Professional Responsibility

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mustgofaster
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94235
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Professional Responsibility
Updated:
2011-07-16 21:32:00
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Washington Bar Exam Professional Responsibility
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Professional Responsibility
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  1. Duty of Confidentiality
    L shall not reveal information relating to representation unless C gives IC, disclosure impliedly authorized, or permitted by RPCs.
  2. Duty of Loyalty
    Duty to act on behalf of client's interest
  3. Informed Consent
    Given only after L communicates adequate information and explains material risks of and reasonably available alternatives to a proposed course of action.
  4. Concurrent COI
    • Exists of representation of a C will be directly adverse to another C, or
    • A significant risk that representation will be materially limited by L's responsibilities to another C, former C, 3rd person, or L's personal interest.
  5. COI: Permitted Representation
    • L may represent C even if COI if
    • L believes he will be able to provide competent and diligent representation to each C, representation is not prohibited by law, representation does not involve the assertions of a claim by C against another in the same proceeding or tribunal, and each C gives IWC.
  6. COI: Representation Not Permitted
    When claim by 1 C against another C in same proceeding, or prohibited by law.
  7. Potential Conflicts
    Significant risk or likelihood that conflict will occur and whether representation would be materially limited because of L's other responsibilities.
  8. Withdrawal and COI
    L must withdraw from representation if conflict arises unless C grants IC.
  9. COI: Former Clients
    L who has formerly represented C shall not represent another person in the same or substantially related matter adverse to C unless former C gives IWC.
  10. Business Transactions with Client
    • To engage in biz with C or knowingly take pecuniary interest adverse to C, transaction must be:
    • fair and reasonable
    • fully disclosed in writing
    • C advised to seek independent counsel w/ reasonable time to do so and
    • C gives IWC
  11. Information Gained through representation
    L may never use confidential info to disadvantage of former C except as permitted or required by RPC
  12. Gifts
    L shall not solicit substantial gift from C or prepare instrument giving L gift unless L is relates to donor.

    WA disapproves of L drafting instrumenet where L is named trustee and possibility of substantial fees arises.
  13. Media Rights
    Prior to conclusion of representation, L shall not make or negotiate an agreement giving L media or literary rights to portrayal or account based in substantial part on info relating to case.
  14. Financial Assistance
    L shall not advance or guarantee mney to C except costs of litigation may be advanced. Repayment cannot be contingent on outcome of case except class actions.
  15. Payment from 3rd parties
    L shall not accept compensation from 3rd parties unless C gives IC, L's independent judgment not compromised and info relating to representation protected.
  16. Aggregate Settlement/Pleas
    L repping 2 or more C shall not participate in making aggregate settlement/plea unless each C gives IWC (including disclosure of other party's deal).
  17. Limiting Civil Liability
    L shall not prospectively limit malpractice liability unless C is independently reppred in making agreement.
  18. Proprietary Interest
    L shall not acquire proprietary interest in matter in which C is involved but may acquire lien to secure fee/expenses, and K with C for reasonable contingent fee in civil case.
  19. Sexual Relations with Client
    L may not have sexual relations with current client unless consensual relation existed before AC relationship began. No sex with rep of client if would prejudice rep.
  20. Related Lawyer
    L shall not rep C in matter directly adverse to C repped by related L unless IWC.
  21. Imputed DQ for COI
    If 1 L is DQ, then entire firm is DQ for current and former Cs. While L associated with firm, none shall knowingly rep C when any 1 L would be prohibited unless based on personal interest and prohibited L does not present significant risk of materially limiting rep.
  22. Termination with Firm
    Firm cannot rep C adverse to those Cs that left with departing L. Firm not permitted to rep C with interests materially adverse to those of C reppe by former colleague, if same or substantially related matter and L remains who has confidential information.
  23. Joining A Firm
    DQ L must be screened and apportioned no part of fee. Former C of DQL receive notice of conflict and screening mechanism, firm demonstrates no infor relating to form rep transmitted.
  24. Rules for Government Personnel
    After G service, L shall not rep C in matter in which L participated personally and substantially unless agency gives IWC. L having confidential info acquired while public officer may not rep private C with adverse interests or if info could be used to person's disadvantage.
  25. Negotiating for Employment
    L currently serving as public officer shall not negotiate for private employment in matter L is personally and substantially participating in. law clerk may if judge given notice.
  26. Judge or 3rd Party Neutral
    Cannot act as L w/o IWC. If L DQ, firm may rep if screened and notice. Partisan arbitrator may act as L after.
  27. Prospective Clients
    Even when no AC relationship forms, L shall not use or reveal info learned during consultation. L shall not rep C with interests materially adverse to those of prospective C in same/substantially related matter. Rep OK if C and pro C give IWC. (IWC from pro C may be given before consult).
  28. Organization of Client
    L reps entity as whole acting through duly authorized constituents. L does not rep individuals and should make matter clear.
  29. Taking Matter up the Ladder
    If L knows that officer or employee engaged in action that violates legal duty of org or violates law and may substantially injure org, L shall proceed in best interest of org and may refer to higher authority in org.

    If higher auth fails to act, L may reveal if L reasonably believes that violation is reasonably certain to result in substantial injury to org.
  30. Death or Substantial Bodily Injury
    L shall reveal info to prevent certain death or substantial bodily harm.
  31. Permissive Disclosures of Confidential Information
    • To prevent future crime
    • To prevent, mitigate, or rectify crime or fraud perpetuated with L's services
    • Seeking legal advice
    • Protect L against claims by C
    • Court order
  32. Time Limits on Confidentiality
    Covers period prior to and subsequent to creation of AC relationship. After relationship ends, L must continue to protect info and shall not use to detriment of former C.
  33. Use of Confidential Information by Other Persons
    L allowed to share info with firm, or limited info to agency for purposes of bookkeeping if reasonable steps to protect confidentiality.

    L may provide evaluation of matter affecting C but not without IWC.
  34. Physical Evidence (Confidentiality)
    Knowledge of physical evidence protected, but possession is not and L must turn over while protecting C's identity.
  35. Client Perjury
    L must be candid with tribunal and shall not offer false evidence. If L learns that evidence was false, L shall reveal unless prohibited by RPC. Then L must make reasonable steps to obtain C consent, or withdraw.
  36. Supervisory Liability
    Direct supervisors shall make reasonable steps to assure those they supervise comply with RPCs. L liable for another's violation if L ordered or had specific knowledge and ratified, or failed to mitigate or make reasonable remedial action.
  37. Subordinate Liability
    If L is instructed to do something by supervisoring attorney, L does not violate if acting in accordance with reasonable resolution of arguable question of professional duty.
  38. False or Misleading Statements about Legal Services
    L shall not make false or misleading statements about L or legal services, inlcuding statements about quality or statements that would cause a reasonable person to form basis for an unjustified expectation.
  39. Specialization and Fields of Practice
    Not permitted except P, TM, admiralty. "Limited to/emphasis" ok.
  40. Statements about ability to improperly influence court or public body.
    Not permitted. Word.
  41. Firm Name and Designation
    Deceased/retired names OK, otherwise only practicing atty names. Public official not in name unless actively practicing. Letterhead must designate jurisdictions admitted.
  42. Solicitation
    Direct mail ok.

    Personal soliciation banned unless pre-existing relationship (fam, friends, former C)
  43. Purchase of Law firm
    Must sell entire practice or area. Clients must receive 90 day notice, opportunity to obtain other counsel or retrieve file, andmay not have fees increased.
  44. Non-compete agreements
    Not allowed except for prvovisions relating to retirement benefits, prohibition relating to sale of law practice, and/or crim/disciplinary agreement.
  45. Meritorious and Frivolous Claims
    L cannot bring frivolous claims or claims to harass/annoy/injure.
  46. Duty to Expedite Litigation
    L has duty to expedite consistent with interests of C.
  47. Candor to Tribunal and Adverse Legal authority
    Duty of fairness and honesty. Must be truthful and cannot knowingly make false statement of law/fact or fail to correct false statement. L must make reasonable diligence to ascertain truth. Must reveal controlling authority, but no duty to reveal factual information adverse to client.
  48. Special Responsibilities of Prosecutors
    Seek justice, not prosecute without probable cause, advise potential D of need for counsel, disclose info that tends to mitigate finding of guilty, avoid making prejudicial extrajudicial statements.
  49. Impermissible Conduct in Ligitation (Duty of Fairness to Opposing Counsel)
    Evidence obstruction, falsification of evidence, frivolous discovery requests, making personal opinions. No ex parte discussions.
  50. Lawyer as Witness
    L shall not act as advocate in trial where likely to be necessary witness. If L must testify, another L from firm may act as advocate unless would constitute impermissible COI with current/former C.
  51. Trial Publicity
    Must not make prejudicial statements to media. May make statment that reasonable L would believe required to protect C from undue prejudice. L may say retained, that C denies guilt, discuss housekeeping, ask for help.
  52. Nonadjudicative Proceedings
    L repping C must disclose that apperance in representative capacity
  53. Dealing W/ 3rd persons
    L shall not knowingly make false statements of material fact/law to 3rd persons.
  54. Pro Bono
    WSBA encourages 30 hours.
  55. Competence
    L shall not take matter in which L is not competent, or cannot be competent without undue delay or expense to C or through association with other counsel with IC and total fee reasonable.
  56. Emergency Advice
    L may give advice even if not competent but limited to reasonably necessary under circumstances.
  57. Allocation of Authority
    C makes substantive decisions, L makes tactical.
  58. Diligence
    Duty to expedite and act in timely manner, manage caseload so enough time to effectively represent. If not available, must arrage for someone responsible to cover matter.
  59. Communication
    M lust keep C reasonably informed about status of matter and promptly reply with reasonable requests for information.
  60. Disabled Client
    must maintain as reasonably as possible a normal relationship, may seek guardian.
  61. Fees
    L shall not charge or collect unreasonable fees or expenses.

    Factors: time/labor/skill required, novelty/difficulty of questions and issues, likelihood of preclusion of other employment, customary fee, amount involved and results obtained, time limitations from C, experience/reputation of L
  62. Splitting Fees
    L must not split fees with non-Ls. OK with Ls in proportion of joint responsibility if C gives IWC (amount to each L) and total fee reasonable.

    OK to split with authorized referral agency.
  63. Contingent Fees
    Must be in writing (not OK for crim/dissolution). Must specify how calculated, and written accounting required. C has right to review.
  64. Retainers
    Fee paid to L to be available during specified time or for specific matter in addition to compensation for services performed.

    Must be in writing and signed by C. Belongs to L upon receipt.
  65. Advance
    C's property to be kept in trust until earned.
  66. Flat Fee
    Constitutes complete fee for specified legal services, paid in whole/part in advance of services provided. Must be in signed writing. Includes scope, total amount, terms of payment, L's property and not placed in trust. Does not alter C's ability to terminate, and C may receive refund for unearned portions.
  67. Duties re Property of Others
    No commingling, must be separate.
  68. Trust Accounts Requirements and Interest
    Any amount in dispute must remain in TA. L must keep C informed about C's funds in L's possession. C must receive accounting of any sums transferred from TA into L's general account. Must bear interest for IOLTA or C. L never gets interest. Funds in IOLTA should be relatively small or held for short time only.
  69. Trust Account Record Keeping
    must be accurate and up to date. All withdrawals made by check payable to payee, not cash and signed by lawyer.
  70. Audits and Overdrafts
    WSBA does audits on TA. Discipline for improper accounting, even if all funds present.
  71. Care for Client Property
    Must be identified, receipt given to C, placed in safe place, returned upon request.
  72. Attorney Lines
    unpaid L may seek lien, but if no recovery for C, no satisfaction of lien.
  73. Terminating Representation
    • In litigation, L must seek permission of tribunal.
    • state court: notice of intent with min of 10 days. Absent objections, effective automatically.
    • fed court: requires motion and order.
  74. Protecting Client in Withdrawal
    Reasonable steps must be taken to avoid foreseeable prejudice. Unearned fees must be refunded.
  75. Mandatory Withdrawal
    If discharged, continued rep would result in violation or L's physical/mental condition impairs ability to represent C.
  76. Permissive Withdrawal
    When no material adverse effect on interests of C, C persists in criminal/fraudulent conduct involving L's services, L consider's C's acts repugnant, C does not pay or fulfill obligation and warning given, rep unduly burdensome, any good cause.
  77. Aiding Unauthorized Practice
    Not permitted. Partnership may not be formed with non-L (incl. disbarred Ls) if any activities of partnership constitutes practice of law. Delegating to non-Ls can be assisting unauthorized practice of law.
  78. Practice of Law
    advice regarding legal rights, drafting legal docs, repping person in court/proceeding, negotiating legal rights of person/entity.
  79. Multijurisdictional Practice
    If not admitted in WA, shall not establish office or permanent presence.

    If admitted in another J, may practice on temp basis in association with admitted WA L, reasonably related to pending or potential proceeding, reasonably related to L's practice in other J.
  80. Requirements for Admission
    graduate ABA approved school, reciprocity, and good moral character
  81. Broad Misconduct
    Conduct prejudicial to adminstration of justice, moral turpitude, conduct demonstrating unfitness to practice, violating RPCs, committing criminal act reflecting adversely on honesty...
  82. Discrimination
    L cannot discriminate as prohibited by law.
  83. L should report professional misconduct
    If L knows another L has violated RPC, should report to WSBA. Same if L knows judge has violated CJC. Does not permit reporting of otherwise confidential info
  84. Disparaging Comments
    L may not make disparaging comments about a judge or court official.
  85. Judicial Disqualification Required
    When impartiality can be reasonably questioned on basis of personal bias, knowledge of disputed facts, personal and household financial interest, serving as L or witness in matter, financial interet personally or household member interest in party to proceeding or outcome.
  86. Impropriety and Appearance of Impropriety
    Judge must avoid that by no ex parte contact, no gifts except from close family, limited public comment about pending cases, no court experts w/o notice and right to respond, no use of confidential into obtained as L while on bench, limited ability to act as fiduciary, except for family.
  87. Campaigning and Partisan Activity
    No pledges or promises of how would rule other than faithful performance. No partisan events except judicial campaigns, no personal solicitation of campaign donations except committee members and family.
  88. Promoting causes related to Administration of Justice
    OK unless construed as abuse.

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