Home > Preview
The flashcards below were created by user
on FreezingBlue Flashcards.
According to RPC 8.4, it is prof misconduct to do what?
- (1) violate or attempt to violate the RPC, knowingly assist or induce another to do so, or do so thru the acts of another
- (2) commit a criminal act reflecting adversely on honesty, trustworthiness, or fitness
- (3) engage in conduct involving dishonesty, fraud, deceit, or misrpresentation
- (4) engage in conduct prejudice to admin of justice
- (5) state/imply ability to improperly influence
- (6) knowing assist judge in conduct that violates rules or law
- (7) intentionally prejudice or damage client during A/C relationship
What is the responsibility of L with direct supervisory authority?
make reasonable efforts to ensure that other L conform to rules
Supervising L are personally liable for what?
subordinate ethical violations they order or ratify OR know of the conduct when it can be avoided/mitigated and fail to take action
When is a subordinate not liable for violation of rules?
acts in accordance with supervising L reaosnable resolution of an arguable question of prof duty
What kind of advertising do the rules permit?
When is an advertisement misleading?
- material misrepresentation OR omits a nec fact
- creates an unjustified expectation about results
- compares the L services with other L services
Trade names for law firms are permitted if they what?
- not false or misleading
- don't imply a connection
- must be registered with state bar to ensure not misleading
When may a L state or imply that he is a certified specialist in a particular field?
- certifcation granted by State Bar or an organization accredited by it
- name of certifying org must be clearly identified in communication
What is solicitation?
personal contact with a specific prospective C in order to obtain employment regarding particular matter
When is direct contact solicitaion permitted?
- person contacted is a L
- family, close personal, or prior prof relationship with the L
When may a L not solicit any potential C via direct contact?
- potential C has made known a desire not to be solicited
- solicitation involves coercion, duress, harassment, compulsion, intimidation, or threats
What are the consitutional exceptions regarding when a L may solicit?
- no substantial pecuniary motive
- approaches person in need of legal services, explains need, suggests hiring an attorney
- former C
- relatives and friends
A L may participate in prepaid or group legal services that uses personal solicitation so long as what?
- plan registered with Bar and complie with rules
- L notifies Bar in writing b4 participating
- L believes plan is being operated in compliance rules
- advertisments don't represent that registration constitutes approval by Bar
- personal contact not undertaken by L
- organization not owned/directed by any L particpating in plan
- communication not directed at persons known to need legal services nor involves coercion, duress, harassment, or false, deceptive, or misleading communications
When may a L not represent a C?
- representation violates law or rules
- L physical or mental condition materially impairs L ability to represent C
- L is discharged
What are L duties to prospective C?>
- not use or reveal information learned in consultation except as permitted by 1.9
- duty of loyalty
- disqualification will be imputed on L firm
A L may not represent a C with interests materially adverse to those of prospective C in same or substantially related matter if L received info from PC that significantly harm that person unless what?
- both affected C and PC give informed, written consent
- disqualified L timely screend and written notice promptly given to PC
When are communications b/t L and PC protected?
reasonable expectation that L is willing to discuss the possibility of forming a A/C relationship
What does competence require?
legal knowledge, skill, thoroughness, and preparation nec for representation
What are the factors used to assess the sufficiency of L knowledge and skill?
- relative complexity and specialized nature of matter
- L general experience
- L training and experience in field in question
- preparaion and study L able to give matter
- whether feasibe to refer the matter to, associate, or consult with L of established competency in the field
What are the fundamental skills nec for competence?
- analyze precedent
- evaluate evidence
- draft legal docs
- identify legal issues
What can L do if not competent to handle representation?
- decline or w/draw
- take action to make himself competent
- associate with competent counsel
What are factors used to determine if fee is clearly excessive?
- time and labor required, novelty/difficulty of question, skill requisite
- liklihood that acceptance preclude L from taking other work
- fee customarily charged
- amount involved and results obtained
- time limitations
- nature and length of prof relationship
- experience, reputation, and ability of L
- fixed or contingent
What are the requiements for contingent fee agreements?
- states fee determination method
- states whether expenses are to be deducted b4 or after calculation of fee
Division of fee b/t L not in same firm permissible only if what?
- in proportion to services performed & assume joint responsibility for representation
- agreement in writing
- total fee is reasonable
Client funds, fiduciary funds, and any other C property must be what?
identified, held, and maintained in a separate account in a NC bank unless C consents to it being held elsewhere
Ho much of L own funds may he deposit into C trust account?
- nec to open or maintain the account, pay bank service charges, or pay any taxes
- funds that belong in part to C and in part to L
Who gets the interest from C trust account?
What must L do when there is a dispute regarding C funds?
- disputed amounts kept in the account until dispute resolved
- undisputed portions must be promptly distributed
What are the requirements for L entering into a business X with C?
- fair and reasonable to C
- fully disclosed and transmitted in writing
- advised in writing to seek indpt advice of another L and reasonable opportunity to do so
- informed written consent
When is the only time a L may solicit a substantial gift from C or draft a doc giving himself a substantial gift?
L is related to C
A L may not obtain literary or media rights when?
prior to the conclusion of representation
A L shall not make an agreement prospectively limiting his liability for malpractice unless what?
C is independently represented in making the agreement
A L may not settle a claim for malpractice with an unrepresented C or former C unless what?
advised in writing to obtain the advise of indpt legal counsel in connection with the matter and given a reasonable opp to do so
A L may not repesent a C if the L is a nec witness unless what?
- uncontested issue
- relates to nature/value of legal services
- disqualification would work substantial hardship to C
A L must not represent a C if the rep is directly adverse to another C or materially limited by L responsibilities to another C unless what?
- reasonably believes provide competent rep
- not prohibited by law
- doesn't involve an assertion of a claim by one C against another C in same litigation; and
- informed written consent
What is the definition of informed consent?
agreement by a person to a proposed course of conduct after the L has communicated adequate info and explanation approp to the circumstances
When may a L ask a C to waive conflicts in advance?
- experienced user of legal services
- reasonably informed of risks
Common rep of multiple parties in civil case is proper if what?
- similar interests
- reaosnably believes can competently/diligently represent
- not prohibited by law
- not asserted claims against each other
- informed written consent
A L can't rep a present C with interest materially adverse to those of a PC if what?
- same or substantially related matter
- L received info from PC significantly harmful to that person in the matter
A 3P may pay for a C representation only if what?
- C gives informed consent
- 3P doesn't interfere
- confidentiality is preserved
When is disqualification nec?
where there is either an actual conflict of interest regarding the L duty of loyalty OR potential conflice and C, after being so informed, doesn't accept the arrangement
Generally, disqualification of one L disqualifies the entire firm unless what?
conflict is based on personal interest that doesn't materially limit rep by other L in firm
How can law firm take steps to avoid imputed disqualification?
- timely screening
- written notice promptly given
When does imputed disqualification not apply?
L disqualified b/c nec W or arises from matters personal to L
Firm may represent someone with interests adverse to departed L C unless what?
- new matter is substantially relatedto ones the departed L worked on; and
- any L in the firm has actual knowledge about those matters
Rule 1.11(a) only prohibits a L from personally representing a C after gov service when the L has what?
personally and substantially participated in the matter as a public officer or EE
Other L in former gov L new firm may handle matters the former gov L participated in while in public service with the following restrictions:
- effectively screened
- written notice promptly given
When is w/drawl mandatory?
- rep will violate laws/rules
- L physical/mental condition materially impairs ability to rep C
- L is fired
When is w/drawl permissive?
- w/o material adverse effect on C interest
- C consents
- C persists in CoA involving L services that criminal or fraudulent
- repugnant, imprudent, or contrary to L advice/judgment or L fundamentally disagrees with action
- C used L services to perpetrate crime/fraud
- C substantially fails to pay and has been given reasonable warning that L will w/draw if doesn't pay
- unreasonable financial burden on L or C makes rep unreasonably difficult
- C insists on presenting claim/defense not warranted and can't be supported by GF argument
- othr good cause
A L must do everything _____________ to further C interests unless the C motive is _____________.
- legally and ethically nec
- solely to harass or maliciously injure
The C decides the objectives which includes what?
- waive jury trial
A C will generally defer to the L as to the what?
means used to reach C objectives
What is L duty of diligence?
- L must act with reasonable diligence and promptness in rep client
- not bound to press for every advantage
- some discretion regarding means by which matter should be pursued
Regarding communications with C, a L must what?
- promptly inform any decision/circumstace requiring informed consent
- reasonably consult about means
- keep C reasonably informed
- promptly respond to C inquiries
- consult with C about any relevant limitation on L conduct
What are the ethical requirements of the L as advocate?
- duty to avoid frivolous claims
- duty of candor to the court
- false testimony
- C testimony in criminal cases
- duty of fairness to opposing party/counsel
- duty to expedite litigation
- dty to maintain impartiality of tribunal
A L involved in litigation/investigation may not make an extrajudicial statement that the L what?
knows or reasonably should know will be made public and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter
What are the special rules associated with prosecutors?
- believe PC to prosecute
- make reasonable efforts assure accused knows right to counsel
- not seek to obtain waiver of important pretrial rights from unrepresented C
- disclose all exculpatory and mitigating evidence
- not subpoena L to disclose evidence about C
When can P subpoena L to disclose evidence about C?
- evidence is essential
- no other feasible way to obtain info
What are the L responsibilities when representing organization and learns EE intends to engage in illegal conduct against org or that might be imputed on the org that is likely to be substantially injuriou to the org?
- proceed as is reasonably nec in best interest of the org
- must report up
- may report out
What does the A/C privilege protect?
- confidential communications
- b/t C, his reps, L, and L's reps
- made for the purpose of obtaining legal advice/services
- when C hasn't waived the privilege
If communication is knowingly made in the presence of 3Ps, is it covered by A/C privilege?
no must be intended to be confidential
Who is the holder of the A/C privilege
How long does the A/C privilege continue?
indefinitely, even after A/C relationship is terminated and/or after C death
What are the exceptions to A/C privilege?
- furtherance or prevention of crime or fraud
- claimants thru the same deceased C
- breach of duty by L or C
- Docs attested to by L
- joint C
When is disclosure permitted but not required?
- informed consent
- impliedly authorized
- must be disclosed but only to extent reasonably nec
What are some situations where information may or must be disclosed?
- comply with rules or law
- prevent commission of crime
- prevent reasonably certain death or bodily harm
- prevent, mitigate, or rectify C crime or fraud where L services used
- secure legal advice regarding L compliance with rules
- respond to allegations concerning L representation of the C
When L is acting as advisor, he shall do what?
- exercise indpt prof judgment and render candid advice
- may refer to law and other considerations such as moral, economic, social, and political factors
A L may provide an evaluation of a matter affecting a C for the use of a 3P if what?
- reasonably believes compatible with other aspects of the L relationship with C
- C so requests or consents
When L is acting as a 3P neutral, what must he inform the unrepresented parties of?
- that he isn't representing them
- explain diff b/t L role as 3P neutral and L role in rep C