Professional responsibility

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Professional responsibility
2011-06-29 15:19:05
Professional Responsibility

Personal and Professional Responsibility
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  1. MPRE
    Multistate Professional Responsibility Examination. It is a co- and pre-requisite to teh bar exam in 47 of 50 states, as well as the District of Columbia, Guam, the Northern Mariana Islands, the U.S. Virgin Islands and the Republic of Palau. Maryland, Puerto Rico, Washington, and Wisconsin do not require MPRE. Local ethics rules are within the bar in these states. Connecticut and New Jersey waive the MPRE requirement and only require that candidates have a C or better in courses dealing with professional ethics.
  2. Mandatory Membership
    • MCL 600.901 State bar; membership; public body corporate
    • Section 901. The state bar of Michigan is a public body corporate, the membership of which consists of all persons who are now and hereafter licensed to practice law in this state. The members of the state bar of Michigan are officers of the courts of theis state, and have the exclusive right to designate themselves as "attorneys and counselors," or "attorneys at law," or "lawyers." No person is authorized to practice law in this state unless he complies with the requirements of the supreme court with regard thereto.
  3. Requirements for Federal Court Admission
    • U.S. District Court: Upon motion if admitted in good standing in state court.
    • U.S. Court of Appeals: Same.
    • U.S. Supreme Court: Same plus three years of practice experience.
  4. Pro Hac Vice
    "This turn only". Law student practice rules. An "out-of-state" lawyer us a person not admitted to practice law in this state but who is admitted in another state or territory of the United States or of the District of Columbia and not disbarred or suspended from practice in any jurisdiction.
  5. Character and Fitness
    Requirements are current good moral character. Applicant's burden of proof is clear and convincing evidence. Documentation is required.
  6. Current Good Moral Character
    MCL 338.41(1): The propensity on the part of the person to serve the public in the licensed arean in a fair, honest and open manner.
  7. Good Moral Character
    Ethical, moral, right and good, honest, trustworthy, fair, respect for the law and teh rights of othes, civil and polite.
  8. Professionals
    People who serve others before themselves for the overall good of society. The measure of success is not the gain amassed for the professional, but the service and social function performed.
  9. Residence History
    List each residence at which you have lived for a period of two weeks or more since age 16. Include residences for schooling, business or temporary purposes. Use family, friends and records as resources.
  10. Employment History
    All sources of income since high school both full-time and part-time. Accurate dates of employment are required for each employer-physical address not corporate address. Any terminations or situations in which you quit under questionable circumstances must be disclosed. Any paid or unpaid internship or volunteer work on at least a part-time basis for a period of two weeks or more. Questions on bonding refusal/collection.
  11. Educational History
    Must list all schools attended including, but not limited to, visiting status, "summer" programs, exchange student, and short term study programs.
  12. Criminal History
    Must disclose ALL offenses--even chargs that were ultimately dismissed, deferred or expunged. Must disclose if you cooperated in exchange for immunity. Must provide court records. Finger prints: the bar will obtain your federal and state criminal histories and your driving records. Must disclose criminal history records/clearance from places where you have lived, worked, attended school, or visted for 2 weeks or more.
  13. Civil Litigation History
    Must disclose all lawsuits in which you were a party. Must provide court records. Must provide court records. Include divorce, child support issues, collections, bankruptcy, arbitration, agency matters, show cause orders, PPO, landlord-tenants issues or collections proceedings.
  14. Financial History
    Do you have any debts which are more than 90 days past due. Have you personally or in any fiduciary capacity had a check or transaction returned for insufficient funds during the 12 months preceding the filing of the application (or the activiation of "overdraft protection" more than four times furing this time frame)?
  15. Financial Responsibility
    Must disclose delinquent debts. Must disclose bounced checks. Must disclose bankruptcies, your credit report will be scruitinized.
  16. Psychological History/ Substance Abuse
    Address any such issues now. Does it currently impair your ability to exercise such responsibilities as being candid and truthful, handling funds, meeting deadlines or otherwise representing the interest of others. LJAP Programs.
  17. Disciplinary History
    Must disclose any school, military or license disciplinary history. Must provide records.
  18. Gambling Issues
    Have you ever engaged in compulsive gambling? Federal regualtions require that currency transactions of $10,000 or more must be reported including multiple transactions that exceed $10,000.
  19. Character References
    Must provide five character references--peson who have known you continuously for the immediately preceding five years." Your references cannot be related to you through blood or marriage but they can be related to each other.
  20. Character and Fitness Proceeding
    • First Level: Distirct Committee
    • Second Level: Standing Committee
    • Third Level: Board of Law Examiners
  21. ABA Model Rule 7.4
    An attorney may state that they are specialists or practice a specialty or that they specialize in a particular area. A lawyer may state that they are certified as a specialist in a particular field only when the certifying organization which must be clearly identified in the communcation has been accredited by the Amrecian Bar Assocation or been approved by an appropriate state authority.
  22. ABA Model Rule 7.1 Communications Concerning a Lawyer's Services
    • A lawyer shall not make a false or misleading commucation about the lawyer or the lawyer's services. A communication is false or misleading if it:
    • (a) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading;
    • (b) is likely to create an unjustified expectation about results the lawyer can acheive, or states or implied that the lawyer can acheive results by means that violate the rules of professional conduct or other law; or
    • (c) compares the lawyer's services with other lawyers' services, unless the comparison can be factually substantiated.
  23. ABA Model Rule 7.2 Advertising
    • (a) Subject to requirements of rule 7.1 and 7.3, a lawyer may advertise services through public media, such as a telephone directory, legal directory, newspaper or other periodicial, outdoor advertising, radio or television, or through written or recorded communication.
    • (b) A copy or recording of an advertisement or written communication shall be kept for two years after its last dissemination along with a record of when and where it was used.
    • (c) A lawyer shall not given anything of value to a person for recommending the lawyer's services, except that a lawyer may
    • (1) pay the reasonable costs of advertisements or communications permitted by this Rule;
    • (2) pay the usual charges of a not-for-profit lawyer referral service or legal service organization; and
    • (3) pay for a law practice in accordance with Rule 1.17.
    • (d) Any communication made pursuant to this rule shall include the name of at least one lawyer responsible for its content.
  24. ABA Model Rule 7.3 Direct Contact With Prospective Clients
    • (a) A lawyer shall not by in-person or live telephone contact solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship when a significant motive for the lawyer's doning so is the lawyer's pecuniary gain.
    • (b) A lawyer shall not solicit professional employment from a prospective client by written or recorded communication or by in-person or telephone contact even when not otherwise prohibited by paragraph (a), if:
    • (1) the prospective client has made known to the lawyer a desire not to be solicited by the lawyer; or
    • (2) the solicitation involves coercion, duress or harrassment.
    • (c) Every written or recorded communication form a lawyer soliciting professional employment from a prospective client known to be in need of legal services in a particular matter, and with whom the lawyer has no familiy or prior professional relationship, shall include the words " Advertising Material" on teh outside envelope and at the beginning and ending of any recorded communication.
    • (d) Notwithstanding the prohibitions in a paragraph (a), a lawyer may particiapte with a prepaid or group legal service plan operated by an organization not owned or directed by the lawyer which uses in-person or telephone contact to solicit membership or subscriptions for the plan from persons who are not known to need legal services in a particular mattered covered by the plan.
  25. ABA Model Rule 7.4 Communication of Fields of Practice
    • A lawyer may communicate the fact that teh lawyer does or does not practice in particular fields of law. A lawyer shall not state or imply that the lawyer is specialist in a particular field of law except as follows:
    • (a) a lawyer admnitted to engage in patent practice before the United States Patent and Trademark Office may use the designation "Patent Attorney" or a substantially similar designation;
    • (b) a lawyer engaged in admiralty practice may use the designation "Amiralty," "Proctor in Admiralty" or a substantially similar designation; and
    • (c) [for jurisdictions where there is a regulatory authority granting certification or approving organizations that grant certification] a lawyer may communicate the fact that they lawyer has been certified as a specialist in a feild of law by a named organization or authority, but only if:
    • (1) such certification is granted by the appropriate regulatory authroity or by an organization which has been approved by the appropriate regulatory authority to grant such certification; or
    • (2) such certification is granted by an organization that has not yet been approved by, or has been denied the approval available from, the appropriate regulatory authority, and the absence or denial of approval is clearly stated in the communication, and in any advertisement subject to Rule 7.2, such statement appears in teh same sentence that communicates the certification.
    • (c) [for jurisdiction where there is no procedure either for certification of specialties or approval of organizations granting certification] a lawyer may communicate the fact that the lawyer has been certified as a specialist in a field of law by a named organization, provided that the communication clearly states that there is no procedure in this jurisdiction for approving certifying organizations. If, however, the named organization has been accredited by the American Bar Association to certify lawyer as specialists in a particular field of law, the communication need not contain such a statement.
  26. ABA Model Rule 7.5 Firm Names and Letterheads
    • (a) A lawyer shall not use a firm name, letterhead or other professional designation that violates rule 7.1. A trade name may be used by a lawyer in private practice if it does not imply a connection with a government agency or with a public or charitable legal services organization and is not otherwise in violation of rule 7.1.
    • (b) A law firm with offices in more than one jurisdiction may use the same anme in each jurisdiction, but identification of the lawyers in an office of the firm shall indicate the jurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located.
    • (c) The name of the lawyer holding a public office shall not be used in the name of a law firm, or in communications on its behalf, during any substantial period in which the lawyer is not actively and regularly practicing with the firm.
    • (d) Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact.
  27. Frivolous Claim
    A position that, under the facts, has no basis in exisiting law and that cannot be supported by a good faith argument for extending, modifying, or reversing the existing law. Under ABA Model Rule 1.16 an attorney must refuse employment (or must withdraw from employment) if the employment would require the attorney to violate disciplinary rule or other law.
  28. Federal Rules of Civil Procedure Rule 11
    Requires every pleading and other court paper to be personally signed by an attorney (or by a litigant representing him or herself). In presenting such a paper to the court (by signing, filing, submitting or advocating), the attorney or party certifies to the best of his or her knowledge, information, and belief, formed after a [reasonable inquiry] (1) the paper is not being presented for any improper purpose, such as harassment or to run up an opponent's expenses; (2) that the claims, defenses and other legal contentions are warranted by exisiting law or by nonfrivolous argument for a change or reversal in existing law or the establishment of new law; (3) that the factual allegations have evidentiary support or are likely to have suport after further investigation or discovery; (4) that factual denials are likwise warranted by the evidence or identified as resonably based on lack of information or belief.
  29. ABA Model Rule 7.1 False or Misleading Communication about the Lawyer or about the Lawyer's Services
    (a) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.
  30. Ethical Consideration 2-17 Model Code of Professional Responsibility
    The determination of a proper fee requires consideration of the interest of both client and lawyer. A lawyer should not charge more than a reasonable fee, for excessive cost of legal service would deter laymen from utilizing the legal system in protection of thier rights. Furthermore, an excessive charge abuses the professional relationship between lawyer and client. On the other hand, adequate compensation is necessary in order to enable the lawyer to serve his client effectively and to preserve the integrity and independence of the profession.
  31. Obligation Under ABA Model Rule 1.1
    To provide competent representation to a client. Competent representation requires the legal knowledge, skill, throughness and preperation necessary for the representation.
  32. Billable Hours
    A multiplication of the number of hours each lawyer worked on a client's case times the lawyer's billing rate. Next, a judgemental step of adjusting up or down, the fee, in consideration of other factors listed in ABA Model Rule 1.5(a).
  33. Contingent Fee
    A lawyer's fee depends entirely on the outcome of the matter--if the client achieves the desired result, the lawyer gets a handsome reward, but if the client does not achieve that result, the lawyer gets nothing.
  34. Fixed (Flat) Fee
    Specified dollar figure the firm will charge the client for a specified piece of legal work.
  35. Hybrid Billing Method
    Flat fee plus an hourly rate for work in excess of the specified maximum. Another alternative is the hourly fee plus a contingent fee.
  36. ABA Model Rule 1.8(e)
    The lawyer may lend the client money to cover court costs and litigation expenses.
  37. IOLTA (Interest on Lawyer Trust Accounts)
    Special interest bearing account that holds the property of a client. It is deposited in trust by a lawyer. The interest is sent by the bank to a charity that uses the funds to help under represented minorities and the indigent.
  38. Retainer Agreement
    • (1) Contractby which a client hires an attorney. It must include a clause that requires arbitration of fee and malpractice disputes.
    • (2) A fee that the client pays the attorney to be available should the client need legal assistance during specified period or with respect to a specified matter.

    • (3) A lump sum paid by a client at the outset of a matter.
    • (4) An advance payment of fees for work that the lawyer will perform in the future.
  39. Legal Malpractice
    An attorney's civil liability to a client or other injured person for professional misconduct or negligence. The proper forum for a malpractice law suit is within civil court. The intent is to obtain compensation for the injured person and not necessarily to punish the attorney nor to protect the public.
  40. Non-Client
    An attorney owes a duty of care to a prospective client.
  41. Invited Reliance
    An attorney owes a duty of care to a non-client if the attorney invites the non-client to rely on work the attorney does for a client, and if the non-client does rely. The same is true if the client does the inviting and the attorney does not object.
  42. Non-client is intended to benfit
    An attorney owes a duty of care to a non-client if the attorney knows that one fo the client's primary reasons for getting the legal service is to benefit the non-client.
  43. Standard of Care
    The standard of care is the skill and knowledge ordinarily possessed by attorneys under similar circumstances. If the attorney purports to be a specialist, or acts in a specialized area of the law, then the attorney must exercise the skill and knowldege possessed by attorneys who practice that specialty.
  44. Errors of Judgement
    An attorney who acts in good faith and in an honest belief that his advice and acts are well-founded and in the best interest of his client is not answerable for a mere error of judgement or for a mistake in a point of law which has not been settled by the court of last resort in his state on which reasonable doubt may be entertained by well-informed lawyers.
  45. Actual Cause
    P must prove by a preponderance of the evidence that she would have gotten a larger damage recovery in the underlying contract case but for L's negligence. In this way, a malpractice trial somtiems becomes a "trial within a trial."
  46. Proximate Cause
    P must prove actual cause and it is reasonable and fair to hold the D liable for unexpected injuries or for expected injuries taht happend in unexpected ways.
  47. Defenses
    • 1. Attorney reasonably beleived that the action was required by a law or a legal ethics rules.
    • 2. Comparative or contributory neligence applies in jurisdictions that apply these doctrines.
    • 3. Assumption of the risk and failure to mtitigate damages can be partial defenses in a legal malpractice case, to the extent that the local law recognizes them in ordinary cases.
  48. Vicarious Liability
    A law firm is civilly liable for injuries caused by an employee or principal of the firm who was acting in the ordinary course of the firm's business, or with actual or appararent authority. Vicarious liability helps maintain the quality of legal services, by making both the firm and its principals stand behind the work of every lawyer and employee of the firm. Further, many law firms are thinly capitalized, so vicarious liability helps assure that claims against the firm will be paid.
  49. Malpractice Insurance
    • ABA Model Rules do not require lawyers to carry malpractice insurance.
    • Some insurers offered "occurrence" policies, which covered the lawyers for acts or omissions made during the policy term, regardless of when the claim was asserted.
    • Liability policies generally require the insurer to defend the lawyer against covered claims. A failure by the defending lawyer to agree to settle the claim limits the insurerers liability to the amount agreed within the policy.
  50. Candor (ABA Model Code of Professional Responsibility DR 7-102(B)(1)):
    A lawyer who recieves information clearly establishing that his client has, in the course of the representation, perpetrated a fraud upon a person or tribunal shall promptly call upon his client to rectify the same, and if his client refuses or is unable to do so, he shall reveal the fraud to the affected person or tribunal, except when the information is protected as a privileged communication.
  51. Privileged Communication:
    Communications protected by the attorney-client privilege but also all other matieral that is protected by the ethical duty of confidentiality.