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Professional Responsibility (GA)
Terms in this set (61)
What authority governs the practice of law in GA?
Supreme Court of GA
All attorneys admitted to practice in GA are required to belong to what?
The state bar of GA
Where are the rules governing conduct of GA attorneys found?
GA Rules of Professional conduct
When are you a lawyer? And what are you expected to do?
All the time and everywhere. Must (1) uphold the integrity of the profession and its members; (2) report lawyer misconduct; and (3) assist under-represented and poor through pro bono
Who investigates complaints involve a GA attorney's conduct? And how does it work?
State bar, through a disciplinary board panel, who, upon a finding of probably cause of a violation may file a formal complaint with the GA supreme court, which conducts a hearing through a special master
What are the six types of discipline that can be imposed on a GA attorney (from lease to most severe)?
1. Formal ?
2. Investigatory Panel Reprimand
3. Review Panel Reprimand
4. Public Reprimand
First 2 are private, next 4 are public.
Note that continuing to work as a lawyer after (5) or (6) can constitute a misdemeanor crime
How does discipline work for lawyers licensed in more than one state?
Discipline by one state does NOT mean there will be discipline in the other. Each state makes an independent determination of whether the conduct complained of violates that state's ethical rules.
But most other states will give some effect to a sister state's determination on the basis of full faith and credit or on the basis of comity.
Federal courts also possess independent powers of discipline
What rules apply for lawyers licensed in more than one state?
Allegations of misconduct are evaluated in accordance with the rules of the state where the lawyer primarily practices, but if the conduct complained of has a predominant effect in another state of license, the rules of other state will apply.
Can a lawyer be responsible for more than one disciplinary authority for the same conduct?
What else are lawyers subject to besides discipline?
Malpractice claims by clients. But commission of malpractice does not mean the conduct which led to the claim is subject to discipline
When must disciplinary proceedings and legal malpractice claims be brought?
Both within 4 years from the wrongful act or omission.
What does the practice of law in GA include?
Representing litigants and preparing legal pleadings; conveyancing; preparing all legal instruments securing rights; giving any legal advice; taking any legal action on behalf of another
What's the student practice rule?
Allows supervised students to try criminal cases in some instances
How can a lawyer member in good standing of at least one bar be admitted to another?
Pro hac vice
Can laypersons represent themselves pro se? Can corporations?
Laypersons: yes. Corps: no.
Can someone representing themselves pro se ask you for advice?
Lawyer can provide advice on non-substantive issues, but may subject yourself to malpractice claims (even though not discipline)
Why can't a lawyer enter into a non-compete agreement or provision with his current partners or associates?
Because courts say that clients have absolute right to attorney of choice
How can you sell practice?
(1) In entirety to another lawyer or firm; (2) Must give written notice to affected clients so they have opportunity to obtain work product and seek counsel elsewhere
What must the firm name be?
Appropriate. Can't use trade names unless lawyer named included. Can't use clinic unless you're providing free services, nor can you imply connection or endorsement of the state. Can include name of deceased or retired partner so long as he was at one time a name partner in the firm.
If suspended-> name can remain since it's temporary
If disbarred-> permanent, so remove name
How can a lawyer advertise?
All form of media, also direct mail, so long as there is no in-person solicitation and the communications are not misleading
Test is whether a layperson would find the statement or advertising misleading
Must avoid direct reference to clout and connections.
What are the special rules regarding advertising contingent fees that lawyers must follow?
Contingent fee is one based on percentage of what the lawyer collects. Must clearly state the fee in writing. Must make clear that any advertising that refers to contingent fees whether the client will be responsible for any costs. Make it clear that continent fees are not permitted in all types of cases
How long does GA require that lawyers keep copies of advertising?
What are the exceptions to the prohibition on soliciting clients by means of direct personal contact?
(1) Family and close friends; (2) prior clients; (3) providing free legal services; (4) other lawyers
Can you use targeted mail?
May send direct mail to groups of people likely to need legal services (includes email spam) BUT federal law requires you wait 45 days for a plane crash and GA rule requires you to wait 30 days after any other disasters.
Mailing must say advertisement on envelope and every page of the letter inside.
Can you accept employment resulting from in-person, unsolicited advice?
Can you pay value for a referral?
No. But lawyer referral services are okay. And reciprocal referral agreements okay if client has notice.
People who are paid to solicit or refer clients are called runners; using them is illegal- rule of imputation.
What must a lawyer do/ be to hold herself out as a specialist?
Certified as a specialist by a bona fide entity (recognized by GA bar association), or practices patent, trademarks, or admiralty law
A lawyer may communicate the she does or does not practice in particular fields of law
Does a lawyer have discretion whether he will take the case? What about if they're appointed?
Yes. But if appointed to represent a client then the lawyer has an affirmative duty to do so except for good cause.
What constitutes good cause to not represent someone you've been appointed to represent?
(1) Representation likely to result in a violation of the rules of professional conduct; (2) client insists on pursuing an objective that is repugnant or imprudent; (3) other good cause
What cases should you take?
Only those that you are competent to handle
What does competence include?
Not equal to experience. Includes: requisite legal knowledge and skill; physical and mental ability; requisite time and resources to finance the case
What should you do if you are no competent to take a case?
Tell client to seek other counsel; study to become proficient in time to represent, with clients permission and at no additional charge; associate with competent attorney so long as the client consents
What are the client's decisions?
Substantive (e.g., settle, file, accept plea, testify)
What are attorney's decisions?
Procedural (where to file, strategy, continuances, discovery, method). Must abide by client's wishes unless doing so would be illegal, unethical, or immoral. Cannot further a client's unlawful objectives by knowingly providing legal advice to effectively commit or conceal a crime. Alternative: Withdrawal
What if the client loses the ability to make a clear decision?
Seek appointment of guardian ad litem
What are the attorney's duties re: communication?
Must keep the client informed of objectives and status of representation. The attorney must promptly comply with reasonable requests for information.
What is the basic rule of confidentiality?
You as a lawyer cannot disclose any adverse info no matter the source. Survives death. This duty is BROADER than attorney-client privilege, which applies against the government in judicial and other legal proceedings in which the lawyer is called as a witness or called to provide evidence.
When MAY an attorney reveal confidences?
(1) To avoid or prevent harm or substantial financial loss to another as a result of client or third party criminal conduct clearly in violation of the law;
(2) Prevent serious injury or death;
(3) Establish legal defense in a criminal charge or civil claim involving the client;
(4) With client's consent
When MUST an attorney reveal confidences?
When required by law.
What if you find out your client perjured in a trial that ended a month ago?
Attorney must remain silent- duty to maintain client confidentiality.
What if current client is insisting on testifying and has admitted he will commit perjury on the stand?
Can't breach duty of confidence but must withdraw if can't convince otherwise
When MUST an attorney withdraw from representation?
(1) When it results in violation of the rules;
(3) Conflict arises that he cannot resolve
When MAY an attorney withdraw from representation?
(1) When client pursues imprudent or repugnant objective; (2) when client fails to fill obligation to him (pay)
What is the bar rule of thumb for conflicts?
Assume one exists even if possibility is remote- at least flag
What are the rules for lawsuits between current and former clients?
May represent a current client in action against former EXCEPT:
(1) Current client wants you to sue former involving a matter or transaction in which you represented the former client; OR
(2) When during representation of the former client you learned confidential information that is now relevant to the action by the current client. Note that if two matters are "substantially related" there is an irrebuttable presumption that such knowledge was acquired.
How must a judge act?
A judge must act in a manner that promotes the public's confidence in the independence, integrity, and impartiality of the judiciary, and must avoid impropriety and the appearance of impropriety. This rule applies to the judge's conduct inside and outside the courtroom.
When should lawyers report other lawyers under the RPC?
A lawyer having knowledge that another lawyer has committed a violation of the RPC that raises a substantial question as to that lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects should inform the appropriate professional authority. In Georgia, there is no disciplinary penalty for a violation of this rule.
When is withdrawal required?
Withdrawal is mandatory (after obtaining permission from the tribunal, if required by its rules) if: (i) the representation will result in violation of the RPC or other law; (ii) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or (iii) the lawyer is discharged.
A lawyer personally and substantially participated in a matter as an arbitrator. The lawyer must not subsequently represent a person in connection with the same matter as an attorney:
A lawyer must not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer, or arbitrator, unless all parties to the proceeding consent after disclosure
A lawyer works at a law firm. During that time, she represents a plaintiff in a personal injury case. No one else at the firm works on the case. The lawyer then moves to a new law firm, taking all of her cases with her. Under what circumstances may the lawyer's original firm subsequently represent one of the defendants in the same personal injury case?
When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm unless: (i) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and (ii) any lawyer remaining in the firm has information protected by RPC 1.6 (relating to confidentiality) and RPC 1.9(c) (relating to using or revealing information pertaining to the representation) that is material to the matter.
A lawyer who formerly represented Former Client in a matter may not thereafter represent Current Client adverse to Former Client in ____________________.
A lawyer who formerly represented a client in a matter may not thereafter represent another person in the same or a substantially related matter if that person's interests are materially adverse to those of the former client, unless the former client gives informed consent, confirmed in writing.
A lawyer may make an agreement with a client prospectively limiting the lawyer's liability for malpractice if: (1) the agreement is permitted by law; and (2) ____________________.
The client is represented by independent counsel in making the agreement.
When can a lawyer provide financial assistance to a client?
A lawyer generally must not provide financial assistance to a client in connection with pending or contemplated litigation. However, (i) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter (i.e., the lawyer and client may agree that if the client loses his case, he need not repay the funds); and (ii) a lawyer representing an indigent client can pay the client's court costs and litigation expenses.
When can a lawyer may an agreement acquiring movie rights about a client?
Prior to the conclusion of representation of a client, a lawyer must not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based, in substantial part, on information relating to the representation. Thus, if the portrayal is unrelated to the representation—or if the representation has ended—the agreement is not prohibited by the RPC.
In the course of his employment, an associate at a law firm commits an act that is a violation of the Rules of Professional Conduct. In which of the following situations would the associate's supervising partner NOT necessarily be subject to discipline for the associate's act?
A partner in a law firm, and a lawyer who individually or together with other lawyers has comparable managerial authority, must make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the RPC. A lawyer will be responsible for another lawyer's violation of the RPC if: (i) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or (ii) the lawyer is a partner or similar manager in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. However, there is no requirement that a partner or supervising lawyer discipline or otherwise punish the violating lawyer.
What conditions must be satisfied for a lawyer to undertake representation despite a concurrent conflict of interest?
(i) the lawyer reasonably believes that he can competently and diligently represent each affected client, despite the concurrent conflict; (ii) the representation is not prohibited by law; (iii) the representation does not involve the assertion of a claim by one client against another client who is represented by the lawyer in the same case pending before a court or other tribunal; and (iv) each affected client gives informed consent, confirmed in writing.
What is required to enter into a business transaction with a client?
A lawyer must not enter into a business transaction with a client unless: (i) the transaction and terms under which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner that can be reasonably understood by the client; (ii) the client is informed in writing of the desirability of seeking, and is given a reasonable chance to seek, the advice of independent legal counsel on the transaction; and (iii) the client understands the lawyer's role in the transaction, including whether the lawyer is representing the client, and the client gives informed consent in a signed writing. It is not required that the client actually seek advice from independent counsel. (Note that the rules regarding business transactions with clients do not apply to standard commercial transactions for products or services that the client markets to others.)
What happens if lawyer called as witness?
A lawyer ordinarily may not represent a client in litigation where the lawyer is likely to be a necessary witness. Note that this conflict is not waivable, i.e., the lawyer will not be allowed to continue the representation based on the client's informed consent. Thus, if an attorney representing a client at trial is likely to be a necessary witness, the attorney should refuse employment or, if he has already been retained, should withdraw from the case. There are three recognized exceptions to this prohibition: (i) where the testimony will relate solely to an uncontested issue; (ii) where the testimony will concern only the nature and value of legal services rendered to the client; and (iii) where withdrawal of the lawyer would cause substantial hardship to the client because of the distinctive value of the lawyer or firm to the case.
Under the Rules of Professional Conduct, a lawyer must not represent a client if there is a "____________________" that the representation of that client will be "____________________" by the lawyer's responsibilities to another client, a former client, or to a third person, or by the lawyer's own interests.
Significant risk; materially and adversely affected
What does a lawyer's duty of candor to a tribunal require?
Generally, a lawyer must not: (i) make a false statement of fact or law to a tribunal; (ii) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client; (iii) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or (iv) offer false evidence.
Generally, a lawyer also is prohibited from requesting that a person other than his client refrain from voluntarily giving certain information to the opposing party. When is it allowed though?
However, this is allowed when: (i) the person is an employee or other agent of a client and the information concerns a matter within the scope of the employment or agency, and (ii) the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information.
THIS SET IS OFTEN IN FOLDERS WITH...
Civil Procedure (Federal)
Contracts & Sales
Article 9 of the UCC
Civil Procedure (GA)
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