Card Set Information

2011-04-28 01:26:52

Exam Prep
Show Answers:

  1. "belief" or "believes"
    The person involved actually supposed the fact in question to be true

    May be inferred from circumstances
  2. confirmed in writing
    informed consent that is given in writing by the person or a writing that a L promptly transmits to the person confirming an oral informed consent

    obtained or transmitted either at the time of the informed consent or w/in a reasonable time thereafter
  3. "firm" or "law firm"
    L(s) in a law partnership, prof corporation, sole proprietorship, or other association authorized to practice law

    Ls employed in a legal services organization or the legal dept of a corp or other organization
  4. "fraud" or "fraudulent"
    conduct that is fraudulent under the substantive or procedural law of the applicable jurisdiction and has a purpose to decieve
  5. "informed consent"
    agreement by a person to a proposed course of conduct after the L has communicated adequate info and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct
  6. "knowingly," "known," or "knows"
    actual knowledge of the fact in question

    knowledge may be inferred from circumstances
  7. "partner"
    member of a partnership, a shareholder in a law firm organized as a prof corp, or a member of an association authorized to practice law
  8. "reasonable" or "reasonably"
    conduct of reasonably prudent and competent L
  9. "reasonable belief" or "reasonably believes"
    L believes the matter in question and that the circumstances are such that the belief is reasonable
  10. "reasonably should know"
    L of reasonable prudence and competence would ascertain the matter in question
  11. "screened"
    isolation of a L from any participation in a matter thru the timely imposition of procedures w/in a firm that are reasonably adquate under the circumstances to protect info that the isolated L is obligated to protect under RPC or other law
  12. "substantial"
    material matter of clear and weighty importance
  13. "tribunal"
    court, an arbitrator in a binding arbitration proceeding or legislative body, admin agency or other body acting in an adjudicative capacity
  14. "acting in adjudicative capacity"
    a neutral official, after the presentation of evidence or legal argument by a party(s), will render a binding legal judgment directly affecting a party's interests in a particular matter
  15. "writing" or "written"
    tangible or electronic record of a communication or rep, including handwriting, typewriting, printing, photostating, photography, audio or vidorecording and email
  16. "signed writing"
    includes an electronic sound, symbol, or process attached to or logically associated with a writing and executed or adopted by a person with the intent to sign the writing
  17. generally permissible admission requirements
    • 1. education
    • 2. testing
    • 3. character and fitness
  18. generally impermissible admission requirements
    • 1. citizenship
    • 2. residency
    • 3. political beliefs
    • 4. protections afforded under American's with Disabilities Act
  19. Permissible to deny admission based on political beliefs when:
    1. applicant doesn't swear allegiance to C and to uphold US laws

    2. applicant is an active participant in assoc known to be engaged in illegal activity and evidence of applicant's specific intent to further those activities
  20. Character & Fitness has broad scope including
    • 1. illegal use of drugs
    • 2. criminal conduct
    • 3. civil judgments
    • 4. debt & fiscal irresponsibility
    • 5. plagarism
    • 6. mental health
  21. Regulation of Lawyers model rules
    8.1 - Bar Admission and Disciplinary Matters
  22. Lawyer Liability model rules
    • 8.3 - Reporting Prof misconduct
    • 8.4 - misconduct
    • 5.1 - responsibilities of partner or supervisory L
    • 5.2 - responsibilities of subordinate L
    • 5.3 - responsibilities regarding nonL assistant
  23. Duty to Protect Client Confidences model rules
    • 1.6 - confidentiality of information
    • 1.2 - scope of rep & allocation of authority b/t C and L
    • 4.1 - truthfulness in statements of others
    • 3.3 - candor toward the tribunal
    • 1.8 - CoI: current C; specific rules
    • 1.16 - declining or terminating rep
  24. L/C relationship rules
    • 1.1 - competence
    • 1.2 - scope of rep & allocation of authority b/t C and L
    • 1.3 - diligence
    • 1.4 - communication
    • 1.14 - C with diminished capacity
    • 1.16 - declining or terminating rep
    • 1.18 - duties to prosepective C
    • 2.1 - advisor
    • 3.3 - candor toward tribunal
    • 4.1 - truthfulness of statements of others
    • 5.4 - prof independence of L
    • 6.1 - voluntary pro bono publico service
    • 6.2 - accepting appointments
    • 8.4 - misconduct
  25. L duties to courts rules
    • 3.1 - meritorious claims and contentions
    • 3.3 - candor toward tribunal
    • 3.4 - fairness to opposing party and counsel
    • 3.5 - impartiality and decorum of the tribunal
    • 3.6 - trial publicity
    • 3.7 - L as W
    • 3.9 - advocate in nonadjudicative proceedings
    • 4.1 - truthfulness in statements of others
    • 8.4 - misconduct
  26. L duties to adversaries and third persons rules
    • 1.6 - confidentiality of info
    • 4.1 - truthfulness in statements of others
    • 4.2 - communication with person rep by counsel
    • 4.3 - dealing with unrepresented person
    • 4.4 - respect for rights of third persons
    • 8.4 - misconduct
  27. conflicts of interest rules
    • 1.7 - current clients
    • 1.8 - current C specific rules
    • 1.9 - former C
    • 1.10 - imputation of CoI; General rule
    • 1.13 - organization as C
    • 1.16 - declining or terminating rep
    • 1.18 - prospective C
  28. conflicts b/t L and C
    • 1.5 - fees
    • 1.7 - current C
    • 1.8 - current C, specific rules
    • 1.10 - imputation of CoI general rule
    • 1.15 - safekeeping property
    • 5.4 - prof independence of L
    • 7.1 - communication concerning L services
    • 7.2 - advertising
  29. CoI General Principles
    • 1.7 - current C
    • 1.8 - current C, specific rules
    • 1.10 - general rule
  30. CoI in particular practice settings rules
    1.13- organization as C
  31. CoI former C rules
    • 1.9 - duties to former C
    • 1.10 - general rule
  32. CoI gov L rules
    • 1.11 - special CoI for former and current gov officers and EEs
    • 3.8 - special responsibilities of a prosecutor
  33. judicial conduct rules
    • 1.12 - former J, arbitrator, mediator, or other 3p neutral
    • 7.6 - political contributions to obtain legal engagements or appointments by J
    • 8.2 - judicial and legal officials
  34. advertising and solicitation rules
    • 5.4 - prof independence of L
    • 5.7 - responsibilities regarding law-related services
    • 7.1 - communication concerning a L's services
    • 7.2 - advertising
    • 7.3 - direct contact with prospective C
    • 7.4 - communication of fields of practice and specialization
    • 7.5 - firm names and letterhead
  35. NCGS 84-28 --> Discipline and Disbarrment actions
    • 1. admonition
    • 2. reprimand
    • 3. censure
    • 4. suspension
    • 5. disbarrment
  36. "admonition"
    written form discipline involved where L committed minor violation of RPC
  37. "reprimand"
    written form; caused harm or potential harm to C, admin of justice, profession, or members of public

  38. "censure"
    written form; significant harm resulting from violating 1 or more RPC

    intentional, gross negligence, fraud
  39. "suspension"
    period no longer than 5 yrs

    may be stayed upon reasonable conditions to which L consents
  40. disbarrment
    take away law license

    may ask to be readmitted after 5 yrs
  41. Standard for reporting misconduct by other L
    those violations which raise a substantial question as to that L's honesty, trustworthiness, or fitness as a L in other respects

    objective standard; mroe than mere suspicion
  42. law firm rule
    holding an entire law firm responsible for L misconduct, even when an indvl culprit can be identified
  43. options for L who is told to do something he thinks is unethical
    • 1. accept the directions from superior
    • 2. argue with superior
    • 3. discuss prob with diff superior
    • 4. do more research/investigation to clarify prob
    • 5. ask to be relieved from work on the matter
    • 6. resign
  44. elements for tort claim of legal malpractice
    • 1. L owed duty to P
    • 2. L failed to exercise reasonable competence and diligence normally exercised by L in similar circums; and
    • 3. breach of duty caused harm to P
  45. top 10 list triggering prof liability
    • 1. ignores CoI
    • 2. sue FC for unpaid fee
    • 3. accept any C and any matter that comes along
    • 4. "do business" with your C
    • 5. practice outside your area of expertise
    • 6. go overboard in opening branch offices and making lateral hires
    • 7. leave partner peer review to other firms
    • 8. ignore a potential claim and rep yourself in a prof liability dispute
    • 9. settle matter w/o written authorization from C
    • 10. fail to communicate with C
  46. fiduciary duties owed to C
    • 1. safeguarding C confidences and property
    • 2. avoiding impermissible CoI
    • 3. adequately informing C
    • 4. following instructions of the C
    • 5. not employing adversley to the C powers arising from the C/L relationship
  47. liability not covered by insurance
    • 1. intentional acts
    • 2. orders of restitution of legal fees, fines, or penalties
    • 3. orders to pay punitive damages
    • 4. conduct of L in other roles
    • 5. conduct of L who rep businesses of which they are also part owner
    • 6. intra-firm disputes
  48. CI shall not be revealed unless:
    • 1. informed consent
    • 2. impliedly authorized
    • 3. disclosure permitted by 1.6(b)
  49. info that must be protected as confidential
    • 1. all info relating to matter on which L is rep C except info that is generally known
    • 2. personal info relating to the C that the C wouldn't want disclosed
    • 3. info learned from C and learned from interviews, docs, photos, observations, or other sources
    • 4. infor acquired before rep begins and after rep ends
    • 5. notes/memos that L creates relating to the matter
  50. purpose of rule 1.6 (confidential information)
    to facilitate open communication b/t L and C
  51. 1.6(b) - L may reveal CI to extent the L reasonably believes nec
    • 1. to prevent reasonably certain death or substantial bodily harm
    • 2. to prevent a crime or faud involving the use of L services
    • 3. to prevent, mitigate, or rectify substantial injury to $ interests or property of 3P using L services
    • 4. to secure legal advice
    • 5. to establish a claim or defense
    • 6. to comply with law or court order
  52. L may reveal C criminal or fraudulent conduct whether it is past, present, or future if:
    • 1. there is reasonable certainty that C conduct will result in substantial $ or property injury of another person;
    • 2. C is using or has used L services in committing the act; AND
    • 3. purpose for revealing CI is to prevent the criminal or fraudulent act or to prevent, mitigate, or rectify the harm resulting from the act
  53. L Roles
    • 1. representative
    • 2. officer of legal system
    • 3. public citizen with special responsibility
  54. NC Rule - A/C privilege
    • 1. A/C relationship existed at time of communication
    • 2. comm made in confidence
    • 3. comm relates to matter about which L is being prof consulted
    • 4. comm made in course of giving/seeking legal advice for proper purpose (although litigation need not be contemplated)
    • 5. C hasn't waived privilege
  55. NC exceptions to A/C privilege
    • 1. dead C
    • 2. comm regarding 3P
    • 3. no exposure to: (1) civil/criminal liability or (2) harm to reputation/harm to surviving family
  56. general A/C privilege
    • 1. comm must be made b/t privileged persons
    • 2. in confidence
    • 3. for purpose of seeking/obtaining legal advice
  57. competence factors
    • 1. relative complexity and specialized nature of the matter
    • 2. L general experience
    • 3. L training and experience in the field in question
    • 4. preparation and study the L is able to give the matter
    • 5. feasibility of referring matter to L with established competence in the field in quesiton
  58. inherent powers doctrine
    Courts claim that they have the inherent authority to regulate the conduct of lawyers as a matter of CL b/c the courts need the authority to govern the conduct of those who appear b4 them
  59. rule 8.1
    no lying, no half-truths, and open your mail and respond
  60. senior partner may be subject for discipline for conduct of subordinate if
    • 1. ordered the conduct; or
    • 2. knew about conduct and did nothing
  61. factors for reasonably adequate informed consent
    • 1. whether C or other person is experienced in legal matters generally
    • 2. whether C or other person is experienced in making the type of decisions involved
    • 3. whether C or other person is indpt rep by other L in giving informed consent
  62. C has right to make 4 specific decisions
    • 1. whether to testify
    • 2. whether to settle or refuse to settle
    • 3. whether to waive jury trial
    • 4. whether to plea
  63. 1.16 - L must withdraw if:
    • 1. C demands L engage in illegal or unethical conduct
    • 2. L physical/mental condition materially impairs L ability to rep C
    • 3. L is discharged
  64. 1.16 - L may withdraw if
  65. 1. L wants to terminate and doing so not materially adverse to C
    • 2. Matters in litigation with permission of the court
    • 3. C stops paying fees and L has warned C that nonpayment will lead to w/drawl
    • 4. Case imposes an unreasonable $ burden on L
    • 5. C won’t cooperate
    • 6. C has misused L services in the past
    • 7. C insists on taking action that L considers repugnant or with which the L has fundamental disagreement
    • 8. C assents to termination
    • 9. C wants to pursue bad faith claim
    • 10. Any other good cause
  66. L may reveal CI in self defense...
    • ·To establish a claim against a C for unpaid fees
    • ·To defend against a claim of malpractice or other claim of civil liability against the L
    • ·To defend against a disciplinary proceeding
    • To defend against a criminal charge
  67. legal malpractice elements
    • 1. Existence of L/C relationship
    • 2. ∆ acted negligently or in breach of K
    • 3. Such acts were the proximate cause of the π’s damages
    • 4. But for the ∆’s conduct the π would have been successful in the prosecution of their case
  68. 2 elements of ineffective counsel
    • 1. deficiency
    • 2. prejudice
  69. mental competence of C factors
    • C ability to articulate reasoning leading to a decision
    • Variability of state of mind and ability to appreciate consequences of a decision
    • Substantive fairness of a decision
    • Consistency of a decision with the known long-term commitments and values of the C
  70. protective measures - mental competence of C
    • Guardianship is legitimate in extreme cases
    • Reliance on family may be appropriate
    • Unilateral usurpation of C autonomy is never appropriate except in emergencies
    • Noncoercive persuasion is justified in less extreme cases
  71. hired gun approach
    L who pursues every possible tactic on behalf of C
  72. public spirited L
    L who believe that their duties as officers of the court are as impt as their duties to their C…other values should override their C goals
  73. protecting the integrity of the system
    • 1. duty to prevent abuse of the system
    • 2. duty of candor to tribunals
  74. duty to prevent abuse to the system involves
    • 1. no frivilous lawsuits (3.1)
    • 2. expedite litigation (3.2)
    • 3. no improper influence on J and no conduct intended to disrepute the tribunal (3.5)
  75. concealment of evidence is unlawful if
    • 1. Conduct violates crim obstruction of justice statute
    • 2. Conduct violates court order
    • 3. Failure to comply with discovery rules
    • 4. Conduct would constitute a tort
  76. 2 reasons behind general rule that L may not serve as W
    • 1. Seeks to avoid the situation that could prejudice the tribunal and the opposing party
    • 2. Seeks to avoid a CoI b/t the L and C b/c a L who has unprivileged, PK of a case might give testimony that is adverse to C
  77. L may serve as a W if
    • Undisputed facts
    • Relates to nature/value of legal services
    • Disqualification would result in substantial hardship
  78. P have specific obligation to see
    • (1) that the ∆ is accorded procedural justice,
    • (2) that guilt is decided upon the basis of sufficient evidence, and
    • (3) that special precautions are taken to prevent and to rectify the conviction of innocent persons
  79. L have a duty to
    • 1. Exercise indpt legal judgment (rule 5.4)
    • 2. Be loyal to their C
    • 3. Be competent and diligent
  80. 2 types of CoI
    • 1. directly adverse
    • 2. material limitation
  81. informed consent involves
    • 1. L conveys info sufficient for C to understand
    • 2. L explains alternatives
    • 3. in writing (for some types)
  82. if someone other than C is paying for legal services then
    • 1. C must consent; and
    • 2. rep can't be interferred with by paying party
  83. CoI may be waived if
    • 1. L reasonably believes he can provide competent & diligent rep;
    • 2. Not prohibited by law;
    • 3. No assertion of claim by one C against another C in the same litigation or some other proceeding before tribunal; AND
    • 4. Informed consent
  84. deciding when to report factors - 1.13 orgs
    • Seriousness of the violation and its consequences
    • Responsibility in the org and apparent motivation of the person involved
    • Polices of the org concerning such matters
    • Any other relevant considerations
  85. types of fee agreements
    • Flat fee
    • Hourly billing (# hrs x rate)
    • Proportional fee
    • Contingent fee (if this then that)
    • Project pricing (more like a la carte)
    • Retainers
  86. true retainer
    no present legal probs but seek to retain L for x months in case there are legal probs
  87. advanced payment
    billed off of and goes into trust account b/c haven’t earned it yet
  88. contingent fee requirements
    • Must be in writing
    • Contingency included
    • % and any contingency caps
    • Whether expenses will be deducted b4 or after L cut
  89. CF reasonableness factors
    • Likelihood that contingency will occur
    • Likely recovery if contingency occurs
    • Whether contingency will occur quickly
    • Amount of work involved to achieve recovery
  90. judges are disqualified when
    • J has personal knowledge of disputed evidentiary facts
    • J served as a L or J in the matter
    • J has financial interest in the case (includes family)
    • J or family member is
    • o A party to the case
    • o L in the case
    • o Has more than a de minimus interest in the caseIs likely to be a material W
  91. on the bench
    • 1. J shall comply with all constitutional, statutory, and procedural law
    • 2. J shall require order and decorum in court proceedings
    • 3. J shall be patient, dignified, and courteous
    • 4. J shall perform judicial duties w/o bias or prejudice
    • 5. No ex parte communications
    • 6. J shall avoid and shall require L to avoid expressing bias based on EPC categories
    • 7. J shall dispose of all judicial matters promptly, efficiently, and fairly
    • 8. A J shall not commend or criticize jurors for their verdict, except in a court order or opinion
    • 9. A J shall not disclose or use any nonpublic info gained in a judicial capacity
    • 10. J shall not make comments about any pending proceeding that can be reasonably expected to affect its outcome
    • 11. J shall not conduct an indpt investigation of the facts
  92. off the bench
    • 1. J shall not engage in practice of law
    • 2. J shall not serve as fiduciaries unless
    • o Immediate family; and
    • o Not a matter likely to come before judge’s own court
    • 3. J may serve in a charitable or civic organization, as long as it doesn’t reflect adversely on J impartiality
    • 4. J shall not hold membership in any org that practices invidious discrimination
    • 5. J shall not appear as a CW unless subpoenaed
    • 6. J shall not engage in financial X that risk a CoI
    • 7. J shall not accept or urge family members to accept gifts from those likely to appear before the J
    • 8. J may receive compensation for their non-judicial conduct, where permittedJ shall comply with the law in all of their activities
  93. advertising general rules
    • No false or misleading statements (7.1)
    • L may advertise his practice areas (7.2)
    • L may advertise as a board certified specialist provided are actually board certified in that area (7.4)
  94. solicitation general rules
    • No in person solicitation for profit allowed (7.3(a))
    • May send letters to prospective C
    • May solicit in person for free services
    • In person solicitation for profit OK if person contacted is another L, family member or close friend, or someone with whom you have a prior professional relationship (7.3)
    • If the person tells L to leave him alone then must respect that
    • Every solicitation must say "Advertising Material" on envelope at beginning of communication and at end of communication