Pro Res MA
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The four types of discipline that can be imposed on a MA attorney are:
2. Public reprimand - published
4. Disbarment (name's off the door)
Attorneys must report misconduct of attoneys or judges when he:
knows of a violation of the RPC that raises a substantial question as to the lawyer's character and fitness as a lawyer.
Permissible temporary multi-jurisdictional practice methods:
1. Associate with an active local lawyer.
2. Pro hac vice
3. Mediation or arbitration out of home state practice.
4. Anything Reasonably related to a Lawyer's Home-State Practice.
An attorney has reporting duties:
The following activities constitute the practice of law:
1. Appearing in court and depositions.
2. Drafting legal documents that impact substantial client rights.
3. Negotiating settlements.
The following activities do not require a law license:
1. Interviews with people
2. Filling in forms.
3. Writing legal memos.
Clients have the right to make decisions:
that impact the merits of the case.
Attorneys have the power to make decisions of:
Strategy, tactics, procedure, except when it comes to costs.
If the lawyer believes client is at risk of substantial physical, financial, or other harm, the lawyer may:
1. consult with family members, adult protective agencies
2. Seek the appointment of a guardian or conservatory if necessary
3. And confidential may be disclosed only the the extent reasonably necessary to protect the client's interests
If the lawyer is not competent to take a case he must give the client one of the three options:
1. Get another lawyer
2. Let me bring in co-counsel
3. Give me time to learn the area of law
Although an attorney may not encourage others to engage in the unlicensed practice of law he may help:
pro se clients prepare for their case
A lawyer may not enter into a non-compete agreement unless it is for:
retirement or resolving a conflict between partners.
A law firm name must be appropriate and not:
misleading to the general public.
Law firm partner names must be taken off the door if:
the disbarrment is permanent or the partner is promoted to a government position such as an ambassador.
An attorney may hold himself out as a specialist as long as it is:
An attorney may not hold himself out as certified in a specialized field unless there is actual certification by:
1. a private organization, which must be named
2. A government body which must be named
In their advertising, lawyers must avoid statements that a:
layperson would find false or misleading.
In their advertising, lawyers must avoid:
referring to the firm's clout and connections.
In their advertising, lawyers must avoid bragging about their win or loss record:
if it could be construed as misleading
Advertising of contingent fees must:
clearly state the terms and basis of the fee agreement.
A lawyer may send ______ _____ direct mail letters to any person known to face a specific legal problem.
All direct targeted mail must have:
disclaimers included on them telling them that the mailing is an advertisement.
Client names included in advertisements must be:
consented to by the client.
In an advertisement the name of at least one lawyer responsible for the content:
must be in the ad.
All advertisements must be kept for a period fo 2 years after:
its last dissemination along with a record of where and when it was used.
In MA, attorneys must not solicit:
prospective clients by means of direct personal contact. (Cannot use an agent either)
Solicitation occurs when the lawyer:
initiates the client interaction.
The Sale and Purchase of a Law Practice is ok if:
1. Written notice is given to clients regarding the sale.
2. Terms of changes in fee arrangements, but Fees cannot be increased as a result of the sale.
3. Clients are told of the right to seek new counsel.
4. Client consent is presumed if no action occurs within 90 days.
5. Must sell the entire practice, not just the "bad" cases.
An expectation of Protection and an attorney client relationship will be established if:
1. Client manifests intent that there is representation and lawyer agrees.
2. Client manifests intent and lawyer fails to make it clear that there is not representation.
The exceptions to lawyer-client confidentiality:
1. Required by law or court order.
2. With client consent after consultation.
3. May reveal confidential information as reasonably necessary to prevent death or substantial bodily harm of another, wrongful execution or incarceration of another, and to rectify client fraud or collect a fee or protect reputation.
A lawyer cannot reveal crimes that client:
has committed in the past.
A lawyer may however reveal statements of:
client intention to cause severe bodily harm or death.
Conflicts of interest:
As a basic rule avoid all:
conflicts of interest.
Conflicts of interest:
Accept a case with a conflict only if:
all clients have given their informed consent and a reasonably prudent lawyer would have taken the case.
Conflicts of interest:
A lawyer may not take a percentage of:
royalty rights that are the subject matter of litigation.
Conflicts of interest:
Gifts to attorney in will:
a lawyer must not draft a will that gives a gift to himself, except for family members or de minimis/nominal gifts.
An attorney must not lend:
money to clients. But, the attorney can advance the costs of litigation.
An attorney must obey the client and not:
the person who is footing the legal expenses.
An attoreny cannot limit his malpractice exposure by getting his client to agree to not:
sue you for malpractice. Client's may however agree to allow you to take a case you are incompetent to handle as long as the client has some independent legal advice.
It is always a conflict to represent a current client:
against a current client.
A lawyer for a corporation has the ______ ____ not the ______ or ______ as a client.
Officers or Board
On the bar exam screening a lawyer off:
is not good enough. Impute the conflict to the entire firm.
All attorney fees must be kept:
reasonable in relationship with the task assigned.
In MA, all fee agreements must be in writing except for:
1. a single session consultation
2. when the attorney reasonably expects the fee will be less than $500.
You cannot charge contingent fees in:
1. Criminal cases
2. Domestic relation cases. (Does not apply to breach of domestic K cases (past due alimony and child support)).
Written fee agreements require that the attorney disclose the following:
1. The client's potential liability for fees and expenses in the event the relationship is terminated prior to the need of the case.
2. Basis of calculation method of these amounts, if the lawyer intends to pursue such a claim.
A legal fee cannot be divided with:
A legal fee may be split with a lawyer in another firm if:
1. Client consents to fee arrangement.
2. Total fee is reasonable.
3. The lawyer to whom the referral is made, must confirm compliance before undertaking the representation.
Fired attorneys may get reasonable value of services:
through a quantum meruit suit, but are limited by the contingency actually recovered/paid.
The two types of retainers are:
2. Advance on fees
Trust account specific rules:
1. Client trust account must be in MA or elsewhere with client permission.
2. Notify client promptly when funds come in.
3. Keep records for 6 years after termination of representation.
A lawyer must have two bank accounts:
1. Operating: Lawyer's account
2. Trust: Client money account.
An attorney must not use funds in the:
If bar counsel proves that a lawyer received cash that belonged to a client, did not deposit that cash into the client trust account, and cannot account for a portion of it, a rebuttable presumption is created that:
the attorney misused client funds, and client was permanently deprived of those funds.
Interest on Trust accounts paid to MA legal assistance corp, and other charities designated by MA supreme Court.
A subordinate lawyer, in order to not be liable for misconduct must be:
at least arguable that he thought he was acting appropriately.
A supervising lawyer will be responsible for a subordinate's actions if:
they were instructed or ratified an act that violated the rules.
In order to speak to an adverse party:
you must go through the party's attorney.
An attorney may talk to witnesses:
at any time they desire.
An attorney has an affirmative duty to disclose contrary or adverse authority:
from the controlling jurisdiction.
Opposing counsel must be fair and must not:
1. Unlawfully obstruct access to evidence.
2. Falsify evidence.
3. Knowingly disobey an obligation under the rules.
4. Make frivolous discovery requests
5. Not allude in trial to a matter the lawyer reasonably believes cannot be supported by the evidence.
6. Request a non-party to refrain from voluntarily providing information
7. Pay witnesses based on the content of their testimony.
8. Present or threaten criminal or disciplinary charges to gain an advantage in a civil matter.
9. While appearing in a professional capacity, engaging in bias or prejudicial conduct.
When an attorney learns of information that comes into conflict with his duty to a tribunal he must:
try to withdraw from the case.
An attorney must withdraw from a representation when:
1. It would violate the rules
2. Attorney becomes impaired.
3. If you are fired.
An attorney may withdraw for:
any reason at all.
A lawyer connected with a case must not make a public statement outside the courtroom that the attorney reasonably should know:
would have substantial likelihood of materially prejudicing the case.
Lawyer may speak publicly when a reasonable lawyer would believe it is required to:
protect the client from substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the client.
The special duties of the Prosecutor include:
1. Proceed only on probable cause.
2. Protect defendant's right to counsel.
3. No seeking advantage from unrepresented
4. Must disclose evidence tending to negate guilt.
5. Limiting extrajudicial statements of others under prosecutor's control
A lawyer must not seek to avoid an appointment by the court except for good cuase such as:
If rep would violate the rules.
Would pun an unreasonable financial burden on lawyer
Cause is so repugnant to attorney that he can not represent client.
Attorneys have a duty to report the misconduct of:
Anyone admitted to the MA bar on or after September 1, 2013 must within 18 months of admission, complete:
a one-day, in-person mandatory practicing w/professionalism course.
Although lawyers should attempt to work pro bono:
there is no requirement to do so.
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