Professional Responsibility Flashcards Preview

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Flashcards in Professional Responsibility Deck (58):
1

If you know of a violation that raises a substantial question regarding a lawyer's character and fitness, as an MA attorney, must you report the violation?

Yes. It is not recommended. It is mandatory, and if you do not report the attorney, you are also subject to discipline.

You must both report and be available to testify.

2

What activities require a law license, what ones do not?

Required: Appear in court, drafting documents that substantially affect legal rights, and negotiate settlements.

Not required: Interview people, help them fill in forms, or writing legal memos.

3

What decisions belong to a client, what ones belong to the lawyer?

Client: Settle or not, appeal or not, client testify or not. Other decisions that affect the merits

Lawyer: Strategic, tactical, procedural. e.g. whom to depose.
Note***Client can veto strategic decisions if they cost too much.

4

If you do not think you are competent to handle a case what are your options?

1. Decline it.
2. Hire co-counsel.
3. Ask client for reasonable time to learn it.

5

What is Limited Assistance Representation? New topic. Might be tested.

MA allows pro se clients to save money by purchasing certain legal services only.

As a limited assistance representative, you may make multiple appearances in the same case, but you must file a notice of limited appearance each time you appear. (Cannot do so just to make evidentiary objection.s)

You can ghostwrite docs, and it does not count as an appearance, but it must clearly state, "Prepared with the assistance of counsel."

6

Can you sign a non-compete as a lawyer?

No, unless related to retirements and retirement benefits.

7

Can you include an agreement not to sue a defendant anymore as part of a settlement agreement.

No.

8

If you sell your law firm, and some clients do not expressly accept the buyer as the new attorney, at what point is consent presumed?

90 days.

9

What are the exceptions to confidentiality?

1. Court order
2. Consent
3. Impliedly authorized to carry out representation
4.
a) Prevent death or substantial injury
b) Prevent criminal or fraudulent acts that will result in substantial injury to a person's significant interest (financial, property, privacy, etc.).
c) Prevent, rectify, or mitigate injury caused by the client's criminal or fraudulent act if the client used the lawyer's services to further the act.
d) Est. a claim or defense in a dispute between a and c.
e) Get ethics advice
f) Detect and resolve conflicts after change of employment.

In general, PAST CRIMES ARE SECRET!

10

Explain what you need to know about conflicts of interest for the bar.

1. Avoid conflicts.
2. Look for things that might drive a wedge between the a and the c.
3. Lawyer can still rep if:
a) Reasonable belief that can rep competently and diligently despite conflict AND
b) All clients have given their informed consent, confirmed in writing. (Confirmatory memo of oral agreement ok.)

Can't consent to litigate both sides of the same matter.

4. Can't rep a client if she wants to sue a former client in the same or substantially related matter or if you learned info about former client that could be used against that former client in the new matter.

5. Can't rep a client if that client is looking to sue a former prospective client in the same or a substantially related matter and the prospective client disclosed confidential information that could be used against that prospective client now.

11

Can I contract for media rights?

Only if unrelated to the litigation and wait until the litigation is over.

12

Can client agree not to sue for malpractice?

Only if they have independent counsel assist that agreement.

13

When can you not accept a contingent fee?

Criminal case or domestic matters.

Note***Recovering in a failure to pay child support or alimony is not a domestic matter. It is a k matter.

Negotiating or litigating the amount of alimony or child support is a domestic matter.

14

What are your duties to opposing counsel?

Be fair and DO NOT
1. Unlawfully obstruct access to evidence.
2. Falsify evidence.
3. Knowingly disobey an obligation under the rules.
4. Make frivolous discovery requests.
5. Not allude in trial to a matter the lawyer reasonably believes cannot be supported by the evidence.
6. Request a non-party to refrain from voluntarily providing information.
7. Pay or offer to compensate a witness for them testifying how you want them to.
8. Present or threaten criminal or disciplinary charges to gain an advantage in a civil matter.
9. Engage in bias or prejudicial conduct while appearing in a professional capacity.

15

When must you withdraw, what are some examples when you may withdraw?

Must:
1. Rep would violate rules.
2. You are impaired.
3. You are fired.

May:
1. Disagreement on objective.
2. Client used your services to perpetuate a crime.
3. Client is not fulfilling his obligations (e.g. payment or producing documents.)

16

When can you refuse an appointment?

1. Rep would violate the rules.
2. It would impose an unreasonable financial burden.
3. The cause is so repugnant to you that it would impact your representation.

17

Who investigates ethical rule violations? What are the penalties?

Board of Overseers are appointed by the Supreme Judicial Court, and they appoint a Chief Bar Counsel to do a preliminary investigation. They recommend:
1. Dismissal
2. Admonishment
3. Formal Proceedings
4. Formal Discipline by Agreement.

Ultimately, the Board may ultimately:
1. Admonish
2. Publicly Reprimand
3. Suspend
4. Disbar

18

If a client sues for malpractice and reports you for an ethics violation, may the suit proceed if there is no ethics violation?

Yes. The two are separate proceedings.

19

What are some lawful and unlawful requirements to be admitted to the bar?

Lawful:
Graduate from an ABA accredited school or a school authorized by MA statute to grant law degrees.

Unlawful:
US citizenship or state residency requirements.

20

If you are disciplined for violating ethical rules in another state, may MA discipline you as well?

Yes. It is not required but discipline by one state does not prevent you from being disciplined by others in which you are licensed.

21

Can lawyers from other states practice here? How?

1. Associate with another lawyer.
2. Ask to be admitted pro hac vice (in MA this requires a fee per case).
3. You can do mediation or arbitration outside the state.
4. You can engage in activities related to your home state practice.

22

If a client can't make decisions due to age of minority or incapacity, what are your options?

1. Involve client as much as possible in a normal a-c relationship.
2. If risk of serious physical, financial or other harm the lawyer may consult with the client's family or adult protective agencies, or have a guardian ad litem appointed.
3. Disclose only what is necessary to protect the client's interest.

23

When may a firm name be inappropriate?

1. Misleading
2. Attorney has permanently left the firm whether for a good or bad reason.

24

Can you advertise that you are "certified" in an area of law?

Yes if it is true and you state the certifying body. If not ABA accredited or accredited by an appropriate state body, you must state as much.

25

How can you advertise and/or solicit?

You may advertise if the claims are factually verifiable and not false or misleading in the eyes of a layperson.

Avoid referencing your connections to prominent figures.

Identify who is responsible for the ad.

No soliciting by direct personal contact (live, telephone, or instant electronic) unless it is pro bono.

Truthful, non-misleading, and targeted mailings are ok until they tell you to stop.

No duress, harassment, or coercion.

No taking advantage of a vulnerable person.

If you give unsolicited, in-person advice, you cannot now represent that person.

26

What are the exceptions to the rule prohibiting in person solicitation?

1. Other lawyers.
2. Family members (grandparents and their descendants, or your grandparent in-laws and their descendants.
3. Clients whom you have repped before.
4. Orgs and persons in trade or commerce.

27

If a client wants to leave you something in her will, what do you do?

Get another lawyer to do the will.

28

Can you accept gifts from clients?

Only if family member or it's de minimis.

29

When can you lend money to clients?

1. Advance costs of litigation.
2. Pay costs because client is indigent and you are doing the case pro bono.

30

If a client's fees are being paid by a third party, and the third party asks you to settle the case, what result?

It is up to your client even though a third party is paying the fee.

31

How do you effectively screen an associate or partner?

1. Inform opposing counsel.
2. No access to case or discussions.
3. No share in fees.

32

In what way do the Professional Rules govern your fee?

1. Must be reasonable.
2. Must be in writing, unless, it is a single session consultation or it is less than $500.
3. Cannot charge contingent fees for domestic relations or criminal cases.
4. Disclose client liability for fees and costs and basis and calculation method of fee.
5. Cannot divide fee with a non-lawyer, except to pay salaries, bonuses, profit sharing arrangements, or pay outs to spouse of deceased partner.
6. Fee division if client is informed and he consents in writing, and the total fee is reasonable.
7. Disclose how much each gets only if asked.
8. Fired lawyer gets reasonable value of her services.

33

What are the two types of retainers?

1. Advance on fees - e.g. $5000 to get me started. It's not mine until I use it.
2. Availability retainer - e.g. $25,000 to represent me if I get indicted. Mine right away because I am turning away potential conflicts based on you retaining me.

34

What two accounts does every firm need?

1. Personal - my money
2. Trust - client's money

Rebuttable presumption if money goes in wrong fund and cannot be accounted for that it was misused.

Disputed funds stay in trust account until settled.

Interest on trust account gets wiped into MA Legal Assistance Corporation or other charity.

35

Can a subordinate lawyer be responsible for being ordered to do something?

On the flip side, can a supervising attorney be responsible for conduct of subordinates?

Subordinate is responsible unless he truly was ordered to do something wrong, and it is reasonable that the subordinate thought it might be ok.

Supervisors are responsible if they ordered conduct, ratified conduct, or learned about bad conduct and did nothing to fix it.

36

Can you talk to jurors? Witnesses? Opposing party?

Never talk to the jury during the trial, even de minimis.

After the trial it's ok unless the judge says no or the juror does. Never harass them.

You may talk to witnesses.

You may not talk to the opposing party, but your client can.

37

If the opposing counsel has not brought up a case directly on point but adverse to your position, must you bring it up?

If it is from the controlling jurisdiction, yes.

38

As an attorney, if you are a necessary witness, may you still serve on the trial team?

Not during the trial, but you can do pre-trial work with the client's consent.

39

What do you do if your client wants to lie on the stand?

Before rep: Try to convince not to, and if he insists, do not take the case.

After rep but before trial: try to convince otherwise, but if he insists, motion to withdraw.

During trial but before testimony: try to convince otherwise, but if he insists, let him do so in the narrative.

Testifies falsely at trial: Try to convince him to correct himself, but can't do anything if he will not.

40

What are the rules on trial publicity?

Do not say anything that would material prejudice the case.

41

What are the special duties of a prosecutor?

1. Proceed only on PC.
2. Protect D's right to counsel.
3. No seeking advantage from unrepresented.
4. Must disclose evidence tending to negate guilt.
5. Limit extra-judicial statements of others under prosecutorial control.

42

Must MA lawyers provide annual pro bono service?

No, it is aspirational.

43

A lawyer represents a client in a matter. An opposing party who has no counsel of his own, and whose interests are in direct conflict with the client’s interests, calls the lawyer for advice. The lawyer:

May only advise the party to obtain counsel.

44

The Rules of Professional Conduct limit a lawyer's public communications about his field of practice. Generally:

A A lawyer may hold himself out as a specialist, and may claim to be "certified" if the certifying organization is named.
B A lawyer may claim to be "certified" if the certifying organization is named, but may not hold himself out as a specialist.
C A lawyer may not hold himself out as a specialist or claim to be "certified."
D A lawyer may hold himself out as a specialist, but may not claim to be "certified."

A A lawyer may hold himself out as a specialist, and may claim to be "certified" if the certifying organization is named.

45

Under what circumstances may a lawyer draft a will that reflects the client’s intent to leave a large financial gift to the lawyer?

A None; this is always forbidden.
B If the lawyer and the client are closely related family members.
C If the client is also a lawyer.
D If the client understands the inherent conflict of interest in the representation and provides consent.

B If the lawyer and the client are closely related family members.

46

A brother and sister are both lawyers. The brother intends to represent a plaintiff in suing a defendant. The sister intends to represent the defendant in the same lawsuit. Which of the following statements is true?

A The siblings may proceed with their respective representations because no conflict exists.
B The conflict of interest is imputed to other lawyers at the siblings’ respective law firms.
C There is an unwaivable conflict of interest and one of the siblings must withdraw.
D The siblings may proceed if they obtain the informed consent of their clients.

D The siblings may proceed if they obtain the informed consent of their clients.

47

A lawyer who formerly represented Former Client in a matter may not thereafter represent Current Client adverse to Former Client in:

A The same matter, regardless of whether Former Client consents.
B The same matter or a substantially related matter, unless Former Client gives informed consent, confirmed in writing.
C Any matter, unless Former Client gives informed consent, confirmed in writing.
D The same matter or a substantially related matter, regardless of whether Former Client consents.

B The same matter or a substantially related matter, unless Former Client gives informed consent, confirmed in writing.

48

A lawyer works at a law firm. During that time, she represents a plaintiff in a personal injury case. No one else at the firm works on the case. The lawyer then moves to a new law firm, taking all of her cases with her. If the plaintiff’s consent cannot be obtained, under what circumstances may the lawyer’s original firm subsequently represent one of the defendants in the same personal injury case?

A Only if no lawyer remaining at the original firm has any confidential information that is material to the matter.
B Under no circumstances; this is absolutely prohibited.
C Regardless of the circumstances; this is always permitted.
D Only if the departed lawyer consents.

A Only if no lawyer remaining at the original firm has any confidential information that is material to the matter.

49

A lawyer personally and substantially participated in a matter as a mediator. The lawyer must not subsequently represent a person in connection with the same matter as an attorney:

A Under any circumstances.
B Unless all parties in the current matter provide informed consent, confirmed in writing.
C Unless the party represented by the lawyer provides informed consent, confirmed in writing (the other parties need not consent).
D Unless, while serving as a mediator, the lawyer did not gain any confidential information that would harm any of the parties.

B Unless all parties in the current matter provide informed consent, confirmed in writing.

50

The Rules of Professional Conduct govern conflict situations in which a lawyer enters into a business transaction with her client. Under this rule, ALL BUT WHICH of the following conditions must be satisfied for the lawyer to properly enter into the transaction?

A
The client seeks the advice of independent legal counsel.
B
The client provides consent in writing.
C
The terms of the transaction are fair to the client.
D
The terms of the transaction are transmitted in writing to the client.

A
The client seeks the advice of independent legal counsel.

51

Which of the following accurately describes one of the requirements that must be met before a lawyer may settle an existing malpractice claim with a former client?

A
The former client must sign a writing indicating that she has sought the advice of independent counsel in the settlement agreement.
B
The lawyer must advise the former client in writing that independent representation is desirable.
C
The settlement must be approved by the court.
D
The lawyer must be represented by independent counsel in the settlement agreement.

B
The lawyer must advise the former client in writing that independent representation is desirable.

52

During trial, it becomes apparent that a lawyer representing one of the parties is likely to be called as a necessary witness. The lawyer will be allowed to proceed with the representation if any of the following facts are true, EXCEPT:

A
His testimony will relate solely to an uncontested issue.
B
He will testify only about the nature and value of the legal services he rendered to the client.
C
His client provides informed consent.
D
His value is so distinctive to the case that withdrawal would cause substantial hardship to the client.

C
His client provides informed consent.

53

A lawyer is retained to represent an organization. Which of the following statements is true?

A
The lawyer is strictly prohibited from representing an employee of the organization.
B
The lawyer automatically represents the organization's board of directors.
C
The lawyer must act in the best interests of the organization, even if such interests conflict with the interests of the organization’s officers.
D
The lawyer must report a violation of law within the organization if he has already brought it to the attention of the organization’s highest authority and the highest authority failed to act.

C
The lawyer must act in the best interests of the organization, even if such interests conflict with the interests of the organization’s officers.


D gives him permission to but does not require him to do so.

54

In which of the following representations is an oral fee agreement likely proper?

A The lawyer intends to represent a client in a small claims action in which the client seeks a $200 settlement, and the lawyer and client agree that the lawyer will receive one-third of any settlement.
B The lawyer intends to spend a maximum of two hours drafting routine documents for a client at a rate of $90 per hour.
C The lawyer intends to represent a corporation in a personal injury lawsuit under an hourly fee arrangement.
D The lawyer intends to represent a regular client in a real estate matter, and does not anticipate that the total fee will exceed $1,000.

B The lawyer intends to spend a maximum of two hours drafting routine documents for a client at a rate of $90 per hour.

55

For a lawyer to ethically divide fees with another lawyer who does not work at the same firm, ALL BUT WHICH of the following conditions must be met?

A
The client must be informed of the division of fees.
B
The total fee must be reasonable.
C
The division of fees must be proportional to the services performed by each lawyer.
D
The client must consent in writing to the division of fees.

C
The division of fees must be proportional to the services performed by each lawyer.

56

Under certain circumstances, a lawyer may counsel a client:

A
To commit a criminal act.
B
To disobey a statute.
C
To commit a fraudulent act.
D
On how to commit an illegal act and get away with it.

B
To disobey a statute.

A lawyer must not counsel or assist a client in conduct that the lawyer knows is criminal or fraudulent. Furthermore, the lawyer must not recommend illegal conduct or instruct the client on how to break the law and get away with it. However, a lawyer may discuss with his client the legal consequences of proposed courses of conduct. A lawyer may also counsel or assist the client in a good faith effort to determine the validity, scope, meaning, or application of the law. Determining the validity of a statute may require that a client disobey the statute.

57

A lawyer who represents a client in a matter speaks with a person who is represented by counsel in relation to that same matter. The lawyer will be subject to discipline EVEN IF:

A
The person is not an actual party to the matter.
B
The person’s attorney has permitted the lawyer to speak with the person.
C
The lawyer has no reason to believe that the person is represented by counsel.
D
The communication is unrelated to the matter.

A
The person is not an actual party to the matter.

In the representation of a client, a lawyer generally must not communicate about the subject of the representation with a person he knows to be represented by counsel in the matter unless the other counsel has granted permission or he is otherwise authorized by law or court order to make such direct communication. It also applies to any person represented by counsel concerning the matter to which the communication relates, even if the person is not formally a party to the matter. The prohibition on communications with a represented person applies only if the lawyer knows that the person is represented in the matter to be discussed (or if knowledge can be inferred from the circumstances). This rule does not prohibit communications about matters outside the representation.

58

Under the Rules of Professional Conduct, a lawyer is specifically permitted to withdraw from a matter in all of the following situations, EXCEPT:

A
A client insists on taking an action that the lawyer finds to be repugnant.
B
The client has used the lawyer’s services to perpetrate a fraud.
C
Withdrawal can be accomplished without material adverse effect on the interests of the client.
D
The client failed to pay his last bill.

D
The client failed to pay his last bill.

A., B., and C. are all grounds for permissive withdrawal. The situation in D. is not a ground for withdrawal on its own. It is true that a lawyer may withdraw when the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services (e.g., paying legal fees); however, the client must be given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled. Without taking this step to protect the client’s interests, a lawyer cannot withdraw based on an overdue payment.