Resp, duties, & bounds of representation, declining, termination, misc

Question 1

What are the basic obligations of competence and care of a lawyer?

Answer 1

Competent representation requires legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. Further, the attorney must act with reasonable diligence and promptness and keep the client reasonably informed of the status of the matter, promptly complying with reasonable requests for information.

Question 2

Are you in breach of your obligations of competence and care if, in an emergency (e.g., a call in the middle of the night for real estate client who’s been arrested for battery), a lawyer assists the client but does not have confidence in the particular area of law in question?

Answer 2

In an emergency, the lawyer may assist the client even if he lacks competence in that particular area. The assistance, however, cannot exceed which recently necessary to satisfy the emergency.

Question 3

***The attorney-client privilege allows the client to prevent which 2 people to testify regarding what?To what communications does it apply?

Answer 3

The attorney-client privilege allows the client to refuse to testify and allows the client to prevent the attorney from testifying about communications between the 2. It applies to continental communications made by an individual to attorney sought out for the purpose of obtaining legal advice.

Question 4

Generally, if the client discloses privileged information to from another who is not party to the privileged relationship, the privilege is destroyed. However, there is an exception in the privilege extends to communications made in the presence of _______ 3rd parties, e.g. ____

Answer 4

The privileges not waived if there is disclosure before ESSENTIAL 3rd parties. This includes law clerks and secretaries.

Question 5

How long does the attorney-client privilege continue on?

Answer 5

It continues indefinitely, even if the attorney-client relationship is over, and even if the client dies.

Question 6

**If the client hands over physical object or document to an attorney, does that become privileged by the attorney-client privilege?

Answer 6

No, if the object would have been subject to discovery in the hands of the client, is equally discoverable in the hands of the attorney.

Question 7

Does the attorneys DUTY OF CONFIDENTIALITY apply to information related to the client that the attorney acquires before the representation begins? Does it apply to information acquired after the attorney-client relationship ends?

Answer 7

The attorney-client privilege of confidentiality applies to information of the client WHENEVER ACQUIRED, this includes information acquired before or after the representation if it would fall within the attorney-client privilege during the representation.

Question 8

***Despite the lawyers continuing DUTY OF CONFIDENTIALITY, a lawyer may reveal client information 1. If the client gives informed consent, or 2. Disclosure is impliedly authorized to carry out the representation. In addition to those 2 clear instances, a lawyer may also reveal client information if (8 situations)

Answer 8

A lawyer may reveal confidential information of the client if:

1. Necessary to prevent reasonably certain death or substantial bodily harm,
2. Necessary to prevent client from committing crime or fraud,
3. Required by court order, ethics rules, or statute,
4. Necessary to establish a claim or defense in a case between the lawyer and the client,
5. Necessary to establish a defense to a criminal charge or civil claim against the lawyer based on the client’s conduct,
6. Necessary to respond to allegations regarding the lawyers representation of the client, or
7. Necessary to obtain confidential legal advice regarding the lawyers personal duty to comply with ethics rules.

Question 9

**What is the difference between attorney-client privilege and the duty of confidentiality?

Answer 9

Attorney-client privilege applies only to communications made DURING THE COURSE of the RELATIONSHIP and covers only the attorneys FORMAL TESTIMONY.
The duty of confidentiality protects from ANY DISCLOSURE ALL INFORMATION related to the representation, however and whenever derived.

Question 10

When may a lawyer provide evaluation of a matter affecting a client for use by someone other than the client? E.g., discussing it in a newspaper article.

Answer 10

The lawyer may provide an evaluation of the matter to someone other than the client if: 1. The lawyer reasonably believes that making the evaluation is compatible with his obligations to the client, and 2. The client gives informed consent if the lawyer knows or should know in the evaluation can materially harmed the clients interests.

Question 11

1. What is the lawyer’s duty to protect a client’s property and hold it separate? Describe it generally.
2. Dishonored check report?

Answer 11

1. A lawyer must hold client property separate from his own property, must keep records of the client funds, and must keep the client informed and deliver funds to the client.
2. Client funds have to be maintained in a bank providing “dishonored check reporting” when a check presented against the account is dishonored due to insufficient funding.

Question 12

When may lawyer permissibly place client funds in an un-segregated interest-bearing account with his own funds? What happens to the interest?

Answer 12

Funds that are NOMINAL IN AMOUNT or held for a SHORT. Maybe placed in unfettered good interest-bearing account, with the interest being paid to legislatively approved organizations giving legal assistance to the poor.

Question 13

What is the attorneys duty as an advisor?

Answer 13

A lawyer must exercise independent professional judgment and render candid advice.

Question 14

**For what matters must an attorney abide by a client’s decisions? That is, which decisions belong solely to the client? Four situations (3 of them criminal)

Answer 14

1. Acceptance or rejection of settlement,
2. Plea to be entered in a criminal case,
3. Waiver of a jury trial in a criminal case,
4. Whether to testify in a criminal case.
   Generally, if there is a substantive, important decision, it belongs to the client.

Question 15

**What should a lawyer do if his client is engaged in criminal or fraudulent conduct or using the lawyers advice to commit a crime or fraud?

Answer 15

The lawyer must withdraw and not counsel or assist the client in conduct of criminal activity. You may discuss a possible course of conduct with the client, and explained that it would be unlawful, but you may not recommend illegal conduct.

Question 16

**If an attorney is communicating with a 3rd person who is represented by counsel, the attorney may communicate with a 3rd person content that is not intended to embarrass or harm the 3rd person provided that the method of communication doesn’t violate the 3rd person’s rights. However, to be permitted TO EVEN HAVE THIS MUCH COMMUNICATION REQUIRES ONE OF 3 THINGS TO BE TRUE:

Answer 16

1. The communication does not concern the subject matter of the representation, or
2. The 3rd person’s counsel has consented to the communication, or
3. The law allows the communication

Question 17

**When attorney who represents an interested client is communicating with third-party who is not represented by counsel, what are the limits of that attorneys communication? 3 limits

Answer 17

The attorney may communicate with the third-party as long as the attorney:

1. Does not imply that she is disinterested,
2. Take steps to clear up misunderstandings about her role of which she is or should be aware, and
3. Does not purport to give advice other than to get an attorney if there is a reasonable possibility of conflict between the clients interests and those of the 3rd party.

Question 18

If a lawyer accidentally receives a document relating to her representation of a client that she knows reasonably was sent to her by accident, what should she do?

Answer 18

She should promptly notify the sender.

Question 19

Can a lawyer make misstatements to 3rd parties while representing a client?

Answer 19

A lawyer cannot knowingly make a false statement of material fact or law.

Question 20

Can a lawyer make frivolous claims or defenses in litigation?

Answer 20

No. Nor may the lawyer needlessly slow down litigation.

Question 21

***What are the 4 requirements of a lawyer with respect to his candor toward the tribunal? 4 requirements

Answer 21

A lawyer must not KNOWINGLY:

1. Make false statements of fact or law to a tribunal, or
2. Fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer, or
3. Fail to disclose to the tribunal controlling legal authority known by the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel, or
4. Offer false evidence that the lawyer knows to be false (including engaging in questioning that leads to false testimony that the lawyer knows is false).

Question 22

Does a lawyer have a duty to disclose facts harmful to his case?
Does a lawyer have a duty to disclose law harmful to his case that is controlling?

Answer 22

A lawyer has no obligation to volunteer harmful facts – the opposing side has many fact-finding tools (discovery proceedings).
However, an attorney must disclose controlling law, even if it is adverse.

Question 23

***Generally, under the RPC, a lawyer must not offer evidence that she knows to be false. If only part of the witness’s testimony is known to be false, what should a lawyer do?

Answer 23

The lawyer should allow the truthful part of the evidence to be admitted. If the client insists on offering false evidence, the lawyer must refuse and seek permission to withdraw.
If the lawyer REASONABLY BELIEVES evidence is false, she MAY refuse to offer it (except for the defendant’s testimony in a criminal case).
If a lawyer discovers after submitting evidence that is false, she must take reasonable remedial measures, e.g., getting the witness to correct the false evidence, and if this fails, the lawyer MUST take further remedial action, including disclosing enough information to the tribunal to correct the false evidence.

Question 24

If the lawyer finds out after the proceeding is over that his client offered false evidence, what is his obligation to correct it?

Answer 24

Once the proceeding is over (including appeals), the lawyer is under no obligation to reveal perjury or false evidence.

Question 25

In and ex parte proceeding, what disclosure obligations as the lawyer have to the tribunal?

Answer 25

The lawyer must disclose all material facts known to him that will enable the tribunal to make an informed decision, even if those are adverse to his client.

Question 26

**In order to be fair to opposing party and counsel, a lawyer must not do any of the following 6 things, which are all strictly prohibited

Answer 26

1. Suppress any evidence that you have a legal obligation to reveal or produce,
2. Advise or cause a person to hide or leave the jurisdiction in order to make them unavailable as a witness,
3. It conceal or knowingly failed to disclose anything you are required to disclose by law,
4. Knowingly using perjured testimony or false evidence,
5. Participate in the creation or preservation of evidence when the lawyer knows or should know it’s false, or
6. Knowingly engage in other illegal conduct or conduct contrary to the RPC.

Question 27

**In order to avoid improper contact with jurors and the court, a lawyer must not do the following 4 things:

Answer 27

1. It seeks to influence a judge, juror, prospective juror, or other official by means prohibited by law, or
2. Communicate ex parte with such person during the proceeding except as permitted by law, or
3. Engage in conduct intended to disrupt a tribunal, or
4. Communicate with a juror or prospective juror after discharge of the jury if prohibited by the court or law, or if the juror has said not to or if the communication involves harassment, misrepresenation, durress.

Question 28

**With respect to trial publicity, 1. If there is silence in the air, what may and attorney say and not say? 2. What may he say if there is recent publicity not initiated by him or his client?

Answer 28

1. If you’re participating in investigation or litigation of the matter, you may not make extrajudicial statements that you know or reasonably should know will be publicly disseminated and will have a SUBSTANTIAL LIKELIHOOD of MATERIALLY PREJUDICING a proceeding in the matter. E.g., you can’t identify witnesses, make statements about their character, discuss evidence not yet presented, any opinion as to guilt or innocence of a defendant.
2. If there is already publicity regarding matter, a lawyer is permitted to make a statement that a reasonable lawyer would believe is required to protect the client from substantial undue prejudicial effect.

Question 29

**A lawyer MUST decline representation the lawyer knows or reasonably should know that the person wishes to (do one of these 2 things):

Answer 29

1. Take legal action merely for the purpose of HARASSING OR MALICIOUSLY INJURING another, or
2. Present a claim or defense in a matter that is not warranted under existing law (unless it could be supported by a good faith argument for modifying or reversing existing law).

Question 30

***Under these 4 circumstances withdrawal is MANDATORY (after obtaining permission if required by the tribunal’s rules) or representation should be declined:

Answer 30

1. It violates the RPC or other law, or
2. The lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client, or
3. The lawyer is discharged, or
4. The lawyer knows or should know that the client is bringing the action merely to harass or maliciously injure another.

Question 31

**A lawyer may permissibly withdraw from representing a client if it can be acommplished without a material adverse effect on the clients interests, OR MAY PERMISSIVELY WITHDRAW IF (6 reasons):

Answer 31

1. The client persists in actions that involve the lawyer services in a manner that is criminal or fraudulent,
2. The client to use the lawyer services to perpetrate a crime or fraud,
3. Client insists on actions that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement,
4. The client fails substantially to thought obligation the lawyer and has been given reasonable warning that the lawyer will withdraw unless the obligations of felt,
5. Representation amounts to an unreasonable financial burden or has been rendered unreasonably difficult by client, or
6. Other good cause for withdrawal exists.

Question 32

If the lawyer has good cause to terminate representation, when must he continue representation?

Answer 32

When so ordered by a tribunal

Question 33

When a lawyer is acting in a private business or personal capacity, I still bound by professional standards of conduct? Can they be disciplined for violating such standards in their personal lives or private business?

Answer 33

Yes, even law acting in private business or personal capacity, lawyers are still bound by professional standards of conduct can be disciplined for violating them.

Question 34

With respect to judicial and legal officials and candidates for election or appointment, what can a lawyer say and not say?

Answer 34

A lawyer cannot make statements that he knows to be false or with reckless disregard as to truth or falsity concerning the qualifications or integrity of the candidate.

Question 35

Public prosecutors have 2 special rules delineating the role because of their obligation to seek justice, not merely obtain convictions. What are those two special rules?

Answer 35

1. Avoid bringing charges when he knows or should know that they are not supported by probable cause, and
2. Make timely disclosure to the defense of all evidence that might be exculpatory or mitigate the offense or punishment.

Question 36

If a lawyer has knowledge that another lawyer has violated the RPC that raise substantial questions as to the lawyers honesty or fitness as a lawyer, what is the obligation of the lawyer knows?

Answer 36

If you know that about another lawyer, you must inform the appropriate professional authority. *This does not include confidential information gained while participating in an approved assistance program for substance abuse for lawyers.