Ethics - Topical Summaries of Selected ABA Model Rules
Competance and Procrastination - Compentance definition
Competance means ability, capability, expertise, mastery, profciency or skill.
Compentance and Procrastination - Lawyer's Skills
Must have necessary skills to practice law..analyze precedent, evaluate evidence, advise clients, and draft legal documents.
Competance and Procrastination - For Special Legal Problems
The Lawyer must conduct legal research, and where needed, seek help of more experienced lawyers.
Competance and Procrastinations - It would be unethical
For a lawyer to have a caseload in which any case cannot be handled competently. It would be unethical for a lawyer to proceed with a case without adequate preparation.
Competance and Procrastination - Education
As soon as a person stops actively pursuing knowledge through education, his knowledge beins to erode; and with that erosion, his competance is diminished.
Competance and Procrastination - Highly competant people
Are the first to acknowledge that the more they learn about their fields of practice, the more they realize how much there is to learn. Only by their perpetual search for more knowledge do they maintain personal levels of high competance.
Competance and Procrastination - Legal Assistants are expected to maintain
Take advantage of educational opportunities when they arise: Formal settings; reading professional literature from cover to cover; meetings; seminars; workshops;college classrooms
Compentance and Procrastination - Unreasonable Procrastination
Unreasonable procrastination also is unethical under the Model Rules. Many firms use case progression to prevent a case from slipping through the cracks.
Advertising - Is permitted in
telephone directory, legal directory, newspaper or other periodicals, radio, tv, billboards, internet ad other types of public media.
Advertising - referral fees
Lawyers cannot pay referral fees to private parties but it is permissible for them to pay the fee originarily charged by nonprofit referral services.
Advertising - Many states
Impose further restrictions about what information the lawyer can give about herself, and some stated prohibit undignified advertising. The model rules, however, do not require these types of restrictions.
Solicitation - Model Rules Forbid
A lawyer to have direct contact in person or by telephone with those known or thought to need legal services and with whom the lawyer has had no prior professional relationship...
Solicitation - Ambulance Chasing
Previous - this has been known as the rulse against ambulance chasing. In other words, a lawyer cannot chase ambulances to the scene of an accident to hand out his business card; cannot loiter in ERs; cannot call or visit parties whose names are listed on the accident reports.
Solicitations - Lawyers Can...
Send a brochure or a letter to the names found on an accident report if the mailing includes the phrase "Advertising Material" on the oustide envelope.
Solicitations - Laywers also can
Identify a particular demographic, senior citizens for example, and send this type of advertisement by mail.
Solicitations - Taking advantance
The ambulance chasing rule is intended to prevent a lawyer from taking advantage of a person who may be overwhelmed by the circumstances for which legal services are needed.
Solicitations -- more about ambulance chasing rule
The rule permits general mailings or autodial messages to prospective clients unless a particular prospective client has indicated that he does not wish to receive such information.
Solicitations - AC more...
Similarily, if the mailing or autodial message evokes no response from the prosepctive client, the lawyer may be prohibited from making any further contact.
Solicitations - AC Rule.. nothing prohibits
A lawyer from participating in a prepaid or group legal services plan not owned or directed by the lawyer, even though those who sponsor or manage the plan to solicit memberships use in-person or telephone calls.
Candor and Honesty - A lawyer cannot
Make a false statement of material fact or law to a court. Cannot knowingly offer false evidence. Cannot knowingly fail to disclose material facts to a court when necessary to prevent a client from fraud or some other criminal act.
Candor and Honesty - A Lawyer Must Be
Zealous in the representation of her client, but this cannot include deception by the lawyer in making false statements or in offering false or perjured testimony.
Candor and Honesty - If the Lawyer's Research Has Uncovered...
Cases, statutes, or other authority IN THE JURISDICTION that go against her client, the lawyer must tell the court about this authority if it is not raised by the other side.
Candor and Honesty - Lawyers Cannot...
Obstruct opposing counsel's access to evidence and cannot destroy, alter, or falsify evidence in any way.
Candor and Honesty - Laywers Cannot...
Offer an illegal inducement to a witness in exchange for the witness's testimony. A fact witness generally can be paid a fee, however, it is unlawful in most jurisdictions for an expert witness to be paid a contingent fee for their testimony.
Communications with Clients - Keeping clients informed
A lawyer must keep a client reasonably informed about the status of the case, must comply with a client's reasonable requests for information, and must explain things to the client so that the client can make informed decisions.
Communications with Clients - Studies have shown
That the most common types of complaint against lawyers is failure to communicate wit the client about the status of his or her case.
Communication with Clients - A client has a right to know
About events as they happen in the case. Legal assistants can assist the lawyer in this area by drafting status letters to clients and by helping develop a system to ensure that all telephone calls and corres. from clients receive prompt replies.
Communications with the Opposing Party - A lawyer cannot
contact the opposing party about a pending case unless that party's counsel agrees to the contact in advance (rare). The lawyer can contact them about matters unrelated to the case.
Communications - A person who is not represented
A lawyer should never give advice to an unrepresented person beyond the advice to obtain legal counsel.
Cofidentiality - A lawyer cannot disclose information
concerning the representation of a client unless the client consents or unless the disclosure is necessary to carry out the representation.
Cofidentiality - this rule is intended to encourage clients
to disclose all facts to their lawyers without the fear that the lawyer may be required to divulge the information to others
Confidentiality - this rule coordinates
with the attorney-client privilege permitted by evidence rules, but is not the same thing. If a lawyer is charged in a disciplinary proceeding for disclosing a client's confidence, the charge will be based upon this rule and not the evidence rule.
Confidentiality - exceptions to the rulse to allow a lawyer to disclose limited information
to prevent a client from committing a criminal act that is likely to result in death or great bodily harm, to establish a defense for the lawyer against criminal charges, or to establish a defense in civil action between the lawyer and the client related to the lawyer's representation.
Confidentiality - a client's perjured testimony
which is given without the attorney's prior knowledge also is exepted from the confidentiality protection.
Confidentiality - prohibits the lawyer or paralegal from discussing wither the client or the client's case in a social setting outside the office.. In addition it prohibits
Discussing the client or his case with others in the firm who have no specific need to know the information;
Confidentiality - prohibits 2
Disclosing to opposing counsel or to others more about the client than is necessary to accomplish the required objective;
Confidentiality - prohibits 3
Confirming to third parties that the client is represented by the firm unless that fact clearly is a matter of public record;
Confidentiality - prohibits 4
Engaging in a telephone call where the client's name or any identifiable information about the client or case is mentioned within the hearing rage of third parties (such as reception area);
Confidentiality - prohibits 5
Permitting client files or papers to be in plain view where they can be seen to anyone who passes by.
Confidentiality - prohibits 6
Inadvertently mailing information about a client's case to unintended persons, which can happen if multiple mailings are mishandled.
Conflict of Interest
A lawyer cannot represent opposing parties in a legal matter unless (1) the lawyer reasonably believes the representation will not affect either party adversely and (2) each party consents
Conflict of Interest - Paralegals who freelance
Must be especially sensitive to potential conflicts. This rulse also applies to lawyers and paralegals who leave one firm to become eployed by anothers.
Conflict of Interest - Chinese Wall
If the new firm represents parties adverse to those parties represented by the old firm, a conflict of interest exists. Isolate the lawyer from all contacts with this case until its concluded.
Conflicts of Interest - Lawyers specifically are prohibted from entering into these types of transactions...
Cannot enter into a business ownership transaction with a client unless the terms are fair, the client has a chance to seek independent legal advise, and the client consents
Conflicts of Interest - prohibited 2
Cannot negotiate or agree to obtain froma client media or literary rights to a portrayal based upon his or her representation in a case.
Conflicts of Interest - prohibited 3
Cannot provide financial assistance to a client in a pending case, exept that court costs and expenses can be advanced in a contingency fee case and except that court costs and expenses can be paid for an idigent client.
Conflicts of Interest prohibted 4
Cannot accept payment of free from anyone other than the client unless the client consents, the lawyer remains independent of the third party, and client information remains confidential.
Conflicts of Interest - prohibited 5
Cannot settle a civil case for multiple clients or plea bargain for multiple criminal defendants unless all clients know all details of all other interests and consent to mulitple representation.
Conflicts of Interest - prohibited 6
Cannot require a client to agree prosepctively to limit the lawyer's malpractice liability in a case.
Conflicts of Interest - prohibited 7
Cannot assume representation when the opposing party is represented by counsel who is related to the lawyer, unless the client knows of the relationship and consents to representation.
Conflicts of Interesnt - prohibited 8
Cannot acquire proprietary inertest in ligtigation being handled for a client except by reasonable contingency fee contract or lawful attorney's lien to secure fees or expenses.