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When can fees be shared with non-lawyers?
- 1. death benefit by agreement with deceased lawyer
- 2. purchase price for sale of deceased, disabled, disappeared lawyer's practice
- 3.retirement/compensation of firm employees
- 4. to pay non-profit organization that hired/recommended lawyer
Membership in the ABA is...
Does the ABA have disciplinary authority?
What are the 4 types of discipline for violating a mandatory rule?
1. private reprimand/censure
2. public reprimand/censure
3. suspension (finite)
How are state disciplinary rules determined?
by the highest court in the state
note: moral turpitude (bad) v. good moral character (good)
What are examples of rational state requirements for bar admission?
1. graduation from an ABA accredited law school
2. oath be taken to uphold fed & state constitutions
What are examples of irrational requirements for bar admission?
1. U.S. citizenship
2. residency in a state
What bar applicant requirements/responsibilities?
truth and full disclosure
duty to cooperate
What are the requirements for lawyers regarding applicants?
good applicants-input is aspirational
bad applicants-duty to disclose/report when asked or correct something they believe may have arisen in the matter
Advance payments of fees
may be required by attorney, but any unearned part must be refunded if attorney is fired or withdraws
Exceptions to privilege
1. waived by client
2. client seeks atty's service to engage in or assist in crime/fraud
3. communication is relevant to issue of breach of atty-client
What are the requirements for selling a law practice?
1. entire practice or entire field of practice must be sold
2. seller must exercise competence in identifying competent purchasers
3. written notice to clients*
4. seller must cease to engage in private practice (@least in sold field)
5. purchaser must take all cases
Contingent fee arrangements
must be reasonable and signed by client
***NOT used in criminal or domestic (ok in debt collections)
What are attorney decisions?
1. which court to file in
What are client decisions?
1. whether to sue
2. settle (must inform of all offers unless client gives range with I/C)
3. testify ( D in criminal case)
5. jury v. bench
***case expenses & 3rd party well being
Exceptions to accepting "must" appointments
1. unreasonable financial burden
2. duty to reject if: physical/mental inability, conflict of interest, frivolous claim or defense, strong feelings, or bias, incompetence
Exceptions to general freedom to reject cases
1. defenseless or oppressed (should take)
2. fair share of pro bono (should do)
3. appointments (must)
Dual profession lawyers
1. permissible (may be listed in ad)
2. cannot solicit legal business through dual profession
3. atty-client privilege doesn't apply to dual professsion
4. ancilliary services ok
What is the definition of a law firm?
lawyers who frequently consult, work jointly, and have access to each other's files
Activities that DO NOT require a license
1. interviewing ppl
2. filing in forms
3. writing legal memos
Activities that require a license (practice of law)
1. appearance in judicial proceedings & depos
2. drafting documents that impact sunstantial legal rights
3. negotiating settlements
When are subordinates not responsible for their actions?
1. you were told to do it AND
2. if its arguable that you didn't realize it was wrong
When a supervisor responsible for subordinate actions?
1. knew of misconduct at a time when consequences can be avoided or mitigated & lawyer fails to take reasonable remedial action or;
2. if violation raises a substantial question as to lawyer's character & supervisor ordered or ratified conduct
Permissible permanent multi-jurisdictional practice
- 1. employed by only client which has several offices
- ex. corp lawyer or govt lawyer
- 2. legal services authorized by federal or local law
- ex. patent (national license)
Permissible temporary multi-jurisdictional practice
1. associate w/active local lawyer
2. special permission (pro hac vice-for this matter only)
3. mediation or arbitration out of home-state practice
4. anything reasonably related to lawyer's home state practice
Duty when you know of violation (lawyers)
1. must report what you know unless protected by atty-client
2. being available to testify against them
Exceptions to the confidentiality rule (8)
1. waived by client
2. required by law or court order
3. informed consent
4. implied authority to disclose to further the representation
- 5.client fraud or perjury
- a. past fraud/perjury can't be disclosed
- b. present fraud/perjury lawyer must seek to withdraw, denied or withdrawal will not solve, lawyer must tell judge
6. to get legal or ethical advice for lawyer
7. to prevent reasonably certain death or substantial bodily harm
8. to prevent substantial financial harm or fraud if the client is or has used the lawyer's services in the matter.
Past crimes are consider
Does death end confidentiality obligations?
Conflicts (some) can be cured by...
lawyer explaining risks & alternatives (informed consent)
client agrees in writing (can be electronic)
May lawyer make loans to their clients?
No, except advancing costs of litigation
Rule of imputation
what one lawyer cannot take, the firm cannot take unless the conflict is unique to the lawyer or involves the lawyer as witness
if it starts during representation lawyer is subject to discipline (consent & harm are irrelevant)
imputation does not apply, but screening is required
Can lawyers acquire an interest in the case?
exceptions: contingency fee & security lien
Can lawyers enter business deals with clients?
exceptions: ordinary transactions, terms fair & in writing
How must aggregate settlement of claims for multiple clients be handled?
each client must have full review which includes how the sum will be shared, the total amount to be paid or received, details on every other clients amount, how atty fees will be paid, and the existence/nature of all claims, defenses, and pleas involved
Privilege for prospective clients
applies to what they tell you
Can 3rd parties pay atty fees?
Yes, with written informed consent from client & confidences must be kept
lawyers related as parent, child, sibling, or spouse cannot represent adverse parties unless full informed consent; but no rule of imputation
Can former judges, arbitrators, mediators, or other 3rd party neutral or govt lawyers represent parties in private practice?
Cannot take "matters" where previously acted or had substantial responsibility absent written informed consent, but no rule of imputation-so long as lawyer is screened off from case
Matters that lawyer in private practice can take despite working on them as govt lawyer or judge
Matters that a lawyer in private practice CANNOT take because of work done as a judge or govt lawyer
drafting a contract for the govt
judge-when they ruled on the merits of a case
Quick advise programs ethics rules
conflicts rules relax, but where a conflict is actually known, it cannot be ignored
actual knowledge can inferred from the circumstances
where client hires lawyer after the quick advice (conflicts rules will apply)
professional responsibility + malpractice
***malpractice does not automatically mean a rule has been violated & vice versa
Civil liability to client (including malpractice)
recovery- based in contracts, torts, or fiduciary relationship
requires $$$ loss & causation (but for)
purpose of civil malpractice-compensation
How is the disciplinary process different from civil liability?
- disciplinary process' purpose is punishment
- & does not require money loss or causation
prudent lawyers carry malpractice insurance
Limiting liability to malpractice
lawyers cannot prospectively limit unless client has independent representation in making agreement
What does candor to the tribunal entail?
- 1. can't bury adverse decision
- 2. no explanation is required to be given to court
- 3. can distinguish away
- 4. can offer a good faith argument to change the law
no statements outside courtroom that lawyer reasonably should have known would have substantial likelihood of materially prejudicing case
Can a lawyer be a witness?
generally: lawyer cannot be material witness
exceptions: uncontested matter or if about legal fees, substantial hardship on client
May lawyers communicate with represented parties?
No, have go through their lawyer
but parties can communicate directly with each other
May lawyers communicate with unrepresented people?
- 1. can't give legal advice
- 2. cannot appear disinterested when they are advocate/adversary
- 3.can negotiate transaction or settle clients dispute with un-represented person
Can a witness be paid for testimony?
No contingent fees for experts
reasonable expenses & lost wages, but cannot be conditioned on testimony
May lawyers communicate with jurors during trial
absolutely not (unless authorized by law or court order)
Juror communication after trial
Lawyers must not communicate with jurors if:
1. court says no
2. juror says no contact
3. if communication involves coercion or harassment
Duties of prosecutor
1. must not prosecute w/o probably cause
2. assure accused is advised of right to counsel, know how to get counsel, & given chance to do so
3. must seek to remedy conviction of D in jurisdiction if they know of clear & convincing evidence of innocence
4. disclose new credible & material evidence that creates reasonable likelihood that D was wrongfully convicted
Disclosure duty when working on law reform project
must disclose if they have clients that will benefit from decision, but must keep client identity confidential
you represent the company, not the individual officer or director
Duty of security lawyers under Sarbanes-Oxley
to report up the chain of command to CEO
if not appropriate response then must report to board & may report to SEC
- interest on lawyers trust accts
- (interest goes to non-profit bar assn for pro bono)
Advance on fees
belongs to client (goes in trust acct) any unearned part must be returned if lawyer is fired or withdraws
belongs to atty (goes into lawyers acct)
may be accepted (if reasonable), but must NOT draft will or deed of gift unless related to donor
is ok with lawyers from outside firms if they work together, client gives written informed consent & knows share each lawyer gets, pay is portional to work
or different proportion if lawyers assume joint responsibility for matter
MUST BE REASONABLE FEE IN TOTAL
Reciprocal referal arrangements
ok (with lawyers & non lawyers)
as long as they are not exclusive, referred client must be told about arrangement, I/C needed for conflict, referall agreement cannot interfere with lawyers professional judgment
agreement should not be indefinite duration
seeking fee paying work through in person, live telephone, or real time electronic w/a non-lawyer that is not family, close personal or previous relationship
targeted direct mail, group & prepaid legal services (as long as not solicited to those "in need of legal services"), education,close friends/family, present client, former client
What kind of lawyers can call themselves specialists?
patent & admiralty (special bar)
others if certified by org approved by state or ABA (must ID org)
Appearance of impropriety (judges)
when judge's conduct creates a reasonable perception that CJC has been violated or that otherwise reflects adversity on the judge's honesty, impartiality, temperament or fitness as a judge.
requires legal knowledge, skill, thoroughness, & preparation
When can judges have ex-parte communications?
1. expressly authorized by law (drug or mental health judges)
2. mediation or settlement (w/consent of parties)
3.emergency or de minimus
4. inadvertent receipt of unauthorized ex parte communication (must notify & allow opportunity to respond)
must be impartially based on merit & not nepotism or favoritism