Ethics and Professional Conduct for Lawyers: A Guide to Rules and Regulations, Exams of Social Sciences

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A lawyer is regulated by the rules of (3) - Answers- the state, the federal system, and each state in which the lawyer is admitted to practice. Three sources of STATE regulation - Answers- 1. Courts (have inherent power to regulate legal profession in and out of court. the ultimate power rests in the highest court, NOT WITH THE STATE legislature.)

2. Bar Associations (majority of states have an integrated bar system, meaning every lower who is admitted to practice must be a member. The bar assc. does the bar exam, CLEs, etc.)
3. Congress and State Legislatures Within the state courts there are 3 sources of regulation - Answers- 1. Ethics Rules (the highest court of the state promote the ethics rules.)
4. Case Law
5. Rules of Court TWO sources of Federal System - Answers- 1. Courts (each federal court has its own bar. a lawyer cannot practice before a particular court without first becoming a member of its bar).
6. Government Attorneys (A attorney for the fed gov is subject to state laws and rules governing attorneys in each state in which the attorney engages in her duties.

MPRE EXAM

QUESTIONS

AND ANSWERS

NOTE- This pertains only to the rules that prescribe ethical conduct. It DOES not apply to state rules of evidence or procedure, or state substantive law. In most states, to be admitted to the practice of law, person must have successfully completed.... - Answers- college and law school, passed the bar exam, and submitted to a bar admission committee an application for admission (includes proof of moral character). An applicant must not - Answers- KNOWINGLY make a false statement of material fact. Ex: knowingly failing to reveal that he had been suspended form college for a semester. An applicant (OR LAWYER IN CONNECTION with an applicant's application) must not (2 things) - Answers- 1. fail to disclose a fact necessary to correct a misapprehension KNOWN by the person to have arisen in the matter, or (2) knowingly fail to respond to a lawful demand for info from an admission authority. NOTE: this rule does not require disclosure of info otherwise protected by the confidentiality provisions of the Rules of Professional Conduct. Ex: Attorney A knows about B's forgery. A must voluntarily tell the bar officials about it. who had the burden of proof to establish good moral character? - Answers- The applicant. A bar applicant has a right to - Answers- due process in committee proceedings. Thus, he has the right to know the charges filed against him. If you are denied admission on the basis of bad moral character, you are entitled to judicial review, usually by the state's highest court. ALL past conduct is - Answers- relevant to an evaluation of a person's moral character. The committee may consider any conduct or charges against the application, EVEN ones where he was acquitted. Ex: in one case the applicant was denied admission because of personality traits that were deemed to make him unfit to practice. Mere conviction of a crime is... - Answers- NOT sufficient to deny admission of an applicant. To be disqualified, the crime in question must involve... - Answers- MORAL TURPITDE. AKA a crime involving dishonesty for the purpose of personal gain or a crime involving violence (murder or rape for example). Adolescent misbehavior - Answers- does not necessarily bear on the applicant's current fitness to practice law.

An applicant may still gain admission to practice despite past conduct involving moral turpitude IF - Answers- he can demonstrate sufficient rehab of his character. Concealment of past conduct constitutes.... - Answers- moral turpitude. even if the past conduct does not involve moral turpitude. An applicant's mere relationship in the communist party - Answers- is not sufficient to show a lack of moral character and deny his admission to practice. Citizenship and residency are not valid requirements. - Answers- A state cannot require that a person be a US citizen to be admitted to the practice of law. This violated the EP clause. Also, a state cannot require you to be a resident of that state to be admitted to practice there. This violated the PI clause. Misconduct once you are admitted. it is professional misconduct for a lawyer to ( things) - Answers- (1) violate or attempt to violate any of the Rules of Professional Conduct, (2) knowingly assist or induce another person to violate the rules, or (3) use the acts of another person to commit a violation. Ex: Attorney knows its a violation to approach an accident victim at the scene. He asks his brother in law T, a tow truck driver to pass his cards out. This is violation A lawyer is subject to discipline for committing a criminal act that reflects adversely.... - Answers- on his honesty, trustworthiness, or fitness as a lawyer in other respects. To constitute professional misconduct the crime must involve some characteristic that is

• Answers- relevant to the practice of law. Drunk driving, whores, possession of cannabis do not necessarily trigger professional discipline. but breach of trust, and things like that will. (willfully failing to file personal income tax return, defrauding one's own law firm by misusing expense accounts) a lawyer is subject to discipline for engaging in conduct that is prejudicial to the - Answers- administration of justice (falsifying evidence, frivolous claims) a lawyer must never state or imply that he has the ability to - Answers- improperly influence a government agency or official. A judge for example. a lawyer is subject to discipline for KNOWINGLY assisting a judge or judicial officer in - Answers- conduct that violates the code of judicial conduct or other law. A lawyer must not, IN CONDUCT RELATED TO THE PRACTICE OF LAW, - Answers- engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race/sex/X Y Z. Conduct related to the practice of law includes representing clients, interacting with witnesses, or managing a law practice.

The legal profession prides itself on - Answers- self-policing. Each member of the group is obligated to report misconduct by other members. a lawyer who KNOWS that another lawyer has violated the rules in such a way that raises a SUBSTANTIAL question as to that lawyer's honesty, trustworthiness, or fitness

• Answers- must report the violation to the authority. Same thing applies for a judge. eX: Attorney learned that accountant formed partnership with attorney B. B violated the rule against partnerships with non lawyers. A does not have to report B's violation because it does not include a rule that breaks his dishonest/trust/fitness. While a lawyer may report suspected misconduct, she MUST report.... - Answers- KNOWN conduct. this means actual knowledge, but it may be inferred from the circumstances. Ex: X did not have any proof Y had a drinking problem. But once he saw him clearly drunk in court and could barely hold a conversation, then he must report it. A lawyer who fails to report misconduct is - Answers- subject to discipline herself. This rule does NOT require disclosure of info protected by the - Answers- confidentiality rules. If a lawyer learns about another lawyer's misconduct through a privileged communication the lawyer has no duty to report the misconduct. He'd actually be in trouble if he did report it for violating the confidentiality rules. The disciplinary process: - Answers- the complaint (this is considered proviilged and cannot be the basis of an action (defamation) by the lawyer against the complainant. THEN the screening (lawyer is asked to respond) THEN hearing (lawyer has right to due process. counsel, proper notice to be heard and introduce evidence, cross-examine witnesses). NOTE: evidence obtained through an illegal search are admissible in these proceedings. THEN, burden of proof (on the party prosecuting the charge. BEYOND a preponderance of the evidence but less than beyond a reasonable doubt. FINALLY, decision and review Most common sanctions imposed - Answers- private or public reprimand or censure, suspension, or disbarment which is the permanent revocation of the lawyer's license to practice. He can re apply for admission though. Sanctions depend on the severity of the misconduct.

A lawyer will not be subject to discipline if her conduct is proper in... - Answers- the jurisdiction in which she reasonably believes the predominant effect of her conduct will occur. a suspension or disbarment in one jurisdiction does not... - Answers- automatically affect a lawyer's ability to practice in another jurisdiction Professional discipline imposed by one state is not necessarily - Answers- binding on another. The preferred view is that sister states accept disciplinary action by one state as conclusive proof of the misconduct, but not of the sanctions imposed. Each fed court in which a lawyer is admitted to practice must make an independent - Answers- evaluation of the lawyer's conduct Most jurisdiction have disability proceedings, which result in the disabled lawyer's - Answers- suspension from practice until she can show that rehab has occurred. Ex: substance abuse. The rule against unauthorized practice of law has two prongs: - Answers- 1. a lawyer is subject to discipline for practicing in a jurisdiction where she is not admitted to practice, and 2. a lawyer is subject to discipline for assisting a non-lawyer to engage in the unlicensed practice of law. A lawyer who is admitted to practice in one jurisdiction is not - Answers- without more, authorized to practice in any other jurisdiction. The unadmitted lawyer must not (2 things) - Answers- 1. represent that she is admitted to practice there, and 2. establish an office or other systematic continuous presence for the practice of law in that place. A lawyer may provide legal services in a second state ON A TEMPORARY BASIS in 4 situations: - Answers- 1. association with local lawyer (the local lawyer must actively participate in the matter).

2. special permission to practice in local tribunal (the lawyer must request special permission. This is AKA PRO HAC VICE. means admission for purposes of this matter only. NOTE: a lawyer who REASONABLY EXPECTS to be admitted pro has vice may engage in PRELIMINARY activities such as meeting w clients, reviewing docs, interviewing witnesses.
3. Mediation or Arbitration Arising out of practice in home state (she can do this if her services arise out of, or a reasonably related to, her practice in the state to which she is admitted).
4. catch-all category (permits a lawyer to temporarily practice out of state if the out o state practice is reasonably related to the lawyers home state practice).

Temporary practice by foreign lawyers. - Answers- a lawyer who is licensed and in good standing in a foreign jurisdiction may engage in temporary practice in the US. a foreign lawyer may provide legal services temporarily if the services are governed primarily by international law or the law of a foreign jurisdiction. NOTE; the judge has discretion to limit the foreign lawyer's participation in the matter. A lawyer may open a law office and establish a systematic and continuous practice in a different jurisdiction in 2 NARROWLY LIMITED situations - Answers- 1. lawyers employed by their only client (they can render legal services, but if they want to litigate a matter in that state, they must seek admission pro hac vice. in house council for example.)

2. legal services authorized by federal or local law (in rare cases fed or local law authorized a lawyer to practice a restricted branch of law in a state in which he is not otherwise admitted to practice. Ex: admitted to practice patent law in DC. L in florida but not member of the FLBar. but he can still do his patent practice). a person not admitted to practice as a lawyer must not engage in the unauthorized practice of law, AND a lawyer must not assist - Answers- such a person to do so. Defining the "practice of law" - Answers- (1) Whether the activity involves legal knowledge and skills beyond which an average layperson possesses, (2) whether the activity constitutes advice or services concerning binding legal rights or remedies, and (3) whether the activity is one traditionally performed by lawyers. Activities constituting law practice include - Answers- appearing in judicial proceedings, negotiations, drafting documents that affect substantial legal rights or obligations. activities NOT constituting law practice - Answers- accountants can appear before agencies when representing clients. real estate brokers, title insurance companies are usually permitted to fill in blanks on documents. you can also publish books. Giving advice on tax law would probably constitute the unauthorized practice of law, BUT - Answers- An accountant or other layperson may prepare tax returns and answer questions incidental to the preparation of the returns. note that a lawyer can delegate - Answers- tasks to a paralegal, law clerk, student intern, or other such person. BUT the lawyer must supervise the delegated work carefully and must be ultimately responsible for the results. a lawyer MAY advice and instruct non lawyers whose employment requires - Answers- knowledge of the law (claims adjusters, social workers, accountants, and government employees.

A lawyer may advice persons who wish to appear on their own - Answers- behalf in a legal matter. It is proper to hire a suspended or disbarred lawyer to do - Answers- work that a layperson is permitted to do, BUT the lawyer must not be permitted to do any work that constitutes the practice of law. the relationship between a lawyer and client is... - Answers- contractual The terms of the agree are implied by - Answers- custom, but for the most part can be varied by mutual agreement. the lawyer operates as both the client's... - Answers- fiduciary and agent lawyers in the US are generally free to - Answers- refuse service to any person for any reason a lawyer-client relationship arises when: - Answers- 1. a person manifests an intent that the lawyer provide legal services and the lawyer agrees. 2. the lawyer knows or should know the prospective client is reasonably relying on the lawyer to provide services, or 3. a tribunal appoints a lawyer to represent a client. the lawyers assent is implied when he fails to.... - Answers- clearly decline representation and the prospective client reasonably relies on the representation. a lawyer must not seek to avoid an appointment of a indigent client except for - Answers- good cause examples of good cause: - Answers- 1. violation of law or disciplinary rule (if he were to accept he would violate some rule)

2. unreasonable financial burden
3. personal liability to represent client effectively (if the lawyer finds the relationship so repugnant that the lawyer client relationship would be impaired) A lawyer must refuse employment in the following situations: - Answers- 1. client's motive is harassment of a third person.
4. unsupportable factual or legal position (no frivolous) a claim is not frivolous even if the lawyer does not have all the facts at hand.
5. lawyer not competent (if he is too busy or inexperienced to handle the matter competently.)
6. strong personal feelings

5. impaired mental or physical condition when a lawyer and person consult and no relationship forms, the lawyer still has the duty to (3 things): - Answers- 1. protect the prospective client's confidential info, 2. protect nay property the client has given to the lawyer, 3. use reasonable care in giving the person any legal advice. lawyers have an ethical obligation to - Answers- help make legal service available to all who need it. a lawyer can fulfill this obligation by - Answers- accepting a fair share of unpopular matters or indigent or unpopular clients When disputing over fees, the courts give the benefit of the doubt to - Answers- the client the fee must be - Answers- communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation. Factors considered in determining a reasonable fee (courts will not enforce a contract for unreasonably high fees or amount of expenses) - Answers- time and labor required. novelty and difficulty of the question. the skill needed to perform these services. the fee customarily charged. the amount at stake. the nature and length of the relationship. the experience, reputation, and ability of the lawyer the attorney must not charge the client for - Answers- ordinary overhead expenses with staffing, equipping, and running the attorney's office. The attorney may charge the client for the - Answers- actual cost to the attorney of special services like photocopying, long distance calls, research, delivers, overtime. They attorney must not charge the client more than - Answers- her actual cost for services provided by 3rd parties like court reporters, travel agents, and expert witnesses. the attorney must not "double bill" her time - Answers- Ex: If you are working on a case while flying. you must not bill for travel time and work time. only work time. a true retainer fee vs a payment of a fee in advance. - Answers- a true retainer fee is money that is paid solely to ensure the availability of the lawyer, and the lawyer who is fired or withdraws generally need not refund the retainer fee. When can a law firm keep the retainer fee? - Answers- if they are fired or withdraw, they can keep the fee if 1. the retainer amount was reasonable, and 2. it has not violated the retainer agreement.

a lawyer may accept _____ in return for services - Answers- property. provided that this does not involve a proprietary interest in the cause of action or subject of litigation. a lawyer must not make a fee arrangement that could curtail - Answers- services in the middle of the relationship and thus put the client at a bargaining disadvantage. a lawyer may permit the client to pay by - Answers- credit card. under a contingent fee, the lawyer collects a fee only - Answers- if the matter is resolved in the client's favor. Often, the fee is expressed as a %, but it need not be. 2 scenarios where contingent fees are not allowed - Answers- 1. criminal cases. 2. domestic relations cases (based on securing a divorce, the amount in alimony or the amount of a property settlement). HOWEVER, a lawyer may use a contingent fee in suit to recover money that is - Answers- past due under an alimony or support decree. a contingent fee must be - Answers- reasonable in amount. a lawyer must not use a contingent fee when the facts of the case make it - Answers- unreasonable to do so. Ex: clear cut case. a lot of money on the line. knew he could settle within 3 hours of work. It is unreasonable to arrange a contingency fee. A continent fee agreement MUST be in writing signed by the client, AND (4) things - Answers- how the fee is to be calculated, what litigation and other expenses are to be deducted form the recovery, whether deductions for exposes will be made before or after the fee is calculated, and what expenses the client must pay regardless of result. In collecting fees, a lawyer may not employe collection methods forbidden by law or - Answers- improperly use confidential information, or harass a client. 3 remedies for fees - Answers- liens. retention of funds in a trust account (the lawyer MUST retain the disputed amount in a client trust account until the dispute is resolved. arbitration or mediation. as a general rule, a lawyer must not split a legal fee with - Answers- another lawyer. BUT there are 3 exceptions 3 exceptions to splitting fees - Answers- 1. lawyers within a firm. 2. separation and retirement agreements. 3. you can split with lawyers outside of a firm IF the following conditions are met (a. the total fee is reasonable, b. the split is in proportion to the services performed by each lawyer, and c. the client agrees to the split in a writing that discloses the share each lawyer will receive).

you may not pay anyone (including another lawyer) for - Answers- referral fees. a lawyer may however set up a reciprocal referral arrangement with another lawyer or a lay person where - Answers- each person agrees to refer clients o customers to the other. the arrangement must not be exclusive and the lawyer's client must informed of the existence and nature of the arrangement. a lawyer must not advise a client to - Answers- commit a crime or fraud, but a lawyer may discuss the legal consequences of a proposed course of action with the client. it is the client who shall - Answers- be the objectives of the lawyers work. The client makes key decisions. A lawyer must abide by the client's decision in the following matters: - Answers- 1. whether to accept a settlement offer. 2. what plea to enter. 3. whether to waive a jury trial. 4. whether the client will testify at a criminal case. 5. whether to appeal. A lawyer and a client should try to resolve their disagreements but if they cannot the lawyer may - Answers- withdraw or the client may fire the lawyer. when a L discovers that her client expects assistance that violates the law or legal ethics rule, the L must - Answers- explain why she cannot do what the client expects. if the client insists the lawyer MUST withdraw. when a L discovers that a client has begun an illegal course of action and its continuing, the L must - Answers- not assist in the wrongdoing or suggest how the wrongdoing can be concealed. clients may have diminished capacity, but even very young children can - Answers- have valuable opinions about who should have custody over them. when a client has diminished capacity, the lawyer may take reasonable actions to - Answers- protect the client. Ex: consulting with people or entities that can protect the client. seeking the appointment of a guardian. when taking protective action, the lawyer has implied authority to reveal the client's - Answers- confidential info, but only necessary to protect the client. when a person with seriously diminished capacity faces imminent and irreparable harm to her health etc - Answers- a lawyer may take legal action on her behalf. however the L cannot act until the person has consulted the lawyer. normally, a L would not seek compensation for - Answers- emergency actions taken on behalf of the non client.

the L must prompts inform the client of any decision that requires the client's informed consent. what is this? - Answers- means that the client agrees to a proposed course of action after the L has sufficiently explained the material risks and reasonable alternatives. If the L must make an immediate decision (such as objection during trial) he need not - Answers- consult with the client before acting. however, in less urgent situations the L should consult with the client before acting. Ex: Client says you have complete authority. Despite the grant of broad authority, L should keep C advised of the progress of the negotiations. when a client does make a reasonable request for INFO, the lawyer - Answers- must respond promptly. A L may delay information to a client if the client would be likely - Answers- to react imprudently to an immediate communication. The L must not withhold info to serve the L's or 3rd party's best interest or convenience. a court rule or order may forbid a L from sharing info, and the lawyer must - Answers- comply with such a rule or order. The L-C relationship can end in any 3 ways - Answers- 1. C can fire L 2. L MUST withdraw in some situations. 3. in some situations, L may withdraw. The law allows C to fire L at.... - Answers- any time, with or without just cause. When C fires L, the client is liable to the L in.... - Answers- quantum merit for the reasonable value of the work L did before getting fired. When a C hires an L on a contingent fee basis and fires L before the case is over, the lawyer is - Answers- still entitled to recovery for the reasonable value of the work done before hiring or the value set out in the contract. the case must have ended tho After a lawsuit has been filed, the rules of most courts require.... - Answers- the court's permission for a substitution of attorneys. An L MUST withdraw if the L's mental or physical condition - Answers- materially impairs the attorney's ability to continue representing the client. If to continue with the representation will require the L to violate a law or a disciplinary rule, the L ..... - Answers- MUST withdraw Ex: Client confessed to A she was suing to harass and injure D. A must withdraw An L may withdraw from representing a C for.... - Answers- ANY REASON if it can be done without material adverse effect on the client's interests or if the client consents.

The L may withdraw despite an adverse impact on the C in these 7 situations: - Answers- 1. client persist in criminal or fraudulent conduct (AND the L reasonable believes is criminal or fraudulent).

2. client has used attorney's services to commit past crime or fraud.
3. client's objective is repugnant or against L's beliefs.
4. Client breaks promises to L (fails to show up to court hearings etc)
5. Financial hardship for attorney.
6. client will not cooperate
7. other good cause. An L who withdraws from a matter must comply with - Answers- local laws that require notice to or permission of the tribunal before withdrawal. The attorney must take reasonable steps to protect the C after withdraw, including ( things): - Answers- 1. providing C with reasonable notice.
8. providing C with time to obtain another L.
9. refunding L's fees paid in advance or not yet earned expenses.
10. returning all papers and property to which C is entitled. A L must act...... - Answers- competently with legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. the following factors should be considered when deciding whether an L has the knowledge and skill required - Answers- complexity and special nature of the matter, lawyer's general experience, L's training in the field, preparation and study the lawyer is able to give. Note that most matters every L is capable of either through - Answers- necessary study or association of another lawyer. a L may accept representation despite lacking - Answers- competence if the competence can be learned through preparation. in an emergency, a L may assist a client, even if the L - Answers- does not have the required skill, if referral to or consultation with another L would be impractical (middle of the night emergency)

Before a L retains another lawyer outside her firm to assist, the L must (2 things) - Answers- 1. reasonable believe that the services of the outside Ls will contribute to the competent and ethical representation of the C, and 2. should ordinarily obtain the C's informed consent. Diligence defined: - Answers- acting with dedication and commitment to the C's interest and with ZEAL IN ADVOCACY on the C's behalf. Procrastination is the professional shortcoming most - Answers- widely resented Once a L agree to handle a matter for a C, he must see the matter.... - Answers- through to completion (unless he's fired or withdrawals) Ex: if your relationship has become somewhat strained and you see something relating to the C in the media. reach out and ask whether they need your help. Ex2: you should consult with C of the possibility of an appeal before relinquishing responsibility of the matter If there is any doubt regarding the C and L relationship, the L must - Answers- either take affirmative steps to terminate or act with there required diligence. Every solo practitioner should designate another competent lawyer who, upon the death of the solo, would - Answers- review C's files, notify the C of circumstances, and determine whether protective action is needed. A single incident is _____ to impose professional discipline - Answers- sufficient. special circumstances should be considered when imposing the sanction, but not when determining.... - Answers- whether there has been a violation. Ex: L agreed to take C's case. time sensitive. L's kid is sick in hospital. L did not file C's case in time. L is subject to discipline, but the Bar will likely consider the circumstances in a assessing a sanction. a malpractice action differs from a disciplinary action in three ways: - Answers- 1. in malpractice action, the forum is civil court, not a disciplinary tribunal.

2. in malpractice action, the L's adversely is an injured plaintiff not the state bar.
3. the purpose of a malpractice action is to compensate the injured P, not to punish the L, and not to protect the public from future wrongs.

If a L violates a legal ethics rule does that automatically mean that she has also committed malpractice? If not, does it create a presumption that she has committed malpractice? - Answers- no to both. The plaintiff in a malpractice case can invoke 4 theories: - Answers- 1. intentional tort.

2. breach of fiduciary duties.
3. breach of K
4. Negligence (MOST COMMON). This is an unintentional tort. Negligence elements (DUTY OF CARE) - Answers- 1. duty of due care to CLIENTS and THIRD PARTIES (note that courts are quick to find that an attorney client relationship has been established if the attorney's neglect has misled the client) EX: L says ill get back to you one way or the other. never does. relationship has been established. an attorney still owes to any third party who was intended to benefit by the L's rendition of legal services. (trust beneficiary) Never will be a defendant who the L is against. Standard of care is the competence and diligence normally exercised by attorneys in similar circumstances. If an L represents a client that he has greater competence, he will be held to that higher standard. Negligence elements (BREACH OF DUTY OF CARE) - Answers- An L is not liable for "mere errors of judgment" if the judgment was well-informed and reasonably made. An L is expected to know the ordinary, settled rules of law known to L's of ordinary competence and diligence. NOTE that if some legal problem is uniquely within another L (patent law) you could breach your duty of care by not calling on that specialist. Negligence elements (LEGAL CAUSTATION) - Answers- P must prove that but for the L's negligence the injury would not have happened. Ex: in a malpractice suit, P must prove that she had a good claim against the federal government. If P did not have a good claim in the first place, then Ls negligence was not the legal cause of injury to P. Negligence elements (DAMAGES) - Answers- the P in negligence case must prove damages. P can recover for direct losses and also for losses that are indirect but foreseeable. an L can be held liable for injuries caused by.... - Answers- others. a legal secretary, law clerk, paralegal, or another associate. Under general principles of partnership law, each

partner in a law firm is liable for the negligence of another parter committed in the ordinary course of the partnership business. prudent lawyers carry ample - Answers- malpractice insurance. Only one state (Oregon) requires lawyers to have malpractice insurance. a lawyer must not make an agreement prospectively limiting the L's liability to a client for malpractice unless - Answers- the C is independently represented in making the agreement. Ex: L has a preprinted retainer agreement that provides that the C cannot sue L for malpractice. L's clients are not independently represented in signing his retainer agreement. : is subject to discipline. A L must NOT settle a pending or potential malpractice claim with an unrepresented client without first - Answers- advising that person, in writing, to seek advice from an independent lawyer about the settlement and giving that person time to seek that advice. A L who has breached a duty to his C with $$ effect cannot escape discipline by - Answers- reimbursing the C for any loss. Even if the L pays the client back for any damages her used, he is still subject to discipline. A L must not reveal information relating to - Answers- the client. a L may, however, reveals such info if the client gives - Answers- informed consent, or if the disclosure is impliedly authorized to carry out the representation Ethical duty of confidentiality is different from attorney client privilege. - Answers- ACP is an exclusionary rule of evidence law that prevents a court or other government tribunal from using their power to compel the revelation of confidential communications between L and C. (on the witness stand, for example) EDC prohibits an attorney from VOLUNTARILY revealing info (it applies in every context where the A/C privilege does not apply). (at a cocktail party, for instance) the ethical duty of confidentiality covers more kinds of info than - Answers- the attorney client privilege. the ACP protects only - Answers- confidential communications between the A and C. the EDC covers not only confidential communications, but - Answers- any other info that the L obtains relating to the client. no matter the source. the ACP concerns only the disclosure of______. Whereas the EDC concerns both the _____ and ______. - Answers- information. disclosure and use of information.

basic rule of ACP - Answers- prohibits a court or other gov court form compelling the revelation of confidential communications between an L and C. the ACP covers preliminary communications leading up to and L and C relationship even if - Answers- no such relationship develops. when the client is a corporation, the privilege covers communications between - Answers- a lawyer and a high-ranking corporate official. Also between the L and another corporate employe if the following conditions are met:

1. the em/ee communications with the L at the direction of the employee's superior.
2. the em/ee knows the purpose of the communication is to obtain legal advice for the corp., AND
3. the communication concerns a subject within the scope of the em/ee's duties to act for the corporation. For the ACP to apply, the L must be acting as an _____, and not as a _____. - Answers- attorney and not as a friend, biz partner, or member of the family. the ACP covers info passed to or from the ??? - Answers- agents of either the L or the C. Ex: As L's discretion, he has two people form the corporation talk to one another. that discussion is covered usually, the ACP does not cover....(3) - Answers- the ID of the client, the fee arrangement, and the bare fact that the L is acting for the client. BUT these details can be protected by the privilege if reveling them is tantamount to revealing a privilege communication the ACP covers both oral and written info, but the C cannot protect a preexisting.... - Answers- document or thing from discovery simply by turning it over to the L. If the doc or thing would be discoverable in the C's hands, it is equally discoverable in the L's hands. Ex: D tells his L, i shot a guy. gun in stars can. If L retrieves the gun, he may keep it long enough to obtain from it any info that may be useful in D's defense. By removing the gun, L has destroyed a valuable piece of evidence (the location). If L gets the gun and hides or destroys it, he may face criminal liability for tampering with evidence.

what does confidential mean - Answers- it must have been made by a means not intended to disclose the communicated info to outsiders AND The communicating person must reasonably believe that no outsider will hear it the presence of a third party will ______ the confidentiality IF the 3rd party was present to help further the A/C relationship - Answers- not destroy. The presence of the accountant, the law clerk, and the secretary does NOT destroy the confidentiality. NOTE: at recess at trial, in a crowded courthouse corridor, the conversation between A and C is NOT confidential. an eavesdropper can be prohibited from - Answers- testifying about a confidential communication. The client is the holder of the privilege. what does this mean - Answers- The privilege exists for the benefit of C, not for you. being the holder means that the client is the one who can claim or waive the privilege. what does a waiver of privilege consist of? - Answers- consists of a failure to claim the privilege when there is an opportunity to do so. if the C has NOT waived the privilege, and is someone tries to obtain info when the C is not present, the L must - Answers- claim privilege on the client. The AC relationship continues until when? - Answers- indefinitely. Even if the relationship terminates or even if the client dies. 4 exceptions to the AC privilege - Answers- 1. does not apply if the C seeks the attorney's services to engage in or assist a future crime or fraud.

2. does not apply to a communication that is relevant to an issue of breach of the duties arising out of the AC relationship.
3. does not apply in civil litigation between 2 persons who were formally the joint C's of an L.
4. does not apply in situations where the L can furnish evidence about the competency or intention of a C who has attempted to dispose of property by will or inter vivos transfer. generally, material prepared by the L in anticipation of litigation is - Answers- immune from discovery. Moving on to ethical duty of confidentiality - Answers- the presence of a non privileged third person does not necessarily destroy an L's duty of confidentiality.

confidential info remains confidential even if - Answers- it is known to others, unless the info becomes generally known. whether info is generally known depending on the surrounding circumstances - Answers- info that is NOT generally known when it can be obtained only by means of special knowledge or substantial difficulty or expense. there are many exceptions to the duty of confidentiality: - Answers- 1. clients informed consent (an L may reveal info if the C consents).

2. Implied Authority (an L has implied authority from the C to use confidential info when appropriate to carry out the representation. unless the C gives evidence to the contrary).
3. dispute concerning attorney's conduct (may reveal info to the extent necessary to protect L's interests in a dispute that involves the conduct of the L. A dispute over fees, for example).
4. disclosure to obtain legal ethics advice
5. disclosure required by law or court order
6. disclosure to prevent death or substantial bodily harm (can reveal info to the extent that the L reasonably believes necessary to prevent reasonably certain death or substantial bodily harm. Death/harm need NOT be imminent. it need only be reasonably certain. NOTE: disclosure is not required. L's have discretion)
7. disclosure to prevent or mitigate substantial financial harm (to prevent the C from committing a crime that will substantially result in financial harm, if C is using or used the L's services in the matter)
8. Disclosure to Detect and Resolve Conflicts of Interest (maybe the lawyer is changing fries and needs to resolve potential conflicts). absent the necessary informed consent, a L must not represent a client if a - Answers- conflict of interest exists If a conflict is apparent before the L takes on the matter, then the L must? - Answers- not take it on if the conflict becomes apparent after the matter, AND if informed consent on the client will not solve the problem, the L must? - Answers- withdraw consequences for not withdrawing (3) - Answers- disqualification as a counsel in a litigated matter, professional discipline, and civil liberty for legal malpractice

generally, lawyers who practice in a firm are treated - Answers- as a signal unit for conflict of interest purposes. so when one lawyer is barred the others are also - Answers- barred. the conflict is said to be "imputed" from the first to the other lawyers. another meaning of the word "firm" - Answers- lawyers in a corporate law department, legal aid office, or prosecutor's or public defender's office exceptions to imputed disqualification: - Answers- 1. personal interest of Lawyer (if the conflict is uniquely personal that other L's in the firm would have divided loyalties.)

2. Screening of Disqualified Lawyer (conflict will not be imputed if it arises out of her association with a prior firm PROVIDED the DQd lawyer is timely screened from participation in the matter and is given no compensation) a L must not represent a client the presentation creates a concurrent conflict of interest. Here are two situations - Answers- 1. the representation of one client will be directly adverse to another client, or
3. there is a SIGNIFICANT RISK that the representation of one client will be MATERIALLY LIMITED by the L's own interest or a former client or a third party. EX: D wants L to defend him in vehicular manslaughter. L's friend is the victim who died. a lawyer MAY represent a C if all four of the conditions are satisfied - Answers- 1. L reasonably believes that he can competently represent each client despite the conflict.
4. the representation is not prohibited by law.
5. the representation does not involve asserting a claim by one C against another C of the same litigation
6. each affected client gives informed consent, confirmed in writing. consent must be INFORMED. define this - Answers- the C is aware of all the circumstances, alternatives, and foreseeable ways the conflict might harm her. consent must be in WRITING. no oral. This means one of two things - Answers- 1. there is a tangible or electronic record that is signed by C, OR
7. there is oral consent that is promptly memorializes in a record that is sent to C. a client can almost always revoke - Answers- previously given consent.

a L may properly ask a C to consent to conflicts that might happen in the future. BUT ONLY IF - Answers- it is REASONABLE to do so, AND only if C truly understands the kinds of conflicts that might arise. EX: the contact must explain the possible present or future conflicts. a contact without these will be invalid A L cannot represent one C whose interests are directly adverse to those of - Answers- another C, UNLESS both of the affected C's give their informed consent in writing. NOTE That this will be imputed to a law partner. Let's say both partners represent adverse parties. There is a second type of conflict, aside from direct adversity. It's called material limitation: - Answers- It's a situation where there is a significant risk that the L's representation of a client will be materially limited by the L's own personal interests to a different C, a former C, or a third person. Representing co parties in litigation is an example of material limitation - Answers- For example, in criminal litigation. Two co-defendants should not be represented by the same L. In CIVIL litigation, an L may represent 2 P's but only if the 2 clients give informed consent, confirmed in writing. There is a four step guide to handling co-parties in litigation - Answers- 1. the L should analyze the facts and see if she can effectively represent both clients.

2. The L should disclose the potential conflict.
3. the L may invite the C's informed consent and confirm such consent.
4. if the potential conflict eventually ripens into a present conflict, the L must repeat steps 1-3. the L must withdraw from the joint representation if a reasonable lawyer would - Answers- have to advice either of the 2 clients not to consent. The L may continue to represent one consenting client, but only if the C who is dropped gives - Answers- informed consent to the continuation, confirmed in writing. Ex: L represents A and B. A insists on getting another lawyer. A may continue representing B, ONLY IF A gives informed consent and B gives informed consent. Scenario: Client one needs L to argue a statute is unconst. Client Two needs L to argue its constitutional.

Suppose Client One is in trial ct, and client 2 is in that county's appellate court. What must L do - Answers- L must fully disclose the situation to both clients and seek their informed consent. in a class action litigation, the unnamed members of a class are ordinarily not - Answers- regarded as clients for conflict of interest purposes. What must L do when representing multiple clients in non litigation matters - Answers- L may represent them but must do the court step outline beforehand conflicts cause day L's own interests: - Answers- financial- If another firm offers L a job while on trial. L must fully disclose this info to C and obtain B's informed consent confirmed in writing. L's who are close relatives- L and his mom must disclose this info to their clients and must not proceed without their respective client's informed consent in writing. sexual relationship with lawyer and client: - Answers- such a relationship makes the lawyer subject to discipline. This also applies to a L who has a sexual relationship with an organizations liaison person. NOTE there is no disciplinary action when the relationship predated the lawyer-client relationship. ALSO- the conflict created by a sexual relationship is personal and is NOT imputed to other lawyers in the lawyer's firm. A L must NOT enter into a business transaction with a C or knowingly acquire an ownership, possessory, security, or money interest that is adverse to a C, unless all of the following (4) conditions are satisfied: - Answers- 1. the terms of the transaction are fair to the C.

2. the terms are fully disclosed to the C in writing, expressed in a manner he will understand, and covers the essential terms.
3. the C is advised in writing to get advice of an independent lawyer (must be given reasonable time to acquire the advice)
4. the client gives informed consent, in a writing that C signs the L need not advice the C to consult independent counsel if the C already has - Answers- independent counsel in the matter. NOTE the rule about biz transactions does not apply to an ordinary fee agreement between L and C where the L buys goods or service that the C routinely markets to the public (buying a car from a car dealership client).

A L must not misuse a C's confidential information (former or prospective) example: - Answers- P told L a trade secret. P ultimately did not hire L. L then told on of his other inventor clients, and that client used it to his advantage. It prevented P from getting a patent. L is subject to discipline. NOTE that this rule applies only when the L's misuse of info disadvantages the - Answers- C, former C, or prospective C. However, a L who uses the info for personal gain may be subject to CIVIL LIABILITY. L's client told him she's building a huge mall. Upon this info, L builds a 4 story parking lot next door. The lot did not harm C. Regardless, L must disgorge the profits to C because L used C's confidential info to enrich himself other than in the practice of law. A L must NOT solicit a substantial gift from a C who is not L's - Answers- relative. HOWEVER, a L may accept a small gift like a holiday present from a C. Note that this rule does not even prohibit a L from accepting a substantial gift. He just may not solicit. Ex: After doing free work for his law school, L told the dean that his daughter would love to attend the school. The dean arranged for his daughter to be admitted on full scholarship. L is subject to discipline for soliciting a substantial gift A L cannot prepare a legal instrument (will or deed) that creates a - Answers- substantial gift to the L (or L's relative) EXCEPT when the donor is one of L's relatives. L may draft the will of his father because he is L's father. THIS Rule does not prohibit an L from seeking to have himself.... - Answers- or his law partner named as executor of an estate or counsel to the executor or to some other fee- paying position. A L must NOT acquire literary or media rights to a story based in substantial part on information relating to... - Answers- L's representation of a client. HOWEVER, a L may acquire such rights AFTER the client's legal matter is entirely completed (Appeals and all) A L cannot financially assist a C in connection with - Answers- pending or contemplated litigation. A L who has too great a financial stake in the case may be unable to give the C objective legal advice. A L may advice court costs and other litigation expenses on C's behalf, ad repayment may be contingent on the - Answers- outcome of the case. A L may simply pay the court costs and litigation expenses for an indigent client, without.... - Answers- any provision for repayment.

A L is subject to discipline for giving a C other financial help in the context of - Answers- pending or contemplated litigation. Ex: Corp's plant blew up, spreading toxic fumes everywhere. the L took out a newspaper ad offering to represent the farmers on contingency, and to lend them money to restore their pastures. This last part makes the L subject to discipline. A L must not participate in the making of an aggregate settlement agreement unless all of the following (3) conditions are met. - Answers- 1. L must assure that the Cs have come to an agreement among themselves.

2. L must disclose to each C all of the terms.
3. Each C must give informed consent to aggregate settlement agreement in a writing signed by the C. These same rules that apply to civil cases also apply to - Answers- criminal plea bargain cases although an L will not be representing more than one D in a criminal case. a L must not make an agreement with a C that prospectively waives or limits the L's liability for - Answers- legal malpractice. Except in the unlikely event that the C is independently represented. an L, may however, do the following (3) - Answers- 1. practice in a limited liability entity
4. reasonably limit scope of representation (C and L agree that L would research as much as he could in 100 hours)
5. arbitrate legal malpractice claims (may agree with a C to arbitrate all legal malpractice claims, provided such agreement is proper under local law and the C understands the scope and effect of the agreement). A L may settle a malpractice claim made by his C, but only if the lawyer first - Answers- advise the C in writing to seek advice of an independent lawyer about the settlement, and the L gives the client a reasonable chance to obtain such advice. a L must not acquire a proprietary interest in the use of action or the subject matter of litigation that the lawyer is - Answers- conducting for the client. A L may enter into a contingent fee arrangement with a client in a civil case - Answers- in some states, an L is allowed to secure payment of her fee and repayment of advanced litigation expenses by taking a - Answers- lien on the proceeds of the case.

A L must not accept compensation from a third party for representing a client, unless three conditions are met - Answers- 1. C gives informed consent.

2. 3rd person does not interfere with the L's independence or representation of C.
3. the arrangement does not compromise C;s confidential info. sometimes the interest of a 3rd party may create a substantial risk of materially limiting L's ability to represent C effectively. When that is true, L may represent C provided that: (2) - Answers- 1. L reasonably believes the 3rd person's interest will not affect the representation, and (2) C gives informed consent, confirmed in writing. ex: L is staff attorney for Legal Aid Society. L must not allow the Board to influence her independent legal judgment about how to handle a particular client's legal matter. 3 conflicts raised by liability insurance: - Answers- 1. policyholder's interest (liability insurance policies commonly provide that the insurance company will select and pay for a lawyer to defend the policyholder in suits arising out of events covered by the policy)
4. Insurance COmpany's interests (they generally want a claim handled in a way that minimizes costs. this puts a tough burden on insurance defense lawyers which sometimes undercuts their representation to C).
5. Whom Does the Defense L Represent? (do they represent the policyholder or the company? No matter whether the L represents either, the L's ethical OBLIGATIONS ARE GOVERNED BY THE RULES OF PROFESSIONAL CONDUCT NOT THE INSURANCE CONTRACT) conflicts between insurance company and policy holder: - Answers- 1. Is the even covered by the policy? (policyholder and company will dispute whether the accident/even is covered)
6. settlement within the policy limits (If the holder wants to settle but company wants to go to trial because they think they can win, L MUST disclose this conflict to the holder and invite him to obtain independent counsel)
7. settlement controlled by insurance company (A doctor might not want her company to settle out of fear of her reputation. Some policies authorize the company to have full control of the defense. in this situation, a L hired by the company MUST inform the holder as early as possible)
8. unreasonable limits on defense fees and expenses (a L must refuse to follow company litigation management guidelines that interfere with L's professional judgment or prevent L from doing competent representation. If the company will not relent, the L must withdraw)

Duties to Former Clients. an attorney's duty to preserve a C's confidential info does not case when the - Answers- representation ends. Ex: A retires from solo practice. gives away all his client files to new guy. this is bad. After a C gives confidential info, an L must not then oppose the former C in any matte run which - Answers- the confidential info would be relevant, UNLESS the former client gives consent in writing. After a C gives confidential info, L must not then use the info to the C's - Answers- disadvantage, UNLESS the former client gives consent in writing. NOTE: this rule does NOT apply to info that has become commonly known. Ex: L represented C (celebrity's son) for DUI. Later, L represents C's ex-wife. in this new dispute, L may use publicly known info about the DUI (maybe newspaper article etc). A L must not represent one C whose interests are materially adverse to those of a former C in a matter that is - Answers- substantially related to a matter in which the L represented the former C. what does substantially related mean? - Answers- Depends. just note that an L, if routinely handled a type of problem for a former C, the L may later oppose that former C in a wholly different problem of the same general type. A lawyer's duties may extend not only to the Cs she represented personally, but also the

• Answers- Cs of the lawyer's former firm. A lawyer whose firm represented a C in a matter and who acquired protected info may not thereafter represent another person in the - Answers- same or a substantially related matter if that person's interests are materially adverse to those of the former C, unless the former C gives informed consent in writing. If a L who is disqualified from representing a C in the situations previous, joins a new firm, the new firm may be - Answers- disqualified as well unless the L is properly screened (L doesnt work on the case, discuss it with anyone, and does not share fees from the matter, AND the former C is given notice). A L's former firm is prohibited from representing a person with interests materially adverse to those of a C of the formally associated L IF (2) - Answers- 1. the matter is the same or substantially related , 2. And a L remaining the firm has protected info. Ex: L is partner at Firm One. Three associated of Firm One represented A in the A v. B case.