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Virginia Bar Exam Lecture Based > Professional Responsibility > Flashcards

Professional Responsibility Flashcards

1
Q

What body of law applies for professional responsibility?

A

Virginia’s version of the ABA Model Rules of Professional Conduct (RPC)

In 2000, the Virginia Supreme Court replaced the Virginia Code of Professional Responsibility with this.

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2
Q

How should professional responsibility essays be organized?

A

“The lawyer has a duty of _____ to _____ .”

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3
Q

What duties does a lawyer owe to his clients?

A
  • Confidentiality
  • Loyalty
  • Financial responsibility
  • Competence

(Clients Love Fierce Counsel)

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4
Q

What duties does a lawyer owe to entities other than his clients?

A
  • Candor (i.e., truthfulness)
  • Meritorious Claims
  • Fairness
  • Dignity (i.e., decorum)

(Courts May Feel Differently)

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5
Q

Other than his clients, what entities do a lawyer owe duties to?

A
  • Court
  • Adversaries
  • Legal profession
  • Third parties
  • Public

(Court, OC, L Prof, 3Ps, Public)

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6
Q

What is the general rule for the duty of confidentiality?

A

Don’t reveal any information that:

  • Is protected by the attorney-client privilege,
  • Is gained through the professional relationship that would harm or embarrass the client,
  • The client has requested be kept confidential

[AC + harm/emb + conf]

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7
Q

What is the attorney-client privilege?

A

The overlapping, but narrower, evidence rule that allows the client to prevent a lawyer from testifying about communications that she made to the lawyer in confidence.

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8
Q

When is the attorney-client privilege destroyed?

A

When the privileged information is revealed to non-essential persons who are not party to the privileged relationship.

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9
Q

What does the attorney-client privilege cover with corporate clients?

A
  1. Communications between the lawyer and high-ranking corporate officials, and
  2. Communications from other employees if:
    • They are within the scope of the employee’s duties,
    • Provided at the direction of the employee’s superiors, and
    • The employee knows they are made to help the corporation get legal advice
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10
Q

When does a lawyer’s duty of confidentiality begin and end?

A

It begins when a lawyer receives communications from a prospective client for hte purpose of forming a legal relationship.

It continues after the attorney-client relationship ends, and even after the client’s death.

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11
Q

What are the major exceptions to the lawyer’s duty of confidentiality?

A
  1. Client consent (including evaluation for third party)
  2. Required by law or court order
  3. Defending yourself (and collecting a fee)
  4. Remedying client’s fraud against a third party
  5. Protecting client’s interests
  6. Bookkeeping or office management
  7. Preventing a crime (MUST promptly reveal)
  8. Revealing fraud on a tribunal (MUST promptly reveal)
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12
Q

What should a lawyer do if he discovers that his client intends to commit a crime?

A
  • Advise the client of the possibla legal consequences of his actions
  • Urge the client not to commit the crime
  • Warn the client that you must reveal his intention if not abandoned
  • If the crime involves perjury, warn the client that you must also seek to withdraw

If the client does not abandon his intention, the lawyer MUST promptly reveal the client’s intention

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13
Q

What should a lawyer do if he discovers that his client perpetrated a fraud upon a tribunal?

A

If the fraud:

  • Was perpetrated during the course of the lawyer’s representation, and
  • Relates to the subject matter of the lawyer’s representation,

The lawyer must:

  • Ask the client to inform the tribunal of the fraud, and
  • If he does not, promptly reveal the information
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14
Q

What is the general rule for the duty of loyalty?

A

A lawyer cannot represent a client if the representation creates a concurrent conflict of interest.

Representation creates a concurrent conflict of interest if an interest of another current or former client, the lawyer, or a third party (1) creates a significant risk of materially limiting the lawyer’s representation, or (2) his representation of one client is directly adverse to another.

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15
Q

What is the rule regarding a lawyer’s ignorance of a conflict of interest?

A

Ignorance is not an excuse unless it arises from short-term legal services under a court, agency, or non-profit program.

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16
Q

What are the exceptions to imputed disqualification?

A
  • Purely personal conflicts
    • When two lawyers are related as parent, child, sibling, or spouse, or are intimately involved, a conflict arises if they represent clients whose interests are directly adverse. But this type of conflict is not imputed to other lawyers.
  • Trial counsel as a witness
    • When a lawyer serves as a witness in a trial that his law firm is litigating, his disqualification from representation is not imputed on his colleagues
  • Ethical wall
    • A lawyer can avoid imputed disqualification by timely screening a colleague from participation in the matter when the colleague has a conflict due to (1) his prior government service, or (2) his work for adverse parties
      • BUT:
        • The screened colleague cannot share any part of the fee in the matter (aside from pre-arranged salaries of partnership shares), and
        • His former government employer must be informed (no consent required, just informed)
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17
Q

What are the remedies for a conflict of interest?

A

Depending on the posture of the case, a lawyer might:

  • Refuse to take the case,
  • Advise multiple clients to get separate counsel, or
  • Withdraw from representation
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18
Q

When can a lawyer continue representation despite a concurrent conflict?

A
  • The lawyer reasonably believes he can represent everyone effectively despite the conflict,
  • The lawyer consults with each affected client,
  • Each client provides written informed consent, or the lawyer writes to the client memorializing oral consent

Note: if the lawyer’s duty of confidentiality prevents him from fully disclosing information that a client needs to understand the conflict of interest, informed consent may not be possible

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19
Q

What types of concurrent conflicts cannot be waived?

A
  • Representation of opposing parties in the same matter
    • E.g., Law firm represents Texaco in labor matters and former Texaco employee asks law firm partner to sue Texaco for cutting off benefits. Even though partner never worked on Texaco matters, imputed disqualification means he represents Texaco. The employee and Texaco are in direct conflict, so partner cannot take the case.
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20
Q

When can a lawyer represent a prospective client who is adverse to a current client, and when can he not?

A

He can if:

  • He will represent opposing parties in different matters, and
  • All clients provide informed consent

He cannot if:

  • He will represent opposing parties in the same matter, regardless of consent
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21
Q

When can a lawyer represent two clients with inconsistent positions (e.g., lawyer needs to argue both for an against the Managed Care Act in two different appeals)?

A

If neither client would be disadvantaged by the representation, the lawyer can argue the inconsistent positions.

If either client would be disadvantaged by the representation, the lawyer must obtained informed consent.

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22
Q

When can a lawyer represent multiple clients in the same matter?

A
  • If there is not a significant risk of material conflict (i.e., a risk that representation of one client will materially limit representation of another), or
  • If there is a significant risk of material conflict, and the clients provide informed consent
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23
Q

When can a lawyer not represent multiple clients in the same matter?

A

When the parties become directly adverse to one another, especially if one client provides relevant, confidential information that the lawyer cannot share with the other client.

The lawyer will not be able to fully pursue loyal representation of the second client, so at a minimum, he should withdraw from representing the second client.

Ideally, the lawyer should withdraw from both representations and advise the clients to get separate counsel.

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24
Q

When can a lawyer take on a new client with interests materially adverse to a former client?

A

When either:

  • The representations do not overlap in function, scope, or information, or
  • They do overlap, but the lawyer obtains informed consent from both clients

E.g., if A asks lawyer to represent him divorcing B, but lawyer’s senior partner once represented B in a business deal, lawyer is probably not disqualified becuase the representations do not overlap.

E.g., if A asks lawyer to represent him in an infringement action against B, and lawyer once represented B against infringement charges and accessed her personal files, lawyer cannot use this non-public confidential information against B, the former client, without consent.

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25
Q

What are the limits on government lawyers who move into private practice?

A

A former government lawyer cannot work on a “matter” in private practice that he worked on “personally and substantially” as a government lawyer, unless the government provides consent.

Note: legislation is not a “matter,” so if a former government lawyer helped draft regulations, he can litigate the meaning of those regulations in private practice afterwards

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26
Q

What are the limits on third-party neutrals (e.g., judges, clerks, arbitrators, etc.) who move into private practice?

A

They cannot work on a “matter” in private practice that they were involved with as a third-party neutral unless all parties to the judicial proceed provide consent.

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27
Q

What is the rule regarding gifts from client to lawyer?

A

A lawyer must not:

  • Solicit a substantial gift from a client, or
  • Draft a legal instrument for a client who is not a close relative

If it provides a substantial benefit to the lawyer or his relative

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28
Q

What is the rule regarding a lawyer limiting his liability to his clients?

A

A lawyer cannot limit:

  • His client’s right to report him for professional misconduct,
  • His client’s right to cooperate in an investigation, or
  • His malpractice liability when he enters into a relationship with a client, unless:
    • He is an employee of the client (e.g., in-house counsel),
    • And the client is independently represented in making the agreement
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29
Q

What is the rule regarding a lawyer obtaining publication rights from a client?

A

A lawyer cannot obtain publication rights from a client before his representation of that client has ended (e.g., otherwise a lawyer might have an interest in getting his client the death penalty because that would help him sell more books)

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30
Q

Can a lawyer ever use his client’s confidential information to the client’s disadvantage?

A

No, unless the client provides consent. Otherwise, this would violate both the duty of confidentiality and the duty of loyalty.

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31
Q

What is the rule regarding loans from a lawyer to his client?

A

These are forbidden except for advances of court costs and fees if:

  • The client remains liable for reimbursing the lawyer, or
  • The client is indigent
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32
Q

What are the proper expenses that a lawyer may advance to his client?

A
  • Court fees
  • Evidence and investiation costs
  • Witness fees and expenses
  • Medical exams
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33
Q

When can a lawyer enter into business with a client or obtain an interest adverse to the client?

A

Only if:

  • Fair - the terms must be fair to the client
  • Disclosure - the terms must be disclosed in understandable writing,
  • Outside lawyer - the client is advised to consult an outside lawyer, and
  • Consent - the client provides written consent

(First Discuss Over Coffee)

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34
Q

Can a lawyer serve on the board of directors of a client?

A

Yes.

  • Non-profit - Service on the board of a non-profit is allowed
  • Corporation - Service on the board of a corporate client is also allowed, but discouraged becuase it likely compromises the lawyer’s duty of confidentiality and loyalty

Note: if an attorney serves on the board of a corporate client, the attorney cannot represent the corporate client’s CEO in an investigation into the embezzlement of company money. The attorney has a fiduciary duty to the company, and the company and the CEO would be in direct conflict. This would jeopardize the attorney’s duty of loyalty.

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35
Q

When can a lawyer have a proprietary interest in the litigation he is involved with?

A

Only if the interest results from:

  • Contingency fees
  • Liens on the client’s property to secure legal fees
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36
Q

When can a lawyer serve as a witness in a trial that he is litigating?

A

Only if:

  • The lawyer’s testimony is uncontested
  • The lawyer’s testimony is about his legal services rendered, or
  • The lawyer’s distinctive value to the case means withdrawal would impose substantial hardship on the client

Note: if testimony might prejudice the lawyer’s client, he must obtain client consent

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37
Q

What is the general rule regarding conflicts due to third-party interference with an attorney-client relationship?

A

The lawyer’s sole duty is to his client, not any third-party

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38
Q

What is the rule regarding payment for legal services from a third-party (e.g., a DUI client’s dad)?

A
  • Informed consent - Payment from a third-party is only permitted with informed consent from the client
  • Confidentiality - Client confidences cannot be shared with the third-party
  • Independence - The lawyer must retain his independence (i.e., the lawyer cannot let the payor interfere with his representation of the client)
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39
Q

Who does the lawyer owe a duty to when he has an organizational client?

A

The lawyer must act in the best interests of the entity, even if an officer, employee, or other associated person acts to the contrary.

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40
Q

What is the federal rule that applies to securities lawyers who discover a material violation of the securities laws at a client?

A

The lawyer MUST​ report the matter to the CEO or CLO

If they don’t respond, the lawyer MUST go to the highest authority in the company (e.g., BOD, audit committee, etc.)

The lawyer MAY report the matter to the SEC if he reasonably believes that is necessary to:

  • Prevent fraud,
  • Prevent perjury,
  • Prevent substantial injury to investors, or
  • Rectify financial injury from a violation involving his services
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41
Q

What is the Virginia rule that applies to securities lawyers who discover a material violation of the securities laws at a client?

A

The lawyer MUST minimize the disruption and risk of revealing information to outsiders.

If the corporate client’s highest authority insists on a course of action that would violate the law and result in substantial injury to the client, the lawyer MAY:

  • Resign, or
  • Decline to represent the corporation in that matter
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42
Q

How does a lawyer explain attorneys fees to his clients in non-contingent fee cases?

A

The lawyer must explain, preferably in writing, the amount, basis, or rate of the fee within a reasonable time of taking on the client

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43
Q

How does a lawyer explain attorneys fees to his clients in contingent fee cases?

A

The lawyer must prepare a written fee agreement:

  • Signed by the client, and
  • Containing:
    • The lawyer’s percentage,
    • What expenses will be deducted from the recovery, and
    • Whether the percentage is taken before or after these expenses
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44
Q

What are a lawyer’s responsibilities to his client at the end of a contingent fee case?

A

At the end of the case, the lawyer must provide the client with a written statement of:

  • The outcome,
  • The remittance made, and
  • How the remittance was determined
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45
Q

What are the limits on contingent fees?

A

A lawyer cannot agree to or collect contingent fees in:

  • Criminal cases, and
  • Most domestic relations cases

Limited exceptions are available for fair arrangements when:

  • Adequate counsel would not otherwise be available,
  • There are no prospects for reconciliation,
  • Any children are older, and
  • The fee is typically to collect child support, alimony, or a determined property award
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46
Q

What should a lawyer do when a contingent fee may not be in the client’s best interest?

A

Explain other fee arrangements and let the client make an informed decision

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47
Q

What does a lawyer get in a contingency fee arrangment where the client fires the lawyer before the case is tried or settled?

A

If the client ultimately wins the case, the lawyer may recover fees in proportion to the work that he provided (i.e., if the lawyer put in half the hours, he will get half of the agreed-upon contingency fee)

48
Q

What are the restrictions on attorney fees?

A

The fees must be reasonable, taking into account:

  • The labor,
  • Novelty,
  • Difficulty,
  • Skill,
  • Timing,
  • Results obtained,
  • Experience of the attorney,
  • Other demands on the attorney, and
  • The fee arrangement
49
Q

What should a lawyer do with property held for a client or third party?

A

Store it in a safe place, such as a safe-deposit box

50
Q

What should a lawyer do with money held for a client or third party?

A

Place it in a client trust account in a financial institution that is:

  • Approved by the ABA, or
  • Approved by the client in writing

This should include:

  • Money received on the client’s behalf,
  • Advances from the client for costs, expenses, and unearned fees
51
Q

What is the difference between a retainer and an advance deposit?

A

Retainer - earned for being availalbe

Advance deposit - not earned until work is done or expenses are made; otherwise refundable to the client

52
Q

When may a lawyer commingle client funds with personal money?

A
  • To cover bank service charges
  • To maintain a required minimum balance
53
Q

What should a lawyer do if he and his client has a fee dispute, or if a third party has a lawful claim over the client’s funds or property in the lawyer’s custody?

A

Withold the disputed portion in the client trust account until resolution of the claim

54
Q

What are a lawyer’s duties regarding records of client funds and property?

A
  • Maintain individual client records
  • Render accountings
  • Notify the client of money recieved on his behalf
  • Promptly pay money due to the client
  • Retain client records for 5 years after representation or fiduciary responsibility ends
55
Q

When can a lawyer split fees with another lawyer?

A
  • Lawyers inside his law firm - always
  • Lawyers outside his law firm, only if:
    • The total fee is reasonable
    • The fee-splitting is disclosed to the client before rendering services
    • The client consents, preferably in writing

Note: Virginia does not require the division to be proportional to work done, or even that all attorneys remain responsible for the case.

So, although referral fees between lawyers are unethical, Virginia indirectly allows them if the referring lawyer stays in the case and the client agrees to the joint arrangement.

Paying for the purchase of a law practice is not fee splitting

56
Q

When can a lawyer split fees with a non-lawyer?

A

Contracts to split fees with a non-lawyer in a business related to the practice of law are against public policy and voidable

Exceptions:

  • Death benefits paid to a deceased lawyer’s firm or heirs for his work
  • Salaries and benefits paid to non-lawyer employees
  • The usual charges of a qualified lawyer referral service
  • Expenses for advertising
  • Nominal gifts of gratitude that are not intended or expected to be compensation to a person who refers clients to you
57
Q

Can lawyers partner with non-lawyers to provide legal services?

A

No. Non-lawyers cannot be partners, shareholders, directors, or officers in a legal practice. They also cannot control or direct a lawyer’s personal judgement.

This would violate the rules against:

  • Partnering with non-lawyers
  • Aiding the unauthorized practice of law
  • Fee-splitting with non-lawyers
58
Q

What is the general rule for the duty of competence?

A

A lawyer shoulld render competent services to his client. That means using the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation

59
Q

When can a lawyer take a case if he doesn’t know the relevant law or doesn’t have the expertise required?

A
  • If the lawyer can learn the relevant law and expertise without undue expense or delay
  • If the lawyer will work with another lawyer competent in the area
60
Q

What is the difference between a malpractice case and a disciplinary action for violating the duty of competence?

A

Malpractice action - civil action brought by a plaintiff for money damages; plaintiff must prove a breach of a duty of “due care”

Disciplinary action - administrative action brought by the Virginia State Bar to protect the public

61
Q

In a criminal trial, can a lawyer vigorously cross examine a weak witness, seek a not guilty verdict, and present mitigating evidence?

A

Yes. The lawyer had a duty to diligently, promptly, and zealously pursue his case to completion.

This involves requiring that every element of a criminal case be established.

62
Q

What does the lawyer’s duty to communicate entail?

A
  • Keep the client informed about his case
  • Answer client communications
  • Convey settlement offers
63
Q

Does a lawyer have to accept every case?

A

No. The lawyer is free to accept or reject any case. A lawyer is not a bus.

64
Q

What is a lawyer’s obligation with respect to pro bono work?

A

A lawyer should volunteer 2% of his professional time annual to pro bono work.

A lawyer can fulfill this obligation by providing financial support to a program that provides pro bono services

65
Q

When must a lawyer reject a case?

A

Accepting the case would violate a legal or ethical rule

  • E.g., the lawyer is not in the physical or mental shape to take the case, and therefore would violate the duty of competence to the prospective client)
66
Q

What does the client make decisions about in the representation?

A

Substantive rights, including:

  • Testifying in a criminal case
  • Waiver of jury trial in a criminal case
  • Waiver of affirmative defense in a civil case
  • Accepting a plea or settlement
67
Q

What does the client make decisions about in the representation?

A

Legal tactics, including:

  • Choice of motions
  • Scope of discovery
  • Choice of witnesses
  • Direct and cross-examinations
  • What evidence to introduce
68
Q

What should a lawyer do if he and his client disagree about the legal tactics to be used?

A

The lawyer can limit the scope of his representation, provided the client provides informed consent

69
Q

What should a lawyer do when a client seeks advice on the criminality of conduct?

A

The lawyer can explain why a course of conduct would be illegal, but he should not assist the client in conduct that he knows is illegal.

If the client insists on such assistance, the lawyer MUST withdraw.

70
Q

When MUST a lawyer withdraw from representation?

A
  • The lawyer is fired
  • Continuing representation would violate law or an ethical rule (e.g., physical or mental condition impairs competence)
  • Client is using lawyer’s service to commit a crime or fraud
71
Q

When MAY a lawyer withdraw from representation?

A
  • Withdrawal will not adversely effect the client
  • The client persists in an illegal, unjust, imprudent, or repugnant course of action
  • The client fails to fulfill an obligation to the lawyer after reasonable warning
  • Representation will unreasonably financially burden the lawyer
  • Representation is unreasonably difficult
  • The client has used the lawyer’s services for a crime or fraud
  • Other good cause
72
Q

When can a lawyer NOT withdraw from representation?

A

If the lawyer is counsel of record in a court proceeding and has not obtained leave of court after complying with notice requirements

73
Q

What are the procedures for withdrawal from representation?

A
  • Provide timely notice to the client
  • In a reasonable time, return:
    • Any unspent fee and expense advances
    • All of the client’s property and material papers
      • This includes everything needed to pursue the case, even work product

Note: Unlike in other jurisdictions, in Virginia a lawyer cannot hold onto client materials in order to get paid

74
Q

What is the lawyer’s “other duty”?

A

Even when there are no explicit rules, a lawyer must act to promote public confidence in the integrity and efficiency of the legal system and profession

  • E.g., Virginia does not have a ban on having sex with clients, but if this will impact his job, he should not do it
75
Q

What is the rule regarding state regulation of attorney advertising and solicitation?

A

A state can regulate attorney advertising and solicitation subject to the attorney’s Constitutional right to Free Speech.

Attorney advertising and solicitation is protected under the limited commercial speech doctrine of the First Amendment.

76
Q

When is a state’s restriction on attorney advertising and solicitation Constitutional?

A
  • It serves a substantial governmental interest (e.g., preserving the dignity of the legal profession, or citizen privacy),
  • It directly and materially advances that interest, and
  • It is narrowly tailored to serve that interest
77
Q

What is the difference between advertising and solicitation?

A

Advertising refers to the attorney’s communication with the public at large.

Solicitation refers to the attorney’s initiation of individualized contact with a layperson to seek professional employment.

78
Q

What are the restrictions on lawyer advertising?

A
  • Advertising must not be false or misleading (i.e., leads a reasonable person to reach an unfounded conclusion)
  • Advertising must not raise unjustified expectations
  • Advertising must not make unsubstantiated comparisons or exaggerated promises
  • Advertising must not include specific or cumulative case results unless a disclaimer is included that:
    • Precedes case results
    • Appears in bold and uppercase letters in font as large as the case results
    • States that results are unique to each case
    • Disclaims any guarantee or prediction of a result
79
Q

Can a lawyer advertise his legal specialty?

A
  • A lawyer can advertise a certain practice area subject to the general restrictions
  • A lawyer can identify himself as a specialist if:
    • Certified by a government agency (e.g., USPTO)
    • Certified by the VA Supreme Court (e.g., certified mediator)
    • Certified by a named organization, so long as:
      • The lawyer states that Virginia does not have a process for approving the named organization
80
Q

What should every lawyer advertisement include?

A
  • The name of a lawyer who is responsible for the advertisement’s contents and that lawyer’s office address, or
  • This information may be filed with the state bar
81
Q

What are the general restrictions on lawyer solicitation?

A

Virginia allows the following solicitation:

  • Face-to-face contact
  • Telephonic contact
  • Real-time electronic contact

However, a lawyer cannot:

  • Solicit anyone who has said they don’t want to be solicited
  • Harass anyone with repeated communications if they do not respond
  • Solicit using undue influence or durress, or
  • Solicit using unwarranted promises of benefits
82
Q

What factors are considered to determine whether a solicitation is appropriate?

A

The totality of the circumstances, including:

  • The lawyer’s previous relationship with the person,
  • The person’s physical and mental state, and
  • The lawyer’s conduct
83
Q

What are the restrictions on written, recorded, or electronic solicitations?

A

They must be conspicuously labeled as “ADVERTISING MATERIAL” at the beginning, unless the recipient is:

  • Another attorney
  • Family member
  • Person who has had prior contact with the lawyer
84
Q

What is the general rule for the lawyer’s duty of candor to the court and fairness to his adversaries?

A

A lawyer cannot engage in conduct involving:

  • Dishonesty
  • Fraud
  • Misrepresentation

Even in our adversarial system these duties can trump conflicting duties of confidentiality and loyalty to the client

85
Q

What is the lawyer’s duty to present facts and evidence truthfully?

A

A lawyer must not:

  • Make a false statement of material fact
  • Offer evidence the he knows is false
  • Fail to correct any false evidence he has offered
86
Q

What should a lawyer do if he reasonably believes, but does not know, that evidence (including testimony) is false?

A

The lawyer may refuse his client’s instruction to use it

87
Q

What is the general rule regarding client perjury, including the difference between civil and criminal cases?

A

A lawyer must not knowingly facilitate perjury

In a civil case:

  • A lawyer must refuse to call a witness, including his client, whom he knows will perjure himself

In a criminal case:

  • A defendant may exercise his Constitutional right to testify on his own behalf
88
Q

What should a lawyer do if his client wants to lie in a criminal trial?

A

Take reasonable remedial measures:

  • Counsel the client to testify truthfully or not take the stand
  • If that fails, try to withdraw from the case
  • If that fails, tell the judge in order to avoid assisting a criminal act

The right to counsel and the duty of confidentiality do not shield perjury

89
Q

What should a lawyer do if he discovers that anyone has perpetrated fraud on a tribunal?

A

Take reasonable remedial measures:

  • If it is the lawyer’s client, the lawyer should first ask him to inform the tribunal
  • If that does not work, or if it is not his client, the lawyer should promptly reveal the information clearly establishing the fraud
90
Q

What is the rule regarding counselling and paying witnesses?

A

A lawyer cannot:

  • Counsel or assist a witness to testify falsely
  • Counsel or assist a witness to become unavailable
  • Reimburse or pay a witness contingent upon his testimony

A lawyer can:

  • Reimburse a witness for basic expenses
  • Pay a witness a reasonable fee (which, depending on the witness, could include flying him in on a private jet if that is less costly than a commercial flight)
91
Q

What is the general rule regarding a lawyer’s duty to produce evidence?

A

Regardless of his duty of loyalty, a lawyer must not:

  • Obstruct access to evidence
  • Cause potential evidence to be altered or concealed
92
Q

If a lawyer knows that evidence exists, but has not moved or altered the evidence, does he have to produce it?

A

No. A lawyer can look but not touch. Once the lawyer moves or alters the evidence, he will have to produce it.

The lawyer will also have to disclose where he found the evidence, but if his client told him where it was, he does not have to say that because it is privileged.

93
Q

What are a lawyer’s obligations in ex parte proceedings?

A
  • Volunteer material information, trumping the normal presumption that the lawyer not reveal facts harmful to his client
  • Promptly rovide notice and copies to other parties to the case
94
Q

What are the special duties that apply to prosecutors?

A
  • Timely disclose evidence that is favorable to the defense
  • Not bring a charge without probable cause
95
Q

What is the general rule regarding a lawyer’s duty to state the law truthfully?

A

Be candid and cite to adverse law if controlling and on point. But, the lawyer may make a non-frivolous, good faith argument for modification of the law (i.e., acknowledge but argue)

96
Q

What is the general rule regarding a lawyer’s duty to uphold the law?

A
  • Do not assist in commiting a crime
    • The lawyer MUST withdraw if the lawyer’s continued representation would cause him to commit or assist in commiting a crime.
    • The lawyer MAY withdraw if the client persists in criminal acts, but the lawyer is not assisting.
  • Prevent crimes
    • If a lawyer’s client is going to commit a crime and the lawyer cannot talk him out of it, the lawyer MUST reveal the information necessary to prevent the crime
  • Report attorney misconduct
    • A lawyer has an obligation to report attorney misconduct
97
Q

How should a lawyer deal with the press?

A

The lawyer has a duty not to interefere with a defendant’s right to a fair trial.

The lawyer and his agents MUST avoid out-of-court statements that the lawyer reasonably should know would have a substantial likelihood of interfering with a jury trial

98
Q

What are a lawyer’s duties regarding dealing fairly with others?

A
  • Do not use threats of bringing discplinary, administrative, or criminal actions as leverage in a civil dispute
  • Do not take a position for the client merely to harass or maliciously injure another
  • Do not lie to people or mislead them as to your interests
  • Do not violate the legal rights of another to obtain evidence (e.g., Paul Newman movie and mailbox)
  • Do not use means with no purpose but to delay, burden, or embarass others
    *
99
Q

When can a lawyer deal with someone who is represented by counsel?

A

Only if:

  • The individual’s counsel consents
  • The lawyer is authorized by law
  • The individual asked for a second legal opinion
100
Q

When does a corporation’s counsel have to be present for a lawyer to interview a corporate employee?

A

When the employee is part of the corporation’s control group (e.g., CEO, CFO, etc.) and therefore has authority to bind the organization

Former employees are not part of the control group

101
Q

When can a lawyer communication, either direclty or indirectly, with a jury member?

A

Only after trial if the juror consents.

Not before or during trial.

102
Q

When should a judge disqualify himself?

A
  • When he has a personal or financial interest in a case
  • When he has personal knowledge of a case
  • When he is involved with a case
103
Q

When can a judge do any of the following:

  • Serve as a private judge
  • Serve as a mediator
  • Seve as an arbitrator
  • Practice law
  • Run for office
A

Only if he is retired (i.e., active judges cannot do these things)

104
Q

After a lawyer is disbarred while practicing at a law firm, where can he work as a paralegal?

A
  • At a different law firm (but not the one where he was disbarred)
  • With different clients, other than those he worked on when he was disciplined
105
Q

When can a non-lawyer (or disbarred lawyer) provide contract work?

A

When the non-lawyer is:

  • Just filling in blanks on the contract,
  • Not charging a separate fee for the contracts, and
  • Not drafting the language of the contract
106
Q

When can an out-of-state lawyer practice in Virginia?

A

Only when the lawyer:

  • Is practicing temporarily and occasionally in Virginia
  • Is in good standing in another jurisdiction
  • Is not disbarred or suspended in another jurisdiction
  • Communicates in writing to his client that he is not barred in Virginia, and
  • Is either:
    • Associating with a local lawyer who participates in the matter,
    • Providing ADR services,
    • The matter is reasonably related to his home state practice, or
    • The matter is governed by international law
107
Q

Does in-house counsel have to be licensed in Virginia?

A

No. They can apply for a corporate counsel certificate or register with the bar to work in Virginia

108
Q

What is the rule regarding restrictions by law firms on a lawyer’s ability to practice?

A
  • Law firms cannot restrict a lawyer’s right to practice after termination (i.e., covenants not to compete are impermissible)
  • Restrictions as part of a settlement must be approved by a tribunal or government entity
109
Q

When does a lawyer have to report another lawyer’s or judge’s misconduct?

A

If it raises a substantial question as to the person’s:

  • Honesty
  • Trustworthiness
  • Fitness as a lawyer
110
Q

When does a lawyer NOT have to report another lawyer’s or judge’s misconduct?

A

If the information is privileged because:

  • The violating attorney is the lawyer’s client
  • The lawyer discovered it helping the attorney in an approved substance abuse program
  • A client told you about the attorney’s misconduct and has not provided consent
  • The lawyer discovered it while serving as a mediator and has not obtained consent from the parties
111
Q

When must a lawyer self-report?

A

When he is:

  • Disciplined in another jurisdiction
  • Convicted of a felony
  • Convicted of an attempt or crime of:
    • Theft
    • Bribery
    • Extortion
    • Fraud
    • Perjury
112
Q

What are the most common sanctions for violating the RPC?

A
  • Disbarment
  • Suspension
  • Censure
  • Limiting practice
  • Fines
  • Restitution to victims
  • CLE
  • Retake the bar
113
Q

Does Virginia sanction firms?

A

No. It only sanctions attorneys

114
Q

When an attorney is under the supervision of another attorney (e.g., a senior partner) who ratifies or orders the attorney to violate the RPC, is it a violation for the subordinate to do so?

A
  • Yes, if it is a clear violation
  • No, if is a debatable problem (only the supervisor would be responsible)
115
Q

When is a supervising attorney responsible for the actions of a subordinate attorney?

A
  • If he ratified the action
  • If he actually knew of the conduct and failed to take remedial action
116
Q

When is a supervising attorney responsible for the actions of non-lawyers?

A

If the attorney failed to take remedial action when he knew or should have known of the conduct

Virginia Bar Exam Lecture Based (22 decks)

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