Professional Responsibility

Question 1

Rule 8.4

Answer 1

Considered the “master” rule. Professional misconduct to violate or attempt to violate the rules of professional conduct or induce someone else to. Also committing a criminal act that reflects on the honesty of the lawyer, be dishonest in any capacity, or do something prejudicial to the administration of justice. Also can’t improperly influence a government official (or imply that you can), assist a judge in violating rules of judicial conduct, or harassment on race or sex, or other protected categories.

Question 2

Rule 8.3

Answer 2

Snitch rule. Must report another lawyer who you know has violated a rule of professional conduct. Same applies if the person is a judge. Does not apply if protected by Rule 1.6. See Himmel case.

Question 3

Himmel v. State Bar

Answer 3

Guy didn’t report that someone in his firm misappropriated client funds tried to solve the issue himself. This was not acceptable he needed to report the rule violating lawyer.

Question 4

Rule 5.1

Answer 4

A law firm must take reasonable steps to make sure that lawyers within the firm are following rules of professional conduct. Lawyers have a duty to supervise subordinate attorneys.

Question 5

Rule 5.2

Answer 5

“Anti-Nuremberg” rule. Even if another attorney tells you to violate a rule you cannot violate it. However, you’re not violating the rule if you act in accordance with a senior attorney’s reasonable resolution of an arguable question of professional duty.

Question 6

Rule 5.3

Answer 6

Lawyers are responsible for and most supervise non lawyers in the firm like assistants and paralegals.

Question 7

Rule 1.1

Answer 7

Competence - must provide competent representation to the client.

Question 8

Strickland v. Washington

Answer 8

Criminal defendant may not get relief for a bad lawyer unless:
1) Counsel’s performance fell below an objective standard of reasonableness.
2) Reasonable probability that if counsel performed adequately the result of the proceeding would have been different.

Question 9

Rule 1.1 Comment 2

Answer 9

No special training is needed for a lawyer to take on an issue, however, you cannot bill a client for extensive self-education. And just because you keep a firm partner up to date with what you’re doing does not mean you can assume you’re fine. Depends on the amount of real supervision.

Question 10

Formation of lawyer client relationship

Answer 10

Can be formed without client paying a fee or the formation of an agreement so must be careful about providing casual advice.

Question 11

Togstad v. Vesely

Answer 11

Attorney meets with a woman for an hour to discuss a possible medical practice case on behalf of her husband. Attorney says he does not think there is a case but he will check with partner and get back to her. He never gets back. Statute of limitations on cause of action expires 2 years later and she sues attorney and wins.

He failed to advise her she should seek another lawyer, that there was a 2 year statute of limitations, or that he was not providing legal advice.

Question 12

People v. Baldi (NY 1981)

Answer 12

Client cannot second guess a lawyer’s strategic decision even if it fails. This applies to both criminal and civil cases.

Question 13

Rule 1.3

Answer 13

Diligence - its a violation to not return calls or file papers on time.

Question 14

Rule 1.4

Answer 14

Candor and Communication - cannot lie. But also need to promptly inform client of anything relevant to them.

Exceptions: Discrimination and directing criminal undercover operations. Also honest mistakes are allowed but not intentional omissions.

Question 15

In re matter of Shear (1st Dept. 2012)

Answer 15

Intentional withholding of information necessary to the court is tantamount to telling an outright lie.

Question 16

Garcia v. City of Westchester (SDNY 2016)

Answer 16

Attorney instructed paralegal to lie to a gym to catch disability fraud. Court held that lawyer can’t instruct paralegal to lie.

Question 17

Rule 1.2(a)

Answer 17

Lawyers are to abide by client’s objectives which are set by the client and can consult with them as to the means. However, lawyer has some leeway on strategy to achieve objectives.

Agency - clients are usually bound by actions taken by their lawyers. Can be express or implied authority. See agency law.

Question 18

Off limits Decisions

Answer 18

In civil cases whether to settle and in criminal cases to plead guilty, waive jury trial, or testify.

Question 19

Rule 1.14

Answer 19

Clients with diminished capacity - lawyer should, as much as possible, maintain as normal a relationship as possible. If diminishment is serious enough lawyer CAN consult with entities that may be able to take action to protect the client.

Question 20

When representing children

Answer 20

ABA standard - lawyer represents child’s expressed interests but separate guardian ad litem may represent what they believe to be the child’s best interests, especially when they conflict.

Question 21

Termination

Answer 21

Attorney-client relationship terminates when case is over or attorney is discharged.

Question 22

Returning client files after termination

Answer 22

Restatement § 46(2): On request, a lawyer must allow a client or former client to inspect and copy any document possessed by the lawyer relating to the representation, unless substantial grounds exist to refuse.

When a lawyer does not have to hand over documents: Law firm documents intended for internal review, such as documents discussing who in the firm should be assigned to a case. Work performed but not yet paid for, if withholding such documents is not unreasonably harmful to the client.

Question 23

Rule 1.16

Answer 23

Termination - Need to be able to withdraw without harming the client. Must provide notice to client of withdrawal.

Question 24

Can lawyers hire non lawyer assistants?

Answer 24

Yes, see Rule 5.3

Question 25

Bates v. State Bar of Arizona (1977)

Answer 25

The Supreme Court held that lawyer advertising is commercial speech protected by the First Amendment, noting that the ban on advertising originated as a rule of etiquette and not as a rule of ethics. This is not an excuse for fake on line reviews or other false claims.

Question 26

Rule 7.2

Answer 26

Advertising - allowed but don't say you're a specialist in something unless you have an official cert saying you're a specialist (this is widely considered stupid but its part of the rule).

Question 27

Ambulance Chasing

Answer 27

Ohralik v. Ohio State Bar Association (1978) Supreme Court held that a state could discipline a lawyer who approached accident victims, urged his services on them, and secretly recorded their consent. In the Court’s view, such restrictions serve “to reduce the likelihood of overreaching and the exertion of undue influence on lay persons, to protect the privacy of individuals, and to avoid situations where the lawyer’s exercise of judgment on behalf of the client will be clouded by his own pecuniary self-interest. Sending a piece of writing is fine though.

Question 28

Rule 7.3

Answer 28

Cannot solicit clients in person.

Question 29

Rule 5.5

Answer 29

Unauthorized practice of law - can't practice outside of places where you are admitted unless special authorization or its related to a pending matter in another jurisdiction.

Question 30

Rule 5.4

Answer 30

Not supposed to share legal fees with a non lawyer but see exceptions.

Question 31

Rule 1.6

Answer 31

Client Confidentiality - Cannot reveal information relating to representation of client without their consent. Or it is impliedly authorized.

Question 32

Rule 1.6 exceptions

Answer 32

To prevent REASONABLY CERTAIN death or bodily harm. Must be a true sense of imminency and must still be preventable (not in the past). May also speak to another lawyer about your obligations in a sticky situation. Also Sarbanes Oxley requires SEC regulated corporate lawyers to snitch on corps for securities fraud.

Question 33

People v. Belge

Answer 33

Attorneys Frank Armani and Francis Belge were court-appointed to represent Robert Garrow, Armani’s former client, who was charged with the murder of 18-year-old Philip Domblewski, and who was a suspect in a string of other unsolved murders. Initially, Garrow denied the murder, but after undergoing hypnosis, he confessed to murdering Philip Domblewski, Alicia Hauck, and Susan Petz, and told his lawyers the location of Petz’ and Haucks’ bodies. The trial court and the Appellate Division held that the attorney-client privilege “effectively shielded the defendant- attorney from his actions which would otherwise have violated the Public Health Law.” But does this holding make any sense? “Hard cases make bad [or not so good] law.”

Question 34

Rule 1.2(d)

Answer 34

A lawyer cannot advise a client on how to commit a crime or fraud.

Question 35

Fraud and privilege

Answer 35

NO PRIVILEGE when a client asks a lawyer with assistance in committing a crime or fraud. Unless they're asking about something they did in the past.

Question 36

Rule 4.4(b)

Answer 36

Inadvertent disclosure- need to notify sender if they accidentally send you something they should not have.

Question 37

Rule 4.2

Answer 37

Communication with person represented by counsel - can't do it in regard to the matter that is the reason for representation. But you could talk to them about like sports or something. This is a heavily enforced rule.

Question 38

Rule 1.17(b)

Answer 38

Court can reject a conflict waiver for both criminal and civil cases.

Question 39

Rule 1.5

Answer 39

Fees - must be reasonable. 8 factors in to evaluate in the rule. Cannot estimate time that will be spent on matter in advance.