Term
| character and fitness: policy |
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Definition
-protect clients
-safeguard administration of justice
-protect profession from scumbags
-NY: ensure applicants are honest, trustworthy, diligent, and reliable |
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Term
| character and fitness: standard |
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Definition
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Term
| character and fitness: prompting investigation |
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Definition
-misrepresentation on law school app
-cheating/plagarism
-discrepancies between school and bar apps
-facebook posts
-acts of dishonesty/fraud
-conduct showing drug abuse
-minor unlawful conduct |
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Term
|
Definition
-applicant for admissions SHALL NOT:
(a) knowingly make a false statement of material fact; or
(b) fail to disclose a fact necessary to correct a misapprehension or knowingly fail to respond to a lawful demand for info (i.e., bar application)
-duty to correct after the fact
-can plead 5th, but must disclose that's why refusing to answer
-NY: addiction/mental health not grounds for denial |
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Term
| character and fitness: mitigating circumstances |
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Definition
| age, time lapse, seriousness of conduct, cumulative effect [pattern, extended time], rehabilitation, positive social contributions, candor in the admissions process |
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Term
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Definition
-written complaint filed w/ committee (one in each judicial district) --> committee investigates
-minor misconduct: letter, caution, or reprimand
-major:sanctions, public reprimand, suspension, disbarment |
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Term
| 8.5: authority to discipline |
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Definition
-place of conduct does NOT matter
-NO double jeopardy prohibition |
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Term
| 8.4: grounds for discipline |
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Definition
-violations of the rules
-other misconduct: illegal conduct (NY)/criminal act (model) that adversely reflects on lawyer's honesty, trustworthiness, or fitness |
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Term
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Definition
| must report violations of the rules that raise SUBSTANTIAL question to lawyer's honesty, trustworthiness, or fitness |
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Term
8.3: whistle blower duty
-SUBSTANTIAL- |
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Definition
| how serious conduct is (NOT amount of evidence) |
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Term
8.3: whistle blower duty
-KNOWLEDGE- |
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Definition
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Term
|
Definition
-must ensure subordinate lawyers conform to the rules
-can demonstrate w/ ethics dep't, internal rules and procedures
-dependent on level of experience (less experience requires more oversight) |
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Term
5.1: supervisor's duty
-RESPONSIBLE IF- |
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Definition
-orders conduct
-knows but fails to correct
-NY: should have known at a time when conduct could have been corrected |
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Term
| 5.2: subordinate responsibility |
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Definition
-all lawyers bound by the rules
-if you question boss's orders, you can research, ask others, etc. |
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Term
| 5.3: unethical conduct by nonlawyers |
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Definition
-nonlawyers under lawyer supervision must comply with the rules
-supervisor responsible if: ordered conduct, knows but fails to correct, or should have known at a time when conduct could have been corrected (NY) |
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Term
8.3: whistle blower duty
-PROTECTION- |
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Definition
| NY: cannot be fired for retaliation for reporting under 8.3 |
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Term
| malpractice: prima facie case |
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Definition
-A-C relationship
-attorney breached K or duty to client
-breach was proximate cause of injury
-damages as result of breach |
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Term
| malpractice: prima facie case arising out of litigation |
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Definition
-A-C relationship
-breach
-but for breach, client would have been successful
-proximate cause
-damages |
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Term
| malpractice: standard of care |
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Definition
-that which an ordinarily prudent attorney would do
-competence and diligence normally exercised by lawyers under similar circumstances |
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Term
|
Definition
| NY: 3 years tolling from conduct |
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Term
|
Definition
-mere error in judgment
-violation of a rule, w/o more |
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Term
|
Definition
| lawyer SHALL NOT reveal (NY: or use) info related to the representation of a client |
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Term
1.6: confidentiality
-CONFIDENTIAL INFO- |
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Definition
info gained during/related to representation of client that is:
-protected by A-C privilege, OR
-likely to embarass/be detrimental to client, OR
-info client requested to stay confidential |
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Term
1.6: confidentiality
-COMMENT 4- |
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Definition
| o use of hypothetical permissible if no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved |
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Term
|
Definition
-protects confidential communications made during representation
-underlying facts are discoverable, just NOT the communication itself |
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Term
CPLR 4503: A-C privilege
-ELEMENTS- |
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Definition
-A-C relationship exists
-communication intended to be confidential
-communication made to enable attorney to act in that capacity |
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Term
|
Definition
-typically only waived by client
-express
-inadvertent (carelessness; elevator talk) |
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Term
waiver of A-C privilege
-FACTORS- |
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Definition
-whether client intended communication to be confidential and remain so
-whether reasonable precautions were taken to prevent disclosure
-whether client promptly objects to disclosure |
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Term
| confidentiality: entity client |
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Definition
| Upjohn (subject matter): A-C privilege extends to any lower employee so long as communication relates to the subject matter of representation |
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Term
1.6(a): confidentiality
-INFORMED CONSENT- |
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Definition
| requires adequate info and explanation of risks and alternatives |
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Term
1.6(a): confidentiality
-IMPLIEDLY AUTHORIZED- |
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Definition
| disclosure necessary or customary in carrying out representation |
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Term
1.6(b): confidentiality exceptions
-PREVENTION OF SUBSTANTIALLY CERTAIN DEATH OR SUBSTANTIAL BODILY HARM- |
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Definition
| harm will be suffered imminently or present and substantial risk that a person will suffer such harm at a later date if lawyer does not act |
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Term
1.6(b): confidentiality exceptions
-CRIME (AND FRAUD [MODEL])- |
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Definition
-NY: to prevent client from committing a crime (fraud only if criminal)
-model: to prevent client from committing crime or fraud reasonably certain to cause substantial injury to financial interest or property |
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Term
| 1.2(d): assisting with crime or fraud |
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Definition
knowingly assisting is prohibited
-actual knowledge or can be inferred from facts |
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Term
|
Definition
| SHALL NOT knowingly make a false statement of fact |
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Term
1.6(b): confidentiality exceptions
-PREVENTION OF CRIME (MODEL)- |
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Definition
-for prevention of future crime (continuation of past crime is not future: once elements are met, crime is past)
-lawyer's requisite knowledge: reasonable belief of intent
-must make reasonable inquiry
-cannot take possession of fruits/instrumentalities of crime to conceal evidence
-passive observations protected; can NOT actively tamper/interfere
-do NOT take possession |
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Term
1.6(b): confidentiality exceptions
-SELF-DEFENSE- |
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Definition
-may reveal to defend against accusation of wrongful conduct
-lawyer must have reasonable belief that revealing is necessary for self-protection |
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Term
1.6(b): confidentiality exceptions
-COLLECTION OF FEES- |
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Definition
-may reveal when necessary to collect fee
-reporting to credit bureaus NOT necessary |
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Term
confidentiality and real evidence
-LOCATION/OBSERVATION- |
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Definition
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Term
confidentiality and real evidence
-POSSESSION OF FRUITS/INSTRUMENTALITIES- |
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Definition
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Term
|
Definition
| competency, confidentiality, agency/fiduciary, diligence, communication and advice |
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Term
creation of A-C relationship
-EXPRESS- |
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Definition
| sign engagement/retainer agreement that defines scope of rep (22 NYCRR 1215) |
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Term
creation of A-C relationship
-IMPLIED- |
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Definition
-promissory estoppel
-negligence (injury reasonably foreseeable) |
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Term
creation of A-C relationship
-TEST- |
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Definition
-did client seek legal advice?
-did lawyer agree (express or implied) to give the advice?
-did lawyer know, or reasonably should have known, that client would rely on the advice? |
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Term
creation of A-C relationship
-AVOIDING- |
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Definition
explicitly disclaim a relationship
-written non-engagement letter
-written disclaimer |
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Term
1.2: authority to make decisions
-CLIENT- |
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Definition
objectives and goals of representation
-civil: whether to accept settlement
-criminal: whether to plead guilty, waive jury trial, testify on own behalf |
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Term
1.2: authority to make decisions
-LAWYER- |
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Definition
means by which objectives are pursued
-arguments pursued on appeal are for lawyer to decide |
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Term
| 1.14: clients with diminished capacity |
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Definition
-shall, as much as possible, maintain normal A-C relationship
-when client at risk of harm, lawyer can look into ways to protect client (e.g., appointing guardian); actions must be least restrictive possible |
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Term
| 1.1: competent representation |
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Definition
-skill and knowledge
-thoroughness and preparation |
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Term
1.1: competent representation
-SKILL AND KNOWLEDGE- |
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Definition
-complexity and specialized nature of the matter (is expertise required)
-general experience (how long to get up to speed)
-training/experience in field (not required but can't bill for learning the law)
-can associate w/ lawyer that has established competence in the field
-can limit scope according to competence in engagement letter |
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Term
1.1: competent representation
-THOROUGHNESS AND PREP- |
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Definition
-consider facts of case, issues of law, procedure
-will it overburden the lawyer? |
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Term
1.1: competent representation
-ANALYSIS- |
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Definition
Strickland test for ineffective counsel
-seriousness of error (so bad it was like client didn't have an attorney
-prejudice to client (outcome would have been different but for shitty rep)
-strategic choices are deferred to though |
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Term
|
Definition
-personal problems nor illness are excuses
-(b): SHALL NOT ignore legal matter |
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Term
|
Definition
| cannot engage in fraud, deceit, or misrepresentation |
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Term
| 1.4: communicating with clients |
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Definition
-promptly inform
-reasonably consult
-comply with reasonable requests
-explain to adequately inform |
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Term
| 2.1: candor in counseling |
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Definition
| may refer to moral, economic, social, and political factors on top of law when consulting |
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Term
termination of A-C relationship
-CLIENT- |
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Definition
-can generally terminate for any reason
-must seek court permission if in litigation
-liable for fees for work already done |
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Term
1.16: lawyer termination of A-C relationship
-MANDATORY- |
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Definition
-rep will violate rules or other law
-physical/mental condition would materially impair ability to rep
-discharge by client |
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Term
1.16: lawyer termination of A-C relationship
-PERMISSIVE- |
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Definition
-NO material adverse effect on client's interests, OR
-client deliberately fails to comply with fees
-model: rep imposes unreasonable financial burden on lawyer |
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Term
1.16: lawyer termination of A-C relationship
-OBLIGATIONS UPON WITHDRAWAL- |
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Definition
-permission from tribunal, if any required
-avoid prejudicing client: give notice, allow time to find new lawyer, deliver papers, refund left over retainer |
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Term
1.16: lawyer termination of A-C relationship
-RETAINER- |
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Definition
| -cannot allow for impermissible withdrawal |
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Term
1.16: lawyer termination of A-C relationship
-FILES- |
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Definition
-may make copies
-can demand liability release as condition for not making copies
-can keep files as lien for payment
-minority rule: distinction between work product (preliminary docs) and end product (public, in furtherance of rep)
-majority rule: NO distinction, exception for internal docs |
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Term
1.7: concurrent conflicts of interest
-MODEL- |
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Definition
w/o consent, cannot rep if:
-interests are directly adverse
-rep would be materially limited by other responsibilities |
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Term
1.7: concurrent conflicts of interest
-NY- |
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Definition
w/o consent, cannot rep multiple current clients if:
-differing interests
-professional judgment adversely affected by other interests |
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Term
1.7: concurrent conflicts of interest
-DIRECTLY ADVERSE- |
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Definition
interests of one current client requires lawyer to act against interests of another current client
-e.g., suing client, cross-examining own client, negotiating against current client from another matter |
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Term
1.7: concurrent conflicts of interest
-MATERIAL LIMITATION- |
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Definition
| e.g., could NOT rep multiple parties seeking joint venture |
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Term
1.7: concurrent conflicts of interest
-(b) CONSENT- |
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Definition
can get consent from both clients if lawyer reasonably believes he can provide competent and diligent rep
-must be in writing
-exception: NOT in same matter or where prohibited by law |
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Term
1.7: concurrent conflicts of interest
-CONSIDERATIONS- |
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Definition
-conflicting reps related or not?
-joint rep w/ divergent interests?
-both current or is one former? |
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Term
| 1.18: duties to prospective clients |
|
Definition
-confidentiality applies
-conflicts w/ current clients: may be disqualified from representing current because of info learned |
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Term
1.18: duties to prospective clients
-DISQUALIFYING INFO- |
|
Definition
rep permissible if:
-current and prospective consent, OR
-lawyer took steps to avoid learning, timely screened from participation, no fee, AND notice to prospective |
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Term
|
Definition
firm considered as one: if one lawyer conflicted out, then generally rest are too
-exception: client provides knowing consent |
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Term
1.10: imputing conflict
-SCREENING- |
|
Definition
-segregation of files
-instructions NOT to communicate w/ infected lawyer
-NO sharing of fees
-notice to prospective client
-timely implementation |
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Term
1.7: concurrent conflicts of interest
-DIVORCE- |
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Definition
| can NOT ever rep both sides of a divorce |
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Term
1.7: concurrent conflicts of interest
-COMMON INTEREST RULE- |
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Definition
| lawyers and clients can share info w/o waving privilege if info relates to same legal matter |
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Term
| 1.13: representing organizations |
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Definition
-client is the organization, NOT individual officers, etc.
-up the ladder reporting: if wrongdoing likely to cause substantial harm, must report to higher authority; if nothing done, may disclose confidential info to prevent substantial harm to organization |
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Term
| 1.9(a): former client conflicts |
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Definition
SHALL NOT rep another client:
-in same or substantially related matter
-in which person's interests are materially adverse of former client's
-UNLESS former client gives informed consent |
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Term
1.9(a): former client conflicts
-1.9(c): USE OF INFO- |
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Definition
| SHALL NOT reveal or use info from former rep to disadvantage of former client |
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Term
1.9(a): former client conflicts
-A-C RELATIONSHIP?- |
|
Definition
NY: look at totality of circumstances
-unilateral belief by client that relationship ongoing is insufficient on its own |
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Term
1.9(a): former client conflicts
-SAME MATTER- |
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Definition
-anything subject to rep
-lawyers cannot switch sides |
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Term
1.9(a): former client conflicts
-SUBSTANTIALLY RELATED- |
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Definition
lawyer was in position to obtain confidential info in 1st rep that would be relevant to 2nd rep
-test: possibility or appearance that info given in relation to subsequent matter that could harm former client |
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Term
1.9(a): former client conflicts
-CONSENT- |
|
Definition
-always consentable
-must be informed and in writing |
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Term
1.9(a): former client conflicts
-HOT POTATO RULE- |
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Definition
| cannot withdraw from representing one client just to rep another |
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Term
| 1.9(b): conflicts of migratory lawyers |
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Definition
cannot rep new client at new firm whose interests are adverse to former client at old firm when:
-interests are materially adverse, AND
-lawyer acquired protected info that is material to the matter |
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Term
| restatement 124: imputation for former client conflicts |
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Definition
| NOT imputed when no substantial risk that confidential info of former client will be used to former client's disadvantage |
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Term
| 1.10(e): conflicts check (NY) |
|
Definition
conflicts check system required
-(f): failure to create is per se violation |
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Term
1.11: migratory gov't lawyers
-PUBLIC TO PRIVATE- |
|
Definition
SHALL NOT rep a private client in connection with a matter in which lawyer participated personally and substantially as public officer/employee unless agency gives consent
-rep prohibited regardless of whether interests are materially adverse |
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Term
1.11(d): migratory gov't lawyers
-PRIVATE TO PUBLIC- |
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Definition
| gov't lawyer SHALL NOT participate in a matter in which lawyer participated personally and substantially while in private practice |
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Term
|
Definition
| must charge a reasonable fee |
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Term
1.5: fees and expenses
-REASONABLENESS- |
|
Definition
-nature of matter: time/labor expended, novelty/difficulty, skill required
-opportunity costs: likelihood of preclusion from other employment
-local custom
-stakes for client
-emergencies/time limitations
-nature/length of relationship |
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Term
1.5: fees and expenses
-ENFORCEABILITY- |
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Definition
-is K unconscionable?
-excessive after application of factors? |
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Term
| 1.5(d): nonrefundable retainer |
|
Definition
| NO nonrefundable retainer fees |
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Term
|
Definition
-must be in writing
-must state method for calculating
-must state expenses to be deducted from recovery and when they'll be deducted |
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|
Term
|
Definition
can only split between lawyers of different firms if:
-division is proportional or each lawyer assumes joint responsibility
-client agrees in writing
-total fee is reasonable |
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Term
1.7: lawyer-client conflict
-GENERAL RULES- |
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Definition
| can NOT rep client if significant risk judgment adversely affected/rep will be materially limited |
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|
Term
1.7: lawyer-client conflict
-CONSENT- |
|
Definition
if lawyer reasonably believes that he will be able to provide competent and diligent rep, conflict can be waived if:
-full disclosure
-informed consent in writing |
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|
Term
1.8: specific prohibitions in lawyer-client conflicts
-BUSINESS TRANSACTIONS- |
|
Definition
SHALL NOT enter unless
-full disclosure in writing
-opportunity to seek outside counsel
-written informed consent
-deal must be fair and reasonable to client
-does NOT apply to standard commercial transactions
-failure to comply: attorney discipline and K voidable |
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Term
1.8: specific prohibitions in lawyer-client conflicts
-MEDIA RIGHTS- |
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Definition
can NOT enter into K w/ client to acquire publicity rights to a story based on rep
-NOT consentable |
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|
Term
1.8: specific prohibitions in lawyer-client conflicts
-FINANCIAL ASSISTANCE/PROPRIETARY INTEREST- |
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Definition
| exceptions: may advance court costs and expenses of litigation and litigation expenses on behalf of indigent clients |
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Term
1.8: specific prohibitions in lawyer-client conflicts
-PAYMENT BY 3RD PARTY- |
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Definition
SHALL NOT accept unless:
-informed consent
-no interference
-confidential info is protected |
|
|
Term
1.8: specific prohibitions in lawyer-client conflicts
-GIFTS- |
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Definition
| SHALL NOT solicit any substantial gifts from clients nor prepare instrument giving lawyer substantial gift unless lawyer is a relative |
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|
Term
1.8: specific prohibitions in lawyer-client conflicts
-FAMILY RELATIONSHIPS- |
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Definition
| can go against each other if clients consent after full disclosure and the lawyer can adequately rep the interests of the client |
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|
Term
1.8: specific prohibitions in lawyer-client conflicts
-SEX- |
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Definition
| sexual relationship w/ clients prohibited unless it predates rep |
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|
Term
1.8: specific prohibitions in lawyer-client conflicts
-CONSENTABLE- |
|
Definition
| business transactions, payment by 3rd parties, family relationships |
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|
Term
1.8: specific prohibitions in lawyer-client conflicts
-NOT CONSENTABLE- |
|
Definition
| media rights, gifts, financial assistance, sex |
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|
Term
|
Definition
| lawyer knows in advance that client/witness intends to offer false evidence |
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|
Term
|
Definition
| lawyer later learns that client/witness provided false material evidence |
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|
Term
| 3.3: candor toward tribunal |
|
Definition
SHALL NOT knowingly offer evidence that he knows to be false
-knowing: includes reasonable belief (NO willful blindness) |
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|
Term
3.3: candor toward tribunal
-PROSPECTIVE PERJURY DUTY- |
|
Definition
-try to persuade client/witness to NOT offer the evidence
-if persuasion ineffective, must refuse to offer the evidence
-may disclose to tribunal if necessary
-civil: permissive
-criminal: mandatory |
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|
Term
3.3: candor toward tribunal
-RETROSPECTIVE PERJURY DUTY- |
|
Definition
must take reasonable remedial measures
-duration: model-continues to the conclusion of the proceeding; NY-indefinite
-remedial measures: recess, remonstrate, resign, reveal info necessary to correct |
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|
Term
| 3.3(a)(2): disclosing adverse authority |
|
Definition
shall disclose to the tribunal controlling authority known to be directly adverse
-oh shit test: the more unhappy, the clearer the duty to reveal |
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|
Term
| preparing client to testify |
|
Definition
| can NOT assist witness to testify falsely to material fact |
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|
Term
| 3.5: ex parte communication |
|
Definition
| a lawyer shall not communicate ex parte with a judge, juror, or prospective juror during the proceeding unless authorized to do so by law or court order |
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|
Term
3.5: ex parte communication
-SNITCH RULE (NY)- |
|
Definition
| lawyer shall promptly reveal to the court improper conduct by a juror, or by another toward a juror or a member of his or her family. |
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|
Term
| 3.1: frivolous or wrongful litigation |
|
Definition
frivolous claims or defenses prohibited
-frivolous: for purposes of delay or harassment |
|
|
Term
|
Definition
SHALL NOT make out-of-court statement that a reasonable person would expect to be disseminated by means of public communication if lawyer knows/should have known that it will have substantial likelihood of materially prejudicing the proceeding
-3.8(f): extra duty on prosecutors |
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|
Term
3.6: trial publicity
-SPECIFIC PROHIBITIONS ON OUT-OF-COURT STATEMENTS- |
|
Definition
-character, credibility, reputation, or criminal history of witness, etc
-expected testimony
-possibility of plea
-existence of a confession/statement
-refusal to make statement/cooperate w/ investigation
-results of a scientific test
-refusal to take a test
-opinion as to guilt/innocence
-info likely to be inadmissible |
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|
Term
3.6: trial publicity
-SAFE HARBOR- |
|
Definition
-general nature of claim
-info in public record
-that an investigation is in progress
-scheduling or result of steps in litigation
-request for assistance in obtaining evidence
-warning of danger
-criminal: demographics of accused, info to help catch accused, facts surrounding arrest, ID of officers and agencies |
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|
Term
3.6: trial publicity
-SANCTIONS- |
|
Definition
| range from private reprimand to disbarment |
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|
