Professional Responsibility

Card Set Information

Author:
johncburt
ID:
200171
Filename:
Professional Responsibility
Updated:
2013-02-13 16:02:38
Tags:
Professional Responsibility
Folders:

Description:
Bar Exam
Show Answers:

Home > Flashcards > Print Preview

The flashcards below were created by user johncburt on FreezingBlue Flashcards. What would you like to do?


  1. Regulatory Controls - Sources of Regulation (2)
    • 1. State Regulation: Legislation can be passed, but the authority to regulate practice is in the highest court of the state.
    • 2. Federal Regulation: If in a fed court, each district has its own rules.
    • 3. Federal Gov Attorneys: Subject to state law where they practice.
    • 4. ABA: promulagates model rules that have been adopted by most states
  2. Admission to Legal Profession - 3 requirements
    • 1. Education
    • 2. Pass Bar
    • 3. Character and fitness
    • 4. Residency cannot be a requirement
  3. Disciplinary Process - Effect of disciplin on Fed court and other states
    • 1. Fed Court: Has no effect
    • 2. Other states must have their own hearing, but consider sister state
  4. Multi-Jurisdictional Practice - Permissable Things (4)
    • 1. Associate with local counsel
    • 2. Special court permission pro hac vice
    • 3. Mediation or Arbitration
    • 4. Reasonably related to home practice
  5. Responsibilities of Manager of Subordinate Attorneys - Can be liable (2 situations)
    • Responsible for acts of subordinate if:
    • 1. Knew of Misconduct: and Consequences could have been avoided or mitigated and manager fails to take action; or
    • 2. Supervisor ordered or ratified bad conduct
  6. Subordinate Attorneys - Not liable if:
    Subordinate not liable if: You were told to do it and you did not know it was wrong
  7. Unauthorized practice of law - What activities require a license (2) and Do Not (2)
    • 1. Informing, counseling, advising, advocating
    • 2. Draft documents that impact substantial legal consequences of client

    • Do not need license
    • 1. Filing in forms
    • 2. Interviewing people
  8. Restrictions on right to practice
    Cant have non-compete, except: A retirement condition when a person sells you his paractice, or to settle a claim
  9. Attorney/Client Relationship - Duty to reject cases (5)
    • 1. Physical or mental inability
    • 2. Conflict of interest
    • 3. Frivilous Claim or defense
    • 4. Strong feelings or bias
    • 5. Incompetence/Lacking legal standing
  10. Decision making authority - Important decisions belong to Client (6)
    • 1. To sue
    • 2. Settle - inform all offers, unless she gave a specific range
    • 3. Testify
    • 4. Plea
    • 5. Jury or Bench
    • 6. Appeal
  11. Decision making authority - Tacticle decisions belong to attorney (4)
    • 1. Which court to file in
    • 2. Depositions - take or not to take
    • 3. Discovery - whether and what
    • 4. Continuances - whether to request or grant

    If client has diminished capacity, cant make decisions for her, get a guardian appointed
  12. Attorney/Client Relationship - Termination - When litigating - Need
    • 1. Need courts permission when litigating - often depends on stage of litigation
    • 2. Client can fire attorney
  13. Attorney/Client Relationship - Termination - Manditory Withdrawl (3)
    • 1. Client fraud
    • 2. insists on breaking law
    • 3. begun illegal course of action
  14. Attorney/Client Relationship - Termination -Permissive Withdrawl (7)
    • 1. Any reason where there is no material harm to client
    • 2. Client consents
    • 3. Client used attorney services to commit past crime
    • 4. Clients objective is repugnant, imprudent
    • 5. Doesnt pay attorney
    • 6. Unreasonable financial hardship
    • 7. Client will not cooperate
  15. Attorney/Client Relationship - Termination - Client says he is going to lie, do what?
    • 1. Disuade Client
    • 2. Request permission to withdraw
    • 3. Do as judge instructs
    • 4. Give client notice to get a new lawyer
  16. Attorney/Client Relationship - Fees -Notice
    Inform client your fees, scope, expenses before or right after start representation your. Unless you regularily represent the client
  17. Attorney/Client Relationship - Fees - Reasonable fee factors (7)
    • 1. Time and labor
    • 2. Difficulty and novelty
    • 3. Experience, reputation, abilities
    • 4. Relationships, nature and length
    • 5. Exclusions (attorney turns away other work)
    • 6. Fixed or contingent
    • 7. Customarily charged
  18. Attorney/Client Relationship - Fees - Contingency fees
    • 1. Cant use in criminal (no incentive fee)
    • 2. Cant use in domestic relations case. Past due support ok because now its a past due debt
    • 3. Contingency fee must be in writing, b4 take case, and notify client of any expenses
  19. Attorney/Client Relationship - Attorney sells his practice - Effect on Clients
    • Attorney can sell whole practice.  Give clients notice of sale, right to new counsel and files. If client does not object in 90-days then deemed to accept.
    • If you cant serve person, get court authorization
  20. Client Confidentiality - Attorney/Client Privledge and Confidentiality (4 points)
    • 1. Confidentiality covers all communications with client. 
    • 2. Client holds the privledge
    • 3. 3rd Party does not destroy if helped further att/client relationship
    • 4. Death does not destroy
  21. Attorney/Client Privledge - Work Product - When discoverable
    • Materials prepared by atty for or in anticipation of litigation is immune from discovery unless other side shows:
    • 1. A substantial Need
    • 2. Inability to get w/o undue hardship
  22. Attorney/Client Privledge - Exceptions to Privledge (3)
    • 1. Waived by client
    • 2. Seeks attorney to engage or further future crime, fraud
    • 3. Suit between attorney/client - can disclose relevant info
  23. Attorney/Client Privledge - Confidentiality - When is it waived (4)
    • 1. Client Waived
    • 2. Required by law
    • 3. Informed consent
    • 4. Implied authority to disclose to further representation
  24. Attorney/Client Privledge - Exceptions to Confidentiality - Fraud (2 Prong test)
    • 1. Client commited past: crime or fraud - Cannot be disclosed
    • 2. Client is commiting present fraud: Atty must seek to withdraw, if cannot or withdrawl does not resolve the problem, then atty must disclose fraud to judge
  25. Attorney/Client Privledge - Exceptions to Confidentiality - Prevent Crime
    If reasonably certain death or great bodily harm can disclose enough to prevent the crime
  26. Attorney/Client Privledge - Exceptions to Confidentiality - Prevent Substantial Financial hardship
    Can reveal if client used atty to commit financial hardship or fraud.  Also can disclose confidential info to mitigate the harm already done.
  27. Conflicts of Interest - Adverse Interests of Client - Curred
    • Sometimes can be curred if:
    • 1. Atty fully explains risk
    • 2. Client agrees in writing
  28. Conflicts of Interest - Personal Interests (3)
    • 1. No loans:  to client in connection with pending litigation. Can front costs
    • 2. Rule of imputation: If one atty cannot take, whole firm cannot take unless sexual relations
    • 3. Sexual relationships: Cant have relations with client that are not pre-existing. Consent and harm are irrelevant
  29. Conflicts of Interest - Acquiring an interest in litigation
    Cant, except: Contingency fees and security lien
  30. Conflicts of Interest - Current clients and former clients (2)
    • 1. Cannot represent client in one matter and sue him in another if you have confidential info
    • 2. Cannot represent client whos interests are directly adverse to another client
  31. Conflicts of Interest - Current client conflicts - Joint representation
    Must have reasonable belief of no adverse effect and get written, informed consent
  32. Conflicts of Interest - Current client conflicts - Joint representation - Settlement of claims - Disclosure
    • Cannot settle without informed consent, in writing after full review of entire settlement, includes:
    • 1. Clients have agreed about how sum will be shared
    • 2. Disclosure of total amount paid, atty fees, details what everyone gets, existance of all claims and defenses.
    • 3. May require atty to reveal confidential info, should get clients consent
  33. Conflicts of Interest - Prospective clients - When does confidentiality attach
    • An expectation and protection of relationship will exist if:
    • 1. Client manifests that there is representation and atty agrees
    • 2. Client thinks there is representation and atty fails to make it clear there is no rep, and reasonable reliance on representation
  34. Conflicts of Interest - 3rd Party Compensation and influence
    Can be paid by 3rd party, but requires: written informed consent that confidences will not be disclosed
  35. Conflicts of Interest - Relative of Attorney - oppossing atty
    Parent, child, sibling, spouse shall not represent adverse parties w/o full informed consent.
  36. Atty communicate with client - About what (4)
    • 1. Reasonably consult w/ client about means which objectives accomplished
    • 2. Keep client reasonably informed of status
    • 3. Promptly comply w/ reasonable requests for info
    • 4. Explain matters to extent client can make informed decisions
    • 5. Communicate all settlement offers
  37. Candor to Court - adverse case law - report (4)
    • 1. Cant bury adverse decisions
    • 2. No explanation required to give court
    • 3. Can distinguish away
    • 4. Can argue good faith argument to change law
  38. Trial Publicity - What can/cant do
    • 1. Atty connected to case cannot make statements outside crtrm that atty should know would have a substantial likelihood of material prejudice
    • 2. Atty can speak what is reasonably necessary to offset bad publicity not from atty or client
    • 3. May state dry facts about the case
  39. Communication w/ represented person (2)
    • 1. Must speak to their atty
    • 2. Clients can speak w/ eachother can even encourage them to
  40. Communication w/ non-represented persons (3)
    • 1. Cant give legal advice
    • 2. Cannot appear disinterested
    • 3. Can negotiate a settlement
  41. Witnesses - can/cant do (4)
    • 1. No contigent fees for experts
    • 2. Can pay reasonable expenses and lost wages
    • 3. No need to ask permission to speak to other side's witness
    • 4. If opponant is a Corp., cant talk to their managers w/o inhouse counsel permission
  42. Representation of a Corporate Client (3)
    • 1. You represent corp., not individual officers
    • 2. Atty can be a board member, but no atty/client priv in board meeting
    • 3. If atty learns of a violation, must report to president, maybe board, other appropriate people to help protect the corp
  43. Safe Keeping Funds - Client Trust account (2)
    • 1. Must keep client money in trust account, unless client consents to it being elsewhere
    • 2. For small funds can pool money in a single trust account
  44. Safe Keeping Funds - Client Trust account - Disputed Fees after settlement
    If Client disputes fees after a settlement.  Disburse to yourself and client those fees agreed on, keep the rest in trust account till resolved
  45. Gifts to Atty
    Can accept reasonable gifts.  But if a gift in a Will, have another atty draft the Will, unless your related to doner
  46. Atty Advertising (4)
    • 1. Must have an atty name, address phone on all advertising
    • 2. Cannot give false or misleading info
    • 3. Cannot create unjustified expectations
    • 4. Cannot imply results by improper means
  47. Law Firm Names - Names
    Can only put in the name partners that are still with firm. Dead people can keep their name.  If only temporary leave, can keep name
  48. Split fees with other attys
    • Ok to spllit fees w/ attys outside firm:
    • 1. Work together
    • 2. W. clients, written informed consent
    • 3. Paid proportionatly or however but both assume responsibility
    • 4. One reasonable fee
  49. Solicitation: Direct contact with prospective client
    • Cannot solicit in person.
    • Solicitation is seeking fee paying work through in person, telephone, real time electronics with prospect who is not family, close personal, or previous client

    Pre-paid legal is ok so long as you do not know the person is in need of representation
  50. Communication Regarding Fields of Practice and Specialization
    • 1. Common Law specialization are patent and admialty
    • 2. Supreme Court "Peel" case: not ok to say you specialize unless you are certified by organization in UT or ABA
  51. Special Duties of Prosecutor to defense (4)
    • 1. Proceed only on probable cause
    • 2. Protect D's right to counsel
    • 3. No seeking advantage from unrepresented
    • 4. Must disclose to defense
  52. Judicial Ethics-  Judicial code applies to who
    2007 Judicial code applies to magistrates, court commissioners, referees, special master, judges
  53. Judicial Ethics- Retiered and part-time judges - Can/cant Activities
    Generally judges cannot engage in outside activities same as active judges: Retired judges, subject to recall can conduct mediations and arbitrations
  54. Judicial Ethics- Appearance of impropriety
    Judges conduct cannot even give the appearance that activity reflects on the judges honesty, impartiality, temperment or fitness to be a judge
  55. Judicial Ethics- Abuse of Judicial Prestige - Letterhead
    • 1. Cannot use letterhead for personal biz
    • 2. Can write a letter of recomendation on letterhead, but cannot give appearence of using pressure
  56. Judicial Ethics- Duties of Influence, compitence, settlements, Bias (4)
    • 1. No external Influence
    • 2. Compitence requires knowledge, skill, thuroughness, preparation
    • 3. Devote adequate time, dispose of court biz, be punctual
    • 4. Can encourage, but not coerce settlement
    • 5. Must avoid bias, prejudice, including race, sexual orientation, political influence
  57. Judicial Ethics- No Ex Parte Communications - except (4):
    • 1. Authorized by law (drug, mental health)
    • 2. Mediation or settlement
    • 3. Emergency - de minimis
    • 4. Inadvertant receipt of info
  58. Judicial Ethics- Disqualifications (6)
    • 1. Not impartial
    • 2. Knowledge of Facts
    • 3. Prior involvement in case, as attorney, witness, gov employee, judge prior case
    • 4. Economic interest
    • 5. Partner or relative is party, witness
    • 6. Party contributed more to his campaign
  59. Judicial Ethics- Judge's participation in extrajudicial activities - Things cannot do (6)
    • 1. Can't appear to undermine impartiality
    • 2. Can't testify character W, except subpeo
    • 3. Can't be member of group that discriminates or use facilities
    • 4. Cant be executor, trustee of estate, except family
    • 5. Cant be officer, director, employee of a business
    • 6. Cant except gifts where they appear to undermine impartiality
  60. Judicial Ethics- Judge's participation in extrajudicial activities - Things CAN do (4)
    • 1. Can receive compensation for speaking, writing
    • 2. Can Be a director, officer, non-legal advisor of charity
    • 3. Can take part in non-profit charities - can solicit contributions from familiy, friends
    • 4. Can go to legal related events, offered to him for free, but must REPORT.
  61. Judicial Ethics - Political Campaigns - If running for office can/cant (7)
    • 1. Can speak at gatherings
    • 2. Cannot speak on behalf of political branches
    • 3. Cant use court staff, resources campaign
    • 4. Family cant do what judge cannot do
    • 5. Can respond to false, misleading statements by opposing party
    • 6. Can establish campaign fund - but cannot personally solicit
    • 7. If run for non-judicial office - must resign

What would you like to do?

Home > Flashcards > Print Preview