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Prof. Resp. > Prof. Resp. > Flashcards

Prof. Resp. Flashcards

1
Q

Receiving Wrong Info From Other Party (Accidentally)

A
  • Promptly notify the sender

- If its really damaging, notify the judge

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2
Q

Failure to Disclose in Bar Application

A

Burden is on the applicant to prove by Clear and Convincing Evidence they are fit to be part of the bar.
Standing Committee can approve applicants after a hearing.

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3
Q

Character and Fitness Considerations

A

Take into account age, when incident occurred, restitution and rehab, candor, and attitude of applicant. 2 year waiting period after an adverse decision by the bar.

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4
Q

Attny - CL Relationship

A

-Legal advice/services have been sought by CL and given by Attny
-Perception of the CL is impt
-Needs to be an actual connection b/w attny and CL
GENERAL RULE: Attny’s are not public utilities and can refuse CL’s (unique to the US)

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5
Q

Advertising on Internet Disclaimer

A

All Attny websites should say that any communication via website is not establishing an Attny-CL relationship

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6
Q

Being Appointed (R 6.2)

A

Lawyers can’t avoid being appointed unless there is good cause like:

  • repping would violate PR rules
  • repping would likely result in an unreasonable financial burden on atony
  • CL or cause is so repugnant to the lawyer as to be likely to impair the atony-CL relationship or the lawyers ability to rep CL
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7
Q

Prospective CL Rule (1.18)

A

Giving someone a consultation. Must keep consultation info private unless necessary for giving info on former CLs (R 1.9). Cannot rep OP (“interests are materially adverse”) if attny received info that could be significantly harmful to prospective CL > attny would be disqualified and so would whole firm, UNLESS:

  • get written consent from prospective CL and OP attny wants to rep OR
  • disqualified attny took reasonable measures to avoid exposure to more disqualifying info than necessary to determine representation AND did an ethics screen and gave written notice to OP firm wants to rep
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8
Q

Informed Consent (R 1.0e)

A

“the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”

Advised CL of risks and avenues and CL is waiving certain actions in the investigation of the case. Put limits in retainer. Limits must be reasonable under the circumstances.

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9
Q

Duties in Attny-CL Relationship

A
  • Agency relationship
  • Best practice to always have a written retainer agreement, but only req.d for contingency agreements
  • Rep. diligently
  • Protect CL’s confidences
  • Protect CL’s financial issues (fiduciary duty)
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10
Q

CL’s Criminal or Fraudulent Actions

A

Attny cannot counsel or assist a CL in doing something criminal or fraudulent. Withdraw from rep if CL presses matter after you try to dissuade them from doing it. If they are going to commit crime/fraud then do a noisy withdrawal.

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11
Q

Abide by CL’s Decisions about Fundamental Aspects of a Case

A

Pleaing, settling, ect.
Attny can and should shape rep w/ tactical decisions like when/what motions should be filed or what witnesses should be called. Attny should still explain these choices to CL

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12
Q

CL w/ Diminished Capacity

A

Attny has a duty to make an effort so CL understands. Refers to education/mental/ emotional/anything that effects CLs ability to make decisions abt case.
Duty/burden on attny to comm. impt milestones in case w/ CL.
Crim > have to give CL all paperwork.
Civil > have to tell CL if you messed up.

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13
Q

Statute of Limitations for Lawyer Malpractice

A

2 years

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14
Q

Frivolous Cases (R 3.1)

A

Don’t take frivolous cases. Judged on a good faith basis.
On its face frivolous: suits brought by animals, Rico actions out of divorce cases (not a thing).
Punishment: sanctions, contempt, fines, paying attunes fees ect.
Attny’s signature verifies that attny has read doc, and the case is being brought in good faith (based in law and fact) and not maliciously or to hurt someone.

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15
Q

MI Contingency Fee Rule

A

Can’t be more than 33%. All attnys working on case split that 33%.

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16
Q

Declining or Terminating Rep. (R 1.16, 1.2)

A
  • Must w/draw if CL discharges you, rep will result in violation or rules/law, or your mental or physical condition materially impairs rep
  • Can’t w/draw if there will be a material adverse effect
  • May w/draw if: CL uses(d) lawyers services in crime/fraud; CL insists on doing something repugnant to attny or that attny disagrees w/; CL fails to fulfill obligation to attny and attny has warned CL about it; rep will cause financial burden; CL has made things unreasonably difficult; other good cause
  • When w/drawing, must give reasonable notice to ct, return CL files, ask ct to extend deadlines so CL can get new attny
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17
Q

Pro Hac Vice (R 5.5)

A

“For this one case.” An attny practices somewhere other than where they are admitted. Tell CL you don’t know the law in that state but if they want you to rep them you can under PHV. Must motion for PHV, otherwise you are practicing w/o a license. Can be accompanied/sponsored by an attny of new jurisdiction who is in good standing with that bar (one way to get PHV) (Must in MI). Can’t have an office for practice of law if you don’t have a license in that area (fed or state). Can obtain a special license or can handle in-house issue if you’re not licensed in state where you are in-house.

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18
Q

Choice of Law for Disciplining Attny (R 8.5)

A

Attny is subject to disciplinary authority in state where barred and state where misconduct occurred. Can be disciplined in two different places for the same misconduct. Use the rules of the jurisdiction where the tribunal sits or where the conduct occurred or where the predominant effect of the conduct occurred to determine if misconduct occurred.
Ex: lawyer doesn’t get CIEL so they get suspended in FL but MI doesn’t req. CIEL so lawyer isn’t suspended in MI.

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19
Q

Sharing Fees with a Nonattny (R 5.4)

A

Can’t do it. Can’t have a nonatty be in position of power in a legal corp/firm > firms can only be owned by attnys.
Exceptions:
-agreement for payment of fees after a lawyers death to estate or widow
-buying a deceased attny’s practice > proceeds go to estate
-nonlaywer employees can be included in compensation/retirement plan even if based in a profit-sharing arrangement
-sharing court awarded legal fees w/ non-profit that hired lawyer

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20
Q

“Practice of Law”

A

A person engages in the practice of law when they counsel or assist someone in a matter of legal choice/discretion AND exercises profound legal knowledge

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21
Q

Practicing in Federal Court

A

Need to be licensed to practice in Fed Ct. Separate admission for each fed circuit, COA, Sup Ct ect

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22
Q

Arbitration

A

Can do it even if you’re not licensed in that state

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23
Q

Licensed in Different Jurisdictions

A

Put what jurisdiction each lawyer is barred in on the letter head

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24
Q

Reciprocal Discipline

A

Attnys who are disciplined in one juris is reciprocated in other juris where lawyer is admitted. Same discipline gets imposed unless attny objects. Can claim due process and argue for comparable discipline in both jurisdictions.

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25
Q

Competence

A
  • If you don’t know an area of law, research it or learn from someone in that area
  • Be zealous, but not bound to press for every advantage for CL > there is prof. courtesy
  • Duty of communication
  • Knowledge of tech
  • Can’t handle too many cases
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26
Q

Duty of Communication (R 1.4)

A
  • Active duty to update CL w/ status and ensure their understanding.
  • Clearly communicate scope, CL and attny expectations/objectives, what you expect to be paid.
  • Send out regular billings.
  • Have a written retainer and put all costs in there > if not in retainer, can’t charge for it.
  • Promptly comply w/ reasonable requests for info.
  • Communicate relevant limitations in rep (can’t help CL commit crime/fraud).
  • Keep CL reasonably informed about case (significant aspects of rep.).
  • Explain ramifications of settling.
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27
Q

Duty of Promptness

A

Be timely w/ case

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28
Q

Neglect

A

Consistent failure to carry out duties lawyer has assumed as lawyer. Pattern and consistent failure.

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29
Q

Advice (R 2.1)

A

Need to give CL candid advice. Can refer to law and other considerations like moral, economic, social, and political factors that might impact CLs situation. Don’t tell CL that a judge will decide against you b/c of race or gender.

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30
Q

Legal Malpractice Analysis (Strickland)

A
  • Objective std of reasonableness
  • Reasonable probability that but-for counsels unprofessional action the outcome would be different
  • Deprive D of a fair trial
  • Strong presumption that attny didn’t act unreasonably
  • Need to show sufficient prejudice
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31
Q

Duty of Diligence

A

Preparing your case, filing appropriate motions, asking for appropriate disc., ect. Failure to do so will result in ineffective assistance and maybe discipline

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32
Q

Test for Legal Malpractice Liability

A
  1. Duty of Care Owed in an Attny-CL Relationship > invited reliance for CL on give advice; in probate/trust someone other than CL will benefit
  2. Breach of Duty of Care > use established std of care > general practitioner is expected to know/have the knowledge and skills of ordinary attny; if specialized then knowledge/skills for that area is std
    • need expert testimony
  3. Actual Harm > proximate cause, but-for D’s negligent act, the result wouldn’t have occurred; “trial w/in a trial”
  4. Economic Harm/Damages > need purely economic damages
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33
Q

Legal Malpractice in Criminal Cases

A

Need to prove actual innocence to bring a legal malpractice suit

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34
Q

Avoiding Malpractice

A

If you mess up, tell CL and offer to make them whole by compensating them but tell them to seek independent professional counsel and give them a reasonable time to think about it.

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35
Q

Breach of Fiduciary Duty

A

-Issues of loyalty and honesty

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36
Q

Breach of Confidentiality

A
  • Show damages from breach

- Disgorgment by attny

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37
Q

Malpractice Insurance

A

Usually not req.d, but may have to tell bar if attny does or doesn’t have it. Usually have to report any grievance that have been filed, usually doesn’t cover criminal, malicious, fraudulent acts, or fines, sanctions or penalties.

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38
Q

Vicarious Liability of Partners

A

LLCs protect a firm and others in firm. Doesn’t protect attny involved or that attny’s supervisor. W/out an LLC, all partners are liable for misconduct in firm

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39
Q

Limits in Scope of Representation

A

Must be reasonable regarding what case requires.

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40
Q

Attny Website

A

Website should been simple, plain english; there should be disclaimers; any chat boxes on websites are not considered solicitation.

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41
Q

Advertising (R 7.1)

A

-Can advertise what an attny would charge for a particular fee or service
-Can’t make false or misleading communication about lawyer or lawyers services.
> false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the stmt considered as a whole not materially misleading

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42
Q

Solicitation (R 7.3)

A
  • General Rule: can’t engage in direct solicitation face-to-face.
  • Prohibits in person or real-time contact/solicitation from lawyer but only if lawyers interest is for pecuniary gain.
  • Allows for written, recorded, or emailed solicitation but must include “advertising material” in the contact.
  • Not misconduct if lawyer sees a need and takes the case for free.
  • Can solicit to other lawyers or to family, close personal friends, or people who have prior professional relationship w/ attny.
  • No exception if the person has said they don’t want to be solicited or the solicitation involves coercion, duress, or harassment.
  • Protected under 1st A as commercial speech.
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43
Q

Certified Specialist Advertising (R 7.4)

A

An attny who is certified may call himself a certified specialist, provided that he identifies the organization that certified him and takes related steps to avoid misleading the public. Organization must be approved by appropriate state authority or accredited by ABA.

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44
Q

Florida Bar v. Went for It, inc (advertising regulation case)

A
  • 30 day cooling off period after a personal injury issue before ads for attnys can be sent
  • Std for regulation of advertising:
    1. is expression protected by 1st A and not false or misleading
    2. whether asserted gov interest regulating the interest is substantial
    3. does that regulation directly and materially advance that governmental interest
    4. whether that regulation is not more than necessary to enforce that interest
  • Can have targets ads
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45
Q

Runners (R 7.2)

A

Person who is getting something of value if they solicit CLs on your behalf. Can’t use a runner. Can pay normal ad costs but can’t pay money for referrals/leads. Can use bar referral services.

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46
Q

Referrals to Other Lawyers

A

Can refer CLs to another lawyer if there’s an agreement but CL needs to be advised of it.

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47
Q

Firm Names (R 7.5)

A

Trade names are allowed but can’t be improper or misleading (“iwinbig.com”). Can’t hint you’re associated w/ gov or non-profit if you’re not.

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48
Q

Lawyer Holding Public Office (R 7.5)

A

Name must be taken off firm letterhead and law firm

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49
Q

Improper Influence (R 8.4)

A

Can’t state or imply you have undue influence w/ a court or gov representative

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50
Q

Ex. of Target Advertising

A

Can advertise to a subset of people. Can’t hand out flyers outside of a plastics factory to affected people. Can’t hover around places where CLs might be > this could be considered pressuring face-to-face.

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51
Q

Doctors and Referrals

A

Can’t send letters to doctors saying to give referral out to patients but can have reciprocal referral agreement as long as its not restricted and there’s no payment. There can’t be an obligation.

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52
Q

Fees

A
  • Contigent
  • Flat
  • Nonrefundable
  • Advance
  • Can’t pass to CLs the merchant fees charged on credit cards
  • Can charge for paralegal time but not secretary time > this is general overhead and can’t be charged to CL
  • Must put what costs you will charge for in written agreement
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53
Q

Retainers

A

Basically a K for services. Fiduciary relationship so it is not construed at arms length and it is read against the attny b/c they are drafting it.
[Engagement fee]: Can also refer to a fee given by CL to remain available for a certain matter or time frame (and thus be unavailable to others for that time and matter). Belongs to attny and should not be put in a CL trust account.

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54
Q

Written Agreement

A
  • Clear, concise, spell out responsibilities and scope of representation and duties of each party, signed and dated. Note how you will charge fee (contingent, flat, nonrefundable).
  • Any changes/reformations must be in writing.
  • Cannot prohibit attny from being discharged and can’t give attny settlement power.
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55
Q

Nonrefundable Fee

A

Must be in writing. Done at the outset. Immediately available to attny. Easy to ask if fee is unreasonable/excessive. Don’t go into CL trust account.

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56
Q

Advance Fees

A

Fee for work to be done in the future.
Can be an advance for expenses > put in CL trust account.
Can be an advance for attny fees > put in CL trust account and withdrawn by lawyer only when earned (best practice to send notice when this will occur and give CL 30 days to contest).

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57
Q

Charging Interest

A

Can charge interest but it can’t be higher than the statutory rate.

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58
Q

CL Story Rights

A

Attnys don’t have right to this and can’t charge a CL for the right to their story.

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59
Q

Charging for Grievances

A

Can’t charge CL for responding to a grievance

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60
Q

MI Contigent Fee Rule for Personal Injury, Wrongful Death, and No-Fault Benefits (8.121)

A

Maximum charge is 1/3 of amount recovered. All attnys in case must split the 1/3 of amount recovered.
Can charge more than 1/3 in non-personal injury cases.

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61
Q

Fees and Domestic Relations (R 1.5d1)

A

Lawyer can’t charge contingency fees based on the securing of a divorce or upon the amount of alimony or support or property settlement.

62
Q

Fees and Criminal Defendants (R 1.5d2)

A

Can’t charge a contingent fee for repping a criminal defendant

63
Q

Excessive Fees (R 1.5)

A

Can’t charge unreasonable fees. Factors for determining reasonableness:

  1. time/labor involved; novelty/difficulty involved; skill req.d to perform properly
  2. likelihood that accepting this employment will preclude attny from other employment
  3. fee customarily charged in that locality
  4. amount involved and results obtained
  5. time limitations imposed by the CL or circumstances
  6. nature and length or professional relationship w/ CL
  7. experience, reputation, and ability or attny(s) performing services
  8. whether fee is fixed or contingent
64
Q

Fees w/ Other Attnys

A

If joined by another attny from another firm, you can only share fees based on the % of work performed.

65
Q

Leins (R 1.8i1)

A
  • Lawyer can acquire a LIEN to secure fee or expenses. Must be in writing, clear and reasonable, signed by CL, advise CL to seek independent counsel and give them time to do so.
  • General or Possessory LIEN: do it on CL’s property that you have in possession like files or jewelry (but if action is still pending you must turn over files).
  • Special or Changing LIEN: created by lawyers services > ex. in personal injury case, attny tells insurance co to hold all award abasing a lawyer lien to get payment.
66
Q

Prohibited LIENS

A

Can’t put a LEIN on martial property in divorce proceedings.

67
Q

Quantum Meruit

A

“As much as he has earned.” Equitable remedy based on unjust enrichment > look at % of work performed.
Means by which compensation can be obtained for services rendered where there isn’t a K.

68
Q

Settlement Checks

A

Ass soon as you get one call the CL and let them know. Tell anyone else who has the right to that money. DON’T SIGN CHECK UNLESS EXPLICITLY INSTRUCTED TO DO SO. If you do have authority, make a note of it. Money will go to a trust account and once the check clears, it is promptly disbursed to CL based on disbursement sheet. Must go into a trust account before getting split up > don’t just cash it.

69
Q

Trust Accounts

A

Three Types:

  1. IOLTA
  2. Individual CL Trust Account
  3. Pooled CL Trust Account
70
Q

IOLTA

A

Interest on Lawyer Trust Account. Usually for holding money short term. Interest gained on this account is given to the state bar to go to pro bono cases.

71
Q

Individual CL Trust Account

A

Just for a specific individual or entity. No other CL monies in this account. Interest thats generate goes to CL.

72
Q

Pooled CL Trust Account

A

Rare. Several CL’s money in one account. Interest is split up by % to those whose money is in the account. Attny must do a sub accounting for each CL to determine each interest.

73
Q

Check Clearing

A

Banks have up to 30 days to take money back from an account if a check doesn’t clear. It’s a red flag is a party is trying to change the method of payment in the middle of the case.

74
Q

Check Bouncing from Trust Account

A

Bank will notify grievance board if this happens.

75
Q

Deciding Where to Put Money

A 
Consider: 
1. how long money will be in account
2. interest made on the account
3. your needs with the accounts
Deciding in good faith to money in IOLTA will not be viewed as misconduct but money should only be there for a short amount of time. Need to regularly review accounts to determine if it's better to move money elsewhere.
76
Q

Bank Records

A

Keep complete records for 5 years. Banks destroy after 7 years. Prof recommends preserving for 7-10 years.

77
Q

3rd Party Funds

A

Ex. Medical LIENS. CL will prob spend money instead of paying LEIN, so give money to CT and give notice to CL and 3rd party. Money is safeguarded and out of your hands.

78
Q

Replenishment of Funds

A

If CL money goes missing, replenishment is not a defense, its only mitigating if done before offense is discovered and is basically null.

79
Q

Attny-CL Privilege Elements

A

AND

  1. Attny is called to testify
  2. Person against whom testimony is sought to be admitted is a CL or sought to be a CL
  3. Comm. was made by the CL to attny or attnys subordinate
  4. Comm involved a fact
  5. Comm was outside the presence of a 3rd party
  6. Comm was made for purposes of obtaining legal advice or services
  7. Comm not for purpose of committing a crime or tort
  8. Privilege is claimed by CL and CL has not waived the privilege
80
Q

Duty of Cooperation

A

Attny’s responsibility

81
Q

Reporting Another Attny for Misconduct (R 8.3)

A

Duty for an attny to report another attny if they are unfit to practice. Conduct must raise “a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer”

82
Q

Duty to Report a Judge for Misconduct (R 8.3)

A

Duty to report a judge if engaged in conduct that substantially gives doubt to their ability to practice or has engaged in misconduct > but need SOLID proof

83
Q

Sexual Misconduct

A

Don’t ever have a sexual relationship w/ a CL, don’t hug or kiss a CL. No touching. No sexting.
Can have sex w/ CL if a consensual sexual relationship existed prior to rep, but overall a bad idea.

84
Q

Attny-CL Privilege Generally

A

Evidentiary Std, similar to work-product privilege.

85
Q

Duty of Confidentiality (R 1.6)

A

Broad duty. Impliedly authorized to disclose what is needed to “carry out the representation” and achieve CL’s goals. CL can consent to disclosure of info. Ct can order disclosure.

Permissive disclosures: Attny can also reveal info to the extent the attny reasonably believes necessary:

  1. to prevent reasonably certain death or substantial bodily harm
  2. to prevent CL from committing crime or fraud that is reasonably certain to result in substantial injury and in furtherance of which the CL has used or is using attnys services
  3. to rectify or mitigate a crime as long as CL used your services
  4. attny can give another attny info to get advice on what to do
  5. for attny self defense in claims brought by CL or because of activities CL was involved in > must be necessary.
  6. to comply w/ ct order. CL has waived privilege here
  7. reveal limited info to resolve a conflict of interest
86
Q

Information on Crimes

A

Can’t reveal information of past crimes. No misconduct to keep info if victim is dead.

87
Q

Interfering w/ Evidence

A

If attny interferes w/ evidence then it needs to be turned over to other side.

88
Q

Attny-CL Privilege Length

A

Continues after death of CL. Name of CL is not considered confidential unless that the nature of the issue.

89
Q

Organizational Ethics

A

Guantanamo Bay Case. Attnys should adhere to the organizations ethics and follow established practices/procedures unless there are actual criminal or other concerns about org.

90
Q

CL Charges Attny w/ Wrongdoing

A

Implicit waiver of Attny-CL privilege to necessary info

91
Q

Lawyer Sues CL for Fees

A

Implicit waiver of Attny-CL privilege as necessary

92
Q

False Evidence (R 1.2d and 3.3)

A

Lawyers can’t offer false evidence in ct. If the CL (usually criminal) gives false testimony then attny must take remedial, reasonable steps to mitigate the false info. If CL insists on testifying falsely attny can make a noisy withdrawal. If CL does testify falsely then give CL a chance to change testimony. If they don’t, ask to meet w. judge and OP and put it in judge’s hands.

93
Q

Disclosing a Material Fact (R 4.1b)

A

(MI doesn’t have this rule) an attny must disclose a material fact when necessary so they don’t assist CL w/ crime/fraud

94
Q

CL Gives Attny Evidence

A

If CL brings attny evidence then attny must turn that evidence in b/c attnys are not allowed to withhold evidence from P. P can enter the evidence into the record but can’t say where they got the evidence from.

95
Q

Evidence and Info Generally

A

Has to be related to representation to be protected from disclosure. If attny has evidence, then they must disclose it. If attny knows evidence is about to be destroyed by a 3rd party, attny can just let it get destroyed.

96
Q

Co-Client Rule

A

Joint representation of multiple CLs by one attny. If one CL says something to attny abt something that effects the case, then attny has to tell all other CLs about it. No confidences or secrets among CLs but info is still protected from outside world.

97
Q

Work Product Privilege

A

Has to relate to the representation. Info comes to attny via the attny’s work. Info didn’t come from CL which makes it different than attny-CL privilege. Governs docs prepared by attnys. Only discoverable in situations where its necessary via substantial need and/or undue hardship getting materials. Can’t have attnys mental impressions

98
Q

Info From CL

A

Can’t be used for attny’s personal gain. Not an ethical claim (if it doesn’t harm CL) but could be a civil tort b/c of agency relationship. Ex. insider trading

99
Q

Issues of Waiver of Attny-CL Privilege

A

CL can waive privilege by talking to others about what they told attny

100
Q

Inadvertent Disclosure (R 4.4b)

A

Modern view: this doesn’t waive work product privilege

101
Q

Candor

A
  • Duty to correct if attny said something wrong to the court but duty only lasts until the case is done.
  • Duty to perform remedial measures of correction only if it was material (goes to heart of matter) or substantial to matters in dispute
  • Have to present facts to judge even if its bad for your CL
  • Duty to not disclose false info applies to all evidence whether material or not
  • Omissions count as a lack of candor
  • Can’t KNOWINGLY make a false stmt or fact/law, can’t hide known law or info known to be false > exception in criminal cases that D is allowed to testify
102
Q

Ex Parte Proceeding and Disclosure

A

Lawyer must inform tribunal and OP in an ex party proceeding of law or facts even if detrimental to CL

103
Q

Negotiations

A

A bit of offing is expected but can’t misrep the value of something or insurance policy agreements. Can’t lie. No duty to volunteer adverse facts unless it would be fraud.

104
Q

Fairness to OP (R 3.4)

A

Attny must be honest. Can’t obstruct another party’s access to evidence/witnesses. Don’t be shady, lying, or evasive w/ disc responses. Don’t make frivolous disc requests. Don’t tell someone, other than CL or CL’s relatives/employees/agents to not give OP info unless attny reasonably believes OPs interests will not be adversely effected by not getting the info.

105
Q

Juries

A

Can’t contact individual jury members, friend them or people close to them, can search public info about jury members, (juris specific) can hire jury selector service. Can talk to jury after but can’t bring up evidence that would make them doubt their choices or harass them.

106
Q

Duty to Expedite (R 3.2)

A

A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the CL. Causing a mistrial will violate rule.

107
Q

Witnesses

A

Can pay for usual incidentals like lost wages but giving additional compensation to a fact witness is wrong. Can pay experts, but not on a continent fee basis.

108
Q

Contacting OP’s CL or Witness

A

Can’t do it w/o requesting to do so from OP. For a corp, can’t contact anyone who has contact w/ OP, anyone whose actions impute obligations on the corp, anyone high up in corp.

109
Q

Respecting Rights of 3rd Parties (R 4.4)

A

Can’t embarrass, delay, or burden 3rd parties. Don’t use subpoena as a way to embarrass someone > can’t issue a subpoena w/o pending litigation or a filed case.

110
Q

Frivolous Litigation (R 3.1)

A

Must be a basis in law or fact to bring a case. High std to prove a case is frivolous. To bring a frivolous case attny must knowingly advance a claim that was unwarranted.

111
Q

Signature of Attny

A

Attnys sign paperwork which basically says that attny read the work and its not in bad faith or unduly burdensome.

112
Q

Stmts to Press (R 3.6)

A

Don’t make stmts that have a substantial likelihood of prejudicing a proceeding. Best to just tell some facts and that’s it.
Can tell press:
-claim/offense/defense and identity of parties unless prohibited by law
-info in public record
-that an investigation is in progress
-scheduling or result of any step in litigation
-request for assistance in obtaining evidence/info
-warning about behavior of person involved if there is a danger to indiv or public interest

113
Q

Publicity (R 3.5d, 3.4, 3.6)

A

Can’t engage in conduct intended to disrupt a tribunal. Must comply with a ct order (if attny won’t > say so in open ct and appeal judges decision).

114
Q

Prosecutors Special Duties (R 3.8)

A

Have to zealously rep CL which is the people. Obligation not to bring a case that won’t be supported by probable cause. Should reveal all evidence/info that would mitigate or negate guilt. Dont make and prevent others from making extrajudicial stmts that would heighten public condemnation of D. If P finds evidence that a prior conviction was wrong then P must seek to have it overturned as a minister of justice.

115
Q

Closing Arguments (focused on P)

A

Misconduct if uncivil to other side. Entitled to draw reasonable inferences from facts in the record. Can argue someone isn’t credible but can’t call them names. Can’t say evidence wasn’t rebutted if the evidence was privileged or only D could provide rebuttal. Attny can’t insert themselves by saying “we know” “I believe” ect. Can’t use weight of office as evidence. can’t ask for D to answer questions during closing.

116
Q

Civility and Bias (R 8.4g)

A

Have courtesy and respect for all persons in legal system. Don’t intimidate people.

117
Q

Conflicts (R 1.7)

A

Interest of one party is against the interests of another. Attny can’t rep if there is a concurrent conflict of interest:

  • rep of one CL is directly adverse to rep of another
  • significant risk that attnys rep of a CL will be materially limited by attny’s responsibilities to another CL, former CL, 3rd person or party, or personal interest of attny
118
Q

Waiver of Conflicts (R 1.7b)

A

Conflict can be waived if: AND
-attny reasonably believes they can provide competent and diligent rep to each affected CL (not applicable in divorce)
-rep is not prohibited by law
-rep of one CL does not involve an assertion of a claim by CL against another CL that attny is also repping
-each CL gives written informed consent.
CL can revoke a waiver at any time and you won’t be able to rep once that happens

119
Q

Conflict and Firms

A

Conflict is imputed to whole firm unless the conflict is sexual. Can get out of this w/ an effective ethics/conflict screen.

120
Q

Scope of Attny’s Authority (R 1.2a)

A

Determine what is substantive to rep > falls into CL’s purview. Tactics and strategy fall under attny’s purview.

121
Q

Representing an Organization as a CL (R 1.13)

A

Can only give advice as it pertains to the org as a whole, not to individual constituents, unless approved by board/higher authority). If someone related to the org is acting (or failing to act) in a matter related to the attnys rep and that action it likely to result in substantial injury to the org then the attny should act as reasonably necessary in the best interest of org. Attny should refer matter to higher authority in the org. If the higher ups dont do anything and the attny believes the act will cause substantial injury then the can reveal confidential info to stop injury from occurring.

122
Q

Repping CL While 3rd Party is Paying

A

Accepting compensation from a 3rd party for rep can create conflict but attny has responsibility to CL, not 3rd party. Put 3rd party on retainer agreement w/ CL

123
Q

Entering Into Business w/ CL (R 1.8)

A

Cannot enter into a business transaction w/ CL or acquire ownership, possessory, security, or other pecuniary interest that is adverse to the CL unless the transaction and terms are fair to CL, made in writing, easily understood by CL. CL should be advised to see outside counsel and given reasonable time to do so. Writing should include the roles in the transaction and whether attny is repping CL in transaction.

124
Q

Gifts from CLs (R 1.8c)

A

Lawyers should not solicit any substantial gift from CL for self or other unless CL and attny are family members. Any gifts made must be de minimus and if CL wants to put attny in will, CL should have another attny draft this up.

125
Q

Giving Money to CL (R 1.8e)

A

Can’t give money to CL but can advance court costs and expenses. Prohibited even if CL has a hardship, can give de minimus gift for a meal or something but can’t spend a lot of money on CL. Can’t pay for something that is not clearly associated with the case.

126
Q

Settling w/ CL

A

Advise CL they should consult w/ independent outside counsel, give them a reasonable time to do so, get it in writing.

127
Q

Attny as Witness (R 3.7)

A

Attny should not be an advocate at trial where it is likely attny will be called as necessary witness. Must be a necessary witness.
Exceptions:
-testimony relates to an uncontested issue
-testimony relates to the nature and value of legal services rendered in case
disqualification of attny would be substantial hardship on CL.
Can be an advocate in trial where another attny in same firm is likely to be called as witness. Other attnys in firm are not part of an imputed conflict unless your testimony is contrary to CL’s case

128
Q

“Substantially Related” in Conflicts

A

If confidential info from other case would materially advance new case:

  1. was attny privy to confidential info
  2. would that info materially advance new CLs case
129
Q

Duties to Former CLs (R 1.9)

A

Once attny has repped a CL in one matter, cannot rep adverse CL in same or substantially related matter. An attny shall not knowingly represent a person in the same or a substantially related matter in which a firm attny was previously at had previously repped an adverse CL and attny had knowledge about it.
Exceptions:
-former CL can give consent in writing
Best to erect an ethics screen.

130
Q

Ethics Screen (R 1.10)

A

Has to be timely done or presume confidences have been shared. Lawyer can’t accept any fees from conflicted case. Notice has to be sent to CL and affected former CL. Notice includes:

  1. Description of ethics screen procedure
  2. Firm and attny promise to comply w/ rules
  3. Review is available w/ tribunal (former CL can file a motion and try and disqualify firm)
  4. Firm promises to promptly answer any questions of former CL
  5. Certifications from trained attny and firm that procedures will be complied with.

Send memo to all staff saying not to talk to tainted attny about case and physically and technologically restrict attnys access to file.

131
Q

Special Rules for Gov Employees (R 1.11b)

A

Basically need an ethics screen for everything. When leaving gov office to work in private, attny is prohibited from any case they personally and substantially dealt w/ the matter and vice versa. If attny is drafting a rule, they can leave gov and immediately start working against that rule. Can’t use confidential gov info attny gained from having gov authority to benefit a CL in private law if it would materially advance CLs interests. Need ethics screen for tainted attorney or conflict is imputed to whole firm.

132
Q

Former Judge, Arbitrator, Mediator, Neutral , or Law Clerk (R 1.12)

A

Once in private practice, cannot handle case that you had formerly presided over > need consent from all parties to get around this. If you’re a law clerk, you can notify the judge about seeking employment w/ a party involved in a matter you were substantially and personally involved in. Non-neutral arbitrators are not prohibited from repping the party that picked them. If a fed law clerk can’t deal w/ any cases that you or family have financial interest in.

133
Q

Non-Compete Ks

A

Can’t have these for lawyers b/c want to allow for freedom of movement.
Exception: if selling law firm, can’t then open another firm specializing in same area or in same geographic location. Don’t want CLs to feel their loyalty is misplaces or abused when law firm they were at gets sold and then old attny opens basically same one down the road.

134
Q

Moving Firms

A

Can take CLs but must give notice to employer and tell active CLs you’re leaving and they have the option of either following you or staying w/ the firm

135
Q

Responsibilities for Managing Partners (R 5.1)

A

Managing partners have to undertake reasonable measure to ensure PR rules are followed by subordinate and support staff. Do conflict checks throughout firm. Affirmative duty to make sure underlings are following rules or manager is liable for conduct. An attny is responsible for another attny’s misconduct if that attny orders or knows about the conduct and ratifies it OR knows the conduct at a time when consequences can be mitigated or avoided but fails to do so. Review billings before going to CL.

136
Q

Dealing w/ Impaired Attnys

A

Talk w/ attny, monitor the situation, can call lawyers and judges assistance program

137
Q

Duty to Report Rule Violations of Lawyers in Firms

A

Report attny to grievance commission, tell CLs why attny is no longer repping them but this is a gray area.

138
Q

Responsibilities of Subordinate Lawyer (R 5.2)

A

Still bound by PR rule even if a manager tells attny otherwise, but if acting at direction of another then attny may not have requisite knowledge for rule breaking. But if its a gray area and attny brings it up to supervisor and supervisor reasonably tells attny to act one way then subordinate is protected if supervisor was actually wrong.

139
Q

Responsibilities of Non-Lawyer Assistance (R 5.3)

A

Conduct should still be compatible w. PR rules. Supervisor is responsible if they knew or ratified misconduct and did not mitigate or prevent consequences.

140
Q

CL Files

A

Costs can be allocated if attny leaves and takes CL files > firm might need to collect fees associated w/ maintaining that file. If CL asks for copies of file, can’t charge for copies unless stipulated in retainer. Quantum Meruit Analysis for work of attny while in firm.

141
Q

Firm Dissolves

A

Tell CL and make file available. Stop all advertising and take website down. Old CL files that have been stored go to the state bar

142
Q

Responsibilities Regarding Law-Related Services (R 5.7)

A

Need to distinguish b/w business and legal and take reasonable steps to ensure CL knows services aren’t related.

143
Q

Selling Law Practice (R 1.17)

A

“Goodwill” is basically CL base, can be bought. Should vet buyer and seller w/ due diligence. There is some level of confidential disclosure to allow buyer to determine if practice is something they want to buy or not. Can’t increase CL fees to pay for purchase of law firm. Seller can’t continue to practice in that area of law or law in that same geographic area.

144
Q

MCR Rule 2.114 Signatures of Attorneys and Parties; Verification; Effect; Sanctions

A

Every doc submitted by party should be signed by at least one attny of record.

(D) Effect of Signature. The signature of an attorney or party, whether or not the party is represented by an attorney, constitutes a certification by the signer that

(1) he or she has read the document;
(2) to the best of his or her knowledge, information, and belief formed after reasonable inquiry, the document is well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law; and
(3) the document is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

145
Q

MCR Rule 2.117 Appearances

A

Notice of an appearance must be submitted to the court. Special appearances are allowed if filed with the court. Appearance by one member of firm is appearance by whole firm. Once an attny has filed an appearance they need the it’s permission to withdraw.

146
Q

Rule 8.121 Contingent Fees in Claims or Actions for Personal Injury, Wrongful Death, and No-Fault Benefits

A

(B) Maximum Fee. The maximum allowable fee for the claims and actions referred to in subrule (A) is one-third of the amount recovered. Can enter into lower fee agreements. Must advise CL of other fee structures but it is up to attny to chose how they will take fees. Must be in writing.

147
Q

MRPC Rule: 1.5 Fees

A

Same considerations of other fee agreement except:

(e) A division of a fee between lawyers who are not in the same firm may be made only if:
(1) the client is advised of and does not object to the participation of all the lawyers involved; and
(2) the total fee is reasonable.

148
Q

MRPC Rule: 1.15 Safekeeping Property

A

(c) When two or more persons (one of whom may be the lawyer) claim interest in the property, it shall be kept separate by the lawyer until the dispute is resolved. The lawyer shall promptly distribute all portions of the property as to which the interests are not in dispute.

149
Q

MPRC Rule 1.15A Trust Account Overdraft Notification

A

(2) For any trust account which is an IOLTA account pursuant to Rule 1.15, the “Notice to Eligible Financial Institution” shall constitute notice to the depository institution that such account is subject to this rule. Lawyers shall clearly identify any other accounts in which funds are held in trust as “trust” or “escrow” accounts, and lawyers must inform the depository institution in writing that such other accounts are trust accounts for the purposes of this rule.

Financial institution must report to MI bar and grievance commission when funds in attny trust accounts are overdrawn.
Can only have trust accounts w/ approved financial institutions.

150
Q

MPRC Rule: 6.5 Professional Conduct

A

Lawyer as adjudicative officer has duty to make sure everyone is treated fairly, w/ respect, and w/o bias.
(a) A lawyer shall treat with courtesy and respect all persons involved in the legal process. A lawyer shall take particular care to avoid treating such a person discourteously or disrespectfully because of the person’s race, gender, or other protected personal characteristic. To the extent possible, a lawyer shall require subordinate lawyers and nonlawyer assistants to provide such courteous and respectful treatment.

Prof. Resp. (1 decks)

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