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ABA Model Rule 1.1
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
- - relevant factors: complexity and specialized nature of the matter, lawyer's general experience, training, the preparation lawyer will be able to give the matter
- - lawyer should keep abreast of changes in the law to maintain knowledge/skill
hypo: Criminal defender refuses please b/c doesn't trust prosecutors
-probably not competent representation-- going against reality of criminal defense practice
- informed consent still has to be reasonable under the circumstances; even if informed client may be leaving an incredibly good offer on the table
ABA Model Rule 1.3
A lawyer shall act with reasonable diligence and promptness in representing a client [see In re Reynolds who let the statues of limitations run, failed to prosecute four separate matters--know how to limit caseload]
bar admission- Rule 8.1
- an applicant for admission to the bar, or a lwyer in connection with a bar admission application or in connection with a disciplinary matter, shall not:
- (a) knowing make a false statement of material fact; or
- (b) fail to disclose a fact necessary to correct a
- misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6.
Report Professional Misconduct
- -A lawyer who knows that another lawyer has committed a
- violation of the Rule of Professional Conduct that raises a substantial question as to that lawyer’s
- honesty, trustworthiness or fitness as a lawyer in other respects, shall
- inform the appropriate professional authority.
- -Lawyer who knows that a judge has violated the rules of
- judicial conduct that raises a substantial
- question as to the judge’s fitness for office shall inform the
- appropriate authority.
- -This Rule doesn’t
- require disclosure of information protected by R1.6 or gained through participation in an approved lawyers’
- assistance program.
Maintain Integrity of the Profession- misconduct
- ABA 8.4
- misconduct to:
- -violate or attempt to violate the Rules of Professional conduct
- -commit a criminal act that reflects adversely on lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects.
- -engage in conduct involving dishonesty, fraud, deceit, or misrepresentation
- -engage in conduct that is prejudicial to the administration of justice
- -sate or imply an ability to influence imporperly -a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or
- - knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.
unauthorized practice of law
- (a)A lawyer shall not practice law in a jurisdiction in violation of the
- regulation of the legal profession in that jurisdiction, or assist another in
- doing so.
- (b)A lawyer who is not admitted to practice in this jurisdiction shall
- (1)Except as authorized by these
- Rules or other law, establish an office or other systematic and continuous
- presence in this jurisdiction for the practice of law; or
- (2)Hold out to the public or
- otherwise represent that the lawyer is admitted to practice law in this
Rule 5.5 (c)
- (c) A lawyer admitted in another United States jurisdiction, and not
- disbarred or suspended from practice in any jurisdiction, may provide legal
- services on a temporary basis in this jurisdiction that:
- (1) are undertaken in
- association with a lawyer who is admitted to practice in this jurisdiction and
- who actively participates in the matter;
- (2) are in or reasonably related
- to a pending or potential proceeding before a tribunal in this or another
- jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized
- by law or court order to appear in such proceeding or reasonably expects to be
- so authorized; (3)are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer's practice in a jurisdiction in
- which the lawyer is admitted to practice and are not services for which the
- forum requires pro hac
- vice admission; or (4) are not within paragraph (c)(2) or (c)(3) and arise out of or are reasonably related to the lawyer's practice
- in a jurisdiction in which the lawyer is admitted to practice.
- (d) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services through an office or other systematic and continuous presence in the
- jurisdiction that:
(1) are provided to the lawyer's employer or its organizational affiliates and are not services for which the forum requires pro hac vice admission; or
(2) are services that the lawyer is authorized by federal or other law to provide in this jurisdiction.
Disciplinary Authority; Choice of Law
- (a) Disciplinary Authority. A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the lawyer's conduct
- occurs. A lawyer not admitted in this
- jurisdiction is also subject to the disciplinary authority of this jurisdiction
- if the lawyer provides or offers to provide any legal services in this jurisdiction. A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction
- for the same conduct
- (b) Choice of Law. In any
- exercise of the disciplinary authority of this jurisdiction, the rules of
- professional conduct to be applied shall be as follows:
- (1) for conduct in connection with a matter
- pending before a tribunal, the rules of the jurisdiction in which the tribunal
- sits, unless the rules of the tribunal provide otherwise; and
- (2) for any other conduct, the rules of the
- jurisdiction in which the lawyer's conduct occurred, or, if the predominant
- effect of the conduct is in a different jurisdiction, the rules of that
- jurisdiction shall be applied to the conduct.
- A lawyer shall not be subject to discipline if the lawyer's conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer's conduct will occur.
attorneys must uphold honor and dignity of legal profession, best efforts to prevent clients and witnesses from disorder
Fees- ABA rule and 8 factor test
Lawyer can't collect/charge an unreasonable fee or unreasonable amount of expenses.
- Reasonableness based on 8 factor test:
- (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
- (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
- (3) the fee customarily charged in the locality for similar legal services;
- (4) the amount involved and the results obtained;
- (5) the time limitations imposed by the client or by the circumstances;
- (6) the nature and length of the professional relationship with the client;
- (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
- (8) whether the fee is fixed or contingent.
when shall scope of representation and basis/rate of fee/expenses be communicated to client?
before or within a reasonable time after commencing representation
except: a regularly represented client charged same basis or rate
must be in writing, signed by client, and state how fee is to be determined (including percentages that go to laywer) must also notify the client about any expenses the client will be responsible for
ALSO: after the litigation, client must be given written statement reflecting outcome and disbursement of any recovery.
- Lawyer CAN'T enter contingent fee in 1) domestic relations amtter where payment is contingent upon securing divorce/custody/child support or 2) for criminal defendant.
- subject to reasonableness
is property as payment okay?
Yes, but only if it does not involve acquisition of an ownership interest in the cause of action
letter of engagement to represent a client- NY
Give client written letter of engagement before commencing the representation (or within a reasonable time thereafter if otherwise impracticable/scope of services not yet known)
- - less than 3k fee
- - representation in domestice relation matter
- - where atty services are of same general kind as previously rendered and pad for
- -attorney is admitted to practice in another jurisdiction and maintains no office in NY or where no material portion of the services are to be rendered in NY
duties to prospective clients: when is a client a client?
ABA 1.18: duties to prospective client
a. A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with
b. Lawyer who has had discussions with a prospective client, even if they don’t become a client, can’t reveal any information learned except as 1.9 would permit
how to mitigate when prospective client has interests materially adverse to a prospective or current client in a "substantially related matter"?
[either get written informed consent from prospective and affected client or give to another lawyer in firm as per (d)]
c. Lawyer shall not represent a client with interests materially adverse to those of a prospective client in the same or substantially related matter
- -Affected and prospective client have given informed consent in writing, OR
-Lawyer who received information took reasonable measures to avoid learning more disqualifying necessary than was reasonably necessary to determine whether to represent, AND:
- -Disqualified lawyer is timely screened apportioned no part therefrom AND
- -Written notice promptly given to prospective client
client with diminished capacity
- presence of family members in diminished capacity cases generally doesn't affect boundaries of AC privilege
declining or terminating representation- mandatory withdrawal
- must withdraw when:
- 1) representation will result in violation of rules of professional conduct
- 2) lawyer's physical/mental condition impairs his ability to represent or
- 3) laywer is discharged
-may withdraw for most any good cause, but there may not be a materially adverse effect
on the client.
- lawyer must comply with applicable law requiring notice/permission of judge to terminate representaiton
- - take steps upon termination reasonably practicable to protect client's interests, including:
- --notice to client
- --time for employment of other counsel,
- --surrender papers/property
lawyers shall not bring/defend a proceeding unless there is a ___
basis in law and fact that is not frivolous (includes good faith argument for extension/reversal of existing law)
termination by client
client generally has complete control over whether to terminate lawyer's representaiton
hypo: Client admits he has Alzheimers. What do I do?
inquire about the specifics, medications, how long he's had it, how advanced it is, effects on him, etc.
probably have to keep confidential that client has Alz, so don't tell his fam
allocation of authority between client and lawyer as per ABA 1.2: client has decision to
- 1) settle
- 2) take a please
- 3) waive jury trial
- 3) testify or not
hypo: client on death row and just want to give up and die. what do I do?
has the client been so beaten up by the system that he now has diminished capacity and can't make a competent decision?
- -don't want to give up on client too quickly
- - remind client that this is a step that can't be undone
- - also balance 1.2 in which client decides whether or not to be represented
when client has already commenced a course of action leading fraud/crime, lawyer must__
avoid assisting the client and should withdraw under 1.14
lawyer can't reveal info relating to the representation of a client UNLESS:
- -client gives informed consent OR
- - the disclosure is impliedly authorized to carry out representation, OR
- - the disclosure is permitted by (b)
- lawyer may reveal information learned from client to extent lawyer reasonably believes necessary to:
1) prevent reasonably certain death or substantial bodily harm
2) [client using lawyer's services to cause substantial financial harm to someone else] to prevent client from committing a crime/fraud
that is reasonably certain to result in substantial injury to the financial interests/property of another
and in furtherance of which client has used or is using lawyer's services
3) secure legal advice
4) establish a claim/defense on behalf of lawyer in controversy between lawyer and client (i.e. in defense to a complicity charge
5) comply with other law or court order
BUT lawyer should seek to persuade the client to take suitable action to obviate need for disclosure
-even if disclosure not required here, disclosure of confidential info may be mandatory by other rules, i.e. 3.3(c) (disclosure may be necessary to fulfill duty of candor to tribunal)
- duty of confidentiality even after A-C relationship terminated (i.e. former client's death)
to be "reasonably certain" that harm is likely unless lawyer reveals confidential information, harm must be __
suffered imminently or there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take action necessary to eliminate the threat.
to fulfill candor to tribunal, lawyer shall not knowingly:
(1) make false statement of fact to tribunal OR fail to correct false statement of material fact,
(2) fail to disclose legal authority in controlling jurisdiction known to lawyer that is directly adverse (even if not cited by opposing counsel),
(3) offer false evidence, if a lawyer or his client/witness offers material evidence and lawyer comes to know it’s false then must take reasonable remedial measures (including disclosure to tribunal if necessary) Lawyer may also refuse to offer evidence (other than testimony of defendant in criminal matter) that lawyer reasonably believes is false
knowledge: if reasonable belief of falsity does may not present at trial, as knowledge ccan be inferred from facts.
to fulfill candor to tribunal, lawyer who represents a client in any adjudicative proceeding and knows that a person intends to engage, is, or has engaged in fraud/crime related to the proceeding shall:
take reasonable remedial measures (including disclosure if necessary)
duty of candor to tribunal- in an ex parte hearing (hearing where a party not present), lawyer must:
inform tribunal of all material facts known to lawyer that will enable tribunal to make an informed decision (even if adverse)
hypo. Client left incriminating evidence, and I urged him not to testify, but that if he does to testify truthfully. If client perjures himself, what must I/should I have done?
- have ex parte meeting with judge and inform judge that I
- 1. encouraged client to rectify
- 2. determine whether perjury is a crime for purpose of crime exception to disclosure rules (i.e. prevent myself from engaging in criminal act)
- 3. MUST reveal perjury to the court
hypo: If accountant hired by lawyer asked a question in court, does accountant have attorney-client privilege?
maybe. if lawyer directs client to relay story to accountant hired by lawyer in order for lawyer to provide better tax advice, privilege should attach (U.S. v. Kovel)
--distinct from case where client first speaks to own accountant --> no privilege
may be a waiver of work product doctrine if__
voluntary submission to adversarial party [see In Re Steinhardt Partners when a attorney previously gave work product (a memo prepared for clients) to SEC, which was the opposing party.
this is not a per se rule-- done on case-by-case basis (as per Upjohn)
If I receive an email from opposing party that I know was sent by accident, what should I do?
ABA 4.4 (p 23-24)
-promptly notify sender to permit person to take protective measures (comments of 4.4)
any additional steps beyond the ABA rules
- ABA vs. NY: ABA only requires notice doesn't require refrain from reviewing!
- NYC Bar Op 2003-4
- -notify sender and refrain from further reading
- -receiving attorney not prohibited from using the info before knowing that communication was inadvertently sent (can't unlearn)
If opposing party asks for electronic discovery of client files, I must ___
ensure client retrieves information that is easily discoverable (Qualcomm). Do not accept unsubstantiated assurance that a client's search is sufficient
hypo. My client wrote emails to me on company laptop issued to him. Employer, the opposing party, used forensic expert to recover files on the laptop. Was the information privileged by a-c relationship?
Yes. Client had reasonable expectation of privacy and employer erred by failing to notify as per 4.4 (see Stengart v. Loving)
Candor to third person- Rule 4.1- general rule and comments
- Lawyer shall no knowingly:
- -make a false statement of material fact or law to a third person; or
- -fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a crime/fraud by a client
- -generally lawyer has no affirmative duty to inform opposing party of relevant facts
- -misrepresentaiton can also occur with partially true but misleading info or omissions
- -what counts as "fact" depends on circumstances but generally accepted negotiation tactics generally not facts (so may be able to say something like "I'll never go above 200k" to the other party)
- -- "Puffing" is ok
- -- ethically (outside of ABA though) should have truth and fair dealing
hypo. An attorney and Inspector General working undercover counsels an informant/witness to give false testimony. If discovered the info was false, does attorney violate RPC?
Yes. But a balancing test, so some may argue that attorney justified by larger ethical concerns (i.e. role as Inspector General) (see Malone)
note: sentencing by ABA might be mitigated if attorney has solid reputation (In re Pautler)
hypo. In PA, I find the facebook page of opposing party. Is it ok to make false facebook page and friend request opposing party? What if in NY State? NYC?
No. as per 4.1, no trickery to get into non-party witness's FB page
NYC: can use real name, not fake name/profile to get info, but don't have to indicate an attorney for other side.
competing obligation to be zealous advocate for client, but duty of zeal may not outweigh duty of honest representation
5.6: Restriction on right to practice- general rule
Lawyer shall not participate in offering or making
- a) partnershpi, shareholders, operating, employment, or similar type of agreement that restricts the right of a lawyer to practice after terminaiton of a relationship except an agreement concerning benefits upon retirment; or
- b) agreement in which a restriction on the lawyer's right to practice is part of the settlement of a client controversy
- -can't make agreement restricting right of lawyer to practice upon leaving a firm
- -can't agree not to represent other persons in connection with settling a claim on behalf of a client
Lawyer with direct supervisory authority over another shall make reasonable efforts to ensure the other lawyer conforms to RPC
- -managerial authority includes: partners, shareholders, etc.
- -whether lawyer has supervisory authority is a question of fact
Lawyer responsible for another lawyer's RPC violations if:
- 1) lawyer orders or, with knowledge of specific conduct, ratifies the conduct, or
- 2) lawyer is partner in which the other lawyer practices, or has direct supervisory authority over the other lawyer and knows of the conduct at a time when its consequences can be avoided and fails to take reasonable remedial action
subordinate lawyer does NOT violate RPC if that lawyer:
acts in accordance with supervisory lawyer's reasonable resolution of an arguable question of professional duty
- following orders does NOT relieve the subordinate, but can be relevant in determining whether she had the necessary knowledge to be committing a violation
As per rule 5.3, lawyer shall be responsible for conduct of nonlawyer when conduct violates RPC if:
- - lawyer orders or , with knowledge of specific conduct ratifies that conduct or
- - lawyer is partner or has direct supervisory authority and knows of conduct at time where consequences can be avoided/mitigated with reasonable remedial action
As per ABA ____, Lawyer shall not represent a client if the representation involves a ____conflict of interest, which exists if ___
- significant risk does not mean mere possibility
- -1) representation of one client will be directly adverse to another client OR
- 2) significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to:
- -another client
- -a former client
- - a third person or
- -by a personal interest of the lawyer
As per ABA 1.9, a lawyer who has formerly represented a client shall not represent another in the same or a ______
substantially related matter in which the person's interests are materially adverse to the interests of the former client, unless client gives written informed consent.
hypo. If my former firm previously represented a client, may I represent another person in the same or a substantially related manner of my former firm?
I may only IF:
-the prospective client's interests are not materially adverse to that former client AND
-the info I acquired is not material to the current matter, or former client provides informed consent confirmed in writing
hypo. A wife seeks my counsel in a divorce proceeding, and my firm previously represented husband. Known that husband cheated. May I use this information in representing wife?
- - if cheating publicly known, could be okay in representing wife.
- - if unrelated and not publicly known, probs may not use if disadvantages husband in divorce for example if firm represented husband in securities violations and lost, probs can't use this to disadvantage in divorce
hypo. Potential Client A approaches me to represent her, and I know another lawyer in my firm could not represent her because she's his wife. May I or anyone in the firm represent her?
Yes, but only if prohibition arises out of the personal interest of the other lawyer AND no significant risk of materially limiting my or other qualified lawyers' representation of Potential Client A.
I represented Party A at a firm. After representing them, I left for a new firm. Party B was the opposing party at my old firm and want me to represent them in a substantially related matter. Is this okay?
I may not, but firm may ONLY IF:
- i. I'm screened from any participation in the matter and not given any fee related to it.
- ii. promptly provide written notice to Party A
- ii. Me and law firm partner provide certifications of compliance with RPC and screening procedures to Party A
An employee of a corporation I represent is unrepresented, has issues adverse to my client's, and seeks my counsel. What should I do?
Let her know there is a conflict of interest. Do not tell person that I am disinterested in the matter and suggest she seeks counsel. Do not give any other legal advice!
- HOWEVER, may conduct negotiate terms of a transaction with an unrepresented person
A doctor wants to refer clients to me in exchange for referrals to doctor. Is this okay?
[7.2 (b)(i),(ii) and 7.2 comment]
- - referral system is not exclusive
- - client informed of referral agreement