Professional Responsibility

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richardlpeterson
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131301
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Professional Responsibility
Updated:
2012-01-29 01:32:28
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VA barbri
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Professional Responsibility
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  1. Co Co Co
    • Confidentiality
    • Committed to client
    • Conflict of interest
  2. Out-of-state Practice
    • Foreign lawyer: licensed in another state or other county and not disbarred
    • Prohibitions: can't keep office in VA, can't hold self out as VA attorney
    • Disclosures: inform that not admitted anywhere but where you are and address
    • Safe Harbors: 1) show up w/ VA co-counsel, 2) authorized by law or order, 3) ADR, arbitration, mediation, 4) related to representation from state of your admission
  3. Rules of Professional Conduct
    • ethical rules cannot be contracted away by client or by another attorney
    • can't agree to practice outside of rules
    • rules can't be successfully challenged as inapplicable
    • can only argue mistaken or unfair application
  4. Procedures
    • complaint that an attorney has violated has violated rules is filed with VA State Bar, which investigates the complaint and gives notice to the accused attorney if cause is found
    • A hearing will be held - right to confront - but not rights of criminal D, and cannot resign to avoid discipline
    • if violation found, can appeal in state court
  5. Sanctions
    • disbarment
    • suspension
    • reprimand
    • fine
    • restitution
    • limit practice
    • CLE
    • drug rehab
    • take bar again
    • (fed court contempt order)
  6. Duty to Report Violations
    • Rule 8.3
    • must report violations of other attorneys if raise a substantial question as to attorney's honesty or fitness to practice law, unless
    • violator is client
    • substance abuse committee
    • confidential (Rule 1.6)
  7. Indirect Controls Over Attorney Conduct
    • Criminal law: criminal acts (including aiding and abetting) by attorneys are punishable by prosecution
    • Civil liability: malpractice (intentional, negligent, or reckless conduct)
  8. Law Firms and Local Services Organizations
    • Law firms cannot restrict a departing attorney’s ability to practice law, and restrictions as a part of settlements have to be approved by the court.
    • A lawyer may not associate with a legal services organization or insurance plan that engages in deceptive advertising, and he may not allow them to interfere with his independent judgment.
  9. Right to Counsel
    • Lawyers have an aspirational duty to dedicate 2% of their professional time to providing legal services to the poor.
    • If a client refuses to pay the bill, a lawyer may not withdraw from his case if it would materially prejudice the client (trial has begun).
  10. Restrictions on Non-Lawyers
    • Non-lawyers may not give legal advice for a fee, but they may fill in blanks on forms.
    • They may not appear in court or represent that they are lawyers.
    • The attorney must supervise their work.
    • An attorney may not aid/abet the unauthorized practice of law by allowing a client to use lawyer letterhead, do legal work and charge for it as if the lawyer did it.
    • Lawyers may not fee share with non-lawyers. An agreement to do so is void.
    • But lawyers may pay a deceased attorney’s fees to his widow and have profit sharing/retirement plans with non-lawyer employees.
    • Partnerships may not include non-lawyers (CPAs).
    • A firm aids/abets the unauthorized practice of law by hiring a lawyer whose license has been revoked and he worked there when he was licensed or the firm represents his previous clients.
  11. Obtaining Clients
    • Advertising is permitted in Va so long as it’s not misleading or deceptive.
    • Solicitation is prohibited in personal injury and wrongful death cases, unless the client is a previous client or family member. In all other cases, it is permissible so long as there’s no coercion. Soliciting business by letters requires the words Advertising Material to appear conspicuously. Announcement cards and brochures are permissible. Attorneys cannot imply a partnership if it doesn’t exist.
    • They can hold themselves out as certified if they say Va doesn’t have a certification process, but they may not say they are specialists, with exceptions for admiralty, patents, and mediation.
  12. Advancing money to (get) a Client
    • Lawyers may not advance living expenses to clients, but they can front the costs of litigation: court costs, filing fees, investigation costs, witness costs, medical exams for trial.
    • If the client is indigent, he does not have to pay the attorney back.
  13. Interest in Litigation
    Lawyers may not take a financial interest in the subject of litigation, but they may contract for contingency fees and impose liens to secure their fees.
  14. Frivolous Litigation
    • Attorneys may not take cases for the sole purpose of harassing or injuring another party, and they may not threaten criminal prosecution to gain a civil advantage.
    • Criminal defense attorneys should introduce all possible criminal defenses.
  15. Duty of Competence
    • There’s a duty of competence: know the applicable law, investigate the facts, research adequately.
    • Before taking a case, a lawyer must determine that he can handle the case without months of research.
    • There’s also the duty of diligence: efficiency, timeliness, keeping in touch with the client.
    • Lawyers must defer to client decisions and consult with the client regarding their objectives.
  16. Attorney-Client Contracts/Compensation
    • Written contracts with clients are only required for contingency fee agreements, and they must explain how the fee will be calculated.
    • At the end of the case, the lawyer must provide a settlement statement.
    • Where there’s no risk of losing a case, contingency fees are inappropriate.
    • Contingency fees are not allowed for criminal and domestic relations matters.
    • All fees must be reasonable, and the client must understand how she will be billed.
    • If a lawyer terminates representation in a case in which he negotiated a contingency fee, he is paid in quantum meruit if the client wins.
    • If a lawyer on retainer is terminated, he must refund the portion of the retainer.
    • If a lawyers is paid in advance, he must refund the unearned portions.
    • Lawyers can’t contract to limit their malpractice liability.
  17. Roles with Client
    • Lawyers have a fiduciary duty, so they may not use information to their clients’ disadvantage or their own advantage without the client’s consent.
    • Lawyers are their clients’ agents and can bind them.
    • Lawyers are trustees of the client’s funds and may not commingle theirs with his.
  18. Entity as Client
    • If a lawyer represents an entity, his duty is to the entity, the shareholders, and not the employees.
    • An attorney may serve as a member of the board of a corporation.
    • But conflicts may arise if the lawyer represents the corporation and also represents one of the employees or board members because the corporation’s and the employee’s interests may diverge.
    • The lawyer must disclose all potential conflicts once representation begins and actual conflicts as soon as they arise.
  19. Confidentiality and Privilege
    • The duty of confidentiality is broader than privilege.
    • Lawyers must hold in confidence any information the client expects to be held in confidence or any information that might embarrass or be to his detriment.
    • This duty survives termination of the attorney-client relationship.
    • If a sole-practitioner dies, his estate may sell his practice if all clients consent.
    • A lawyer may reveal confidential information if the client consents, a court order, or to prevent fraud on a third party.
    • A lawyer must reveal confidential information if the client intends to commit a crime and cannot be persuaded against it or if the client intends to commit (or has committed) fraud on a tribunal, cannot be persuaded, and withdraw is not possible.
    • An attorney may also reveal confidential information to establish the reasonableness of his fee, defend against malpractice or criminality related to the representation.
  20. Conflicts of Interest
    Attorney w/ Client
    • An attorney should not let his own interests interfere with the client’s best interests.
    • He should only take matter if he can provide loyal and zealous representation.
    • The lawyer may not draft a will in which he takes (unless T’s his relative).
    • He can be an executor, but it creates the appearance of impropriety, so he should get the request in writing.
    • Attorneys may not take cases if they know they will be a witness in the case.
    • If the need arises, they should withdraw, unless it would cause serious hardship to the client.
    • The firm must withdraw if the attorney is an adverse witness.
    • Attorney may testify as to mere formalities, like the amount of their fees.
  21. Conflicts of Interest
    Concurrent Conflicts
    • A concurrent conflict of interest exists if representing one client would be directly adverse to another client, or if there is a significant risk that representation will be significantly limited by representation of another client.
    • A lawyer may not use a former client’s confidential information to the client’s disadvantage.
    • Therefore, a lawyer may not represent a new client in the same or substantially related matter in which he provided representation for a former client if the clients’ interests are materially adverse, unless both clients give informed, written consent.
  22. Conflicts of Interest
    Cont'd
    • Attorneys must disclose potential conflicts of interests that arise when taking on a new client and get both parties’ consent if the attorney believes he can provide competent and diligent representation to both.
    • The duty to retain confidentiality and the duty of loyalty to each client remains.
    • An attorney should not represent co-defendants in a criminal matter because often the best defense for each is to pin it on the other.
    • For common representation, the lawyer should disclose all potentialities for conflict at the outset, get consent, and withdraw if an actual conflict arises.
    • Lawyers may act as third party neutrals without representing either.
    • If a third-party is paying the lawyer’s fee, the lawyer must get the client’s consent to the arrangement and disclose the fees paid. The third party may not influence the client’s representation.
  23. Conflicts B/t Former Clients and Current Clients
    • A former client must consent to the lawyer’s representation of a new client in a matter substantially related to the former client’s if the new client’s interest is materially adverse to the former client’s. This conflict is imputed to the lawyer’s firm.
    • Government lawyers who go into private practice may not work on matters they worked on during their time with the government. They may be screened though so their new firm can take it.
    • If an attorney has a conflict arising from confidential information he obtained a prior firm, the conflict is imputed to his new firm.
    • His old firm may take the matter if no one there had confidential information.
  24. Zeal/Roles
    • An attorney’s zeal is confined by the law: a lawyer may not bring frivolous lawsuits or engage in illegal/unethical acts.
    • If personal values hinder zealousness, the attorney must withdraw.
    • A lawyer cannot lie in negotiation about the facts, the law, or the strength of his client’s case.
    • A lawyer cannot imply that he can influence a public official (legislator or judge).
    • An attorney can’t engage in dishonesty, fraud, deceit, or misrepresentation. He cannot falsify evidence. If a client begins to lie or mislead the court, the lawyer should advise the client to rectify the situation. If the client doesn’t, the attorney should reveal the misrepresentation.
    • A lawyer must be candid with the court. He has the duty to reveal all directly adverse legal authority in that jurisdiction.
  25. Addt'l Roles
    • Unless an attorney’s a witness, he may not offer his views about the facts, the witnesses, or the proper outcome of the cases.
    • He may not use the press/media to influence a trial by making statements that will have a substantial likelihood of interfering with the fairness of a jury trial.
    • The attorney can speak to jurors after the trial to find out if there was reversible error in their deliberations, but he can’t influence or harass jurors.
  26. Addt'l Roles
    • An attorney can’t talk to a represented party without that party’s attorney or the attorney’s consent, unless the represented party is seeking a second opinion.
    • If the opposing party is an organization, the attorney may talk to lower level employees, but not those in the organization’s control group who can bind the organization, without opposing counsel’s presence or consent.
    • If the opposing party is not represented, the attorney should not appear impartial or give advice.
    • The attorney can speak with the opposing party’s witnesses without consent.
  27. Special Rules for Prosecutors
    • A prosecutor must reveal all evidence and witnesses that might help the defendant.
    • Prosecutors may not bring doubtful cases, try to get D to waive his rights, or discourage witnesses from testifying for him.
  28. Termination of Attorney-Client Relationship
    • An attorney must withdraw if the client is about to break the law or commit an ethical violation, the attorney is physically or mentally unable to represent, or the client fires him.
    • He may withdraw if it wouldn’t materially affect the client, the client’s continuing to break the law, he’s not paying or is being difficult, or it becomes financially burdensome.
    • The lawyer must then return all original documents and a copy of other documents, even if the client hasn’t paid.

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