Flashcards in Professional Responsibility Deck (63):
What are the two bodies of law that apply in VA PR issues?
ABA model rules - as adapted by VA
Connons of Judicial Conduct (rarely tested)
What are the main duties owed to your clients?
& other reasonable things
(Clients Love Fierce Counsel)
What are the duties owed to entities other than clients?
& other reasonable things
Courts Feel Differently
What is general rule for Duty of Confidentiality owed to clients?
Don't reveal any information PROTECTED BY ACP or gained through the professional relationship that would HARM OR EMBARASS your client, or that your client has requested be kept confidential
What are the ACP exceptions?
1) Client consents
2) defending yourself (client sues you, brings disciplinary action, or refuses to pay you)
3) Running your office
4) compelled by court order or law (and to prevent crimes)
What procedure must you follow if you want to disclose information gained through ACP that your client is about to commit a crime?
1) advise him possible legal consequences of his actions
2) urge him not to commit the crime and
3) warn him that you must reveal his intention if not abandoned
(if involving perjury, must seek to withdraw)
What is the black letter Duty of Loyalty?
You have a duty of loyalty to your client. I an interest of another client, yourself, or a 4rd party creates a SIGNIFICANT RISK OF MATERIALLY LIMITING your representation - or if representation directly adverse to another, you have A CONCURRENT CONFLICT OF INTEREST
Many conflicts can be tolerated if by a FACTUAL ANALYSIS establishes 3 elements:
1) you reasonably believe you can represent everyone effectively
2) you consult with each affected client. If your duty of confidentiality prevents you from fully disclosing info the client needs to understand the conflict, then consent may not be possible AND
3) The client CONSENTS, CONFIRMED in WRITING. your writing to the client memoralizing her oral consent is sufficient
If you were a GOv lawyer who worked ___________on a MATTER you cannot work on the same matter in later private practice without the government's consent.
personally & substantially
What are the 3 ABA conditions for an exception to imputed disqualification of colleagues of former government lawyers:
1) you are screened off; and
2) you do not share any part of the fee in the matter and
3) your former Gov employer is informed
You must not solicit a substantial gift from a client or draft a legal instrument for a client who is not your close relative, if it________________
Provides a substantial gift to you or your relative
When may you enter into business with a client or obtain an interest advers to hers:
First Discuss Over Coffee
1) terms are FAIR to the client
2) DISCLOSED in understandable writing
3) the client is advised to consult an OUTSIDE lawyer; AND
4) you client provides CONSENT in writing
To have a contigent fee arrangement, what are the writing requirements?
written, signed by the client, and contain:
1) your percentage and
2) what EXPENSES will be deducted from recovery AND
3) Whether your percent is taken BEFORE or AFTER EXPENSES
What are the limits on contingent fees?
Cannot agree to collect contingent fees in any CRIMINAL and most DOMESTIC RELATIONS cases.
How are fees set?
Fees must be REASONABLE, taking into account the LABOR, NOVELTY, DIFFICULTY, SKILL and TIMING required, result obtained, experience and other demands on attorney
Referral fees among lawyers are unethical, BUT in VA, __________
they are indirectly allowed if the referring lawyer stays in the case and agrees to a joint fee arrangement
Contracts to split fees with a non-lawyer are___________
against PUBLIC POLICY and VOIDABLE
Duty of Competence: you have a duty to render competent service to your client, which means:
Using the LEGAL KNOWLEDGE, SKILL, THOUROUGNESS and PREPARATION reasonably necessary for the representation
Duty of Diligence: you have the duty to___________
DILIGENTLY, PROMPTLY, and ZEALOUSLY pursue your case to completion
Duty to Communicate: You have the duty to keep your client informed about the case, anwser client communications AND
convey settlement offers
What is the procedure to withdraw?
1) provide timely notice to the court
2) in a reasonable time return: a) unspent fees and expenses AND b) all of the client's property and material papers.
What is the basic idea of duty of candor to 3rd parties?
A state can regulate attorney advertising and solicitation subject to your constitutional right to free speech.
This is protected under the limited commercial speech doctrine of 1st amdenment, which is subject to STRICT SCRUTINY (serves SUBSTANTIAL GOVERNMENT INTEREST, is DIRECTLY AND MATERIALLY ADVANCES THAT INTEREST AND is NARROWLY TAILORED to that interet)
What are judges duties?
1) Duty to preserve the decorum and impartiality of the tribunal
2) Duty to expedite cases
3) Ethical duties
a) maintain high standards of integrity and independence
b) disqualify themselves if the have a personal or financial interest
c) avoid appearance of bias or prejudice
d) must report income from all sources and no accept substantial gifts or loans
-active judges must not serve as a private judge, arbitrator or mediator, practice law or run for office
A lawyer is subject to discipline for engaging in deceitful conduct:
Only when it reflects adversely on her fitness to practice law.
Restrictions on the right to practice law (so-called “covenants not to compete”) are allowed: when included in a ________AND__________
settlement agreement and approved by a court.
In Virginia, in-person solicitation of clients is prohibited IF
harassment is involved
A concurrent conflict of interest exists when: (i) the representation of a client will be directly adverse to the interests of another client; or (ii) there is a ____________________ that the representation of a client will be ____________________ by the lawyer’s personal interests or by his responsibilities to another client, former client, or third person.
Under what circumstances may a lawyer draft a will that reflects the client’s intent to leave a large financial gift to the lawyer?
If the lawyer and the client are members of the same immediate family.
A lawyer wants to make an agreement giving the lawyer media rights to a movie about his client. The agreement is permitted under the RPC if: (1) the portrayal is ____________________; OR (2) the representation of the client ____________________.
unrelated to the representation; has ended
A lawyer ____________________ pay a client’s court costs and expenses of litigation without expectation of repayment ____________________.
May not; unless the lawyer is idignant
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?
The siblings may proceed if both of their clients consent after consultation.
A lawyer formerly represented a client in a matter. Under what circumstances may the lawyer represent a new client in the same matter, when the new client has interests that are materially adverse to the former client?
If the former and new clients both consent after consultation.
A lawyer is prohibited from placing the following funds into a client trust account; s
His own personal funds, solely for investment purposes.
A lawyer represents a client in litigation against a corporation and wants to talk with some of the corporation’s current and former employees. Except with the consent of the corporation’s attorney, through formal discovery, or as authorized by law, the lawyer is prohibited from discussing the litigation with ____________________.
Any current employee who has authority to bind the organization because of her status or position.
With certain exceptions, an attorney who ____________________ that another lawyer has committed a violation of the Rules of Professional Conduct that raises a ____________________ question as to that lawyer’s honesty or fitness as a lawyer in other respects must inform the appropriate professional authority.
"Has reliable information"; substantial.
If Judge A receives information indicating a substantial likelihood that Judge B has violated the Code of Judicial Conduct, Judge A ____________________.
Should take appropriate action, but is not required to do so.
In the course of his employment, an associate at a law firm commits an act that is a violation of the Rules of Professional Conduct. In which of the following situations would the associate’s supervising partner NOT necessarily be subject to discipline for the associate’s act?
A The partner failed to make reasonable efforts to ensure firm employees would not commit such an act.
B The partner ordered the associate to commit the act.
The partner, after learning of the act, failed to properly discipline the associate.
D The partner ratified the associate’s act after learning about it.
The partner, after learning of the act, failed to properly discipline the associate.
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 gives 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.
The client seeks the advice of independent legal counsel.
A lawyer may make an agreement prospectively limiting the lawyer's liability to a client for malpractice if:
(i) The lawyer is an employee of the client and (ii) the client is independently represented by counsel in the agreement.
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.
The lawyer must act in the best interests of the organization, even if such interests conflict with the interests of the organization’s officers.
A contingent fee arrangement would likely be allowed in which of the following situations?
A Representing a husband in seeking an alimony award from his wife.
B Representing a wife in a divorce proceeding.
C Representing a plaintiff in a civil lawsuit arising out of a sexual assault.
D Representing the accused in a battery prosecution.
Representing a plaintiff in a civil lawsuit arising out of a sexual assault.
Under the Rules of Professional Conduct, the client must ultimately make all of the following decisions, EXCEPT:
A What plea to enter.
B Whether to waive a jury trial.
C What material to disclose in discovery proceedings.
D Whether to settle a matter.
What material to disclose in discovery proceedings.
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:
The represented person is not an actual party to the matter.
Under her duty of candor to the tribunal, a lawyer MUST take ALL BUT WHICH of the following actions?
A Refuse to call a nonclient witness she knows will testify falsely.
B Disclose controlling legal authority that is damaging to her client, if opposing counsel has failed to do so.
Refuse to offer evidence she reasonably believes is false.
D Take reasonable remedial measures if she finds out that she has offered false evidence.
Refuse to offer evidence she reasonably believes is false.
All of the following actions by a lawyer are always prohibited, EXCEPT:
A Threatening to present disciplinary charges solely to obtain an advantage in a civil matter.
B Asking a witness to refrain from giving certain information to the opposing party.
C Making frivolous discovery requests.
D Alluding to inadmissible facts at trial.
Asking a witness to refrain from giving certain information to the opposing party.
Upon request, and within a reasonable time after termination of the representation, a client must be provided with copies of certain documents from the lawyer's file. These include all of the following types of documents, EXCEPT:
A Billing records.
C Documents provided to the lawyer by the client.
D Original legal instruments (e.g., a will).
What is RPC 3.1 "meritorious claims and contentions"
provides that a lawyer shall not bring or defend a proceeding, or assert or contravert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law
All active members of the VA state bar must annually complete and certify attendance at a minimum of_____credit hours of approved continuing legal education courses.
If an attorney is acting on a BoD, when would it create a conflict of interest?
If she gives any legal advice to the board, and the board members also act as part of the labor force (officers or directors of the company)
If an attorney is acting on a BoD is she representing the corporation?
Only if she gives legal advice to the corporation
A lawyer who is representing a corporation, must act in the BEST INTEREST of the corporation. When must a lawyer who is representing a corporation disclose conflicts of interest to the BoD?
when an officer of the corp engages in
conduct that is a violation of legal obligation to the corp and is likely to result in substantial injury to the corporation.
An out-of-state lawyer ____render services to prepare and participate in an ADR process, regardless of where the ADR process or proceeding is expected to take place or actually takes place.
Of the minimum 12 hours required annually from all active members of the VA state bar, at least___ credit hours shall be in the area of legal ethics.
A lawyer may counsel and assist a clietn to make a good faith effort to challenge the validity scope, meaning or application of a law. This is proper even if it requires the client or the lawyer to ________________
disobey the law
What percentage of a lawyers professional time should be devoted to pro bono pubilco legal services?
The VA rules of professional conduct include 4 areas that are considered to be pro bono publico legal services. Identify the four areas:
2) Civil Rights
3) Public Interest
4) Volunteer Activities
Can an attorney agree to a settlement if its conditioned on the premise that the attorney cannot take any cases against the opposing party in the future, even if the client wants to take the offer?
NO, unless it is approved by a TRIBUNAL or GOVERNMENT. A lawyer must not PARTICIPATE IN OFFERING OR MAKING an agreement in which a BROAD RESTRICTION on the lawyers right to practice.
IF the client insists, the attorney can withdraw from representation. Even if approved by government or tribunal, attorney can withdraw from any representation he considered repugnant or imprudent.
When can an attorney representing an ex-employee who wants to sue her former employer, interview other employees of the company ex-parte?
When the employee is not part of the companies "control group", who have authority to bind the organization, or persons who may be binded by the organiation.
If the employee does not meet the above criteria and is otherwise unrepresented, the RPC permits lawyers to communicate with an unrepresented person, however lawyer cannot state or imply that he is disinterested and must correct any misunderstandings that the employee has regarding representation.
A laywer who has formerly represented a client in a matter may not:
1) use information relating to or gained in the course of representation to the disadvantage of the former client
2) reveal information relating to the representation
What is an attorney certifying to when he signs a pleading?
1) he has read it
2) to the best of his knowledge, information and belief FORMED AFTER REASONABLE INQUIRY, it is WELL GROUNDD IN FACT and is WARRANTED BY EXISTING LAW and
3) it is not interposed for any improper purpose
If an attorney files a complaint on behalf of a plaintiff without doing a cursory investigation of the facts and law, what can a court do?
Impose sanctions for filing a frivolous law suit.
The prohibition against recommending unlawful conduct would not prevent a lawyer from doing what?
Testing the scope or validity of a particular law.