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MPRE

MPRE

MPRE

Last updated 25 April 2024

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A lawyer or law firm may sell or purchase a law practice or area of a law practice, including goodwill, if:
1. the seller ceases to practice law entirely or within a geographic area or jurisdiction;
2. written notice is given to the clients regarding the proposed sale, the clients' right to seek other counsel, and the fact that consent to the transfer of files will be presumed if no action is taken by a client w/in 90 days. If a client cannot be given notice, the representation of that client may be transferred to the purchaser only on entry of an order so authorizing by a court having jurisdiction;
3. the entire practice or area of practice is sold to one or more lawyers or law firms; and
4. client fees are not increased due to the sale
 
Types of discipline for "must" rules
(1) Private or public reprimand/censure; (2) suspension for finite period; (3) disbarment
 
Requirements on you when you apply to the bar
(1) Duty to fully cooperate; (2) truth and full disclosure
 
 
What is your duty when you know another lawyer is violating the rules?
(1) Report what you know (unless it is protected as a confidence or privilege); and (2) Must be available to testify against the lawyer (cannot report anonymously)
 
When can you practice temporarily in another state?
(1) Associate with an active local lawyer; (2) obtain special permission called pro hac vice; (3) mediation or arbitration arising out of home-state practice; (4) anything reasonably related to lawyer's home-state practice (i.e., negotiate terms for real estate deal)
 
When can you practice permanently in another state?
(1) Lawyer employed by her only client with many offices (Macy's corporate atty); (2) legal services authorized by federal or local law (atty admitted to patent practice)
 
When is a supervisor responsible for acts of a subordinate?
(1) Supervisor knew of misconduct at a time when consequences could have been avoided or mitigated and the lawyer fails to take reasonable remedial action; OR (2) if the violation raises a substantial question as to the supervisor's honesty or character and fitness to practice law AND supervisor told you to do it (or ratified it)
 
When is a subordinate not responsible for his or her own acts?
(1) Subordinate was told to do it; and (2) it is arguable that you thought it was okay to do
 
What activities constitute the practice of law and require a license?
(1) appearances in judicial proceedings and depositions; (2) negotiating settlements; and (3) drafting documents that effect substantial legal rights
 
What activities do not constitute practice of law and do not require a license?
(1) Interviewing clients or witnesses; (2) filling in forms; and (3) writing legal memos
 
You cannot divide your fee with a nonlawyer. Exceptions:
(1) Heirs of a deceased attorney; (2) employees in the form of salaries and as part of pension or bonus plans; and (3) lawyer may share court-awarded legal fees with a nonprofit organization that employed, retained or recommended employment of the lawyer in the matter
 
What constitutes a law firm?
Lawyers who frequently consult, work jointly, and have access to each other's files
 
 
Non-compete agreements are invalid, as applied to attorneys. Exceptions:
(1) When a lawyer retires from a firm and receives benefits; or (2) lawyer withdraws from the firm
 
Lawyers have general freedom to reject cases, but when SHOULD they take the case?
(1) The "defenseless or oppressed"; (2) pro bono
 
Lawyers have general freedom to reject cases, but when MUST they take the case?
Court appointments. However, you SHOULD reject a case if the appointment would create an unreasonable financial burden and you MUST reject a case in certain circumstances: (1) physical or mental inability to represent someone; (2) conflict of interest; (3) strong feelings or bias; (4) frivolous claim or frivolous defense/motion; and (5) incompetence
 
When can incompetence be cured?
ALE: (1) association; (2) learn it in time; or (3) emergency
 
What constitutes pro bono work?
(1) Donating money to bar organizations; (2) reducing fees to clients; (3) CLE teaching; and (4) providing legal services for civil rights matters
 
Important decisions belonging to the client
Whether to (1) sue, (2) settle, (3) testify, (4) plea, (5) jury/bench trial, and (6) appeal
 
Procedural and tactical decisions belonging to the attorney
(1) Which court to file in; (2) whether or not to take depositions; (3) discovery: whether and what to seek/produce; (4) whether to request or grant a continuance
 
Procedural and tactical decisions belonging to the client
(1) Case expenses and (2) third person's well-being (i.e., whether a child testifies)
 
When MUST you withdraw from a case?
(1) Duty to reject (a) physical or mental inability to represent someone, (b) conflict of interest, (c) strong feelings or bias, (d) frivolous defense/motion, and (e) incompetence; (2) client fraud and refusal to rectify the fraud; (3) client insists on violation of a law or an ethical provision; and (4) client has begun an illegal course of action
 
 
When MAY you withdraw from a case?
(1) Any reason where there's no material harm to client; (2) client consents; or (3) where one of these conditions is met: (a) client persists in criminal or fraudulent conduct (not mandatory if client stops and rectifies), (b) client has used atty's services to commit past crime or fraud, (c) client's objective is repugnant or imprudent, (d) client breaks promise to lawyer to pay the fee, (e) unreasonable financial hardship for atty's practice, or (f) client will not cooperate
 
If you do withdraw, what is your duty to the client
Cannot abandon the client: (1) dissuade the client; (2) request permission to withdraw; (3) do as instructed; and (4) give client reasonable notice to get a new lawyer
 
Contingent fees may not be used in criminal or domestic relations cases, except for:
Past due support payments. They are considered debts and therefore okay
 
No fee splitting or referral fees with other lawyers outside of firm, except when:
(1) You work together; (2) with the client's written informed consent that discloses the share each lawyer will get; (3) paid proportionally to work done (or some different proportion if each lawyer assumes joint responsibility for the matter); AND (4) one reasonable fee in total
 
When are referral agreements okay between lawyers or a lawyer and a non-lawyer?
Reciprocal referral agreement, but (1) arrangement cannot be exclusive; (2) the referred client must be told of the arrangement; (3) the agreement must not interfere with the lawyer's professional judgment as to making referrals; AND (4) the agreement should not be of indefinite duration and should be reviewed periodically
 
Requirements a lawyer must abide by when selling or buying a practice:
(1) Entire practice or entire field of practice must be sold; (2) seller must exercise competence in identifying a purchaser who is qualified to undertake the representation; (3) written notice must be given to the clients regarding the sale, right to get their files back, and right to get new counsel; (4) seller must cease to engage in that field of law; AND (5) purchaser must take all client matters, not just the good cases
 
What is the work product doctrine?
Material prepared by a lawyer for litigation is immune from discovery unless the other side shows (1) a substantial need for the material and (2) an inability to gather the material without undue hardship.
 
What is informed consent?
The client agrees to the proposed course of conduct after the lawyer sufficiently explains material risks and reasonable alternatives
 
What are the exceptions to privilege?
(1) Waived by client; (2) client seeks atty's service to engage in or assist in future crime/fraud; (3) communication is relevant to issue of breach of atty-client relationship; and (4) in civil cases between parties who were formerly joint clients of the atty
 
 
What are the exceptions to confidentiality?
(1) Waived by client or information becomes public; (2) required by law or court order; (3) informed consent; (4) implied authority to disclose to further the representation; (5) to obtain legal or ethical advice; (6) to prevent reasonably certain death or substantial bodily harm; and (7) to prevent substantial financial harm or fraud if the client is or has used the lawyer's services in the matter
 
How can most conflict of interests be cured?
(1) lawyer fully explains risks and alternatives and obtains informed consent and (2) the client agrees in writing
 
Attys may not give loans to clients with pending or contemplated litigation; no de minimis exceptions. Except:
Advancing the costs of litigation
 
Lawyer cannot be a witness, except:
(1) An uncontested matter; (2) legal fees; or (3) if substantial hardship to the client otherwise
 
Lawyers cannot acquire an interest in the case, except:
(1) Contingent fees or (2) security liens
 
When can a lawyer enter into a business deal with a client
Ordinary transactions, as long as the terms are fair. This requires in writing: (1) full disclosure of terms; (2) advice to get independent legal counsel; (3) informed consent; and (4) agreement in writing
 
No multiple clients where "potential conflict" unless:
(1) There's a reasonable belief of no adverse effect AND (2) client gives written informed consent
 
Atty can be paid by a third person, but requires:
(1) Written informed consent from client and (2) client confidences must be kept
 
The elements of "screen"
(1) Written disclosure to conflict; (2) no fee to the screened off attorney; and (3) no working on, discussing the case, or access to the file by the screened off attorney
 
 
Civil liability for malpractice requires:
(1) Money loss and (2) causation ("but for")
 
A lawyer cannot limit his or her malpractice liability through agreement, unless
The lawyer explained to the client that he or she is not competent to take the case and the client insists on his or her representation anyway
 
What to do if your client is currently committing fraud or perjury
Lawyer must seek to withdraw from the matter and if such effort is denied OR if withdrawal does not resolve the problem, then the lawyer may disclose the fraud to the judge
 
What to do if your client has committed fraud or perjury in the past
Secret cannot be disclosed, BUT, the lawyer has the duty to rectify false testimony until the end of the proceedings, appeals and all
 
What are the two types of retainers and what is the difference?
(1) Advance on fees: belongs to the client, goes into the trust account, and any unearned portion must be returned; (2) Availability retainer: belongs to the atty and goes into lawyer's account
 
Rules for advertisements
(1) Cannot be false or misleading; (2) must include the name and address of at least one lawyer or law firm responsible for its content; (3) cannot create unjustified expectations; (4) cannot have unsubstantiated comparisons; and (5) cannot imply results by improper means
 
Whose name can appear in a letterhead?
(1) Deceased attorneys and (2) temporarily bad or good lawyer's names. (Attys who are disbarred or appointed to a political position may not appear in letterhead)
 
What type of solicitation is banned?
(1) In person, (2) live telephone; or (3) real-time electronic contact (IM). Exceptions: family, close, personal or previous relationship.
 
What kind of solicitation is permissible?
(1) Targeted direct mail labeled "advertisement"; (2) group and prepaid legal services; (3) educational seminars; (4) a case in which no fee will be taken; and (5) close friends, relatives, present clients or former clients
 
When can a lawyer advertise that he or she is a specialist?
(1) Passed a separate bar (i.e., patent or admiralty); or (2) certified as a specialist by an ABA approved organization
 
When can you advise a witness that they don't have to voluntarily testify?
(1) The witness is related to or is an agent of the party that the lawyer represents; AND (2) the person will not be harmed by not volunteering
 
A lawyer may communicate with a juror after the completion of a trial, except when:
(1) Local law or government order prohibits it; (2) the juror tells you they don't want to talk to you; or (3) the purpose of the contact is to harass or coerce the juror
 
General rule for lawyers regarding publicity
Lawyer must not make a public statement outside the courtroom that the lawyer reasonably should know would have a substantial likelihood of materially prejudicing the case
 
Judges can accept and not report books, honoraria and ordinary social gifts, so long as:
(1) It's not excessive for the purpose and relationship; (2) not reasonably perceived to influence the judge; and (3) no gifts from persons likely to appear before the judge
 
Judge's general duty
With respect to cases or issues that are likely to come before the court, a judge must not make pledges, promises or commitments that are inconsistent with the impartial performance of the duties of the office when the judges conduct creates a reasoable perception the CJC has been violated or that otherwise reflects adversely on the judge's honesty, impartiality, temperament of fitness as a judge
 
When must a judge disqualify himself (unless all parties remit)?
(1) When judge has perosnal knowledge of possibly disputed facts; (2) if former partner or close relative is a party, atty, or witness (doesn't include cousin, does include spouse's family); (3) judge has an economic interest in the matter, except de minimis, mutual funds or securities held by a charitable organization; and (4) when the judge knows the party or atty has contributed more than the jurisdiction's specified amount to his or her election campaign committee
 
When can parties not remit a judge's disqualification?
When the disqualification is based on the judge's personal bias to the atty or party
 
When is the disqualification requirement for judges overridden?
In an emergency situation, necessity overrides the disqualification
 
Exceptions to ex parte communications:
(1) When expressly authorized by law; (2) emergency; (3) mediation or settlement, but only with consent of parties; (4) de minimis communications
 
When can a judge be compensated for extra-judicial activities?
(1) Serve as an officer, director or trustee for a non-profit organization (public law school: yes; any private school: yes; any other public school: no); (2) teaching, writing or speaking. May not be on board of a for-profit organization
 
Judges cannot practice law. Exceptions:
(1) Pro se and (2) free legal advice to family members
 
If judge is seeking an government office, must the judge retire from the bench?
If running for nonjudicial ELECTIVE office, then probably must resign from bench (if law requires); if APPOINTED to office, need not resign judgeship
 
Difference between the evidentiary attorney-client privilege and the duty of confidentiality
- Only client-driven confidential communication is covered by the privilege.
- The duty of confidentiality also covers third party-driven communication, lawyer observation, and all information relating to the representation.
-privilege prevents govt from forcing disclosure
-duty of confidentiality prevents lawyer from disclosing or misusing confidential info
 
Confidentiality - What's a client
anyone that seeks legal services from an attorney
even if there is no relationship
 
Confidentiality - corporate clients
-all high ranking corporate officials
-other employees so long as they are sent by the corporation to get legal services for stuff within the scope of the employee's duties
 
confidentiality - What's an attorney?
-actual attorneys
-people reasonably believed to be an attorney
 
Confidentiality - Privilege - What's covered?
confidential communications between client and attorney
 
Confidentiality - Privilege - what's not covered?
-preexisting discoverable documents
-fruits of a crime
-instruments for crime
 
Confidentiality - privilege - exceptions
-clients wants your help to commit crime or fraud
-information you must say to defend yourself from a lawsuit for breach of relationship
-civil litigation between two former JOINT clients
-information to determine competence of client
 
Confidentiality - duty - what does it cover
-everything under the privilege
-preexisting discoverable documents
-non-confidential communications
-client wants your help to commit crime or fraud
-fee arrangements (other logistical stuff)
-stuff about past frauds
 
Confidentiality - duty - exceptions
-informed consent from client
-implied authority from client
-necessary to prevent substantial bodily harm
-client wants your help to commit crime or fraud reasonably certain to spank someone financially
-defend yourself from suits by clients
-required by law or court order
-stuff to get ethics advice
 
Conflicts - Consequences
-can't represent prospective client with conflict
-must end representation of client if conflict arises.
 
Conflicts - Imputation
-People in your firm
+ will be fact sensitive
 
Conflict - Opposing clients
-ABSOLUTELY NOT
 
Conflict - Flow Chart
-as long as they're not opposing parties you can do it so long as a disinterested lawyer thinks it's ok, you reasonably think you can do it, and the client gives informed, written consent
 
Conflict - Imputation - exception
-conflict is personal to disqualified lawyer OR
-disqualified lawyer is quickly screened AND
-disqualified lawyer receives no part of fee
 
Conflict - Concurrent Conflicts
-can't represent if he's going to absolutely screw another client
-can't represent if he's going to handcuff you
 
Conflict - Business Transactions with Client/possessory/security/money interest
-terms of transaction must be fair
-terms must be disclosed in writing
-client must be advised that he should get a lawyer in writing
-informed, written consent signed by client
 
Conflict - Gifts from clients who aren't relatives
-can't solicit substantial gifts
-can accept small gifts and big gifts (big gifts might screw you)
-don't prepare a document that gives you a gift
-it's ok to try to be the executor of somebody's estate
 
Conflict - Literary/Media rights in client's case
-Not until the matter is entirely completed
 
Conflict - financial assistance - what's alllowed
-court costs
-litigation expenses
-can make repayment contingent on outcome or just do it for free
 
Conflict - financial assitance - what's prohibited
-all other financial help
 
Conflict - aggregate settlement agreements
-can't draft settlement for co-parties unless
+clients come to an agreement about settlement sharing
+lawyer disloses all terms
+written consent
 
Conflict - Waiving malpractice liability
-can't make agreement with client to waive/limit your liability for malpractice unless client is independently represented in this agreement
 
Conflict - waiving malpractice liability - exceptions
-lawyer can work for limited liability entity
-reasonably limit scope of representation
-arbitrate malpractice claims
 
Conflict - settling malpractice claims
-you can settle them but only if client is independently represented
 
Conflict - Proprietary interest in subject of litigation
-NOPE
 
Conflict - getting paid by a third person
-can't do it unless:
+client gives informed, written consent
+third person doesn't interfere with representation
+arrangement does not compromise confidential info
 
Conflicts - former clients - length of duty
-always exists. duty of confidentiality is IMMORTAL
 
Conflicts - former clients - opposing former client
-can't use confidential data from former client against him without informed, written consent
 
Conflicts - former Govt employees - going from public to private
-can't represent client in a matter that you were personally and substantially involved in unless govt gives informed, written consent
 
Conflicts - former govt employees - imputation
-screen the disqualified employer
-don't pay him with money from that fee
-written notice to govt about conflict
 
Conflicts - former govt emplooyes- confidentiality
-if you learn something confidential while working for the government you can't use that information later against that person
 
Conflicts - private to govt
-same rules apply
-ordinary conflict rules
-personal and substantial rule
 
Conflicts - judgeship to private
-personal and substantial rule
-screening rule still applpies
 
Conflicts - prospective clients - confidentiality
-tony soprano
 
Conflicts - prospective clients - exception to confidentiality
-show that he limited the amount of confidential stuff he learned
-screen him early
-give written notice to prospective client
 
Conflicts - duty owed to organization
-owe the duty to the organization, not the employees, officers, or shareholders
-make sure you tell the employees, officers, or shareholders this info
 
Conflicts - representing organization and associated person
-must satisfy ordinary conflict rules to do this
 
Conflicts - being a lawyer and corporate director
-allowed but the duty of confidentiality applies
 
Client trust fund account - generally
-money received on behalf of a client must be put in a trust fund account separate from the lawyer's personal or business accounts
 
Client trust fund account - where must it be
-in the same state where the lawyer practices (unless client lets you put it somewhere else)
 
Client trust fund account - large sums of money
-placed in an interest bearing account
 
Client trust fund account - small sums
-put it in a pooled client trust account
 
Client trust fund account - funds that must go into account
-advances for costs/expenses
-funds that both client and lawyer have interest in
-funds that third party has interest in
 
Lawyer as counselor - candor
-must be candid
 
Lawyer as counselor - advice beyond the law
-you can be the client's dad
 
Lawyer as counselor - volunteering advice
-you don't have to be asked to give advice
 
Lawyer as negotiator
-no false statements of material fact
-don't have to give up everything though
 
Lawyer and neutral third party - unrepresented parties
-inform them that you are not their lawyer
-don't subequently become their lawyer in the same matter unless you get informed, written consent
 
Candor to tribunal - applicable law
-don't lie to the court about the law
-reveal adverse decisions
 
Candor to tribunal - facts of case
-don't lie to the court about the facts of the case (lies of omission count)
 
Candor to tribunal - false evidence
-don't offer evience that you reasonably believe is false unless it's a defendant's criminal testimony on his own behalf
 
Candor to tribunal - false evidence (fix it)
-try to persuade client to come clean
-seek to withdraw if he won't come clean
-if you can't withdraw then you have to tell the court
 
Candor to tribunal - false evidence - after proceeding
-if you learn after the proceeding about the false evidence then it doesn't matter
 
Duty of Fairness - opponent access to evidence
-must give them full access to discoverable evidence
-don't falsify stuff
 
Duty of Fairness - paying witnesses
-travel, meals, lodging
-compensation for time lost from witness's job
-fees for experts (not contingent on outcome)
 
Duty of Fairness - procuring unavailability
-can't tell them to make themself scarce but can tell them to not volunteer sensitive info
 
Duty of Fairness - threats
-can threaten civil suit or criminal charges to gain advantage of the suits are warranted
-can't threaten with ratting them out for disciplinary violations
 
Impartiality - improper influence
-can't try to improperly influence judges, courts officials, jurors, or prospective jurors
 
Impartiality - ex parte communications
-typically not allowed
-you can send a letter to a judge through provided you copy opposing counsel
 
Impartiality - slander
-lawyer can't slander a judge, public official, or candidate
 
Trial Publicity - general rule
-not allowed to make out-of-court public statements you reasonably should konw will materially prejudice the case
 
Trial Publicity - right of reply
-you can make a reasonable statement to protect your client against prejudicial publicity
 
Trial Publicity - prosecutors
-can't incite public condemnation of the accused
-can talk about how dangerous a person is for public safety
 
Lawyer as Witness - general rule
-lawyers cannot act as advocates in cases where they are likely to be necessary witnesses
 
Lawyer as Witness, exceptions - when a lawyer may act as an advocate at a trial in which the lawyer is likely to be a necessary witness:
-testimony will concern only an uncontested matter/frivolity
-testimony only concerns nature and value of legal services rendered in the case
-withdrawal as trial counsel would cause substantial hardship to client
 
Talking to other lawyers' clients
-don't talk to him about the matter if he's represented by counsel unless the lawyer consents or the law allows
-don't say stuff to harass the third party of violate his rights
 
Talking to regular third parties
-go ahead and talk to them just make sure that you don't tell them you're disinterested, correct them about misunderstandings of your role, and don't give them advice about potential conficts
 
Talking to regular third parties - corporations
-corporations count as people under this rule so you can't talk to people with authority who speak to general counsel without getting consent from general counsel first
 
Law firms - responsibilities of partners
-educate/guide in ethics matters (method depends on firm size)
-respondeat superior if you ordered him to do it and didn't stop him when it got fishy
 
Law firms- responsibilities of subordinate lawyers
-if senior lawyer orders to you commit a clear ethics violation than you are in trouble too
-if it's debatable then you should be fine
 
Law firms - responsibilities to nonlawyer assistants
-educate/guide in ethics matters
-same type of respondeat superior type liability
 
Nonlawyer involvement in incorporated firm/association
-lawyer can't be in an association with a nonlawyer if the nonlawyer owns an interest in the firm, is a director/officer of the firm, or has the right to direct/control the professional judgment of a lawyer
 
Covenants not to compete
-cannot be placed on lawyers
 
Sale of practice - when it's allowed
-must stop practicing in that field and in that location
-must sell the entire practice
-written notice given to clients
 
Sale of practice - purchaser's obligations
-must undertake all client matters in the purchased practice and honor all existing fee arrangements
 
Law-related services - when PR rules apply
-when the circumstances under which you provide both circumstances are very intimate
-when you're dealing with a client (business transaction)
 
Law-related services - provided through entity owned by lawyer
-must let everyone know that you are not acting as a lawyer
-PR rules won't apply
 
Pro-bono service
-ABA says you should do a minimum of 50 hours
 
Membership in legal service organizations
-encouraged. go be a director/officer/member
-not supposed to make decisions which risk conflict with either personal clients or organization's clients
 
Quick-service programs
-totally allowed
-must bet informed consent to limited scope of relationship
-conflict rules relaxed unless you actually know that the advice will create a conflict
-imputation of conflicts relaxed (same rules apply)
-if quick advice leads to regular representation then the conflict rules apply fully
 
Law reform groups
-go ahead and join even if the goal of the group may harm one of your clients
-if the goal will benefit a client, you must disclose that
 
Political Contributions to get govt employment - general rule
-you can't donate money to get a govt job/appointment
 
Political Contributions to get govt employment - exceptions
-uncompensated services
-based on lawyers' experience free from influence based on political contributions
-made on a rotating basis with no regard to political contributions
 
Legal Services - advertising
-communication with the public at large
 
Legal Services - soliciting
-individual contact with a layperson designed to entice the layperson into hiring the lawyer
 
Legal Services - limits
-ads cannot be false or misleading
-regulations typically forbid in-person solicitation for profit
 
Legal Services - Intermediate scrutiny
-substantial govt interest
-restriction directly and materially advances the interest
-regulation is narrowly drawn
 
Legal Services - advertising - specific rules
-can communicate about the fields of law you work in
-must get consent from clients before you use them as samples
-name, address of at least one lawyer or law firm responsible for ads content
 
Legal Services - referrals
-cannot pay others for recommending you
-can pay company to make ads for you
-can pay referral service (legal zoom)
 
Legal Services - reciprocal referral arrangements
-totally cool with both lawyers and non-lawyers
-cannot be indefinite
-cannot be exclusive
 
Solicitation - basic rule
-no cold calling if they're not your family member/buddy/prior professional contact
 
Solicitation - more specific restrictions
-no use of agents
-must label all solicitations as attorney advertising
 
Solicitation - exceptions
-family/friends/prior professional contacts
-you can offer free legal services directly to potential clients
 
Solicitation - Specialization
-can call people certified specialists (state certifying entity)
-can state your fields of practice
-can call yourself patent attorney or proctor at admiralty
 
Firm Names - trade names
-actually allowed
-just cannot be misleading
-cannot imply connection to charity/govt agency
-can't use names of lawyers who have gone into public service
 
Judges - Federal - selection
-appointed by resident for life tenure
-can be removed by impeachment
 
Judges - State - selection
-appointed by governor or state legislature
-sometimes elected by voters
 
Judicial Integrity - community outreach
-judges should participate in community outreach activities
 
Judicial Integrity - Judicial Prestige
-judge can't abuse it, or permit others to abuse it, to advance personal or economic interest of himself or others
 
Judges - Cooperation
-judges have to cooperate with each other and court officials in the administration of court business
 
Judges - ex parte communications - when allowed
-expressly authorized by law
-consent of parties in an attempt to settle/mediate pending matter
-circumstances require it in emergency or administrative matters so long as no party is prejudiced and other party is noticed
 
Judges - investigation
-judges cannot independently investigate the facts
-can talk to other judges/court personnel for advice
-can get advice from disinterested experts (parties must be noticed)
 
Judges - public comment
-no comments that might reasonably be expected to affect the outcome or fairness of a matter
-court personnel have to be equally silent
 
Judge - responding to misconduct
-if he knows that judge violated CJC (substantial question) he must rat on him
-if he hears (substantial likelihood) that other judge has violated CJC he must take appropriate action
 
Judge - Prior involvement disqualification
-served as lawyer or material witness in a matter
-was associated in law practice with someone who practiced substantially in the matter
-presided as judge of the matter in another court
-worked for the govt and participated personally and substantially concerning the matter
-publicly voiced an opinion, as a judge, concerning the merits of the mater
 
Judges - economic interest
-must disqualify himself if he has an economic interest in the matter
-must do the same thing if a family member has an economic interest
 
Judges - remittal of disqualification
-parties can waive the judge's disqualification
 
Extrajudicial Activities - govt hearings and consultations
-judge can't appear voluntarily or consult with legislative or executive bodies unless the matter concerns the law
 
Extrajudicial Activities - testify as character witness
-normally no unless he is summoned to do so by subpoena
-should really discourage people from doing this
 
Extrajudicial Activities - educational, religious, charitable, or civic organizations/activities
-judges can be in these subject to the same general restrictions on extrajudicial activities
-must be about the law
 
Extrajudicial Activities - appointment to govt committees
-must be about the law
-also can represent govt unit on purely ceremonial/historical, education, or cultural grounds
 
Extrajudicial Activities - discriminatory organizations
-cannot practice INVIDIOUS discrimination based on sex, race, gender, religion, national origin, ethnicity, or sexual orientation
 
Extrajudicial Activities - use of nonpublic info
-cannot intentionally disclose or use nonpublic info acquired in judicial capacity for any purpose unrelated to judicial duties
 
Extrajudicial Activities - business activities
-cannot be director, manager, general partner, advisor, or employee of a business
-allowed to manage own investments and those of close family
-can have a small closely-held business
 
Extrajudicial Activities - gifts
-can't accept gifts, loans, bequests, benefits or other things of value if acceptance is illegal or would reasonably appear to undermine his independence, integrity, or impartiality
-can take small gifts though
-some gifts must be reported (public testimonial, gifts from lawyers)
 
Extrajudicial Activities - fiduciary activities
-judges typically cannot be executors or administrators or trustees
-can do so for family members
-cannot interfere with judicial duties
 
Extrajudicial Activities - mediator/arbitrator
-absolutely not unless otherwise authorized by law
 
Extrajudicial Activities - practice of law
-absolutely not unless drafting stuff or giving advice for family members
-cannot be family members' lawyer
 
Extrajudicial Activities - compensation
-reasonable compensation (like for giving a speech) is fine unless it undermines independence, integrity, or impartiality
 
Extrajudicial Activities - expenses and waiver of fees
-judges can accept reimbursements for expenses (travel, food, etc) and waiver of tuition/registration expenses so long as they don't come from his employer
 
Extrajudicial Activities - reporting requirements
-must report compensation from permitted judicial activities
-must report gifts that exceed a certain dollar amount
-must report reimbursement for expenses and waivers of fees that exceed a certain dollar amount
 
state's regulations of lawyer advertising
can prohibit advertising that is false or misleading
can prohibit in-person solicitation for profit
 
test for false or misleading
1. omits material information
2. creates unjustified expectations
3. makes unsubstantiated comparisons
 
can a lawyer name sample clients in an ad?
only with their consent
 
what must an ad include?
ad must include the name and office address of at least one lawyer or law firm that is responsible for its content
 
can a lawyer pay people for recommending her?
generally no
XPN: in connection with sale of whole law practice

may pay referral fees to approved lawyer referral services
 
can a lawyer set up a reciprocal referral arrangement?
yes - with another lawyer or with a nonlawyer professional

requirements
1. not exclusive
2. client is told about the arrangement
3. arrangement does not interfere with lawyer's professional judgment as to making referrals or providing substantive legal services
4. have a definite duration
5. reviewed periodically to make sure comply with rules
 
personal solicitation
cannot initiate the contact unless
1. there is a family, close personal connection (like a friend), or prior professional connection (like a former client)
2. contact is something other than personal or live telephone contact, or real-time electronic contract
 
can a lawyer use an agent to solicit?
no, cannot use agent to solicit in a manner that the lawyer could not herself solicit
 
solicitation of free legal services
are okay - the point is that monetary gain can't be the motivation for the solicitation
 
targeted direct mail solicitations
lawyer MAY send a letter to a person known to face a specific legal problem as long as she does not have knowledge that the target does not wish to receive communications from the lawyer
 
can you say you are a specialist?
only if the certifying body is identified and if it has been approved by the state or ABA

XPN: admiralty and patent may call themselves such
 
can you say you practice in a particular field or law (or do not)
yes
as long as you do not imply you are a certified specialist
 
can a private law firm use the name of a lawyer who holds public office?
no, not during any substantial period in which the lawyer is not regularly and actively practicing with the firm
 
Who regulates the profession?
- State courts (esp. state supreme court)
- State bar associations (Mandatory & voluntary bars)
- State legislatures Cali has extensive leg. control over the bar -- the State Bar Act.
 
To what extent does the ABA regulate lawyers?
The ABA does not formally regulate the legal profession. Its ethics rules are a model code that states are free to adopt, modify or reject. BUT: the ABA exterts enormous influence over the regulation of the legal profession at both state and federal levels.
 
Explain the duty of candor in the admission process (to the bar)
a. Applicants can make no false statements (8.1(a))

b. Affirmative duty to respond to questions from authorities (8.1(b))

c. Affirmative duty to correct factual misapprehension of authorities (8.1(b)). Example, committee thinks applicant has no arrests, applicant has to tell them he's been arrested before if he has.

d. (This strong duty of truthfulness applies when lawyers are being disciplined.)
 
What are VALID consideration for C&F when determining admission?
(1) Criminal conduct
(2) Concealment of bad acts
(3) Advocating unlawful or violent overthrow of the government (Note: a lawyer may not advocate unlawful, violent or illegal overthrow of the government. Lawyers may advocate peaceful or lawful changes in government.)
(4) Taking oath of allegiance to laws and constitution
(5) Acts of moral turpitude (i.e., acts showing lack of honesty, cheating, etc.)
 
What are INVALID requirements for C&F when determining admission?
(1) Citizenship, state or federal, cannot be required.
(2) Residency cannot be required.
(3) Political views cannot be a basis for denial of admission.
 
In what ways can you be regulated after being admitted to the Bar?
(1) State Bar Discipline
(2) Professional Discipline
 
When does professional discipline for substantive violations apply?
(a) Criminal conduct
(b) Non-criminal acts of "moral turpitude"
(1) Dishonesty and fraud
(2) Anywhere in your life; not limited to turpitude in your professional life
(3) Conduct prejudicial to justice
(4) Suggesting that you possess improper influence over judges and officials
(5) Assisting judge or official violate their ethics and rules
(c) Violations of the ethics rules
(d) Secondary liability for misconduct:
(1) Assisting others to commit disciplinable offenses
(2) Using others to commit offenses for you
 
Explain mandatory reporting (8.3), the "rat rule"
(1) lawyers are required to report to the state bar any behavior raising "substantial" questions about a judge's or lawyer's fitness to practice
(2) doesn't require revelation of client confidence.
(3) doesn't apply to behaviors learned through participation in lawyer's assistance programs (aka Alcoholics anonymous)
 
Can law firms be disciplined under the ABA scheme?
No.
 
Are subordinates bound by ethics rules if supervisor tells them to do something unethical?
Yes. (5.2). However, subordinates can raise the defense that they were "following orders" of a supervisor if the supervisor's orders are a "reasonable resolution of an arguable question" of ethics ("RRAQ"). (5.2)
 
What is meant by the lawyer's duty to obey the law?
(1) Do not commit, counsel or assist criminal conduct (1.2d)
(2) Do not commit, counsel or assist fraudulent conduct (1.2d)
EXCEPTIONS:
(1) May disobey an obligation of a tribunal, but only openly and on an assertion that no valid obligation exists (4.2c)
(2) Can counsel a client to break the law to obtain standing to challenge the legitimacy of a law (like Rosa Parks)
 
What is meant by the lawyer's duty to maintain the integrity of the legal profession?
(1) Refrain from misconduct (follow the law)
(2) Engage in mandatory reporting
(3) Do not engage or facilitate the unauthorized practice of law by non-lawyers or by lawyers practicing law outside the jurisdiction where they are licensed. (5.5)
 
What is the practice of law?
The practice of law is:
- Application of legal principals and judgment;
- regarding a person's particular situation; and
- as traditionally recognized as practice of law.
 
What is permitted of non-lawyers
(1) Handling one's own legal affairs
(2) Non-lawyers acting under a licensed lawyer's supervision
(3) Non-lawyers helping others to fill out legal forms or fill in the blanks on legal documents
(4) Any activities permitted by state or federal law.
 
What are the ethical duties of a lawyer when doing law related services?
Generally there is no distinction IF: (1) the services are not distinct from the provision or legal services OR (2) the lawyer fails to inform the client that the services are not the the practice of law and that the protections of the attorney-client privilege do not apply.
 
What are the different types of public service?
(1) traditional pro bono service -- work for free or reduced fees for persons of limited means (50 hours/annually is the aspiration)
(2) Appointments. Court will sometimes ask/appoint a lawyer to to this work. Lawyers can refuse with adequate grounds.
(3) Service with a legal services organization.
(4) Law reform orgnaizations
(5) Non-profit and court-annexed legal service programs
 
What are the constitutional limitations on regulation of lawyer speech?
(1) intermediate constitutional protections
(2) government can, and does, ban false and misleading speech by lawyers
(3) government can, and does, ban lawyer speech resulting in coercion, harassment, and duress.
 
Define "communications"
Includes any form of communication whatsoever about the lawyer's availability for for-profit employment.
 
Define "advertising"
broadcasted communications about the lawyer's availability for for-profit employment-- and, being broadcast, which are presumably heard or seen by person who might need the lawyer's services and those who might not. A TV ad for a personal injury lawyer is a classic example.
 
What are the conditions for lawyer advertising
(1) cannot be false or misleading
(2) must include the name and address of the lawyer or firm responsible for the content of the advertising
(3) although the model rules are silent, many states require lawyers to maintain copies of their advertising for several years, so that the state bar can audit or investigate as needed.
 
Define "solicitations"
Communications where the lawyer is directly communicating the lawyer's availability for pecuniary employment to a person who the lawyer believes might need the lawyers' services.

2 types of solicitations:
(1) In person solicitations -- direct communications, where the lawyer speaks directly tot he potential client, or on the phone, or in real time electronic contact (BANNED unless interacting with a lawyer or a close family, personal or professional connection).
(2) Written and recorded solicitations that are not "in person" are often called "targeted mailings and recordings" and the basic ban does not apply here.
 
What are the rules regarding firm names and letterheads?
(1) can't be false or misleading
(2) trade names only permitted if they don't apply gov't, public or charitable connection
(3) geographic use of names - firms must use the same name across geography, but must indicate when lawyers in an office aren't licensed there.
(4) lawyer holding public office can't use that lawyer's name if lawyer is not practicing there, but does not apply to free legal services.
 
What is the basic rule regarding referrals by others?
Except as otherwise provided in the rules, "lawyers are not permitted to pay others for channeling professional work" to the lawyer. (7.2(5).
 
What are forbidden referrals
(1) Cappers and runners (persons paid for steering clients to the lawyer; most commonly a "per head" fee for sending personal injury clients to the lawyer)
(2) Taking government legal engagement or appointment by a judge after a political contribution made for purpose of obtaining that work. This is also called "pay to play"
(3) lawyer permits person referring business to lawyer to direct or regulate the lawyer's personal judgment in rendering the services
(4) "bare" referral fees, where the referring lawyer is paid a fee that is not proportional to the amount of work done by the referring lawyer. BUT: In cali, referring laywer can do no work and still split the fee...
 
What are some permitted referrals (and practices akin to referrals)?
(1) lawful purchase of law practice
(2) lawful non-profit referral or legal services plans approved by appropriate regulatory authorities are OK
(3) non-exclusive fully-disclosed cross-referrals with lawyer or other professionals
 
Please list out all of the lawyers' roles
(1) Litigator/Advocate
(2) Evaluator
(3) Counselor/Advisor
(4) Negotiator
(5) Supervisor/Subordinate
 
What are the rules governing lawyers as witnesses
Lawyers shall not be advocates aat trial where the lawyer is necessary witness UNLESS testimony concerns: uncontested issue, nature/value of legal services, disqualification would work substantial prejudice to client. BUT, another lawyer at the same firm can do the trial.
 
What are the requirements of the lawyer's candor to the tribunal?
(1) lawyer must reveal governing law in that jurisdiction even if the law is not favorable to the client.
(2) the lawyer shall not offer evidence that the lawyer knows to be false. IN CALIFORNIA, Minority approach: the criminal defense lawyer can allow the false evidence from a distance.
(3) the lawyer can refuse to offer evidence that the lawyer "reasonably believes" to be false (except in select cases with criminal defendants)
(4) a lawyer who offers false evidence must remedy thsoe falsehoods (In general, duty to remedy trumps duty of confidentiality. HOWEVER, in Cali, that's not the case)
 
What is the common law rule of caveat emptor?
The common law rule that does not require sellors to make full disclosure of all material facts. However, depending on the statute or a contract, a seller may have to make full disclosures to avoid being misleading.
 
To become a judicial candidate, candidates MUST
(1) act with independence, integrity, and impartiality
(2) comply with election laws
(3) approve campaign materials
(4) ensure others do not undertake prohibited activities.
 
To become a judicial candidate, candidates MAY
(1) establish campaign committee
(2) speak on behalf of candidacy
(3) publicly endorse or oppose candidates for the same office
(4) attend events sponsored by political organization or candidate
(5) obtain endorsements not from partisan political organizations
(6) contribute to political organization or candidate
 
How should judges act?
With integrity, independence and the avoidance of impropriety (Canon 1)

Judges must comply with all laws and avoid not only impropriety but also the "appearance" of impropriety because they are under constant scrutiny by the public.
 
For judges, what is the test for the appearance of impropriety
Whether the conduct would create in reasonable minds a perception that the judge violated the Rules or engaged in other conduct that reflects adversely on the judge's honesty, impartiality, temperament, or fitness to serve as a judge.
 
Can a judge make references/recommendations for individuals on their letterhead?
Yes, as long as they are based on the judge's personal knowledge and won't be seen as an attempt to exert pressure by reason of the judicial office.
 
Can a judge be a candidate for a non-judicial office?
If an elective office, the judge must resign unless the law permits.

If an appointive office, the judge need not resign.
 
How shall a judge perform the duties of judicial office?
Impartially, competently and diligently.

The elements include:
- judicial duties before all else
- perform fairly and impartially
- act without bias or prejudice
- require subordinates to refrain from bias or prejudice
- not be swayed by public opinion
- be competent and diligent
- seek resources and be punctual
- give all parties the right to be heard
- encourage settlement
- hear matters unless disqualification required
 
How should judges act towards jurors?
With Decorum, Demeanor, and Communication.

- maintain order and decorum
- no ex parte communications (not just one side)
- may obtain written advice of legal expert
- may consult with court staff or judges
- may confer separately with parties to settle
- notify parties of unauthorized ex parte communication
- not investigate on his own
- supervise staff to prevent violations
 
How should judges treat statements on pending and impending cases? Judges must...
- NOT make any public statement that might be expected to affect the outcome or impair the fairness of a matter in any court, or make any non-public statement that might interfere with a fair hearing.
- not make pledges, promises or commitments inconsistent with the impartial performance of the judicial office.
- reasonnably ensure that the court personnel abide by these principles.

Where the judge is a personal participant, the judge may make public statements/comments on proceedings.
 
Under what circumstances may a judge be disqualified
- Important: judges must disqualify (recuse) themselves in any proceeding in which their impartiality might reasonably be questioned (2.11)

Examples include:
- Bias or prejudice
- Household member has economic interest
- Knows of excessive contributions to election campaign by lawyer
- public statement promising a particular decision
- was a lawyer in the matter
- participated substantially in the matter
- was a material witness
- previously presided.
 
How can a judge seek "remittal" - waiver - of disqualifications?
Following conditions must be met:
- disclose basis
- asks lawyers and parties
- lawyers and parties agree
- agreement incorporated into decision

THIS DOES NOT COUNT IN CASES OF BIAS/PREJUDICE
 
What are a judge's economic interests that DO NOT lead to disqualification
- Mutual or common investment fund
- securities held by organization in which a judge or household member participated
- bank deposit
- issuer of government securities
 
What are impermissible extrajudicial activities?
- interfere with duties
- lead to frequent disqualification
- appear to undermine independence, integrity, or impartiality
- engage in coercive conduct
- use court resources for activities not concerning the law
- appear at a public hearing
- testify as a character witness
- accept appointment to governmental committee not concerning the law
- use nonpublic information for a purpose unrelated to judicial duties.
- belong to an organization practicing discrimination
 
Can a judge accept an appointment as a fiduciary?
No, not unless it is for a family member and if that appointment won't interfere with proper exercise of the judicial function.
 
Can a judge act as a mediator/arbiter?
No, not unless it is part of the judge's official duties.
 
Can a judge practice law?
No, but he can represent himself pro se and give legal advice/draft documents for family members.
 
Can a judge manage financial investments for self and family?
YES.
 
Can a judge serve as officer, director, general partner, or manager of a business?
No, unless the business is closely held by the judge and it is targeted towards investments of the family.
 
Can judges be compensated for extrajudicial activities?
Yes... judges can accept honoraria, stipends, fees, wages, salaries, royalties, etc... provided that the acceptance does not interfere with the judge's integrity, impartiality or independence.
 
What are reporting requirements for judge compensation?
Judge shall report, as part of public record, receipt of extra-judicial compensation, fees, etc.
 
For judges, when is reporting gifts uneccessary?
- little intrinsic value
- gifts from friends/relatives
- social hospitality
- commercial opportunities available to non-judges
- random prizes
- scholarships and fellowships available to non-judges
- media supplied for official use
- gifts to a household member with incidental benefit
 
For judges, when is reporting gifts necessary?
- gifts incidental to public testimonial
- invitations to law-related activities
- gifts from those who are likely to, or have, come before the judge.
 
What is the general rule regarding judges and their engagement with political or campaign activity?
Judges may not engage in political or campaign activity that is INCONSISTENT with the independence, integrity or impartiality of the judiciary.
 
What are the specific activities that judges/judicial candidates may not engage in
- lead a political orgnaization
- make speeches for political organization
- publically endorse or oppose candidate for office
- solicit or contribute to a political organiation or candidate
- attend or purchase tickets to events for a political organiation or candidate
- identify themselves as a candidate of a political organization
- use endorsements form a political organization
- accept campaign contributions unless authorized by 4.4
- use contributions for private benefit
- use court resources to campaign
- make a false or misleading statement
- make a statement affecting a matter in court
- comment on cases likely to come before the court.
 
Who has the burden of proof when being investigated? Are there any other duties?
The applicant. The applicant also owes a duty to cooperate in reasonable investigations by the state bar and to make disclosures relevant to his fitness to practice law.
 
What procedural rights are afforded to the bar applicant?
A bar applicant has a right to due process in committee proceedings. He has the right to know the charges filed against him, to explain away derogatory information, and to confront critics.
 
What conduct is relevant to moral character?
All aspects of an applicant's past conduct that reflect on his honesty and integrity are relevant to an evaluation of moral character.
 
What are different forms of attorney misconduct?
(1) violation of the rules of professional conduct (violate/attempt to violate, assist or induce another to violate, or use the acts of another person to commit a violation)
(2) certain criminal acts (only those that reflect adversely on honesty, trustworthiness, or fitness as a lawyer in other respects -- Must also be relevant to the practice of law.
(3) Dishonesty, fraud, deceit or misrepresentation (ANY such conduct)
(4) Conduct prejudicial to the administration of justice (includes knowingly manifesting bias based on race, sex, religion, national origin, disability, age, sexual orientation, socioeconomic, etc.)
(5) Stating or implying ability to improperly influence officials
(6) Assisting a judge in violation of judicial code (standard is knowingly assisting a judge)
 
What is the duty to report professional misconduct?
A lawyer who knows that another lawyer has violated the Rules of Professional Conduct in such a way that it raises a SUBSTANTIAL question as to the lawyer's honesty, trustworthiness, or fitness as a lawyer must report the violation to the appropriate professional authority.

EXCEPTION: No disclosure required if information is protected by confidentiality rules.
 
What happens if a lawyer fails to report misconduct?
Subject to discipline for violating the rule requiring disclosure.
 
Explain the disciplinary process for a lawyer
(1) Complaint made to state disciplinary authority (usually the state bar)
(2) Screening (committee looks for merit and either dismisses or schedules a hearing)
(3) Hearing
(4) Sanctions
 
Who is the burden of proof on in a hearing?
Burden of proof is on the party prosecuting the charge beyond a preponderance of the evidence (but less than beyond a reasonable doubt)
 
What are the most common sanctions imposed on a lawyer found to have committed professional misconduct?
(1) Private or public reprimand or censure
(2) Suspension of the lawyer's license to practice for a definite period of time
(3) Disbarment, which is the permanent revocation of the lawyer's license to practice.
(4) Others, including probation, restitution, costs of the disciplinary proceedings, and limitations on the lawyer's practice.
 
What are the effects of sanctions in other jurisdictions?
A suspension or disbarment in one jurisdiction does not automatically affect a lawyer's ability to practice in another jurisdiction. This applies to both states and federal courts.
 
What are permissible types of temporary multi-jurisdictional practices?
If a lawyer is admitted to practice in one state, and is not disbarred or suspended from practice in any state, then she may provide legal services in a second state on a temporary basis in four situations:
(1) association with local lawyer who ACTIVELY participates in the matter.
(2) special permission to practice in local tribunal granted by the tribunal, just for that matter ("pro hac vice"). Can engage in preliminary activities if he reasonably expects to be admitted pro hac vice.
(3) mediation or arbitration arising out of /reasonably related to practice in home state
(4) other temporary practice arising out of /reasonably related to practice in home state
 
What are permissible types of permanent multi-jurisdictional practices?
Lawyer may open a law office and establish a systematic and continuous practice in a different jursidiction in 2 narrowly limited situations:
(1) layers are salaried employees of only their client (e.g., in house corporate, government, etc.) Litigating would still require pro hac vice.
(2) federal or local law authorizes a lawyer to practice a restricted branch of law in the state.
 
What are the disciplinary consequences of multi-jurisdictional practice?
A lawyer who is admitted to practice in one state only, but who practices in another state, will be subject to the disciplinary rules of both states.
 
What constitutes the "practice of law"?
(1) when the activity involves legal knowledge and skill beyond that which the average layperson possesses
(2) when the activity constitutes advice or services concerning binding legal rights or remedies
(e) whether the activity is one traditionally performed by lawyers
 
Can lawyers delegate tasks to paralegals, law clerks, interns, etc.?
YES. But, the lawyer must supervise the delegated work carefully and must be ultimately responsible for the results.
 
May lawyers advise and instruct nonlawyers whose employment requires a knowledge of the law?
Yes. Examples include claims adjusters, bank trust officers, social workers, etc.
 
May lawyers help persons appear pro se?
Yes.
 
May a lawyer assist a suspended/disbarred lawyer in practicing law?
No. It IS proper to hire a suspended or disbarred lawyer to do work that a layperson is permitted to do, but that person CAN'T practice law.
 
What is the nature of the lawyer-client relationship. How is the relationship scrutinized?
It is cntractual. The lawyer is considered a fiduciary and the contract between the lawyer and the client is closely scrutinized for fairness.
 
How is the lawyer-client relationship created?
Arises when:
(1) A person manifests an intent that the lawyer provides legal services and the lawyer agrees;
(2) A person manifests an intent to have the lawyer represent him, the lawyer fails to make clear that he does not want to undertake representation, and the lawyer knows or should know that the prospective client is REASONABLY RELYING on the lawyer to provide services; or
(3) A tribunal appoints a lawyer to represent a client.
 
When is the lawyer's assent implied in the context of contracting a lawyer?
When the lawyer fails to clearly decline representation and the prospective client reasonably relies on the representation.
 
When can a lawyer decline court appointed representation?
A lawyer can only avoid an appointment for GOOD CAUSE:
(1) violation of law or disciplinary rule: if it wuld require the lawyer to violate a law or a disciplinary rule
(2) Unreasonable financial burden: if in accepting it would impose an unreasonable financial burden on the lawyer
(3) personal inability to represent client effectively: if lawyer finds client or cause so repugnant that the lawyer-client relationship would be impaired or the lawyer could not represent the client effectively.
 
Under what circumstances does a lawyer have a DUTY to reject a case?
(1) Client's motive is harassment (subject to discipline for bringing an action, conducting a defense, asserting a position, or taking other steps if the client's motive is to harass or maliciously injure any person. Thus, a lawyer must reject any case where he believes this is the client's motive)
(2) Unsupportable factual or legal position (must not take a position that is either factually or legally frivolous)
(3) Lawyer not competent (too busy or inexperienced to handle matter competently)
(4) Strong personal feelings to the point that they impair his ability to effectively represent the client
(5) Impaired mental or physical condition
 
What duties are owed to the prospective client when no lawyer-client relationship ensues?
Lawyer has a duty to: (1) protect the prospective client's confidential information (including taking on a new client in a same or related matter where confidential information would prove damaging); (2) protect any property the prospective client has given to the lawyer; (3) use reasonable care in giving the person any legal advice, such as whether the claim has merit, whether the conflicts of interest exist, and when the action must be commenced.
 
Do lawyers have an ethical obligation to help make legal services to all who need it? How can lawyers fulfill it?
YES. A lawyer can fulfill by accepting a fair share of unpopular matters or indigent or unpopular cases.
 
When should a client-lawyer agree to a fee?
The nature/amount of the fee is subject for contractual agreement between the attorney and the client. The fees must be clearly communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation.
 
Will a court enforce a contract for an unreasonably high attorney's fee or an unreasonably high amount for expenses?
No. The attorney will be subject to discipline for trying to exact such a fee or expenses.
 
What factors does a court consider in determining the reasonableness of the fee?
(1) time and labor required
(2) novelty and difficulty of the questions involved
(3) skill needed to perform the legal services properly
(4) likelihood, if apparent to the client, that the work for this client will preclude the lawyer from doing fee-paying work for others
(5) the fee customarily charged in the locality for similar legal work
(6) the amount at stake and the results obtained for the client
(7) the time limitations imposed by the client or the circumstances
(8) the nature and length of the relationship between the lawyer and the client
(9) the experience, reputation, and ability of the lawyer performing the services
(10) whether the fee is fixed or contingent
 
What are items that may/may not be billed?
May charge for: actual cost to the attorney of special services (photocopyng, calls, research, etc.)

May not charge for: Ordinary overhead expenses associated with staffing, equipping, and running attorney's office, OR above and beyond actual cost for services provided by third parties
 
What is the regulation regarding payment in advance?
It's ok, as long as the lawyer returns any unearned part of the advance if she is fired or withdras. (Note: this is NOT a retainer fee)
 
May a lawyer accept property in return for services?
Yes. Provided that it does not involve a proprietary interest in the cause of action or subject of litigation.
 
What is the policy regarding cutting off services?
IN general, it is not proper. Lawyers should not make a fee arrangement that could curtail in the middle of the relationship, leaving the client at a bargaining disadvantage.
 
How can the client pay?
Credit card, bank loans, interest-bearing promissory note from a client.
 
What is a contingent fee?
lawyer collects only when the matter is resolved in the client's favor. Often expressed as a percentage of the client's eventual recovery in the case.
 
When is a contingent fee prohibited?
(1) Criminal cases
(2) Domestic relations cases (UNLESS it is to recover past due alimony or support decree)
 
What is the standard for a contingent fee?
The fee must be REASONABLE.

A lawyer must not use a contingent fee when the facts of the case make it unreasonable to do so.
 
How are contingent fees arranged?
IN writing, signed by the client, stating:
(1) how the fee is to be calculated
(2) what litigation and other expenses are to be deducted from the recovery;
(3) whether deductions for expenses will be made before or after the contingent fee is calculated; and
(4) what expenses the client must pay, whether or not she wins the case.

At the END, the lawyer must give the client a written statement showing the outcome of the case, the remittance to the client, and how the remittance was calculated.
 
What's the general point about fee disputes?
A lawyer, when seeking compensation from a client, may not employ collection methods forbidden by law, improperly use confidential information, or harass a client.
 
What are some remedies for fee disputes?
(1) Liens (any recovery obtained for the client serves as security for the lawyer's fees. Many states also permit lawyer to exercise a retaining lien, under which he can retain documents, funds, and property of client until fee is paid)
(2) Retention of funds in trust account (lawyer can retain the disputed fee amount in a client trust account until the dispute is resolved)
(3) Arbitration or mediation (Bar associations have arbitration or mediation services to help lawyers resolve fee disputes with their clients)
(4) Lawsuit
 
What conditions must be met in order to allow fees to be split among lawyers at different firms?
1. The fee is in proportion to the services rendered by each lawyer or joint responsibility is assumed for the representation;
2. the client agrees in writing to the fee splitting agreement; and
3. the total fee charged must be reasonable
 
May a lawyer pay someone to recommend him?
NO
 
Can you fee split with a lawyer who neither assumes responsibility for a matter nor does any work on the matter?
NO
 
Under what cases is a reciprocal referral arragnement with another lawyer or non-lawyer professional OK?
Must not be exclusive AND lawyer's client must be informed of the existence and nature of the arrangement.
 
Who defines scope of representation?
Defined and limited by agreement between the lawyer and client. In absense of an agreement, lawyer should pursue client's objectives in all reasonable available legal ways.

What must lawyer not advise client of crime/fraud, but may discuss the legal consequences of the proposed course of action wth the client.

Lawyer may also take actions that are IMPLIEDLY AUTHORIZED to carry out the representation.
 
What matters must a lawyer abide by:
(1) whether to accept a settlement offer
(2) what plea to enter in a criminal case
(3) whether to waive a jury trial in a criminal case
(4) whether the client will testify in a criminal case
(5) whether to appeal
 
When is it OK for a lawyer to limit the scope of the representation?
If the limitation is reasonable under the circumstances, and if the client gives informed consent.
 
What should a lawyer do if lawyer and client cannot resolve their disagreements?
A lawyer may withdraw or the client may fire the lawyer.
 
What should a lawyer do if the client expects assistance that violates a law or legal ethics rule? what if the client insists?
Lawyer must explain why she can't do what the client expects.

If client insists, then the lawyer MUST withdraw.
 
What should a lawyer do if he discovers client has begun illegal and ongoing course of action
NOT assist in the wrongdoing

Withdraw (and maybe withdraw noisily)
 
Under what circumstances should the lawyer take reasonable actions to protect client?
When client has diminished capacity and faces a substantial risk of physical, financial, or other harm.

The lawyer may consult with people or entities that can protect a client, and when appropriate, seek the appointment of a guardian/surrogate. (May disclose confidential information if necessary.)
 
What should a lawyer do when a person has seriously diminished capacity and faces imminent and irreparable harm to her health, safety or financial interest?
Lawyer may take legal action on her behalf. BUT: lawyer cannot act until the person (or person acting on her behalf) has consulted the lawyer, and the lawyer reasonably believes the person has no other representative available. Should be limited to what is reasonably necessary to avoid imminent and irreparable harm.

Generally, no compensation is received for this.
 
What is the policy regarding lawyers and "informed consent"?

What is informed consent?
Lawyers must promptly inform client of any decision/circumstance that requires the client's informed consent.

Informed consent means that the client agrees to a proposed course of conduct after the lawyer has sufficiently explained the material risks and reasonable alternatives.
 
What is the rule regarding status/matter?

What must a lawyer do if he has to make an immediate decision?
(1) Lawyer must kepe client reasonably ifnormed about he status of the matter and about the means employed to accomplish the client's objectives.

(2) If an immediate decision, lawyer does not need to consult with client before acting.
 
What should the lawyer do when the client makes a reasonable request for info?
Respond promptly.
 
What should the lawyer do if the client asks him to do something illegal or unethical?
Consult with client and explain why he can't do what the client wants.
 
If the client and the lawyer have a regular, established relationship concerning routine matters, can they agree on limited/occasional reporting?
Yes.
 
Under what circumstances is it ok for the lawyer to delay the transmission of info to a client>
(1) If the lawyer believes that the client would likely react imprudently to an immediate communication.

(2) A court rule or order may forbid a lawyer from sharing certain information with the client, and the lawyer must comply.
 
What are ways that the attorney-client relationship can end?
(1) The client can FIRE the lawyer
(2) In some situations, the lawyer MUST withdraw
(3) in some situations, the lawyer MAY withdraw
 
Is a client able to fire an attorney? What happens with fees?
YES.

The client is liable to the attorney for the reasonable valye of the work the attorney did before being fired. The attorney can't be paid more than was provided for by express contract.

This remains the case even if the lawyer is being paid on contingency -- can be paid up to the amount listed in the contingency, but no more, at the point that the contingency arises.
 
Under what circumstances would permission for substitution of attorneys be denied?
When it would cause undue delay or disruption.
 
Under what circumstances MUST the attorney withdraw?
(1) If the attorney's mental/physical condition materially impairs the attorney's ability to continue representing the client
(2) If to continue representation requires attorney to violate a law or a disciplinary rule.
 
Under what circumstances MAY an attorney withdraw from representing a client without adverse consequences on the client's interests or if the client consents?
In general, an attorney may withdraw from representing a client FOR ANY REASON if it can be done without adverse effect on the client's interests or if the client consents.
 
Under what circumstances MAY an attorney withdraw DESPITE an adverse impact on the client's intersts?
(1) The client persists in criminal or fraudulent conduct
(2) Client has used attorney's services to commit past crime or fraud
(3) Client's objective is repugnant or against lawyer's beliefs
(4) Client breaks promise to attorney
(5) Financial hardship for attorney
(6) Client will not cooperate
(7) Other good cause
 
What are the attorney's duties upon termination of representation
Must comply with local laws that require notice to or permission of the tribunal before withdrawal.

Must take reasonable steps:
(1) providing client with reasonable notice of the withdrawal
(2) providing client with the time to obtain another attorney
(3) refunding attorney's fees paid in advance and not yet earned and expense advances not yet spent
(4) returning all papers and property to which the client is entitled
 
When deciding whether a lawyer has the KNOWLEDGE and SKILL to handle a matter, what factors should be considered?
(1) complexity and specialized nature of the matter;
(2) lawyer's general experience
(3) lawyer's training and experience in the field in question;
(4) the prepartion and study the lawyer is able to give the matter; and
(5) whether it is feasible tot refer the matter to, or associate or consult with, a lawyer of established competence in the field

(note: lack of legal knowledge is really a failure to seek it)
 
Can a lawyer accept representation without competence?
Yes, but only if the requisite competence can be achieved by reasonable preparation.
 
What should a lawyer do if there is an emergency situation but he doesn't have the skill required?
If referral to or consultation with another lawyer is impractical, a lawyer may assist. However, assistance should not exceed reasonably necessary amount.
 
What is the standard for thoroughness and preparation
A lawyer must inquire into and analyze the facts and the legal elements of the problem, applying proper methods/procedures.
 
Should lawyers seek to maintain competence through ongoing legal education?
Yes.
 
What is the diligence/promptness standard?
A lawyer must act with reasonable diligence and promptness in representing a client.
 
Define diligence
A lawyer should pursue a matter on client's behalf despite opposition, obstacles and personal inconvenience. Must show a ZEAL OF ADVOCACY on client's behalf.

BUT: No need to be uncivil AND lawyer must control workload so that each matter is adequately handled.
 
What is the standard for the completion of the matter?
Once a lawyer agrees to handle a matter for a client, the lawyer must see the matter through to completion.

If there is any doubt about this, the lawyer should clarify it, preferably in writing.
 
What should a lawyer do if there is any doubt as to whether there is a lawyer-client relationship?
Take affirmative steps to terminate the relationship or act with the required diligence.
 
What steps should a solo practitioner take in case of death/disability?
Designate another competent lawyer to review the clients' files, notify the clients of the circumstances, and determine whether protective action is needed.
 
How many violations is sufficient to impose discipline?
Just one.

Special circumstances should be considered when imposing the sanction, but not when determining whether there has been a violation. (even when a lawyer has a personal crisis, he must take reasonable steps to put cases on hold)
 
How does a malpractice action differ from a disciplinary action?
(1) in a malpractice action, the forum is a civil court, not a disciplinary tribunal
(2) in a malpractice action, the attorney's adversary is an injured plaintiff, not the state bar
(3) the purpose of a malpractice action is to compensate the injured plaintiff, not to punish the attorney, and not to protect the public from future wrongs.
 
If the lawyer violates a legal ethics rule, does that automatically mean that she has also committed legal malpractice?
No. Nor is there a presumption that she has committed malpractice.

however, courts do consider an ethics violation as relevant evidence that the lawyer's conduct was below the appropriate standard of care.
 
What are the various theories of malpractice liability?
(1) Intentional tort
(2) Breach of fiduciary duties
(3) Breach of contract
(4) Negligence ("unintentional tort") (e.g., duty of due care)
 
To whom does a lawyer owe a "duty of due care"?
1. to a client. (ambig. question as to when that lawyer-client relationship is established, construed in favor of the client)

2. To third parties: any third party who was intended to benefit by the attorney's rendition of legal services is owed a duty of due care.
 
What is the standard of care owed by a lawyer to a client?
The competence and diligence normally exercised by attorneys in similar circumstances (if attorney represents that he has greater competence, then he is held to that higher standard)
 
Under what circumstances is a lawyer NOT liable for neglignece?
"Mere errors in judgement" if the judgment was well-informed and reasonably made.

If the lawyer has done research, gone to the library and identified what he needed to find through "standard research tequniques and sources"

If the lawyer passes on the case to a specialist because he doesn't have the competence for the case.


Anything else is a BREACH of the duty of care.
 
What is the standard of causation in professional negligence cases?
Plaintiff must show that defendant's conduct was the legal cause of the plaintiff's injury.

The injury would not have happened BUT FOR the defendant's negligence. it is fair to hold the defendant liable for certain injuries that result.
 
How does the plaintiff in a professional negligence case establish damages?
They must prove them. P can collect for direct losses AND for losses that are indirect but foreseeable.
 
Can a lawyer be responsible for the negligence of others?
Yes. The ordinary principles of respondeat superior apply in suits for professional negligence (e.g., negligence by secretary, law clerk, etc.)
 
What is one strategy to mitigate malpractice?
Malpractice insurance.
 
can a lawyer limit lawyer's liability to a client in an agreement with client?
Not unless the client is independently represented in making the agreement.
 
How should a lawyer settle a malpractice claim with an unrepresented client or former client?
First, advise that person, in writing, to seek advice from an independent lawyer about the settlement and giving that person time to seek that advice.
 
what is the general rule regarding a lawyer who has breached a duty to his client with monetary effect?
He cannot escape discipline by reimbursing the client for any loss.
 
What is the duty of confidentiality?
A lawyer must not VOLUNTARILY reveal any information relating to the representation of the client.

A lawyer may, however, reveal such information if the client gives INFORMED CONSENT, or if the disclosure is IMPLIEDLY AUTHORIZED to carry out the representation.
 
What kind of information is covered in the duty of confidentiality?
Covers more kids of information than the atorney-client privilege. Covers not only confidential infromation, but ANY OTHER INFORMATION that the attorney obtains relating to the representation of the client.
 
Under what circumstances can an attorney be disciplined for breaching the attorney-client privilege?
For disclosing a client's condidential information without the client's informed consent.

For using confidential information to the disadvantage of a client, former client, or prospective client, without the affected client's informed, written consent.
 
What is the basic rule of the attorney-client privilege?
Prohibits a court/tribunal from compelling the revelation of confidential communications between an attorney and client (agents included) if the subject of the communications concerns the professional relationship between the attorney and the client.
 
Elements of attorney-client privilege
a. communication
b. intended to be confidential
c. client holds privilege
d. indefinite duration
 
Does the attorney client privilege cover preliminary communications?
yes, even if no attorney client relationship forms.
 
To whom does the attorney-client privilege extend if the client is a corporation?
To the high ranking corporate officia.

Can also extend to other corporate employee if following conditions are met:
(1) the employee communicates with the lawyer at the direction of the employee's superior
(2) the employee knows that the purpose of the communication is to obtain legal advice for the corporation; and
(3) the communication concerns a subject within the scope of the employee's duties to act for the corporation.`
 
Does attorney client privilege cover the mechanical details of the relationship?

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