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GEORGIA BAR! > PROFESSIONAL ETHICS > Flashcards

PROFESSIONAL ETHICS Flashcards

1
Q

Rule 8.4

A

Defines lawyer misconduct in general. Any violation of the GRPC is also a violation of Rule 8.4, which prohibits misconduct.

If someone is making a disciplinary complaint, Rule 8.4 will always be included.

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2
Q

Pro Hac Vice

A

Temporarily authorized practice of law in a state in which a lawyer is not admitted to practice, for the purposes of providing legal services arising out of services already ongoing in the lawyer’s authorized state.

Lawyer is then subject to discipline in that state despite not being admitted.

Meant to be used occasionally and sparingly.

Lawyers are permitted to do transactions or ADR in another state temporarily and without pro hac vice statute if that is their speciality elsewhere.

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3
Q

False/Misleading Statements

A

Lawyers cannot may any “false, fraudulent, deceptive, or misleading” statements that are likely to —

  • Create unjustified expectations;
  • Not include the name of at least one lawyer;
  • Advertise contingent fees or “no fees unless you win” without a conspicuous disclaimer that court costs are not included.
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4
Q

Decisions Allocated to the Client vs. the Lawyer

A

Client in Civil Cases — Makes the decision of whether or not to accept a settlement.

Client in Criminal Cases — Makes the decisions re: whether or not they enter a plea, waive a jury, or testify.

The lawyer is left with all technical and legal tactical decisions but must confer with the client, especially when a decision effects client expenses or third parties.

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5
Q

Fee Arrangements, in General

A

All fees must be REASONABLE and COMMUNICATED in advance. They are not required to be in writing unless it is a contingent fee.

Reasonableness factors include —
- The time/labor required;
- The novelty/complexity of the legal issue;
- What other lawyers are charging in the area;
- The preclusion of other employment;
- Experience/reputation of the lawyer;
- Whether it is a fixed or contingent fee.

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6
Q

Contingent Fees

A

Fees that require the client to only pay if there is a favorable outcome.

Not permitted for domestic relations or criminal cases.

Otherwise, they are generally valid if they are reasonable and in writing which includes the method of calculation of fees and how court costs will be integrated/taken out.

Upon conclusion of representation, the lawyer must provide a written statement including the outcome of the matter, the amount of the fee and the method of its determination.

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7
Q

Advertisements vs. Solicitations

A

Advertisements — Communicate the availability of services; are permitted as long as there is no personal targeting and are not false/misleading (“we’re the best!”).

Solicitations — Direct, personal, or live telephone communication with a prospective client for the purposes of obtaining employment for a specific matter. Not permitted.

A lawyer may not solicit, or accept employment from someone that they know was solicited directly/personally/live.

Can solicit with other lawyers, but not clients.

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8
Q

Written Communication with Prospective Clients (Written Solicitation)

A

Written communication with prospective clients must be conspicuously marked as an advertisement.

Lawyers may not make written communications to a prospective client if —
- The client has made it known that they do not want to be contacted;
- The communications includes fraud/coercion/harassment, etc.
- The communication concerns an action for personal injury or wrongful death within 30 days of the incident.
- The lawyers should know that the person is not capable of exercising reasonable judgment in obtaining a lawyer.

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9
Q

Duty of Competence

A

A lawyer shall not undertake representation that they know is beyond their level of competence without the assistance of another competent lawyer.

Competence requires legal knowledge, skill, thoroughness, and preparedness.

Emergencies may excuse temporary incompetence or unpreparedness.

Lawyers have the ability to become competent in a subject if they can do so without delay.

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10
Q

Duty of Diligence

A

Lawyer cannot willfully abandon or disregard a legal matter entrusted to them without just cause.

Diligence = Zealous advocacy.

Must maintain their workload, etc.

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11
Q

Duty of Communication

A

Lawyer must keep client informed. This includes —
- Promptly responding to reasonable requests for information;
- Explaining matters to the client to the extent reasonably necessary for them to make informed decisions;
- Communicating all settlement offers promptly.

Keyword — “Reasonable” communication.

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12
Q

Duty of Confidentiality

A

Ethical duty of confidentiality protects ALL information relating to the representation, regardless of the source.

This is opposed to the evidentiary attorney-client privilege, which only protects information obtained directly from the client, in a judicial setting in which the attorney is being asked to testify.

The duty of confidentiality is an affirmative obligation to keep the client’s information confidential unless authorized in writing.

Confidential information may be disclosed without written consent to prevent substantial financial or physical harm, to establish a defense against the attorney, or if inquired by the court.

Duty extends after the attorney client relationship has ended.

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13
Q

Disclosing Confidential Information

A

Confidential information may be disclosed with written and informed consent, or without written consent to (1) prevent substantial financial or physical harm, (2) to establish a defense against the attorney, or (3) if inquired by the court.

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14
Q

Conflicts of Interest, in General

A

Lawyers are prohibited from undertaking representation where their personal interests or duties to another client, former client, or third party would MATERIALLY and ADVERSELY affect their representation.

Lawyer has a duty to devote their undivided loyalty to their client. Personal interests, interests of third parties, or interests of other clients have the potential to dilute that loyalty, creating a conflict of interest.

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15
Q

Consenting to a Conflict of Interest

A

A lawyer may represent a client despite a material and adverse conflict if all the affected clients give their
(1) informed consent in writing, after
(2) consultation with the lawyer,
(3) receiving written information regarding the risks of the conflict, and
(4) being given the opportunity to consult with independent counsel.

As long as the conflict is consentable.

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16
Q

Nonconsentable Conflicts of Interests

A

Clients CANNOT consent to a conflict if —
- Representation would violate the law or GRPC (criminal co-∆);
- Representation involves a claim by one client against another client represented by the same lawyer in the same or substantially similar proceeding;
- The lawyer cannot provide adequate representation (usually for personal reason).

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17
Q

Simultaneous Representation of Multiple Clients

A

Generally not permitted in criminal cases for co-defendants.

May be permitted in civil cases, unless —
- There is a discrepancy in the clients’ testimonies;
- The clients are not similarly positioned;
- There is a difference in possibilities for settlements or liability.

18
Q

Business Transactions with Clients

A

Business transactions with clients are generally not permitted, unless —

  • The client gives informed consent in writing;
  • The client had the opportunity to seek independent counsel;
  • The transaction was fair and reasonable to the client;
  • The terms were fully disclosed to the client in writing in an understandable way.

Does not apply to standard commercial transactions (in which the client is a merchant and the lawyer is not at an advantage).

19
Q

Financially Assisting Clients

A

Financially assisting clients with living expenses, etc. is prohibited.

Lawyers may front the cost of court costs and legal expenses if the client is indigent or they are expecting to be repaid.

20
Q

Proprietary Interests in a Client’s Case

A

Lawyers may not obtain a proprietary interest in the subject matter of representation unless it is a (1) lien to secure payment of fees, or (2) part of a contingent fee arrangement. This includes media rights prior to the conclusion of representation.

They can obtain non-solicited, reasonable gifts; they cannot draft documents for a client bequeathing themselves or relatives gifts.

21
Q

Payment by Third Parties

A

Payment by third parties is generally permitted, so long as —
(1) the client consents,
(2) the third party does not interfere with the lawyer’s professional judgment, and
(3) the client’s confidential information is protected.

22
Q

Organizational Clients

A

When representing an organization/business, the client is the entity, not the individuals. (See rules re: dual representation and conflicts of interest)

When the organization’s interests become adverse to those individuals, the lawyer has a duty to warn the individuals that they represent the entity.

If a lawyer learns that an individual is acting in a way that is likely to harm the client organization, the lawyer must “proceed as reasonably necessary”, which may include referring the matter to a higher authority within the organization, or resigning.

23
Q

Conflicts with Former Clients

A

A lawyer cannot represent a new client in a SUBSTANTIALLY RELATED MATTER whose interests are MATERIALLY ADVERSE to a former client (including clients of past firms or past prospective clients of which the lawyer obtained confidential information).

“Substantially related” = if there is reason to believe that the lawyer obtained information in the first case that would be adverse to the former client if the lawyer represented a new client in that matter.

24
Q

Duty of Candor

A

Lawyers cannot knowingly —
- Make false statements of material fact or law;
- Fail to disclose controlling legal authority that is directly adverse to the matter;
- Offer false evidence, including testimony.

If a criminal defendant wishes to exercise their constitutional right to testify, they must be allowed to do so even if the attorney has reason to believe that they may perjure themselves. (Attorney should advise against and potentially withdraw, if allowed. Narrative testimony not allowed in Georgia.)

25
Q

Imputation of Conflict

A

A lawyer’s conflict is imputed onto all others in their firm, unless —
- The conflict was based on the lawyer’s personal interests;
- The conflict arises from a client of the lawyer’s former firm and the lawyer is screened (receives no part of the fee, is given no information on the case, and the client receives written notice).

A lawyer’s former firm may represent a client with materially adverse interests of the lawyer’s former client unless the matter is substantially similar or any remaining lawyers have confidential information on the subject.

26
Q

Communication with People NOT Represented by Counsel

A

A lawyer must state that they are representing a party in the matter and cannot give advice other than to obtain counsel. Must also correct any misunderstandings by the unrepresented party.

27
Q

Communication with People Represented by Counsel

A

Lawyers cannot communicate with parties represented by counsel regarding the subject matter of litigation unless there is consent from the other lawyer or it is authorized by law.

Clients can talk to other clients/parties, however.

When an organization is a client, lawyers cannot contact individuals with managerial responsibilities/agents of the business.

28
Q

Mandatory Withdrawal

A

A lawyer must withdraw when —
- Representation will result in a violation of the law or GRPC;
- The lawyer’s mental/physical condition materially impairs their ability to represent;
- The lawyer is discharged/fired.

29
Q

Permissive Withdrawal

A

A lawyer may withdraw when —
- It would not be materially adverse to the client;
- The lawyer’s services were used to commit crime/fraud;
- The client’s course of conduct is repugnant to the lawyer;
- The client breaches their obligation (doesn’t pay);
- Other good cause.

30
Q

Sharing Office Space

A

Lawyers sharing office space who are not partners may not use a trade name that suggest partnership.

Generally, when sharing an office space, the lawyers must maintain professional independence so as not to mislead.

31
Q

Law Firm Name

A

A trade name may be used by a lawyer in private practice if the trade name includes the name of at least one of the lawyers currently practicing with the firm and does not imply a connection with a government entity.

32
Q

Referral Fees

A

Referral fees are not permitted unless each lawyer assumes joint responsibility for the representation and the client agrees in writing.

33
Q

Advertisements

A

Written communications to a prospective client for the purposes of obtaining employment must be plainly marked “advertisement” on the face of the envelop and on each page.

Written and marked advertisements are permissible as long as they are not false, deceptive, or misleading.

Advertising a contingency fee is permitted in certain cases if a conspicuous disclaimer is attached.

A copy or recording of an advertisement must be kept for two years after its last dissemination, along with a record of when and where it was used.

34
Q

Sharing Office Space

A

Lawyers who share office space but are not partners may not share a trade name that suggests partnership.

When sharing an office space, lawyers must maintain professional independence to make sure that the public is not misled.

35
Q

Conflict of Interest Definition

A

A lawyer is generally prohibited from representing a client when there is a significant risk that the lawyer’s personal interests or duties to a current client, former client, or third person would materially and adversely affect the representation.

36
Q

Direct Conflicts/Direct Adversity

A

A lawyer is prohibited from representing a client in matters directly against a current or former client, even if the two cases are completely unrelated.

37
Q

Nonconsentable Conflicts

A

A client cannot consent to a conflict that is against the GRPC or law, is directly adverse or substantially similar to the lawyer’s other current or past representation, or if the lawyer would be unable to provide adequate representation.

38
Q

Client Not Paying

A

Lawyer may seek permission from the court to withdraw if, after warning to the client, the client fails to fulfill their obligations to the lawyer, such as failing to pay their fees.

Additionally, a lawyer may seek withdrawal if the representation would result in an unreasonable financial burden to the lawyer.

Must take all reasonable steps to mitigate any consequences to the client.

39
Q

Solicitation

A

Solicitation is the impermissible direct, personal, or live telephone contact with a prospective client in order to obtain employment with respect to a particular matter.

40
Q

Exculpatory Evidence

A

Upon request by the defense, the prosecution must disclose all evidence that is favorable, or has a reasonably probability to be favorable, to the accused.

Unrequested exculpatory evidence must be disclosed only in situations where it would create reasonable doubt. (Higher bar)

GEORGIA BAR! (19 decks)

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