Flashcards in Professional Responsibilty Deck (34):
How is a disciplinary review started for a violation of the standards of professional conduct?
When must attorneys report the violations of other attorneys to the Virginia bar.
If violation raises a substantial question to the attorney's honesty or fitness to practice law (unless privileged)
Can a law firm restrict the right of a departing attorney to practice law after termination?
No - covenants not to compete are impermissible
exception - unless court approves restrictions as part of settlement
Attorneys of law firm are subjected to discipline (not law firm)
What are the exceptions for fee-splitting for non-attorneys?
1) fees collected on behalf of deceased attorney to the widower
2) non-lawyer employee in profit sharing
When is lawyer advertising allowed?
Permitted if the advertisement is not misleading or deceptive
(must include the name and address of responsible attorney)
Is face-to-face solicitation allowed?
Yes, unless in personal injury or wrongful death claims (exception: prior professional or family relationship
In an advertisement states "practice limited to domestic relations." Is this a violation of advertisement?
No. Not holding out as a certified specialists
Can an attorney advance a filing fee and says "don't worry about paying me back."
Lawyer cannot advance living expenses, but can advance costs of litigation is client is responsible, unless the client is indigent.
Is it a solicitation if an attorney receives a referral from a legal organization service?
No. Must be able to exercise independent professional judgment
Can attorney fire a criminal defendant if the attorney thinks the client is guilty?
No - cannot fire; duty to represent
Is it an ethical violation to fail to do adequate research?
Yes - failure to comply with duty of competence
What must be in the contingency fee agreement?
Must be in writing and must explain how fee will be calculated.
Settlement statement must be provided to client.
Can an attorney have a contract with client to waive all malpractice claims in excess of $500,000?
No, cannot liable liability
Exception is in-house lawyer
Can an attorney agree with criminal defendant to get a bonus for acquittal?
No contingency fees in criminal cases.
If criminal defendant plans to lie in court what should lawyer do if lawyer knows in advance?
1) lawyer should try to persuade the client not to lie
2) if persuasion fails, the lawyer should withdraw;
3) if withdrawal is not possible - perjury should be revealed to court
Witness must be allowed to testify
In drafting a will for a client, the client tells the lawyer that they will leave a gift for the attorney. Is this allowed? Effect on entire law firm?
No drafting will where you (or your family) receives a gift
Imputed to entire firm
- unless prior relationship
Attorney visits accident patient in hospital and patient agrees to a written contingency fee to receive one-third of the recovery. Attorney gets another co-counsel to help win the case. Who is entitled the fee from a $1 million judgment?
attorney - nothing for violating in-person solicitation
co-counsel - only quantum meruit (not 1/3 under contingency)
Standard of review for professional misconduct review?
Clear and convincing
Can an attorney's liability to clients be limited in a legal corporation?
No, cannot limit liability.
When can a concurrent conflict of interest be waived?
Lawyer reasonably believes that he will be able to provide competent and diligent representation to each affected client after consultation
- hard when two clients have directly adverse interest
The duty to preserve confidential information continues ____
after the attorney-client relationship has terminated
Can an attorney serve as counsel to a corporation and on the board of directors?
Need to watch for conflict between interest of corporation and executive officers
Must an attorney return the client's copy of the file, even if the client still owes the attorney money?
Yes. Cannot hold client's file hostage to demand payment.
Does the Virginia Rules of Professional Conduct allow an attorney to communicate with an unrepresented party?
Yes, cannot imply that attorney is disinterested
Prudent to advise to obtain independent counsel
- exception if attorney communicates with a corporation's control group (persons able to bind corporation)
Can an attorney communicate with a former employee of a corporation's control group without obtaining consent?
Yes, need to advise that person should seek independent counsel and that lawyer is disinterested.
What an attorney breaches a fiduciary duty to a client, what rules of professional conduct may be violated?
1) lawyer must act competently and with care
2) lawyer must keep client reasonably informed
3) lawyer must not represent a client if lawyer's own interest materially limits representation
4) lawyer must not enter into a business transaction with client
5) lawyer must not use information from client to lawyer's advantage or client's disadvantage
6) lawyer must not engage in fraud, dishonesty or deceit
When must a firm report another lawyer to the VA state bar?
When they have reliable information indicating that another lawyer has committed a violation of the rules
Can an attorney represent one spouse in a divorce if he prepared the antenuptial agreement?
No conflict of interest. Attorney is disqualified.
Attorney's communications with former client are to remain confidential.
Can an attorney allow a nonparty to pay the attorney's fee?
No - conflict of judgment
Not acting in the best interest of the client
When engaging in dual representation what should a law firm do?
1) determine that it can adequately represent interest of each client, after full disclosure
2) obtain a waiver from each party
Are lawyers are bound by the rule of professional conduct when acting in private business or personal capacities?
If there is a conflict created by past representation of one client against a new present client, is the conflict imputed to the entire firm?
Can be remedied if both parties consent after consultation.
When is there a conflict between a former client and present client?
When the representation relates to the same or substantially similar matter.