Term
| A lawyer is subject to discipline not only for violating a disciplinary rule, but also for any of the following 9 types of conduct |
|
Definition
1. Attempting to violate a disciplinary rule
2. Assisting or inducing another person to violate a disciplinary rule.
3. Using the acts of another person to violate a disciplinary rule
4. Engaging in criminal conduct that shows dishonest, untrustworthiness, or unfitness to practice law
5. Engaging in any conduct involving dishonesty, fraud, deceit, or misrepresentation.
6. Engaging conduct that is prejudicial to the administration of justice
7. Stating or implying an ability to improperly influence a govt agency or official or to achieve results by means that violate the law or legal ethics rules
8. Knowingly assisting a judge in conduct that is illegal or that violates the Code of Judicial Conduct.
9. Engaging in discrimination or harassment in conduct related to the practice of law on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status |
|
|
Term
| Duty to report professional misconduct is limited to what kind of violations? |
|
Definition
| Raise a substantial question as to the other lawyer's honesty, trustworthiness, or fitness as a lawyer. |
|
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Term
| Duty to report professional misconduct is limited by what ethical duty? |
|
Definition
| Confidentiality or information gained by a lawyer or judge while serving as a member of an approved lawyers' assistance program designed to help lawyers and judges with substance abuse problems |
|
|
Term
| To whom does the duty to report professional misconduct apply? |
|
Definition
|
|
Term
| Describe the disciplinary process |
|
Definition
| Complaint filed with state disciplinary authority. If complaint not dismissed, the lawyer must respond to the charges, and the grievance committee will investigate the charges and may hold a hearing. At hearing, accused is entitled to procedural DP. If discipline imposed, lawyer entitled to review of the decision by state's highest court |
|
|
Term
| Effect of sanctions in other jurisdictions? |
|
Definition
Sister states accept disciplinary action by one state as conclusive proof of a lawyer's misconduct, but are free to impose their own sanctions.
In federal court, each court makes an independent evaluation, state discipline is competent evidence |
|
|
Term
| If a lawyer is admitted to practice in one state, and isn't disbarred or suspended from practice in any state, she may provide legal services in a second state on a temporary basis in what 4 situations? |
|
Definition
1. If she associates with a local lawyer who participates in the matter
2. She may request special permission from that tribunal to appear "pro hac vice" (for purposes of that matter only)
3. Can do mediation or arbitration if her services arise out of her practice in the state in which she is admitted
4. Can temporarily practice if it's reasonably related to her home-state practice. |
|
|
Term
| Can foreign lawyers practice in the US? |
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Definition
| yes, temporarily, if one of the 4 exceptions at play, or if services are governed primarily by international law. Subject to stricter standards though |
|
|
Term
| When can a lawyer permanently practice in a different state? |
|
Definition
If she in employed by one client (in-house corporate lawyers and govt lawyers), but must seek pro hac vice admission to litigate a matter in that state.
Rarely, lawyer may be authorized by federal or local law to practice a restricted branch of law in a state in which she is otherwise not admitted to practice |
|
|
Term
| What are the disciplinary rules for lawyers practicing in multiple states? |
|
Definition
| Subject to the disciplinary rules of both jurisdictions |
|
|
Term
| Is a lawyer subject to discipline for assisting a non lawyer to engage in the unauthorized practice of law? |
|
Definition
|
|
Term
| What counts as the "practice of law?" |
|
Definition
Activities involving legal knowledge and skill which constitute advice concerning binding legal rights
Activities traditionally performed by lawyers (settlement negotiations, drafting legal documents) |
|
|
Term
|
Definition
| appear before an agency that permits non lawyer professionals to do so, and fill in the blanks on legal forms |
|
|
Term
| Would giving tax law advice by a non lawyer constitute the unauthorized practice of law? |
|
Definition
|
|
Term
| Consequences for a non lawyer who engages in the unauthorized practice of law? |
|
Definition
| injunction, contempt, and criminal prosecution |
|
|
Term
| Consequences for a lawyer who assists a non lawyer in the unauthorized practice of law? |
|
Definition
|
|
Term
| Can a lawyer advise people who wish to appear pro se? |
|
Definition
|
|
Term
| Can a lawyer assist a suspended/disbarred lawyer to do work that constitutes the practice of law? |
|
Definition
| No, will be subject to discipline |
|
|
Term
| The relationship between a lawyer and client is ___ |
|
Definition
|
|
Term
| The relationship between a lawyer and client is contractual and the terms of such contract are derived from __ and __ |
|
Definition
|
|
Term
| A lawyer is both the client's __ and __ |
|
Definition
|
|
Term
| 3 ways the lawyer-client relationship arises? |
|
Definition
When a person indicates an intent that the lawyer provide legal services and the lawyer agrees
or fails to clearly inform the person that he does not wish to represent her, resulting in implied assent,
or when a tribunal appoints a lawyer to represent a client |
|
|
Term
| When is a lawyer's assent implied? |
|
Definition
| When he fails to clearly decline representation and the prospective client reasonably relies on the representation. |
|
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Term
| Lawyers have an ethical obligation to help make legal service available to all who need it by... |
|
Definition
| accepting a fair share of unpopular matters and unpopular or indigent clients |
|
|
Term
| A lawyer can only avoid court appointments to represent clients for ... |
|
Definition
|
|
Term
| What are 3 examples of good cause for when a lawyer can avoid court appointments? |
|
Definition
representing client would require the lawyer to violate a law or disciplinary rule
repressing client would impose an unreasonable financial burden on lawyer
lawyer's personal feelings would prevent her from representing the client effectively |
|
|
Term
| 5 situations where lawyer has a duty to refuse employment? |
|
Definition
1. The client's motive is to embarrass, delay, or burden a third person
2. Case present a factually or legally frivolous position (but a good faith argument that the facts are as claimed or that the law should be changed is permissible)
3. Lawyer is incompetent (or too busy) to handle the matter
4. Lawyer's strong personal feelings may impair his ability of effective representation
5. Lawyer's mental or physical condition would materially impair the representation |
|
|
Term
| What 3 duties does the lawyer owe if there has not yet been a lawyer-client relationship established yet? |
|
Definition
Protect person's confidential info, including declining representing others in the same or related matter
Protect the prospective client's property
Use reasonable care in giving the person any legal advice |
|
|
Term
| Nature and amount of an attorney's fee are subject for __ __ between the attorney and client, except when... |
|
Definition
contractual agreement
fee is set by statute or court order |
|
|
Term
| Will a court enforce a contract for an unreasonably high lawyer fee? |
|
Definition
|
|
Term
| Is lawyer subject to discipline for trying to exact such a fee or expenses? |
|
Definition
|
|
Term
| Factors considered in determining the reasonableness of lawyers fees |
|
Definition
| time and labor required novelty and difficulty of the questions involved skill required whether lawyer is precluded from other work what other lawyers in the community charge amount at stake and results obtained time limitations experience, reputation, and ability of the lawyer whether the fee is fixed or contingent |
|
|
Term
| Can attorneys charge clients for ordinary overhead expenses? |
|
Definition
|
|
Term
| Attorney must __ the basis for charges |
|
Definition
|
|
Term
| A lawyer can require her fee to be paid in advance, but she must ... |
|
Definition
| refund any unearned part of the advance if she is fired or withdraws |
|
|
Term
| A lawyer who requires he fee to be paid in advance doesn't have to return ... |
|
Definition
| a true retainer fee (money paid solely to insure the lawyer's availability) |
|
|
Term
| Can a lawyer accept property in return for services? |
|
Definition
| yes, as long as it doesn't involve a proprietary interest in the cause of action or subject of litigation, and arrangement is subject to scrutiny to make sure lawyer doesn't take advantage of client |
|
|
Term
| How can an attorney let a client pay a fee? |
|
Definition
| By credit card, to finance fees through bank loans, or to pay by an interest-bearing promissory note. If local law permits, an attorney's lien |
|
|
Term
| What is a contingent fee? |
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Definition
| lawyer receives his fee only upon favorable resolution for his client. Is a percentage of the client's recovery in the case. |
|
|
Term
| Where are contingent fees prohibited? |
|
Definition
criminal and domestic relations cases when the contingency is based on the securing of a divorce, amount of alimony or support, or the amount of a property settlement
witness fees |
|
|
Term
| Contingent fee must be __ and can't be used if facts of the case make it __ to do so |
|
Definition
|
|
Term
| Contingent fee agreements are required to be ... |
|
Definition
in writing
signed by client |
|
|
Term
| contingent fee agreement writing must do what 4 things? |
|
Definition
1. spell out how the fee is to be calculated
2. what litigation and other expenses are to be deducted from the recovery
3. whether deductions for expenses will be made before or after the fee is calculated
4. what expenses the client must pay |
|
|
Term
| What can a client NOT do to obtain compensation? |
|
Definition
use illegal collection methods
improperly use confidential information
Harass a client to obtain compensation |
|
|
Term
| What CAN. lawyer do to obtain compensation? |
|
Definition
| filing suit to recover a fee use a common law or statutory charging lien exercise a retaining lien over documents, funds, and property of the client |
|
|
Term
| Generally a lawyer must not do what with fees? |
|
Definition
| Split them with another lawyer |
|
|
Term
| Exceptions to general rule that lawyers must not split fees with another |
|
Definition
| If you are lawyers within a firm you can pool and split legal fees, and also can split with former partners/associates if they have a separation or retirement agreement. If lawyer not in same firm, can split if total fee is reasonable, split is in proportion to the services performed by each lawyer, or diff proportion if each lawyer assumes joint responsibility for the matter, client agrees to the split, and agreement in writing |
|
|
Term
| Lawyers can set up this in which they agree to refer clients to another lawyer or non lawyer, provided the clients referred are informed of the arrangement |
|
Definition
| reciprocal referral arrangement |
|
|
Term
| A lawyer must abide by a client's decisions affecting the client's substantial legal rights, which includes what 5 decisions |
|
Definition
1. Whether to accept a settlement offer
2. What plea to enter in a criminal case
3. Whether to waive a jury trial in a criminal case.
4. Whether the client will testify in a criminal case
5. Whether to appeal |
|
|
Term
| When may a lawyer limit the scope of the representation? |
|
Definition
| When limitation is reasonable under the circumstances and the client gives informed consent |
|
|
Term
| What are some reasonable circumstances that could give rise to lawyer being able to limit scope of representation? |
|
Definition
When disagreements exist between lawyer and client about the means to be used to reach the client's objectives
When the client insists on the lawyer's assistance in violating a law or legal ethics rule
when a lawyer discovers that a client has begun an illegal course of action and the conduct is continuing |
|
|
Term
| What is the lawyer's duty if a client is a minor or has a diminished mental capacity? |
|
Definition
| to, so far as reasonably possible, maintain a normal lawyer-client relationship. If client has guardian/other rep, the lawyer should treat client as client, particularly in communicating with the client about significant developments |
|
|
Term
| What may a lawyer do when client has diminished capacity and faces a risk of substantial physical, financial, or other harm? |
|
Definition
| May take reasonable actions to protect the client, including seeking the appointment of a guardian. Lawyer has implied authority to reveal the client's confidential info to the extent necessary to protect the client |
|
|
Term
| What may a lawyer do when a client with seriously diminished capacity is facing imminent and irreparable harm to her health, safety, or financial interest? |
|
Definition
| Lawyer may take legal action on behalf of the person even if a lawyer-client relationship hasn't been established if lawyer reasonably believes the person has no other representative. Any action taken should be limited to that necessary to maintain the status quo or to avoid the harm. |
|
|
Term
| Does lawyer normally seek compensation for emergency actions taken on behalf of the non-client? |
|
Definition
|
|
Term
| What 4 things must a lawyer do in communicating with the client? |
|
Definition
1. Promptly inform the client of any decision that requires the client's informed consent
2. Keep the client reasonably informed about the status of the matter and the means to be used to accomplish the client's objectives
3. Respond promptly when a client makes a reasonable request for info
4. Consult with the client if the client expects the lawyer to do something illegal or unethical |
|
|
Term
| What does the amount and kind of info the lawyer should give to the client depend on? |
|
Definition
| the client's situation. If client has diminished capacity, may require extra explanation/assistance. If lawyer regularly represents a client, the two may work out a convenient arrangement for occasional reporting of routine developments |
|
|
Term
| When may a lawyer delay the transmission of information to a client? |
|
Definition
| if client would be likely to react imprudently to an immediate communication, or if a court rule/order forbids a lawyer from sharing info with a client |
|
|
Term
| The lawyer-client relationship can terminate prematurely in what 3 ways? |
|
Definition
1. client can fire the lawyer
2. In some situations, lawyer must withdraw
3. In some situations, the lawyer may withdraw |
|
|
Term
| When can a client fire an attorney? |
|
Definition
| At any time, with or without cause |
|
|
Term
| When client fires attorney, client is liable to the attorney in ... |
|
Definition
| quantum meruit for the reasonable value of the work done |
|
|
Term
| In a litigation matter, local court rules typically require what for a client to fire her attorney? |
|
Definition
|
|
Term
| When can the court deny a client's request to fire attorney? |
|
Definition
| Court may deny permission if a substitution of attorneys would cause undue delay or disruption |
|
|
Term
| When can the court deny an attorney's request to withdraw? |
|
Definition
| if substitution of attorneys would cause undue delay or disruption, even if there is good cause. |
|
|
Term
| An attorney must withdraw from representation in what 2 situations? |
|
Definition
1. The attorney's mental or physical condition would make it unreasonable for him to continue representing the client
2. Continued representation would require the attorney to violate a law or disciplinary rule |
|
|
Term
| When may an attorney withdraw from representation generally? |
|
Definition
| For any reason if withdrawal doesn't have a material adverse effect on the client's interest of the client consents. There are exceptions. |
|
|
Term
| 7 times when an attorney may withdraw from representation despite an adverse impact? |
|
Definition
| When the circumstances are so severe as to justify harm to the client's interests, and 1. The client persists in criminal or fraudulent conduct (if the conduct requires the attorney's assistance, the attorney must withdraw). 2. The client has used the attorney's services to commit a past crime or fraud. 3. Client's objective is repugnant or against the lawyer's beliefs. 4. Client breaks his promise to the attorney. 5. Representation imposes an unreasonable financial burden on the attorney 6. The client will not cooperate in the representation 7. Other good cause for withdrawal exists. |
|
|
Term
| What must an attorney do before withdrawing from representation? |
|
Definition
| Give the client reasonable notice of his withdrawal and a chance to get another attorney |
|
|
Term
| What 2 things must an attorney do after withdrawing or being fired? |
|
Definition
Attorney must refund any advance on fees not yet earned and expenses not yet spent,
and must turn over all papers and property to which the client is entitled |
|
|
Term
| Competence in representing a client requires what? |
|
Definition
| Lawyer must act competently and with the legal knowledge, skill, thoroughness, and preparation that are reasonably necessary for the representation |
|
|
Term
| What are the 4 factors to consider in determining whether a lawyer has the necessary skill to handle a matter? |
|
Definition
the complexity and specialized nature of the matter
the lawyers general experience and his training and experience in the field in question
The mount of preparation and study the lawyer will give to the matter
Whether its possible for the lawyer to refer the matter to, or consult with, another competent lawyer |
|
|
Term
| A lawyer may accept representation if the requisite competence can be achieved by __ __ |
|
Definition
|
|
Term
| When may a lawyer who isn't competent in the field assist a client? |
|
Definition
| in an emergency, but the assistance shouldn't exceed what is reasonably necessary to meet the emergency |
|
|
Term
| What must a lawyer do in order to adequately prepare a matter? |
|
Definition
| inquire into and analyze the facts and legal elements |
|
|
Term
| Sometimes a lawyer may gain competence in a matter by consulting with other lawyers. Before retaining/contracting with outside lawyers to assist in the provision of legal services to the client, what 2 things must the lawyer do? |
|
Definition
1. Reasonably believe that the services of the outside lawyers will contribute to the competent and ethical representation of the client
2. Should ordinarily obtain the client's informed consent |
|
|
Term
| A lawyer must comply with all applicable __ __ __ requirements |
|
Definition
|
|
Term
| What 5 things must a lawyer do once he takes on a client's matter? |
|
Definition
1. Act on the client's behalf with reasonable diligence and promptness
2. Act with dedication and zeal, taking whatever awful and ethical steps are available to vindicate the client's cause
3. Pursue the matter to completion
4. Either terminate the relationship or act with required diligence if there is any doubt as to whether a lawyer-client relationship exists
5. If solo practitioner, must plan for untimely death/disability by designating another competent lawyer to review the client's files and determine whether protective action is required. |
|
|
Term
| How many incidents are needed to subject a lawyer to professional discipline? |
|
Definition
|
|
Term
| Special circumstances are considered regarding __, but not as to whether there is a __ |
|
Definition
|
|
Term
| In what three ways does a malpractice action differ from a disciplinary action? |
|
Definition
1. The forum in a malpractice action is a civil court, not a disciplinary tribunal
2. In a malpractice action, the lawyer's adversary is an injured P, not the state bare
3. The purpose of malpractice action is to compensate the injured P, not to punish the lawyer or to protect the public from future wrongs |
|
|
Term
| Does a violation of an ethics rule automatically mean that the lawyer has committed malpractice? |
|
Definition
| No, nor does it create a presumption of malpractice. Courts do treat it as relevant evidence of malpractice |
|
|
Term
| What are the 4 legal theories a P in a malpractice action gets to chose from? |
|
Definition
Intentional tort
breach of fiduciary duties
breach of contract
simple negligence |
|
|
Term
| To whom does an attorney owe a duty of due care to? |
|
Definition
| her client and any third party who is intended to benefit from the legal services she renders to her client |
|
|
Term
| What is the standard care for an attorney? |
|
Definition
| the competence and diligence normally exercised by attorneys in similar circumstances |
|
|
Term
| When is an attorney held to a higher standard of due care? |
|
Definition
| if she represents to a client that she has a greater competence or will exercise greater diligence than that normally demonstrated by attorneys undertaking similar matters |
|
|
Term
| Is an attorney liable for mere errors of judgment? |
|
Definition
| No, not as long as the judgment was well-informed and reasonably made. |
|
|
Term
| What is not reasonably competent legal research? |
|
Definition
| If answer to a legal question could've been found by using standard research techniques, the attorney's failure to find it is a breach of the duty of due care. |
|
|
Term
| What must a malpractice plaintiff prove? |
|
Definition
That the injury wouldn't have happened but for the defendant's negligence, and that it is fair under the circumstances to hold the defendant liable for unexpected injuries or for expected injuries that happen in unexpected ways
Must also prove damages. |
|
|
Term
| What kind of losses can a malpractice plaintiff recover for? |
|
Definition
| direct losses and indirect but foreseeable losses |
|
|
Term
| Respondeat superior for lawyers? |
|
Definition
| Lawyers can be held liable for injuries caused by a negligent legal secretary, law clerk, or other person acting within the scope of his employment. |
|
|
Term
| What are partners in a law firm liable for? |
|
Definition
| liable for the negligence of other partners committed in the ordinary course of partnership business |
|
|
Term
| Is malpractice insured required? |
|
Definition
| Not by ABA Model Rules and vast majority of states, but prudent lawyers carry ample coverage |
|
|
Term
| Can a lawyer contract with a client to prospectively limit her malpractice liability? |
|
Definition
| No, unless the client is independently represented in making the contract |
|
|
Term
| What must a lawyer do before settling a pending/potential malpractice claim with an unrepresented client or former client? |
|
Definition
| Must advise that person, in writing, to seek independent advice about the settlement and giving that person time to seek that advice |
|
|
Term
| Can a lawyer who has breached a duty to his client escape discipline by reimbursing the client for any loss? |
|
Definition
|
|
Term
| This is an exclusionary rule of evidence law that prevents the govt from compelling the revelation of privileged communications |
|
Definition
| attorney-client privilege |
|
|
Term
| This prevents the attorney from voluntarily disclosing or misusing confidential info |
|
Definition
| Ethical duty of confidentiality |
|
|
Term
| When does the ethical duty of confidentiality apply? |
|
Definition
| In every context where the attorney-client privilege does not apply. |
|
|
Term
| In addition to requiring non-disclosure or misuse of confidential information, what else does the ethical duty of confidentiality require? |
|
Definition
| requires attorney to make reasonable efforts to protect a client's confidential info from inadvertent or unauthorized disclosure by the lawyer and those under the lawyer's supervision, and from unauthorized access by 3rd parties |
|
|
Term
| What kind of information does the attorney-client privilege protect? |
|
Definition
| only confidential communications between an attorney and client or their respective agents. |
|
|
Term
| What kind of information does the ethical duty of confidentiality protect? |
|
Definition
| communications that are protected by the privilege plus any other information the attorney obtains relating to the representation, no matter what the source. |
|
|
Term
| the attorney-client privilege prohibits a court to other governmental tribunal from compelling disclosure of confidential communications between an attorney and a client, or their respective agents, if... |
|
Definition
| the communication concerns the professional relationship |
|
|
Term
| A person or entity that seeks legal services from an attorney |
|
Definition
|
|
Term
| Does the attorney-client privilege cover preliminary communications leading up to an attorney-client relationship? |
|
Definition
| yes, even if no such relationship ultimately develops |
|
|
Term
| When the client is a corporation, the attorney-client privilege covers what communications? |
|
Definition
| communications between the lawyer and a high-ranking corporate official. And sometimes communications between the lawyer and another corporate employee upon conditions |
|
|
Term
| What 3 conditions must be met before the attorney-client privilege can cover communications between a lawyer and another corporate employee besides a high-ranking corporate official? |
|
Definition
1. Employee communicates with the lawyer at the direction of the employee's supervisor
2. Employee knows that the purpose of the communication is to obtain legal advice for the corporation
3. The communication concerns a subject within the scope of the employee's duties to act for the corporation |
|
|
Term
| Information transmitted orally or in writing in either direction between the attorney and the client or their respective agents |
|
Definition
|
|
Term
| What does the attorney-client privilege generally not cover? |
|
Definition
| the client's identity or the fee arrangement between the client and attorney, unless disclosing those facts is tantamount to disclosing a privileged communication. |
|
|
Term
| Does a preexisting document or thing become privileged by simply turning it over to an attorney? |
|
Definition
| No. If it would be discoverable in the client's hands, it is equally discoverable in the attorney's hands. |
|
|
Term
| What must an attorney do if he comes into possession of the fruits of a crime or an instrument used to commit a crime? |
|
Definition
| Attorney may keep it long enough to obtain information needed to represent the client, but the attorney must then turn it over to the proper authorities. |
|
|
Term
| to be a protected "confidential" communication, the communication must have been made by a means not intended to ... |
|
Definition
| disclose the communicated information to outsiders |
|
|
Term
| Does the presence of a third party destroy the attorney-client relationship? |
|
Definition
| Yes, unless they are present to aid the attorney-client relationship. An eavesdropper can be prevented from testifying about a privileged communication |
|
|
Term
| Who can claim or waive the attorney-client privilege? |
|
Definition
|
|
Term
| When does waiver of the attorney-client privilege occur? |
|
Definition
| when there is a failure to claim the privilege when there is a chance to do so or when there is an intentional revelation of a significant part of the privileged communication. |
|
|
Term
| What is the duration of the attorney-client privilege? |
|
Definition
| Definitely, surviving termination of the relationship and even the death of the client |
|
|
Term
| What are the 4 exceptions to the attorney-client privilege? |
|
Definition
1. Client seeks the attorney's services to engage in or assist a future crime or fraud
2. Communication is relevant to an issue of breach of the duties arising out of the attorney-client relationship.
3. Civil litigation arises between two persons who were formerly joint clients of the attorney.
4. Attorney is asked for evidence about the competency or intent of a client who has attempted to dispose of property by will or inter vivos transfer |
|
|
Term
| Generally, this is immune from discovery or other disclosure |
|
Definition
| material prepared by a lawyer for litigation or in anticipation thereof |
|
|
Term
| When is material prepared by a lawyer for litigation or in anticipation thereof NOT immune from discovery? |
|
Definition
| if the opposition shows a substantial need for, and an inability to gather, the material without undue hardship. |
|
|
Term
| These are always immune from discovery unless immunity is waived |
|
Definition
| a lawyer's mental impressions or opinions |
|
|
Term
| Which covers a broader range of information, the ethical duty or the attorney-client privilege? |
|
Definition
|
|
Term
| 7 exceptions to the ethical duty of confidentiality? |
|
Definition
1. Client's informed consent and implied authority
2. Dispute concerning attorney's conduct
3. Disclosure to obtain legal ethics advice
4. Disclosure required by law or court order
5. Disclosure to prevent death or substantial bodily harm
6. Disclosure to prevent or mitigate substantial financial harm
7. Disclosure to detect and resolve conflicts of interest |
|
|
Term
| Describe the "dispute concerning attorney's conduct" exception to the ethical duty of confidentiality |
|
Definition
| attorney can reveal confidential info to the extent necessary to protect herself against a claim of malpractice, disciplinary violation, complicity with the client in illegal acts, or the like. |
|
|
Term
| A lawyer may reveal her client's confidential information to the extent that the lawyer reasonably believes necessary to prevent ... |
|
Definition
| reasonably certain death or substantial bodily harm. But this exception only gives the lawyer the discretion to disclose, it doesn't require disclosure |
|
|
Term
| A lawyer may reveal the client's confidential info to the extent necessary to prevent the client from committing a crime or fraud that's reasonably certain to result in substantial financial harm to someone, IF... |
|
Definition
the client is using or has used the lawyer's services in the matter.
Also applies if client has already acted and the lawyer's disclosure can prevent or mitigate the consequent financial harm |
|
|
Term
| When may a lawyer disclose limited client info (names, brief summary of issues involved)? |
|
Definition
| To detect or resolve conflicts of interest when the lawyer changes firms, when 2 law firms merge, or when a law practice is being purchased. |
|
|
Term
| What 4 conditions apply when we allow a lawyer to disclose limited client info in one of the 3 situations? |
|
Definition
1. Disclosure may be made only after substantive discussions regarding the new relationship have occurred.
2. The disclosure must be limited to the minimum necessary to detect any conflicts of interest
3. Disclosed info must not compromise the attorney-client privilege or otherwise prejudice the clients
4. Disclosed info may be used only to the extent necessary to detect and resolve any conflicts of interest. |
|
|
Term
| Whose interests must a lawyer not allow to interfere with her loyalty to the client? |
|
Definition
personal interests
interests of another client
interests of a third person |
|
|
Term
| If this is apparent before a lawyer takes on a client's matter, the lawyer must not take it on |
|
Definition
|
|
Term
| What should a lawyer do if a conflict of interest becomes apparent after the lawyer has taken on the client's matter? |
|
Definition
|
|
Term
| What are the 3 possible consequences can a lawyer's failure to handle a conflict of interest properly have? |
|
Definition
disqualification as counsel in a litigated matter
Professional Discipline
Civil liability for legal malpractice |
|
|
Term
| Generally, lawyer who practice together in a "firm" are treated as what for conflict of interest purposes? |
|
Definition
| a single unit. Conflict is "imputed" from first lawyer to other lawyers in the firm |
|
|
Term
| Whether a group of lawyers constitutes a "firm" depends on many factors, name 5 |
|
Definition
| 1. they have a formal agreement 2. they hold themselves out as if they practice as a firm 3. they have physical access to each other's client files 4. they routinely talk among themselves about the matters they are handling 5. the purpose of the particular conflict rule would be served by imputing one lawyer's conflict to other lawyers in the group |
|
|
Term
| When will a conflict of interest generally not be imputed to other lawyers in the firm? |
|
Definition
| if the conflict is personal to the disqualified lawyer or involves duties owed to former clients and the disqualified lawyer is timely screened from participation in the matter and is apportioned no part of the fee from the matter |
|
|
Term
| Concurrent conflicts of interest |
|
Definition
| can't rep a client if the representation of one client will be directly adverse to another client or there is a significant risk that the representation of one client will be materially limited by the lawyer's own interest or by the lawyer's responsibilities to another client, a former client, or a third person |
|
|
Term
| Despite concurrent conflicts of interest, a lawyer may represent a client if what 4 things happen? |
|
Definition
1. Lawyer reasonably believes that he can competently and diligently represent each affected client
2. Representation isn't prohibited by law
3. representation doesn't involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation
4. each affected client gives informed, written consent |
|
|
Term
| Means that each affected client must understand how the conflict can harm him |
|
Definition
|
|
Term
| Can a client revoke a previously given consent to a conflict of interest? |
|
Definition
|
|
Term
| Because the interests of criminal co-Ds are likely to __, a lawyer shouldn't try to defend two people in a criminal case |
|
Definition
|
|
Term
| In civil litigation, a lawyer may rep two Ps or two Ds whose interests are potentially in conflict if... |
|
Definition
1. lawyer concludes that she can effectively rep both clients
2. lawyer obtains the informed, written consent of both clients |
|
|
Term
| Absent informed, written consent from both clients, a lawyer must not represent two clients in separate, unrelated matters when they have inconsistent legal positions if... |
|
Definition
| there is a substantial risk that the representation of one client will be materially limited by the lawyer's responsibilities to the other client |
|
|
Term
| In a class action litigation, are the unnamed members of a class ordinarily regarded as clients for conflicts of interest purposes? |
|
Definition
|
|
Term
| In a __ context, conflicts of interest are often hard to assess |
|
Definition
|
|
Term
| In deterring whether a conflict of interest exists in a non-litigation context, what are the 3 relevant factors to consider in determining whether a conflict exists? |
|
Definition
1. Length and intimacy of the lawyer's relationship with one or more of the clients
2. Functions the lawyer will perform
3. Likelihood and possible effect of an actual conflict between the clients' interests |
|
|
Term
| In non-litigation matters, a lawyer may rep 2 clients whose interests are potentially in conflict if... |
|
Definition
1. lawyer concludes that she can effectively rep both clients
2. lawyers obtains the informed, written consent of both clients |
|
|
Term
| In litigation between 2 former joint clients of a single lawyer, neither client can claim this |
|
Definition
| attorney client privilege |
|
|
Term
| In litigation between 2 former joint clients of a single lawyer, neither client can claim attorney-client privilege, therefore, before undertaking multiple representation, the lawyer should... |
|
Definition
| explain that whatever one client discloses will be shared with the other client |
|
|
Term
| A lawyer must not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security, or money interest that is adverse to a client unless what 4 conditions are satisfied? |
|
Definition
1. terms of the business transaction (or the terms on which the interest is acquired) are fair to the client
2. Terms are fully disclosed to the client in a writing, expressed in a manner that the client can reasonably understand
3. Client is advised in writing that he should get the advice of an independent lawyer about the arrangement before entering into it, and
4. Client gives informed consent, in a writing that the client signs |
|
|
Term
| a lawyer need not advise the client to consult independent counsel if... |
|
Definition
| the client already has independent counsel in the matter |
|
|
Term
| The rule about business transactions and adverse interests doesn't apply to... |
|
Definition
| an ordinary fee agreement between lawyer/client or to standard commercial transaction in which the lawyer buys goods or services that the client routinely markets to the public |
|
|
Term
| A lawyer must not use information relating to the client's representation to the client's __ unless the client gives informed consent or some other exception to the duty of confidentiality applies. This also applies to what other kinds of clients? |
|
Definition
disadvantage
Prospective and former clients |
|
|
Term
| Misuse of client's confidential information rule applies not only when the lawyer usues the info for the lawyer's own benefit, but also... |
|
Definition
| when lawyer uses it to benefit someone else such as another client or 3rd party |
|
|
Term
y.
Example: While representing client Chez Nous Catering Co., lawyer L learned
that Chez Nous was teetering on the edge of insolvency. L knew that
his good friend F had contracted with Chez Nous to cater F’s daughter’s
big wedding reception. L advised F to cancel the contract and hire a
different caterer. Is L subject to discipline? |
|
Definition
|
|
Term
| While misuse of client info rule only applies when lawyer's misuse disadvantages the client/PC/FC, a lawyer who uses the confidential info for his own pecuniary gain (other than in the practice of law) may be subject to... |
|
Definition
| civil liability. May have to account to the client/PC/FC for his profits |
|
|
Term
Attorney A’s client C told A in confidence that she was about to build
a large new medical complex on the corner of 5th and Main Streets.
Without telling C, A quietly bought land at 4th and Main and built a
four-story parking garage to serve the new medical complex. The garage
did not harm C; in fact it was a benefit to her. A subject to civil liability? |
|
Definition
| Yes A must disgorge the garage profits to C because A used C's confidential info to enrich himself other than in the practice of law |
|
|
Term
| The same rules that limit a lawyer's freedom to solicit a substantial gift from a client who isn't the lawyer's relative also apply to... |
|
Definition
| a substantial gift from a client to the lawyer's relative |
|
|
Term
| A lawyer must not __ a __ gift from a client who isn't the lawyer's __ |
|
Definition
solicit
substantial
relative |
|
|
Term
| What kind of gift can a lawyer accept from a client? |
|
Definition
| a token of appreciation or an appropriate holiday gift |
|
|
Term
| Can a lawyer accept a substantial gift? |
|
Definition
| Yes, just can't solicit, although gift may be voidable for undue influence |
|
|
Term
Lawyer L is a loyal alumnus of the Port Arthur School of Law. The
school asked L to serve as a pro bono legal advisor to a committee that
was drafting a new affirmative action policy for the school. L gladly
agreed and worked many hours on the project for no fee. When the
work was done, L told the school’s dean that his daughter would love to
attend the school, but that she could not afford the high tuition. The dean
then arranged for L’s daughter to be admitted on a full scholarship. Is L subject to discipline? |
|
Definition
| Yes he solicited a substantial gift from the school to his daughter |
|
|
Term
| A lawyer cannot prepare a __ __ that creates a substantial gift to the lawyer/lawyer's relative, unless... |
|
Definition
legal instrument (will or deed of property)
the donor is one of the lawyer's relatives |
|
|
Term
Attorney A’s aged father asks her to draft a new will for him. The
father tells A that he wants to set up a testamentary trust that will
provide college funds for A’s children. Can A draft the will? |
|
Definition
| Yes because it is her father |
|
|
Term
| Is a lawyer prohibited from seeking to have himself or his partner/associate named as executor of an estate or counsel to the executor or to some other fee-paying position? |
|
Definition
| No, unless the lawyer's advice is tainted by the lawyer's self-interest. |
|
|
Term
| Can a lawyer acquire literary or media rights to a story based in substantial part on info relating to the lawyer's representation of a client? |
|
Definition
| Not until after the client's legal matter is entirely completed, appeals and all. But rule doesn't apply to literary or media rights that aren't substantially based on info relating to the representation. |
|
|
Term
| Can a lawyer financially assist a client in connection with pending or contemplated litigation? |
|
Definition
No, UNLESS:
advance costs in contingent fee setting
indigent client |
|
|
Term
| May a lawyer advance court costs and other litigation expenses on the client's behalf and have repayment be contingent on the outcome of the case?? |
|
Definition
|
|
Term
Lawyer L’s fee agreement with personal injury victim V provides that L
will advance the court costs and litigation expenses in V’s suit against
the person who injured him. The agreement also states that if V wins the
case, L will be repaid out of the judgment or settlement proceeds, but
that if V loses, L will not be repaid. Is the fee agreement proper? |
|
Definition
|
|
Term
| May a lawyer simply pay the court costs and litigation expenses for a client without any provision for repayment? |
|
Definition
| If the client is indigent, yes |
|
|
Term
Chem Corp.’s chemical plant blew up, spreading toxic fumes across
pasture land belonging to dozens of dairy farmers. The grass shriveled,
the cows died, and the farmers became destitute. The law offices of
E.Z. Bucks took out newspaper ads offering to represent the farmers on
contingency, to advance the costs and expenses of litigation, and to lend
them money to restore their pastures and dairy herds. Is lawyer subject to discipline? |
|
Definition
| Yes for lending money to restore their pastures and dairy herds |
|
|
Term
| When a lawyer reps several co-parties in a matter, the adversary sometimes makes an "aggregate settlement offer." What does this create? |
|
Definition
| a potential conflict of interest among the lawyer's several clients. |
|
|
Term
| When aggregate settlement offers create a potential conflict of interest, the lawyer shouldn't participate in the agreement unless what 3 conditions are met? |
|
Definition
lawyer must assure that the clients have come to an agreement about how sum will be shared
lawyer must disclose to each client all of the terms of the aggregate settlement
Each client must give informed consent to the aggregate settlement agreement in a writing signed by clients |
|
|
Term
| What 4 terms of an aggregate settlement agreement must a lawyer disclose to clients? |
|
Definition
total amount that will be paid/received
existence and anture of all claims, defenses and pleas involved
details of every other clients participation in the settlement, including how much each will contribute or receive and how each criminal charge will be resolved
how lawyer's fees and costs will be paid and by whom |
|
|
Term
| the same rules that apply to an aggregate settlement in a civil case also apply to a ... |
|
Definition
| joint plea bargain in a criminal case |
|
|
Term
| a lawyer must not make an agreement with a client that prospectively waives or limits what? |
|
Definition
| the lawyer's liability for legal malpractice, unless client gets independent counsel |
|
|
Term
| while a lawyer can't make an agreement with a client that prospectively waives/limits liability for malpractice, what three things can she do? |
|
Definition
practice in a limited liability entity
reasonably limit scope of representation
arbitrate legal malpractice |
|
|
Term
| Under what conditions may a lawyer practice in a limited liability entity? |
|
Definition
| must remain personally liable to the client for her own malpractice, and the entity complies with legal requirements for notice, insurance coverage, and the like |
|
|
Term
Client C is thinking of purchasing the worldwide distribution rights
to a strain of pest-resistant rice. C asks lawyer L to find out whether
any nation imposes trade restrictions on that kind of rice. L tells
C that to research the laws of every nation could take as much as
300 hours and cost $60,000, but C said he could not afford that
much enlightenment. C and L agreed that L would research as
many nations as he could in 100 hours, starting with C’s most likely
markets. Is agreement proper? |
|
Definition
|
|
Term
| a lawyer may agree prospectively with a client to arbitrate all legal malpractice claims, provided that ... |
|
Definition
| such an agreement is proper under local law and the client understands the scope and effect of the agree |
|
|
Term
| When may a lawyer settle a malpractice claim or potential claim made by his client? |
|
Definition
| ONLY if the lawyer first advises the client in writing to seek the advice of an independent lawyer about the settlement, and the lawyer gives the client a reasonable chance to obtain such advice. |
|
|
Term
Lawyer L regularly does consumer loan collection work for American
Consumer Finance Company. When one of American’s debtors defaults,
American assigns the debt and cause of action to L; in return, L immediately
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pays American 50% of the face value of the debt. If L ultimately collects
more than the 50%, she pays half of the excess to American and keeps the
other half. Is L subject to discipline? |
|
Definition
|
|
Term
F owns a United States patent on a process for manufacturing fertilizer.
R brings a declaratory judgment action against F, alleging that F’s patent is
invalid. Attorney A agrees to represent F in the declaratory judgment action
in exchange for an assignment of a one-half ownership interest in F’s patent. Is A subject to discipline? |
|
Definition
|
|
Term
| When are contingent fees okay? |
|
Definition
|
|
Term
| In some states, an attorney is allowed to secure payment of her fee and repayment of advanced litigation expenses by taking a... |
|
Definition
| lien on the proceeds of a client's case |
|
|
Term
The law of East Carolina permits an attorney to contract with a client
for a lien to secure the attorney’s fee and advanced litigation expenses.
Attorney A’s fee agreement with client C provides that A shall have a
lien on whatever C recovers in her case against X to secure payment of
A’s fee and to secure repayment of litigation expenses that A advances
on C’s behalf. Is the fee agreement proper? |
|
Definition
|
|
Term
| a lawyer cannot accept compensation from a third person for representing a client unless what 3 conditions are met? |
|
Definition
client gives informed consent signed in writing
3rd person doesn't interfere with the lawyer's independence or the representation of the client,
and arrangement doesn't compromise the client's confidential information |
|
|
Term
T, a pimp, seeks to employ attorney A to defend C, who is charged with
prostitution. T demands to be present whenever A talks with C, and T directs
C to plead not guilty, promising to pay the fine if C is found guilty after trial.
If A agrees to represent C under these conditions, is she subject to discipline? |
|
Definition
|
|
Term
Midwest Highway Construction Corp. and its executive vice president C are
both indicted for conspiring with other highway contractors to rig the bids on
government highway contracts. Midwest seeks to employ lawyer L to serve as
C’s separate defense counsel. Midwest will pay L’s fee, but will not interfere
with L’s handling of the case or with the confidentiality of the relationship
between L and C. Under these conditions, may L agree to represent C? |
|
Definition
|
|
Term
Trimmers and Fitters Union Local #876 established a group legal service
program for the benefit of its members. Using money from union dues, the
Local hired the law firm of R, S, and T to provide the necessary legal services
to members. Union member C asked the firm to represent her in a sexual
harassment case against her fellow worker D, a loyal member of the union.
When the president of the Local heard about C’s case, he called the law firm,
demanding to know what C said about D and demanding that the firm dismiss
the case. Should the firm allow the union or its officials to interfere with the handling of Cs case? |
|
Definition
|
|
Term
| sometimes the interest of a 3rd person may create a substantial risk of materially limiting the lawyer's ability to represent the client effectively. When that is true, lawyer may rep client under what 2 conditions? |
|
Definition
lawyer reasonably believes that the 3rd person's interest won't adversely affect the relationship
client gives informed consent, confirmed in writing |
|
|
Term
Carter Corp. and its executive vice president K were indicted for mail
fraud in connection with the interstate sale of certain investment properties.
The bylaws of Carter Corp. provide that the corporation will pay for separate
legal representation of any officer accused of wrongdoing in the course of
the corporation’s business; however, there is no provision for indemnifying
officers who are found guilty of wrongdoing. Carter Corp. asks lawyer L to
provide the necessary separate representation for K. L’s fee will be paid by
Carter Corp. L may represent K if: |
|
Definition
(i) the arrangement between Carter Corp.
and L assures L’s independence, (ii) L reasonably believes that he can represent
K effectively, and (iii) K gives informed consent, confirmed in writing. |
|
|
Term
The United Coastal Charities Fund offers to pay attorney A’s fee for
drafting the will of any person who leaves a bequest of $2,000 or more to the
Fund. If A agrees, will she be subject to discipline? |
|
Definition
|
|
Term
| Conflicts of interest raised by liability insurance? |
|
Definition
policy holder's interests vs insurance company's interest
Who is the defense lawyer repping (ins. co or policy holder?)
Is event covered by the policy?
Settlement within policy limits
who controls settlement
unreasonable limits on defense fees and expenses |
|
|
Term
Suppose that G drove her car over her boyfriend B in circumstances that make
it unclear whether G acted intentionally or only negligently. B sued G, alternatively
alleging negligence and intentional conduct. G’s auto liability policy covers
negligence, but not intentional conduct. G’s insurance company hired lawyer L to
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defend the case, but it sent G a “reservation of rights” letter, informing her that
it might ultimately contend that G acted intentionally, thus freeing the company
from liability. During pretrial preparation, G told L in confidence that she ran over B intentionally. What should happen? |
|
Definition
| L must not disclose that confidential info to the insurance company. If G's statement means that L cannot defend G effectively, L must withdraw |
|
|
Term
Suppose that Insco Insurance Co. hires attorney A to defend policyholder D in a
slip-and-fall case brought by P. The liability limit in D’s policy is $100,000, and
P offers to settle for $90,000. D wants to settle because that would free him from
paying P anything from his own pocket. Insco, on the other hand, might rather go
to trial because its exposure is only $10,000 more than the settlement offer. The
settlement offer creates a conflict of interest that has the following consequences: |
|
Definition
(i) A and Insco must disclose the conflict to D and invite D to obtain independent
counsel (at Insco’s expense) to advise D on the settlement issue; (ii) if A fails to
do that and negligently or in bad faith advises D to reject the settlement offer, A
is subject to discipline and perhaps civil liability to D for malpractice; and (iii) if
Insco negligently or in bad faith rejects the settlement offer, Insco will be liable for
the entire judgment P obtains against D, even the amount over the policy limits. |
|
|
Term
a physician
might not want her malpractice insurance company to settle for fear that the settlement
will tarnish her medical reputation. Some insurance policies authorize the
insurance company to control the defense and to settle within the policy limits at
the company’s sole discretion. In that situation, a lawyer hired by the insurance
company must... |
|
Definition
| inform policy holder as early as possible about the constraints on the representation, and may then follow insurance company's instructions. If lawyer knows policyholder objects to settlement, lawyer must not proceed without first giving policyholder a chance to reject the insurance company's defense and to assume responsibility for her own defense at her own expense |
|
|
Term
Some companies use “litigation managers” who look over the lawyer’s shoulder and
sometimes try to micromanage the defense. A defense lawyer must not disclose a policyholder’s confidential information to an outside auditor without the policyholder’s
informed consent, but he may disclose... |
|
Definition
| bills and time records containing confidential information to the insurance company itself if doing so will aid, not harm, the policyholder |
|
|
Term
| a defense lawyer must refuse to follow insurance company litigation management guidelines that interfere with... |
|
Definition
| the lawyer’s professional judgment or prevent the lawyer from representing the policyholder competently. |
|
|
Term
When A retired from his solo law practice, he sold his practice to another
lawyer. The purchaser received not only books, furniture, and an office lease
but also all of A’s files relating to past and pending legal matters. Many of
the files contained confidential information, and A made no effort to obtain the consent of his clients and former clients before transferring the files. Is A subject to discipline? |
|
Definition
|
|
Term
Lawyer L, a solo practitioner, left instructions for the winding up of his law
practice in the event of his unexpected death. L directed his personal representative to contact each client to find out whether that client’s files should be delivered directly to the client, to another lawyer of the client’s choice, or to a young lawyer designated by L. Are L's instructions proper? |
|
Definition
|
|
Term
| When a former client has imparted confidential information to a lawyer, the lawyer must not then oppose the former client in any matter in which the confidential information would be relevant, unless ... |
|
Definition
| former client gives informed consent, confirmed in writing |
|
|
Term
| Exceptions to rule that lawyers can't use former client's confidential information to client's disadvantage? |
|
Definition
doesn't apply to any info that has become commonly known
doesn't apply to any info that the lawyer would be allowed to reveal or use under an exception to the general ethical duty of confidentiality |
|
|
Term
Three years ago, attorney A represented C, the son of a movie star, in a drug possession case. In that connection, C told A in confidence that he had abused
drugs for several years and had become a hard drug addict. Based on information
from other sources, several tabloid newspapers and gossip magazines published stories about C’s drug problems; within a few weeks, the public knew all there was to know about C. Now A represents C’s ex-wife in a dispute with C over the custody of their infant daughter. In the custody dispute, may A use the info about C's history of drug abuse? |
|
Definition
| Only the publicly known info |
|
|
Term
| A lawyer must not represent one client whose interests are materially adverse to those of a former client in a matter that is "__ __” to a matter in which the lawyer represented the former client (unless the former client gives informed consent, confirmed in writing). |
|
Definition
|
|
Term
Summitville Hospital employed lawyer L to draft a consent form to be signed by all patients scheduled for elective surgery at the hospital. L
drafted the form and thereafter did no further legal work for the hospital.
Three years later, client C asked L to represent her in a suit against the
hospital; in that suit, C will contend that the consent form violates public
policy and is therefore void. Can L rep C? |
|
Definition
| Only if hospital gives informed consent, confirmed in writing |
|
|
Term
| When attorney A was an associate in the M, N, O & P firm, she regularly represented the Magnum Oil Company in suits to eject service station dealers for failure to comply with the terms of their service station leases. Two years ago, A left the firm to enter solo practice. Now S, a Magnum service station dealer, has asked her to defend him in an ejectment suit brought by Magnum. May A represent S? |
|
Definition
| Yes, no need for consent. Same type of suit doesn't mean substantially related |
|
|
Term
| A lawyer's duties may extend not only to the clients she represented personally, but also to ... |
|
Definition
| clients of the lawyer's former firm |
|
|
Term
| A lawyer whose firm formerly represented a client in a matter and who __ __ __ __ or info pertaining to the representation may not thereafter represent another person in ______________ if that person's interests are __ __ to those of the former client, unless the former client... |
|
Definition
acquired protected confidential info
same or substantially related matter materially adverse former client gives informed consent, confirmed in writing |
|
|
Term
| Lawyer L is an associate at Firm One,which represents client A in the case of A v. B. L works on the A v. B case, and he receives reams of confidential information about the case from A. L then quits Firm One and becomes an associate at Firm Two. Can L represent B in the A v. B case? What about C v. A? |
|
Definition
A v. B: not unless A gives informed consent in writing.
C v. A: Not if the C v. A case is substantially related to the A v. B case and if the confidential info L obtained from A is material to the C v. A case |
|
|
Term
| If a lawyer who is disqualified from representing a client joins a new firm, the new firm may be disqualified as well unless |
|
Definition
the lawyer is properly screened (i.e., the disqualified lawyer does not work on the case, discuss it with those who do, or have access to case files) and does not share fees from the matter, and the
former client is given notice |
|
|
Term
| A lawyer's firm is prohibited from representing a person with interests materially adverse to those of a client of the formerly associated lawyer if... |
|
Definition
| the matter is the same or substantially related to that in which the formerly associate lawyer represented the client, and a lawyer remaining in the firm has informed protected by rules 1.6 and 1.9c |
|
|
Term
| Lawyers who move between government and private jobs must comply not only with the ethics rules but also with ... |
|
Definition
| various state and federal statutes and regulations |
|
|
Term
| Except when expressly permitted by law, a lawyer who leaves government service and enters private practice must not represent a private client in a matter in which ... |
|
Definition
| the lawyer participated personally and substantially while in govt service, unless the govt agency gives informed consent, confirmed in writing |
|
|
Term
| When lawyer L worked for the State Consumer Protection Agency, she was assigned to draft some regulations to govern the conduct of door-to-door salespeople. The regulations that she drafted were ultimately adopted, almost verbatim, by the agency. A year later, L left government service and entered private practice. She was asked to repre- sent American Encyclopedia Company (a door-to-door sales company) in a dispute with the State Consumer Protection Agency. The essence of the dispute is the proper application of the regulations that L herself drafted. May L represent American? |
|
Definition
| Yes, because the drafting of regulations is not a "matter," it doesn't involve specific facts and specific parties. |
|
|
Term
| When serving as Oakville City Attorney, lawyer L drafted a city ordinance for the rezoning of a particular tract of land owned by developer R. Is the drafting of an ordinance a "matter?" |
|
Definition
| Yes because it involves one narrow, specific situation. Thus, when L later enters private law practice, she may not work on a case that involves that ordinance |
|
|
Term
| Meaning of the word "matter" is more narrow in which setting? |
|
Definition
| Disqualification of Lawyer leaving govt and entering private practice |
|
|
Term
| The disqualification of lawyers who are leaving govt work only applies when the lawyer's work on a matter was both __ and __ |
|
Definition
personal
substantial
doesn't include work that is trifling, and it doesn't include mere supervisory responsibility |
|
|
Term
| Attorney A is the District Attorney of Colma County. She is in charge of 16 deputies working out of five different offices spread through the county. A’s rubber-stamped signature appears on every paper that goes out of the five offices. In theory, she is personally responsible for every detail of every case; in fact, most of A’s day is consumed in supervision and administration. What would the disqualification rule cover? |
|
Definition
| Only the few, exceptional cases in which A does become personally and substantially involved |
|
|
Term
| If a lawyer is disqualified by the govt rule, then everyone in that lawyer's firm is also disqualified unless.... |
|
Definition
the lawyer is timely screened from the case
the lawyer doesn't share fees from the matter
written notice is promptly given to the governmental agency to enable it to make sure that the above conditions are being met. |
|
|
Term
| When lawyer L worked for the State Environmental Safety Bureau, he participated personally and substantially in an investigation of Noxatox Corp. concerning the dumping of radioactive industrial waste in Evergreen Slough. Later, L quit the Bureau and became a partner in the T, S & U firm. One of L’s law partners is now asked to defend Noxatox in private litigation arising out of the Evergreen Slough matter. L will not work on the case, will have no access to the case files, and will not discuss the case with others in the office. L will receive his ordinary share of the proceeds of the partnership, set by prior independent agree- ment. Finally, the Bureau will be promptly informed of the foregoing facts in writing. Under these conditions, may the partner represent Noxatox? |
|
Definition
|
|
Term
| The rule on subsequent use of information gained during government service covers only information __ __ by the government lawyer, not info that could be __ __ to the lawyer |
|
Definition
actually received
fictionally imputed |
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Term
| Info that is gained under govt authority and which the govt is prohibited from revealing, or has a privilege not to reveal, and which is not otherwise available to the public |
|
Definition
| confidential govt information |
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Term
| When attorney A worked on the legal staff of the State Parole Board, he received confidential information about the personal life, character, and criminal proclivities of X, a parolee. Later, A entered private practice as a criminal defense lawyer. He was assigned to defend D in a case in which it appeared quite likely that X, not D, was the perpetrator. The proper defense of D would require a thorough investigation of the very facts that A learned about X in confidence. What should A do? |
|
Definition
| A must request the court to relieve him |
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Term
| Government disqualification rule also applies to lawyers who... |
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Definition
| become a govt employee after private practice or other nongovernmental work |
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Term
| For the past five years, lawyer L worked for the M & N law firm. In that job, L worked on a few matters for Cosmoplex, a diversified communi- cations company, and he gained considerable confidential information about the company’s finances. Now, L has quit M & N and has gone to work for the United States Department of Labor, which is about to sue Cosmoplex for fraud in connection with the purchase of overvalued company stock for its employee pension plan. Can L and the Dept of Labor work on the case? |
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Definition
L can't unless Cosmoplex gives informed consent, confirmed in writing.
If L is timely screened from the suit, other labor department lawyers may work on it--L's conflict won't be imputed to them |
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Term
| In private practice, attorney A represented Electro Corp. in trying to obtain a license from the State Energy Commission to build a geothermal electric generating plant. While Electro’s application was still pending, A quit private practice to become a lawyer for the Commission. Can A work on the Electro application? |
|
Definition
| Only if she obtains the informed consent, confirmed in writing, from both the Commission and Electro |
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Term
| When a person in government service is currently working personally and substantially on a matter, she must not negotiate for private employment with any party or lawyer who is involved in that matter. What is the special exception to this case? |
|
Definition
| For law clerks who are seeking work after their clerkships |
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Term
| Lawyer L currently serves on the State Agriculture and Fisheries Commission. L’s work for the Commission is strictly nonlegal; he does not function as a lawyer for the Commission. Currently, L and the other Commissioners are working personally and substantially on a matter involving the Shady Bay Salmon Farm. Now, Shady Bay approaches L, asking if he would like to become Shady Bay’s in-house general counsel. If If L negotiates for employment with Shady Bay, will he be subject to discipline? |
|
Definition
| Yes, rule applies even though his work for the Commission is nonlegal |
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Term
| Govt-->private lawyer conflict of interest rules also apply to what legal professionals? |
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Definition
| Lawyer who was serving as a judge, or as a law clerk to such person, or as an arbitrator , mediator, or other 3rd party neutral, unless all parties to the proceedings give informed consent, confirmed in writing. |
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Term
| Exception to rule about switching from judicial service to private law practice? |
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Definition
| An arbitrator who is selected as a partisan of a party in a multi-member arbitration panel may subsequently represent that party. |
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Term
| Lawyer L was selected as the partisan of union U on a three-member arbitration panel. May L serve as U’s lawyer in later proceedings relating to the dispute that was arbitrated? |
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Definition
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Term
| Law clerk C worked on the case of P v. D and made recommendations to Judge J about some discovery motions and a motion for default judgment. When C completes her clerkship and enters private practice, can she work on the case of P v. D |
|
Definition
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Term
| J was one of 15 judges on the County Superior Court (a trial court) while the case of State v. Able was pending in that court. However, the Able case was assigned to a different judge, and Judge J never had anything to do with it. Later, Judge J resigned from the bench and entered private practice. Able asked J to represent her on the appeal of her case. May J represent Able? |
|
Definition
| Yes, because J did not personally work on the case |
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Term
| S was the Senior Presiding Judge of the Circuit Court of Appeal (an inter- mediate appellate court). In that capacity, Judge S was responsible for all court administration and for assigning judges to hear various cases. During that period, the case of Commonwealth v. Beale was heard and decided by the court, but Judge S had nothing to do with that case except to assign it to three other judges. Later, Judge S left the bench and entered private practice. May S represent Beal in a subsequent stage of Beale's case? |
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Definition
|
|
Term
| This can avoid imputed disqualification |
|
Definition
|
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Term
| If a lawyer is disqualified under rule 1.12a, everyone else in the lawyer's firm is also disqualified unless what 3 conditions are met |
|
Definition
lawyer is timely screened from the matter
lawyer is not apportioned any part of the fee earned in the matter, and
written notice is given to the parties and the appropriate tribunal so that they can ensure that the foregoing conditions are met |
|
|
Term
| What must a law clerk do before negotiating for private employment with a part or the attorney for a party in a matter in which the law clerk is participating personally and substantially? |
|
Definition
| notify the judge/officer they're working for |
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Term
| After graduating from law school, S became a law clerk for Judge J. In that capacity, S wrote the bench brief and drafted an opinion in the case of Arner v. Bosch. While that case was still pending before the court, the attorney for Bosch invited S to visit her law firm and interview for a job. Can S go? |
|
Definition
| Yes but she must first notify judge J before discussing future employment |
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Term
| Prospective client PC came to lawyer L’s office seeking L’s legal advice about a plan to murder PC’s sister-in-law without getting caught. Is PC's communication protected by attorney-client privilege? Ethical duty of confidentiality? |
|
Definition
ACP: No, because seeking Ls aid to commit a future crime.
EDC: Not if L reasonably believes that PC really will carry out the plan |
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Term
| Senator S telephoned attorney A, asking A to visit him in the county jail. When A arrived, S explained in confidence that he was picked up for felony drunk driving, that he was very drunk at the time, and that he wanted A to represent him. A was overburdened with other work and could not do so. Several weeks later, the entire story of Senator S’s drunken escapade became common knowledge after S talked about it on a popular television show. Not long afterward, in an unrelated matter, A had occasion to cross-examine S, who had testified on behalf of A’s adversary. A asked S: “Sir, shortly before witnessing the events about which you testified on direct, had you drunk any alcohol?” S was outraged and accused A of violating the duty of confidence owed to a potential client. Was A's conduct proper? |
|
Definition
| Yes because the info about S's drinking lot protection when S himself made it public on TV |
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Term
| Subject to exceptions, a lawyer who obtains confidential information during a consultation with a prospective client must not later rep a different person in the same or a substantially related matter if ... |
|
Definition
| the confidential info could significantly harm the prospective client |
|
|
Term
| What are the two ways to overcome a prospective client conflict? |
|
Definition
1. obtain informed consent, confirmed in writing, from both the affected client and the prospective client.
2. Demonstrate that the lawyer who held discussion with the PC took care to avoid exposure to any more confidential information than was necessary to determine whether to represent the PC, that the disqualified lawyer is timely screened from any participation in the matter and won't share the fee, and give written notice to the PC |
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Term
| When a lawyer's client is an organization, who does the lawyer owe a duty of loyalty to? |
|
Definition
| the organization, not to its constituents |
|
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Term
| What should a lawyer do when the interests of his entity client and the entity's employee are in conflict? |
|
Definition
| Caution the person that the attorney represents the organization, not the person, and that communications between them may not be protected by the attorney-client privilege, and that they should seek to obtain independent counsel when appropriate |
|
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Term
| If an employee of entity client tells lawyer that he has or is about to act in a way that violates a duty to the organization or a law in a way that might be imputed to the organization, what should the lawyer do? |
|
Definition
| must report the violation to a higher authority in the organization (eg corporations president) or if necessary to the organizations highest authority (eg a corporation's outside directors) |
|
|
Term
| Does lawyer for entity client have discretion in reporting employee violations? |
|
Definition
| Yes. Need not report the violation if she reasonably believes that the organization's best interests don't require reporting |
|
|
Term
| When does a lawyer's duty to report a violation by it's entity client's employee to those outside of the corporation arise? |
|
Definition
| If lawyer reasonably believes that reporting is necessary to prevent substantial injury to the organization, MAY report to someone outside the organization |
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Term
| The authority of a lawyer to report to those outside of the entity client doesn't apply to what type of lawyers? |
|
Definition
| lawyers who are hired by the organization to investigate an alleged violation of law or to defend the organization or its constituents against a claimed violation of law |
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Term
| Attorney A’s corporate client produces frozen chicken pies. C’s produc- tion process creates large quantities of liquid waste, which C is supposed to pump into recycling tanks. C’s manufacturing vice president sometimes orders his workers to dump the waste into a ditch that drains into some neighboring wetlands; the dumping is cheaper and quicker, but it gradually destroys the wetlands in violation of state and federal environmental laws. When A learns about the dumping, she reports it to C’s president and warns him that C will be fined millions of dollars if it gets caught. C’s president ignored A’s warning, so A reported the matter to the highest authority in the company—the audit committee of the board of directors. The audit committee did nothing. What may A do? |
|
Definition
| If A reasonably believes that the company will be seriously injured if the dumping continues, A MAY report to the appropriate environmental enforcement authority, even if some of that info would otherwise be protected by the duty of confidentiality |
|
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Term
| The lawyer for an organization may represent both the organization and one or more of the directors, officers, employees, or other persons associated with the organization, provided that ... |
|
Definition
| the ordinary conflict of interest rules are satisfied |
|
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Term
| The Anti-Nuclear Coalition sued Consolidated Light and Power Co. and the president of Consolidated under federal, state, and common law to prevent Consolidated from starting up a nuclear generating plant that it had constructed. The firm of W, X & Y was retained to represent both Consoli- dated and its president. After careful examination, the firm concluded that it could represent both clients effectively, even though their interests potentially conflict on one or two points. After the firm explained the potential conflicts, the president gave informed consent on his own behalf, confirmed in writing, and the chairman of the board of directors gave informed consent on behalf of the company, confirmed in writing. Is the dual representation proper? |
|
Definition
|
|
Term
| Does the MRPC forbid a lawyer from serving as both a director of an organization and as a lawyer for the organization? |
|
Definition
No, but it can create conflicts of interest.
When lawyer participates in a meeting as a director, not lawyer, attorney-client privilege will not apply to communications of the meeting, but other directors may not realize that. |
|
|
Term
| If there is a substantial risk that the dual role of a lawyer as a director and lawyer will create a conflict of interest, what should the lawyer do? |
|
Definition
| either resign as director or not act as the organizations lawyer when a conflict arises |
|
|
Term
| The Sarbanes-Oxley Act applies to lawyers who represent ... and who practice before ... |
|
Definition
an issuer of securities
the SEC "securities lawyers" |
|
|
Term
| Sarbanes-Oxley Act includes not only lawyers who transact business with the SEC, communicate with it, or represent a securities issuer before it, but also lawyer who... |
|
Definition
| give advice about a document that will be filed with the S.E.C. or advice about whether information must be filed with the S.E.C. |
|
|
Term
| What must a securities lawyer do if she becomes aware of credible evidence that her client is materially violating a federal or state securities law, or has breached a fiduciary duty under federal/state law? |
|
Definition
| She MUST report the evidence to her client's chief legal officer or chief executive officer. |
|
|
Term
| After a securities lawyer reports evidence of a violation to the chief legal officer, what must the CLO do? |
|
Definition
| investigate the situation to determine whether a violation occurred, and if so must take all reasonable steps to get the client to make an appropriate response. CLO must report results to securities lawyer |
|
|
Term
| if a securities lawyer is fired for complying with the Sarbanes-Oxley rules, what may she do? |
|
Definition
| Report the firing to the client's board of directors, which will lead to wrongful termination suit |
|
|
Term
| A lawyer is subject to discipline for doing what with a client's money/property? |
|
Definition
| commingling it with the lawyer's own personal or business funds/property |
|
|
Term
| What must be done with all money that a lawyer receives in connection with a representation? |
|
Definition
| Must promptly be placed in a client trust fund account, separate from the lawyer's own personal and business accounts |
|
|
Term
| What are the 4 additional duties a lawyer has respecting a client's money or property? |
|
Definition
1. Must notify the client promptly when a 3rd party turns over money or property to hold on the client's behalf
2. Must keep complete, accurate, and up-to-date records of all money and property held on behalf of the client and preserve records for 5 years after rep ends
3. Must render appropriate accountings of all money/property held on behalf of client
4. When time comes to pay over money or deliver property to which client/3rd party is entitled, lawyer must do so promptly |
|
|
Term
| When acting as an advisor to a client, a lawyer must exercise __ __ and render __ __ |
|
Definition
independent judgment
candid advice |
|
|
Term
| May a lawyer give a client moral, economic, social, or political advice? |
|
Definition
| When relevant to the client's situation |
|
|
Term
| When appropriate, a lawyer may urge a client to seek advice from persons in __ __ |
|
Definition
| related professions-- eg advice from an accountant, psychiatrist, physician, or family counselor |
|
|
Term
| A lawyer ordinarily has no duty to give advice until __ |
|
Definition
|
|
Term
| When can a lawyer volunteer advice without being asked? |
|
Definition
| If lawyer knows that client is planning a course of action that will have substantial adverse legal consequences for the client |
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|
Term
| Client C hired lawyer L to do some tax work. In the course of that work, L learned that C was regularly putting large amounts of money into a trust estab- lished for her grandchildren. If L reasonably believes that C is endangering her ability to provide for her own needs in old age, may L call that fact to C’s attention? |
|
Definition
| Yes, and L may assist C in working out a safer plan for investment and disposition of her assets. |
|
|
Term
| A lawyer may evaluate a client's affairs for the use of a third person if... |
|
Definition
| the lawyer reasonably believe that making the evaluation is compatible with the lawyer's other responsibilities to the client |
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Term
| Lawyer L is defending client D Company in a suit for infringement of three United States patents. If D loses the infringement suit, its business will be virtually wiped out. D seeks to borrow a substantial sum of money from trust company T, and D asks L to evaluate its business and its pending litigation and to render a report to T. Should L perform the evaluation? |
|
Definition
| No. L's responsibilities to D as an advocate in the patent infringement case are not compatible with rendering a candid evaluation for use by T. |
|
|
Term
| If the lawyer knows or should know that the evaluation of his client's affairs for the use of a third person will materially harm the client, the lawyer must... |
|
Definition
| obtain the client's informed consent before making the evaluation |
|
|
Term
| The client may limit the scope of the evaluation or the sources of information available to the lawyer, but the lawyer should ... |
|
Definition
| describe any material limitations in the report furnished to the 3rd person |
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|
Term
| A lawyer who is hired to evaluate a client's affairs for a third person may be liable to the third person for... |
|
Definition
| negligence in rendering the evaluation |
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Term
| Client C hired attorney A to evaluate C’s financial condition for bank B in the hope that B would lend money to C. A’s opinion letter to B negligently misrepresented C’s financial condition, as a direct result of which B suffered a large loss. Is A liable to B? |
|
Definition
|
|
Term
| When a lawyer agrees to certify facts to a large number of persons who can be expected to rely on the lawyer, the lawyer has a special obligation to be __, __, and __ |
|
Definition
|
|
Term
| When does this special obligation most often arise? |
|
Definition
| when a lawyer has prepared an opinion letter to be used in disclosure documents for securities investors. The lawyer may be held liable for both misstatements and omissions of material facts |
|
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Term
| A lawyer is not a guarantor of every fact in the disclosure materials about the company or transaction. However, if the disclosures are inconsistent, or the lawyer has any reason to doubt their accuracy, the lawyer has a duty to ... |
|
Definition
| inquire to determine the correct facts |
|
|
Term
| When negotiating in litigation and non-litigation context, a lawyer is prohibited from |
|
Definition
| making a false statement of material fact |
|
|
Term
| Key factor to examine when determining if a statement contains a material fact? |
|
Definition
| whether the opposing party would be reasonable in relying on the statement made |
|
|
Term
| What types of info aren't considered material facts in the negotiation context? |
|
Definition
| certain types of subjective statements, such as those relating to the relative merits of the case, estimates of price and value, and a party's intentions as to an acceptable settlement |
|
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Term
| Does a lawyer who believes an opponent is underestimating the strength of his client's position have a duty to correct that misapprehension? |
|
Definition
| No, unless the lawyer or client caused it. But sometimes opponent's lack of knowledge of pertinent facts may be so important that disclosure is required. |
|
|
Term
| A lawyer serves as this when she assists two or more non-clients in resolving a dispute or other matter than has arisen between them |
|
Definition
|
|
Term
| Examples of a third party neutral? |
|
Definition
| arbitrator, mediator, conciliator, or evaluator |
|
|
Term
| When a lawyer serves as a third party neutral, she is subject notably to the ordinary rules of legal ethics, but also... |
|
Definition
| to various codes of conduct devised by groups such as the American Arbitration Association |
|
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Term
| When a lawyer is acting as a third party neutral, what must she explain to unrepresented parties? |
|
Definition
| that the attorney-client privilege doesn't apply to communications between them, she is not protecting his interests |
|
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Term
| a lawyer is subject to discipline for bringing a __ proceeding or for asserting a __ defense or taking a __ position on an issue in a proceeding |
|
Definition
|
|
Term
| A frivolous position is... |
|
Definition
| one that cannot be supported by a good faith argument under existing law and that can't be supported by a good faith argument for changing the existing law |
|
|
Term
| Is it frivolous to assert a position without first fully substantiating all the facts? |
|
Definition
|
|
Term
| Is it frivolous to assert a position knowing that vital evidence can be uncovered only through discovery proceedings? |
|
Definition
|
|
Term
| Is it frivolous to assert a position even though the lawyer believes that the position will not ultimately prevail? |
|
Definition
|
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Term
C purchased land bordering a government forest, hoping to obtain the neces- sary government approval to build a ski resort. When the government refused to grant the necessary approval, C hired lawyer L to sue the government for taking C’s property without just compensation. L advised C that her legal position
was contrary to the existing law, but L developed two tenable arguments for distinguishing C’s case from the existing law. Even though L believed that his arguments were sound, he did not believe that they would ultimately prevail in the United States Supreme Court. Is L subject to discipline? |
|
Definition
|
|
Term
| exception to the general rule against taking frivolous positions |
|
Definition
| D counsel in criminal case may conduct the defense so that the prosecutor must prove every necessary element of the crime |
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Term
Attorney A agrees to defend D in a kidnapping case. From the facts related
in confidence by D, A concludes that D is clearly guilty as charged. If D nevertheless wishes to plead not guilty, will A be subject to discipline for putting the prosecution to its proofs and requiring every element of the case to be proven beyond a reasonable doubt. |
|
Definition
|
|
Term
| A lawyer must make reasonable efforts to __ litigation, consistent with the interests of the client |
|
Definition
|
|
Term
| A lawyer may occasionally ask for a __ for personal reasons, but he shouldn't make a habit of it |
|
Definition
|
|
Term
| Client C lost her case at trial, and a judgment for $500,000 was entered against her. C’s obligation to pay the judgment was stayed pending appeal. C instructed her lawyer to appeal the case and to drag out the appeal as long as possible, pointing out that she could earn an 11% return on the $500,000 while the appeal was pending. C’s lawyer obtained every possible extension of time and delayed the appeal as long as he could. Ultimately, the appellate court affirmed the judgment below. Is C's lawyer subject to discipline? |
|
Definition
|
|
Term
| An attorney is subject to discipline for knowingly making a false statement of law to the court or for ... |
|
Definition
| failing to correct a previously made false statement of material law |
|
|
Term
| An attorney is subject to discipline for knowingly failing to disclose to the court a legal authority in the __ __ that is __ __ to the client's position and that hasn't been disclosed by the opposing counsel |
|
Definition
| controlling jdx directly adverse |
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|
Term
| Lawyer L is representing client C in a diversity of citizenship case pending in the United States District Court for the District of Nevada. Under the Erie doctrine, Nevada law (including Nevada’s choice of law rules) governs on issues of substance. In the case at hand, Nevada’s choice of law rules make the controlling law that of the state of New York. L’s adversary fails to call the court’s attention to a New York Court of Appeals case that is directly contrary to the position taken by L’s client. Must L cite the case to the court? |
|
Definition
|
|
Term
| Ordinarily, an attorney is not required to have personal knowledge of the facts stated in __ and other litigation documents |
|
Definition
| pleadings. those contain assertions made by the client or by other persons, not by the attorney. |
|
|
Term
| When an attorney does make an assertion of fact to the court (in affidavit or when asserting facts in oral argument), attorney is expected either to... |
|
Definition
| know that the assertion is true or to believe it to be true based on reasonably diligent inquiry |
|
|
Term
| An attorney's failure to speak out is the equivalent of an affirmative misrepresentation in what contexts? |
|
Definition
| when attorney or client has caused a mistake or misunderstanding |
|
|
Term
| When the court was deciding what sentence to impose on attorney B’s client, the court said: “I assume that this is your client’s first drunk driving offense, counsel, so I am ordering him to attend drunk driving school and to pay a fine of $100.” B knew that his client had two prior drunk driving offenses and that the mandatory sentence for the third such offense is revocation of license and 90 days in the county jail. Must B speak up? |
|
Definition
| No. Neither B nor his client caused the court’s mistake. If they had, then B would have to correct it |
|
|
Term
| An attorney generally has no obligation to volunteer a fact that... |
|
Definition
| is harmful to his client's case |
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|
Term
| Lawyer L is defending D at the trial of a private treble damages antitrust case. Plaintiff’s case-in-chief is defective. L knows that the defect could be cured if plaintiff were aware of a certain meeting between D and D’s competitors. Throughout the long discovery proceedings, plaintiff never inquired about this meeting, although he had ample opportunity to do so. What is Ls duty? |
|
Definition
| no duty to volunteer information about the meeting, ethical obligation is to move for a directed verdict at the close of plaintiff's case-in-chief |
|
|
Term
| In this type of proceeding, only one side is present |
|
Definition
|
|
Term
| Lawyer's duty in an ex parte proceeding? |
|
Definition
| because other side has no opportunity to offer its version of facts, lawyer must inform the tribunal of all material facts known to lawyer that will help tribunal make an informed decision |
|
|
Term
| If a lawyer has offered a piece of evidence and later discovers that it is false, she must take what three reasonable remedial measures? |
|
Definition
1. lawyer must speak confidentially with her client, urgings clients cooperation in withdrawing or correcting the false evidence
2. If client won't cooperate, lawyer should consider asking court's permission to withdraw if big enough rift created, and should move to strike the false evidence or take other steps to cancel out its effect
3. if withdrawal not permitted or won't solve problem, lawyer must disclose situation to judge even if it means disclosing client's info that would otherwise be protected under the duty of confidentiality |
|
|
Term
| Duty to rectify false evidence continues until... |
|
Definition
| end of proceedings (no more appeals) |
|
|
Term
| When a lawyer in a civil matter learns that her client is about to testify falsely, what should lawyer do? |
|
Definition
| cannot call her client to the stand |
|
|
Term
| When a lawyer in a civil OR criminal matter learns that her client has testified falsely, what is her duty? |
|
Definition
same steps as in previous cards:
try to convince D not to testify, if doesn't work consider withdrawal if it will solve problem. I fall else fails lawyer must reveal the situation to judge, even if it means disclosing confidential info |
|
|
Term
| A lawyer who represents a client in an adjudicative proceeding must take appropriate measures to prevent any person (a client or anyone else) from committing criminal or fraudulent conduct that will corrupt the proceedings. 5 examples of such conduct are? |
|
Definition
1. hiding or destroying evidence
2. bribing a witness
3. intimidating a juror
4. buying a judge
5. failing to obey a law or court order to disclose information. |
|
|
Term
| Attorney A is defending surgeon S in a medical malpractice case. Student nurse N observed the operation in question, including the act that allegedly constitutes the malpractice. Two days before plaintiff took N’s deposition, S’s father told N: “If you testify at your deposition that you saw S do the act in question, I’ll make sure you never get a nursing job in this state.” At her deposition, N testified that she was not in the operating room at the time of the alleged act. Two days after the deposition, A learned what S’s father did. What must A do? |
|
Definition
| set the record straight and if all else fails tell the tribunal what happened |
|
|
Term
| A lawyer must not unlawfully obstruct another party’s access to |
|
Definition
|
|
Term
| a lawyer must not unlawfully __, __, or __ a document or other item having evidentiary value |
|
Definition
|
|
Term
| In addition to not being allowed to alter/destroy/conceal evidence, a lawyer must not... |
|
Definition
| counsel or assist another person to do any of these things |
|
|
Term
| A special prosecutor was appointed to investigate certain allegations against a government official. The official told his lawyer about some highly incriminating documents in a file in his office. The lawyer suggested that the official “deep six” the file in the nearest river. Is lawyer subject to discipline? |
|
Definition
|
|
Term
| A lawyer must not try to __ the testimony or put words in the witness's mouth |
|
Definition
|
|
Term
| a lawyer must not offer an __ to witness that is prohibited by law |
|
Definition
|
|
Term
| what 3 kinds of payments to witnesses are proper? |
|
Definition
travel, meals, lodging, and incidentals
loss of time
experts' fees |
|
|
Term
| In a complex securities case, client C needed the testimony of an expert on securities brokerage. C’s lawyer L agreed to advance the expenses for expert E and promised to pay E’s travel, hotel, meal, and incidental expenses. L also promised E a witness fee of $1,000 or 2% of C’s eventual recovery, whichever was greater. Is L subject to discipline? |
|
Definition
| the arrangement for expenses was proper, but the witness fee arrangement makes L subject to discipline. |
|
|
Term
| A lawyer can't advise someone to avoid being made a witness. But, a lawyer can advise a person not to voluntarily give info to an opponent or other party if what 2 conditions are met? |
|
Definition
the person is a client or a relative/employee/agent of client, and
lawyer reasonably believes that the person's interests won't be harmed by not volunteering the info |
|
|
Term
| Attorney A represents W in a child custody dispute with W’s former husband, H. A believes that H’s lawyer will probably try to interview W’s sister to find out information about W’s fitness as a parent. May A advise the sister that she need not speak voluntarily with H’s lawyer about the matter? |
|
Definition
| yes, absent some kind of harm to the sister. But if A learn's that H's lawyer is trying to serve a deposition subpoena on the sister, A can't advise the sister to leave town or hide |
|
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Term
| At the jury trial of D for automobile theft, the trial judge ordered prosecutor P to make no mention whatsoever of D’s former misdemeanor convictions. In cross-examining one of D’s witnesses, P asked: “When you and D were cellmates in the county jail back in 1998, did D invite you to join a car theft operation after your release?” Is P subject to discipline? |
|
Definition
| If P was intentionally trying to evade the trial judge's order |
|
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Term
| a lawyer may openly refuse to obey such a rule or order of the court for the purpose of ... |
|
Definition
| making a good faith challenge to the validity of the rule or order |
|
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Term
| A lawyer must not make a frivolous discovery request, or fail to make __ __ to comply with a legally proper discovery request made by the adversary |
|
Definition
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Term
| Lawyer L intentionally failed to produce a certain set of handwritten notes that were clearly called for by a court order. L’s conduct caused L’s adversary to spend several hundred hours in developing alternative evidence of the facts stated in the notes. Is L subject to discipline? |
|
Definition
| Yes AND is subject to such other sanctions as the court may see fit to impose |
|
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Term
| A lawyer is subject to discipline for engaging in what 3 types of chicanery during the trial of a case? |
|
Definition
1. Referring to inadmissible material (irrelevant/not supported by admissible evidence)
2. Asserting personal knowledge of contested facts
3. Asserting personal opinions |
|
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Term
| At the trial of a railway accident case, plaintiff’s lawyer made repeated reference to the great size and wealth of the railway company. The comments were irrelevant to any issue in the case and were made solely to inflame the jury. Is the lawyer subject to discipline? |
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Definition
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Term
| During her opening statement to the jury, the defense lawyer pointed out that plaintiff had offered to settle his claim for a small sum. The defense lawyer knew that evidence of the settlement offer would not be admissible. Is the lawyer subject to discipline? |
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Definition
|
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Term
| Lawyer L represented the plaintiff in a dog bite case. The defendant contended that he was not the owner of the offending dog. In his closing argument to the jury, L said: “The defendant has solemnly told you that he does not own the dog. As it happens, I live down the street from the defendant, and every night about 10, I see the defendant taking that very same dog for a walk.” is L subject to discipline? |
|
Definition
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Term
| During the trial of a case, a lawyer must not state a personal opinion about what 4 subjects? |
|
Definition
the justness of a cause
the credibility of a witness
the culpability of a civil litigant
the guilty or innocence of an accused |
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Term
| During his closing argument in a routine traffic accident case, attorney A said: “D has told you that the light was green. I was appalled to hear the man say that from the witness stand, under oath! I don’t believe him for a minute, and I ask you not to believe him either.” Is A's argument proper? |
|
Definition
| No. But lawyer can make his point by referring to the evidence rather than expressing personal opinion: D said light green. D has a lot to lose, two eyewitnesses who have nothing to lose testified light was red. |
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Term
| Under the ABA Model Rules, may a lawyer may bring, or threaten to bring, criminal charges against her adversary in order to gain an advantage in a civil case? |
|
Definition
| Yes, provided that the criminal and civil matters are closely related and that both the civil case and criminal charges are warranted by the law and the facts. |
|
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Term
| May a lawyer threaten to report adversary counsel for a disciplinary violation in order to gain an advantage for her client in a civil case? |
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Definition
| No. If there's a violation that must be reported, lawyer should simply report it |
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Term
| Lawyer L has personal knowledge that adversary counsel lied to the judge about a certain document that L had requested in discovery. L then told adversary counsel: “If you accept my client’s settlement proposal, then I will not report you for lying to the judge about that document.” Is L's conduct proper? |
|
Definition
| No. She should've reported adversary counsel, because it raised a substantial question about a person's fitness to practice |
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Term
| The professional ideal is that advocates relate to each other with a __ and __ attitude marked by civility consistent with their responsibility to their clients. |
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Definition
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Term
| Witness W repeatedly lied during her deposition. Lawyer L finally lost her temper and slapped W hard across the face. What kind of discipline is L subject to? |
|
Definition
Civil and criminal liability
also discipline for conduct that is prejudicial to the administration of justice and conduct that shows unfitness to practice law |
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Term
| Attorneys A and B frequently appear as counsel in the Superior Court. C is the chief clerk of that court. All three of them are avid fishermen. A and B invite C to join them, at their expense, for a week of salmon fishing at B’s lodge in Alaska. Would it be proper under the Code of Judicial Conduct for C to accept the gift? |
|
Definition
| No. and It is not proper for A and B to offer it to C. |
|
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Term
| While a proceeding is pending in a tribunal, a lawyer must not have this type of communication with a judge, court official, juror, or prospective juror except when authorized by law or court order. |
|
Definition
|
|
Term
| Is a written communication to a judicial officer ex parte? |
|
Definition
| Not if a copy of the communication is timely sent to the opposing parties |
|
|
Term
| A lawyer must not, however, communicate orally on the merits of a matter with the judge or other official before whom the matter is pending without giving __ __ to the adversary. |
|
Definition
|
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Term
| If the local rules of court allow lawyers to appear ex parte, without notice to the adversary, to obtain extensions of time to plead or respond to discovery, a lawyer may do so—but the lawyer must not... |
|
Definition
| discuss the merits of the case when requesting the extension of time. |
|
|
Term
| ABA Model Rule 3.5(b) recognizes that local law may vary concerning contact between lawyers and __ or prospective __. |
|
Definition
|
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Term
| In general, before and during the trial of a case, a lawyer who is connected with the case must not communicate (outside of official proceedings) with... |
|
Definition
| a juror or member of the panel from which the jurors will be chosen ON ANY SUBJECT, even the weather, regardless of who initiates communication. |
|
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Term
| Is it proper for a lawyer to investigate members of a jury panel to determine their backgrounds and the existence of any factors that would be grounds for a challenge |
|
Definition
| yea, but must be done discreetly and must not involve contact with the prospective juror or her family |
|
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Term
| May a lawyer review a juror’s or potential juror’s public Internet presence (e.g., postings on social media websites) in advance of and during a trial? |
|
Definition
| Yes, unless limited by law or court order. But lawyer can't send juror an access request |
|
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Term
| After the trial is over and the jury is discharged, a lawyer must not communicate with a former jury member (or even a person who was a prospective juror) if any of the following 3 conditions is met: |
|
Definition
1. local law or court order prohibits such communication
2. juror has told lawyer that he doesn't want to communicate
3. communication involves misrepresentation, coercion, or harassment. |
|
|
Term
| May a lawyer make a statement that the lawyer knows is false about the qualifications or integrity of a judge, hearing officer, or public legal official, or about a candidate for a judicial or legal office? |
|
Definition
|
|
Term
| Lawyer K made unfounded accusations in two petitions, asserting that certain appellate judges were deliberately dishonest in failing to recuse themselves in a case K was handling. Is K subject to discipline? |
|
Definition
|
|
Term
| Attorney A was one of two candidates for a vacant superior court judgeship. She personally solicited and accepted campaign contributions from other members of her law firm. Is A subject to discipline? |
|
Definition
| Yes under the ABA Code of Judicial Conduct |
|
|
Term
| A lawyer who is connected with a case generally must not make a public statement outside the courtroom that the lawyer reasonably should know would have a... |
|
Definition
| substantial likelihood of materially prejudicing the case |
|
|
Term
| A lawyer may, however, make a public statement that a reasonable lawyer would believe is required to protect a client from the __ __ __ __ of recent publicity not initiated by the lawyer or the lawyer's client |
|
Definition
| substantial undue prejudicial effect |
|
|
Term
| Professional tennis star Jacques LaMont was arrested for sexually assaulting an employee in the hotel where he was staying. Dozens of media reporters descended on the inexperienced prosecutor assigned to LaMont’s case. The reporters demanded to know what evidence there was against LaMont, who was reputed to be a clean-living family man. The prosecutor said he could not disclose any details, but that there was “some incriminating physical evidence,” plus a “helpful signed statement that LaMont gave to the police voluntarily.” The prosecutor’s comments got wide coverage in the press and on television. LaMont’s counsel feared that the prosecutor’s characterization of LaMont’s signed statement as “helpful” would make people think that LaMont had incriminated himself. Seeking to dispel that false impression, LaMont’s counsel told reporters, quite accurately, that the most “incriminating” parts of LaMont’s statement were that he was a paying guest of the hotel on the night in question and that at the time in question LaMont was asleep in his own hotel room, alone. Are prosecutor or defense counsel subject to discipline? |
|
Definition
|
|
Term
| A prosecutor in a criminal case must not make extrajudicial comments that have a substantial likelihood of... |
|
Definition
| heightening public condemnation of the accused |
|
|
Term
| What 6 "dry facts" about the case may a lawyer state publicly? |
|
Definition
1. Claim, charge, or defense involved (must be accompanying statement that charge is only an accusation and party is innocent until proven guilty)
2. Names of persons involved (unless law prohibits it)
3. Any info that is already in the public record
4. Scheduling or result of any step in litigation
5. Fact that an investigation is ongoing, a request for help in getting info, and a warning of danger if appropriate
6. Routine booking info about a D such as name/address/job/family status/time and place of arrest/names of arresting officers/names of investigating officers or agencies |
|
|
Term
| A lawyer can't act as an advocate at a trial in which the lawyer is likely to be a __ witness |
|
Definition
|
|
Term
| A lawyer may serve as trial counsel if lawyer's testimony as a witness will relate solely to an __ matter or to a mere __ |
|
Definition
|
|
Term
| Attorney A’s testimony will be limited to the authentication of a letter, and there is no reason to doubt the letter’s authenticity. May A or another lawyer in her firm serve as trial counsel? |
|
Definition
|
|
Term
| A lawyer may serve as trial counsel if his testimony will relate solely to the __ and __ of legal services he has rendered in the case |
|
Definition
|
|
Term
| A lawyer may serve as trial counsel and also testify about any matter if withdrawal as trial counsel would cause __ __ |
|
Definition
| substantial hardship. But narrow view on what counts |
|
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Term
| For the past five years, attorney C has worked full-time on the discovery and pretrial preparation of a major tax fraud case. Just before trial, C discovered that she would have to testify on a contested issue concerning some entries in her client’s books of account. If C withdraws as trial counsel, it will cost her client many thousands of dollars in extra legal fees, and it will delay the trial by 18 months. Should substantial hardship exception apply here? |
|
Definition
| Yes, but some authority to contrary |
|
|
Term
| A lawyer is permitted to act as an advocate at a trial in which another lawyer in the lawyer’s firm is likely to be called as a witness unless precluded from doing so by ... |
|
Definition
| the conflict of interest rules |
|
|
Term
| A prosecutor must not prosecute a charge that she knows is not supported by |
|
Definition
|
|
Term
| Prosecutor must make reasonable efforts to assure that the accused is... |
|
Definition
| advised of right to counsel and of the procedure for obtaining counsel, and given a reasonable opportunity to obtain counsel |
|
|
Term
| Sheriff S is in charge of the county jail. S has established jail regulations that frequently result in an accused being held incommunicado for a long period before being given a chance to use the telephone. What must county DA A do? |
|
Definition
| make reasonable efforts to have the jail regulations changed |
|
|
Term
| A prosecutor must not seek to obtain from an unrepresented accused... |
|
Definition
| a waiver of important pretrial rights, such as right to PH |
|
|
Term
| Indigent accused A was advised of his right to remain silent and of his right to have counsel appointed to defend him. A asked for the services of a public defender, and A said that he did not want to make any statement. Before the public defender arrived, A was brought to a small room and allowed to relax over a cup of coffee. At that time, prosecutor P urged him to “assist us voluntarily in finding out what happened so we can clear this up and get you out of here without getting into legal technicalities. Is P subject to discipline? |
|
Definition
|
|
Term
| A prosecutor must timely disclose to the defense all evidence and information known to the prosecutor that tends to... |
|
Definition
| negate the guilty of the accused, or mitigate the degree of the offense |
|
|
Term
| Failure of prosecutor to disclose this may deprive D of due process |
|
Definition
|
|
Term
| D was accused of second degree murder. Prosecutor P asked the county coroner to pay special attention to the size, shape, and location of the stab wound that killed the victim. The coroner reported that the wound was probably inflicted by a person who was being held down on the ground by the victim. Does prosecutor have to tell D? |
|
Definition
| Yes because it suggests self-defense |
|
|
Term
| When a convicted person is to be sentenced, the prosecutor must disclose to the defense and to the court all __ __ __ known to the prosecutor |
|
Definition
unprivileged mitigating info
EXCEPT when a protective order of the court relieves the prosecutor of this obligation |
|
|
Term
| A prosecutor must promptly disclose __, __, and __ evidence that creates a reasonable likelihood that a defendant was wrongly convicted |
|
Definition
|
|
Term
| the prosecutor must seek to remedy the conviction of a defendant in his jurisdiction if ... |
|
Definition
| he knows of clear and convincing evidence that the defendant was innocent. |
|
|
Term
| A prosecutor must not subpoena another lawyer to give evidence about a client or former client unless... |
|
Definition
| the evidence is not privileged, is essential, and cannot be obtained in another way. |
|
|
Term
| A government lawyer with discretionary power relative to civil litigation should not institute or continue actions that are __ __ |
|
Definition
|
|
Term
| Even if litigation appears warranted, a government lawyer has a responsibility to develop a... |
|
Definition
|
|
Term
| When a lawyer appears on behalf of a client before a legislative body or administrative agency, the lawyer must disclose that... |
|
Definition
| she is acting in a representative capacity (not on her own behalf) |
|
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Term
| The Columbia Association of Manufacturers and Retailers hired lawyer L to assist it in opposing a proposed new inventory tax. In that capacity, L testi- fied in hearings before the Finance Committee of the Columbia Municipal Council. In her testimony, L presented both legal and economic arguments against the proposed tax. Must L disclose to the Finance Committee that she is acting in a representative capacity? |
|
Definition
|
|
Term
| When a lawyer represents a client before a legislative body or administrative agency in an official hearing or meeting at which the lawyer or client presents evidence or argument, the lawyer must, generally speaking, follow the same rules as though __ __ |
|
Definition
|
|
Term
| When dealing on behalf of a client with a third person, a lawyer must not knowingly make... |
|
Definition
| a false statement of law or material fact |
|
|
Term
| Generally, a lawyer has no duty to inform a third person of relevant facts. However, a lawyer must not... |
|
Definition
|
|
Term
| When are the 4 types of misrepresentation? |
|
Definition
1. when lawyer makes a statement knowing its false
2. when lawyer affirms or incorporates a statement knowing its false
3. when lawyer states something that is partly true but misleading
4. In some contexts when lawyer fails to speak or act |
|
|
Term
| Lawyer L represented seller S in negotiating a sale of S’s farm to buyer B. L and S accompanied B on a walking tour of the farmlands, and it soon became apparent to them that B knew little or nothing about farming. When B looked over the north 40 acres, he said: “I assume that the soil and water here would be good for a nice walnut orchard.” L and S both knew that the soil was far too wet and heavy to grow walnuts. S replied: “Oh, you’d be surprised what can grow here.” L said nothing. Is L subject to discipline? |
|
Definition
| Yes, failure to speak out is equivalent to an affirmative misrepresentation in this context |
|
|
Term
| Attorney A represented plaintiff P in a personal injury case. P died while settlement negotiation was going on with the defendant. What must A do? |
|
Definition
| Not pursue settlement negotiation without notifying defense lawyer of Ps death |
|
|
Term
| Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact. Give examples |
|
Definition
| estimates of price or value placed on the subject of a transaction are ordinarily regarded as mere puffery, and so is a statement of a party's intentions as to settlement of the claim |
|
|
Term
| Attorney A was employed by Consolidated Liability Insurance Company to defend its insured, D, in an automobile accident case. After careful investigation, A concluded that D was clearly at fault. A advised Consoli- dated to settle, and Consolidated authorized A to settle the case for any sum under $10,000. A few days later, plaintiff’s lawyer telephoned A and suggested that they meet to discuss a settlement. A responded: “I will be glad to listen to whatever you have to propose, but I sincerely doubt that Consolidated will be interested in settling—I think we can win this one at trial.” Is A subject to discipline? |
|
Definition
| No. in negotiation setting, As statements would be regarded as mere puffery, not false statements of material fact |
|
|
Term
| where the duty of confidentiality prevents the lawyer from disclosing material facts, and where continued representation would require the lawyer to assist in the client’s crime or fraud, lawyer must... |
|
Definition
|
|
Term
| Client C hired attorney A to obtain import licenses to sell C’s chemical fertilizer in Australia and New Zealand. While the license applications were pending, C and A negotiated a contract to sell C’s entire fertilizer business to X. At C’s request, A prepared a “Statement of Operations, Assets, and Liabili- ties” for X. In the statement, A represented that the Australian and New Zealand import licenses were pending and that in A’s opinion they would be granted. Before the sale was closed, both Australia and New Zealand notified C that they would not issue the import licenses, and C conveyed this informa- tion to A in confidence. A advised C that X must be informed of this material fact, but C responded: “To hell with X—your job is to get the sale completed. Now get busy.” Under the ABA Model Rules view, the duty of confidentiality forbids A from revealing the license denial to X, but if A continues with the representation, he will be assisting C in defrauding X. A must withdraw. A may advise X of his withdrawal, and he may disaffirm his prior opinion as to the Australian and New Zealand import licenses. |
|
Definition
|
|
Term
| A lawyer must not communicate about a matter with a person the lawyer knows is represented by counsel, even if represented person initiates or consents to the communication, unless... |
|
Definition
| the person's counsel consents, or unless the law or a court order authorizes the communication |
|
|
Term
| In the case of P v. D, the lawyer for D had excellent reason to believe that P’s lawyer had failed to convey D’s settlement offer to P. D’s lawyer therefore telephoned P and made the settlement offer directly. Is D subject to discipline? |
|
Definition
| Yes for communicating with a repped person without consent of that person's counsel. P's lawyer is also subject to discipline if he failed to convey Ds settlement offer to P |
|
|
Term
| Defendant D was in jail awaiting trial for murder. D was represented by appointed counsel. Without the consent of the appointed counsel, the prosecutor visited D at the jail and discussed the possibility of a plea bargain with D. Prosecutor subject to discipline? |
|
Definition
|
|
Term
| a lawyer must get the consent of the organization’s counsel before communicating with what 3 types of constituents of the organization? |
|
Definition
1. Person who supervises, directs, or regularly consults with the organization's lawyer about the matter at hand
2. Person whose conduct may be imputed to the organization for purposes of criminal/civil liability
3. Person who has authority to obligate the organization concerning the matter |
|
|
Term
| Consent is not needed before talking to a __ constituent of the organization |
|
Definition
|
|
Term
| However, when talking with either a present or former constituent, a lawyer must take care not to violate the organization’s legal rights, such as the __ __ __ |
|
Definition
| attorney-client privilege |
|
|
Term
| Lawyer L represents the plaintiff in a defamation action against the Herald Newspaper Corp. Without getting the permission of the Herald’s counsel,L interviewed the newspaper’s former editor-in-chief and convinced him to disclose some privileged communications he had with the newspaper’s lawyer about the case. Did L act properly? |
|
Definition
| Not in prying into the privileged communications |
|
|
Term
a lawyer is not prohibited from communicating with a represented person when the communication is authorized by law or court order or when the communication does
not concern the .... |
|
Definition
| subject of the representation |
|
|
Term
| May a lawyer interview an unrepresented person who will be called as a witness by some other party? |
|
Definition
|
|
Term
In a complex contract suit between P and D, both parties were represented by counsel. For several months, the respective sets of lawyers tried to work out
a satisfactory settlement, but without success. P concluded that the lawyers had become befogged by petty detail and bickering. P therefore invited D out to lunch, and the two of them worked out a settlement within the space of an hour. Is the communication prohibited? |
|
Definition
| No because direct communication between two represented persons isn't prohibited |
|
|
Term
| When dealing with an unrepresented person, a lawyer must not state or imply that the lawyer is __ |
|
Definition
|
|
Term
| When the lawyer knows, or reasonably should know, that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer must... |
|
Definition
| make reasonable efforts to correct the misunderstanding. |
|
|
Term
| Property owner O wants to lease his empty retail store to merchant M, who wants to use it for a shoe store. M does not have a lawyer, but O is represented by attorney A. In negotiating the terms of the lease, may A communicate directly with M? |
|
Definition
| Yes but should make clear to M that A reps O and is not looking out for M's interests.. |
|
|
Term
| In representing a client, a lawyer must not use means that have no substantial purpose other than to __, __, or __ a third person |
|
Definition
| embarrass, delay, or burden |
|
|
Term
| a lawyer must not use methods of obtaining evidence that violate the legal rights of a __ __. |
|
Definition
|
|
Term
| When preparing to cross-examine witness W, attorney A discovered that W had six misdemeanor convictions for prostitution. A knew that under the applicable evidence law, he would not be allowed to use those misdemeanor convictions for impeachment, and A knew that they were not otherwise relevant to the proceeding. Nonetheless, on cross-examination, A asked: “How old were you when you decided to devote your life to prostitution, Miss W?” Is A subject to discipline? |
|
Definition
|
|
Term
| Lawyer L represented P in a complicated trade secrets case against D Corporation. During discovery, L used a subpoena duces tecum to require E Corporation (a nonparty) to produce thousands of documents in connection with the depositions of some employees of E Corporation. The lawyer for E Corporation allowed L to personally go through E Corporation’s files to pick out and photocopy documents responsive to the subpoena. While doing that, L made copies of many other documents that were not covered by the subpoena, and L did not tell the lawyer for E Corporation what he had done. Is L subject to discipline? |
|
Definition
|
|
Term
| Deputy District Attorney A was assigned to prosecute a bank robbery case against D. A suspected that heroin addict X could probably furnish valuable evidence against D but that X would doubtless refuse to do so. Therefore, A told the police: “Go pick up X on suspicion of drug peddling, and we’ll find out what he knows about D and the bank robbery.” Is A subject to discipline? |
|
Definition
|
|
Term
| When a lawyer obtains a document and she knows or reasonably should know that it was sent by mistake, she must... |
|
Definition
| promptly notify the sender so that the sender can take protective measures |
|
|
Term
| A person who is a party to a firm's partnership agreement |
|
Definition
|
|
Term
| Equivalent of partners in an incorporated firm? |
|
Definition
|
|
Term
| a lawyer who has supervisory or managerial responsibility over other lawyers in a governmental agency, business, or other group of lawyers is the equivalent of a __ |
|
Definition
|
|
Term
| In the context of a private law firm, the term “__” means a lawyer who has a regular relationship with the firm other than as a partner. |
|
Definition
|
|
Term
| Two lawyers who merely __ __ __ should NOT refer to themselves as “associates" |
|
Definition
|
|
Term
| two lawyers must not falsely hold themselves out as a __ or __ __ |
|
Definition
partnership
similar entity |
|
|
Term
refers to a lawyer who has a continuing relationship with a law
firm other than as partner or associate. |
|
Definition
|
|
Term
| This term is commonly used to designate a retired partner who remains active in the firm. |
|
Definition
|
|
Term
| This is also sometimes used to refer to an independent contractor who is regularly retained by the firm to do certain kinds of work |
|
Definition
|
|
Term
| In the context of a lawsuit, “__ __” is sometimes used to designate a firm or lawyer who has been called in to assist the counsel of record on a specific task—for instance, writing an appellate brief or advising on a special field of law. |
|
Definition
|
|
Term
| The term “__ __” is often used to designate the person in charge of the in-house law department of a business. |
|
Definition
|
|
Term
| this term may also be used to designate a private firm or lawyer who devotes a “substantial amount of professional time” to the representation of the business or organization in question. |
|
Definition
|
|
Term
| The partners or managing lawyers of a law firm (and the supervisory lawyers in a govern- mental agency, business, or other group of lawyers) must make reasonable efforts to assure that ... |
|
Definition
| the other lawyers adhere to the MRPC |
|
|
Term
| A lawyer who directly supervises the work of another lawyer must make __ __ to assure that the other lawyer adheres to the Rules of Professional Conduct |
|
Definition
|
|
Term
| In a small private law firm, informal __ and occasional __ may be sufficient |
|
Definition
|
|
Term
| In a larger organization, more __ steps may be necessary |
|
Definition
|
|
Term
| A lawyer is subject to discipline for a disciplinary violation committed by a second lawyer if... |
|
Definition
| 1. first lawyer ordered the second lawyer's misconduct or knew about it and ratified it; or 2. first lawyer is a partner/manager or has direct supervisory responsibility over 2nd lawyer AND knows about misconduct at a time when its consequences can be avoided or mitigated and fails to take reasonable remedial action |
|
|
Term
| Attorney A is not a partner in the M,N&O firm, but she is a senior associate and has been assigned direct supervisory responsibility for the work of junior associate J in the case of Cox v. Fox. A told J to interview Ms. Cox and to prepare her to have her deposition taken. In a fit of misdirected zeal, J advised Ms. Cox to testify to a patent falsehood. After the Cox deposition was taken, but while Ms. Cox was still available as a witness, A discovered what had happened. A made no effort to reopen the Cox deposition or otherwise remedy J’s misconduct. Is A subject to discipline? |
|
Definition
|
|
Term
| a lawyer must follow the ethics rules even when acting under... |
|
Definition
| the directions of another person. |
|
|
Term
| the fact that a subordinate lawyer was acting on directions from a supervisor may be relevant in determining whether the subordinate had the __ that is required for some ethics violations. |
|
Definition
|
|
Term
| Partner P gave associate A a memorandum of fact and asked A to draft a complaint for fraud based on the information in the memorandum. A had no way to know whether the information in the memorandum was complete and truthful. A’s lack of opportunity to gather the facts personally is relevant in deciding whether to discipline A for participating in the filing of a frivolous complaint. |
|
Definition
|
|
Term
| A subordinate lawyer does not violate the rules of professional conduct by acting in accordance with a supervisor’s reasonable resolution of an __ __ of professional duty. |
|
Definition
|
|
Term
| When a debatable ethics question arises, someone must decide on a course of action, and that responsibility must rest with the __ lawyer. |
|
Definition
|
|
Term
| Subordinate lawyer L was assisting supervisor S on a summary judgment motion in a products disparagement case. When drafting the reply memorandum on the motion, L stumbled across a new appellate decision in the controlling jurisdiction concerning libel and slander of persons. The new decision had not been cited by S and L’s adversary. S and L’s duty to call the new decision to the attention of the trial judge depends on whether it is “directly adverse” to their position. L argues that the law of products disparagement and the law of personal libel and slander are so closely related that the new decision must be considered “directly adverse.” S, on the other hand, argues that the two bodies of law are similar only by crude analogy. On this debatable point of ethics, the responsibility for making the final decision rests with ... |
|
Definition
| S, and L shouldn't be disciplined for following S's instructions not to mention the new decision in the reply memo |
|
|
Term
| The partners and managers in a law firm (and the supervisory lawyers in a governmental agency, business, or other group of lawyers) must make reasonable efforts to assure that the conduct of the __ is compatible with the obligations of the profession. |
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Definition
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Term
| Lawyer L hired secretary S without carefully checking her background. L put S in charge of his client trust fund account, but did not carefully supervise her bookkeeping procedures. S stole a substantial sum from the account. L failed to fire S even after he discovered her theft. Is L subject to discipline? |
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Definition
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Term
| Deputy Public Defender D directly supervises the work of her secretary, S, and her investigator, I. D must instruct S and I about... |
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Definition
| the need to keep clients’ information in confidence, and D must make reasonable efforts to assure that they do so. |
|
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Term
| A lawyer is subject to discipline in what two situations when a non-lawyer does something that, if done by a lawyer, would violate a disciplinary rule? |
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Definition
1. lawyer ordered the conduct or knew about it and ratified it; or
2. lawyer is partner/manager of has supervisor role over non-lawyer AND lawyer knows about the misconduct at a time when its consequences can be avoided or mitigated and fails to take reasonable remedial action |
|
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Term
| Can a lawyer share her legal fee with a non-lawyer? |
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Definition
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Term
| Lawyer L wants to practice law part-time, doing work for law firms that need extra temporary help. L gives copies of her resume to LawTemp, Inc., a place- ment agency that is owned by nonlawyers. When law firms need extra help, they call LawTemp, which sends them resumes of several available lawyers. By this route, L obtains temporary work at a firm that agrees to pay her $100 per hour for her work and to pay LawTemp a “placement fee” equal to 5% of the total amount it pays to L. The law firm’s bill to its client includes the amount the firm pays to L and the “placement fee” paid to LawTemp. Is the arrangement proper? |
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Definition
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Term
| The lawyers in a firm may agree that, when one of them dies, the others will pay a __ __ over a reasonable period of time to the dead lawyer’s estate or to designated persons. |
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Definition
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Term
The R, S & T firm set up a death benefit program. After a partner or
associate dies, the firm will make monthly payments to her estate for three years after the death, each payment to equal 40% of her average monthly income during the year before death. Is the program proper? |
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Definition
|
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Term
| The non-lawyer employees of a firm may be included in a compensation or retirement plan even though the plan is based on a __ __ __ |
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Definition
| profit-sharing arrangement |
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Term
| The U, R & S firm sets aside 10% of all legal fees in a fund to be used for year-end bonuses to the partners, associates, and non-lawyer employees. Is the program proper? |
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Definition
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Term
| When a court awards attorneys’ fees to the winning lawyer in a case, the lawyer may share the fee with a __ __ that hired or recommended him as counsel |
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Definition
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Term
| A lawyer must not form a partnership with a nonlawyer if __ part of the partnership activities will constitute the practice of law. |
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Definition
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Term
| Family lawyer F formed a partnership with marital psychologist P; their purpose was to offer a full range of counseling and legal services to family clients. All of the legal work was done by F, and all of the other counseling was done by P—neither transgressed into the domain of the other. Is F subject to discipline? |
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Definition
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Term
| A lawyer must not practice in an incorporated law firm or association authorized to practice law for profit if one of what 3 conditions exist as related to non-lawyers? |
|
Definition
| 1. non lawyer owns any interest in the firm or association 2. non lawyer is a corporate director or officer or the equivalent thereof 3. non-lawyer has the right to direct/control the professional judgment of a lawyer |
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Term
| M is a nonlawyer. She is the business manager of W, Y & U Ltd., an incor- porated law firm. As business manager, she keeps the firm’s calendar, does the firm’s accounting, hires, fires, and supervises all of the firm’s nonlawyer employees, procures all of the firm’s supplies and equipment, and runs the firm’s library. Can M become a stockholder in the firm? |
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Definition
|
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Term
| A lawyer must not allow a person who recommends, employs, or pays her for serving a client to... |
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Definition
| direct or regulate the lawyer’s professional judgment |
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Term
Federated Life Insurance Company employs lawyer L to prepare estate plans for potential life insurance customers. The potential customer pays nothing for the estate planning service; L works on a flat salary paid by Federated.
L, realizing who provides his daily bread, makes sure that every estate plan includes a careful explanation of the “benefits of balanced protection through Federated’s term and whole life policies.” Is L subject to discipline? |
|
Definition
|
|
Term
| A lawyer must neither make nor offer a partnership or employment or similar agreement that restricts a lawyer’s right to practice after termination of the relationship, except for an agreement concerning benefits upon retirement. Such agreements not only limit a lawyer’s autonomy but also limit... |
|
Definition
| the freedom of clients to choose a lawyer. |
|
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Term
| Oakville practitioner A employed young lawyer L by an agreement that purported to prohibit L from practicing in Oakville after leaving A’s employment. Is either subject to discipline? |
|
Definition
|
|
Term
| Sixty-four-year-old solo practitioner S took young lawyer Y in as a partner. Their partnership agreement provided that after S retired, the firm would pay S a retirement benefit of $5,000 per month so long as S did not re-enter the practice of law. Is agreement proper? |
|
Definition
|
|
Term
| A lawyer must neither make nor offer an agreement in which a restriction on the lawyer’s right to practice is part of the __ of a client controversy |
|
Definition
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Term
| Over a period of several years, attorney A represented a series of federal employees in personal injury suits against the federal government concerning cancers allegedly caused by working in the Dos Arboles Radiation Labora- tory. The government settled each suit as it came along, but the more suits the government settled, the more new plaintiffs A was able to find. Ultimately, the government offered to settle all then-pending suits for generous sums, provided that A would never again represent a claimant in a Dos Arboles Radiation case. If A agrees to settle on those terms, will A be subject to discipline? |
|
Definition
|
|
Term
| 1.17 permits the sale of a law practice or a field of law practice, including goodwill, under what circumstances? |
|
Definition
1. seller must cease to engage in the private practice of law, or in the sold field of practice, in the area where the practice has been conducted
2. Entire practice or entire field of practice must be sold to one or more lawyers/firms
3. Written notice must be given to the seller's clients regarding the sale, clients' right to retain other counsel or to take possession of their files, and fact that consent to the transfer of clients' filed will be presumed if a client takes no action within 90 days of receipt of the notice. |
|
|
Term
| If notice can't be given to a client about sell of the practice/firm, a __ __ is required to authorize the transfer of the representation of that client to the purchaser |
|
Definition
|
|
Term
| seller of firm/practice must exercise __ in identifying a purchaser qualified to assume the practice. |
|
Definition
|
|
Term
| After the sale of his practice, a lawyer may still be employed as a lawyer on the staff of a public agency or legal services entity that provides legal services to the __, or as __ __ to a business |
|
Definition
|
|
Term
| a lawyer’s return to private practice after selling firm/practice because of an __ __ __ __ does not necessarily violate the Rules |
|
Definition
| unanticipated change in circumstances |
|
|
Term
| Which client matters in the practice must a new purchaser of that practice undertake? |
|
Definition
|
|
Term
| Can client fees be increased because of the sale of a firm/practice? |
|
Definition
| no, purchaser must honor existing fee agreements |
|
|
Term
| services that might reasonably be performed in conjunction with (and are related to) the provision of legal services and that are not prohibited as unauthorized practice of law when provided by a non-lawyer |
|
Definition
| law-related services, aka ancillary services |
|
|
Term
| Examples of law-related services |
|
Definition
| financial planning, accounting, lobbying, trust services, real estate counseling, providing title insurance, and preparing tax returns. |
|
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Term
| Even though law-related services are not legal services, a lawyer who provides such services is subject to the Rules of Professional Conduct in what two situations |
|
Definition
Nonlegal services and legal services provided together
nonlegal services provided by an entity that is controlled by the lawyer |
|
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Term
Attorney A is an expert in setting up new business ventures. He also knows
many wealthy people who invest money in untried business ventures— so-called venture capitalists. When A draws up the articles of incorporation for client C’s new business venture and also finds some willing investors for C, is A subject to MRPC? |
|
Definition
|
|
Term
| Lawyer L is a certified specialist in family law. Many of her clients are women who want to divorce their husbands and also want to find work outside the home. L and one of her nonlawyer friends own and manage Jobs-4-U, a job placement service. When one of her law clients needs a job, L usually refers the client to Jobs-4-U. L is always careful to tell the client that she has a personal financial stake in Jobs-4-U, but L does not explain that the Rules of Professional Conduct do not apply to services rendered by Jobs-4-U. Is L bound by MRPC? |
|
Definition
| Yes, because she didn't explain that MRPC don't apply to services rendered by Jobs-4-U |
|
|
Term
| When a client-lawyer relationship exists between the lawyer and an individual receiving law-related services, the lawyer must comply with what rule? |
|
Definition
Rule for entering into business transaction with client
1. terms of the transaction must be fair to client 2. terms must be fully disclosed to the client in print and must cover the essential terms of the transaction and lawyer's role in transaction 3. client must be advised in writing that he should seek advice from an independent lawyer regarding the arrangement 4. client must give informed consent in a writing signed by the client |
|
|
Term
| Every lawyer has a professional responsibility to provide legal service to people who... |
|
Definition
|
|
Term
| violating this rule is NOT grounds for professional discipline |
|
Definition
|
|
Term
| Model Rule 6.1 recommends that every lawyer should spend __ hours per year on pro bono work |
|
Definition
|
|
Term
| A “__ __” of pro bono hours should be spent doing unpaid legal service for poor people or organizations that address the needs of poor people. |
|
Definition
|
|
Term
| Lawyers are encouraged to support and participate in legal services organizations, for example... |
|
Definition
| local legal aid societies that provide free legal assistance to underprivileged persons in civil matters |
|
|
Term
| Does and officer/member of a legal services organization have a lawyer-client relationship with persons served by the organization? |
|
Definition
| No, but there can be potential conflicts of interest between interests of those persons and the interests of the lawyer's regular, paying clients |
|
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Term
| A lawyer may serve as a director, officer, or member of a legal services organization (apart from the lawyer’s regular employment) even though the organization serves persons whose interests are adverse to the lawyer’s regular clients. But this general rule is subject to what two limitations? |
|
Definition
1. lawyer mustn't knowingly participate in a decision/action of the organization is doing so would be incompatible with lawyer's obligations to a client under the general conflict of interest rules, or
2. if doing so would adversely affect the representation of one of the organization's clients whose interests are adverse to those of a client of the lawyer |
|
|
Term
| Lawyer L is a member of the board of directors of the Cuttler County Legal Aid Society. The board sets guidelines for the kinds of cases the society will and will not handle. The society’s budget has recently been cut, and the board is forced to revise the guidelines to eliminate some kinds of service. L is also a partner in the R, S & T firm, and that firm is outside general counsel to the Cuttler County Apartment Owners Association, a trade association for landlords. One proposal pending before the Legal Aid Society Board is to eliminate free legal service in landlord-tenant cases. Can L participate in this decision? |
|
Definition
|
|
Term
| Some courts and nonprofit organizations have established programs in which lawyers offer quick advice to people who can then handle their own legal problem without further assistance. Examples? |
|
Definition
| programs that show people how to fill out their own EZ tax forms, legal-advice hotlines, advice-only legal clinics, and programs that show people how to represent themselves in small claims court |
|
|
Term
| does the lawyer-client relationship exist in quick-advice programs? |
|
Definition
| Yes, but conflicts rules relaxed |
|
|
Term
| When attorney A was answering telephone calls on the bar association hotline, she took a call from a farmer who explained that six months ago he hired a farmhand to help him. The farmhand insisted on being paid in cash and insisted that the farmer not withhold any income taxes or pay any Social Security contributions on his behalf. Based on the farmer’s answers to A’s questions, A concluded that the farmhand was an employee, not an indepen- dent contractor. A then advised the farmer about his potential tax liability. Are the farmer’s statements to A protected by the attorney-client privilege and the ethical duty of confidentiality? |
|
Definition
| Yes. A can't disclose farmer's confidential info or use it to the farmer's disadvantage |
|
|
Term
| A lawyer who participates in a quick-advice program ordinarily has no time to conduct an ordinary conflict of interest check. Therefore, the general conflicts principles expressed in Rule 1.7 (current clients) and 1.9 (former clients)and 1.10(imputed conflicts) do not apply unless... |
|
Definition
| the lawyer actually knows that giving the quick advice creates a conflict of interest. or actually knows that he is disqualified from doing do because a conflict imputed from another lawyer in his firm |
|
|
Term
| Will a conflict created by advice a lawyer dispenses in a quick-advice program will be imputed to others in the lawyer’s firm? |
|
Definition
| No. Conflict rules relaxed |
|
|
Term
After attorney A dispensed advice to client C in a quick-advice program, C
asked to hire A as his trial counsel in the matter. Before agreeing to render the further service to C, A should... |
|
Definition
| check for conflicts of interest to make sure that neither she nor other lawyers in her office have a conflict that would disqualify her. |
|
|
Term
| May a lawyer serve as a director, officer, or member of a law reform group, even though a reform advocated by the group may harm one of the lawyer’s clients? |
|
Definition
|
|
Term
| Attorney A is a member of the West Carolina Law Revision Commission, a private organization that drafts and recommends new legislation to the West Carolina Legislature. The commission is now working on new statutes that will revise the West Carolina law respecting administration of trusts. One of A’s clients is the First Carolina Bank. The bank’s trust operations will become less profitable if the legislature passes the statutes recommended by the commission. May A work on the trust law project for the commission? |
|
Definition
| Yes, unless doing do would violate the general conflict of interest rules |
|
|
Term
| When a lawyer is working on a law reform project and is asked to participate in a decision that could materially benefit one of the lawyer’s clients, the lawyer must... |
|
Definition
| disclose that fact, but doesn't have to identify the client |
|
|
Term
| A lawyer or firm must not accept a government legal engagement (i.e., employment that a public official has the power to award) or an appointment by a judge if the lawyer or firm makes or solicits a __ __ for the purpose of obtaining such employment or appointment |
|
Definition
| political contribution. known as "pay to play" contributions |
|
|
Term
| Pay to Play rule doesn't prohibit all political contributions by lawyers or firms, only those that wouldn't have been made but for... |
|
Definition
| the desire to be considered for the employment or appointment |
|
|
Term
| What circumstances can create an inference than contributions of a lawyer/firm were for the purpose of obtaining work/a job? |
|
Definition
| contributions that are substantial compared to contributions made by other lawyers/firms, that are made for the benefit of an official who can award such work, and are followed by an award to the lawyer/firm |
|
|
Term
| What factors weigh against a finding of a pay to play contribution? |
|
Definition
family or professional relationship with the judge
a desire to further a political, social, or economic interest |
|
|
Term
| What three things are excluded from the pay for play contributions rule? |
|
Definition
1. uncompensated services
2. engagements or appointments made on the basis of experience, expertise, qualifications, and cost, following a process that is free from influence based on political contributions
3. engagements or appointments made on a rotating basis from a list compiled without regard to political contributions |
|
|
Term
| difference between advertising and solicitation |
|
Definition
| “Advertising” generally refers to a lawyer’s communication with the public at large or a segment of the public. In contrast, “solicitation” generally refers to individual contact with a layperson, initiated by a lawyer (or lawyer’s agent), that is designed to entice the layperson to hire the lawyer. |
|
|
Term
| example of blatant solicitation? |
|
Definition
| “ambulance chasing,” in which a lawyer (or lawyer’s agent) seeks out injured people and urges them to hire the lawyer to represent them. |
|
|
Term
| A lawyer is subject to discipline for ANY type of communication about the lawyer or the lawyer’s services that is __ or __. |
|
Definition
|
|
Term
| Attorney A’s office letterhead lists him as “Trial Counsel—ExxonMobil Corporation.” Indeed, A used to do trial work in the in-house law department of ExxonMobil, but no member of that department carries the title “Trial Counsel”; moreover, A left ExxonMobil 18 months ago. Is A subject to discipline? |
|
Definition
| Yes listing is an outright falsehood |
|
|
Term
| A communication can be true but misleading if... |
|
Definition
| it omits a fact that is necessary to make the communication as a whole not materially misleading. |
|
|
Term
PROFESSIONAL RESPONSIBILITY 119.
Lawyer L’s display advertisement in the telephone book Yellow Pages includes the phrase “Yale Law School—1987.” Indeed, L did attend a two-week summer program at Yale Law School in 1987, but he earned his law degree at a school of considerably less distinction. What's wrong with the statement? |
|
Definition
|
|
Term
| An unsubstantiated comparison of a lawyer’s services or fees with those of other lawyers is misleading if... |
|
Definition
| it could make a reasonable person think that it can be substantiated. |
|
|
Term
| Lawyer L advertises that her fees for estate planning services are “15% lower than the prevailing rate in Fairmont County.” Is L subject to discipline? |
|
Definition
| If she can't substantiate the statement with hard data |
|
|
Term
| Even true, non misleading advertisements are subject to what 6 limits? |
|
Definition
1. fields of practice
2. consent of named clients
3. identification of advertiser
4. payments for recommending a lawyer's services
5. reciprocal referral arrangements
6. types of information that may be disseminated |
|
|
Term
| If a lawyer wishes to identify some regular clients in an advertisement, the lawyer must first obtain... |
|
Definition
|
|
Term
| Every advertisement must include the __ and __ __ of at least one lawyer or law firm that is responsible for its content |
|
Definition
|
|
Term
| Except in connection with the sale of a law practice, a lawyer must not give anything of __ to a person for recommending the lawyer’s services. |
|
Definition
|
|
Term
| May a lawyer pay others to generate client leads? |
|
Definition
| Yes as long as the lead generators do not recommend the lawyer or improperly communicate with potential clients |
|
|
Term
| The A, B & C firm seeks to increase its client base. The firm may hire and pay a media consultant to design some newspaper advertisements, and it may pay the newspaper for the advertising space. The firm may also participate in a prepaid legal service plan that advertises to obtain new members. Furthermore, some of the lawyers in the firm are listed with the nonprofit lawyer referral service run by the local county bar association; when those lawyers obtain clients through the referral service, they may pay the referral fees charged by the service. |
|
Definition
|
|
Term
| Despite the general rule that a lawyer must not pay anyone for the referral of a case, the ABA Model Rules permit a lawyer to set up a __ __ __ with another lawyer or with a non-lawyer professional |
|
Definition
| reciprocal referral arrangement |
|
|
Term
| reciprocal referral arrangements are subject to what four restrictions? |
|
Definition
can't be exclusive,
referred client must be told about the arrangement,
arrangement must be with a professional (open Q as to what's a professional), and
arrangement shouldn't be of indefinite duration and should be reviewed periodically |
|
|
Term
| What 6 types of information may be disseminated by lawyers publicly? |
|
Definition
1. info about name of lawyer or her firm and lawyers/firms address, email, website, and phone number
2. kinds of services lawyer does
3. basis on which fees are determined
4. lawyer's foreign language ability
5. names of references
6. other info that might invite the attention of persons seeking legal assistance |
|
|
Term
| A lawyer must not seek fee-paying work by initiating what types of contact with a non-lawyer prospect with whom the lawyer has no family, close personal, or prior professional relationship? |
|
Definition
| initiating personal or live telephone contact, or real-time electronic contact |
|
|
Term
| Is an attorney who hangs around in the hallway of the courthouse, offering legal services for a fee to criminal defendants who are not represented by counsel, subject to discipline? |
|
Definition
|
|
Term
| Is a lawyer who hears on the radio that a person was badly injured in an accident and promptly telephones that person’s spouse offering legal services for a fee subject to discipline? |
|
Definition
|
|
Term
| Thus, a lawyer must not use an __ to contact prospective clients in a manner that would violate advertisement rules |
|
Definition
| agent (sometimes called a “runner” or “capper”) |
|
|
Term
| Lawyer L hired R to be a “claims investigator.” R’s work involved checking accident and crime reports at the local police station and then personally contacting those involved to “advise them of their legal rights.” L furnishes R with copies of her standard form retainer agreement and instructs R to sign up clients when possible. Is L subject to discipline? |
|
Definition
|
|
Term
| Attorney A has a reciprocal referral arrangement with a “debt consolidation” company. Employees of the company initiate personal, face-to-face conversations with debtors and advise them about loans and ways to get out of debt. If it appears that a debtor needs legal assistance, the company employee refers the debtor to A. In return, when one of A’s clients needs help getting a loan or managing debts, A refers the client to the company. Is A subject to discipline? |
|
Definition
| Yes because he is using the debt consolidation company to initiate personal, face-to-face communications with potential clients |
|
|
Term
| Rule prohibiting solicitation of clients only applies when... |
|
Definition
| a significant motive for the lawyer's solicitation is the lawyer's pecuniary gain |
|
|
Term
| Can lawyers be subject to discipline for offering/soliciting free legal services? |
|
Definition
|
|
Term
| When lawyer L learned that the police arrested 65 persons in an animal rights protest, she went to the police station, spoke with the leader of the group, and volunteered to represent the arrested persons without a fee. L realized that the case might receive wide press coverage, and that the publicity might lure fee-paying clients in other matters, but this was not a substantial motive for her offer. Is L subject to discipline? |
|
Definition
|
|
Term
| Rule prohibiting solicitation of clients doesn't stop a lawyer from initiating an otherwise forbidden contact with what kinds of people? |
|
Definition
| family member, close friend, present or past client, or another lawyer |
|
|
Term
| Attorney A prepared an estate plan for client C. A did no further work for C. Two years later, the state repealed its inheritance tax, thus creating a much more advantageous way for C to dispose of her assets on death. May A solicit C? |
|
Definition
| Yes, a may telephone or write a letter to C, advising C to have her estate plan revised, and A may do the work if C asks |
|
|
Term
| A lawyer can't solicit professional employment even when not otherwise prohibited by the general solicitation rule if.... |
|
Definition
target of solicitation has made known to the lawyer a desire not to be solicited by the lawyer; or
the solicitation involves coercion, duress, or harassment |
|
|
Term
| Lawyer L obtained a mailing list of all persons who used a certain prescription drug that allegedly caused grave side effects. L sent personal letters to each person, offering to represent them for a fee in litigation against the drug manufacturer. C, one of the recipients of L’s letters, telephoned L’s office and told her that she did not want to sue anybody and did not want to hear further from L. L failed to remove C from the mailing list, so C received a series of follow-up letters, each urging C to join in litigation against the drug manufacturer. Is L subject to discipline? |
|
Definition
|
|
Term
| All written, electronic, or recorded communications with persons who are known to need specific legal services must include what words? |
|
Definition
|
|
Term
| Where must words advertising material appear on a letter? |
|
Definition
|
|
Term
| Where must words advertising material appear in recorded and electronic communications |
|
Definition
| begin and end with announcement |
|
|
Term
| Attorney A uses TeleMarket, Inc. to solicit fee-paying legal work from persons who have been named as defendants in debt collection cases. TeleMarket employees obtain lists of prospective clients from current court filings. Then TeleMarket uses computerized phone equipment to call each prospective client and play a recorded message from A. Can A do this? |
|
Definition
| Yes if message begins and ends with announcement that it's an advertising material |
|
|
Term
| A lawyer can participate in a legal service plan that uses personal contact unless... |
|
Definition
| the lawyer owns or direct the organization that operates the plan |
|
|
Term
| The X, Y & Z law firm learns that the Lincoln Teachers’ Association wants to form a group legal service program for schoolteachers. In such a program, the association would contract with a local law firm to provide a specified yearly amount of legal service to each teacher subscriber. The X, Y & Z firm may initiate personal contact with the association to present a proposed plan. [Id.] Furthermore, if the association ends up hiring the X, Y & Z firm, it is proper for the association to make personal contact and live telephone contact with schoolteachers to urge them to subscribe to the plan. |
|
Definition
|
|
Term
| A lawyer who has been certified as a specialist in a field may state that fact to the public if... |
|
Definition
| the certifying body is identified and if it has been approved by the state or the ABA. |
|
|
Term
| In public communications, a lawyer may state that he does (or does not) practice in particular fields of law, but must not state or imply that he is __ or a __ if he's not |
|
Definition
|
|
Term
| When may a partner keep his/her name on the letterhead if not regularly practicing with firm? |
|
Definition
|
|
Term
| can't have a person's name in the title of a firm if the person isn't __ and __ __ with the firm unless dead |
|
Definition
actively
regularly practicing |
|
|
Term
| If partners with name in title of firm practice in multiple states, what does firm have to do? |
|
Definition
| state jdx's where title people are licensed |
|
|
Term
| a firm can use a trade name as a title so long as.. |
|
Definition
| it is not misleading and doesn't imply a connection with a governmental agency or with a public/charitable legal services org. |
|
|
Term
| A private law firm must not use the name of a lawyer who holds public office (either as part of the firm name or in communications on the firm’s behalf) during any __ period in which the lawyer is not regularly and actively practicing with the firm. |
|
Definition
|
|
Term
| Lawyers must not imply that they are partners or are otherwise associated with each other in a law firm unless... |
|
Definition
|
|
Term
| Attorneys A and B share office space, secretarial services, and a common law library. They frequently refer cases to one another, and they continually consult each other on difficult legal questions. The sign on their office door says: “Offices of A and B, Attorneys at Law.” Is the sign proper? |
|
Definition
| No. It implies that they are in partnership when they aren't |
|
|
Term
| Two law firms may hold themselves out to the public as being “__” or “__” if they have a close, regular, ongoing relationship and if the designation is not misleading. |
|
Definition
|
|
Term
| downside of calling yourself associated or affiliated with another firm? |
|
Definition
| two firms would be treated as a single unit for conflict of interest purposes ordinarily |
|
|
Term
| The ABC firm practices business law in Denver. For many years it has worked regularly and closely with the XYZ firm, which practices patent law in Washington, D.C. If the ABC firm letterhead lists the XYZ firm as its Washington, D.C., affiliate in patent matters, then any conflict of interest that would disqualify the XYZ firm will ordinarily also disqualify the ABC firm. |
|
Definition
|
|
Term
| Are USSC justices bound by the code of judicial conduct? |
|
Definition
|
|
Term
| Who is subject to the CJC? |
|
Definition
| all persons who perform judicial functions, including magistrates, court commissioners, referees, and special master. Retired judges, part-time judges, and pro temper part-time judges don't have to follow all the provisions |
|
|
Term
|
Definition
| A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety. |
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Term
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Definition
| A judge shall perform the duties of judicial office impartially, competently, and diligently. |
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Term
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Definition
| A judge shall conduct the judge’s personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office |
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Term
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Definition
| A judge or candidate for judicial office shall not engage in political or campaign activity that is inconsistent with the independence, integrity, or impartiality of the judiciary |
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Term
| A judge must avoid even the appearance of __ |
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Definition
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Term
| Judge R discovered his estranged wife in an automobile with another man. The judge broke the car window (causing the other man to be cut with broken glass) and slapped his estranged wife. Is Judge subject to discipline? |
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Definition
| Yes doesn't matter that not connected with judicial duties |
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Term
| When does an appearance of impropriety arise? |
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Definition
| when a judge's conduct would create a reasonable perception that she has violated the CJC or acted in some other manner that reflects adversely on her honesty, impartiality, temperament, or fitness as a judge |
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Term
| A judge must not abuse, or permit others to abuse, the prestige of her office to advance... |
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Definition
| her personal or economic interests or those of others |
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Term
| When may a judge give a reference/recommendation on official letterhead? |
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Definition
| judge indicates that the reference is personal and there is no likelihood that use of the letterhead would reasonably be perceived as an attempt to use the judicial office to exert pressure |
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Term
| When Judge B was stopped for a routine traffic violation, he imperiously informed the traffic officer: “I am a judge in this town, young man, and I don’t take kindly to being stopped for petty reasons!” Is Judge B subject to discipline? |
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Definition
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Term
| Judge C used her official court stationery when writing to a building contractor with whom she was having a personal contract dispute. Is Judge C subject to discipline? |
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Definition
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Term
| When Judge D’s teenage daughter was charged with shoplifting, Judge D called Judge E, to whom the daughter’s case was assigned. D said: “E, as a fellow judge, I want to tell you that my little girl is a good kid who deserves a break. Is Judge D subject to discipline? |
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Definition
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Term
| What do judicial duties include? |
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Definition
| all duties of the judge's office that are prescribed by law |
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Term
| These take precedence over all of the judge’s other activities, including personal and nonjudicial activities |
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Definition
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Term
| Judge P’s elderly, infirm sister needs a custodian to look after her personal and financial affairs. Should Judge P undertake this responsibility? |
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Definition
| Not if it will interfere with the proper performance of her judicial duties |
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Term
| A judge must hear and decide all matters assigned to her, except those in which __ is required. |
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Definition
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Term
| Judges should not use __ as a tool to avoid cases that present difficult, controversial, or unpopular issues. |
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Definition
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Term
| A judge must perform her judicial and administrative duties __ and __ |
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Definition
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Term
| This requires the legal knowledge, skill, thoroughness, and prepara- tion reasonably necessary to perform the judge’s responsibilities. |
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Definition
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Term
| To accomplish prompt disposition of the court’s business, a judge must do what 3 things? |
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Definition
(i) devote adequate time to her duties;
(ii) be punctual in attending court and expeditious in determining matters submitted to her; and
(iii) take reasonable measures to ensure that court officials, litigants, and attorneys cooperate in this regard |
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Term
| A judge must allow every person with a legal interest in a proceeding the right to __ __ according to law |
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Definition
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Term
| Although a judge may encourage settlements, he must not act so as to __ a party into settlement. |
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Definition
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Term
| When deciding on an appropriate settlement practice, the judge should consider what 6 factors? |
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Definition
(i) whether the parties have requested or consented to a certain level of participation by the judge in settlement discussions;
(ii) whether the parties and their attorneys are relatively sophisticated in legal matters;
(iii) whether the case will be tried by the judge or a jury;
(iv) whether the parties participate with their lawyers in the discussions;
(v) whether any parties are not represented by counsel; and
(vi) whether the case is civil or criminal. |
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Term
| A judge must avoid __, __, and __ and must require others (including lawyers) who are under the judge’s direction and control to do likewise. |
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Definition
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Term
| A judge should be aware that __ __ and __ __ can convey prejudice as easily as words |
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Definition
facial expression
body language |
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Term
| A judge must not initiate, permit, or consider ex parte communications except in what three situations |
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Definition
expressly authorized by law
mediation or settlement, with consent of parties
emergencies or administrative matters |
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Term
| A judge may have an ex party communication in emergencies or administrative matters, but only if what 4 conditions are met? |
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Definition
1. The circumstances require the judge to communicate with one side only (other side can't be reached)
2. Communication concerns an emergency or a scheduling or administrative matter as distinct from a substantive matter or matter affecting the merits
3. Judge believes that no party will gain a procedural, substantive, or tactical advantage from the communication, and
4. judge notifies the lawyer for the other parties of the essence of the communication and gives them an opportunity to respond |
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Term
| If a judge inadvertently receives an unauthorized ex parte communication that relates to substantive matters, she must... |
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Definition
| make provision promptly to notify the parties of the substance of the communication and give them an opportunity to respond. |
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Term
| A judge must not initiate, permit, or consider communications from others made to the judge outside the presence of the parties’ lawyers concerning a pending or impending matter, except in what two situations: |
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Definition
can talk about matter with other judges and court personnel whose function is to aid judge in carrying out adjudicative responsibilities
can obtain the written advice of a disinterested expert on applicable law |
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Term
| If a judge consults about a matter with other judges and with court personnel, what two things must the judge do? |
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Definition
make reasonable efforts to avoid receiving factual info that isn't part of the record, and
not abrogate his responsibility to decide the matter |
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Term
| If a judge gets the written advice of a disinterested expert on applicable law in a matter, judge must first... |
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Definition
give advance notice to the parties of expert's identity and subject matter of advice being solicited, and
give parties a reasonable opportunity to object and respond to the notice and the advice |
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Term
| A judge must not __ __ the facts in a case and must consider only the evidence presented |
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Definition
| independently investigate |
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Term
Judge U took a case under submission. While reading the transcript and
pondering her decision, she became puzzled about the testimony of witness W. To save time and effort, Judge U simply telephoned W and asked him to clarify the point that puzzled her. Is Judge U's conduct proper? |
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Definition
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Term
| When a case is pending or impending in any court, a judge must not make any public comment that might... |
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Definition
| reasonably be expected to affect its outcome or impair its fairness |
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Term
| When a case is pending or impending in any court, a judge must not make any NONpublic comment that might... |
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Definition
| substantially interfere with a fair trial |
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Term
| The duty to abstain from comment does not apply if... |
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Definition
| the judge is a litigant in a personal capacity. |
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Term
| The duty to abstain from comment DOES apply if the judge is a litigant in an official capacity, such as in... |
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Definition
| writ of mandamus proceedings |
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Term
During the trial of a state criminal case, Judge V ordered the State Governor to appear as a witness and to bring certain documents that
the Governor claimed were protected as government secrets. The State Attorney General sought a writ of prohibition from the appellate court to block Judge V’s order. At that point, Judge V made a public statement that “the Governor apparently has a lot to hide.” Is Judge V subject to discipline? |
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Definition
| If the statement might reasonably be expected to impair the fairness of the proceedings, yes |
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Term
| A judge must not commend or criticize jurors for their verdict other than in a... |
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Definition
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Term
| A judge shall require __ and __ in proceedings before the court. |
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Definition
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Term
| A judge shall be __, __, and __ to litigants, jurors, witnesses, lawyers, court staff, court officials, and others with whom the judge deals in an official capacity, and shall require similar conduct of lawyers, court staff, court officials, and others subject to the judge’s direction and control. |
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Definition
patient
dignified
courteous |
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Term
| After the jury came in with a multimillion-dollar verdict for the plaintiff, Judge X told the jurors: “Apparently you people just didn’t understand what was going on in this case.” Judge X then issued a court order setting aside the jury verdict and ordering a new trial. Is Judge X's behavior proper? |
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Definition
| His order was, but his comment to the jury was not |
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Term
| These must be made impartially on the basis of merit, without nepotism or favoritism |
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Definition
| administrative appointment |
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Term
| What are administrative appointments? |
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Definition
| appointments of assigned counsel, referees, special masters, guardians, and court personnel |
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Term
| A judge must refrain from making __ appointments and must not approve compensation of appointees in excess of the... |
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Definition
unnecessary
fair value of services rendered |
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Term
| A judge must not appoint a lawyer to a position if the judge knows (or learns through a timely motion) that the lawyer, the lawyer’s spouse, or the lawyer’s domestic partner has... |
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Definition
| contributed to the judge’s election campaign more than the jurisdiction’s specified dollar amount within a designated number of years prior to the judge’s campaign. |
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Term
| The rule on judges not appointing lawyers contributing to judge's election campaign doesn't apply if... |
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Definition
| the position is substantially uncompensated, lawyer is selected as part of a rotation of qualified lawyers chosen w/o regard to their political contributions, or the judge finds that no other lawyer is willing, competent, and able to accept the position |
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Term
| If a judge has knowledge that another judge has violated the CJC or lawyer/MRPC in a manner that raises a substantial question as to the other judge’s/lawyers honesty, trustworthiness, or fitness as a judge, the judge must... |
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Definition
| inform the appropriate authority. |
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Term
| A judge who receives information indicating a __ __ that another judge has violated the CJC (or that a lawyer has violated the RPC) must take “__ action.” |
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Definition
substantial likelihood
appropriate action |
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Term
| What is "appropriate action" in context of judge finding out other judge/lawyer has violated rule? |
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Definition
| may range from direct communication with alleged violator to reporting the suspected violation to the appropriate authority |
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Term
| A judge having a reasonable belief that the performance of a lawyer or another judge is impaired by drugs or alcohol or by a mental, physical, or emotional condition must take appropriate action, which may include... |
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Definition
| a confidential referral to a lawyer or judicial assistance program. |
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Term
| A judge must disqualify himself in a proceeding in which... |
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Definition
| the judge’s impartiality might reasonably be questioned. |
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Term
| The judge should disclose on the record any information the judge believes that the parties or their lawyers might consider relevant to the question of disqualification, even if... |
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Definition
| the judge believes there is no reasonable basis for disqualification. |
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Term
| Judge Y plans to retire from the bench at the end of the year and return to private law practice. Judge Y has held tentative discussions with the private firm of A, B & C about joining that firm. Now Judge Y is assigned to hear a case in which the defendant is represented by the A, B & C law firm. What should Judge Y do? |
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Definition
| Judge Y should disclose the facts and let the parties decide whether to waive disqualification |
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Term
| Case law has created a rule of __ that overrides the rules of disqualification. |
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Definition
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Term
| For example, suppose that Judge Z is the only judge available to rule on an emergency motion for a temporary restraining order. Judge Z may rule on the motion even though he might be disqualified were it not an emergency. Even in such a situation, Judge Z should disclose the ground for disqualification on the record and should use reasonable efforts to transfer the matter to a different judge as soon as possible. |
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Definition
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Term
| State trial judge A is assigned to hear a case concerning the constitutionality of a statute that will raise the salary of all trial judges in the state. May Judge A hear the case? |
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Definition
| Yes because the reason for disqualification applies equally to all other judges to whom the case might be assigned |
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Term
| A judge must disqualify himself if there is reasonable ground to believe that the judge has what two things? |
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Definition
1. a personal bias concerning a party or a party's lawyer
2. personal knowledge of relevant evidentiary facts |
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Term
| To be disqualifying, a bias must be __ and stem from an __ source |
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Definition
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Term
| A judge must disqualify himself if the judge previously did what 5 things? |
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Definition
1. served as a material witness in the matter
2. served as a lawyer in the matter
3. was associated in law practice with a person who participated substantially as a lawyer in the matter at the time they practiced together
4. presided as a judge over the matter in another court
5. served in governmental employment and participated personally and substantially as a lawyer or public official concerning the proceeding, or publicly expressed an opinion concerning the merits of the particular matter in controversy. |
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Term
| Before her appointment as a state supreme court justice, Justice C practiced law with lawyer L. At the time C and L were in practice together, L represented X in the trial of X v. Y. After the trial, L withdrew as X’s lawyer. Now the case is on appeal to the state supreme court. Is Justice C disqualified? |
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Definition
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Term
| Before her appointment as a state supreme court justice, Justice C practiced law with lawyer L. After C left the practice, L represented X in the trial of X v. Y. Now the case is on appeal to the state supreme court. Is Justice C disqualified? |
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Definition
| No, unless her prior association with L creates a reasonable question about her impartiality under the general rule of disqualification |
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Term
| A judge must disqualify himself if the judge knows that he/his spouse/parent/kid, either as an individual or as a fiduciary, has an __ interest in the matter or in one of the parties. |
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Definition
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Term
| A judge must keep __ about his economic interests and must make a reasonable effort to keep __ about the economic interests of the judge’s spouse or domestic partner and minor children residing in the judge’s household. |
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Definition
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Term
| This term means that a person owns more than a de minimis legal or equitable interest |
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Definition
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Term
| This is an insignificant interest that raises no reasonable question regarding the judge’s impartiality. |
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Definition
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Term
| What 4 things are excepted from the definition of "economic interest"? |
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Definition
mutual funds
securities held by an organization
bank deposits, mutual insurance policies, and the like
government securities |
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Term
| Ownership of an interest in a mutual fund or common investment fund that holds securities is not an economic interest in those securities unless... |
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Definition
| judge participates in the management of the fund, or the proceeding could substantially affect the value of the interest |
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Term
| Judge D’s son owns 100 shares of Universal Diversified Fund, a mutual fund that owns common stocks of many different companies, including Ohio Chemicals, Inc. Judge D is assigned to hear a case in which Ohio Chemicals is the defendant. Is Judge D disqualified? |
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Definition
| The outcome of the case will not significantly affect the value of the mutual fund shares, and Judge D does not participate in the management of the fund. Judge D is not disqualified |
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Term
| Suppose that a judge/judges family member is an officer, director, advisor, or other active participant in an educational, religious, charitable, fraternal, or civic organization. Suppose, further, that the organization owns securities of the XYZ Corporation, which is a party to a case that the judge is assigned to hear. Does the judge’s involvement with the organization give the judge an economic interest in the XYZ Corporation? |
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Definition
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Term
| Judge E’s wife is a vice president of P.E.O. International, a philanthropic organization that promotes educational opportu- nities for women. Among its many investments, P.E.O. owns 1,000 shares of common stock in Delta Coal & Steel Inc. Judge E is assigned to hear a case in which Delta is a party. Is Judge E disqualified? |
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Definition
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Term
| Suppose that a judge, or member of the judge’s family, owns a deposit in a bank, mutual savings association, or credit union. Would that disqualify the judge from hearing a case in which the bank/etc is a party? |
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Definition
| No, unless the proceedings could substantially affect the value of the deposit. |
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Term
| An interest in the issuer of government securities is not a disqualifying economic interest, unless... |
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Definition
| the value of the securities could be substantially affected by the proceedings. |
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Term
Judge G has invested a substantial part of her retirement nest
egg in municipal bonds issued by the city of Springfield. Springfield is on the brink of fiscal collapse, and Judge G is assigned to hear a case in which the outcome could substantially affect the value of her bonds. Is Judge G disqualified? |
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Definition
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Term
| A judge must disqualify herself if she knows that she, her spouse or domestic partner, or a person within the 3rd degree of relationship to either of them, or the spouse or domestic partner of such person, is what 4 things? |
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Definition
1. a party, or an officer/director/general partner/managing partner/trustee of a party
2. a lawyer in the proceeding
3. a person with more than a de minims interest that could be substantially affected by the proceeding, or
4. likely to be material witness in the proceeding |
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Term
| Persons within the 3rd degree of relationship are... |
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Definition
| basically anyone related more closely than cousin |
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Term
| The parties and their lawyers can remit (waive) all of the foregoing grounds of disqualification, except... |
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Definition
| personal bias concerning a party or a party’s lawyer. |
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Term
| What is the 4 step procedure for remittal? |
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Definition
!. judges discloses on record the ground for disqualification and asks whether parties/lawyers want to discuss waiver.
2. lawyers consult privately with their clients.
3. all parties and lawyers meet outside presence of the judge and agree that judge shouldn't be disqualified. agreement must be incorporated into record.
4. If judge willing, she may then proceed with case |
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Term
| Judges are encouraged to engage in appropriate extrajudicial activities. Nevertheless, when engaging in such activities, a judge must not participate in activities that will do what three things? |
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Definition
1. interfere with the proper performance of the judge’s duties; 2. lead to frequent disqualification; or
3. reasonably appear to undermine the judge’s independence, integrity, or impartiality |
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Term
| Judges are encouraged to engage in appropriate extrajudicial activities. Nevertheless, when engaging in such activities, a judge must not engage in conduct that would reasonably appear to be __ |
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Definition
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Term
| Judges are encouraged to engage in appropriate extrajudicial activities. Nevertheless, when engaging in such activities, a judge must not use court premises, staff, stationery, equipment, or other resources, except... |
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Definition
| incidentally, for activities that concern the law, the legal system, or the administration of justice, unless such additional use is legally permitted |
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Term
| A judge shall not appear voluntarily at a public hearing before, or otherwise consult with, an executive or a legislative body or official, except in connection with matters concerning... |
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Definition
| the law, the legal system, or the administration of justice |
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Term
| A judge shall not appear voluntarily at a public hearing before, or otherwise consult with, an executive or a legislative body or official, except in connection with matters about which the judge... |
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Definition
| acquired knowledge or expertise in the course of the judge’s judicial duties |
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Term
| A judge shall not appear voluntarily at a public hearing before, or otherwise consult with, an executive or a legislative body or official, except when the judge is acting... |
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Definition
| pro se in a matter involving the judge’s legal or economic interests, or when the judge is acting in a fiduciary* capacity |
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Term
| Judge M is invited to testify before the State Assembly Committee on Criminal Justice concerning a proposed revision of the state’s mandatory sentencing statute. May Judge M testify? |
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Definition
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Term
| Judge N met privately with the Mayor of the city of Glenview to protest the city’s plan to open a city dump adjacent to Judge N’s property. Is the meeting proper? |
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Definition
| Yes so long as the judge doesn't refer to his judicial position or otherwise yes the prestige of his office, because meeting concerned Judge N's own interests |
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Term
| A judge must not testify as a character witness, except when.. |
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Definition
| duly summoned to do so, i.e., by subpoena |
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Term
| A judge must not accept an appointment to a governmental committee or commission or other governmental position that does not relate to... |
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Definition
| the law, the legal system, or the adminis- tration of justice. |
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Term
| A judge may represent a governmental unit on a __ occasion, or in connection with a __, __, or __ activity. |
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Definition
ceremonial
historical, educational, cultural |
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Term
| Subject to the general restrictions on extrajudicial activities, a judge may take part in activities sponsored by __ or __ __ concerned with the law, the legal system, or the administration of justice, and those sponsored by or on behalf of educational, religious, charitable, fraternal, or civic organizations not conducted for profit. |
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Definition
organizations
governmental entities |
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Term
| A judge may solicit contributions for nonprofit organizations/entities concerned with legal system, but only from... |
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Definition
| members of the judge’s family or from judges over whom the judge has no supervisory or appellate authority |
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Term
| Can a judge let her title be used in connection with an organizations event? |
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Definition
| Yes. But if its a fundraiser, can only do it if the event concerns the law, legal system, or the administration of justice |
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Term
| A judge may solicit for membership in nonprofit organizations/entities, but only if... |
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Definition
the organization is concerned with the law, legal system, or administration of justice
If other non-profit (charity, religious, etc) must be family member or other judge |
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Term
| A judge may serve as an officer, director, trustee, or nonlegal advisor for nonprofit organizations/entities concerned with legal system unless it is likely that the organization will be engaged in proceedings that would... |
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Definition
| ordinarily come before the judge, or will frequently be engaged in adversary proceedings in the court on which the judge sits or one under its appellate jdx |
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Term
| May a judge encourage lawyers to provide pro bono publico legal services? |
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Definition
| Yes, but can't use coercion or abuse the prestige of her office |
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Term
| A judge must not hold membership in an organization that practices __ __ based on race, sex, gender, religion, national origin, ethnicity, or sexual orientation. |
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Definition
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Term
| However, the judge may attend an event in a facility of a discriminatory organization if his attendance is... |
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Definition
| an isolated event that could not reasonably be perceived as an endorsement of the organization’s practices |
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Term
| The Ashmount Golf and Tennis Club limits its membership to Caucasian males. Judge M is not a member of the club, but three times a week he eats lunch at the club as a guest of a member. Is judge M subject to discipline? |
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Definition
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Term
| An organization discriminates invidiously if it __ excludes from membership persons who would otherwise be eligible for admission |
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Definition
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Term
| Judge G belongs to the Slovenian League, which limits its membership to all descendants (regardless of sex or race) of persons from Slovenia. The object of the organization is to preserve the culture and traditions of the Slovenian people. Is Judge G's membership permissible? |
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Definition
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Term
| Upon learning that an organization to which he belongs engages in invidious discrimination, a judge must... |
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Definition
| resign immediately from the organization |
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Term
| A judge must not intentionally __ or use __ information acquired in his judicial capacity for any purpose unrelated to his judicial duties |
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Definition
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Term
| Generally, a judge may/may not not serve as an officer, director, manager, general partner, advisor, or employee of a business? |
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Definition
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Term
| However, a judge may hold and manage her own investments and those of her family and may manage or participate in a business closely held by the judge or a family member, or in a business primarily engaged in investing the financial resources of the judge or her family, unless such activity will do one of what 4 things? |
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Definition
1. interfere with the proper performance of the judge's duties
2. lead to frequent disqualification of the judge
3. involved judge in frequent transactions/continuing business relationships with lawyers or others likely to come before the court
4. result in a violation of other provisions of the CJC |
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Term
| A judge must not accept gifts, loans, bequests, benefits, or other things of value if... |
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Definition
| acceptance thereof is prohibited by law or would reasonably appear to undermine the judge’s independence, integrity, or impartiality. |
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Term
| Items of little __ __ may be accepted by a judge without reporting |
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Definition
| intrinsic value (plaque or certificate) |
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Term
| A judge can accept things of value without reporting it from individuals whose appearance or interest in a case would... |
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Definition
| require the judge's disqualification in any event (friends, relatives, persons with cases pending or impending before the judge under rule 2.11 |
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Term
| A judge can accept ordinary __ __ without reporting it |
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Definition
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Term
| A judge can accept, without reporting it, commercial or financial opportunities, including discounts and loans in the regular course of business, provided that... |
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Definition
| the same opportunities are available on the same terms to similarly situated persons who are not judges |
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Term
| A judge can accept, without reporting it, __ and __ given to participants in drawings and contests that are open to persons who are not judges |
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Definition
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Term
| A judge can accept, without reporting it, __ and __, provided they are available to similarly situated persons who are not judges, based on identical criteria |
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Definition
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Term
| A judge can accept, without reporting it, books, magazines, journals, and other resource materials supplied by publishers on a __ basis for official use |
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Definition
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Term
| A judge can accept, without reporting it, gifts, awards, or benefits associated with the business or separate activity of a spouse, domestic partner, or other family member residing in the judge’s household, but that __ benefit the judge |
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Definition
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Term
| Gifts incident to a __ __ must be reported publicly |
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Definition
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Term
| A judge may accept, if not prohibited by general rule, but must report publicly, __ to the judge and her spouse, domestic partner, or guest to attend without charge an activity related to the law, the legal system, or the administration of justice, or an event associated with any of the judge’s educational, religious, charitable, fraternal, or civic activities permitted by the CJC, if the same invitation is offered to non-judges who are engaged in similar ways in the activity |
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Definition
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Term
| A judge may accept, if not prohibited by general rule, but must report publicly gifts, loans, bequests, or other things of value, if the source is a person who has come, or is likely to come... |
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Definition
| before the judge, or whose interests have come, or are likely to come, before the judge. |
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Term
| Generally, may a judge serve as an executor, administrator, trustee, guardian, or other fiduciary? |
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Definition
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Term
| Generally, a judge must not serve as an executor, administrator, trustee, guardian, or other fiduciary. However, a judge may serve in such a capacity for a member of the judge’s family, if the service will not do one of what three things? |
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Definition
1. interfere with the judge's judicial duties
2. involve the judge in proceedings that would ordinarily come before him; or
3. involve judge in adversary proceedings in the court on which the judge sits or one under its appellate jdx |
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Term
| When the duties of a fiduciary conflict with the judge’s duties under the Code of Judicial Conduct, the judge should... |
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Definition
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Term
Judge V is appointed as trustee of a fund for the use and benefit of his invalid brother. The trust fund includes common stock of several compa- nies that frequently appear as litigants before Judge V. The judge must manage her investments in a way that minimizes disqualifications. If
the trust fund would be harmed by divestiture of those stocks, Judge V should not serve as trustee |
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Definition
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Term
| If a person serving as a fiduciary becomes a judge, she must comply with Rule 3.8 as soon as reasonably practicable, but no later than __ __ after becoming a judge. |
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Definition
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Term
| A __ __ judge must not act as an arbitrator, mediator, or private judge unless expressly authorized by law. |
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Definition
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Term
| A full-time judge must not practice law. However, a judge may act pro se and may, without compensation, give legal advice to, and draft or review documents for... |
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Definition
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Term
| Reasonable compensation for a judge’s extrajudicial activities (e.g., compensation for speaking, teaching, or writing) is permitted unless... |
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Definition
| acceptance thereof would reasonably appear to undermine the judge’s independence, integrity, or impartiality. |
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Term
| Any such compensation for extrajudicial activities must be __ and commensurate with the __ __. |
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Definition
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Term
Unless otherwise prohibited by the CJC, a judge may accept reimbursement of necessary and reasonable expenses for travel, food, lodging, or other incidentals, or a waiver of fees
or charges for registration or tuition, from sources other than the judge’s employer, if such expenses are... |
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Definition
| associated with the judge’s participation in extrajudicial activities permitted by the CJC |
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Term
| A judge must assure herself that acceptance of reimbursement or a fee waiver would not appear to undermine her independence, integrity, or impartiality. In making this determination, a judge should consider whether the sponsor is an accredited educational institution or bar association rather than a... |
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Definition
| trade association or a for-profit entity |
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Term
| A judge must assure herself that acceptance of reimbursement or a fee waiver would not appear to undermine her independence, integrity, or impartiality. In making this determination, a judge should consider whether funding comes largely from numerous contributors rather than from a... |
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Definition
| single entity and is earmarked for programs with specific content |
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Term
| A judge must assure herself that acceptance of reimbursement or a fee waiver would not appear to undermine her independence, integrity, or impartiality. In making this determination, a judge should consider whether the content is related to the subject matter of litigation pending or impending before the judge, or to matters __ to come before the judge |
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Definition
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Term
| A judge must assure herself that acceptance of reimbursement or a fee waiver would not appear to undermine her independence, integrity, or impartiality. In making this determination, a judge should consider whether the activity is primarily educational rather than __, and whether the costs are reasonable and comparable to the costs of similar events sponsored by the judiciary or bar associations |
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Definition
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Term
| A judge must assure herself that acceptance of reimbursement or a fee waiver would not appear to undermine her independence, integrity, or impartiality. In making this determination, a judge should consider whether information related to the activity and its funding sources is... |
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Definition
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Term
| A judge must assure herself that acceptance of reimbursement or a fee waiver would not appear to undermine her independence, integrity, or impartiality. In making this determination, a judge should consider whether the __ or __ of funding is generally associated with parties or interests currently appearing or likely to appear in the judge’s court, thus potentially requiring the judge’s disqualification |
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Definition
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Term
| A judge must assure herself that acceptance of reimbursement or a fee waiver would not appear to undermine her independence, integrity, or impartiality. In making this determination, a judge should consider whether differing __ are presented |
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Definition
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Term
| A judge must assure herself that acceptance of reimbursement or a fee waiver would not appear to undermine her independence, integrity, or impartiality. In making this determination, a judge should consider whether a broad range of judicial and nonjudicial participants are invited, whether a large number of participants are invited, and whether the program is designed specifically for __ |
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Definition
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Term
| Judge must publicly report gifts and other things of value permitted by Rule 3.13, unless the value, alone or in aggregation with other items received from the same source during the same calendar year, does not exceed a dollar amount determined by... |
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Definition
other state law
Law also applies to reimbursement of expenses and waiver of fees |
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Term
| Judges public report of compensation must state... |
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Definition
date
place
nature of activity for which judge received compensation
describe things of value
source |
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Term
| Judges public report of compensation must be made at least __ |
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Definition
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Term
| reports of reimbursement of expenses and waiver of fees or charges must be made within __ days after the conclusion of the event or program |
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Definition
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Term
| Public compensation reports must be filed where? |
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Definition
| in office of clerk of court on which judge sits, or some other designated office by law, and if feasible on court's website |
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Term
| Judge or judicial candidate must not lead or hold office in a __ __ |
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Definition
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Term
| Judge or judicial candidate must not make __ on behalf of a political organization |
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Definition
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Term
| Judge or judicial candidate must not publicly __ or __ a candidate for public office |
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Definition
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Term
| Judge or judicial candidate must not solicit __ for, __ an assessment to, or __ to a political organization or a candidate for public office |
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Definition
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Term
| Judge or judicial candidate must not __ or __ __ for dinners or other events sponsored by a political organization or a candidate for public office |
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Definition
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Term
| Judge or judicial candidate must not __ __ herself as a candidate of a political organization |
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Definition
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Term
| Judge or judicial candidate must not seek, accept, or use __ from a political organization |
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Definition
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Term
| Judge or judicial candidate must not personally solicit or accept campaign contributions other than through a __ __ authorized by Rule 4.4 |
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Definition
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Term
| Judge or judicial candidate must not use or permit the use of campaign contributions for __ __ |
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Definition
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Term
| Judge or judicial candidate must not use court staff, facilities, or other court resources in... |
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Definition
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Term
| Judge or judicial candidate must not knowingly, or with reckless disregard for the truth, make a statement that is false or misleading, or that omits facts necessary to make the communication considered as a whole not __ __ |
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Definition
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Term
| A judge or candidate must take reasonable measures to ensure that __ __ do not undertake on her behalf any of the prohibited activities |
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Definition
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Term
| A judge or candidate must avoid involvement in a family member’s political activity or campaign for public office. Reasonable steps must be taken to avoid the implication that the judge or candidate... |
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Definition
| endorses the family member |
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Term
| Participation in a __ __ election procedure does not constitute public support for or endorsement of a political organization or candidate. |
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Definition
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Term
| A judicial candidate may make a __ __ public response to false or misleading statements issued by her opponent, third parties, or the media, concerning, e.g., her integrity, experience, or fitness for office. |
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Definition
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Term
| To determine whether a candidate has made a pledge or promise, one must examine the totality of a statement. If a reasonable person would think that the candidate has done this, then a pledge, promise, or commitment has been made |
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Definition
| specifically undertaken to reach a particular result |
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Term
| is a statement of a judge's personal views on legal, political, or other issues prohibited? |
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Definition
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Term
| Can a judicial candidate make campaign promises related to judicial organization, administration, and court management, e.g., promises to dispose of case backlogs or to begin court sessions on time? |
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Definition
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Term
| Can a judge/candidate pledge to take certain actions outside the courtroom, such as working to improve the jury selection system or advocating more funds to improve the physical facilities of a courthouse? |
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Definition
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Term
| Candidates often receive questionnaires or interview requests from the media or from issue advocacy groups, in an effort to discern their views on disputed or controversial issues. Candidates who respond to such inquiries should... |
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Definition
| give assurances that they will keep an open mind and will carry out their adjudicative duties faithfully and impartially if elected. |
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Term
| A judicial candidate in a partisan, nonpartisan, or retention public election must __ and __ the content of campaign statements and materials produced by the candidate or her campaign committee before their dissemination |
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Definition
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Term
| A judicial candidate in a partisan, nonpartisan, or retention public election must take reasonable measures to ensure that __ __ do not undertake on her behalf activities that the candidate is prohibited from doing |
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Definition
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Term
| A candidate for elective judicial office may, no earlier than a minimum amount of time (to be determined by other state law) prior to the first applicable primary, caucus, or general or retention election, establish a __ __ pursuant to rule 4.4 |
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Definition
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Term
| A candidate for elective judicial office may, no earlier than a minimum amount of time (to be determined by other state law) prior to the first applicable primary, caucus, or general or retention election, speak on behalf of her candidacy through any __ |
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Definition
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Term
| A candidate for elective judicial office may, no earlier than a minimum amount of time (to be determined by other state law) prior to the first applicable primary, caucus, or general or retention election, |
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Definition
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Term
| A candidate for elective judicial office may, no earlier than a minimum amount of time (to be determined by other state law) prior to the first applicable primary, caucus, or general or retention election, publicly __ or __ candidates for the same judicial office for which she is running |
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Definition
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Term
| A candidate for elective judicial office may, no earlier than a minimum amount of time (to be determined by other state law) prior to the first applicable primary, caucus, or general or retention election, __ or __ tickers for dinners or other events sponsored by a political organization or a candidate for public office |
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Definition
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Term
| A candidate for elective judicial office may, no earlier than a minimum amount of time (to be determined by other state law) prior to the first applicable primary, caucus, or general or retention election, seek, accept, or use endorsements from any person or organization other than... |
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Definition
| a partisan political organization |
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Term
| A candidate for elective judicial office may, no earlier than a minimum amount of time (to be determined by other state law) prior to the first applicable primary, caucus, or general or retention election, contribute to a political organization or candidate for public office, but more more than a max dollar amount determined by... |
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Definition
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Term
| Unless prohibited by law, a judicial candidate in a PARTISAN election may, not earlier than a minimum amount of time designated by other state law prior to the first applicable primary, caucus, or general election, do what? |
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Definition
| identify herself as a candidate of a political organization and seek/accept/use endorsements of a political organization |
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Term
| The candidate must direct the __ __ not to solicit or accept contributions more than a certain amount of time (designated by other state law) prior to the applicable election, nor more than a designated number of days after the last election in which the candidate participated |
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Definition
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Term
| The candidate must direct the campaign committee to solicit and accept only __ __, not to exceed the jurisdiction’s specified limits. |
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Definition
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Term
| The candidate must direct the committee to comply with any statutory requirements for disclosure and divestiture of campaign contributions, and to file with the appropriate authority a report within a __ __ time period designated by the jdx |
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Definition
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Term
| When a judge becomes a candidate for a nonjudicial __ office, she must resign her judgeship unless applicable law permits her to retain her judicial office. |
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Definition
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Term
| If the judge becomes a candidate for a nonjudicial __ office, she need not resign her judgeship, provided that she complies with all other provisions of the CJC |
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Definition
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Term
| A __ __ subject to recall is allowed to serve as an arbitrator or mediator (except while serving as a judge) and is allowed to serve as a fiduciary |
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Definition
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Term
| These types of judges are exempt from many, but not all, of the CJC provisions that restrict outside activities and political activities. |
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Definition
| Continuing part-time judges, periodic part-time judges, and pro tempore part-time |
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Term
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Definition
| did a lawyer violate a rule of professional conduct |
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Term
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Definition
| not best choice but not violation |
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Term
| "subject to a litigation sanction" |
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Definition
| could a court sanction lawyer for behavior if lawyer did this? look for a rule violation where there is also some harm |
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Term
| "subject to disqualification" |
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Definition
| could a lawyer get kicked off case/from representation even if not handling matter at current moment |
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Term
| "subject to civil liability" |
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Definition
Often asking has the lawyer committed legal malpractice, or breached a contract, something different than a rule violation. Think about tort elements and contract elements
Did lawyer owe X duty, and was that duty breached |
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Term
| "subject to criminal liability" |
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Definition
| Should be seeing egregious conduct. There’s a rule violation that’s so bad that it’s also criminal liability |
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Term
| duty of competency to prospective clients |
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Definition
| if PC alerts you to some fact that you need to tell the client about (SoL) you have to let them know. Don't have to give legal advice or opine on merits or give specific dates, but can't put PC in worse position |
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Term
| Permissible for a lawyer to ask a PC to waive duty of confidentiality and to avoid conflicts? |
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Definition
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Term
| f someone sends you info you didn’t ask for, that person is not a client. But if website says something like “______________” that is considered solicitation so responders will be a PC. |
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Definition
| actively looking for clients in area, please let us know |
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Term
| can only practice law in state in which you are licensed, meaning physical location must be in licensing state. Must ask... |
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Definition
| is presence in other state systematic and continuous? |
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Term
| A lawyer/firm can pay a fee to participate in a __ __ program |
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Definition
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Term
| Fee agreements with client must talk about __ of arrangement |
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Definition
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Term
| If limiting scope of representation, what is required? |
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Definition
| limit must be reasonable, client must give informed consent |
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Term
| disclosure of scope and basis of fees is __, but doesn't have to be in writing |
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Definition
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Term
| These types of fee arrangements must be signed by client and in writing |
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Definition
| contingency fee arrangements |
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Term
| Can you ask for a contingency fee agreement in criminal case or family law? |
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Definition
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Term
| Fees must be reasonable. What are the factors to decide if reasonable? |
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Definition
| Time and labor, novel case, difficult case, will work preclude lawyer from taking other work, customary fee for this work in the area, can ask for a bonus if you win, work under duress/time is of essence, multiplier for reputation okay |
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Term
| Can lawyer take an interest in property as payment? |
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Definition
| only if it's not the subject of the dispute and isn't a contingency fee arrangement |
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Term
| Fee arrangements where lawyer takes interest in property as payment must... |
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Definition
| be signed by client and in writing, and client must be advised to seek independent counsel |
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Term
| Once a fee agreement is in place, can it be modified? |
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Definition
| No, unless there are special circumstances that relate to the representation of the client itself. And lawyer can only ask for it |
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Term
| Are 1.6 ethical duty of confidentiality issues ever mandatory? Meaning you have to disclose somethings? |
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Definition
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Term
| When may a contingent fee be allowed in family law matters like divorce/etc.? |
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Definition
| post-decree of the matter. |
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Term
| lawyer and non-lawyer can't work together if the work involves... |
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Definition
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Term
| Lawyers must always have a separate money account for... |
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Definition
| lawyer fees/money paid lawyer by client |
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Term
| Can you take money from a trust account if you believe you will do x hours of work within the week? |
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Definition
| No. Not until you've actually done the work |
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Term
| Fee retainer agreement must talk about __ |
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Definition
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Term
| When can expenses be advanced? |
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Definition
| Rich client in contingency fee |
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Term
| As lawyer, must work with your client as much as is reasonably possible to maintain normal relationship. What should you look for? |
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Definition
| lawyer communicating client? Preserving confidentiality? |
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Term
| If client has diminished capacity, can family member be present? |
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Definition
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Term
| Can you disclose that you have a client with diminished capacity? |
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Definition
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Term
| entity clients act through their... |
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Definition
| duly authorized constituents. Have to determine who they are |
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Term
| If can't squeal to anyone in organization cuz you've gone as high as possible, what do you do? |
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Definition
| PERMITTED not required to squeal to those outside organization |
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Term
| if you squeal on entity employee and get fired for it, what do you do? |
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Definition
| tell highest up person in organization why you got fired |
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Term
| If lawyer acts as a 3rd party neutral for two people, can he then act as a lawyer for that client? |
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Definition
| No, unless you were a partisan arbitrator (labor relations arbitrations) |
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Term
| lawyers can't enter into business transaction or take an ownership interest adverse to a client unless |
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Definition
transaction must be fair and reasonable
disclosed to client
written advice to client to seek independent counsel
client gives informed consent in writing and signs it |
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Term
| Cant draft a testamentary instrument for a client that... |
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Definition
| provides a substantial gift to lawyer, unless in close relationship (relative) |
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Term
| If have to be a witness about a contested fact in client's case, must.. |
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Definition
| step away from advocate role |
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Term
| If lawyer repping opposite sides (think divorce, can't rep directly adverse clients) after waived/other requirements met, when can client back out? |
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Definition
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Term
| Not all states allow waiver of this |
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Definition
| conflicts of interest in repping concurrent clients |
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Term
| if concurrently repping clients and something falls apart (ie new conflict presents itself to make things worse), what must lawyer do? |
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Definition
| seek court approval to withdraw from both |
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Term
| when moving to a new firm, what conflicts follow you? |
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Definition
| Only those you personally worked on, not those that were imputed to the firm but others worked on |
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Term
| competency requires lawyer must stay abreast of benefits of __ |
|
Definition
| technology. Is keeping info securely protected v important? |
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Term
| scope of representation must be in the __ __ |
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Definition
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Term
| If multiple clients and settling, does lawyer have to tell each client what the others are getting in % of settlement in addition to total amount? |
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Definition
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Term
| When client seeking to maybe break law, can encouragement be indirect by answering questions? Does lawyer have to affirmatively discourage? |
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Definition
| No. lawyer just can't affirmatively encourage |
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Term
| When concurrent conflict between two clients, can lawyer pick and choose which to keep? |
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Definition
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Term
| when MUST a lawyer disclose info? |
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Definition
|
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Term
| candor to the tribunal requires that lawyer cannot __ make a false statement of fact or law to tribunal, or __ fail to correct a false statement of fact or law made to tribunal |
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Definition
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Term
| do you have to tell an unrepresented person to seek independent counsel? |
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Definition
| No, just that you don't represent their interests |
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Term
A lawyer must not seek to __ a judge, court official, juror, or prospective juror by __ __
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Definition
influence
improper means (fishermen example) |
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Term
| If a lawyer learns about another lawyer’s violation of the Rules of Professional Conduct through this, the lawyer is not permitted to report the misconduct |
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Definition
| a privileged communication with the other lawyer or one of his clients |
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Term
| A lawyer must disclose __ facts to a third person when necessary to avoid.... |
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Definition
material
assisting the client in a crime or fraud |
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Term
| no duty to prevent fraud on the court (perjured testimony) when... |
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Definition
| lawyer not appearing before the court |
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Term
| the rule against acquiring a personal interest in the subject of litigation has an exception that allows a lawyer to... |
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Definition
| represent a client for a contingent fee. |
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Term
| The general rule against judicial involvement in politics limits only some types of political activities, NOT including .... |
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Definition
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