Term
| Admission: Prohibited Activities – Witnesses, recommenders, applicants and lawyers cannot |
|
Definition
| lie, omit material fact, fail to correct misapprehension, fail (subject to 5th Amendment) to provide demanded info |
|
|
Term
| Examples of misconduct affecting lawyer's right to practice law |
|
Definition
| Crimes of dishonesty or moral turpitude; Dishonesty, fraud, deceit or misrepresentation |
|
|
Term
| When is a lawyer responsible for another person's conduct? |
|
Definition
| When the lawyer (1) orders the conduct, or (2) knowingly ratifies the conduct |
|
|
Term
| Avoidance or mitigation of consequences: when partner or supervisor responsible |
|
Definition
| When partner or supervisor learns of conduct when consequences could have been mitigated/avoided, but fails to take reasonable measures to do so |
|
|
Term
| "I was just following orders" defense generally not available except |
|
Definition
| When based on supervisor's reasonable resolution of questionable ethical issue |
|
|
Term
| Advertising, false or misleading communications and misrepresentations prohibited |
|
Definition
| (1) false statement, (2) misrepresentation (omitting necessary fact), (3) creating unjustified expectation, (4) fee/service comparison that cannot be factually substantiated |
|
|
Term
| Advertising: Name & Address |
|
Definition
| Name and address of at least one lawyer responsible for advertising must be in ad |
|
|
Term
| Advertising: Mentioning Clients |
|
Definition
| Lawyer can use name(s) of client(s) s/he regularly represents in advertising if client consents |
|
|
Term
| Advertising: Partnerships |
|
Definition
| Mere shared offices not a partnership |
|
|
Term
| Advertising: Public Officials |
|
Definition
| Officeholders' names cannot be used unless actively, regularly practicing with firm |
|
|
Term
| Advertising (Letterhead): Multistate Firm |
|
Definition
| Any partner not admitted in that state must be identified |
|
|
Term
|
Definition
| Cannot give anything of value for referrals; exceptions: reasonable advertising costs, lawyer referral service if approved by regulatory authority, reciprocal arrangement w/law or professional firms OK if not exclusive, client informed |
|
|
Term
| What is required if a lawyer directs a communication to someone known to need legal services? |
|
Definition
| The words "advertising material" must be on the outside of the envelope or at the beginning and end of a recorded or other-than-real-time electronic contact |
|
|
Term
| Solicitation, exceptions to general prohibition |
|
Definition
| (1) when there is no charge for the services offered, (2) when the solicitation is directed to another lawyer, (3) when the solicitation is directed to a family member or person with other close personal relationship, (4) when the solicitation is directed to a former client |
|
|
Term
| Incompetence: Options when lawyer is not competent to handle matter |
|
Definition
| (1) decline representation (or withdraw if already accepted, (2) accept representation, become competent without unreasonable expense/delay, (3) bring in competent associate |
|
|
Term
| Prospective Limitation on Liability |
|
Definition
| Lawyer cannot prospectively limit liability unless client is independently represented in making agreement |
|
|
Term
| Examples of conduct for which lawyer may be subject to litigation sanction |
|
Definition
| (1) Knowing advocacy or continuing to pursue a nonmeritorious claim, (2) refusing to comply with proper discovery request after court order compelling discovery has been obtained |
|
|
Term
| Reasonableness of Fee: Factors |
|
Definition
| (1) Time, labor, skill; novelty, difficulty; (2) Whether other employment precluded; (3) Fee customarily charged; (4) Time limitations; (5) Nature, length of professional relationship; (6) Experience, ability, reputation; (7) Whether fee fixed or contingent |
|
|
Term
| Conditions which must be met for a fee to be split between firms |
|
Definition
| (1) split must be proportional, (2) client must consent (including to ea. atty.'s share) in writing, (3) Total fee must be reasonable |
|
|
Term
| When Contingent Fees Prohibited |
|
Definition
| (1) Domestic relations cases, (2) Criminal cases |
|
|
Term
| Requirements for Contingent Fee |
|
Definition
| (1) In writing, (a) Method by which fee calculated, (b) What expenses are to be deducted, (c) When deduction to take place (before/after expenses, (d) Apprise client of expenses for which liable regardless of outcome; (2) signed by client |
|
|
Term
| "Client Property" Defined |
|
Definition
| Any money or property in which the client still has an ownership interest |
|
|
Term
| Requirements for Safekeeping Client Funds and Property |
|
Definition
| (1) Identify them; (2) separate them, (3) keep them safe |
|
|
Term
|
Definition
| OK to commingle multiple clients' funds, but not OK to commingle lawyer's and clients' funds |
|
|
Term
| Disputed Funds: Procedure |
|
Definition
| (1) Transfer undisputed funds to client, (2) Retain undisputed fee for attorney (3) Leave disputed funds in trust account pending resolution |
|
|
Term
|
Definition
| (1) Retainer = Nonrefundable compensation offered to attorney for agreeing to take case; (2) Advance fee = Lawyer only entitled to withdraw funds after s/he has done work |
|
|
Term
| Conditions for lawyer to represent party whose interests are adverse to those of a group in which the lawyer is involved |
|
Definition
| (1) Lawyer reasonably believes s/he will be able to provide competent, diligent representation, (2) client gives informed, written consent, (3) representation not legally prohibited |
|
|
Term
| Soliciting gifts, preparing gift-giving instrument as intended recipient |
|
Definition
| Lawyer cannot solicit gift or prepare instrument giving lawyer/lawyer's relative substantial gift unless client and lawyer are closely related |
|
|
Term
|
Definition
| Lawyer cannot negotiate or obtain such rights while the case is pending |
|
|
Term
| Financial assistance to client generally prohibited; Exceptions |
|
Definition
| (1) Lawyer may pay all of indigent's litigation costs; (2) Nonindigents: advance of litigation costs permitted, but client remains liable to repay, may be contingent on case's outcome |
|
|
Term
| Sexual relations with client |
|
Definition
| Prohibited unless consensual sexual relationship existed prior to representation; If lawyer believes continuing relationship will materially limit representation, lawyer should end relationship |
|
|
Term
| Lawyer as necessary witness: Generally prohibited |
|
Definition
| Lawyer may not represent client in case in which s/he is likely to be necessary witness (only one who can introduce evidence) |
|
|
Term
| Lawyer as necessary witness: Exceptions to general prohibition |
|
Definition
| (1) matter is uncontested, (2) litigation involves value/nature of legal services, (3) Disqualifying lawyer would work substantial hardship on client |
|
|
Term
| Relatives as Opposing Counsel |
|
Definition
| Lawyer may not take case unless each client gives informed consent, but another lawyer in disqualified lawyer's firm may take the case |
|
|
Term
| Conflicts: present clients; representation prohibited |
|
Definition
| Lawyer may not represent another client whose interests are directly adverse to a client or if the representation would materially limit lawyer's representation of client |
|
|
Term
| Conflicts, present clients; exception to prohibition of representation |
|
Definition
| (1) Lawyer reasonably believes s/he will be able to provide competent, diligent representation to each client, and (2) Each client gives informed written consent, and (3) Joint representation not legally prohibited |
|
|
Term
| Representation of coplaintiffs or codefendants in same lawsuit |
|
Definition
| Rules don't prohibit such representation, but they strongly discourage it |
|
|
Term
| Settlement when representing coparties |
|
Definition
| (1) Attorney must disclose nature and extent of all claims and participation of each party in settlement, and (2) Each client must give informed, written consent to the settlement |
|
|
Term
| Current/prospective client conflict; represented prohibited if three conditions exist |
|
Definition
| (1) current and prospective clients' interests are materially adverse, (2) Representation involves the same or substantially related matters, (3) Lawyer receives info from prospective client that could significantly harm current client |
|
|
Term
| Current/prospective client conflict; represented prohibited if three conditions exist; EXCEPTION |
|
Definition
| Lawyer may still represent client if the three conditions exist if both clients give informed written consent |
|
|
Term
| Prohibition on representation against government as former client; exception |
|
Definition
| Former government attorney barred from representing client against government if (1) representation involves exactly the same subject matter and (2) attorney participated personally and substantially; Exception: government gives informed, written consent |
|
|
Term
| Third party pays lawyer's fee: three conditions must exist |
|
Definition
| (1) Client must give informed consent, and (2) Payor cannot interfere with lawyer/client relationship, lawyer's professional judgment, and (3) confidentiality is preserved |
|
|
Term
| Vicarious disqualification |
|
Definition
| All lawyers in firm are presumed to have knowledge; if one is disqualified, then all are disqualified |
|
|
Term
| Exceptions to vicarious disqualification: Government as former client |
|
Definition
| If former government lawyer has no involvement in, no communication about, no fee shared, and government is notified in writing |
|
|
Term
| Vicarious disqualification - Prospective Client, Exception: Three conditions must be met |
|
Definition
| (1) Lawyer must take reasonable steps to avoid exposure to more disqualifying info than is necessary, (2) No involvement in, no communication about, no fee shared from case |
|
|
Term
| Vicarious Disqualification: Three Excceptions |
|
Definition
| (1) Lawyer can be screened from representation, (2) Lawyer is necessary witness, (3) Conflict arises from acctivities personal to the lawyer |
|
|
Term
| When mandatory withdrawal is neessary |
|
Definition
| (1) If continuing representation would result in knowing violation of RPC or other law, (2) lawyer's mental or physical condition has deteriorated, (3) if lawyer is discharged by client |
|
|
Term
| Permissive withdrawal: six circumstanes |
|
Definition
| (1) Attorney reasonably suspects crime or fraud, (2) client used lawyer's services to perpetrate crime/fraud, (3) client insists on repugnant/imprudent action, (4) continuing representation is undue financial burden on lawyer, (5) other good cause, (6) if withdrawal can be accomplished without material adverse effect |
|
|
Term
| Permissive withdrawal: if necessary, get court's permission; when necessary |
|
Definition
| (1) Court has taken jurisdiction over matter, and (2) lawyer is of record |
|
|
Term
| Permissive withdrawal: protect client's interests |
|
Definition
| (1) If deadline approaching, lawyer must do what's necessary to avoid prejudicing client's interests, (2) client papers must be returned within reasonable time |
|
|
Term
| "Zealous representation" defined |
|
Definition
| Do everything legally and ethically permitted to further client's interests, unless client's sole motive is to injure, harass another |
|
|
Term
| Goals and objectives of representation |
|
Definition
| Client has final say re goals, objectives; settlement of case, acceptance of plea bargain, whether client is to testify |
|
|
Term
| Duties lawyer ownes client as part of zealous representation |
|
Definition
| (1) Loyalty, (2) diligence, (3) communications, (4) ethics, (5) candor |
|
|
Term
| Duties lawyer owes client as part of zealous representation: exception to candor |
|
Definition
| When candor would be imprudent (e.g., client emotionally on the edge or lawyer reasonably believes client has become incompetent during course of representation |
|
|
Term
| Lawyer's duties as advocate: Avoid frivolous claims |
|
Definition
| Avoid frivolous claims; frivolous = no good-faith basis in law or fact for argument, or for extension, modification, or reversal of existing law; not frivolous to hold opponent to proof |
|
|
Term
| Lawyer's duty as advocate: Candor to tribunal |
|
Definition
| No knowing false statements, no failure to correct previous false statements; Scienter exists if you know statement not true or if you don't know whether statement is true |
|
|
Term
| Duty of candor to tribunal: Revealing adverse controlling authority |
|
Definition
| Must reveal adverse controlling authority even if opponent does not |
|
|
