Terms in this set (60)
Types of discipline for "must" rules
(1) Private or public reprimand/censure; (2) suspension for finite period; (3) disbarment
Requirements on you when you apply to the bar
(1) Duty to fully cooperate; (2) truth and full disclosure
What is your duty when you know another lawyer is violating the rules?
(1) Report what you know (unless it is protected as a confidence or privilege); and (2) Must be available to testify against the lawyer (cannot report anonymously)
When can you practice temporarily in another state?
(1) Associate with an active local lawyer; (2) obtain special permission called pro hac vice; (3) mediation or arbitration arising out of home-state practice; (4) anything reasonably related to lawyer's home-state practice (i.e., negotiate terms for real estate deal)
When can you practice permanently in another state?
(1) Lawyer employed by her only client with many offices (Macy's corporate atty); (2) legal services authorized by federal or local law (atty admitted to patent practice)
When is a supervisor responsible for acts of a subordinate?
(1) Supervisor knew of misconduct at a time when consequences could have been avoided or mitigated and the lawyer fails to take reasonable remedial action; OR (2) if the violation raises a substantial question as to the supervisor's honesty or character and fitness to practice law AND supervisor told you to do it (or ratified it)
When is a subordinate not responsible for his or her own acts?
(1) Subordinate was told to do it; and (2) it is arguable that you thought it was okay to do
What activities constitute the practice of law and require a license?
(1) appearances in judicial proceedings and depositions; (2) negotiating settlements; and (3) drafting documents that effect substantial legal rights
What activities do not constitute practice of law and do not require a license?
(1) Interviewing clients or witnesses; (2) filling in forms; and (3) writing legal memos
You cannot divide your fee with a nonlawyer. Exceptions:
(1) Heirs of a deceased attorney; (2) employees in the form of salaries and as part of pension or bonus plans; and (3) lawyer may share court-awarded legal fees with a nonprofit organization that employed, retained or recommended employment of the lawyer in the matter
What constitutes a law firm?
Lawyers who frequently consult, work jointly, and have access to each other's files
Non-compete agreements are invalid, as applied to attorneys. Exceptions:
(1) When a lawyer retires from a firm and receives benefits; or (2) lawyer withdraws from the firm
Lawyers have general freedom to reject cases, but when SHOULD they take the case?
(1) The "defenseless or oppressed"; (2) pro bono
Lawyers have general freedom to reject cases, but when MUST they take the case?
Court appointments. However, you SHOULD reject a case if the appointment would create an unreasonable financial burden and you MUST reject a case in certain circumstances: (1) physical or mental inability to represent someone; (2) conflict of interest; (3) strong feelings or bias; (4) frivolous claim or frivolous defense/motion; and (5) incompetence
When can incompetence be cured?
ALE: (1) association; (2) learn it in time; or (3) emergency
What constitutes pro bono work?
(1) Donating money to bar organizations; (2) reducing fees to clients; (3) CLE teaching; and (4) providing legal services for civil rights matters
Important decisions belonging to the client
Whether to (1) sue, (2) settle, (3) testify, (4) plea, (5) jury/bench trial, and (6) appeal
Procedural and tactical decisions belonging to the attorney
(1) Which court to file in; (2) whether or not to take depositions; (3) discovery: whether and what to seek/produce; (4) whether to request or grant a continuance
Procedural and tactical decisions belonging to the client
(1) Case expenses and (2) third person's well-being (i.e., whether a child testifies)
When MUST you withdraw from a case?
(1) Duty to reject (a) physical or mental inability to represent someone, (b) conflict of interest, (c) strong feelings or bias, (d) frivolous defense/motion, and (e) incompetence; (2) client fraud and refusal to rectify the fraud; (3) client insists on violation of a law or an ethical provision; and (4) client has begun an illegal course of action
When MAY you withdraw from a case?
(1) Any reason where there's no material harm to client; (2) client consents; or (3) where one of these conditions is met: (a) client persists in criminal or fraudulent conduct (not mandatory if client stops and rectifies), (b) client has used atty's services to commit past crime or fraud, (c) client's objective is repugnant or imprudent, (d) client breaks promise to lawyer to pay the fee, (e) unreasonable financial hardship for atty's practice, or (f) client will not cooperate
If you do withdraw, what is your duty to the client
Cannot abandon the client: (1) dissuade the client; (2) request permission to withdraw; (3) do as instructed; and (4) give client reasonable notice to get a new lawyer
Contingent fees may not be used in criminal or domestic relations cases, except for:
Past due support payments. They are considered debts and therefore okay
No fee splitting or referral fees with other lawyers outside of firm, except when:
(1) You work together; (2) with the client's written informed consent that discloses the share each lawyer will get; (3) paid proportionally to work done (or some different proportion if each lawyer assumes joint responsibility for the matter); AND (4) one reasonable fee in total
When are referral agreements okay between lawyers or a lawyer and a non-lawyer?
Reciprocal referral agreement, but (1) arrangement cannot be exclusive; (2) the referred client must be told of the arrangement; (3) the agreement must not interfere with the lawyer's professional judgment as to making referrals; AND (4) the agreement should not be of indefinite duration and should be reviewed periodically
Requirements a lawyer must abide by when selling or buying a practice:
(1) Entire practice or entire field of practice must be sold; (2) seller must exercise competence in identifying a purchaser who is qualified to undertake the representation; (3) written notice must be given to the clients regarding the sale, right to get their files back, and right to get new counsel; (4) seller must cease to engage in that field of law; AND (5) purchaser must take all client matters, not just the good cases
What is the work product doctrine?
Material prepared by a lawyer for litigation is immune from discovery unless the other side shows (1) a substantial need for the material and (2) an inability to gather the material without undue hardship.
What is informed consent?
The client agrees to the proposed course of conduct after the lawyer sufficiently explains material risks and reasonable alternatives
What are the exceptions to privilege?
(1) Waived by client; (2) client seeks atty's service to engage in or assist in future crime/fraud; (3) communication is relevant to issue of breach of atty-client relationship; and (4) in civil cases between parties who were formerly joint clients of the atty
What are the exceptions to confidentiality?
(1) Waived by client or information becomes public; (2) required by law or court order; (3) informed consent; (4) implied authority to disclose to further the representation; (5) to obtain legal or ethical advice; (6) to prevent reasonably certain death or substantial bodily harm; and (7) to prevent substantial financial harm or fraud if the client is or has used the lawyer's services in the matter
How can most conflict of interests be cured?
(1) lawyer fully explains risks and alternatives and obtains informed consent and (2) the client agrees in writing
Attys may not give loans to clients with pending or contemplated litigation; no de minimis exceptions. Except:
Advancing the costs of litigation
Lawyer cannot be a witness, except:
(1) An uncontested matter; (2) legal fees; or (3) if substantial hardship to the client otherwise
Lawyers cannot acquire an interest in the case, except:
(1) Contingent fees or (2) security liens
When can a lawyer enter into a business deal with a client
Ordinary transactions, as long as the terms are fair. This requires in writing: (1) full disclosure of terms; (2) advice to get independent legal counsel; (3) informed consent; and (4) agreement in writing
No multiple clients where "potential conflict" unless:
(1) There's a reasonable belief of no adverse effect AND (2) client gives written informed consent
Atty can be paid by a third person, but requires:
(1) Written informed consent from client and (2) client confidences must be kept
The elements of "screen"
(1) Written disclosure to conflict; (2) no fee to the screened off attorney; and (3) no working on, discussing the case, or access to the file by the screened off attorney
Civil liability for malpractice requires:
(1) Money loss and (2) causation ("but for")
A lawyer cannot limit his or her malpractice liability through agreement, unless
The lawyer explained to the client that he or she is not competent to take the case and the client insists on his or her representation anyway
What to do if your client is currently committing fraud or perjury
Lawyer must seek to withdraw from the matter and if such effort is denied OR if withdrawal does not resolve the problem, then the lawyer may disclose the fraud to the judge
What to do if your client has committed fraud or perjury in the past
Secret cannot be disclosed, BUT, the lawyer has the duty to rectify false testimony until the end of the proceedings, appeals and all
What are the two types of retainers and what is the difference?
(1) Advance on fees: belongs to the client, goes into the trust account, and any unearned portion must be returned; (2) Availability retainer: belongs to the atty and goes into lawyer's account
Rules for advertisements
(1) Cannot be false or misleading; (2) must include the name and address of at least one lawyer or law firm responsible for its content; (3) cannot create unjustified expectations; (4) cannot have unsubstantiated comparisons; and (5) cannot imply results by improper means
Whose name can appear in a letterhead?
(1) Deceased attorneys and (2) temporarily bad or good lawyer's names. (Attys who are disbarred or appointed to a political position may not appear in letterhead)
What type of solicitation is banned?
(1) In person, (2) live telephone; or (3) real-time electronic contact (IM). Exceptions: family, close, personal or previous relationship.
What kind of solicitation is permissible?
(1) Targeted direct mail labeled "advertisement"; (2) group and prepaid legal services; (3) educational seminars; (4) a case in which no fee will be taken; and (5) close friends, relatives, present clients or former clients
When can a lawyer advertise that he or she is a specialist?
(1) Passed a separate bar (i.e., patent or admiralty); or (2) certified as a specialist by an ABA approved organization
When can you advise a witness that they don't have to voluntarily testify?
(1) The witness is related to or is an agent of the party that the lawyer represents; AND (2) the person will not be harmed by not volunteering
A lawyer may communicate with a juror after the completion of a trial, except when:
(1) Local law or government order prohibits it; (2) the juror tells you they don't want to talk to you; or (3) the purpose of the contact is to harass or coerce the juror
General rule for lawyers regarding publicity
Lawyer must not make a public statement outside the courtroom that the lawyer reasonably should know would have a substantial likelihood of materially prejudicing the case
Judges can accept and not report books, honoraria and ordinary social gifts, so long as:
(1) It's not excessive for the purpose and relationship; (2) not reasonably perceived to influence the judge; and (3) no gifts from persons likely to appear before the judge
Judge's general duty
With respect to cases or issues that are likely to come before the court, a judge must not make pledges, promises or commitments that are inconsistent with the impartial performance of the duties of the office when the judges conduct creates a reasoable perception the CJC has been violated or that otherwise reflects adversely on the judge's honesty, impartiality, temperament of fitness as a judge
When must a judge disqualify himself (unless all parties remit)?
(1) When judge has perosnal knowledge of possibly disputed facts; (2) if former partner or close relative is a party, atty, or witness (doesn't include cousin, does include spouse's family); (3) judge has an economic interest in the matter, except de minimis, mutual funds or securities held by a charitable organization; and (4) when the judge knows the party or atty has contributed more than the jurisdiction's specified amount to his or her election campaign committee
When can parties not remit a judge's disqualification?
When the disqualification is based on the judge's personal bias to the atty or party
When is the disqualification requirement for judges overridden?
In an emergency situation, necessity overrides the disqualification
Exceptions to ex parte communications:
(1) When expressly authorized by law; (2) emergency; (3) mediation or settlement, but only with consent of parties; (4) de minimis communications
When can a judge be compensated for extra-judicial activities?
(1) Serve as an officer, director or trustee for a non-profit organization (public law school: yes; any private school: yes; any other public school: no); (2) teaching, writing or speaking. May not be on board of a for-profit organization
Judges cannot practice law. Exceptions:
(1) Pro se and (2) free legal advice to family members
If judge is seeking an government office, must the judge retire from the bench?
If running for nonjudicial ELECTIVE office, then probably must resign from bench (if law requires); if APPOINTED to office, need not resign judgeship