Four Types of Discipline
1. Caution letter (private), 2. public admonition, 3. suspension (for a definite term but not more than 5 years), 4. disbarment (permanent)
A lawyer who is disciplined in any STATE or FEDERAL court for a violation of RPC must inform the secretary of the NC State Bar in WRITING no more than 30 days AFTER the entry of the order of discipline.
Lawyers Regarding Applicants
Good Applicants: input is aspirational
Bad Applicants: DUTY to report when asked or correct something you believe may have arisen in the matter.
Regulation after Admission
Regulated by NC Supreme Court and through Office of Professional Responsibility
KNOW of violation: 1. report when other attorney violates rules (unless privileged) and 2. be available to testify against that attorney (non-anonymous).
Unethical Conduct that is a CRIME
Must be relevant to some aspect of the practice of law.
NO DUTY to Report
If know abou bad conduct of another lawyer b/c you represent him OR through participation in approved lawyers assistance program. A-C privilege trumps the duty to report.
To Practice in another jurisdiction
TEMPORARILY allowed if: 1. associate iwth an active local lawyer, 2. special permission of the court for that one case, 3. if mediating or arbitrating out of home-state practice (encouraged), 4. anythign reasonably related to the lawyer's home-state practice.
Law firms in more than one jurisdiction
Must indicate which lawyers in the firm are licensed to practice in which state. Must be CLEAR.
Supervisor is responsible IF
He KNEW of the misconduct at a time when the consequences could be mitigagted or avoided and FAILED to take action. OR the violation raises a SUBSTANTIAL question about the lawyer's character and the supervisor ORDERED or RATIFIED the conduct.
Subordinate NOT responsible IF
Supervisor TOLD him to do it AND it is arguable that the subordinate thought the conduct was okay.
May NOT: 1. appear in proceedings/depositions, 2. draft documents that affect substantial rights, 3. negotiate settlements of claims
MAY: 1. interview clients, 2. fill in forms, 3. write legal memos
Fee Splitting with Non-Lawyers
OK if it is 1. the heirs of a deceased attorney, 2. employees in form of salaries, pensions, or bonuses, 3. non-profit organization is the one that employed the lawyer and court awards legal fees.
Non-lawyers and Legal Corporations
Non-lawyers may serve as DIRECTORS or OFFICERS but CANNOT own any interest or have the authority to direct or control the conduct of lawyers practicing in the firm.
Must list both; cannot use the other profession to solicit legal business; the A-C privilege does NOT apply to the other profession.
Covenants not to compete
Generally cannot do it EXCEPT for retirement or use it to settle disputes between attorneys.
Duty to take cases
Generally can CHOOSE what cases you take, BUT "should" represent the "defenseless or oppressed," do about 50 hours/year pro bono work, and take appointments unless there is good cause to reject them like bias, conflict, or inability.
Whether to sue, settle, testify, plea, jury/bench trial, appeal.
*Case expenses (client can limit them)
Procedural decisions like: where to file, to take depositions, discovery, continuances. *MUST tell client offers UNLESS client has set a clear floor or ceiling figure.
Clients with Special Needs/Minors
Client decisions do NOT shift to the lawyer. Best to get a guardian appointed. Lawyer should strive to respect and involve the client as much as possible.
Discipline for knowingly making a false statment of fact of law to the court OR for failing to correct a previously made false statment of material law or fact.
Terminating the Lawyer-Client Relationship
If case is in litigation: need court approval and must return client's property. Otherwise, Judge's decision is often affected by what stage the case is in.
Client ALWAYS has the power to fire the attorney.
1. Incompetence, bias, frivolous claims; 2. Client fraud and refusal to rectify; 3. Client insists on violating law or ethical provision; 4. Client has begun an illegal course of action.
1. Any reason where there is no material harm to client; 2. if client consents, or 3. where: a. client persists in criminal or fraudulent conduct; b. client has used attorney's services to commit past crime or fraud, c. client's objective is repugnant or imprudent, d. client breaks promise to pay lawyer the fee, e. unreasonable financial hardship for attorney's practice; f. client will not cooperate.
Client says he will LIE under oath
1. Disuade client, 2. Ask to withdraw, 3. Do what judge says to do (if not allowed to get out, do not ask client questions as a witness, allow him to make a statement); 4. Give client reasonable time to find another lawyer.
Make reasonable efforts to advise the client of the FEE DISPUTE RESOLUTION PROGRAM at least 30 days prior to initiating collection proceedings AND participate in good faith in the fee dispute resolution process pursuant to the client's proper request.
1. time and labor, 2. difficulty and novelty of questions, 3. experience, reputation and abilities, 4. past relationship with client, 5. if lawyer must turn away other clients to do the case, 6. fixed or contingent (can be higher) fees; 7. fees customarily charged.
1. Reasonable, 2. Explained to client before taking case, 3. Tell what expenses he is resonsible for paying whether or not he wins, 4. Client must sign, 5. Settlement letter AFTER. NOT in criminal cases, seeking child support or alimony BUT CAN have for a criminal or civil asset forfeiture proceeding (getting backed CS or alimony).
Publication Rights as Fees
NO until the case is over, appeals and all.
Selling Law Practices
Can sell ENTIRE practice or ENTIRE field and goodwill. Seller must identify a qualified, competent buyer. Written notice must be given to clients regarding: 1. the sale, 2. the client's right to get their files returned, 3. client's right ot get new counsel, 4. CONSENT is presumed if client takes no action within 90 days of notice. If notice cannot be given, then a court order is required to authorize the transfer.
AFTER selling law practice
1. Cease to engage in private pracitce of law within 100 mile radius; 2. Seller can work for the new owner as an independent contractor, 3. Seller is alloewd to represent indigents for NO FEE or represent FAMILY members. 5. Purchaser MUST take all client matters, not just good ones.
Protects confidential communications REGARDLESS of the source including things which are embarassing or derogatory to the client. CLIENT holds the privilege. Presence of a 3rd party does NOT destroy the confidentiality IF that person was there to help further the A-C relationship.
Work Product Doctrine
material prepared by a lawyer for or in the anticipation of litigation is IMMUNE from discovery UNLESS: other side shows a SUBSTANTIAL NEED and an INABILITY to recover it without undue hardship. NOTE: a lawyer's mental impressions or opinions are ALWAYS immune unless it is waived.
What can lawyer disclose?
Anything client has EXPRESSLY authorized by giving INFORMED CONSENT. Anything IMPLIEDLY authorized that helps the attorney carry out the representation. If Client is PRESENTLY committing fraud/perjury and lawyer sought to withdraw and was denied OR withdraw would not solve problem: tell the judge.
Exceptions to A-C Privilege
1. Client waives it; 2. Client seeks advice to engage in FUTURE crime/fraud; 3. To protect attorney in a dispute; 4. Required by court order; 5. Lawyer has duty to rectify false testimony until the end of all proceedings, 6. To prevent reasonably ceratin death or substantial bodily harm (does NOT have to be the product of a crime); 8. To prevent substantial financial harm or fraud IF the client has used teh lawyer's services in the matter.
Client's PAST fraud or perjury. Past crimes are considered secrets. Death of client doe NOT end the obligation.
Conflict of Interest
NO if: 1. Represented client and now opposing him; 2. Interests are direct adverse to your client; 3. Representing a current client against a former client from whom you acquired confidential information.
1. lawyer fully explains risks and alternatives (informed consent); 2. client agrees in writing (can be electronic)
Loaning Money to Clients
NO unless it is advancing the costs of litigation.
Rule of Imputation
What one lawyer cannot take, the FIRM cannot take UNLESS the lawyer is a witness OR the conflict is uniquely personal to the lawyer.
Sexual Relationships with Clients
Okay if it started before the representation. NOT okay if it started before. This is a unique conflict for an attorney and he can be screened to get around imputation.
Multiple clients and conflicts
ALLOWED if: (1) have a reasonable belief of no adverse effect; (2) client gives WRITTEN INFORMED CONSENT; (3) no aggregate settlements WITHOUT informed consent from each after a review of the entire settlement.
Must have an agreement among the clients about how to share the aggregate sum, must disclose (1) how much each gets, (2) detail fo every client's participation, (3) how lawyers fees will be paid, (4) existence and nature of all claims, defenses, and pleas involved; (5) informed consent to share confidential information with other clients at OUTSET of case.
Third Party Payments to Lawyer
Can be paid by 3rd party BUT (1) written informed consent by client AND (2) client confidences are kept. NOTE: The PAYOR must be told that he is NOT the client
Lawyers related as parents, siblings, children or spouses must NOT represent adverse parties UNLESS there is full informed consent. BUT there is no imputation to the firm.
Disclosure to the Court
Can't hide adverse decisions but CAN distinguish them or NOT give an explanation or offer a good faith argument to change the law.
Trial Publicity: Attorney
Attorney must NOT make a statement that he reasonably knows coudl have a substantial likelihood of materially prejudicing the case. BUT can respond when he believes it is necessary to protect the client from substantial undue prejudicial effect if HE DID NOT INITIATE IT (so can respond).
Trial Publicity: Prosecutor
Cannot make statements that have a substantial likelihood of heightening public condemnation of the accused.
Laywyers as Witnesses
CANNOT be a necessary witness; Exceptions: (1) where teh matter is uncontested, (2) when it's about legal fees, (3) when NOT testifying would create a substantial hardship to the client.