Term
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Definition
Court will apply the law in the jurisdiction where it sits.
If lawyer is licensed to practice in more than one state, state where lawyer primarily practices
If conduct has a predominant effect in a state, that state's law will apply |
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Term
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Definition
Practicing law in a jurisdiction where doing so violates the regulation of the legal profession of that jurisdiction
Assisting a person who is not a member of the bar in the performance of an activity that would constitute unauthorized practice |
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Term
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Definition
May not be false or misleading
Trade names are permitted
Name Lawyers Must be Active Members |
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Term
| Partnership with Lawypersons |
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Definition
| A lawyer may not be a partner with a nonlawyer if the partnership consists of practice of law |
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Term
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Definition
Lawyers must not share lawyer fees with nonlawyers
Exceptions: (1) pay to lawyer's estate; (2) including non-lawyer employees in a compensation retirement plan |
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Term
| Membership in a Legal Services Organization |
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Definition
A lawyer may serve as a director, officer, or member of a legal services organization
Even if organization represents interests adverse to lawyer's clients
BUT, cannot participate in decisions adverse to clients |
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Term
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Definition
| When a lawyer knows that a client's interests may materially benefit due to a decision in which the lawyer participates, the lawyer must disclose that fact to the reform organization |
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Term
| Responsibilities of a Supervisory Lawyer |
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Definition
Responsible if:
1. Lawyer orders or ratifies conduct
2. Lawyer knows of conduct but fails to take remedial action |
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Term
| Responsibilities of Subordinate Lawyer |
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Definition
| A subordinate lawyer does not violate the RPC if he acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty |
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Term
| Restrictions on right to practice |
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Definition
Must not participate in the offering or making of an employment agreement that limits ability to practice, unless:
1. Retirement or sale
2. Part of a settlement |
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Term
| Sale of Law Practice: Written Notice |
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Definition
Identity and description of purchaser
Client can object and retrieve files
Work will be transferred in 45 days w/o objection
Whether seller will withdraw |
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Term
| Sale of Law Practice: Fees |
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Definition
| The fees charged clients shall not be increased by reason of the sale except upon agreement of the client |
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Term
| Sale of Law Practice: Conditions of sale |
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Definition
| Can be conditioned on seller ceasing to engage in private practice in some particular area for a reasonable period within the geographic area |
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Term
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Definition
| A lawyer's communication with the public at large or a large segment of the population. |
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Term
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Definition
| Refers to individual contact with a a layperson, initiated by the lawyer that is designed to entice hire. |
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Term
| Advertising: 1st Amendment |
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Definition
Lawyer speech is protected by the first amendment.
But, speech that is false or misleading may be regulated
Stays may adopt prophylatic rules to prohibit solicitation for profit |
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Term
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Definition
1. Material misrepresentation or omission
2. False expectations
3. Compares quality
4. Specialties
5. Influence
6. Practicing lawyers
8. Certain endorsements |
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Term
| Requirements of Advertising |
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Definition
Record keeping
Identification as Advertisement (solicitations on envelope and inside)
Prerecorded television and radio |
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Term
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Definition
A lawyer must not seek fee-paying work by initiating personal or live contact with a prospective client
Key: pecuniary gain
Exception: personal, family, or professional relationship |
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Term
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Definition
A lawyer must not make contact with prospective clients who have expressed desire to be left alone
Also, cannot contact prospective clients where physical, emotional, or mental state prevents reasonable judgment |
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Term
| Prepaid Legal Service Plans |
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Definition
| A lawyer may participate in a group or prepaid legal service plan, even though the plan uses personal contacts and live telephone to persons who are not known to need legal services |
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Term
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Definition
Disability = lawyer must try and maintain normal client relationship
If client cannot adequately act in own interest, lawyer may take protective action |
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Term
| Current Conflict of Interest |
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Definition
1. Representation will be directly adverse to other client
2. Significant risk representation will be materially limited
3. Related to another lawyer as parent, child, sibling, spouse, or domestic partner |
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Term
| Representation of Client with Current Conflict of Interest |
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Definition
1. Lawyer reasonably believes he can provide competent and diligent representation
2. representation is not prohibited by law
3. does not obligate lawyer to contend for one client against other client
4. Informed, written consent |
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Term
| Prohibited Transactions: Financial Transaction |
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Definition
1. Terms are fair and reasonable to client and fully disclosed
2. Client is given reasonable opportunity to seek advice of independent counsel
4. Client consents in writing |
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Term
| Prohibited Transactions: Improper Use of Information Adverse to Client |
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Definition
| A lawyer must not use information relating to representation of a client to the disadvantage of the client unless client consents in writing after consultation |
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Term
| Prohibited Transactions: Designating oneself as a beneficiary |
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Definition
| A lawyer must not prepare an instrument giving the lawyer or a person related to the lawyer a substantial gift from a client, except where client is related to donee |
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Term
| Prohibited Transactions: Media Rights |
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Definition
| Prior to the conclusion of representation by a client, a lawyer must not make an agreement giving the lawyer literary or media rights for information relating to the information |
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Term
| Prohibited Transactions: Financial Assistance to Client |
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Definition
A lawyer must not provide financial assistance to a client in connection with litigation
CAN ADVANCE COSTS if client remains liable for such expenses based on ability to pay |
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Term
| Compensation from Party Other than Client |
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Definition
1. Client consents after consultation
2. There is no interference with lawyer's independence of professional judgment
3. Information relating to representation of a client is protected |
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Term
| Aggregate Settlement or Agreement |
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Definition
Issue: lawyer represents two or more clients
Cannot participate in aggregate plea or settlement unless each client consents after consultation of amounts/pleas involved |
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Term
| Limiting Liability for Malpractice |
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Definition
A lawyer must not make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless permitted by law
Client must be independently represented in agreement |
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Term
| Settling Claim with Unrepresented or Former Client |
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Definition
| 1. Must advise IN WRITING that independent representation is appropriate |
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Term
| Proprietary Interest in Litigation |
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Definition
Lawyer may be granted a lien to secure fees or expenses
Contingent fee in a civil case |
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Term
| Conflict of Interest: Former Client |
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Definition
A lawyer who formerly represented a client in a matter may not thereafter represent another person in the same or substantially related matter if that person's interests are materially adverse
UNLESS each client consents after consultation |
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Term
| Conflict of Interest: Former Firm |
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Definition
1. Interests are materially adverse to that person
2. About whom the lawyer acquired information protected by RPC 1.6 |
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Term
| Former Client: Using or Revealing Information |
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Definition
CANNOT Use information relating to representation to disadvantage of former client
Exceptions
See 1.6
Generally known |
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Term
| Conflict of Interest: Prospective Client |
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Definition
A person who discussed FORMING lawyer client relationship
Lawyer cannot represent if (1) materially adverse (2) same or substantially related matter and (3) lawyer received information that could be harmful to that person |
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Term
Conflict of Interest: Prospective Client
(Exception) |
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Definition
1. Both the affected client and the prospective client give informed consent
2. Disqualified lawyer took reasonable measures to avoid exposure to disqualifying information that was not reasonably necessary AND
2. Screening |
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Term
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Definition
If an attorney is likely to be a necessary witness, the attorney should refuse employment or withdraw
An attorney can act as an advocate if another member of the firm handles representation
Exceptions: uncontested matters; nature and value of services; or substantial hardship |
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Term
| Lawyer Represents Organization |
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Definition
| A lawyer employed or retained to represent an organization represents the organization acting through its duly authorized constitutents |
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Term
| Lawyer must act in best interest of organization |
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Definition
| IF, Lawyer knows officer, employee, or other person associated with the organization is engaged in activity that is likely to substantially injure organization, lawyer must proceed as reasonably necessary. |
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Term
| Lawyer's Responsibility Based on Action of Organization's Highest Authority |
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Definition
| When engages in activity that clearly is a violation of law and is likely to result in substantial injury to organization, lawyer must resign. |
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Term
| Organizations: Multiple Representations Permissible |
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Definition
| A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders, or constituents subject to 1.7. |
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Term
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Definition
| When lawyers are associated in a firm, none of them may knowingly represent a client when any one of them practicing alone would be prohibited from doing so. |
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Term
| Imputation: Termination with Firm |
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Definition
Firm is not prohibited from representing a person whose interests are materially adverse to client of former lawyer, unless:
1. Matter is same or substantially related;
2. any lawyer remaining in the firm has information protected by 1.7. |
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Term
| Prior Public Legal Employment Creates a Conflict of Interest |
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Definition
| A lawyer must not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee. |
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Term
| Prior Public Legal Employment: Confidentiality |
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Definition
| A lawyer having information that the lawyer knows is confidential government information about a person, acquired when the lawyer was a public or employee, may not represent a client whose interests are adverse. |
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Term
| Prohibited Actions of Public Employee |
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Definition
Use Public position to obtain or attempt to obtain a special advantage for self or client
Use public position to influence or attempt to influence tribunal
Negotiate for private employment with any person who is involved as a party
(law clerk exception) |
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Term
| Former Judge, Arbitrator, or Law Clerk |
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Definition
A lawyer must not represent anyone in connection with a matter in which the lawyer participated personally and substantially unless all parties consent.
Firm can screen |
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Term
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Definition
A lawyer may not enter into an agreement for or collect a clearly excessive fee.
Factors: 1. time and labor required 2. skill 3. fee customary in location |
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Term
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Definition
Dependent on successful resolution
Must be in plain, simple writing.
24 hour right of rescission
Exceptions: (1) criminal or (2) AMOUNT of domestic relations |
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Term
| Referral fees permitted in Oregon |
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Definition
1. Client consents
2. The total fee does not clearly exceed reasonable compensation for all services provided |
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Term
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Definition
| Lawyer may accept gifts, but may not suggest that be given |
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Term
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Definition
Competence representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation
Diligence too |
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Term
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Definition
| A lawyer must keep a client reasonably informed about the status of a matter and comply with reasonable requests for information. |
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Term
| Attorney Client Privilege |
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Definition
Allows a client to refuse to testify and prevent the attorney from testifying in court about communications between the two.
Limited to communications between the parties.
Conveyance to a third party destroys privilege. |
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Term
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Definition
Applies to all information about a client relating to the representation.
Exceptions:
1. Consent
2. Prevent imminent death or substantial bodily harm
3. Required by final court order, ethics rules, or law
4. Services at issue
5. Law Practice Sale Discussions |
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Term
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Definition
A lawyer must hold property of clients or third persons that is in the lawyer's possession separate from lawyer's property.
Funds- trust account
Property- identify and safeguard |
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Term
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Definition
1. Recordkeeping
2. Keep Client Informed
3. Remittance of Funds and Property
4. Dispute?
Segregate non-disputed portions, hold disputed portion in trust |
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Term
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Definition
Both the lawyer and the client are responsible for determining the scope of the representation that the lawyer will engage in on behalf of client
Client has right to discuss means
Settlement, affirmative defense, plea, jury, testify, appeal |
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Term
| Assisting client in criminal or fraud |
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Definition
Lawyer may discuss propose course with client and explain consequences
Lawyer cannot recommend illegal conduct
Lawyer must tell client that he cannot aid in crime or fraud
If client uses services for illegal conduct, lawyer must withdraw
Lawyer can make good faith test of law's validity |
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Term
| Communication with Represented Person Impermissible |
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Definition
A lawyer must not communicate about the subject representation with a person he knows to be represented by counsel unless counsel has consented.
Does not apply to matters outside of litigation |
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Term
| Communication with Corporate Persons |
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Definition
A lawyer must get the consent of the organization's counsel before communicating with
1. Managerial responsibility
2. Conduct can be imputed to organization
3. Admission by the organization
Consent is generally not needed for a former employee |
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Term
| Communication with unrepresented persons |
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Definition
Lawyer must not state or imply that he is disintered.
If unrepresented person is confused, must make reasonable efforts to correct misunderstanding. |
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Term
| Respect for third persons |
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Definition
| Lawyer must not use means that have no substantial purpose other than to embarrass, delay, harass, or burden a third person |
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Term
| Truthfulness in Statements to Others |
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Definition
| A lawyer must not knowingly: (1) make a false statement of material fact or law to a third person; (2) fail to disclose a material fact when disclosure is necessary to avoid crime or fraud |
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Term
| Meritorious Claims and Contentions |
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Definition
Must be a basis in law and fact
Lawyer for defendant in criminal proceeding may require that EVERY ELEMENT BE ESTABLISHED |
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Term
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Definition
Cant Knowingly:
1. make a false statement of material fact
2. fail to disclose a material fact re: crime fraud
3. Fail to disclose contrary legal authority
4. Offer false evidence |
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Term
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Definition
A lawyer must refuse to offer evidence that the lawyer knows is false regardless of client's wishes
May refuse to offer evidence that lawyer reasonably believes is false |
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Term
| False evidence + Criminal Clients |
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Definition
Issue: Criminal defendants have a right to testify. What result re: known, false testimony?
Steps:
1. First try and disuade
2. Seek withdrawal
3. Disclose the matter to court |
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Term
| False evidence + civil clients |
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Definition
Known false evidence, lawyer MUST NOT call witness
If later learns perjury occurred, lawyer must take remedial actions |
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Term
| Fairness to opposing party |
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Definition
| Cannot obstruct access to evidence, falsify evidence, disobey an obligation, make frivolous discovery requests, advise or cause a person to leave jurisdiction, threaten criminal prosecution |
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Term
| Threat of criminal prosecution |
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Definition
| OK, if purpose is to compel or induce the person threatened to take reasonable action to make good wrong |
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Term
| Avoiding improper contact with jurors |
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Definition
| Lawyer must not: (1) seek to influence a fact finder; (2) communicate ex parte with fact finder; (3) engage in conduct intended to disrupt trial. |
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Term
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Definition
| A lawyer must promptly reveal to the court improper conduct by a venireman or a juror |
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Term
| Advocate in nonadjudicative proceeding |
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Definition
| A lawyer representing a client before a legislative or administrative tribunal in a nonadjudicative proceeding must disclose that the appearance is in a representative capacity. |
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Term
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Definition
| A lawyer participating in a matter must not make an extra judicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding. |
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Term
| Trial Publicity: exceptions |
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Definition
1. Claim involved
2. Information contained in public record
3. Investigation in progress
4. scheduling or result
5. a request for assistance re: evidence
6. A warning of danger
7. Information necessary to aid in investigation |
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Term
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Definition
1. Representation will result in violation of RPC
2. Lawyer's physical or mental condition materially impairs ability to practice
3. Lawyer is discharged |
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Term
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Definition
1. Client persists in crime fraud
2. Client uses services for crime fraud
3. Fundamental disagreement
4. Client fails substantially to fill obligations
5. Unreasonable financial burden on lawyer
6. Other good cause |
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Term
| Protecting Clients Interests re: Termination |
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Definition
Take steps reasonably practicable to protect client's interests
Provide time to hire other counsel, surrender property, and refunding any advance that has not been earned |
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Term
| Statements re: Judicial and Legal Officials |
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Definition
| A lawyer must not make a statement that the lawyer knows to be false or with reckless disregard for its truth. |
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Term
| General guidelines for misconduct |
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Definition
| Act in a manner that promotes public confidence in the integrity and efficiency of the legal system and profession |
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Term
| Role of public prosecutor |
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Definition
Refrain from prosecuting a charge not supported by probable cause
Make timely disclosure to defense of all exculpatory information |
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Term
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Definition
A lawyer having KNOWLEDGE that another lawyer committed a violation that raises a substantial question as to honesty, trustworthiness, or fitness, must inform.
Exceptions: lawyer state assistance committee; pfl; loss protection programs |
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