Rules Flashcards

Question

Attorney Client Corporate Clients

Answer 1

If client is corporation, A/C privilege covers confidential communications between 1) attorney and high-ranking officials in corporate capacity and 2) other corporate employee if: 1) communication w/n scope of employee’s duties 2) made at the direction of employee’s superior and 3) employee knows that communication is to assist corp. in obtaining legal advice EXCEPTIONS - Prevent future Crime/Fraud - Issue of breach in A/C relationship - Civil litigation between former joint clients - Validity of deed/will - Competency or intention of deceased client - CA – disclosure to prevent death or substantial bodily injury – Lawyer may disclose in CA when he reasonably believes that disclosure is necessary to prevent a criminal act that the lawyer reasonably believes is likely to result in substantial bodily injury or death.

Answer 2

A lawyer owes a duty of competence that requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for representation. If L doesn’t know relevant law, he can’t take on matter unless he puts in time to learn w/o undue expense or delay to client OR associate w/ L competent in subject matter.  A lawyer’s duty of competence also encompasses a duty to keep abreast of the changes in the law and law practice, including the benefits and risks associated with relevant technology.  Incompetent counsel in a criminal proceeding may be a violation of D’s 6th amendment right to effective assistance of counsel

Answer 3

A lawyer has a duty to keep client informed about case, including ALL settlement offers and returning phone calls/emails. Lawyer decides procedural/legal strategy. Client decides substantive rights and critical stages: settlement offers, appeals, expenses, witnesses, pleas/jury trial/testify in criminal case.

Answer 4

A lawyer has a duty to diligently, promptly, and zealously advocate for his client in the case to completion.

Answer 5

Attorney is free to accept or reject any case. Attorney must reject representation if it would violate law or disciplinary rules, when attorney is not in mental or physical shape, or requires making frivolous argument.

Answer 6

Clients make decisions about substantive rights and attorneys make decisions about procedure and legal strategy.

Answer 7

Lawyer must not have a proprietary interest in the litigation. A lawyer must not make a fee arrangement that could curtail his services and place the client at a bargaining disadvantage

Answer 8

Non-contingent fees must be reasonable and must have a written fee agreement in advance, if fees are to exceed $1,000, UNLESS: 1) client is a corporation, 2) client doesn’t want it, 3) legal services are the type client previously received and paid for, 4) emergency situation, or 5) writing impractical

Answer 9

ABA requires that fees be reasonable taking into account, labor, novelty, difficulty, skill, timing, results, experience, other demands on attorney and fee arrangement. CA requires that fees not be unconscionable. ABA: Single agreement must contain 1) how the fee is calculated, 2) services covered, and 3) lawyer’s and client’s duties.  CA: Same as ABA + writing agreement signed by client unless 1) fee is under $1,000; 2) it is with corporate client; 3) it is routine service for regular client, or 4) emergency or impractical.

Answer 10

written agreement must be signed by client and contain: 1) attorney’s %; 2) expenses to be deducted from recovery; and 3) whether % is taken before or after expenses.  CA – also requires it state 4) how work not covered by contingency fee will be paid and 5) that attorney’s fees are negotiable. Contingency fees NOT allowed in criminal cases or domestic cases if fee is contingent on divorce, alimony, or property settlement

Answer 11

ABA merely encourages arbitration when disputes rise between attorney and client about fee arrangement. CA requires attorney to submit to arbitration to settle fee disputes if client so desires.

Answer 12

It is generally permissible to split fees w/other attorneys in the firm. Fee splitting is permissible with attorneys outside of firm only if 1) ethical, 2) there is written disclosure to client, 3) client consents. MR requires that fee division be proportional to work done unless each is jointly responsible for the action.  CA: OK if the total fee is not unconscionable and client consents

Answer 13

ABA prohibits referral fees. CA permits referral fees so long as total fee is not unconscionable and not increased due to referral.

Answer 14

fee splitting with non-lawyers is generally not allowed except for 1) pension plans to employees; 2) death benefits to deceased attorney’s estate; and 3) sharing court-awarded attorney fees with non-profit organization that employed or recommended the lawyer.

Answer 15

partnership with non-lawyers to provide legal services is absolutely prohibited. However, reciprocal referrals with other professionals are OK if they are not exclusive and you explain the arrangement with the client.

Answer 16

attorney has duty to safeguard client’s property by labeling and storing in safe place. Money received on client’s behalf and advances for cost, expenses, and fees must be placed in client trust account and interest payable to client. Attorney cannot borrow or commingle funds with personal money. However, smaller funds held for a short time for several clients can be deposited into a “pooled” client trust account w/ interest payable to the state bar. Permissible to withhold disputed claim amount from client until claim resolution.

Answer 17

attorney has duty to keep good records for client, render accounts, and notify him of moneys received on his behalf. CA requires attorney to keep records of client property for 5 years after final distribution.

Answer 18

Where the legal fee is not court awarded, but arises from settlement or other resolution of the claim or matter, the lawyer may share or pay the legal fee to the nonprofit organization, provided that the nonprofit organization qualifies under section 501(c)(3) of the Internal Revenue Code and the lawyer complies with requirements to protect the client

Answer 19

Advertising for legal services must not be false or misleading. It must not raise unjustifiable expectations or make unverifiable comparison.  CA – presumes any ad that contains, guarantees, warranties, or predictions improper and requires that testimonials be accompanied by disclaimer. Label – Every ad must be conspicuous as advertising by including the words “Advertising Materials” Identification – The ad must identify at least one attorney responsible for its contents Legal Specialty – MR: attorney cannot claim specialty unless attorney certified as specialist by an approved organization, which must be disclosed in the ad.  CA – L not a specialist w/o Experience, Exam, Education, Evaluation. Harass – Ad must not harass or solicit someone who has indicated that she wants to be left alone. Records – The attorney must keep records of contents and placement of any ad for 2 years.

Answer 20

A lawyer has a duty not to improperly solicit clients for a fee: in person, live, electronic, or telephone contact for profit. Pro bono solicitation and solicitation to lawyer’s family, clients, former clients and to other lawyers is permissible. (CA: by live or telephone). + Harass + Liable.  CA presumes that communications made at scene of accident or en route to medical facility are improper as well as communications to potential clients that are not in physical or mental state to exercise reasonable judgment

Answer 21

An attorney is prohibited from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.

Answer 22

An attorney is prohibited from making false statements of law to court. Attorney has an obligation to be candid about law and has a duty to cite adverse authority if it is from controlling jxn and directly on point. Presenting frivolous claims or defenses is unethical and subject to disciplinary action.

Answer 23

If representation requires an attorney to commit or assist in committing a crime, the attorney must withdraw. If the client persists in actions that the attorney reasonably believes are criminal or fraudulent, but does not assist, the attorney may withdraw. Preventing a crime – If the client is going to commit a crime reasonably likely to result in death or serious bodily injury, disclosure is permissive.  CA – same, but not if the crime would cause substantial financial loss.

Answer 24

Attorney cannot intentionally or knowingly destroy, conceal or alter evidence, obstruct another from access or counsel anyone else to do so. Attorney has a duty not to suppress any evidence that the client or attorney has legal obligation to reveal. Reasonably certain contraband: The attorney must deliver client’s reasonably certain contraband to authorities. Interference with evidence – Attorney and agents may look at evidence, but not touch it. If evidence is retrieved, attorney must turn over to authorities and may be compelled to testify about location or condition (but not source). “Ex parte” proceedings (unusual communications w/ judge w/o adversary present) – Ethical duties of candor and fairness to an absent adversary require relevant information to be revealed even if harmful to own client’s case. Special duties of prosecutor – Prosecutors must 1) refrain from prosecuting a charge not supported by probable cause, 2) make reasonable efforts to make sure accursed has been advised of his rights to counsel and given reasonable opportunity to obtain counsel and 3) make timely disclosures to defense of all exculpatory evidence.

Answer 25

An attorney must refuse to falsify evidence, make false statement of material fact or offer evidence known to be false to the tribunal or fail to correct false statement of material fact that attorney previously made or presented to tribunal

Answer 26

CLIENT PERJURY An attorney must not knowingly facilitate client perjury. Civil case In a civil case, the attorney must refuse to call client as a witness if he knows client intends to perjure. Criminal case Criminal D’s have 5th Amendment right to testify on their own behalf and 6th Amendment right to effective assistance of counsel. Attorney also has ethical obligation to protect client’s confidences. If client intends to perjure, (1) attorney must advise client to testify truthfully or not take stand, (2) attorney should try to withdraw from case, or (3) ABA requires disclosure to judge and CA allows D to testify in narrative fashion but not further the deception. After Proceedings If the attorney discovers the perjury after the proceedings, the attorney is required to take reasonable remedial measures (listed above), but duties end after the time for appeal has run. Rendering witness unavailable Attorney must not counsel or assist witness to testify falsely or become unavailable. The attorney may pay basic expenses of a witness and reasonable fees for an expert if payment is not contingent on content of testimony. Criminal Defense Attorney A criminal defense attorney is not subject to discipline for putting the prosecution to its burdens and requiring every element of the case to be proven beyond a reasonable doubt

Answer 27

Lawyer has a duty to behave honestly in all dealings, whether or not engaged in the practice of law. When there are no explicit rules, the attorney must promote public confidence in the integrity and efficiency of the legal system and profession. Dealing fairly with others – Documents sent inadvertently – If the attorney knows documents were inadvertently sent, the attorney must stop reading and notify opposing counsel. Can’t copy or disseminate the document or use for own advantage otherwise attorney will be disqualified from the case. Communication w/adversaries and TPs – The attorney must not lie or mislead opposing counsel or TP as to the attorney’s interest. The attorney must not violate the legal rights of a person to get evidence or use means w/ no purpose to delay, burden or embarrass them. Communication with represented TPs – Unless authorized by law of the attorney obtains the consent of the TP’s lawyer, attorney must not communicate with party known to be represented by counsel on the matter when attorney is representing another on same matter. However, attorney can provide second opinion. Dealing with press – D’s right to fair trial is balanced against press and public’s right to know. Attorney should avoid out-of-court statements that have substantial likelihood of materially prejudicing case unless (1) it is a matter of public record, (1) warning the public or asking public for assistance, or (3) statements required to protect client from undue prejudice from recent publicity not self-initiated. Also, prosecutors must not make comments that have substantial likelihood of heightening public condemnation of accused.

Answer 28

An attorney must not try to improperly influence by trickery, disruptive conduct or theatrics. Before and during trial, the attorney must not talk to any prospective or empanelled juror, after trial the attorney may interview juror with valid consent.

Answer 29

ABA makes it affirmative duty to expedite cases. There is a duty to follow procedural rules unless attorney is making good faith challenge to their validity.  CA prohibits attorney from delaying cases to harass adversary or for personal gain or convenience.

Answer 30

An attorney must not engage in or assist others in the unauthorized or unlicensed practice of law except by pro hac vice order. ABA multi-state jurisdictional practice allows temporary practice in another state if attorney associates with in-state attorney.  CA permits out-of-state attorneys to practice in-state if: (1) registered legal services attorney – practicing under supervision of CA attorney for no more than 3 years; (2) registered in-house counsel – but no individual representation or court appearances; and (3) attorneys practicing temporarily in-state arising out of practice in home state.

Answer 31

ABA requires reporting another attorney’s conduct that raises substantial question of dishonesty, untrustworthiness, or fitness as attorney.  CA does not require reporting misconduct of others, but requires self- reporting (3 malpractice claims in year, civilly liable for fraud/breach of fiduciary duty, sanctions > $1K, felony charge, discipline in other jx).

Answer 32

Clear violations – Subordinate attorney is independently responsible for clear violations of ethical responsibilities regardless of the instructions of the supervising attorney. Debatable provision – Supervising attorney is solely responsible. Supervising attorney’s ethical responsibility – The supervising attorney is liable if he ratified the action or knew of conduct and failed to take action.

Rules Flashcards

(56 cards)