Professional Responsibility

Card Set Information

Professional Responsibility
2015-07-21 22:53:40
speed MD
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  1. License
    • To practice law one must have a license to practice within the state.
    • (1) graduate from an ABA-accredited law school
    • (2) pass the bar
    • (3) pass a character and fitness review.
  2. Pro hac vice
    • An out-of-state attorney can make a request to appear pro hac vice.
    • Only in this context
    • Supported by MD attorney
  3. Punishment for professional misconduct
    • (1) Violation RPC
    • (2) Crime involving dishonesty
    • (3) Demonstrates an unfitness to practice law
    • (4) Deceitful conduct
    • (4) Frustrates administration of justice
    • (5) Interferes with administration of justice by acting with unlawful bias
    • (6) Suggests the ability to bribe
    • (7) Assists a judge in violation of rules
  4. Where can professional misconduct happen
    Inside or outside of the state of MD.
  5. Lawyer liable for misconduct of others:
    • (1) orders the misconduct
    • (2) ratifies the misconduct with knowledge of the specific misconduct
    • (3) fails to take remedial measures when consequences of misconduct may be avoided.
  6. Partner's liability within the firm
    • Liable for acts of others.
    • Required to make reasonable efforts to ensure compliance.
  7. Subordinate attorneys liable for acts ordered by supervising attorney
    • Yes. Except when
    • (1) there is an arguable ethical duty and
    • (2) the supervising attorney reached a reasonable resolution.
  8. Lawyer's awareness of another's misconduct
    Must report misconduct of another lawyer or risk question of your own fitness and honesty
  9. Practice management: Non-lawyers
    • No non-lawyers may hold a position which affects the practice of law.
    • Lawyers cannot:
    • (1) partner with non-lawyers in practice of law
    • (2) permit a non-lawyer to own an interest in a firm
    • (3) permit a non-lawyer to hold any position of authority over his professional activities.
  10. Lawyers and Non-legal services
    • Lawyers may provide law-related services, even if the services could be performed by a non-lawyer.
    • The lawyer is still subject to RPC.
  11. Contractual restriction on the practice of law
    A lawyer cannot enter into partnership/employment agreements which restrict his ability to practice – except where (1) retirement benefits are contingent upon non-practice, or (2) settlement agreements for client controversies.
  12. Selling a law practice
    • (1) the firm is in existence for five years,
    • (2) the entire practice is being sold, and
    • (3) clients given 60 days' notice to object to transfer.
  13. Who can bring a complaint for professional discipline
    Anyone can bring a complaint.
  14. Malpractice
    • Client brings suit for duties for a professionally negligent violation of the rules.
    • Follows negligence theory.
    • Theories include (1) breach of duty, (2) breach of fiduciary relationship, (3) an intentional tort, (4) negligence and (5) respondat superior.
  15. Duty to accept a client
    • No duty to accept a client
    • Court appointment should only be avoided for good cause, such as (1) violation of RPC, (2) COI, (3) unreasonable financial burden.
  16. Rejection of a client
    • A right to reject clients.
    • Must when (1) against law, (2) against RPC or (3) lawyer lacks ability to effectively represent the client.
  17. Formation of Attorney-Client Relationship
    • Relations begins when the client reasonably believes that the relationship exists.
    • Writing not required to form.
    • Upon formation, attorney is an agent and fiduciary of client.
  18. Advertising by the Attorney
    Advertising is lawful but restricted by PRC.
  19. Solicitation by Lawyers
    • Live solicitation is direct contact with a potential client.
    • Prohibited unless (1) to another lawyer, (2) family relationship, (3) close personal relationship with a lawyer, or (4) prior professional relationship with the lawyer.
    • A lawyer may not solicit if (1) mental, physical or emotional state would prevent the person from making a reasonable decision, (2) client asks to be left alone, or (3) solicitation involves coercion, duress or harassment.
  20. Use of runners
    Runners are impermissible.
  21. Legal service plan
    Participation in legal services plan is permissible.
  22. Attorney's Fees
    • Fees must be reasonable.
    • May take into account (1) difficulty of case, (2) preclusion of other employment, (3) local customs, (4) amount of time involved and results obtained, (5) time limits imposed, (6) nature and length of prior relationship, (7) expertise of the attorney and (8) type of fee.
    • Contingent fees must be reasonable. 50%+ is usually unreasonable.
  23. Attorney's Contingent Fees
    Contingent fees must be (1) in writing, (2) signed by the client, (3) disclose the methodology and (4) indicate whether and when costs will be deducted.
  24. Attorney Referral Fees
    • No payment of referral fees to others
    • A lawyer shares court-awarded legal fees with a nonprofit that employed, retained or recommended employment of the lawyer.
  25. Agreements with non-lawyers
    Lawyers may enter into reciprocal referral agreements with non-lawyers which are (1) non-exclusive and (2) disclosed to the client.
  26. Safeguarding Client's Funds
    • Client-Funds must be:
    • (1) deposited into a labelled bank account,
    • (2) never mixed with the attorney’s funds,
    • (3) deducted only when the fee is earned, and
    • (4) records must be maintained for five years.
    • If there is a dispute, the attorney cannot withdraw the fee.
  27. Withdrawal
    When withdrawing, an attorney must provide (1) reasonable notice to the client, (2) seek court approval from pending litigation, (3) return all client’s papers, property and unearned fees.
  28. Mandatory withdrawal
    • (1) violation of RPC or other law,
    • (2) physical or mental condition materially impairs ability to represent, or
    • (3) client discharges the client (for any reason).
    • Duty of mitigation requires the attorney to reasonably lessen the impact of withdrawal.
  29. Permissive withdrawal - always
    • When no material will come to the client as a result of the withdrawal.
    • The court may order the attorney to continue to represent the client.
  30. Permissive withdrawal - harm to client
    • If harm will come, permitted when:
    • (1) client persists in crime/fraud,
    • (2) attorney used to perpetrate crime fraud,
    • (3) fundamental disagreement with client,
    • (4) reasonable warning of withdrawal unless payment,
    • (5) unreasonable financial burden on the attorney,
    • (6) client makes representation difficult (really difficult), or
    • (7) other good cause.
  31. Who decides how to proceed - client
    • Client is the master of the relationship, setting objectives, deciding when to testify (criminal), and controlling settlement offers.
    • Attorney may bind client through apparent authority.
  32. Who decides how to proceed -
    • Lawyer determines the means used to achieve the objectives, consulting client.
    • May NOT advise client to engage in crime/fraud.
  33. Clients with Diminished Capacity
    • Maintain as normal an A/C relationship as possible.
    • Reasonably protective action to protect a client, including seeking guardianship.
  34. Attorney's Duty of Competence
    • (1) Necessary skill and knowledge
    • (2) To effectively handle a client’s matter –
    • (3) Through experience or preparation.
    • Must be considered before accepting representation.
  35. Attorney's Duty of Communication
    • (1) keep client informed of status of case, and
    • (2) inform client of bona fide settlements
    • May delay sharing info if client may act imprudently.
  36. Attorney's Duty of Loyalty
    Must be loyal to client’s interests and avoid COIs.
  37. Attorney's Duty of Confidentiality
    • Keep client’s information secret
    • Reveal only when permissible/required.
  38. Conflicts of Interest
    A conflict of interest is a breach of the attorney's duty of loyalty to the client.
  39. Two types of Concurrent COI
    • * Direct adversity in related or unrelated court cases
    • * (1) Lawyer’s personal interest or (2) duties to current, former client or third person (3) pose a significant risk of materially limiting the lawyer’s ability to represent the client.
  40. Waiver of a Concurrent COI
    • (1) Lawyer’s reasonable belief that he can competently represent both clients (objective);
    • (2) Not prohibited by law;
    • (3) No direct litigation adversity;
    • (4) Each client gives informed consent confirmed in writing.
  41. What happens if a concurrent COI later arises?
    If COI arises later, the attorney must withdraw from both representations.
  42. Former client COIs
    • Duty of loyalty to a client does not expire after the A/C relationship winds up, and a former client COI will prevent attorney from forming a new client relationship.
    • When an attorney has represented a client in the past, (1) the attorney cannot represent a second client in a same or substantially related matter (2) if the second client’s interests are adverse to the first client.:
    • Substantially related when (1) same transaction or legal dispute, or (2) involves substantial risk that confidential factual information would materially advance new client’s position in subsequent matter.
  43. Judge's COI
    • (1) Substantially participation in a matter
    • (2) represent anyone in the matter *or* negotiate employment with anyone involved in the matter
    • (3) without written consent of all parties.
  44. COI and Government lawyers….
    • If substantial participation, then...
    • (1) no representation of someone in the same matter unless agency gives informed consent
    • (2) no negotiation for private employment with a party
    • (3) no representation when he obtained confidential information that can be used to advantage
    • (4) may not switch teams (government to non-government or visa versa).
  45. Imputed COIs
    COIs imputed unless based upon personal interest or a sexual relationship.
  46. New jobs and COIs
    • When a lawyer leaves a firm, the COI also travels with him.
    • This movement may relieve the old firm of its imputed COI.
  47. Screening for COIs
    • COIs from new attorney imputed to the new firm unless moving lawyer:
    • (1) gets no part of the fee and (2) is screened from the matter.
  48. COIs and prospective clients
    • Not imputed when:
    • (1) reasonable measures to avoid expose to more disqualifying information than reasonably necessary to determine existence of COI,
    • (2) lawyer screened and gets no part of the fee, and
    • (3) written notice is promptly given to the prospective client.
  49. A/C privilege
    • (1) communication
    • (2) between privileged persons
    • (3) intended to be confidential and
    • (4) for the purpose of facilitating legal advice.
    • Client holds, waives; attorney defends.
    • Survives past client death.
  50. Attorney work product
    • (1) Information prepared (2) in anticipation of litigation.
    • May include mental impressions of an attorney, which is always privileged.
  51. General confidential information
    • Must protect confidential information so long as the assertion is not frivolous.
    • May discuss hypotheticals provided that the other party will not be able to identify the client.
  52. Permissible revelation of confidential information
    • (1) Informed consent,
    • (2) Consent implied,
    • (3) necessary to prevent death/SBI
    • (4) necessary to prevent crime/fraud when attorney's service used in furtherance.
    • (5) Secure legal advice about compliance with RPC
    • (6) At issue (malpractice, capacity)
    • (7) To protect an organization
  53. The Organization As The Client
    • An attorney represents the organization, not the employee.
    • When the organization’s interests are adverse to a constituents, the attorney must explain his identity within the organization.
  54. Dual representation by general counsel
    An attorney may represent the organization and constituents when no COI exists.
  55. Reporting Out of General Counsel
    • Substantial injury to the organization
    • Step 1: Proceed as it is reasonably necessary to act in the best interest of the organization.
    • Step 2: Report to the highest authority in the organization
    • Step 3: If failure or refusal to respond to the misconduct, then attorney may reveal confidential information to the extent necessary to prevent the substantial injury.
  56. Attorney's Duty of Candor to the tribunal
    • Must not knowingly make a false statement of law to the court.
    • Required to correct a false statement of law previously made to that court.
    • Must disclose controlling legal authority to the tribunal when the opposing side does not disclose.
    • Must disclose all facts in an ex parte proceeding
    • Must avoid assisting a client in committing in crime/fraud, and may be required to disclose information if it is the only way to avoid fraud from being committed on the court.
  57. Attorney's Truthfulness in statements to others
    • A lawyer:
    • (1) May not knowingly make a false statement of material fact or law to a 3rd party
    • (2) May need to disclose confidential information to avoid assisting a client in crime/fraud. Disclosure is not the first option; it is the last.
  58. Attorney's Conduct in litigation
    • A lawyer must:
    • (1) Be civil, not abusive or hostile
    • (2) Not engage in conduct intended to disrupt a tribunal
    • (3) Not seek to improperly influence a judge, juror or official.
  59. Litigation standards - Frivolity
    • A lawyer must avoid making frivolous arguments or claims which have a basis in fact or law.
    • Requires (1) good faith argument on the merits of the action or (2) good faith argument to change existing law.
    • Sanctions by court or MD Bar
  60. Litigation standards - Speedy trial
    • A lawyer must expedite litigation.
    • No deliberate dilatory conduct.
  61. Evidence
    Don't destroy or alter evidence.
  62. Asking someone to refrain from talking with opposing counsel
    • Don't ask a person other the client from voluntarily giving relevant information to opposing side unless:
    • (1) relative, employee or agent of client, and
    • (2) reasonable belief that person’s interests will not be adversely affected.
  63. Paying Witnesses
    A lawyer cannot pay a non-expert witness. A lawyer may pay a witness’ expenses.
  64. Lawyer as a Witness
    A lawyer cannot serve as a witness in the same case unless (1) uncontested, (2) related to nature and value of legal services rendered or (3) disqualification of the lawyer would result in substantial hardship on the client.
  65. Litigation Standards - Admissibility
    An attorney may not allude to facts that the attorney does not reasonably believe are supported by admissible evidence.
  66. Ex parte communication with judges or officials
    NO. N-O.
  67. 3rd Party Contact with clients known to be represented by counsel
    • No without (1) consent of opposing counsel or (2) authorized by court order or law.
    • Does not extend to client.
  68. Communications with unrepresented 3rd parties
    The attorney (1) may not imply that she is disinterested, (2) must correct misunderstanding that the 3rd party has about the role the attorney plays, and (3) may only give legal advice that it is advisable to hire counsel.
  69. Public statement about a case that is substantially likely to materially prejudice the adjudication of the case.
    No, but he may (1) make a statement to mitigate damages from an improper public statement by opposing counsel and (2) may state non-prejudicial facts about the case if unlikely to prejudice the outcome.
  70. Attorney Fee Sharing
    • Fees may be shared across the lawyers in the same firm and with lawyers in other firms when
    • (1) lawyers get a share of their work on the case/assume joint responsibility,
    • (2) client is notified and consents in writing, and
    • (3) fees are reasonable. 
    • Lawyers may not share fees with non-lawyers, except for (1) death benefits to deceased attorney’s estates, (2) purchase price of a deceased lawyer’s practice, or (3) through compensation/retirement plans which involve profit sharing.
  71. Attorney's Duty of Diligence
    Attorney must be (1) dedicated to client’s interests, (2) control case load to ensure prompt handling and (3) pursue a matter to completion.
  72. COI: Business Transactions With a Client
    • May not enter into business transactions with a client unless
    • (1) terms fair and reasonable,
    • (2) terms fully disclosed in writing,
    • (3) client understands the terms,
    • (4) client is advised in writing to seek independent counsel, and
    • (5) client gives informed consent which is signed in writing.
    • Permissible if standard commercial transactions.
  73. COI: Use of Confidential Information
    May not use information arising from the representation to disadvantage of the client.
  74. COI: Client Gifts
    Solicit a gift from a client, unless familial relation.
  75. COI: Media Rights
    Negotiate for media rights prior to conclusion of representation.
  76. COI: Financial Assistance of Clients
    Provide financial assistance to the client, except for pro bono clients or for contingent clients who will repay later.
  77. COI: Third Party Payment of Representation
    Accept money from third party to represent a client, except when (1) client gives informed consent, (2) no interference with lawyer’'s independence and A/C relationship.
  78. COI: Aggregate Settlement Claims
    Make aggregate settlement claims when representing multiple clients.
  79. COI: Settlement of Malpractice Claims against Attorney
    Settle malpractice claim unless (1) client informed in writing of advisability of retaining new counsel and (2) client is given opportunity to solicit new counsel.
  80. COI: Proprietary Interest in Claim
    Obtain a proprietary interest in cause of action or subject of litigation, except (1) proper contingent agreement or (2) lien to secure payment of fee.
  81. COI: Boning.
    • Have sexual relations with a client.
    • This is not imputed across the firm.
  82. Truth in Advertising
    • Advertisement must be (1) truthful and (2) not misleading.
    • Cannot omit a fact necessary to make the statement not materially misleading as a whole.
    • Cannot contain material misrepresentation.
  83. Promise of results in advertising
    Cannot create an unjustified representation about results which a lawyer can achieve.
  84. Unlawful/Unethical Promises in Advertising
    Cannot state or imply that the lawyer can achieve results by unethical or unlawful means.
  85. Specialty and Comparators in Advertising
    • Cannot compare lawyer’s services to another without factually substantiating the comparison.
    • A lawyer can state his practice areas, but may not claim to be a specialist.
    • If before the PTO, can call themselves patent attorneys.
  86. Lawyer's name in advertising
    Advertisements must include the name of the lawyer responsible for the content.
  87. Labeling and retention of advertising
    Lawyer must keep a copy of the advertisement. Advertising material must be clearly labeled “advertising material” on outside of solicitation.