Professional Responsibility Flashcards Preview

VA: Final Review > Professional Responsibility > Flashcards

Flashcards in Professional Responsibility Deck (30):
1

Scope of Representation: Client Decisions (5)

1. Accept/Reject settlement offers
2. Waive affirmative defenses (civil case)
3. Plea (criminal case)
4. Waive jury trial (criminal case)
5. Whether to testify (criminal case)

2

Scope of Representation: Lawyer Decisions (5)

1. Choice of motions
2. Scope of discovery
3. Choice of witnesses
4. Direct and cross examinations
5. What evidence to introduce

3

Attorney Communications with Third Parties
• Conditions when attorney may not communicate (5)

Attorney may not communicate if:
1. Know third party is represented by counsel
2. A/b the subject matter of representation
3. Third party not seeking second opinion or replacement counsel
4. Third party's counsel hasn't consented AND
5. Law doesn't allow the communication

4

Attorney Communications w/ Third Parties
• Assuming attorney may communicate, what's scope? (5)

1. Don't intent to embarrass, delay, or burden third party
2. Method doesn't violate third party's rights
3. Attorney doesn't imply she's disinterested
4. Attorney makes clear her role AND
5. No advice other than to seek counsel

5

Duty of Candor to Tribunal: Law (2 independent bases)

Attorney subject to discipline if:
1. Knowingly make false statement of law to tribunal OR
2. Don't disclose controlling law adverse to client

6

Duty of Candor to Tribunal: Facts (2 independent bases)

Attorney subject to discipline if:
1. Knowingly make false statement of fact to tribunal OR

2. Don't volunteer facts if:
(i) material to an ex parte proceeding or
(ii) disclosure necessary to avoid helping client commit crime or fraud

7

Duty of Candor to Tribunal: Evidence

Attorney subject to discipline if knowingly offer false evidence

8

Does an attorney have an obligation to volunteer harmful facts?

No

9

Mandatory Withdrawal (three independent bases)

1. Representation will violate the Rules or other law
2. Lawyer's physical or mental condition materially impairs ability to represent the client OR
3. Lawyer is fired

10

Permissive Withdrawal (6 independent bases)

1. Client pursue conduct lawyer reasonably believes is illegal or unjust and involves lawyers services

2. Used lawyer's services to perpetuate a crime or fraud

3. Client pursue objective lawyer considers repugnant or imprudent

4. Client doesn't fulfill an obligation to the lawyer regarding his services AND has been given reasonable warning that lawyer will withdraw unless obligation fulfilled

5. Unreasonable financial burden on lawyer OR

6. Good cause

11

Lawyer's Major Duties

Clients Love Fierce Counsel; Courts Feel Differently
• Confidentiality (client)
• Loyalty (client)
• Financial Responsibility (client)
• Candor (tribunal)
• Competence (client)
• Fairness (adversary)
• Dignity/Decorum (public)

12

Judicial Duties (2)

Impartiality and public confidence

13

Policing the Profession

1. No unauthorized/unlicensed practice of law
2. No pro hac vice appearances
3. Duty to practitioners
4. Report attorney misconduct
5. Sanctions
6. Duty to subordinate lawyers

14

Advertising

Lawyer's communication w/ public cannot be false or misleading
• Legal specialties (admiralty, patent, certified specialist)
• Content: name + office address

15

Solicitation

OK if face to face, phone, or real-time elec comm'n

Need not conspicuously label as advertising material if recipient is:
1. Another lawyer
2. Family OR
3. Had prior contact w/ you

Standard: TOC

16

Financial Responsibility: Attorney's Fees
• General Rule
• Non-Contingent Fee (elements)
• Contingent Fee (elements)

Rule: must be reasonable

Non-contingent Fee
1. Explain amt
2. Reasonable time
3. Written (preferred)

Contingent Fee:
1. Written
2. Client signs
3. Percentage
4. Expenses
5. When expenses taken

17

Financial Responsibility: Client Trust Accounts: Five Rules

1. Duty to protect client property
2. Duty to keep individual client records
3. Never borrow or commingle funds
4. Purpose: hold money
5. May pay third parties w/ client money only if client consents or court order

18

Financial Responsibility: Fee Splitting: Four Rules

1. OK w/ lawyers w/in firm

2. OK w/ outside lawyers if:
(i) reasonable fee
(ii) client consents AND
(iii) written (preferred)

3. No referral fees b/t lawyers

4. Never OK w/ non-lawyers

19

Conflicts B/t Lawyer and Client: Eight Rules

1. No substantial gifts (to you or fam) during representation
2. Cannot limit liability
3. No publication rights contracts before rep ends
4. Can't use confidential info to client's disadvantage
5. No loans to client (unless indigent or an advance)
6. No close relations w/ opposing counsel (close relative)
7. May testify as necessary witness
8. May enter into biz transactions

20

Lawyer-Client Conflict: Lawyer Testifying as Witness

OK if:
1. Uncontested
2. About rendered legal services OR
3. Withdrawal would impose substantial hardship on client

21

Lawyer-Client Conflict: Biz Transactions

OK if "COFD":
1. Consent (written)
2. Outside lawyer (for client)
3. Fair terms
4. Disclosed in understandable terms

22

Client-Client Conflicts: Representation Always OK (1)

Clients w/ inconsistent positions

23

Client-Client Conflicts: Representation Maybe OK (5)
• Elements
• Examples

OK if:
1. Reasonably believe can represent effectively
2. Consult with clients AND
3. Written consent

Examples:
1. Opposing current client in different matter
2. Multiple clients in same matter
3. New client in matters relating to former client's interest
4. Former gov't lawyer moves to private practice
5. Lawyer switches firms and takes clients, but old firm becomes counsel for lawyer's opposing party

24

Client-Client Conflicts: Representation Never OK (1)

Both clients are opposing parties in same matter

25

Confidentiality: Rule (three independent bases)

Rule - can't reveal any info if:
1. Protected by A-C privilege
2. Gained via prof relationship that would harm/embarrass client OR
3. Client wants it kept confidential

26

Confidentiality: Exceptions

1. Client consents
2. Lawyer is defending himself (est claim or defense)
3. Office administrative functions
4. Prevent crimes (but advise client first)
5. Reveal fraud on a tribunal
6. Fraud on third party relating to you and your services

27

A-C Privilege
• Rule
• Waiver
• Corporate Clients

Narrower than confidentiality: lawyer can't testify a/b client communication

Waived if revealed to third party

Corporate Clients
1. Comm'n b/t attorney and high-ranking official
2. Comm'n from other employee if:
(i) within scope of employee's duties
(ii) directed by employee's superiors AND
(iii) employee knows purpose is legal advice

28

Confidentiality: Timing

Starts: Prospective client
Ends: Termination of A-C relationship

29

Virginia State Bar requires how many credit hours per year for CLE?

12

30

Lawyer files a motion knowing that SOL has run: what result?

Ethical violation: lawyer can't bring or defend a proceeding or assert or controvert an issue unless there is a non-frivolous basis
• this includes a good faith argument for an extension, modification, or reversal of existing law