professional responsibility

Question 1

Duties to clients

Answer 1

confidentiality
loyalty
financial responsibility
competence

Question 2

duties to courts, adversaries, legal profession, and the public

Answer 2

candor/truthfulness
fairness
dignity/decorum

Question 3

mnemonic for duties of attorney

Answer 3

clients love fierce counsel, courts feel differently

Question 4

duty of confidentiality

Answer 4

do not reveal any information protected by attorney-client privilege, gained through the professional relationship that would harm or embarrass your client, or that your client has requested to be kept confidential. you must take reasonable steps to prevent inadvertent disclosure. the duty covers information from a consult and continues after client dies

Question 5

exceptions to duty of confidentiality

Answer 5

client consent,

defending yourself against malpractice, disciplinary proceeding, or disclosure necessary when client refuses to pay your fee and you have to bring suit - but only allowed to reveal info necessary to establish claim or defense

running your office - can reveal info that you reasonably believe will be confidential for programs necessary for data processing and case management

preventing harm

compelled by final order by court of law

Question 6

when can you reveal confidential information to prevent harm

Answer 6

must reveal client’s intention to commit crime that is reasonably certain to result in death or substantial injury to another’s body, finances, or property and reveal the information necessary to prevent it.

if no crime is involved, may reveal confidences to prevent death or substantial bodily harm

but, first must if feasible advise client of possible legal consequences, urge him not to commit crime, and warn him that you must reveal intention to commit crime if not abandoned

Question 7

concurrent conflict of interest

Answer 7

if interest of another client, yourself, or a third party creates a significant risk of materially limiting your representation, or your representation of one client is directly adverse to another

Question 8

imputed disqualification

Answer 8

lawyers associated together in a firm share each other’s conflicts. conflicts are imputed when you know or should reasonably know of a colleague’s conflict, so failing to check for conflicts can be a violation

Question 9

client consent to conflicts

Answer 9

you reasonably believe you can represent everyone competently and diligently despite a concurrent conflict

you consult with each affected client. if your duty of confidentiality prevents you from full disclosure, consent may not be possible.

the client consents, confirmed in writing (email memorializing consent is sufficient)

does not work for representation that is directly adverse to one another

Question 10

when is representation prohibited

Answer 10

if prohibited by law or if the representation involves assertion of a claim by one client against another client that you represent n the same case pending before a tribunal

Question 11

opposite sides in same proceedinig

Answer 11

you cannot represent opposing parties in the same litigation before a tribunal.

Question 12

opposing current client in another matter

Answer 12

representation adverse to a current client in a different matter is allowed if all clients consent. so if your firm does transactional real estate for Texaco, you could take a labor claim against Texaco if all parties consent

Question 13

Two clients with inconsistent position

Answer 13

positions in litigation generally don’t create conflict, but if either client would be disadvantaged, need consent.

so can argue for an against an act in two different appeals

Question 14

representing multiple clients in the same matter

Answer 14

this raises significant risks that your service for one client may become materially limited as a result of other’s interest. these potential conflicts generally require disclosure and consent.

however, have to withdraw from representation if one client gives you information that would make his interests directly adverse to the other (representing a person and their insurance provider in malpractice action and the person informs you that his insurance did not cover his medical practices against the plaintiff).

Question 15

new clients in matters related to former clients

Answer 15

if confidential info from a former client might be relevant to a new client’s matter, you may be violating continuing duties of confidentiality and loyalty to former client.

Cannot take on new client with interests materially adverse to former client without consent of both. use of non-public, confidential information against a former client requires reasonable consent

Question 16

former government lawyers that move to public practice

Answer 16

if you were a government lawyer who worked personally and substantially on a matter, you cannot work on that same matter in private practice without government consent. matter = specific dispute between specific parties over specific issues

Question 17

imputed disqualification for former government lawyers

Answer 17

new firm can work on case despite imputed conflicts by government lawyer if:

former government lawyer is screened off

former govt lawyer does not share any part of fee in the matter (though salaries or partnership shares are okay)

former government employer is informed

Question 18

representation by third party neutrals who worked on case

Answer 18

former judges, clerks, arbitrators, and other third party neutrals who worked on a matter will require consent of all parties to judicial proceeding

Question 19

gifts to the lawyer

Answer 19

must not solicit substantial gift from client or draft legal instrument for client who is not your close relative if it provides a substantial gift to you or your relative

Question 20

limiting liability

Answer 20

you cannot limit client’s right to report you for professional misconduct or cooperate in an investigation. You cannot limit your malpractice liability when you enter into a relationship with your client, unless you are an employee of the client and the client is independently represented in making the agreement

Question 21

publication rights contracts

Answer 21

cannot purchase or accept as payment the rights to publish a client’s story before your representation has ended

Question 22

use of information

Answer 22

use of confidential information to a client’s disadvantage violates the duties of loyalty and confidentiality unless the client consents

Question 23

financial assistance to client

Answer 23

cannot give client money unless advancing court costs and fees in contingent fee arrangement and court costs and litigation expenses for an indigent client

Question 24

business transactions with client

Answer 24

First Discuss Over Coffee

can enter into deals with clients if: the terms are Fair to the client, Disclosed in understandable writing, the client is advised to seek Outside counsel, and your client provides Consent ini writing

may accept stock in company as payment for services if fair and reasonable under circumstances known to lawyer

Question 25

board service as a lawyer

Answer 25

service on the board of directors of a non-profit legal services organization is allowed. no bar to sitting on the board of a corporate client, but is discouraged because it may compromise loyalty and confidentiality. if attorney has fiduciary duty to corporation due to membership on board, cannot represent an officer in an embezzlement investigation.

Question 26

proprietary interests in litgation

Answer 26

should not have financial interest in subject of your work, but contingency fees or liens on your client's property to secure your fees are okay

Question 27

trial counsel as necessary wtness

Answer 27

rules bar you from appearing in the same trial as counsel and as witness unless your testimony is uncontested, about your legal services rendered, or if your distinctive value to the case means withdrawal would impose substantial hardship on the client. if testimony would prejudice client, consent is required. not imputed to firm

Question 28

close relationship with adversary's lawyer

Answer 28

cannot oppose party represented by your relative without client consent. includes immediate family (parent, sibling, child, spouse) not imputed to firm

Question 29

payment for services from third party

Answer 29

payment only permitted with informed client consent. confidences cannot be shared and you must retain independence

Question 30

organizational clients

Answer 30

lawyer must act in best interests of the entity

Question 31

federal laws governing securities lawyers

Answer 31

if you are in house counsel and the COO violates securities laws, you must report to CEO or Chief Legal Counsel. f they do not respond, you must go to the highest authority in the company. f they do nothing and you reasonably believe it is necessary to prevent fraud, perjury, or substantial injury to the organization or investors, or to rectify financial injury from a violation, then you may disclose confidential info to the SEC w/o client consent

Question 32

Virginia rules on non-public entities

Answer 32

in representing a non-public company, you must minimize disruption and risk of revealing info to outsiders. if organization's highest authority insists on actions likely to result in substantial injury to the organization, you may resign or decline to represent it in that matter if the organization intends to commit a crime reasonably certain to result in substantial financial injury to another, you must reveal it

Question 33

non-contingent fees

Answer 33

must explain amount, basis, or rate of your fee within reasonable time of taking a client, preferably in writing

Question 34

contingent fees

Answer 34

fee agreements must be written, signed by client, and contain: - your percentage - what expenses will be deducted from the recovery - whether your percent is taken before or after expenses at end of contingent fee matter, must give client written statement of outcome, how it was determined, and remittance made

Question 35

limits on contingent fees

Answer 35

cannot agree to or collect contingent fees in any criminal case and most domestic relations case. limited exception to domestic bar for fair arrangements when adequate counsel would not otherwise be available, no prospects for reconciliation, any children are older, and fee is to collect child support, alimony, or determined property award cannot have a bonus for winning a criminal case. if if contingent fee is not in client's best interest, should explain other fee arrangements and let client make an informed choice

Question 36

termination of representation before contingency/judgment

Answer 36

if the client wins, the attorney can recover the reasonable value of his or her work before discharge

Question 37

requirement for fees

Answer 37

attorney fees must be reasonable, taking into account labor, novelty, difficulty, skill and timing required, result obtained, the experience of and other demands on the attorney, fee arrangement, etc.

Question 38

safeguarding client property

Answer 38

you have a duty to safeguard your client's property by promptly storing it in a safe place, such as a safe deposit box

Question 39

client trust account

Answer 39

put money held for a client or 3d party in a trust account in a financial institution that is approved by the VA Bar or by your client in writing. include money received. on your client's behalf and his advances to you for costs, expenses, and unearned fees. Retainers are earned when paid. Do not borrow or commingle funds w/ your personal money. you may deposit your money for bank service charges or to maintain a minimum balance, but once you earn that money back, promptly withdraw your deposited money

Question 40

Fee splitting

Answer 40

it is generally okay to split fees w/ lawyers in your firm. you may split fees with lawyers outside your firm only if the total fee is reasonable, you disclose division w/ the client before rendering services, and the client consents, preferably n writing. fee split does not need to be proportional with work done. fee splitting w/ non lawyers is not allowed

Question 41

exceptions to fee splitting for non lawyers

Answer 41

- death benefits paid to deceased lawyer's estate or heirs for the work - salaries and benefits paid to nonlawyers

Question 42

payment for referrals

Answer 42

not allowed, but may pay usual charges of a qualified lawyer referral service, expenses for advertising, and give nominal gifts of gratitude that are not intended or expected to be compensation

Question 43

partnership with nonlawyers

Answer 43

partnerships with non-lawyers in providing legal services is prohibited for any practicing lawyer. you can associate with a legal services organization or insurance plan but cannot allow it to interfere with your independent judgment in how to handle a matter

Question 44

Duty of competence

Answer 44

you have duty to render competent service to your client, meaning using legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. if you don't know the. law, don't take the work unless you can learn. it without undue expense or delay, or you work with a lawyer competent in the area

Question 45

duty of dilligence

Answer 45

duty to diligently, promptly, and zealously pursue your case to completion

Question 46

duty to communicate

Answer 46

duty to keep client informed, answer client communications, and convey settlement offers. if a settlement offer is made to joint clients, consult with all and be sure they agree on division of settlement before accepting

Question 47

accepting representation

Answer 47

generally free to accept or reject a case. no rules mandate you take a case, though you *should* volunteer 2% of your professional time annually to pro bono. You must reject a case if taking it would violate a law or ethical rule. typical problems are if you are not in the physical or mental shape to take the case

Question 48

decisions made by clients v. decisions made by attorney

Answer 48

client makes decisions about substantive rights (testifying in criminal case, accepting plea or settlement) attorney makes decisions about legal tactics

Question 49

illegal conduct by client

Answer 49

may explain why a course of conduct would be illegal, but cannot assist client in conduct you know is criminal or advise how to act illegally and get away with it. if your client insists on unethical assistance, must withdraw

Question 50

mandatory withdrawal

Answer 50

must withdraw from pending case if fired by client or if continuing would violate a law or ethical rule (if client is using your services to commit crime or fraud)

Question 51

permissive withdrawal

Answer 51

may withdraw if you can do so without material adverse effect to your client. recognized reasons if your client persists in an illegal, unjust, imprudent, or repugnant course of action or fails to fulfill an obligation to you after reasonable warning, or if rep will unreasonably financially burden you, is unreasonably difficult, or if client has used your services for crime or fraud, or other good cause

Question 52

procedures to withdraw

Answer 52

if you are counsel of record in court, must get leave of court. must provide timely notice to client, and in a reasonable time return any unspent fees and expense advances and all of the client's property and materials, including work product. CANNOT hold client materials hostage to get paid

Question 53

duty of candor

Answer 53

cannot engage in conduct involving dishonesty, fraud, or misrepresentation

Question 54

duty to present facts and evidence truthfully

Answer 54

you must not make false statement of material fact or offer evidence you know is false to a tribunal or fail to correct any false evidence you have offered. fi you only reasonably believe evidence is false, you may refuse instruction to use it

Question 55

client perjury

Answer 55

must not knowingly facilitate perjury. in civil case, must refuse to call witness, including client, if you know he intends to perjure himself. however, criminal defendants have a constitutional right to testify on their own behalf. if he intends to lie on stand, take reasonable remedial measures

Question 56

reasonable remedial measures

Answer 56

counsel your client to testify truthfully or not take the stand. if that fails, you should try to withdraw. if that fails (court won't let you), tell the judge to avoid assisting in a criminal act.

Question 57

disclosing fraud of witnesses

Answer 57

if you have information clearly establishing a non-client has perpetrated a fraud on a tribunal where you are appearing, you must promptly reveal it to the tribunal, even if it requires disclosing confidential information

Question 58

counseling witnesses

Answer 58

you must not counsel or assist a witness to testify falsely or become unavailable.

Question 59

paying experts

Answer 59

you may pay basic expenses of witness and reasonable fees for expert witnesses as long as payment is not contingent on the content of the testimony

Question 60

reasonable belief that testimony is false

Answer 60

if you reasonably believe but do not know the testimony is false, may permit testimony, do not need to report.

Question 61

duty to produce evidence

Answer 61

you may not obstruct access to evidence or cause potential evidence to be altered or concealed, regardless of duty of loyalty.

Question 62

interference with evidence

Answer 62

if client tells you where gun is and your investigator finds the weapon but do not touch it, you do not have to tell authorities, court, or opposing counsel about it. however, if your investigator actually retrieves the gun and examines it, the investigator could be compelled to produce it for the authorities and tell where it was found as you can be compelled to testify as to original location or condition of evidence you moved or altered. however, cannot reveal source of info about gun's location

Question 63

ex parte proceedings

Answer 63

communications with the judge without your adversary present. ethical duties of candor and fairness to adversary require you to volunteer material information, trumping normal presumption that you not reveal facts harmful to your client. notice and copies must be given promptly to other parties

Question 64

duty to state the law truthfully

Answer 64

knowingly making a false statement of law is subject to discipline. be candid about the law and cite to adverse authority if controlling and on point. you may make non-frivolous, good faith arguments for modification of existing law

Question 65

duty to uphold law

Answer 65

if continued representation would require you to commit/assist in crime, must withdraw. if client persists in criminal acts but you are not assisting, you May withdraw. if client is going to commit a crime that would cause death or substantial harm to another's person, finances, or property and you cannot talk him out of it, must reveal information necessary

Question 66

rectifying fraud on tribunal

Answer 66

if you discover you have offered false evidence to a tribunal, you must take reasonable remedial measures. try to correct (counsel witness to recant), try to withdraw, or as last resort, disclose what is necessary to tribunal, even if confidential or privileged

Question 67

fraud on third party

Answer 67

if your client has perpetrated fraud on third party related to and during your representation, may reveal information necessary to establish and remedy fraud

Question 68

duty to preserve decorum and impartiality of tribunal

Answer 68

do not state or imply ability to influence improperly a tribunal, legislative body, or public official do not make gifts or loans of value to court personnel if it could appear to be for influence if you hold public office do not use position to obtain advantage for you or client if not in public interest

Question 69

improper influence on juries

Answer 69

cannot try to influence anyone improperly. before and during trial cannot directly or indirectly communicate with prospective or impaneled jurors or their families. after trial, can communicate with willing jurors

Question 70

duty to preserve decorum - trickery

Answer 70

no chicanery - trickery, referring to inadmissible material or matters unsupported by evidence, no asserting personal knowledge of facts at issue before jury

Question 71

duty to preserve decorum - treatment of others

Answer 71

refrain from abusive or obstreperous conduct. lawyer must stand firm against abuse by judge but should avoid reciprocation. preserve tribunal's dignity - do not make comments on qualifications or integrity of judge or officer with reckless disregard for accuracy

Question 72

duty to expedite cases

Answer 72

affirmative duty to expedite cases duty to follow valid procedural rules and court orders unless you are making good faith challenge to validity. do not abuse or obstruct discovery

Question 73

ethical duties of judges

Answer 73

judges, including retired and substitute judges, are expected to maintain high standards of integrity and independence to promote public confidence and impartiality

Question 74

judicial conduct in court

Answer 74

in court, judges should avoid appearance of bias or prejudice, be fair and efficient, avoid ex parte communications, and avoid public statements about case

Question 75

when judges should disqualify themselves

Answer 75

judges should disqualify themselves if they have personal or financial interest in case or personal knowledge or prior involvement with it

Question 76

judge's duties in outside activities

Answer 76

judges must report income from all sources, usually not accept substantial gifts or loans, avoid public orgs that practice invidious or illegal discrimination and political causes (although educational and charitable work is allowed) and not misuse judicial prestige to advance private interests

Question 77

duties for active judges

Answer 77

must not serve as private judge, arbitrator or mediator, practice law, or run for office

Question 78

duty of fairness

Answer 78

have duty to behave honestly in all dealings, both in and out of legal practice. do not commit deception or deliberately wrongful act that reflects badly on your honesty, trustworthiness, or fitness as a lawyer

Question 79

dealing fairly with others

Answer 79

do not threaten disciplinary, administrative, or criminal proceedings as leverage in a civil dispute. do not act or take position merely to harass or maliciously injure another.

Question 80

improperly received information

Answer 80

if you receive document or electronic info you know or should know is privileged and was inadvertently sent, you must immediately terminate review or use of it, promptly notify sender, and abide by their instructions to return or destroy it

Question 81

communication with adversaries and third parties

Answer 81

must not lie to people or mislead them as to your interests. must not violate legal rights of a person to obtain evidence or use means with no purpose but to delay, burden, or embarrass them

Question 82

dealing with represented people

Answer 82

if you know a person is represented by counsel on subject of your inquiry, must have consent of his counsel to contact him outside of formal discovery. exceptions are if you are authorized by law or if the person is asking for a second legal opinion.

Question 83

additional duties of prosecutors

Answer 83

prosecutors must have probable cause to prosecute cases and must timely disclose evidence they know is favorable to the defense

Question 84

dealing with the press

Answer 84

you have duty not to interfere w/ defendant's right to fair trial. must avoid out of court statements that you reasonably should know have a substantial likelihood of interfering with fairness of the trial

Question 85

advertising

Answer 85

advertising cannot be false or misleading. do not mislead or omit material information, do not make unsubstantiated comparisons with other lawyers' services or fees or report past results without details or disclaimers to prevent unjustified expectations. you may identify specialties or certifications as long as your statements are not false or misleading

Question 86

solicitation

Answer 86

Virginia permits face to face, telephonic, and real-time electronic contacts. however, you cannot solicit anyone who has let you know they do not want to be solicited or harass them with repeated communications if they don't respond. your solicitation cannot harass, use undue influence or duress, or unwarranted promises of benefits consider totality of circumstances including previous relationship, their physical and mental state, and your conduct

Question 87

advertising material

Answer 87

solicitation seeking professional employment on a particular matter must be conspicuously labeled as advertising material at the beginning of any written, recorded, or electronic communication. general announcements and responses to specific requests need not be labeled

Question 88

sanctions

Answer 88

most common sanctions for violating rules are disbarment, suspension, censure by courts or bars. may be ordered to limit your practice, pay fines/restitution to victims, enter rehab, take CLE or even retake the bar exam. Virginia sanctions attorneys, not firms, though some rules restrict firm behavior. may also be subject to state and federal court sanctions and civil and criminal liability

Question 89

duty to report misconduct

Answer 89

you must report to appropriate authority any other lawyer's or judge's violation of the rules if it raises a substantial question as to that person's honesty, trustworthiness, or fitness as a lawyer. exceptions - information is privileged because violating attorney is your client or you discovered it when helping attorney in approved substance abuse program

Question 90

what do you do if a client tells you about an attorney's misconduct

Answer 90

if it involves confidential client information, you must have client's consent before reporting. if you discovered violation when acting as mediator, parties must consent to report

Question 91

self-reporting

Answer 91

if you are disciplined in another jurisdiction, convicted of a felony, or convicted of an attempt or crime of theft, bribery, extortion, fraud, or perjury, you must report it

Question 92

unauthorized practice of law

Answer 92

unauthorized or unlicensed practice of law is forbidden to protect public from incompetence. you can be disciplined for assisting unauthorized practice of law by any person who is not n good standing in a bar

Question 93

multijurisdictional practice

Answer 93

if you are from out-of-state but licensed in good standing in another state or foreign country and not disbarred or suspended, may temporarily and occasionally practice in VA if: you associate with locally admitted lawyer who actively participates in matter or your services relate to ADR or the matter is reasonably related to your home state practice or is governed by international law must notify client in writing that you are not licensed to practice in VA

Question 94

in house counsel

Answer 94

in house counsel who work only for their company may apply for corporate counsel certificate or register with the Bar to work in VA

Question 95

noncompetes

Answer 95

law firms cannot restrict your rights after termination. noncompetes are impermissible. restrictions on your practice as part of a settlement must be approved by tribunal or government entity

Question 96

leaving your firm

Answer 96

if you leave your firm or it dissolves, clients must be given specific notice, preferably in a joint statement telling them they are allowed to stay with firm, seek new counsel, or continue to have you as lawyer

Question 97

duties of subordinate lawyers

Answer 97

if you are under control or supervision of another attorney who ratifies or orders you to act in violation of an ethical rule and the violation is a clear violation, you are subject to discipline. if the ethical rule is a debatable problem, your supervisor is solely responsible

Question 98

supervisor's ethical responsibility

Answer 98

if ratified unethical action or knew of conduct and failed to take remedial measures, he is in violation of ethical rules supervisors of lawyers and nonlawyers must make reasonable efforts to ensure that conduct of all firm employees and outsources workers comport with professional obligations of a lawyer. you are responsible for violations of nonlawyers if you failed to take remedial action when you knew or should have known of the conduct