing.

FALSE! Fee agreements should 'preferably' be in writing.

3

What are the factors for determining a reasonable fee?

1. The time and labor required

2. the novelty and difficulty of the questions involved

3. the skill required to perform the legal service properly

4. the likelihood that the acceptance of the clients employment will preclude other employment for the lawyer

5. The fee customarily charged in the locality for similar legal services.

6. the amount involved and results obtained

7. any time limitations involved

8. The nature and length of the relationship with the particular client

9. the reputation, experience, diligence, and ability of the lawyer involved

10. the nature of the fee (fixed or contingent)

4

True or false: contingent fee agreements must be in writing and signed by both client and lawyer(s)?

TRUE!

5

What is contained in a contingent fee agreement?

It must be a WRITING SIGNED by client and the lawyer. It must state the method by which the fee is to be determined, including:1. The percentage that must accrue to the lawyer in the event of settlements, trial, or appeal.2. Litigation and other expenses to be deducted from the recovery3. Whether such expenses are to be deducted before or after the contingent fee is calculated.

6

Contingent fees are prohibited in what two types of cases?

Criminal -prohibited: any criminal case

Domestic relations-prohibited: divorce, alimony, property settlement.

-not prohibited: past-due alimony or past-due child support

7

Contingent-fee agreements require a writing which includes certain provisions, what are they?

1. Client has received a copy of "client rights" signed by both client and lawyer which state:- contract can be cancelled within 3 days of signing.

2. Division of fees-applies to lawyers not in same firm. - primary lawyer: 75% of fee minimum- secondary lawyer: 25% maximum of feeUsual recovery: 33 1/3% of any recovery

8

True/False: Fee splitting is allowed without agreement.

FALSE!

Lawyers in same firm- no agreement necessary.

Lawyers in different firms-

1. Division must be proportional
2. WRITTEN agreement with the client, disclosure how fees will be split.

9

Lawyer advertisements- general requirements?

1. Identification of persons responsible for the advertisement- at least one lawyer or the law firm responsible.

2. Location of office

3. Fields of practice (subject to "specialist")

4. No misleading/unsubstantiated claims

10

Define: solicitation in a PR context

A lawyer must not solicit employment from a prospect of client in person, by telephone, or by electronic device. Exception: solicitation allowed for pro-bono work

11

Requirements for Written Communications to prospective clients:

1. "Advertisement" clearly marked on front of the envelope.

2. Email- subject line must say: "Advertisement"

3. Written statement detailing: background, training, and experience of the lawyer or firm.

12

True or False: Lawyers can report misconduct anonymously.

FALSE!

Lawyer must be available to testify.

13

Requirements for a nonlawyer working in a law practice?

Nonlawyer cannot:

1. Own any interest in the practice
2. Be a corporate director or officer
3. Direct or control lawyers professional judgement.

Nonlawyer can NEVER be the CEO.

14

Fee-splitting with nonlawyer is allowed under what circumstances?

1. Payments to the estate of dead lawyers for work done before death.

2. Sale of dead or disabled lawyers practice.

3. Bonuses for nonlawyer employees based on extraordinary work performed.

4. Sharing fees with nonprofit organizations.

5. Pensions or retirement plans.

15

Misconduct- how applied?

Supervisory lawyer- knows, commands, ratifies bad conduct.

Nonlawyer- same liability, must be sufficiently trained.

16

General Rules about fees

CRACkeD

C-ommunication
R-easonableness
A-dvances
C-ontingent
k
e
D-ividing

17

Contingent fees and Med mal cases, discuss.

Provide client with written notice of Florida Constitution fee limits on medmal.

Waiver of the Fla Const. is allowed but only with:

OATH

WRITING

18

If a lawyer representing a client would be materially limited by his representation of another client he will need to get ____________ __________ in _____________ .

Informed consent

Writing

19

If a lawyer is tainted by conflict, then ______ lawyers in the firm are tainted by conflict and ______________.

ALL

DISQUALIFIED

Nonlawyers- if tainted, their conflict won't be imputed/they must be screened.

20

Exceptions to the attorney-client privilege?

1. Future crime or fraud
2. Disputes between:

Clients
Attorney and client

21

Duty of Confidentiality- exceptions

1. Client waives through informed consent

2. Disclosure-at discretion of the lawyer "reasonably certain:"
-prevent client from committing crime
-prevent death or bodily harm

-Outline C.E.1.

22

True or False: a lawyer can always communicate with a person known to be represented by counsel?

How about an unrepresented person?

FALSE!

Must get opposing lawyers CONSENT, or

Authorized by law.

Unrepresented- can communicate but may need to clarify role.

23

True or False: a lawyer can communicate with the former employee of an organization WITHOUT the consent of the organizations lawyer.

TRUE!

This is a FORMER employee.

24

What are the elements of PERMISSIVE withdrawal?

1. No material adverse effect on client

2. Lawyer has fundamental disagreement with clients repugnant aims.

3. Client does not pay

4. Unreasonable financial burden on the lawyer

5. Any good cause

25

Conflict of Interest- elements.

Must not if: DASROP

A lawyer MUST NOT represent a client if:

1. The representation of one client will be directly adverse to another client, or

2. There is a SUBSTANTIAL RISK that representation of one or more clients will be materially limited by the lawyers responsibilities to another client, and

3. A lawyer may not represent opposing parties in the same lawsuit or transaction.

DA- directly adverse
SR-substantial risk
OP- opposing parties

26

Chp. 3- The client lawyer relationship

T/F An appointment by a court to represent a client may never be declined by the lawyer.

FALSE

An appointment by the court may be declined for CAUSE.

27

Chp. 3- The client lawyer relationship

T/F there must be a fee or an agreement to form the lawyer-client relationship.

FALSE

A "reasonable person" standard is used to determine whether the relationship has been formed.

No exchange of fees or material agreement needs to be established.

28

Chp. 3- The client lawyer relationship

1. Whether the client wants to testify
2. exercise over right to trial by jury
3. plea-bargain's

Are all decisions made by the lawyer OR client?

CLIENT

29

Chp. 3- The client lawyer relationship

T/F: A lawyer can counsel a client both as to the legal consequences of a course of action and how to commit a crime.

FALSE!

Can only cancel a client regarding consequences.

NO counseling regarding how to commit a crime.

30

Chp. 3- The client lawyer relationship

A lawyer must get _________ of ________ to withdraw, even if withdrawal is mandatory.

Leave of court

31

Chp. 3- The client lawyer relationship

T/F: When in the court process (during proceedings), an attorney must always obtain court permission to withdraw.

TRUE

32

Chp. 3- The client lawyer relationship

T/F: A lawyer can never keep the clients property after withdrawal or termination.

FALSE!

A lawyer can have a retaining lien which allows the attorney to hold clients property if attorney is owed a fee.

33

Chp 4 Fees and Expenses

What's a retainer?

Client money paid to work on their legal matter.

-All unearned fees (and advanced costs) must be placed in an escrow/trust account.

-lawyer/clients accounts must be kept separate

34

Chp 4 Fees and Expenses

Taking an ownership or security interest in clients property is the same as a ______________ transaction and trigger what requirements?

1. Terms must be in writing

2. Terms must be fair and reasonable

3. attorney must advise client in writing the prudence of hiring independent counsel to review the agreement

4. informed consent in writing signed by the client

35

Chp 5 privilege and confidentiality

T/F A lawyer can disclose information learned relating to the representation if it's general public knowledge.

FALSE!

Even if the rest of the world knows it, the information is still protected between the client and lawyer.

36

Chp 5 privilege and confidentiality

T/F: The duty of confidentiality dies with the client.

FALSE

The duty of confidentiality survives the death of BOTH the client AND the lawyer

37

Chp 5 privilege and confidentiality

T/F: A clients identity will never be considered confidential information.

False

A clients identity is confidential information.

38

Chp 5 privilege and confidentiality

An attorney can be compelled to reveal work product where there is ____ ___________ __________ to obtain information.

No other means

39

Chp 5 privilege and confidentiality

A court CANNOT order a lawyer to reveal information protected by ________-__________ _________.

But MAY order a lawyer to reveal all information protected by the duty of __________.

Attorney-client privilege

Confidentiality

40

Chp 5 privilege and confidentiality

Permissive Disclosures (info allowed to be revealed):
1. _________ by the client
2. Implied by the ____________.
3. To prevent ________ or substantial _________
4. To prevent future _________ or ________.

1. Consent
2. Representation
3. Death, substantial bodily injury
4. Crime, fraud

41

Chp 5 privilege and confidentiality

Prospective clients- entity representation- The entity is the client, but the lawyer must communicate with a ____________.

These are the "control group" who comprise...

Representative

managers, Board of Directors, etc

42

Chp 6 Conflicts of Interest

T/F A lawyer may represent clients who are suing each other if the matter is unrelated to your representation.

FALSE!

This is DIRECT ADVERSITY with concurrent clients

43

Chp 6 Conflicts of Interest

T/F: A lawyer is automatically disqualified if representation of one client is a material limitation on lawyers ability to represent another client.

FALSE!

These conflicts are WAIVABLE with informed consent.

44

Chp 6 Conflicts of Interest

If there exists a conflict of interest which clients need to give informed consent?

ALL AFFECTED CLIENTS

45

Chp 6 Conflicts of Interest

An attorney cannot currently represent a client in the _________ or __________ related matter that the attorney has represented a former client.

same or substantially

46

Chp 6 Conflicts of Interest

What is the objective test for lawyer representation of a client in a matter "substantially related" to previous representation?

1. What was the _______ of the prior representation?
2. Could lawyer have ________ information?
3. With that information be _________ in the current litigation?

Scope
Learned
Useful

If true, there is an irrefutable presumption that a conflict exists.

47

Chp 6 Conflicts of Interest

T/F: A lawyer may draft a will or receive a gift in which the lawyer is the heir or the Donee.

False

Only allowed for FAMILY members of the lawyer.

48

Chp 6 Conflicts of Interest

T/F: A lawyer is allowed to represent a client if a related family member is on the other side.

False!

49

Chp 6 Conflicts of Interest

T/F: acquisition of story rights DURING litigation is proper.

FALSE

No acquisition of story rights until the representation of client concludes

50

Chp 6 Conflicts of Interest

T/F: lawyers are allowed to make small loans to clients.

False!

No loans to clients allowed

Exception: court costs

51

Chp 6 Conflicts of Interest

A lawyer can advance certain costs to clients, what are these?

Court costs

-client ultimately responsible

Lawyer can pay court costs of indigent client.

52

Chp 6 Conflicts of Interest

Sex with clients-allowed?

ONLY IF it's a pre-existing relationship. Otherwise, prohibited.

This disqualification is not imputed to the firm

53

Chp 6 Conflicts of Interest

Lawyer as witness- lawyer cannot take representation where lawyer may be a witness.

Exceptions:

1. __________ issues

2. _________ ______ in this case

1. Uncontested

2. Service value

54

Chp 6 Conflicts of Interest

If a lawyer is in conflict with representation of a client, NO lawyer in the firm may represent the client without...

1. Clients informed consent, in WRITING

Or,

2. Conflict is personal to lawyer- sex with clients.

55

Chp 6 Conflicts of Interest

If a new lawyer enters a law firm he brings any __________ with him. Which is then ____________ to the firm.

Conflicts

Imputed

56

Chp 6 Conflicts of Interest

An incoming lawyers conflict will NOT be imputed IF the lawyer is timely screened. What does this entail?

1. No information is passed from the lawyer to the firm
2. lawyer is apportioned no part of the fee
3. The affected client must be afforded notice (no CONSENT is required- only notice).

** The same rules apply to paralegals, secretaries- must be screened.

57

Chp 6 Conflicts of Interest

Third Party Representation

Client can __________ to the influence of the third-party. However, absent this, it will be impermissible to accept influence.

Consent

58

Chp 7 Competence, Legal Malpractice, and other Civil Liability

What's the burden of proof in a malpractice action?

What's the burden of proof for an ethics violation?

Malpractice: preponderance of the evidence

ethics violation: clear and convincing evidence

59

Chp 7 Competence, Legal Malpractice, and other Civil Liability

Advice about a crime is NOT criminal if the attorney...

Attempts to dissuade the party from committing the act.

60

Chp 8 Fairness and Litigation

Lawyers may not knowingly (actual knowledge):

1.

2.

3.

1. Make false statements as to law or fact.

2. Fail to disclose controlling authority on the other side

3. Offer evidence you know to be false

61

Chp 8 Fairness and Litigation

When a lawyer knows evidence submitted was false or perjury was committed the lawyer must:

1.
2.
3.

1. Attempt to dissuade the witness (correct falsity)

2. Lawyer may seek to withdraw

3. "Trial by narrative"

62

Chp 8 Fairness and Litigation

T/F: Contingency fees are allowed for experts

False!

Regular fees allowed- not contingency fees.

63

Chp 8 Fairness and Litigation

T/F: all witnesses can be paid.

False.

Only EXPERT witnesses can be paid and they cannot collect contingency fees.

64

Chp 8 Fairness and Litigation

Media communications are prohibited if it would have the effect of materially ______________ the proceedings.

Prejudicing

65

Chp. 9 Different Roles of the Lawyer

Prosecutors must disclose ____________ information.

Exculpatory

66

Chp. 9 Different Roles of the Lawyer

If new evidence is clear and convincing a prosecutor is required to seek a __________.

Remedy

67

Chp. 10 Judicial Ethics

A judge most avoid the "__________ of ____________."

Appearance of impropriety

68

Chp. 10 Judicial Ethics

A judge may not conduct an independent factual ______________ of any matter before the court.

Investigation

69

Chp. 10 Judicial Ethics

A judge should not make ___________ comment on pending or impending cases.

Public

70

Chp. 10 Judicial Ethics

Name the conditions for a judges mandatory recusal.

1.
2.
3.
4.
5.
6.


1. Personal bias toward party

2. Personal knowledge of facts

3. Judge and spouses relationship (3rd degree)

4. Money

5. Political contributions (these are okay unless illegal).

6. Judicial conflict

71

Chp. 10 Judicial Ethics

Hey judge with merely a ____________ ____________ that a lawyer is impaired may make some disclosures to facilitate treatment.

Reasonable belief

72

Chp. 4 Privilege and Confidentiality

Distinguish the duty of confidentiality from the evidentiary attorney-client privilege.

Duty of confidentiality: applies to well information relating to the representation (third-party driven communications, lawyer observation, etc.)

Attorney-Client Privilege: ONLY client-driven confidential communication.

73

Which of the following is NOT a ground for permissive withdrawal from representation?

A. Withdrawal has no harmful effect on the client

B. The lawyer has a reasonable belief the client is pursuing fraud and the lawyer’s services were used in the fraud

C. The client fails an obligation to the lawyer

D. The lawyer could have earned more money than originally agreed upon

D. The lawyer could have earned more money than originally agreed upon

74

Which of the following statements regarding the attorney-client privilege is FALSE?

A. It applies to physical evidence of a crime given to the lawyer by the client.

B. It covers testimonial communications made by the client to the lawyer.

C. It requires that communications made by the client to the lawyer be made in confidence.

D. It does not apply to communications regarding future crime or fraud.

A. It applies to physical evidence of a crime given to the lawyer by the client.

75

Which of the following may a court order an attorney to disclose?

A. Any information protected by the duty of confidentiality

B. Any information subject to the attorney-client privilege

C. Any information protected by the duty of confidentiality that is not subject to the attorney-client privilege

D. Any information subject to the attorney-client privilege that is not subject to the duty of confidentiality


C. Correct Answer: Any information protected by the duty of confidentiality that is not subject to the attorney-client privilege

76

FILL IN THE BLANKS. A lawyer may advance court costs to ______ client; a lawyer may not pay _________ costs of any client.

A. any, litigation

B. any, treatment

C. an indigent, litigation

D. an indigent, treatment

B. any, treatment

77

FILL IN THE BLANKS. A lawyer may not contact a person that the lawyer _________ to be represented by counsel. A lawyer may not _________ a person who is unrepresented by counsel.

A. reasonably believes, contact

B. reasonably believes, mislead

C. knows, contact

D. knows, mislead

D. knows, mislead

78

Regulation of the Legal Profession

A lawyer MUST report when he has (actual knowledge/or/ reasonably knows) of another lawyers misconduct.

ACTUAL KNOWLEDGE

79

The Client-Lawyer Relationship

A lawyer cannot decline an appointment to a clients representation without cause. Which of the following is sufficient "cause"?

1. A client who is so repugnant to the lawyer as to be likely to impair the lawyer’s ability to represent the client

2. The lawyer believes the client should not or will not succeed.

3. Representation of the court-appointed client could have an adverse financial effect on the attorney.


Correct: 1. A client who is so repugnant to the lawyer as to be likely to impair the lawyer’s ability to represent the client

80

Scope, Objective, and Means of the Representation

Generally, a lawyer must communicate all bona fide offers of settlement to the client, and the ultimate decision as to whether to accept rests with the client. If the client is unavailable at the time a settlement offer is made, the lawyer DOES/DOES NOT have authority to accept the offer.

DOES NOT

81

Withdrawal or Termination of Representation

An attorney was convinced that his client was suffering from dementia. The attorney spoke to his client’s family physician and the client’s only daughter to determine whether a guardian should be appointed to monitor the client’s finances. These were the only discussions the attorney had ever had with either the physician or the daughter. In these discussions, the attorney revealed confidential information about a bank account maintained by the client before learning that the daughter and her mother were estranged because the daughter had stolen from her mother in the past.

Was the attorney’s revelation of the confidential information proper?

Answers:

A. Yes, because the attorney was trying to determine whether his client needed a guardian.

B. Yes, because the daughter had relevant information to help determine whether the client needed a guardian.

C. No, because the attorney should not have disclosed confidential information about a client to others without prior court approval.

D. No, because the attorney did not first determine whether either the doctor or his client’s daughter might act adversely to his client’s interests.

D. No, because the attorney did not first determine whether either the doctor or his client’s daughter might act adversely to his client’s interests.

When taking protective action such as seeking the appointment of a guardian, however, an attorney is impliedly authorized to reveal information about the client, but only to the extent reasonably necessary to protect the client's interests. The attorney should determine whether it is likely that the person consulted will act adversely to the client’s interests BEFORE DISCUSSING matters related to the client.

82

Withdrawal or Termination of Representation

A judge hearing a divorce case appointed an attorney to represent the couple’s 12-year-old child. Under state law, the attorney will be compensated by one or both parents at the court’s discretion. The child told the attorney that she planned to falsely accuse her father of sexual abuse at the behest of her mother. Although the attorney counseled the child not to make the accusation, the child insisted that she intended to do so. As a result of the attorney’s advice, the child indicated that she no longer trusted the attorney, and she wanted the court to appoint another guardian. Disgusted by the child’s stated course of action, the attorney sought the judge’s permission to withdraw. Both parents object, and the court refuses such permission.

Must the attorney continue to serve as the child’s attorney?

Answers:

a. No, because a client has the absolute right to discharge an attorney.
b. No, because the attorney finds the child’s course of action repugnant.
c. Yes, because the child’s parents object to the attorney’s withdrawal.
d. Yes, because the court denied the attorney permission to withdraw from the case.

d. Yes, because the court denied the attorney permission to withdraw from the case.

A lawyer who is denied permission by a court to withdraw from representation of a client must continue to represent the client, even though there is otherwise good cause for the lawyer to withdraw.

83

Privilege and Confidentiality

An attorney’s duty of confidentiality DOES/DOES NOT prohibit an attorney from obtaining confidential legal advice about the attorney’s responsibility to comply with the Model Rules of Professional Conduct.

DOES NOT

84

Privilege and Confidentiality

A business owner hired an attorney solely to prepare a contract for the sale of the business. Shortly after the sale was completed, the attorney learned from an employee of the business that the owner had falsified the business’s records in order to make the business, which had been losing money for several years, appear profitable. When the attorney confronted the owner about the owner’s actions, the owner acknowledged the fraud but refused to take any action. The attorney contacted the buyer of the business, who had used his retirement savings to purchase the business, and revealed the owner’s fraud.
Is the attorney subject to discipline for this revelation to the buyer of the business?

Answers:

A. Yes, because the attorney breached the duty of confidentiality the attorney owed to the business owner.
B. Yes, because disclosure was not necessary to prevent reasonably certain death or bodily harm.
C. No, because the attorney did not learn of his client’s fraud during the course of a litigation.
D. No, because the owner had used the attorney’s services in the sale of the business.

D. No, because the owner had used the attorney’s services in the sale of the business.

A lawyer may reveal confidential information concerning the representation of a client to the extent that the lawyer reasonably believes it is necessary to RECTIFY substantial injury to the financial interests of another that is reasonably certain to result from the client’s commission of a fraud, provided that the client has USED the lawyer’s services IN FURTHERANCE of the fraud.

This is past-tense, so if the party used the lawyers services in the fraud the lawyer can try to fix it AFTER the representation has ceased.

85

Conflict of Interest

Members of a law firm are generally treated as o_____ ___________ for purposes of the disqualification rules.

ONE LAWYER

When one member of the firm is disqualified from representing a client, all members of the firm are generally disqualified.

86

Conflict of Interest

A lawyer who personally and substantially serves as a mediator with regard to a matter is __________ from serving as an attorney for anyone in connection with the matter unless all parties give their written, informed consent. This disqualification is __________ to other members of the lawyer’s law firm.

DISQUALIFIED

IMPUTED

87

Conduct During the Course of Litigation

T/F: an attorney is not required to confirm a client’s factual assertions before including them in a pleading.

TRUE

However, the attorney MUST correct a false statement of material fact when he BECOMES AWARE OF IT (cannot wait to correct).

88

Conduct During the Course of Litigation

An attorney was passionate about civil rights, but the jurisdiction in which he practiced was less progressive than he. The attorney accepted the case of a client whose claim was not supported by law within the jurisdiction. If the client had been able to bring the claim in another state, however, his claim would likely have been successful. The attorney accepted the claim despite his knowledge that the client would lose because he was confident that the media attention would provide momentum for a change of the law. He notified the client of the likelihood of losing, but the client wished to pursue the claim regardless.

Is the attorney subject to discipline for bringing this suit?

Answers:

A. No, because the client wishes to pursue the claim even if it will be unsuccessful.
B. No, because the case, even if unsuccessful, might lead to a change in existing law.
C. Yes, because he knows the claim will likely lose.
D. Yes, because there is no basis of law in the jurisdiction to support the claim.

B. No, because the case, even if unsuccessful, might lead to a change in existing law.


An attorney is prohibited from bringing or defending a proceeding, or asserting or opposing an issue in a proceeding, unless there is a basis in law and fact for doing so that is not frivolous. A good-faith argument for an extension, modification, or reversal of existing law is not frivolous. An action is also not frivolous merely because the attorney believes that the client’s position ultimately will not prevail. Here, although the attorney knew that his client would lose in the jurisdiction, the ultimate purpose of the litigation was to lead to a reversal of existing law

89

Fraud and Perjury by Clients

An attorney is prohibited from _________ offering false evidence and MAY refuse to offer evidence that the attorney ___________ __________ is false.

KNOWINGLY

REASONABLY BELIEVES

90

Differing Roles of the Lawyer

An attorney represented a shopkeeper who was trying to sell his business, and was approached by an interested buyer. The attorney told the potential buyer that she believed the opportunity to purchase the business would be brief because the business was being offered at a very low price. In fact, the attorney believed that the business was priced too high, and that the shopkeeper would have difficulty selling it for that reason.

Was the attorney’s statement to the potential buyer proper?

Answers:

A. No, because the attorney did not believe in the truthfulness of her statement.

B. No, because the attorney, as a negotiator, owed a duty of candor to the potential buyer.

C. Yes, because as a negotiator, the attorney owes a duty of zealous representation to her client.

D. Yes, because the attorney’s statement did not constitute a statement of fact.

D. Yes, because the attorney’s statement did not constitute a statement of fact.

An attorney is not permitted to make a false statement of material fact. Statements that constitute “puffing” (i.e., opinions or judgments not made as a representation of fact) are permissible as part of a NEGOTIATION.

91

Public Communications about Services

An attorney took out an advertisement in a local newspaper, which stated that the cost of his services was “50 percent cheaper than the customary attorney fees in town.” The attorney never researched the fees of other attorneys in the area, but he planned to reduce his own fees to half of any such fees if and when a potential client brought them to his attention.

Would the attorney’s actions subject him to discipline?

Answers:

A. Yes, because the attorney posted an advertisement that mentioned his rates.
B. Yes, because the attorney’s claims regarding his rates were unsubstantiated and specific.
C. No, because the attorney planned to modify his rates to conform to the advertisement.
D. No, because the attorney did not state a specific dollar amount for his rate.

B. Yes, because the attorney’s claims regarding his rates were unsubstantiated and specific.

Answer choice B is correct. An unsubstantiated comparison of the attorney’s services or fees with the services or fees of other attorneys may be misleading if presented with such specificity as would lead a reasonable person to conclude that the comparison can be substantiated. Here, the attorney has not researched the fees of other local attorneys and could not substantiate that his fees are 50 percent lower. However, a reasonable person would conclude that, because he stated that his rate was 50 percent lower than the rates of other local attorneys, he likely had a basis for his statement.

92

Referrals and Referral Fees

While an attorney may enter into a reciprocal referral agreement with a non-lawyer professional, the agreement SHOULD/SHOULD NOT be of indefinite duration. (Note, too, that the agreement must not be exclusive, and that the client must be _________ of the existence and nature of the agreement.)

SHOULD NOT

INFORMED

93

Judicial Ethics

A judge MUST disqualify himself in a matter if he knows that he or his spouse or domestic partner shares a third-degree or closer relationship to a __________ ___________ in a case.

MATERIAL WITNESS

94

A currently represented client in a divorce threatens to immediately kill her husband within the next few hours. Her attorney MAY/MUST disclose this information to prevent imminent death or GBI.

MAY

Duty of confidentiality- the attorney is not REQUIRED by the model rules to disclose this information. However, he MAY disclose it if HE CHOOSES to do so.

95

A judge and an attorney were formerly law partners and during their partnership acquired several parcels of real property as co-tenants. After the judge was elected to the trial court in the county, she remained a co-tenant with the attorney, but left the management of the properties to the attorney.

The judge's term of office will expire soon and she is opposed for re-election by two members of the bar. The attorney, who has not discussed the matter with the judge, intends to make a substantial contribution to her campaign for re-election.

The judge is one of fifteen judges sitting as trial court judges in the county.

Is the attorney subject to discipline if he contributes $10,000 to the judge's re-election campaign?

A Yes, if the attorney frequently represents clients in cases tried in the trial court of the county.

B Yes, because the judge and the attorney have not discussed the matter of a campaign contribution.

C No, if the contribution is made to a campaign committee organized to support the judge's re-election.

D No, because the attorney and the judge have a long-standing personal and business relationship.

C No, if the contribution is made to a campaign committee organized to support the judge's re-election.


Lawyers have a right to participate fully in the political process, which includes making and soliciting political contributions to candidates for judicial and other public office. MRPC 7.6, cmt 1. The Code of Judicial Conduct permits reasonable campaign contributions to a judge's election campaign, so long as they are made through a CAMPAIGN COMMITTEE. Answer choice A is not correct, as representation of clients in courts in the county where a judge holds office would not prohibit a campaign contribution. Answer choice B is not correct, as there is no requirement that a candidate for judicial office and a lawyer discuss a campaign contribution in order for it to be made. Answer choice D is not correct, as the long-standing personal and business relationship is not relevant and would not prevent a proper contribution under the ethics rules.

96

As required by a purchase agreement, a consumer and a retailer submitted a dispute to an arbitration panel. The consumer and retailer each named an attorney to be a partisan member of the panel and together those two panel members chose the third member of the panel. After listening to both sides, the panel ruled 2-1 in favor of the retailer, with the panel member named by the consumer voting in favor of the consumer. Without seeking the consent of the retailer, the consumer employed the attorney he had appointed to the panel to challenge the arbitration of the dispute.

Is it proper for the attorney to accept this employment?

A Yes, because the attorney served as a partisan member of the three-member arbitration panel.

B Yes, because the attorney voted against the decision reached by the panel.

C No, because the retailer did not consent to the attorney’s subsequent representation of the consumer with regard to the arbitrated matter.

D No, because the attorney personally and substantially participated as a member of the arbitration panel.

A Yes, because the attorney served as a partisan member of the three-member arbitration panel.


Generally, an attorney who personally and substantially participates as an arbitrator MAY NOT represent anyone in connection with the matter arbitrated, unless all parties to the proceeding give informed, written consent. However, this restriction does not apply to an arbitrator selected as a PARTISAN of a party in a multi-member arbitration panel (meaning the party is selected to represent a certain side). Answer choice B is incorrect because there is no requirement that an attorney who serves as an arbitrator vote against the panel’s decision in order to be able to represent a party in connection with the matter arbitrated. Answer choice C is incorrect. As noted with respect to answer choice A, while generally each party to an arbitration must give informed, written consent for an attorney who personally and substantially participated as an arbitrator to represent anyone in connection with the matter arbitrated, this restriction does not apply to an arbitrator selected as a partisan of a party in a multi-member arbitration panel. Answer choice D is incorrect because, although the attorney personally and substantially participated as a member of the arbitration panel by listening to both parties to the arbitration present their cases and voting on the matter being arbitrated, the attorney could nevertheless represent the consumer in an action challenging the arbitration of the dispute because the attorney was selected as a partisan of the party in the multi-member arbitration panel.

97

T/F: a lawyer CANNOT take representation where the lawyer may be a witness?

TRUE

2 Exceptions:

1. UNCONTESTED Issues
2. Service Value in this case (fee-shifting cases)

98

T/F: Government lawyers, arbitrators, mediators, and third-party neutrals are allowed to negotiate employment with a party if that party is involved in a matter in which the lawyer participates.

FALSE

exception: law clerks can negotiate employment in such a circumstance.

99

T/F: Attorney-Referral Services are allowed.

TRUE

100

T/F: a lawyer is allowed to solicit campaign contributions and participate in political work.

TRUE

101

T/F: As long as its done in a limited capacity, a judge is allowed to practice law while serving as a judge.

FALSE

Only Exception- Pro-Se practice (for himself).

102

If screening is required, when must it take place?

Immediately

Waiting for 6 months is unacceptable

103

If a lawyer takes on a contingent fee matter, what must be provided to the client at its conclusion?

Lawyer must provide a written statement with the outcome of the matter; if there is recovery, showing what the client gets and how that amount was reached.

104

What is a "retainer" fee?

A fee paid SOLELY to ensure the availability of the lawyer.

105

T/F: A lawyer acting in a capacity other than as a lawyer (accountant, business partner) is not required to follow the model rules regarding communications.

TRUE

Information exchanged in this capacity will not be subject to attorney-client privilege or confidentiality.

Why? Because the communication did not occur for the purposes of legal representation.

106

T/F: related lawyers on either side of litigation may continue and do not have a conflict.

FALSE

A conflict exists when lawyers on opposite sides of a case are related. Each affected client must give informed CONSENT to continue the representation.

*personal// no imputation

107

T/F: communicating with jurors before or during pending litigation is allowed if it involves matters unrelated to the case.

FALSE

Any communication during this phase whatsoever is prohibited.

Communication after the jury has been discharged is allowed

108

Firm name and letterhead- requirements?

1. Names of Deceased/retired lawyers-only if continuing succession.

2. Cannot imply Government Association.

3. No names of lawyers holding public office (if that lawyer is not practicing with the firm)

4. No false claims of partnership

109

T/F: A lawyer saying he is a "specialist" is the same as saying he's a "certified specialist."

FALSE

Different requirements.

Certified specialist means he's been certified by a state authority and must identify the authority in communications to potential clients.

110

T/F: judicial candidate is not permitted to solicit or accept campaign contributions other than through a campaign committee.

TRUE!