Professional Responsibility

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apgiering
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156817
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Professional Responsibility
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2012-06-05 16:31:38
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CT Bar
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CT Bar
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  1. What rules govern professional responsibility for lawyers in Connecticut?
    CT Rules of Professional Conduct, based on ABA model rules.
  2. Who investigates complaints involving a Connecticut attorney's conduct?
    Greivance Commission o the CT Rules Committee
  3. What are the types of discipline?
    • Letter of admonition from disciplinary committee
    • Public or private censure by the courts
    • Suspension
    • Disbarment
    • Also: could be subject to malpractice claims by client
  4. What are the requirements for admission to the legal profession?
    • 1. Pass the Bar
    • 2. Admission without examination
    • --Graduated from ABA accredited law school AND
    • --Been admitted to practice in another state AND that state would admit a CT lawyer without examination, AND
    • --Practiced law for at least five out of the last seven years
    • 3. Truth and full disclosure -- burden on applicant to show "good moral character"
    • 4. Duty to cooperate
    • 5. Requirements regarding other applicants
    • --Good ones -- your input is aspirational
    • --Bad applicants -- duty to rpeort on moral turpitude

    Requirements must be rationally related to the practice of law.
  5. How are lawyers regulated after admission to the CT bar?
    • 1. Regulated by State Supreme Court (and through its agencies)
    • 2. Self-regulating -- if you KNOW of a violation
    • --Must report what you know unless protected as confidential information
    • --Must be available to testify against the lawyer
    • --EXCEPTIONS: a) You learned of the bad conduct of another lawyer through representation of that lawyer as a client; 2) You learned of the misconduct through membership in an approved lawyer's assistance program that helps lawyers and judges with substance abuse problems--NOTE: Still cannot recommend the lawyer for admisison to another state
  6. What are a lawyer's duties if he knows of another lawyer's violation of the ethics rules?
    You must report what you know unless protected as confidential information, and must be available to testify against the lawyer.

    EXCEPTIONS: a) You learned of the bad conduct of another lawyer through representation of that lawyer as a client; b) You learned of the misconduct through membership in an approved lawyer's assistance program that helps lawyers and judges with substance abuse problems, but...

    NOTE: Still cannot recommend the lawyer for admission to another state.
  7. When is a lawyer not required to report another lawyer's violation of the ethics rules?
    When he learned of the bad conduct of another lawyer through representation of that lawyer as a client; and when he learned of the misconduct through membership in an approved lawyer's assistance program that helps lawyers and judges with substance abuse problems.

    NOTE: Still cannot recommend the lawyer for admission to another state.
  8. Does discipline in one jurisdiction lead to discipline in others?
    Not necessarily, but states tend to show full faith and credit or commity.
  9. In which states can a lawyer practice?
    You cannot practice where not admitted.

    EXCEPTION: Temporary multi-jurisdictional practice.
  10. When can a lawyer appear in a state where he is not admitted?
    • Associate with an active local lawyer
    • Special permission called pro hac vice
    • Mediation or arbitration arising out of home-state practice
    • Anything reasonably related to layer's home-state practice
    • Multi-state firms: lawyer only practices where admitted and the firm letterhead indicates states of admission
  11. Choice of law multi-jurisdictional matters
    If licensed in only CT, apply CT law and rules. If licensed in CT and other state, apply the law of the state where the attorney principally practices UNLESS the action occured in the other state.
  12. What are the client's decisions?
    • Whether to:
    • -Sue
    • -Appeal
    • -Settle a jury or bench trial and
    • -Whether to testify in a criminal trial
  13. What are the attorney's decisions?
    Strategy, procedure and tactic, e.g., depositions or discovery (but client can veto regarding expenses); granting continuances.
  14. Can a lawyer choose who to represent?
    • Yes, but:
    • -Should represent indigent peoples
    • -Should do pro bono work
    • -Cannot refuse to represent a client on the ground that their prior lawyer has not been paid
  15. When must a lawyer withdraw from representing a client?
    • Lawyer knows or it is obvious from the start that the clients' position is frivolous, or is to harass or maliciously persecute
    • If lawyer becomes impaired mentally or physically
    • Rules of Professional Conduct in CT would be violated by representation
    • Client fires the lawyer
  16. When may a lawyer withdraw from representing a client?
    • Client's claim or defense is frivolous
    • Client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent
    • Client deliberately disregards an agreement or obligation to the lawyer as to fees or expenses
    • Client uses lawyer's services to perpetuate a crime or fraud
    • Lawyer's continued employment is likely to result in the violation of a Rule
    • Lawyer's inability to work with co-counsel indicates that the best interests of hte client are served by withdrawal
  17. Lawyer must be competent. What does this entail?
    • Physically and mentally able
    • Being substantively competent
    • Have time to devote to case
  18. How can a lawyer overcome his lack of competence?
    • Association
    • Learn it in time
    • Emergency situation
  19. What is the unauthorized practice of law?
    • Everything that requires a law license, e.g.:
    • 1) Appearances in depositions and judicial hearings;
    • 2) Drafting substantive legal documents; and
    • 3) Settling the case with clients.
  20. Can you hinder a lawyer's future right to practice?
    No.

    • EXCEPTIONS:
    • 1) Retirement
    • 2) Withdrawal from the firm
  21. What are the exceptions to the general rule that you cannot hinder a lawyer's future right to practice?
    • Retirement
    • Withdrawal from the firm
  22. What are the requirements for a law firm name?
    Must be appropriate -- non-misleading.

    You need to remove someone's name if their absence is permanent. (An ambassador's position is always permanent).
  23. When can lawyers list certifications?
    • Must be certified by a private organization that is approved to certify by ABA or State of CT and
    • Certifying organization is identified in advertisement, and
    • Lawyer states that: a) certifying organization is not affiliated with any governmental authority, b) certification is not required for practice of law in CT, and c) certification does not indicate greater competence of the lawyer other non-certified but experienced lawyers in the area.
  24. Advertising
    Any public or private communication made on behalf of a lawyer or law firm about the lawyer or serviecs, the primary purpose of which is to retain the lawyer or law firm.

    EXCEPTION: Communications to existing clients or other lawyers.
  25. What must advertising include?
    Name, principal law office address and telephone number of the lawyer or law firm whose services are being offered.

    (The telephone number may contain a domain name, nickname, moniker or motto that does not otherwise violate the RPC).

    Any words or statements required by the rules must be clearly legible and capable of being read by the average person and understood if spoken aloud.
  26. What may advertising include?
    • Educational background and degrees
    • Dates of admission to bar and areas of practice
    • Public offices and teaching positions held
    • Memberships in bar associations and other professional organizations
    • Foreign language ability (must be fluent)
    • Names of regularly represented clients, if the clients consent in writing
    • Acceptable credit arrangements and participation in group or prepaid legal services programs
    • Legal fees, contingent fee rates, range of fees for services (NOTE -- firm shall not charge more than the advertised fee)
    • Bona fide professional ratings
  27. What may not advertising include?
    • A paid endorsement or testimonial about lawyer/law firm without disclosing that the person is being compensated
    • Actors to portray the lawyer, firm members, clients or events without disclosure
    • Misleading comments (promised outcomes; the ability to achieve results from inappropriate influence or because you have clout; that you advance the costs of litigation)
    • Advertisements cannot 1) create unjustified expectations, 2) have unsubstantied comparisons, or 3) imply results by improper means.
  28. Are contingent fees allowed?
    You must clearly state the term and basis of the fee; whether the client will be responsible for any cost.
  29. Soliciting clients
    • A lawyer shall not engage in solicitation by in-person or telephone contact; real time or interactive computer-assisted communication unless the recipient is:
    • 1) A close friend or relative;
    • 2) A former client;
    • 3) An existing client;
    • 4) A pro bono client;

    • Does NOT include:
    • 1) Ordinary e-mail
    • 2) Web-sites, or
    • 3) Pop-up advertisements

    BUT: No solicitation in any form of communication whatsoever is permitted if the recipient has made known a desire not to be solicited by the lawyer.

    Rule of Imputation: What you cannot do your partner and associates cannot do for you.
  30. Rule of Imputation
    What you cannot do your partner and associates cannot do for you.

    (I.e., soliciting clients)
  31. Targeted mail
    You may send direct mail to groups of people likely to need legal services.

    You must have the words "Attorney Advertising" on it. You need to have the name, principal law office address and telephone number of the lawyer/law firm.

    Solicitaitons to pre-determined recipients MUST disclose how the attorney learned the recipients' identity and need for legal services.
  32. What must you include in targeted mail?
    • The words "Attorney Advertising"
    • The name, principal law office address and telephone number of the lawyer/law firm
    • Must disclose how the attorney learned the recipients' identity and need for legal services
  33. When can a CT lawyer not solicit professional employment from someone by written or recorded communication?
    • Communication is false, fraudulent, deceptive, or misleading
    • Recipient has made known to lawyer a desire not to be solicited
    • Solicitation includes duress or harassment
    • Lawyer knows or reasonably should know that the age or physical, emotional, or mental state of the person makes it unlikely that he will be able to exercise reasonable judgment in retaining a lawyer
  34. If a laywer gives in-person, unsolicited advice, can he accept employment resulting from such advice?
    No.
  35. Client secret
    Anything derogatory, embarrassing or hurtful regarding your client, no matter what the source.
  36. Past crimes
    Can't say anything to anybody.
  37. Future crimes
    May reveal the intention of client to commit a crime and information necessary to prevent the crime.
  38. Lying on the stand
    Urge the client to correct or recant. If he refuses, go to the court and seek to withdraw.

    Court says no -- ask no questions and don't argue client statements in the closing.

    • Court says yes -- terminate the relationship in a manner that does not prejudice the client.
    • a) Notice
    • b) Return the case file
    • c) Return unearned portion of the retainer
  39. What are exceptions to the rule that a lawer cannot reveal client secrets?
    • Required by law or court order
    • To obtain legal or ethical advice for the lawyer -- use of hypotheticals with colleague is OK if discrete to protect identity of client
    • To prevent or rectify substantial financial loss
    • To prevent reasonably certain death or substantial bodily harm
    • To rectify a fraud on a tribunal committed by the lawyer's own client
  40. Trial Publicity: No statement may be made by a lawyer that a reasonable person would expect to be disseminated if the lawyer knows or reasonably should know it will be prejudicial to the case regarding:
    • Character, reputation or criminal record of party
    • Identification of witness or expected testimony
    • Possibility of a guilty plea
    • Existence of a confession
    • Results of any exam or test
    • Opinion as to guilt or innocence of defendant or suspect
    • Information lawyer knows or reasonably should know will be inadmissible as evidence
    • Fact that defendnat is charged with crime unless stating it as merely an accusation and that the defendant is presumed innocent
  41. What can a lawyer state about an ongoing case?
    • Dry facts about the case
    • Warning of danger where there is a reason to believe or a likelihood of substantial harm to a person or public interest
    • In a criminal case: information necessary to aid in apprehension of an accused person
  42. Right of reply
    Lawyer may make statement to the extent necessary to protect a client from substantial prejudicial effect of recent publicity not inititaed by the lawyer or client.
  43. Can a lawyer represent adverse interests of client or prospective client?
    No, unless 1) there is informed consent (a) client must agree after b) the lawyer explains material risks and reasonable alternatives, and c) the client agrees in writing) and 2) a reasonably prudent lawyer would take the case.
  44. Can a lawyer represent a current client in an action against a former client?
    Yes, except:

    • 1) When your current client wants to sue your former client involving a matter or transaction in which you represented the former client, OR
    • 2) When during the representation of the former client you learned confidential information that is now relevant to the action by the current client.
    • EXCEPTION:
    • a) if the information is no longer confidential, or
    • b) the client consents in writing.
  45. When can a lawyer testify on behalf of a client?
    • It's an uncontested matter or a matter of formality
    • Fees -- statute that awards attorney's fees
    • Substantial hardship if the attorney withdraws
  46. Can a lawyer have any interest in publication rights related to case subject matter?
    No.
  47. Can a lawyer lend money to his clients?
    No.
  48. Can a lawyer collect a fee payment from a third party?
    Yes, but remember that your client is not the third party.
  49. Can a lawyer demand sex as a condition of representation?
    No.
  50. When can a lawyer do business with his client?
    • The transaction is fair to the client
    • Client should be advised to seek independent legal advice
    • Client must consent in writing
    • All terms must be fully disclosed in writing in a manner that can be reasonably understood by the client
    • ALSO, standard commercial or other transactions are OK
  51. Can a lawyer represent a corporation or partnership?
    Yes, but you represent the entity and not any of the individuals or directors.
  52. Can a lawyer be director of a company?
    Yes, but there is no attorney-client privilege in board meetings.
  53. Does a lawyer representing a corporation have a duty to report securities violations?
    Yes, he has a duty to report violations up the chain-of-command to the CEO. If the violations are not appropriately addressed, the lawyer must report to the Board of Directors and may report to an outside authority.
  54. Can a lawyer representing a corporate entity reveal confidential information?
    To the extent necessary to protect his client. The lawyer has discretion in this regard. Any measures taken shall be designated to minimize disruption of the organization and the risk of revealing confidential information to persons outside the organization.
  55. Can a lawyer prepare an instrument for a client that gives the lawyer or parent, child, sibling or spouse of the lawyer a substantial gift, including a testamentary gift?
    No, unless the client is related to the donor.
  56. Can a lawyer take "matters" on which he acted or had substantial responsibility during previous government service?
    Generally, no, unless there is written informed consent.

    • Exceptions:
    • 1) Drafting laws
    • 2) Compling statistics
    • 3) Drafting legal opinions

    • And there is no rule of imputation if the affected lawyer is screened on following issues:
    • 1) Finding of guilt as a judge
    • 2) Drafting a contract fo rthe government that is in issue
    • 3) Representing the government in some or related litigation
  57. Under what cirucmstances can a lawyer take "matters" on which he acted or had substantial responsibility during previous govenrment service?
    • Drafting laws
    • Compiling statistics
    • Drafting legal opinions
  58. What are the elements of a "screen" to allow a lawyer to take a case even though another lawyer in his firm is conflicted?
    • Written disclosure to government
    • No fee to screened-off attorney
    • No working on, discussing case, or access to the file by screened-off attorney.
  59. What are a lawyer's responsibilities with regard to fees?
    • Explain fully the reasons for the fee
    • Keep fee reasonable
    • NOTE: State bars cannot set either minimum or maximum fee schedules
  60. In which cases can contingent fees NOT be charged?
    • Criminal cases
    • Domestic relations cases
  61. What are the requirements for contingent fee agreements?
    • In writing and signed by both attorney and client
    • Contain names and addresses of the attorney and client
    • The claim and controversy
    • Percentage and the contingency upon which fees will be paid
    • The anticipated expense and stipulation that client will be liable for expenses
  62. Can a lawyer divide a legal fee with a non-lawyer?
    No, except for salaries, retirement plans, bonuses, profit-sharing; and the estates of deceased partners to pay fees earned by the deceased partners.
  63. Can a lawyer shar eoffice space with a non-lawyer?
    Yes, so long as the space is physically separate in fact and appears so to the public.
  64. Are referral fees ethical?
    No. Non-exclusive reciprocal referral arrangements are OK.
  65. What is required for fee-splitting to be OK among lawyers?
    • Division is in proportion to the work performed
    • Client is advised, does not object and consents in writing
    • And total fee is reasonable
  66. Can a lawyer collect a fee advance as a retainer?
    Yes, but it belongs to client, and must be put in an IOLTA account.
  67. Can a lawyer collect an availability retainer?
    Yes. It belongs to the attorney and goes into the attorney's account.
  68. Types of accounts
    • Operating
    • Client trust
  69. Client trust account
    • Client's money goes in here but it's OK for lawyer to put in money to cover bank fees
    • Must be in CT or elsewhere with client's consent
    • Bank service charges are the only amounts that lawyer funds can be put in client trust account
    • For small funds accumulating, the interest is sent to CT state IOLTA
    • Record keeping on trust accounts must be kept for 5 years
    • KEEP SEPARATE -- DO NOT COMMINGLE FUNDS
  70. For how long must a lawyer keep records on client trust accounts?
    5 years.
  71. Subordinate lawyer
    • Must abide by the rules
    • Exception: following supervisor's instructions on a close call
  72. Supervising lawyer/partner
    • Must abide by the rules
    • Make sure all subordinate lawyers abide by the rules
  73. When are ex parte communications with the jury appropriate?
    Never.
  74. When are ex parte communications with the judge appropriate?
    • De minimis
    • In emergency
    • During settlement conference
  75. When are ex parte communications with the adverse party appropriate?
    Only through lawyer.
  76. When are ex parte communications with witnesses appropriate?
    Always.
  77. What are special duties of the prosecutor?
    • Proceed only on probable cause
    • Disclose evidence tending to negate guilt or which could mitigate the degree of the offense or reduce the punishment.
  78. Are lawyers required to provide pro bono service?
    No, but they are encouraged to provide 50 hours per year pro bono to poor persons and to contribute financially to organizations that provide legal services to poor persons.
  79. What are the rules for selling your law practice?
    • Entire practice or entire field must be sold
    • Seller must exercise competence in identifying a purchaser who is qualified to undertake the representation
    • Written notice must be given to clients regarding a) the sale, including names of all purchasing attorneys; b) right to have files retained and new counsel an dc) the terms of any proposes changes in fee arrangements.
    • Consent assumed if client takes no action within 90 days.
    • Purchaser must take all client matters, not just the good cases
  80. What written notice is required to clients when selling your law practice?
    • Notice of the sale, including names of all purchasing attorneys
    • Notice of the right to have files returned and new counsel
    • Notice of the terms of any proposed changes in fee arrangements
    • NOTE: consent is assumed if client takes no action within 90 days
  81. How should a lawyer represent his client?
    A lawyer should represent his clients zealously, within the bounds of the law.
  82. What rules govern professional responsibility for judges in Connecticut?
    Code of Judicial Conduct (CJC).
  83. To whom does the Code of Judicial Conduct (CJC) apply?
    • Judges
    • Those who perform a judicial functions
  84. What can retired judges subject to recall serve as?
    • Arbitrator
    • Mediator
    • Fiduciary (but not while judge)
  85. Are judges required to take reasonable steps to ensure that family members follow the rules?
    Yes.
  86. What gifts does a judge not have to report?
    • Books
    • Honoraria
    • Ordinary social gifts that are a) not excessive for the purpose and relationship, b) not reasonably perceived to influence the judge, and c) not from a person likely to appear before the judge
  87. What gifts does a judge have to report?
    • Gifts in excess of $150
    • Invitations to attend an activity without cost related to the legal system
  88. Can judges use judicial letterhead for personal business?
    No.
  89. Can judges criticze or commend the jury?
    Not outside of court opinions.
  90. Can judges have continuing business relationships with lawyers?
    Yes, but not with lawyers likely to appear before the court.
  91. Can judges make pledges, promises, or commitments that are inconsistent with the impartial performance of the duties of office?
    Not when the judge's conduct creates a reasonable perception that the CJC has been violated or that otherwise reflects adversely on the judge's honesty, impartiality, and temperament.
  92. When does a judge's duty of impartiality require him to disqualify or recuse himself from a case?
    • Judge has personal knowledge of possibly disputed facts
    • If former partner or close relative is party, attorney, or witness before judge
    • When the judge knows party (or attorney) has contributed more than the jurisdiciton's specified amount to his election campaign committee
    • Judge cannot have economic interest in matter before him (except de minimis; mutual funds; or securities held by a charitable organization)
  93. When will a judge's conflicts not disqualify him?
    Parties remit.

    But cannot remit if based on personal bias of judge toward a party or attorney.
  94. Can a judge appoint masters, clerks, or bailiffs on the basis of nepotism or political contribution?
    No.
  95. Can a judge independently investigate the facts in a case?
    No.
  96. Can a judge use an expert with an interest in the case?
    No.
  97. Can a judge serve as officer, director, trustee or nonlegal advisor of a government agency or private organization devoted to the improvement of the law?
    Yes, provided that the organization is not engaged in a proceeding that could come before the judge.
  98. Can a judge engage in fundraising?
    A judge cannot raise money personally but can attend functions and solicit contributions from family members and other judges on the same bench.

    A judge cannot be a guest of honor or keynote speaker at a fundraiser that the judge is involved in.
  99. Can a judge be a guest of honor or keynote speaker at a fundraiser that the judge is involved with?
    No.
  100. Can the judge serve in a fiduciary relationship, i.e., as an executor, administrator, trustee, guardian or other fiduciary?
    No.

    • EXCEPTION: Family member, but only where:
    • 1) No interference with official duties
    • 2) Proceedings would not ordinarily come before that judge, or
    • 3) Matter will not involve adversary proceedings in a court under that judge's appellate jurisdiction
  101. When can a judge serve in a fiduciary relationship, i.e., executor, administrator, trustee, guardian or other fiduciary?
    Family member, but only where:

    • 1) No interference with official duties;
    • 2) Proceedings would not ordinarily come before that judge; or
    • 3) Matter will not involve adversary proceedings in a court under that judge's appellate jurisdiction.
  102. Can a judge serve as officer, director or trustee on a non-profit board?
    Yes, if it is for an educational, fraternal, civic, religious or charitable organization.
  103. Can a judge serve on the board of a public educational institution?
    Only a law school.
  104. Can a judge serve on a for-profit board?
    No.
  105. Can a judge teach?
    Yes.
  106. Can a judge give a personal reference for others?
    Yes.
  107. Can a judge be a member of, or use, organizations that discriminate based on race, sex, religion, national origin, disability, age, sexual orientation, socioeconomic status or political affiliation?
    No.

    EXCEPTION: Private organization designed to preserve religious and cultural views of members.

    • Once judge learns of discrimination, he can:
    • 1) Resign immediately; or
    • 2) Spend a year making an active effort to change the organization's policy.
  108. What are a judge's options once he learns of discrimination in an organization of which he is a member?
    • Resign immediately
    • Spend a year making an active effort to change the organization's policy
  109. Can a judge practice law?
    No, except for 1) pro se; and 2) free legal advice to family members.
  110. What are some restrictions on a judge running for office?
    • Can speak at gatherings but cannot make statements regarding cases, controversies, or issues that are likely to come before the court and cannot make pledges, promises, or commitments that are inconsistent with impartial performance of duties
    • Can ask for vote for self, but not for a ticket
    • Can organize and fundraiser and raise money -- through a committee and only for one year before and 90 days after an election
    • Running for nonjudicial elective office may require resignation from bench -- appointed office does not require resignation.
  111. Can a judge running for office speak at gatherings?
    Yes, but he cannot make statements regarding cases, controversies, or issues that are likely to come before the court and cannot make pledges, promises, or commitments that are inconsistent with impartial performance of duties.
  112. Can a judge ask for someone's vote for himself?
    Yes, but not for anyone else or for his party ticket.
  113. Can a judge running for office organize a fundraiser and raise money?
    Yes, but only through a committee and only for one year before and 90 days after election.
  114. Does a judge running for nonjudicial elective office have to resign from the bench?
    Maybe. Appointed office does not require resignation.

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