PR midterms Flashcards
(266 cards)
1
Q
Forwarding fees–payments for referrals– are always permitted. [T/F]
A
False
2
Q
Can parties communicate ‘directly’ with each other?
A
Yes. No lawyers is ok.
3
Q
When client $ is delivered to the lawyer, this must be delivered to client when?
A
promptly.
3
Q
Can future services be charged as ‘non-refundable?’
A
No
4
Q
T/F] A lawyer may require advance payment of a fee, but is obliged to return any unused portion.
A
True
5
Q
T/F] A lawyer may disclose a client’s confidence to establish a defense to a pending criminal charge or civil claim against him.
A
True
6
Q
Can a judge accept benefits associated w/ spouse business activity that only ‘incidentally’ benefits the judge?
A
Yes.
7
Q
When a lawyer is fired, he must return ‘some’ papers and property to the client.
A
False. All papers must be returned.
8
Q
Warning potential client about pending SOL is not required when?
A
When it would adversely affect current client.
9
Q
“A lawyer having direct supervisory authority over the nonlawyer shall make ‘reasonable’ efforts to ensure persons conduct is compatible with MRs.”
Does this include proper ‘supervision?’
A
Yes.
10
Q
3 situations when a lawyer can’t communicate with former or prospective jurors after trial closes:
1.
2.
3.
A
- They said no
- Prohibited by law/court order
- Harassment, coercion, duress, misrepresentation.
11
Q
Lawyer wants to withdraw. If he is ordered by Judge to continue representation, may he withdraw?
A
No.
12
Q
Lawyer / judge reports misconduct when their is _______ likelihood that the model rules have been violated.
Does this apply to lawyers in another state?
A
- Substantial
- Yes
13
Q
$ Accounts:
1. Special retainer =
2. General retainer =
A
- Trust acct
- Firm acct
14
Q
Primary duties to client?
A
- Duty of competence
- Duty of dilligence
- Duty of communication
- Duty of loyalty
- Duty of fairness
15
Q
Must a lawyer be sep. become a mbr of FED crts before be able to practice there?
A
Yes
16
Q
T/F) In some instances, a lawyer may assist a non-lawyer in the unlicensed practice of law.
A
False
17
Q
T/F) A lawyer may open a law office & practice in a J in which she is not admitted – if the lawyer is a salaried employee of her only client [corp.].
A
True, she just can’t litigate there.
18
Q
T/F) Lawyers must reach early, clear agreement with the client about lawyer’s fee.
Exceptions?
A
True
Exception: The lawyer has rep. the client in the past.
19
Q
Lawyers are subject to discipline for charging ______ fees.
A
Unreasonable
20
Q
T/F) Lawyers may not permit a client to pay fees via credit card.
A
False
21
Q
T/F) Lawyer is not subject to discipline for charging contingent fee in a criminal case.
A
False
22
Q
What is a proper method to resolve a fee dispute with a client?
A
Arbitration
23
Q
Can a lawyer split fees with a non-participating lawyer?
A
No
24
The decision to plead guilty is a ____ decision that rests with who?
1. Strategic
2. Rests with the client
25
Are lawyers subject to discipline for failing to convey settlement offers to the client before rejecting it?
Yes
26
Moving for Summary Judgment is an example of a ____ decision that rests with who?
1. Tactical
2. Lawyer
27
T/F) The law allows a client to fire a lawyer for any reason at all, at any time, without cause.
What $ is client liable for at this point?
1. True
2. Fair value of work completed
28
An attorney may withdraw from representing a client if the attorney considers the client's objectives to be ______ or is _________ ___________ attorney's beliefs.
1. Repugnant
2. Fundamentally against attorneys beliefs
29
T/F) A lawyer who transfers funds for 'unearned' fees to the Firm's general account may not be subject to discipline if the action was reasonable.
False. Lawyers can't transfer unearned fees into general account.
30
Can you co-mingle multiple client's $ in one trust account?
Yes
31
If a lawyer fails to withdraw funds as 'earned' and billed from the client trust account, is he subject to discipline? Why?
Yes, improper co-mingling of funds.
32
Mandatory reasons for withdraw:
1.
2.
3.
1. Attorney health [Disability]
2. Illegal activity
3. Ethics violation
33
Lawyers are permitted to take protective action for a client with _____ ______ who is 'at risk' (substantial) and can't adequatley protect themselves.
1. Diminished capacity
34
Is it mandatory or discretionary for a lawyer to take protective action for client with diminished capacity?
Discretionary
35
T/F) a lawyer may not seek work for a fee by starting a personal or live telephone contact with a prospective client whom he has never met or with whom he has no family or professional relationship.
True
36
College Students for Religious Freedom (CSRF) is a national organization that is challenging on First Amendment grounds a local ordinance that requires all public colleges and universities to provide gender-neutral restroom and locker room facilities.
Can you represent pursuant to MR 8.4?
Yes
37
T/F) You may remotely practice the law of the state in which you are licensed (here, Nebraska) while you are physically present in a state where you are not admitted (here, Alabama), as long as the state where you are located has not ruled on whether your remote law practice in their state constitutes the unauthorized practice of law.
True
38
Must an associate ensure that the firm has policies that assure a non-lawyer’s conduct is “compatible” with the professional obligations of the lawyer.
No. This duty resides with Partners / Managers of the firm.
39
When MUST an attorney withdraw from representation?
1. Illegal client activity
2. Diability
3. Ethics violation
40
T/F) An attorney is permitted to withdraw from representing a client when the continuation of the representation would impose unreasonable financial -- or health related -- burdens on the attorney.
True.
41
Caution: Even when the withdraw stems from client's repugnant behavior, what must the Lawyer still ensure he/she does?
1. Give client notice
2. Time to find new lawyer
42
Can a lawyer be liable for malpractice by using an overruled case?
Yes
43
Can senior partners be liable for actions of their associates & non-lawyers?
Yes
44
Must lawyers carry malpractice insurance?
No...but they should!
45
After a matter is concluded, the lawyer may acquire publication & media rights. [T/F]
True
46
T/F) Client has absolute authority to discharge lawyer, for whatever reason.
True
47
Lawyer mandatory withdraw:
1.
2.
1. Conflict of interest
2. Illegal acts
48
T/F) If a matter is pending b4 the court, attorney must obtain court's permission to withdraw.
True
49
Permissive reasons to withdraw?
1. Non-cooperation
2. Misconduct by client
3. Break of attorney K
4. Lawyer's interest
49
____ _____ Doctrine: When an attorney drops one client in order to hop over to a more favorable client.
Hot Potato
50
MR says nothing about HP doctrine. What about RST?
RST: This is a breach of 'duty of loyalty.'
51
_______ agreements: Another form of limited engagement agreement which allows lawyer to investigate a case b4 representation.
Investigation agreements
52
Does arbitration insulate a lawyer from liability?
No.
53
1. When lawyer terminates relationship, must lawyer return all docs and property? [normally can't charge for return]
2. Can a lawyer charge 'reasonable fees' for docs created specifically for the case? IE: Medical records.
1. Yes
2. Yes
54
Who decides whether or not to appeal?
Client. This is a strategic decision.
55
2 types of diminished capacity clients:
1. Impaired
2. Incapacitated
56
Impaired clients?
Maintain normal relationship
57
Incapacitated clients? What's the keyword b4 taking action?
If client is at risk of 'substantial' harm... take 'reasonable' protective action.
58
When taking action for incapacitated clients, this action is [mandatory/discretionary.]
Discretionary
59
Is an atty subject to discipline for entering into contingent retainer agreement on outcome of a criminal case?
Yes
60
Fee payment:
_______ Lien = possessory interest in client papers or property. [Keep their truck]
Retaining lien
61
Fee payment:
_______ Lien = charged against proceeds of settlement.
[Settlement - unpaid fees]
Charging Lien
62
Mandatory withdraw?
1. Conflict of interest
2. Illegal activity
63
Are lawyers able to limit scope of representation?
Yes. Under 'reasonable' circumstances & with client consent.
64
When can lawyer acquire interest in media/literary rights?
At conclusion of litigation.
65
Business transactions with clients?
1.
2.
3.
1. Fair & reasonable
2. In writing
3. Client consent
66
Where do flat fees go?
Trust account.
67
Where do expense deposits go?
Trust acct
68
Once lawyer receives client $, must notify...
Notify promptly
69
If hospital has a valid lien on client, does lawyer have obligation to honor the lien once settlements received?
Yes
70
Communicating ‘take it or leave it’ fees to client permissible?
Yes. Lawyers need not offer an alternative fee nor inform clients that other lawyers might offer an alternative.
71
What can lawyer pay for regarding expert witness?
Accomodations & travel.
72
1. May attorney advance court costs and expenses?
2. Indigent clients?
1. Yes
2. Can pay court costs without repayment.
73
Expenses NOT ok to charge client?
1. Overhead
2. Excess of actual costs
74
Courts delegate fees in 3 ways:
1. Direct discipline
2. Court reduction
3. Court determines fee
75
Non-engagement letter requirements:
1. Not taking case (unequivocally)
2. referral
3. SOL
76
What test applies to lack of competence?
Strickland test
77
Strickland test:
1.
2.
1. Ineffective assistance of counsel
2. Prejudice [but for counsel conduct, a diff result would have occurred]
78
Attorney-Client relationship formation:
1.
2.
3.
1. Express
2. Implied
3. Appointed
79
____ Case: A lawyer can't engage in conduct improper direct conduct or even 'indirectly' through the acts of another.
Pautler case
80
Primary fiduciary duties to client:
1. Competence
2. Dilligence
3. Communication
4. Loyalty
5. Fairness
81
Client murder weapon. He tells you where it is. It's a past crime. Must you disclose?
You can't disclose. It's a past crime and you do not have 'possession.' Even if it was a future crime, it is discretionary to reveal.
82
T/F) Majority of states hold that tangible evidence of crime in 'possession' of atty is NOT subject to privilege.
True. If it is in 'possession' you must turn over or risk accessory.
83
T/F) Lawyers have ethical duty to maintain confidentiality for past and future crimes.
False. Past crimes only. Future crimes is still discretionary.
84
MPRE Q2: Lawyer reveals client property fraud to buyer from a previous – unconnected sale with another lawyer. Did he violate MR?
Lawyer can only reveal property or financial fraud that is connected directly to his services.
85
When can a lawyer reveal property or financial fraud?
It is discretionary. Can reveal when directly connected to his services.
86
MPRE Q: Lawyer has fundamental disagreement with client over repugnant matter but assists him anyways. Subject to discipline?
No. It is discretionary to withdraw over fundamental disagreement over repugnant matters.
87
T/F) A lawyer’s job is to present to the court a valid claim for bail, even when the lawyer knows that the client may commit another crime.
True. Planning is not enough. You need actual knowledge that he will commit a crime.
88
Problem 3-1: Your client admits to killing a girl. He left the body in a mine. He ‘plans’ to seek release and better hide the body on bail. Disclose?
No. Disclosure here would not prevent ‘reasonably certain death or substantial bodily harm.”
89
Duty of confidentiality: When can you break? Is it mandatory?
1. Client consent
2. Working with other attorneys [implied]
3. Prevent 'reasonably certain death or harm'
4. Prevent crime or fraud
5. Prevent financial / property crime 'directly connected to lawyer services.'
6. Defense against legal action
7. Court order or Law [child]
It is discretionary.
90
ACP [Evidence rule] factors:
1. Privileged persons
2. Comm
3. In confidence
4. Legal advice
91
ACP protected unless...
1. Waived
2. Crime exception [advice sought to commit a crime]
92
If a lawyer is asked to hold a large sum of money for a long time, is it appropriate for the lawyer to put the funds in an 'interest bearing' account?
yes
93
Advances must be put into client trust account. T/F
True
94
T/F) Atty not permitted to withdraw his 'earned funds' from a settlement award until a full accounting has been rendered to the client.
True
95
Can a lawyer dispense moral advice & legal advice?
Yes
96
T/F] a judge cannot permit her family interests or relationships (e.g., her husband’s political candidacy) to influence her judicial conduct.
True
97
T/F) Lawyer is subject to discipline for stating 'personal opinions' when arguing a case to the jury.
True.
98
T/F) During trial, lawyer can't communicate -- even outside court-- with jurors, on any matter whatsoever.
[baseball talk at Deli]
True
99
T/F) Lawyer shall not make public statements outside courtroom that has 'substantial likelihood' of materially prejudicing a case.
True
100
Is it proper to pay travel expenses for a lay witness?
Yes this may be charged to client trust account.
101
T/F) A non-lawyer can't own any interest in a law firm.
True
102
Q) Can a non-lawyer employee be a shareholder in the law firm?
No
103
When must a lawyer refuse to take on a new client?
1) Client goal is improper
2) The COA is frivilous
3) Conflicted, personal feelings on client's matter
4) Atty health or competence lacking
104
Does a lawyer owe a duty of confidentiality to a prosepective client whom he does not take on?
Yes.
105
1. When must lawyer communicate fee arrangment to client?
2. Exceptions?
1. Before or within a reasonable time of service commencement.
2. Regularly represented clients
106
Advance payments: Lawyer may require fee to be paid in advance but...
... must return or refund any unused portions.
107
Retainer Fee: T/F) A lawyer who is fired or withdraws generally must return/refund the retainer fee.
False. Retainer fees are earned when received. Need not return.
108
When may a lawyer accept property in return for services?
When the property is not subject to litigation / pending COA. Will be subject to rules of business transactions with clients.
109
Business transactions with clients?
1. Reasonable and fair
2. In writing
3. Client consent
110
Client pays Murdock 2K in advance. Murdock asks for 3K in middle of trial or will withdraw. Proper?
No. A lawyer must not make fee agreement that could curtail services in the MIDDLE of services.
111
Murdock agrees to represent W in martial dissolution case for 10% contingent fee. Proper?
No. Lawyer prohibited from charging contingent fees in 1) Criminal & 2)Domestic litigation matters.
112
Exception to no contingent fee for domestic matters?
Proper to secure money that is PAST due under alimony or support decree.
113
T/F) Atty can charge continent fee to secure PAST due alimony money.
True, this is an exception to the rule of contingent fees.
114
T/F) Contingent fees must be reasonable.
True
115
Murdock charged contingent fee for medical malpractice case. [Which is proper]
Murdock worked two hours and secured 33% of settlement award. Proper?
No. Attorneys prohibited from charging UR contingent fees, as is the case here.
116
1. Must a contingent fee be in writing?
2. If so, what requirements?
1. Yes
2. Signed by client
How calculated
What deducted
When deducted
What MUST be paid regardless of outcome
117
T/F) As a general rule, a Lawyer must NOT split a legal fee with another lawyer. Unless when?
True. Partners & Associates within a firm. [naturally, these situation involves pooling resources.]
118
When two lawyers work together on a matter and submit to the client a single bill for splitting, what is required? [This is an exception to fee splitting]
1. Split proportionate to services of each Atty
2. Fee is reasonable
3. Client consent in writing
119
Referral fees are ethical. [T/F]
False
120
Lawyer may limit scope of representation if:
1.
2.
1. Limit is reasonable
2. Client consent
121
When can a lawyer represent two clients who have concurrent conflicts of interest?
1. Lawyer explains material risks and alternatives
2. Both consent
122
When client fires attorney, client must pay what?
Quantum Merit - Reasonable value of work completed.
123
MANDATORY withdraw reasons?
1. Attorney disability [health]
2. Illegal
3. Ethical violations
124
Murdock represents homeless vet. Takes case. Homeless vet's claim later turns out to be frivilous. Can Murdock stay on?
No. Mandatory withdraw or ethical violation -- Frivilous claims.
125
When MAY attorney withdraw?
For any reason if client not adversely effected OR client consents.
126
If withdraw would be adverse on clients interests, when MAY he still withdraw?
1. Fundamental disagreements
2. Repugnant
3 financial hardships
4. client not cooperating
other good cause, etc.
127
What must lawyer do after withdraw?
1. Notice
2. Time to find new lawyer
3. Return 'unearned' fees
4. Return docs
128
Membership in state bar association is required 4 a person to practice law by:
1. Some states
2. No state
3. All states
1. Some states, rules vary and we have reciprical states.
129
T/F) A lawyer who commits a criminal act can be disciplined for it whether or not he was convicted of a crime.
True
130
What are the key words for mandatory reporting of lawyer misconduct?
Misconduct is such that it raises "substantial question" as to that lawyer's fitness to practice Law.
131
T/F) If a lawyer takes a case outside his expertise and does not inform client about his lack of experience, this is grounds for discipline as a violation of MR.
False. It is not required but may be good practice. If you are licensed and do the work, your good.
The key: If unfamiliar, you must "study up."
132
Under [Case], an Attorney-Client relationship is formed when an individual seeks legal advice and it is given. [Reasonable reliance also required]
Togstad
133
If a friend asks you a legal question, you give legal advice and then part ways... Has an attorney client relationship been formed?
Yes. Togstad.
134
Does a lawyer always have to communicate settlement offers? Any time when Lawyer can reject without notifying?
If the client has delegated this authority to Lawyer, then Lawyer may reject. So yes.
135
Can a lawyer hand over a case to another lawyer without client prior consent if circumstances demand expedited transfer?
No. You need client consent or the transfer breaches duty of confidentiality.
136
Bum hires Murdock. Murdock charges 33% contingent fee. Nothing in writing. Any issues?
Yes. Fee is high but reasonable, the problem is the writing. Contingent fees must be written.
137
T/F) Attorney's can advance court costs to clients.
True
138
Normally, Attorneys must wait until closing of litigation to get rights to book/film IF it is subject of litigation.
What if the book/film is not subject of the litigation.
Then it's ok to do so right away assuming compliance with business transactions rule.
139
A lawyer may not make an agreement limiting lawyer's liability for malpractice unless what?
Unless the client is independently represented in making the agreement.
140
Attorney's may not accept 'substantial' gifts from clients unless when?
1. Unsolicited & 2) A sep. lawyer handles the associated documents.
141
May senior lawyers exempt its associates from compliance with the duties imposed on each indiidual lawyer by the ethics code?
No
142
If a subordinate lawyer follows supervisor's direct order and violates the rules, is he subject to discipline?
Exceptions?
Yes, unless the supervisor's direct order was a "reasonable resolution" of an arguable Q of professional duty.
143
T/F) In cases involving litigation b4 a tribunal, the ethic rules applied are those of the J where tribunal sits.
True
144
T/F) Lawyers must report misconduct even if it would violate client confidentiality.
False
145
Trigger for reporting misconduct?
"Substantial Q"
146
Can attorney be subject to discipline even if the 'bad acts' are unconnected to legal work?
Of course
147
Lack of competence can amount to "___ ____ ___" malpractice claims by client.
"Ineffective assistance of counsel"
148
Malpractice claim 4 IEC: What must client show?
1. Fell below 'reasonably effective' assistance
[Presumption for lawyer]
2. Prejudiced the client [Strickland test] - [But for his conduct, a diff. result would have been reached]
149
Is it permissible to take mortgage on client's RE or security on property (mustang) that is not subject to litigation?
If the value proposition is reasonable, yes.
150
Murdock received $1m settlement offer.
Called client for 5 hrs, no answer.
Rejected over and went to trial.
Jury awards client $5m.
Is Murdock subject to discipline?
No. He violated the MR yes but client must show that she suffered actual damages. Here, she did not.
151
Do the MR require that a lawyer reveal to prospective client that client might obtain similar services elsewhere for a lower price or no price at all?
No.
152
T/F) A Lawyer is NOT required to accept a client whose cause the lawyer regards as repugnant.
True
153
T/F) Lawyer's may NOT reveal confidential information to respond to allegations in a lawsuit by client
False. This is permissible exception for client confidence disclosure.
154
Lawyers in a firm, may, in the course of firm's practice, disclosure to each other information relating to a client of the firm.
Does this include training materials, or must the disclosure be directly related to litigation?
Can be disclosed for training as well.
155
Murdock informed of past murder by client.
T/F) Murdock must reveal b/c not to do so would stunt the ongoing state investigation.
False.
156
T/F) A lawyer may not reveal confidential client information outside of the Law firm, even for purpose of securing advice about ethical obligations of reporting. [Child abuse case example]
False. Can reveal info to get advice on ethical obligations.
157
Trigger words for breaking client confidentiality to report future harm/death?
It must be "REASONABLY CERTAIN that SUBSTANTIAL BODILY HARM OR DEATH" will occur.
158
Does reporting a crime that is required by law overide the duty of confidence to your client?
Yes. If there is a specific statute that requires reporting, you must report.
159
T/F) use of confidential information to disadvantage of client is impermissible. [Apartment scenario]
True
160
T/F) To report a crime of fraud, the crime must be DIRECTLY connected to the Lawyer's services.
Any other requirements?
True.
Must also be a FUTURE crime.
161
Disclosing crime/fraud/death/substantial bodily harm. This is mandatory. T/F
False. Discretionary.
162
Conflict between potential client and your employer. [Law school example] Do you need consent from all parties?
Just the students because the school is not a client, it's your employer.
163
Can a lawyer or law firm EVER share legal fees with a nonlawyer?
No with very limited exceptions.
164
Murdocks helps foggy's brother, Sam, apply for food stamps. Murdock also loans Sam $500 to hold him over. Permitted?
Yes. Lawyers are only bared from financial assistance with 'clients' "in connection with pending or contemplated litigation."
Sam = Not a client
Food stamps = Not litigation
165
Murdock helps homeless veteran Dan pro-bono against PWC counseling services.
Murdock gives veteran Dan $500 for hotel.
Permitted?
Yes. "Lawyers representing clients 'pro-bono' may provide modest gifts to the client for food, rent, transportation, and other basic expenses."
166
Exceptions to giving client money? [Not loaning.]
1. Pro-bono allows for modest gifts
2. Can give when not connected to litigation.
167
Murdock and Foggy split a fee porportionalty but Foggy does all the work. Permitted?
Yes, if 1) Reasonable & 2)Writing signed by client.
168
In general, lawyers may not limit malpractice liability except as to clients independently represented. However, since lawyers can't reduce liability by arbitration, it is NOT required to advise on counsel. [T/F]
True
169
T/F) A lawyer can't use client funds, no matter how noble the purpose.
True
170
Murdock represents Frank in criminal trial.
Murdock reasonably believes Frank will lie on the stand.
Murdock refuses to allow Frank to testify.
Subject to discipline?
Yes. Must have 'actual' knowledge that the testimony will be false.
171
T/F) In a criminal case, Murdock can publicly reveal the identity, residence, occupation, and family status of occused.
True
172
T/F) The rules generally bar a lawyer from being an advocate at trial and a witness.
If true, exceptions?
True
Permitted if his disqualification would work "substantial hardship" on the client.
173
If Murdock knows that the client has offered material evidence and Murdock learns of its falsity, Murdock shall take...
"Reasonable remedial measures" including "disclosure to tribunal if necessary."
174
When can a lawyer limit representation?
1. it is reasonable to do so
2. AND client consents
175
Suspected crime or fraud. Does the attorney have a duty to "inquire and assess?"
Yes.
176
If lawyer and client can NOT come to agreement. May the lawyer withdraw?
Yes. The client may also fire the attorney. Arbitration should be tried though.
177
Can a lawyer take emergency actions for non-client with diminished capacity? [Incapacited]
Yes. But should consult with someone acting on person's behalf b4 proceeding.
178
Must lawyer inform client of mistakes made?
Yes.
179
What classes of adversarial parties and clients can't lawyer interview/engage with? [Regarding an organization]
1. Entity
2. Agents of entity
3. Employees of entity
4. Persons whom entity has VL over
180
Who is primary enforcer of the rules on Lawyers?
State & Federal Courts who adopt the ethical rules governing lawyers.
181
A subordinate lawyer does not violate a rule if he acts in accordance with a supervisor's ____ _____ of an arguable question of professional duty.
"Reasonable resolution."
182
Lawyer licensed in two states, A&B.
Incident occurs in State B.
Which state rules govern?
"Rules of the jurisdiction in which the lawyer’s conduct occurred."
183
What rule is Confidentiality / Disclosure of client confidentiality?
MR 1.6
184
Conflict of Interest: Current clients is what rule?
MR 1.7
185
A. When do "concurrent conflicts of interest" exist according to MR 1.7? [Representing two clients]
B. When may lawyer proceed with two adverse clients?
A.
1. Adverse to other client
2. Materially limited representation
B.
1. Lawyer believes can provide competent & dilligent rep. to both.
2. Not prohibited by law
3. 2 clients not in litigation against one another
4. each gives written consent
186
MR 1.7:
When can you represent two clients at the same time?
1. Competent & dilligent for both
2. Not barred by law
3. written, informed consent by both
4. They are not in litigation against each other
187
Duty to former clients rule?
MR 1.9
188
MR 1.9 prohibits what?
Lawyers from representing new clients on a matter they previously represented a past client, especially when new client's interest adverse. This also applies to Law Firm clients.
189
3 main roles of the lawyer that creates tensions?
1. Fiduciary
2. Officer of the court
3. An Individual
190
What are some examples of lawyer's role as an "Officer of the Court?" in the MR?
1. No frivilous claims
2. Report perjury
3. Can't comm with adverse parties
191
Lawyer can't solicite "live" services unless when?
1. Past relationship
192
What rule did the court find Pautler violated?
MR 8.4 Misconduct
193
What rules apply to lawyers?
1. MR
2. State laws
3. BAR rules
194
Must a lawyer 'know' to report misconduct by another lawyer?
Yes. KNOWS is very different from suspects.
195
A lawyer must report misconduct when he has 'actual' knowledge of misconduct that raises "substantial question" as to Lawyer fitness to practice law.
IE: A lawyer must 'know.' What of a judge?
Judge can report when the judge believes there is "substantial likelihood" that another judge or lawyer violated MR, codes, etc.
196
Trigger word for lawyer to report?
Actual knowledge + Substantial question
197
Trigger work for judge to report?
Substantial likelihood
198
When may lawyer rely on supervisors order to not report?
"Reasonable resolution"
199
Law firm: Who must have procedures in place to ensure lawyers & non-lawyers comply with MR?
Managers, Board, Parter, etc. [Not the associates]
200
Lawyer can't engage in business transaction adverse to client interests unless when:
1.
2.
3.
4.
1. Fair terms to client
2. Essential terms in writing
3. Advised in writing to get indp. counsel
4. Client consent, in writing.
201
Regarding reporting, can "conscious avoidance" or deliberate ignorance be treated as having actual knowledge?
Yes, so be careful.
202
What is your test for IAC of counsel?
Strickland Test:
1. Fell below REA
2. Prejudice: But for his conduct, reasonable probability diff. result reached.
203
When considering IAC claim by client, court considers facts in deference to whom?
Highly deferential to the lawyer with strong presumption that counsel conduct was reasonable.
204
When is prejudice presumed under Strickland?
1. Conflict of interest
2. Attorney don't follow client instructions
3. So deficient that trial did not constitute true adversarial proceeding.
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Limited engagement letter rules?
1. Reasonable
2. Say what it is
3. Say what you cover
4. In writing
5. If ambiguous, construed against attorney.
6. AI Provision
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Mandatory withdraw?
1. Disability
2. Conflict interest /ethical violation
3. Illegal
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How can you ensure you wont have to withdraw later before taking on a new client?
Investigation agreeements
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Security for fees: Is it ethical to make client sign "release of liability?"
Not generally, unless client independently represented by counsel.
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Does arbitration insulate lawyer from liability or limit it?
Nope
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You can't make client pay for copies of docs entitled to received but can charge for others such as?
Reasonable fees for docs created or obtained for the case. Such as medical records.
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Can you include a provision requiring arbitration of fee dispute?
Yes but it will not insulate you from liability.
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Is electronic storage of client files permissible?
Yes if you can access immediatly.
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What is the purpose of limited engagement agreement?
1. Clarify client expectations and what lawyer is going to do and not do + limit lawyer liability.
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Is it permissible for lawyers to exclude certain activites in connection with a matter?
Yes if reasonable.
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Impaired client?
Lawyer should maintain a normal relationship.
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Incapacitated?
If at risk of substantial harm, cant act in own interests, MAY take "reasonable protective action." 'RPA'
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What action may lawyer take for incpacitated client?
Reasonable protective action
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Incapacitated client wants to take the stand.
What can you do?
You can go either way.
1. Not present her testimony b/c you believe not in her best interests.
2. Raise the competency issue to ensure the fairness of a proceedings and bc some authorities hold that ∆ counsel has this duty.
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Your client whom you reasonably believe is incapacitated, instructs you not to offer mitigation evidence at trial.
You can offer, it is discretionary, and offering up evidence is discretionary, so it can be justified.
220
Requirements for lawyer to take action for incapacitated client?
1. Reasonable belief
2. Substantial harm
3. Cant act in own interest
*Preliminary: Lawyer must make assesment of clients capacity
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Preliminary step b4 taking action for incapacitated client?
Make assessment of their competence.
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When you take action for incapacitated client, what steps first?
Start with least restrictive and work up.
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Cant break confidentiality unless one of three overarching reasons.
1. Consent
2. Implied consent
3. Exception bucket
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Duty of ACP is a rule of _____.
Evidence
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Reasons ACP broken?
1. Waived
2. Seeking illegal advice
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Reasons conf. duty broken? [Discretionary bucket]
1. Consent [implied or express]
2. Sub. death / bod. harm
3. Crime / fraud
4. Legal ∆
5. Seek ethical advice
6. Required by law
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Reasons conf. duty broken? [Mandatory]
1. Candor toward tribunal
2. Assisting crime / fraud
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"Fruits" of criminal conduct =
Tangible criminal material
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Stolen money =
Weapon =
Narcotics / child explicits =
Tape recordings =
1. fruits
2. Instrumentalities
3. Contraband
4. Tangible evidence
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T/F) Under the RST, lawyer may [when reasonably necessary], for rep. purposes, take possession of evidence to examine it.
True. Must be reasonable time frame and MUST turn over after.
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How doe the MRs line up with RST for tangible criminal evidence?
MR says statutes determines ethical duty.
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T/F) Overwhelming majority of states hold that physical evidence in possession of atty is NOT subject to privilege.
True [Commonwealth v. Stenhach]
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Commonwealth v. Stenhach?
Physical evidence in possession of attorney is not subject to privilege. Turn that shit over.
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Are attorneys prohibited from altering or destroying material?
Yes. Federal Obstruction of Justice Statute.
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Q. If Def. counsel learns from client, location of murder weapon, duty to inform authorities?
No. Not in possession. [CW v. Stenhach]
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Can you put client's murder weapon in safety deposit box and hold until subpoena?
No. [Ryder] & [Commonwealth v. Stenhach]
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Willful blindness =
Actual knowledge. [Money bag]
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T/F) Destroying child explicit material is permitted b/c it is contraband and illegal to posssess.
Only true if there is no legal action pending or forseeable.
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Client tells you they have child porn. What to do?
1. Advise FED crime
2. Advise to destroy if no pending action
3. Don't take as client
4. Break his kneecaps
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If lawyer comes into possession of contraband, he must turn over. But what of client with no pending litigation?
Advise client to destroy then break kneecaps.
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Incriminating documents... not self identifying like fruits of crime so Atty has obligation to disclose. [T/F]
True
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Instead of taking possession of potentially incriminating electronic documents, what should you have client do?
Upload to virtual data room.
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what rule governs false testimony?
3.3: Candor toward tribunal
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What does 3.3 say about false testimony.
Must not allow. If it happens, must take reasonable remedial measures, including disclosure or withdrawl if necessary.
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Perjury rules under 3.3 is grounds for [discretionary/mandatory] withdrawl.
Mandatory
246
When does lawyer know that a client intends to testify falsely?
1. Inferred knowledge
2. Actual knowledge
247
Steps if client comitts perjury?
1. Counsel to fix
2. Disclose
3. Withdraw if necessary
248
If a lawyer withdraws b/c of perjury, does this affect his duty to take remedial measures?
Nope. Must still disclose.
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Under 3.3, is withdraw MANDATORY when perjury occurs or will occur?
It is discretionary under 3.3.
250
Standard for inference knowledge of perjury?
Firm factual basis
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T/F) A lawyer who takes action to interdict false testimony based on mere belief probably violates Ds right to effective assistance of counsel.
True. Must have actual knowledge or infer based on "firm factual basis."
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If lawyer reasonably believes but does not know that testimony will be false?
Must allow to testify. We need 'actual knowledge' or inference based on FFB.
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What if ∆, criminal trial, wishes to testify and you know if will be false?
1. Dont call directly
2. Inform court client wishes to excercise his const. right to testify.
IE: Let him call himself through Narrative testimony.
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What about witnesses in criminal trial who wish to testify falsely?
We can stop them.
255
Standard for perjury is diff for witnesses. What is it?
1. Witness = Reasonable belief
2. Client = actual knowledge or FFB
256
6 amendment ___ ____ clause grants them right to testify in their own defense.
Compulsory process clause
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Nix v. Whiteside
Lawyer properly advises client against perjury. ∆ convicted of murder and files malpractice against lawyer. This fails.
258
Client interview:
1. Im going to kill someone =____ reporting
2. Perjury = ___ reporting
1. Discretionary
2. Mandatory
259
T/F) MR 3.3: A lawyer's reasonable belief that the evidence is false does not preclude its presentation to the triers of fact.
True. You must have actual knowledge. Inferences only allowed when based on FFB.
260
A prospective client telling an attorney the facts of her case but the attorney declines to take the case.
Protected by ACP?
Yes.
261
Lawyer may not include liability limiting provision unless what?
Client is actually represented by another attorney when signing the agreement.
262
2 client scenario:
Students v. University whom employs you.
Whose consent do you need?
The students b/c they may receive limited counsel b/c of your empoyee / employer relationship.
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T/F) Retainer fee agreements do not violate the prohibition on limiting future malpractice liability when they have one because binding arbitration clauses merely shift malpractice claims to another forum.
True but the client must also be represented by independent counsel.
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