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Bar Prep

Additional Law Flashcards




Duty to Maintain the Standards of the Bar

Duty to help maintain the standards of the bar:  every lawyer and judge has a duty to maintain the standards of the profession

1.  unauthorized practice of law:  if unlicensed, an intern needs direct supervision from a “supervising attorney”

2.  applicants to the bar:  have the same strict requirements to uphold as licensed attorneys and judges

3.  duty to report ethics violations:  a lawyer must report serious misconduct by another lawyer regardless of the place of time or conduct (exception:  where the other lawyer is a client, there is a duty of confidentiality that protects this)

Formation fo Attorney-Client Relationship
General Rule:  private lawyers are free to reject clients for any reason.  Exception:  a layer must take a client appointed by the court, unless:  (1) it would result in a sever financial hardship; (2) physically or mentally not capable; or (3) it would create a conflict of interest with an existing client or case

Solicitation:  a lawyer cannot initiate a personal or live phone contact with a potential client for pecuniary gain.  Also cannot:

1.  have an agent solicit for a lawyer (e.g. bail bondsman give referrals; ER nurse give business cards to injured people)

2.  give rewards for referrals (i.e. anything of value given in exchange for a referral)  Also:  a lawyer cannot charge a “forwarding fee” where he does no work for a client but merely passes him along to another attorney.

3.  a lawyer can solicit family members or former clients

Advertising:  constitutionally protected as commercial speech. 

1.  As commercially protected speech, for the government to regulate it, it must show:

   a.  the regulation must serve a “substantial state interest”; and

   b.  the regulation must be “narrowly tailored” to fulfill the state interest

2.  Advertising that is false or misleading is not allowed.  Examples—

   a.  outright falsehood (e.g. this is just a good old-fashioned lie to try and attract customers:  “Bob Gibson, Harvard Law”)

   b.  unjustified expectations (e.g.  “Bob Gibson—Never Lost a Criminal Case”  -never tried one either- )

   c.  unverifiable expectations (e.g.  “Bob Gibson—as good as Johnnie Cochran)

   d.  imply results by improper means (e.g.  “I clerked for Justice Linda Copple-Trout”)

Legal Fees

Legal Fees:  the terms of the attorney’s compensation should be worked out before the attorney accepts the prospective client.  Note:  “price gouging” of clients is one of the most common reasons (besides DUIs) for attorney’s being disciplined.

1.  contingent fees:  a percentage of money obtained only in the event of a successful litigation or settlement.  The rationale is that it allows representation for people who ordinarily wouldn’t be able to afford an attorney.  Not allowed for: expert witnesses; criminal cases; or divorce or dissolution cases.  Note:  if a lawyer with a contingency fee arrangement is fired, he can recover the quantum meruit for his services up to the point of discharge.

2.  double billing:  not allowed.  (E.g. working on case 1 while flying for case 2, then billing both clients for that time.)
Conflicts of Interest
Conflicts of Interest:  general rule—lawyer cannot represent adverse interests unless there is full disclosure and client consent
imputation:  if a lawyer cannot take a case because of a conflict then the entire firm is also imputed to have the conflict
Conflicts between Lawyer and Client

conflicts arising between the lawyer and client:               

a.  publication rights:  if the case is completely over, the lawyer can write about it with client consent

b.  loans: lawyer can only loan money to a client to advance litigation expenses. (No de minimus exception: .25¢ to park)

c.  a lawyer cannot be a witness in the client’s case unless being a witness for:  (1) an uncontested issue (e.g. signature on a document); (2) a legal fee; or (3) it would be a severe hardship to the client if the lawyer could not testify

d.  a lawyer cannot acquire an interest in the litigation unless the interest is for (1) a contingent fee; or (2) a lawyer’s lien

e.  a lawyer cannot enter into a business transaction with a client unless the transaction is (1) reasonable; (2) the attorney fully explains to the client in an understandable writing; and (3) the client consents in writing

f.  a lawyer cannot prepare an instrument giving the lawyer or his firm a substantial gift (however, a lawyer can accept a gift or favor from a client if the lawyer did not draft the conveyance)

g.  a lawyer cannot have sex with a client unless the sexual relationship existed before the lawyer-client relationship
Conflicts between Clients

conflicts arising between client and client:  a lawyer cannot represent multiple clients where there is a potential conflict unless—the lawyer has (1) reasonable belief of no adverse effect; and (2) both clients consent after full disclosure

a.  a lawyer cannot switch sides in a case (e.g. switch from the prosecution team to the defense team … DUH)

b.  former government lawyer:  a lawyer who previously worked for the government and moves to private practice cannot take cases where he previously acted in the “matters” or had substantial responsibility.  If the lawyer is screened off from the rest of the firm, the matters are not imputed to the firm.  “Screened off” requires:

    i.  the disqualified lawyer must be screened from any participation in the confidential information;

    ii.  no part of the fee can be apportioned to the screened off lawyer; and

    iii.  there must be written notice to the appropriate government agency

c.  a lawyer who is a public defender cannot represent two clients in the same criminal case; a private lawyer can

d.  relevant confidential information from a former client for a new case can be waived by that former client’s consent
Third Party Influence

3rd Party influence on a lawyer-client relationship

a.  representing a minor:  the lawyer represents the client (child), not the parent who is paying

b.  corporate counsel:  the lawyer represents the corporation, not the board of directors

Confidentiality:  confidential information includes anything embarrassing or derogatory from any source (need not be from the client).  Lawyer cannot reveal a client’s past crimes.  Even if the client dies, lawyer cannot reveal confidential information.

1.  ethical duty of confidentiality:  covers more kinds of information than the attorney-client privilege.  Information can be from any source.

2.  attorney-client privilege:  only protects communications (1) from the client (2) intended by the client to be confidential (3) for the purpose of legal advice

Lawyer MAY Reveal Confidential Information

the lawyer MAY reveal confidential information when:

a.  the client consents;

b.  to prevent reasonably certain death or substantial bodily harm (note:  the death or harm need not be imminent)

c.  to prevent client from committing crime of fraud that causes substantial financial harm to someone (note:  if client has already acted, lawyer can disclose it if it will prevent or mitigate the consequent financial harm)
Lawyer MUST Reveal Confidential Information
the lawyer MUST reveal confidential information if the client committed perjury and the case is still pending.  If the client tells the lawyer of his plans to commit perjury, the lawyer should (1) try to persuade the client not to testify falsely; (2) withdraw if the client insists on perjuring himself; or (3) if withdrawal will not remedy the situation, the lawyer should disclose the matter to the court
Fiduciary Duty to Clients
Fiduciary Duties to Client:  a lawyer cannot steal, borrow, or commingle a client’s funds.  The lawyer must keep all the client’s money in a separate trust account in the state where the lawyer practices.  Any disputed portions of pre-paid fees must remain in the trust account (or be given back to the client) until the dispute is resolved.
Duty to Keep Client Informed
Duty to keep the client informed:  the attorney and client have different roles in deciding how to proceed with a case—

1.  decisions made by the client—whether to:  sue; settle (lawyer must inform of all offers); testify; have a jury or bench trial; and whether to appeal (this is the client’s decision, even if the attorney would lose money)
2.  decisions made by the lawyer—what court to file in; whether and to whom depositions should be made; discovery strategies; whether to motion for a continuance, or consent to the other side’s continuance motion (note:  lawyer must defer to client on monetary issues, (e.g. client can’t afford more depositions) and 3rd persons well-being (e.g. whether to have a family member testify)
Zealous Representation Within the Bounds of the Law

Zealous representation within the bounds of the law:  violation of any of the following could subject the lawyer to discipline, sanctions, or even liability—

1.  threats of criminal prosecution:  a lawyer cannot threaten criminal prosecution to gain an advantage on an unrelated issue

2.  a lawyer cannot file frivolous suits or make a frivolous legal argument (note:  sometimes, frivolous factual arguments are required in the area of criminal defense work)

3.  a lawyer cannot conceal or destroy evidence
Prosecutor's Extra Burdens

prosecutor’s extra burdens:  prosecutors are held to the highest ethical standards of any lawyers.  Their duties include:

a.  only proceeding in a prosecution where there is probable cause; must acquit if no probable cause or lack of evidence

b.  must protect defendant’s right to counsel, and ensure defendant’s due process and civil rights are upheld

c.  must disclose evidence tending to negate guilt or mitigate an offense

d.  must limit extrajudicial statements of others under the prosecutor’s control
Lawyer's Relationship with Jurors

lawyers relationship with the jurors: 

a.  during trial, the lawyer cannot speak to the jurors outside the courtroom, regardless of the content (e.g. don’t discuss the weather, football game, nothing—don’t even make eye contact)

b.  after the trial, the lawyer can talk to jurors, even about the case, but cannot harass a juror
Terminating the Attorney-Client Relationship

Terminating the Attorney-Client relationship:  in the event of termination, the lawyer must return papers and property, refund unearned advanced fees, and unspent expense advances.  The ways to terminate the relationship are:

A.  the client fires the attorney:  client can fire at any time for any reason unless in litigation

B.  the lawyer withdraws:  If the case is in litigation, the lawyer must have the courts permission to withdraw.
Mandatory Withdrawl

Mandatory withdrawal:  the lawyer must withdraw if—

a.  the client fires him;

b.  the lawyer has a reason to reject (becomes physically unable);

c.  the client insists on violating a rule of law;

d.  client commits fraud and refuses to rectify (lawyer must withdraw or he would be assisting client in fraud or crime)
Discretionary Withdrawl
Discretionary withdrawal:  a lawyer may withdraw for any reason, but a lawyer cannot abandon a client
Judicial Conduct
Judicial Conduct:  generally, members of the bench must exhibit integrity, independence, and propriety

Recusal:  a judge must disqualify himself, or may be disqualified by a motion by either party, for any of the following:

1.  if any reasonable doubt about impartiality can be established (e.g. Scalia duck hunting with Cheney; a Federal Judge whose office was blown up in the Oklahoma City bombing cannot sit on Tim McVeigh’s preliminary hearing)

2.  if the judge has personal knowledge of a disputed fact

3.  if the judge has a history with the parties involved, either as former counsel or as a former partner/associate

4.  if the judge has a financial interest in the determination of the case (e.g. Judge Wood on the SRBA agreement)

5.  if any relatives are involved in the case within the 3rd degree (i.e. 1st cousins or closer)
Outside Activities of Judges
Outside activities of judges:  permissible so long as it does not demean, interfere, or cast doubt on impartiality.  Note:  it is recommended that judges not affiliate with highly litigious groups (e.g. ACLU; NRA; Greenpeace; etc.)
Prohibitions on Judges Activities

Prohibitions on activities:

1.  gifts and favors:  a judge may accept gifts or favors from close relatives, but nothing from anyone who may appear in front of them in court.  Also, even if not likely to appear in front of them, anything exceeding $150 in value should not be accepted as a gift

2.  fiduciary responsibilities:  a judge can only be named as an executor or a trustee if it for a close relative and it will not take too much time

3.  moonlighting as a mediator, arbitrator, or lawyer:  a judge cannot moonlight in any of these capacities.  Once they become a judge, these other jobs are forbidden.
Judges and Politics
Judges and Politics:  judges cannot be clearly affiliated with any particular party
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