Professional Responsibility Prime
Terms in this set (85)
Concurrent Conflict of Interest (COI)
A lawyer must not represent a client if the representation creates a concurrent conflict of interest. A concurrent conflict of interest arises if there is a significant risk that the representation of a client will be materially limited by obligations to another client, a former client, a third party, or the lawyer's own interest.
COI But Representation Permitted
Representation implicating a concurrent COI is permitted if (1) the lawyer reasonably believes that he can properly represent each affected client; (2) the representation is allowed by law; (3) the clients are not directly adverse in the same litigation; and (4) each affected client gives informed written consent (following authorization from the other client to make any required disclosure).
Clients make all decisions affecting the substance of the case, including settlement. Lawyers are entitled to make tactical decisions.
The lawyer has a duty to keep the client informed.
The lawyer must withdraw from representation if a conflict arises, unless the lawyer gets informed consent. Reasonable steps must be taken to avoid prejudice and unearned fees must be returned. If the matter is in litigation, permission of the tribunal must be obtained for withdrawal.
In state court, intent to withdraw may be issued with a minimum of 10 days notice. If no objection, withdrawal is automatic. In federal court there must always be a motion and order to withdraw.
Withdrawal is mandatory when (1) the lawyer is discharged, (2) continued representation would violate the RPC, or (3) the lawyer's condition unreasonably impairs her ability to represent the client.
Permissive withdrawal is allowed when (1) there is no material adverse effect on the interests of the client; (2) the client persists in criminal or fraudulent conduct involving the lawyer's services; (3) the lawyer considers the client's acts repugnant; (4) the client fails to pay or fulfill an obligation to the lawyer and warning has been given; (5) the representation is unduly burdensome; or (6) for good cause.
A lawyer must not represent a client in an identical or substantially related matter that is adverse to a former client unless there's informed consent. (But a lawyer can never use confidential info from one client to that client's disadvantage.)
Business Transactions with Client
Business transactions with a client are disallowed unless: (1) transaction is fair and reasonable; (2) there has been full disclosure in writing; (3) the client gives informed written consent; (4) independent counsel is recommended in writing; and (5) there is time to obtain independent counsel.
Information Gained Through Representation
Even with consent, a lawyer can never use confidential info gained from one client to that client's disadvantage, except as permitted by the RPCs.
A lawyer shall not solicit a substantial gift from a client, or prepare an instrument giving the lawyer one, unless the lawyer is related to the donor (maintain a familial relationship). WA disapproves of a lawyer drafting an instrument where the lawyer is named a trustee or personal representative where there is a possibility of substantial fees from serving in that position.
May not negotiate for literary or media rights to a portrayal related to the representation until after representation.
Financial Assistance to Client
Cannot advance money to a client except for the costs of litigation. The repayment of costs cannot be contingent on the outcome of representation and the client must be ultimately responsible for repayment. Costs include expert witness costs, cost of filing, etc.
Payment from Third Person
A lawyer may not be compensated by a third person unless the client gives informed consent, the lawyer's independent judgment is not compromised, and information relating to the representation is protected.
Aggregate Settlement and Pleas
A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims or aggregate agreement as to guilt or innocence unless each client gives informed written consent. (To be "informed" each client must know what the other is getting.)
Limiting Civil Liability
A lawyer shall not prospectively limit her malpractice liability unless the client is independently represented. But after the dispute has arisen, the lawyer may obtain a release from the client to settle a claim. The lawyer must advise the client to seek other counsel in writing and give him an opportunity to do so.
May not acquire a proprietary interest in a client's matter. But a lawyer may acquire a lien to secure fees or expenses or contract for a reasonable contingent fee in a CIVIL case.
Sexual Relations with Client
May not have sexual relations with a client, unless the relationship preexisted the legal representation (also a representative of the client if that would prejudice representation). Other members of the firm may conduct the representation.
A lawyer shall not represent a client in a matter directly adverse to a client represented by a related lawyer unless the client gives informed written consent and the representation is not a concurrent COI (personal interest).
Imputed Disqualification for Some COIs
Generally, if one lawyer in a firm is disqualified then the entire firm is disqualified for purposes of current and former clients (except for related lawyers and sex with clients).
Effect of Termination with a Firm
Generally, a firm may represent clients adverse to clients leaving with a departing lawyer unless someone at the firm still has client confidences and it is the same or a substantially related matter.
Effect of Joining a Firm
A firm must not take a client in a matter in which a joining lawyer is disqualified due to her former clients (substantially related/confidential info) unless the joining lawyer is screened, gets none of the fee, notice is given to the former clients, and the firm shows that former clients' info was not transmitted by joining lawyer.
Private Clients After Gov't Service
Must not represent a private client in matters the lawyer was personally and substantially involved while in gov't service. But, the new firm can engage in the matter if the lawyer is screened and notice is given to the gov't.
Negotiating for Employment
A lawyer currently serving as a public officer or employee shall not negotiate for private employment in a matter in which the lawyer is participating personally and substantially. (Law clerks are excepted if they give notice to their judicial officer.)
Judge or Third-Party Neutral
A lawyer shall not represent anyone in a matter in which the lawyer participated personally and substantially as a judge, other adjudicative officer, arbitrator, or mediator unless ALL PARTIES to the proceeding give informed written consent. The firm may take the case if that disqualified lawyer is screened and written notice is provided. A person selected as a partisan arbitrator is not prohibited from subsequently representing the party.
Even when no client-lawyer relationship exists, a lawyer shall not use or reveal information learned during consultation. A lawyer shall not represent a client with interests that are materially adverse to those of a prospective client in the same or substantially related matter if the lawyer received information from the prospective client that could significantly harm that person in the matter. Prospective client interviews can be conditioned without confidentiality under the RPCs.
Organization as Client
Lawyers represent organizations as a whole entity, not an individual of the organization. Lawyers must make this clear. If a lawyer perceives illegal conduct within the organization, she must act in the org's best interests and take the matter to higher internal authorities. If higher ups don't act, the lawyer has DISCRETION to report to an outside agency. If the lawyer is fired, she must inform the org's highest of authority of her discharge or withdrawal.
A lawyer shall not reveal information relating to the representation unless the client gives: (1) informed consent; (2) the disclosure is implicitly authorized (where authority is implied through necessity to carry out the representation); or (3) the disclosure is permitted by the RPCs. Among 7 exceptions, a lawyer may reveal info to prevent a client from committing a crime.
The duty of nondisclosure covers the period prior to and subsequent to the creation of the client-lawyer relationship. The duty applies even if a relationship is not established and there's no agreement that the discussion is non-confidential.
Disclosure to Others for Purposes of Representation
A lawyer is allowed to share client information with employees and other members of the firm, unless the client instructs otherwise. A lawyer may give limited, necessary information to an outside agency for such purposes as bookkeeping if reasonable steps are taken to ensure information is kept confidential. A lawyer may provide an evaluation of a client matter unless it would materially and substantially affect the client's interests. Must get informed consent, if info would be harmful to client's interests.
Knowledge of physical evidence is protected by the duty of confidentiality, possession of physical evidence is not. Evidence of a crime must be turned over to authorities in the condition in which it was received, but the lawyer must protect the client's identity and other confidential information.
Client Perjury & Other False Evidence
Must be candid with the tribunal and must not offer evidence the lawyer knows is false. If a lawyer learns that evidence already presented is false, the lawyer must reveal that to the tribunal unless it is prohibited by the RPCs. If prohibited, the lawyer must take reasonable steps to obtain client consent to the disclosure. If the client refuses, the lawyer may withdraw.
Supervisory and Subordinate Duties and Liability
Partners and supervising lawyers shall make reasonable efforts to ensure that the firm and all lawyers in the firm conform to the RPCs. A lawyer is imputed with subordinate lawyers' violations of the RPC if they order it or ratify the conduct with specific knowledge OR if the supervisory lawyer knows of the conduct when its consequence can be avoided or mitigated, but fails to take reasonable remedial action. A lawyer must always abide by the RPCs. Where a lawyer is asked to do something by a supervisor, the lawyer does not violate the RPCs if acting in accordance with a supervisor's reasonable resolution of an arguable question of professional duty (otherwise, "doing as ordered" is not a defense).
Death or Substantial Bodily Injury
A lawyer SHALL (mandatory) reveal information relating to the representation to prevent certain death or substantial bodily harm.
A lawyer MAY reveal information relating to the representation to prevent the client from committing a crime.
Preventing, Mitigating, and Rectifying Crime or Fraud when the Lawyer's Services Were Used
A lawyer MAY reveal information relating to the representation to prevent, mitigate, or rectify substantial injury to the financial or property interest of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud where the client has used the lawyer's services.
A lawyer may reveal information relating to the representation to secure legal advice about the lawyer's compliance with the RPCs.
Protect the Lawyer
A lawyer may reveal information relating to the representation to establish a claim or defense in a controversy between the lawyer and the client, to defend against a civil or criminal claim against the lawyer based on conduct in which the client was involved, or to respond to proceedings concerning the representation.
A lawyer may reveal information relating to the representation to comply with a court order.
A lawyer may reveal information relating to the representation to inform a tribunal about any client's breach of fiduciary responsibility when the client is serving as a court-appointed fiduciary such as a guardian, personal representative, or receiver.
False or Misleading Statements
A lawyer must not make false or misleading statements about their services so as to lead a reasonable person to form an unjustified expectation. No statements about ability to improperly influence a court or public body are allowed.
Specialization and Fields of Practice
A lawyer may not state that she is a specialist in a particular field of law except for patent, trademark, and admiralty. But a lawyer can say "Practice is limited to" or "emphasizes in." Certification by an organization may be disclosed but the fact that the SCOWA does not recognize specialties must also be included.
Firm Names and Designations
Letterhead must designate in what jurisdictions lawyers are admitted. Trade names are allowed as long as they are not misleading. Names of deceased or retired partners are allowed. Names of public officials are not allowed unless the person is actively practicing with the firm.
Direct Mail Solicitation
Direct mailing (even targeted mailing) is allowed.
Personal solicitation is permitted only to friends, relatives, and former clients. In-person solicitation includes telephone and real-time electronic communication.
Purchase of a Law Practice
A lawyer may purchase a practice if (1) the entire practice or area of practice is sold; (2) the seller gives clients notice of the sale; and (3) the fees to clients do not increase because of the sale.
Meritorious and Frivolous Claims
A lawyer has a duty to do everything within the bounds of the law, including the RPCs, to advance a client's cause. This includes expediting litigation. Being a zealous advocate does not include bringing frivolous claims, which are those claims brought solely to harass or injure.
Candor to the Tribunal and Adverse Legal Authority
A lawyer must be truthful with the tribunal and cannot knowingly make a false statement of law or fact, or fail to correct such unless prohibited by the RPCs. A lawyer must take reasonable steps to ascertain the truth. A lawyer must reveal controlling authority but has no duty to reveal adverse authority from other jurisdictions OR factual information not requested through discovery (unless ex parte where lawyer must present all material information).
Special Responsibilities of Prosecutors
A prosecutor must not prosecute without probable cause.
A prosecutor must advise a defendant of his right to seek counsel.
A prosecutor must not seek to obtain from an unrepresented accused a waiver of important pre-trial rights.
A prosecutor must disclose any information that tends to mitigate a finding of guilt.
A prosecutor must avoid making extrajudicial statements that could prejudice the proceedings.
A prosecutor must be truthful with the tribunal and must not knowingly make false statement of fact or law.
Impermissible Conduct in Litigation
No evidence obstruction; falsifying evidence; frivolous discovery requests; refer to inadmissible matter or give personal opinions; ex parte contact; and fact witnesses can only be paid reasonable expenses.
Lawyer as Witness
A lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness. A lawyer may be a witness if the testimony relates to an uncontested issue. Another lawyer from the same firm may act as an advocate unless it would constitute an impermissible conflict with a current or former client.
A lawyer must not make an extrajudicial statement to the media that will likely materially prejudice an adjudicative proceeding. A lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from undue prejudice. She may also state she's been retained, that client denies guilt, discuss housekeeping, and ask for help.
A lawyer representing a client before a legislative body or administrative agency proceeding must disclose that the appearance is in a representative capacity.
Dealing with Third Persons
A lawyer shall not knowingly make a false statement of material fact or law to a third person in the course of representing a client. The lawyer has a duty to correct unless doing so would violate the RPCs.
Encouragement of Pro Bono Work
A lawyer is encouraged to accept pro bono cases and assist in providing access to justice. 30 hours of service should be provided annually.
A lawyer shall not take a matter that he is not competent to handle unless she can become competent without unreasonable delay and expense to the client. A lawyer may associate with a competent lawyer if the client gives informed consent and the total fee is reasonable.
Associating with Counsel
A lawyer may associate with a competent lawyer if the client gives informed consent and the total fee is reasonable.
Emergencies & Competence
In an emergency, a lawyer may give advice or assistance although the lawyer does not have the required competence. Even then, assistance should be limited to that which is reasonably necessary in the circumstances.
Duty to Keep Client Informed
The lawyer has the duty to keep the client informed. The lawyer should explain the matter so the client can make an informed decision.
Client Under a Disability
The lawyer must maintain as reasonably as possible a normal attorney-client relationship. If the lawyer believes the client cannot act in his own interest, the lawyer may seek the appointment of a guardian to act on the client's behalf.
Reasonable Fee Requirement
A lawyer shall not charge or collect unreasonable fees or expenses. A fee may take into account time, labor, novelty, difficulty, skill, results, experience, reputation, and the fixed or contingent nature of fee.
Fee splitting with nonlawyers is prohibited; fee splitting with lawyers outside the firm must be proportional to the work performed, or the lawyers can assume joint responsibility and split it as appropriate getting informed consent from the client and making sure the total fee is reasonable.
Contingent fees are allowed in Washington except in criminal and domestic relations cases. Contingent fee arrangement must be in writing and specify if fee is calculated on the gross or net recovery. Client always has the right to have a court review the fee. Fees in excess of 40% are probably unreasonable.
A retainer is a fee that a client pays for a lawyer to be available during a specified period of time or for a specified manner. This is the lawyer's property at the time it is given and is deposited in the lawyer's general account (not to be confused with an advanced payment, which must be deposited in trust). A retainer agreement must be in writing and signed by the client.
A flat fee must be in writing signed and agreed to by the client. A complete payment for specified legal services, a flat fee may be paid in whole or in part in advance. The agreement must include: scope of services, total amount of fee and terms of payment, fact that the fee is the lawyer's property and will not be deposited in trust, the fee agreement does not alter the client's ability to terminate the relationship, and the client may be entitled to a refund if a portion of the services have not been performed. Flat fees must be reasonable. If a dispute arises, the lawyer must take prompt action to resolve it.
Client Funds & Property
A private lawyer must have a client trust account and keep the clients funds SEPARATE from her own funds. Client property received must be identified, a receipt given to the client, placed in a safe place, and returned to the client when requested. The lawyer must keep the client informed about client funds and provide the client with an accounting of any funds transferred from the trust account to his general account.
Trust Account Requirements and Interest
Lawyer may withdraw funds from trust as earned, must keep client informed about the funds in his possession, and the account must bear interest for the client or for IOLTA.
Trust Account Record Keeping
Trust account records must be accurate and kept up to date. All withdrawals must be by check or transfer (no cash) and singed by a lawyer.
Audits and Overdrafts
WSBA conducts spot audits of trust accounts. Trust accounts must be set up to give both the lawyer AND the WSBA overdraft notices. A lawyer can be disciplined for improper accounting even if no funds are missing.
Attorney Liens/Unpaid Lawyers
An unpaid lawyer may file a lien on a case judgment pursuant to WA law. If no recovery is made in that case for the client, there is no satisfaction of the lien.
Aiding Unauthorized Practice/Disbarred Lawyers
A lawyer shall not aid a nonlawyer (including disbarred lawyers) in the unauthorized practice of law. Partnerships cannot be formed with nonlawyers.
Lawyer not admitted in WA shall not create an office or other permanent presence in WA. Lawyers admitted in another jurisdiction may practice in WA on a temporary basis associated with an admitted WA lawyer or reasonably related to lawyer's jurisdiction where admitted. (Pro hac vice - special admission to give lawyer permission to appear before the court - usually requires a local counsel sponsor).
General Requirements for Admission
Must be a graduate of an ABA approved law school or be a graduate of the WSBA clerkship program, or through reciprocity on the same basis that the other jurisdiction in which the lawyer is admitted accepts attorneys. Must be of good moral character.
Pay to Play Prohibited
A lawyer or law firm shall not accept a governmental or legal engagement or appointment from a judge if the lawyer or law firm makes a political contribution to or solicits political contributions for the purpose of obtaining the appointment or engagement.
Broad Definition of Misconduct
Whole bunch of stuff. The catch all. See p. 29 of outline.
A lawyer cannot commit a discriminatory act that is prohibited by law.
Reporting Professional Misconduct
A lawyer who knows that another lawyer has committed a violation of the RPCs SHOULD (not mandatory) inform the WSBA.
When Disqualification of Judge is Required
A judge must disqualify herself when the judge's impartiality can be reasonably questioned on the basis of personal bias, knowledge of disputed facts, personal or household financial interest, serving as a lawyer or witness in the matter, or the judge or a household member has a financial interest in a party to the proceeding or its outcome.
Impropriety and the Appearance of Impropriety
A judge must avoid impropriety and the appearance of impropriety.
Report Judicial Misconduct
A lawyer SHOULD report judicial misconduct.
A lawyer must expedite litigation and zealously advocate on behalf of the client. A lawyer must not neglect cases. A lawyer should manage her caseload so there is enough time to effectively represent all clients.
A lawyer must keep the client reasonably informed about the status of the matter and promptly comply with reasonable requests for information.
A lawyer must not fail to make a reasonably diligent effort to comply with a proper discovery request.
A lawyer must not in trial allude to any matter that the lawyer does not reasonably believe is supported by admissible evidence.
Using Third Persons
A lawyer must not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.
Communication with other party
A lawyer must not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless there is consent.