Flashcards in Professional Responsibility Deck (40):
What must a lawyer do if she wants to claim she is a specialist and advertise her services as a specialist?
1. be certified by a private organization approved by the ABA
2. certifying organization must be identified in the ad
3. add must state that org. is not affiliated with the govt. or NY and does not indicate greater confidence than a non-certified lawyer
What is the general test for whether an Ad is fradulent, deceptive, or misleading?
If a layperson would find the ad misleading or deceptive than it likely is and is a violation
What are 3 examples of statements that are prohibited in Ads?
1. Comparisons between lawyers
2. clout or connections i.e. "I know the President"
3. guarantee results
What are the 3 main exceptions to the rule that lawyers cannot solicit clients in-person or by telephone?
Potential client is:
1. family member/close friend
2. a prior client
3. a pro bono client
What is the general rule regarding how a Lawyer should manage a client's funds?
Client funds/accounts should never be commingled with lawyers funds/accounts
How are funds handled when a client disputes whether a lawyer should receive funds?
The disputed funds remain in the clients trust account until the dispute is resolved?
**otherwise lawyer can withdraw funds from client trust account when they become due
What is an availability retainer?
Reserves the lawyers availability for that client and gives up lawyers ability to take inconsistent representation -- such funds can go directly into lawyers account
What can a lawyer that is running for judicial office (judge) not do?
Generally must refrain from involvement with a political party -- must remain seemingly unbiased.
What does a lawyers duty of candor entail?
Must reveal law that is directly against his client's position
When may a lawyer have direct communication with an adverse party against the general rule?
1. when party is represented by a lawyer
2.when that lawyer consents
3. authorized by law
4. communication does not concern the representation
When is it proper for a lawyer to have communication with the jury?
in NY after a trial, otherwise communication during trial is generally improper
During he course of litigation, what does a lawyer have a duty to disclose?
1. evidence tending to negate guilt or which would mitigate the degree of the offense / reduce punishment
2. must disclose adverse authority
In a civil case, what must a lawyer do if there client wants to (or is about to) commit perjury?
1. ask client to retract statement
2. if client refuses, inform opposing counsel or court
In a criminal case, what must a lawyer do if there client wants to (or is about to) commit perjury?
1. advise client to refrain from testifying falsely
2. seek withdrawal from representation if in pre-trial phase
3. IF client already made statement, must reveal the perjury
What is the general rule regarding lawyers making public statements about an ongoing trial?
Lawyer should not make statements that a reasonable person would expect to be disseminated if that lawyer knows or should know the statement will be prejudicial to the proceedings
What 3 showings can generally overcome a lawyers incompetence?
1. a lawyers association with competent lawyer
2. lawyer expects to become competent via learning/study
3. emergency situations -- it was in client's best interest for lawyer to rep. him due to emergency
What must be communicated to a client?
1. all settlement offers regardless of how ridiculous
2. information about a cases development
3. responses to clients request for information
What is the standard for Malpractice?
lawyers negligence is the proximate cause of client's injuries or damages
What is the standard of skill that a lawyer is held to?
same degree of skill, prudence, and diligence possessed by a general practitioner.
**specialists are held to the general degree of skill of other specialists
When can a lawyer not represent a current client against a former client?
1. when lawyer know confidential info about former client that is related to the current action
2. current action would involve a matter which lawyer represented the former client on
What factors ensure fairness in business transaction between an attorney and her client?
1. client is advised to get independent counsel
2. client consents in writing
3. terms fully disclosed in writing in a manner that is reasonably understandable to client
Can a lawyer represent multiple clients?
Yes, but only so long as their interests are not adverse -- if an actual conflict of interest exists lawyer cannot represent both
Can a lawyer represent multiple clients where a potential conflict exists?
Yes but only if,
1. all clients consent after full disclosure
2. lawyer reasonably believes he can competently represent the interests of each (objectively)
3. lawyer withdraws if an actual conflict arises
What is the general rule regarding a lawyer's independent professional judgment?
IF lawyers independent prof. judgment may be influenced by his personal interest lawyer should withdraw or reject case unless lawyer believes (objectively) that client will not be adversely affected and the client consents after full disclose of the relevant implications
What types of cases may a former judge/govt. employee now in private practice not accept?
cases that involve a matter they worked on personally and substantially
When can a lawyer serve as an arbitrator/mediator in matters that involve present or former clients?
after full disclosure to all parties
Under what 3 conditions can a lawyer accept payment from a 3rd party (not client)?
1. lawyer takes instructions from client
2. client consents to payment arrangement
3. lawyer maintains confidences of client -- does not reveal to 3rd party
When representing a corp., what must a lawyer do to meet her duty to report security violations?
1. report violations up the chain of command to CEO
2. if no action taken, report to board of directors
3. may reveal to outside parties to the extent necessary to protect the client
What are the exceptions to the rule that confidential communications between lawyer and client are privileged?
Lawyer may disclose confidential info to the extent reasonably necessary when/to:
1. client waives privilege via informed or implied consent
2. to prevent reasonably certain death or serious harm
3. to prevent client from committing a crime
4. to secure legal advice about complying with the rules of disclosures
5. in defense of a malpractice claim
When will attorney work-product be discoverable against the general rule?
ONLY when denying discovery would be unfairly prejudicial
During a representation, what types of decisions are made by a client? Lawyer?
Client: makes all decisions that affect the merits of the case ex; whether to testify, plead guilty, file and appeal, settle
Lawyer: makes procedural decisions ex: kind of discovery, venue
What must a lawyer provide a client with in a domestic relations matter?
statement of clients rights and responsibilities (must be provided at he initial conference)
Generally what information do letters of engagement/retainer agreements contain?
1. scope of representation
2. explanation of fees and billing procedure
3. notice of clients right to arbitrate a fee dispute (retainers)
When MUST a lawyer withdraw from a representation?
1. when client's purpose is frivolous/harassment
2. when lawyer is being used to perpetrate crimes/fraud
3. when lawyer is fired by client
4. when lawyer becomes physically or mentally impaired
When MAY a lawyer withdraw from representation?
1. client insists on not following lawyers legal advise
2. client deliberately disregards a fee agreement
3. lawyer unable to work with co-counsel
**in any of above, lawyer can only withdraw if it can be accomplished without material adverse effect on interests of client
In what two situations are contingency fees prohibited?
1. criminal/quasi-criminal cases
2. domestic relations cases
What are the exceptions to the rule that a lawyer cannot divide a legal fee with non-lawyer?
payments must be:
1. in form of salaries, bonuses, retirement plans (staff)
2. payments made to spouses of deceased partners based on work partner completed
When will a lawyer be responsible for conduct violations of another lawyer?
1. when the lawyer orders or ratifies the act
2. when the lawyer should have know about the violation and failed to mitigate
Under what conditions can a lawyer split a legal fee with a lawyer that is not associated with their firm?
1. fee division is proportionate
2. both lawyers assume joint responsibility for representation
3. client agrees in writing after full disclosure (including fee division)
4. fee is not excessive