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PROFESSIONAL RESPONSIBILITY: PRACTICE QUESTIONS

Terms in this set (68)

What is the minimum level of knowledge needed to trigger the duty to report misconduct?
A firm belief
Why are lawyers forced to report another lawyer's misconduct?
Lawyers are in the best position to observe professional misconduct and to assist in the profession in sanctioning it; the hope that lawyers will comply with reporting obligation because they are ethical people who want to serve their client/the public well
Comment to R. 8.3
Do the RoPC provide a basis of liability in civil liability?
No
To whom do attorneys owe duties?
-Clients
-Prospective Clients
-Client's beneficiaries
-Those who rely on the lawyers's legal services/opinion letters
How do the Model Rules suggest the authority to make decisions should be allocated between an attorney and a client?
Model Rule 1.2
What is the right that defines a client's authority to make his own decisions?
The right of autonomy
Under what circumstances does an attorney have authority to make decisions for the client?
Express authority
Based on the Model Rules, the attorney for a minor should advocate for...?
The child's desired objectives; if the lawyer can't determine the objectives, he can consult with others who might help clarify OR ask the court to appoint a guardian ad litem
What factors does the court suggest a lawyer and the court should consider to decide whether to respect the minor's decision-making autonomy?
-Capacity of the client
-Seriousness of the decision @ issue
-The gravity of risk involved
-Ease with which decisions can be changed if it ends up being a mistake
Are there conflicts to which a client cannot consent?
Rule 1.7: When there's more than one client in a capital/governmental case
Public policy for conflicts of interest?
Attorneys should have the client's undivided loyalty to advocate; conflicts of interest would show unfaithful, undefeated, and divided in their allegiance
Joint v. Concurrent representation
-Joint representation: when a L represents differing interests
-Concurrent representation: when the attorney represents more than one person @ the same time in the same matter
When can an attorney represent clients jointly?
When the client gives consent in writing
Can a client consent to representation by an attorney with a conflict of interest?
Yes, if there's consent in writing
When examining court records, L discovers that client has been convicted of another crime in the past which would make him subject to a higher sentence under applicable statute; the conviction record is a public record available to the prosecutor and public. The information related to the conviction is Confidential or Privileged?
Confidential
L represents a defendant accused of robbery. While preparing for the case, L talks to a witness who tells L that he remembers seeing the client near the scene of the robbery on the night in question; no one else has talked to the L and the prosecutor is not likely to find the witness before the trial date; the info provided is C or P?
Confidential
A L is at a bar celebrating the fact that her client was acquitted in a notorious criminal trial. A stranger sitting nearby asks her "now that the case is over, your client can't be tried again because of double jeopardy; so, tell me, did he do it?"; the L wants to make sure she answers correctly. That answer is...?
"I can't tell you because of confidentiality"
L represents client who has been accused of money laundering; with the info provided by client and with client's consent, L hires accountant to examine client's financial records. In the process, L discloses the info to accountant; using that info and financial records, accountant prepares a report which L adds to client's case file; the info client gave to the attorney is C or P?
Confidential and Privileged
When L discloses to accountant the info provided to him by the client, the info is?
Still considered confidential and privileged
Can an attorney go to a location to find evidence?
Yes
Can an attorney ask someone to locate evidence?
Yes
When researching for background information regarding a criminal case, L finds an old newspaper story reporting the client was suspected of having committed perjury in an unrelated civil fraud case. The info is C or P?
-Not privileged because the source isn't the client
-It's confidential if it's not generally known, which depends on how old and memorable the story is
Elements for successive conflicts of interest
1) must have been a former client
2) the new representation must be materially adverse to the former client
3) it must be the same matter that the first representation took place
What is the hot potato doctrine?
When an attorney drops a current client for a new client because it's more lucrative; not allowed
Is the hot potato doctrine subject to civil liability?
Yes
What are screening mechanisms and how must they be implemented?
-Ways in which a firm can insulate against the flow of confidential info from the infected attorney to other members of the firm
-can be done by the size of the firm, how it's divided, passwords, etc.
Public policy for regulating attorney fees?
L should abide by a duty to place professional responsibility above pecuniary gain
What is the standard upon which the regulation of fees is based? What's the standard?
-Model Rule 1.5
-Standard is reasonableness
How to determine if the fee charged is reasonable?
What's reasonable in the market of the areas that the attorney regularly billed in that area
What is a contingency fee?
What the attorney will recover for their services if the client wins; typically a percentage but is contingent on the attorney getting a favorable outcome for the client
How to determine if a contingency fee is unreasonable
Based on the determination of whether it's "reasonable" or "excessive"
Where are contingency fees not allowed?
Criminal cases and domestic relations cases
How do courts determine if a flat fee is unreasonable?
If it's an expression of value for services that aren't provided
Can flat fees be non-refundable?
Depends on jurisdiction; if J has held that non-refundable flat fees are per se unreasonable because it would limit the client's rights to terminate ACR
What's the difference between commingling and misappropriation?
-Commingling: the practice of mixing a client's money with the attorney's personal funds
-Misappropriation: the unlawful conversion and use of a client's funds by the licensee
What's a flat fee?
A predetermined fee amount for a predetermined task
Can an attorney allow a client with financial problems to live in an unoccupied house the attorney owns?
No
What's the difference between split fees and referral fees? How do the Rules regulate referral fees?
-Split fee: fees that are shared by attorneys from different firms who work on a case together
-Referral fee: money paid by an attorney to someone else for sending a case for them/recommending the L
-Model Rule 7.2(b): forbids referral fees
According to Rule 1.8(e), what happens if an attorney advances court costs and litigation expenses but forgets to specify that the repayment of that advance will be contingent upon recovery in the case?
The attorney is obligated to go after the client for reimbursement of the expenses the attorney advanced
Different tests courts use to determine extent of ACP in the context of representing entity clients. Which one protects most vs. least amount of info?
-MOST protection (Upjohn): communication with all employees if privileged
-MID protection (Harper/Row): communication is privileged if it's related to the scope of employment of the person speaking to the attorney
-LEAST protection (Consolidation co.): only affords privilege of communications by the decision makes of the company & small group of their consultants
How is exception to duty of confidentiality in R. 1.13 different from exceptions in R. 1.6?
-R. 1.13: allows disclosure to protect the client
-R. 1.6: allows disclosure to protect the public
Assume that just days before a criminal trial, a client tells his L for the first time that the client had been with his gf on the night of the crime and that she can testify to that fact; the L doubts the gf is telling the truth. Can the L refuse to use the girlfriend as a witness?
It's permissible for the L to call the gf as a witness R. 3.3(a)(3)
Does R. 3.3 impose a duty to prevent the use of false evidence or to remedy the effect of the use of false evidence?
Both. Text suggests 2 different instances in which there's a duty to prevent & 2 in which there's a duty to remedy
What can a L do if a client expresses a desire to commit perjury in an upcoming trial?
-Try to persuade the client not to commit perjury
-Give client legal advice on the consequences/risks related to committing perjury
-BUT, L can't just withdrawal... needs permission from court to do so
When does a duty to take "remedial measures" begin?
Some courts say as soon as the L has a firm factual basis to believe the conditions that give rise to the duty are met; others say as soon as there's a good faith determination
When does the duty to take remedial measures end?
-Duty lasts until the end of the proceeding; so until the time for appeal of a judgment as expired/when final judgment has been affirmed on appeal
-If it's done after that time, it's a breach of Confidentiality
Assume client wants to testify; L doubts he's telling the truth. can L refuse to use the client as a witness?
The L can't refuse to use the client as a witness, but he CAN refuse to let the gf testify
What is false inference?
it's an objectively wrong finding of fact derived from evidence that's objectively correct or true
Are criminal defense attorneys allowed to lead the jury to believe false inferences through the cross examination of witnesses that are telling the truth?
Yes, in adversary proceedings but not in ex parte ones
What aspects of a prosecutor's discretion does Model Rule 3.8 limit?
a) when to bring up charges against D
b) how to investigate/obtain evidence of a possible crime
c) the ability to decide against whom to file charges
d) how to conduct a preliminary hearing
e) how to communicate with the press
f) not mentioned in the rules, but granting/denying immunity
What do courts mean when they say a prosecutor is a minister of justice? What are the duties of a minister of justice?
The prosecutor's goal should not be just to win the case, but to make sure that due process is protected; also that the prosecutor must ensure the D's rights are protected
Why are prosecutors granted such broad prosecutorial discretion?
Because without discretion the criminal justice system would come to a halt; needing higher authority approval for every decision would take too much time
At what point is it likely that absolute immunity from civil liability begins to protect the prosecutor?
When the D is indicted
What source of regulation can. be used to justify imposing sanctions on a prosecutor for not disclosing to the D before negotiation a plea that the victim/key witness won't be able to testify @ trial
The Rules of Professional Responsibility
Where in the RoPR can a prosecutor find the limits of proper argument during trial and summation in a criminal trial?
Model Rule 3.4
Which of the following would subject a L to discipline under Model Rules for improper arguments?
a) appealing to racial prejudice
b) comments denigrating defense counsel
c) calling a witness a liar
d) arguing that police officers have nothing to gain by lying on the stand
e) arguing based on fact not in evidence
f) commenting that defense had a chance to present evidence in favor of his client's position but didn't
g) commenting that the evidence presented by the D was unbelievable
...
What sanctions can be applied in cases of improper conduct by a prosecutor?
a. Disbarment
b. Suspension
Which of the following would constitute an "improper motive" to file a complaint or motion?
-to cause a delay in complying with an obligation
-to harass a person by causing them to incur expenses
What rules helps determine if an attorney can destroy evidence, assuming there's no cause of action pending/soon to be filed?
Model Rule 3.4
Which one of the following is attorney allowed to do in preparation for a deposition?

a. Suggest ways to deliver the story convincingly, clearly or eloquently
b. Help a client remember the client's story
c. Discuss the role of the witness
d. Discuss effective courtroom demeanor
e. Discuss witness's recollection and probable testimony
f. Reveal to witness other testimony or evidence that will be presented
g. Discuss the palpability of law to the events in issue
h. Review documents or other physical evidence that may be introduced
i. Discuss probable lines of hostile cross-examination
j. Suggest choice of words that might be employed to make the witness's meaning clear.
all of the above
In preparation for a deposition, the client says to the attorney that he doesn't remember the answer to a particular question they both know the other side is likely to ask. Can the attorney remind the client of the correct answer?
Yes, because an attorney can help a witness recall the details of answers to questions in preparation for the testimony
During the deposition, the client says "I don't remember" in answer to a questions that the attorney has discussed with the client prior to the deposition; must the attorney do something at this point?
Yes, the attorney will have to determine if the client is telling the truth or committing perjury, in which case the attorney will have to take measures to address the perjury
What do rules like Rule 11 of the Federal Rules of Civil Procedure require?
-the facts alleged in the complaint be well grounded in fact
-the complaint is warranted by existing law or a good faith argument of the extension, modification, or reversal of law
Assume an attorney has determined that there's an old case in the jurisdiction that can be used persuasively in an argument against his client; does the attorney have a duty to disclose this case to the opposing party?
Yes, because Ls have a duty to the courts to disclose ad verse legal authority in the controlling jurisdiction only if the opposing side hasn't disclosed it
Client retained Attorney to represent her in a complex business transaction. Client wanted to dissolve her corporation of ten years, but her partner did not. The unionized employees of the corporation also protested the dissolution. Due to the complex situation, Attorney informed Client that Attorney would take her case, as long as Client would pay an estimated 50% of Attorney's legal fee in advance. Attorney estimated the total charges to be at least $10,000, and demanded that Client pay $5,000 up front. Client did not have the cash readily available and, as a result, Client decided to go to another attorney. Is Attorney subject to discipline?
No, because attorney did not violate any duties to the client.
How long does the duty of confidentiality last?
Forever
What is successive representation?
When an attorney represents a client concurrently and there's a former client who claims their interests are affected by the actions taken with the current client
Is there a duty to disclose exculpatory evidence?
-Yes, even though it's favorable to the other side
-Evidence is material if it's great enough to undermine the confidence of the trial
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