When may an attorney refuse a court appointed case?
1. If accepting the case would violate the law.
2. If it would create an unreasonable financial burden.
3. If the attorney was personally opposed to representing the client due to the repugnant nature of his/her clients case.
When might a lawyer be subject to disciplinary action?
- 1. Attempting to violate a disciplinary rule;
- 2. Assisting or inducing another person to violate a disciplinary rule;
- 3. Using the acts of another person to violate a disciplinary rule;
- 4. Engaging in conduct that is dishonest, untrustworthy, or unfit to practice law;
- 5. Engaging in any conduct involving fraud, deceit, or misrepresentation;
- 6. Conduct that is prejudicial to the administration of justice;
- 7. Stating or implying an ability to improperly influence a government agency or official; or
- 8. Knowingly assisting a judge in conduct that is illegal or violates the code of judicial conduct.
When does an attorney have a duty to report professional misconduct?
If the observed action raises a substantial question as to the other lawyer's honesty, trustworthiness, or fitness as a lawyer.
Describe the disciplinary process
After a complaint is filed, if it is not dismissed, the lawyer is requested to respond to the charges, and the grievance committee will investigate the charges and may hold a hearing on the matter. At the hearing, the accused lawyer is entitled to procedural due process. If discipline is imposed, the lawyer is entitled to review of the decision by the state's highest court.
What law governs disciplinary proceedings?
If a lawyer's alleged misconduct is related to a proceeding that is pending before a tribunal, the ethics rules of the jurisdiction in which the tribunal sits will be applied, unless the tribunal's rules provide otherwise. For any other conduct, the rules of the jurisdiction in which the conduct occurred will apply, but if the predominant effect of the conduct is in some other jurisdiction, that jurisdiction's rules will apply.
Do other states accept disciplinary action by another state?
Sister states accept disciplinary action by one state as conclusive proof of a lawyer's misconduct, but are free to impose their own sanctions. However, each federal court makes an independent evaluation, accepting as competent evidence the lawyer's discipline by a state.
Most jurisdictions have proceedings for incapacitated lawyers (e.g., those suffering from substance abuse), which result in the lawyers' suspension from the practice of law. Diversion into a rehabilitation program is a common procedure used for possible reinstatement.
UNAUTHORIZED PRACTICE AND MULTI-JURISDICTION PRACTICE
Permissible Types of Temporary Multi-Jurisdictional Practice
- a. Association with Local Attorney on a case;
- b. Special Permission to Practice in Local Tribunal;
- c. Mediation or Arbitration Arising Out of Practice in Home State (ex. Arbitration Clause in K);
- d. Other Practice Arising Out of Practice in Home State
Permissible Types of Permanent Multi-Jurisdictional Practice
- i. if the lawyer is a salaried employee of her only client (in-house counsel), she may render legal services to her employer, but to litigate must ask permission pro hac vice;
- ii. when the legal services are authorized by federal or local law.
Consequence of Practicing in a state in which one is not licensed?
Subject to sanction by both states.
Consequences of Practicing w/out a license?
Subject to injunction, contempt, and criminal prosecution.
THE LAWYER-CLIENT RELATIONSHIP
When is the lawyer-client relationship established?
When there is implied assent and reasonable reliance.
When can a lawyer seek to avoid court appointed cases?
- i. To represent the client would require the lawyer to violate a law or disciplinary rule;
- ii. Representing the client would impose an unreasonable financial burden on the lawyer;
- iii. The lawyer's personal feelings would prevent her from representing the client effectively.
When does an attorney have a duty to reject certain cases?
- a. The client's motive is to harass or maliciously injure a person;
- b. The case presents a factually or legally frivolous position;
- c. The lawyer is incompetent (or too busy) to handle the matter;
- d. The lawyer's strong personal feelings may impair his ability of effective representation; or
- e. The lawyer's mental or physical condition would materially impair the representation.
What duties does an attorney owe to a person who was interviewed but ultimately did not hire him?
- i. Protect the person's confidential information, including declining representation of others in the same or a related matter;
- ii. Protect the prospective client's property; and
- iii. Use reasonable care in giving the person any legal advice, e.g., whether the claim has merit.
Ethical Obligation to Accept Unpopular Cases
A lawyer should accept a fair share of unpopular matters or indigent or unpopular clients.
When should an attorney agree with a client on a fee?
Early on in the lawyer-client relationship.
Factors in determining an unreasonable attorneys fee?
- i. The time and labor required;
- ii. The novelty and difficulty of the questions involved;
- iii. The skill required;
- iv. Whether the lawyer is precluded from other work;
- v. What other lawyers in the community charge;
- vi. The amount at stake and the results obtained;
- vii. Time limitations;
- viii. The experience and reputation of the attorney;
- viiii. Whether the fee was fixed or contingent.
Items that may NOT be billed for:
i. Overhead expenses (unless a reasonable amount is stipulated to in advance).
May an attorney stipulate payment in advance of services?
Yes, a lawyer may require her fee to be paid in advance, but she must refund any unearned part of the advance if she is fired or withdraws. A lawyer need not return a true retainer fee (i.e. money paid solely to insure the lawyer's availability).
May an attorney accept property in lieu of money for services rendered?
Yes, provided that this does not involve a proprietary interest in the cause of action or subject of litigation.
May an attorney make a fee agreement that could cut off services in the middle of the relationship?
May an attorney accept payment in credit form?
Yes, he may accept a credit card payment, finance fees through bank loans, or pay by an interest-bearing promissory note. in some jurisdictions an attorney's lien may be used.
Under what conditions is an attorney prohibited from utilizing a contingency fee?
In criminal or domestic relations cases where the contingency is based on the securing of a divorce, the amount of alimony or support, or the amount of a property settlement.
Must a contingency fee be in writing?
Yes and signed by the client. The writing must spell out how the fee is to be calculated, what litigation and other expenses are to be deducted from the recovery, whether deductions for expenses will be made before or after the fee is calculated, and what expenses the client must pay.
What remedies does an attorney have to collect a fee?
- i. File suit to recover fee;
- ii. Common law or statutory charging lien;
- iii. Sometimes a retaining lien in which fees are garnished.
When may an attorney split a fee with an attorney outside his firm?
- 1. The total fee is reasonable;
- 2. The split is in proportion to the services performed by each lawyer;
- 3. The client agrees to the split in writing.
Are referral fees permitted?
No, but a reciprocal referral arrangement in which the lawyer agrees to refer clients to another lawyer or non-lawyer, provided the clients referred are informed of the arrangement.
What decision may a client make that an attorney must abide by?
- a. Whether to accept a settlement offer;
- b. What plea to enter in a criminal case;
- c. Whether to waive a jury trial in a criminal case;
- d. Whether the client will testify in a criminal case; and
- e. Whether to appeal.
Under what circumstances might an attorney limit the scope of his representation given the clients consent?
- i. When disagreements exist between the lawyer and client about the means to be used to reach the client's objectives;
- ii. When the client insists on the lawyer's assistance in violating a law or legal ethics rule, and;
- iii. When a lawyer discovers that a client has begun an illegal course of action and the conduct is continuing.
What are a lawyer's duties in representing a client with a diminished capacity?
To try and maintain a normal lawyer-client relationship with the client even if the client has a guardian or other representative.
When MUST an attorney communicate with the client?
A lawyer must:
- i. Promptly inform the client of any decision that requires the client's informed consent;
- ii. Keep the client reasonably informed about the status of the matter and the means to be used to accomplish the client's objectives;
- iii. Respond promptly when a client makes a reasonable request for information, and
- iv. Consult with the client if the client expects the lawyer to do something illegal or unethical.
When should an attorney take steps to protect a client with diminished capacity?
When the client has a diminished capacity and faces a substantial risk of physical, financial, or other harm, the lawyer may take reasonable actions to protect the client, including seeking the appointment of a guardian. Under these circumstances, the lawyer has implied authority to reveal the client's confidential information, to the extent necessary to protect the client.
Emergency Legal Assistance to Nonclient with Seriously Diminished Capacity
When a person with seriously diminished capacity facing imminent and irreparable harm to her health, safety, or financial interest consults a lawyer, that lawyer may take legal action on behalf of the person even if a lawyer-client relationship has not been established if the lawyer reasonable believes the person has no other representative.
COMMUNICATING WITH THE CLIENT
Four situations in which the attorney MUST communicate with his/her client:
- Promptly inform the client of any decision that requires the client's informed consent;
- Keep the client reasonably informed about the status of the matter and the means to be used to accomplish the client's objectives;
- Respond promptly when a client makes a reasonable request for information; and
- Consult with the client if the client expects the lawyer to do something illegal or unethical
When might an attorney withhold information from his/her client?
- When the client would likely react imprudently to an immediate communication; or
- If a court rule or order forbid him/her from sharing info. w/a client
Three ways in which the lawyer-client relationship can be terminated prematurely?
- If the client fires the lawyer (must get permission by court);
- Mandatory Withdrawal;
- Permissive Withdrawal
When MUST an attorney withdraw representation of a client?
- If the attorney's mental or physical condition would make it unreasonable for him to continue representing the client; or
- Continued representation would require the attorney to violate a law or disciplinary rule
When may an attorney permissively withdraw from representation?
For any reason if withdrawal does not have a material adverse effect on the client's interest or the client consents.
What are an attorney's duties upon termination of representation?
- He must give enough notice to allow the client to find alternative representation;
- When an attorney withdraws or is fired, the attorney must refund any advance on fees not yet earned and expenses not yet spent, and must turn over all papers and property to which the client is entitled.
What does becoming competent through preparation mean?
A lawyer may accept representation if the requisite competence can be achieved by reasonable preparation.
Can a lawyer not competent in the field assist a client in an emergency?
Yes, but the assistance should not exceed what is reasonably necessary to meet the emergency.
What must a lawyer do to maintain competence in his profession?
CLE and other individual efforts.
What due diligence does an attorney owe his client once he begins representation?
- Act on the client's behalf with reasonable diligence and promptness;
- Act with dedication and zeal, taking whatever lawful and ethical steps are available to vindicate the client's cause;
- Pursue the matter to completion; and
- Either terminate the relationship or act with the required diligence if there is any doubt as to whether a lawyer-client relationship exists.
Is a single violation of the rules sufficient to impose discipline?
Yes, an attorney must put his cases on temporary hold if necessary due to personal circumstances.
Three ways a malpractice action differs from a disciplinary matter:
- The forum in a malpractice action is civil court, not a disciplinary tribunal;
- In a malpractice action, the lawyer's adversary is an injured plaintiff, not the state bar; and
- The purpose of a malpractice action is to compensate the injured plaintiff, not to punish the lawyer or to protect the public from future wrongs.
How does the court view an ethics violation?
As relevant evidence of potential malpractice.
Under what legal theories might one sue an attorney for malpractice?
- Intentional tort;
- Breach of fiduciary duties (loyalty, confidentiality, honest dealing);
- Breach of K;
Elements of a Negligence malpractice action:
- A duty of due care (the competence and diligence normally exercised by attorneys in similar circumstances, unless the attorney had promised a higher duty of care);
- A breach of that duty (An attorney is expected to do reasonably competent legal research; if the answer to a legal question could have been found using standard research techniques, the attorney's failure to find it is a breach of the duty of due care. Furthermore, if a reasonably prudent attorney would have referred a difficult matter to a legal specialist, a general practitioner's failure to do so can be a breach of the duty of care);
- Legal Causation (A malpractice P must prove that the injury would not have happened but for the defendant's negligence, and that it is fair under the circumstances to hold the D liable for unexpected injuries or for expected injuries that happened in unexpected ways);
- Damages (The P can recover for direct losses and indirect but foreseeable losses)
When can an attorney be held liable for the negligence of others?
Injuries cause by the negligence of a legal secretary, law clerk, or other person acting within the scope of his employment. Each partner in a law firm is liable for every other partners negligence committed in the ordinary course of partnership business.
Must an attorney carry malpractice insurance?
NO, but most prudent attorneys do.
May an attorney K with a client to limit malpractice liability?
NO, unless the client is independently represented in making the K.
How must an attorney go about settling a malpractice claim?
An attorney must advise the person, in writing, to seek independent advice about the settlement and giving that person time to seek that advice.
Might a lawyer escape discipline for reimbursing a client for any loss?
What is the duty of confidentiality?
As a general rule, a lawyer must not reveal any information relating to the representation of a client. Unless informed consent is given.
What kinds of information does the attny-client priv. cover?
Only confidential communications between an attorney and client or their respective agents. In contrast, the ethical duty covers privileged communications plus any other information the attorney obtains relating to the representation, no matter what the source.
How does Attny-Client Priv. relate to the potential client?
A "client" is a person or entity that seeks legal services from an attorney. The privilege covers preliminary communications leading up to an attorney-client relationship, even if no such relationship ultimately develops.
How does the Attny-Client Priv. relate to a corporate client?
Covers communications between the lawyer and another corporate employee if three conditions are met:
- The employee communicates with the lawyer at the direction of the employee's supervisor;
- The employee knows that the purpose of the communication is to obtain legal advice for the corporation; and
- The communication concerns a subject within the scope of the employee's duties to act for the corporation.
What information is not covered by the attorney-client privilege?
- The client's identity;
- the fee arrangement.
Are preexisting documents and things subject to the attorney-client privilege?
Not if it would be discoverable in the client's hands
Is information related to a crime subject to the attorney-client privilege?
No, an attorney in possession of such an instrument must hold it long enough to get the requisite info. needed to represent the client from it and then turn it over to the proper authorities.
What constitutes "Confidential" information?
To be a protected communication, it must have been made by a means not inteded to disclose the communicated information to outsiders. Confidentiality is not destroyed by the presence of a third party who is present to aid the attorney client relationship, and an eavesdropper can be prevented from testifying about a privileged communication. HOWEVER, the presence of a third party who is not present to further the attorney-client relationship destroys the privilege.
Who can waive the attorney-client privilege?
The client is the one who can claim or waive the privilege. Waiver will occur when there is a failure to claim the privilege when there is a chance to do so or when there is an intentional revelation of a significant part of the privileged communication.
What is the duration of the A-C privilege?
The A-C privilege continues indefinitely, surviving termination of the relationship and even the death of the client.
What are the exceptions to the A-C privilege?
- The client seeks the attorney's services for future crime or fraud;The communication is relevant to an issue of breach of the duties arising out of the A-C relationship;Civil litigation arises between two persons who were formerly joint clients of the attorney;
- The attorney is asked for evidence about the competency or intent of a client who has attempted to dispose of property by will or inter vivos transfer.
When does the ethical duty of confidentiality apply?
In every context in which the attorney-client privilege does not apply.
Exceptions to the ethical duty of confidentiality:
- Client's informed consent;
- Information regarding a dispute concerning attorney's conduct;
- Disclosure to obtain legal ethics advice;
- Disclosure required by law or court order;
- Disclosure to prevent death or substantial bodily harm (use discretion, not necessary);
- Disclosure to prevent or mitigate substantial financial harm (a lawyer may reveal the client's confidential information to the extent necessary to prevent mitigate the client from committing a crime or fraud that is reasonably certain to result in substantial financial harm to someone)
In the event of a Conflict of Interest, to whom does an attorney owe duty first?
The attorney must be loyal to his/her client.
Consequences of taking a case when there is either a COI prior to taking it, or that arises during the course of the case?
- If a COI is apparent before a lawyer takes on a client's matter, the lawyer must not take it on.
- If a conflict becomes apparent after the lawyer has taken on the client's matter, the lawyer must withdraw.
- Disqualification as counsel in litigated matter;
- Professional discipline, and;
- Civil liability for legal malpractice.
COI in a firm setting:
When one attorney in a firm has a conflict it is said to be imputed on the remaining members of the firm.
What constitutes a FIRM?
- They have a formal agreement;
- They hold themselves out as if they practice as a firm;
- They share their revenues and responsibilities;
- They have physical access to each other's client files;
- They routinely talk amongst themselves about the matters they are handling, and;
- The purpose of the particular conflict rule would be served by imputing one lawyer's conflict to other lawyers in the group.
Concurrent Conflicts of Interest
A lawyer must not represent a client if:
- The representation of one client will be directly adverse to another client: or;
- There is a significant risk that the representation of one client will be materially limited by the lawyer's own interest or by the lawyer's responsibilities to another client, former client, or third person.
Under what circumstances may an attorney go ahead and represent a client with a conflict?
- If the lawyer reasonably believes that he can competently and diligently represent each affected client;
- The representation is not prohibited by law;
- The representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation; and
- Each affected client gives informed, written consent.
What is meant by "informed consent"?
That each affected client must understand how the conflict can harm him.
Can a client revoke previously granted consent?
Yes, almost always.
May an attorney represent Co-Parties in Civil Litigation?
A lawyer may represent two plaintiffs or two defendants whose interests are potentially in conflict if:
- The lawyer concludes that she can effectively represent both clients, and;
- The lawyer obtains the informed, written consent of both clients.
May an attorney rep. two clients with inconsistent legal positions in two unrelated cases?
No, absent written informed consent.
In class action suits, do unnamed members of a class count as potential conflicts?
May an attorney represent multiple clients in non-litigation matters?
Depends on the circumstances... ask how likely it is that a conflict will arise.
When can an attorney handle conflicts in non-litigation matters?
- When the lawyer concludes that she can effectively represent both clients, and;
- The lawyer obtains the informed, written consent of both clients.
Confidentiality problem with joint clients?
Yes, information shared by one is available to the other.
Under what conditions might an attorney enter into a business transaction with a client that is adverse to the client?
- The terms of the business transaction are fair to the client;The terms are fully disclosed to the client in writing, expressed in a manner that the client can reasonably understand;
- The client is advised in writing that he should get the advice of an independent lawyer about the arrangement before entering into it; and
- The client gives informed consent, in writing that the client signs.
May an attorney solicit a substantial gift from a client who is not the lawyer's relative?
No. A lawyer may, however, accept a small gift from a client, such as a token of appreciation or an appropriate holiday gift. In the event that a substantial gift is accepted, it may be voidable due to undue influence.
May an attorney prepare a legal instrument that creates a substantial gift?
A lawyer must not prepare a legal instrument in which the client gives the lawyer or his relatives a substantial gift, except when the client is a relative.
A lawyer is not prohibited from seeking to have himself or his law partner or associate named as executor of an estate or counsel to the executor or to some other fee-paying position. However, the general conflict of interest principles do prohibit such efforts if the lawyer's advice is tainted by the lawyer's self-interest.
Acquiring Literary or Media Rights Concerning a Client's Case
A lawyer must not acquire literary or media rights to a story based in substantial part on the lawyer's representation of a client. However, a lawyer may acquire such rights after the client's legal matter is entirely completed, including appeals.
May an attorney financially assist a client in litigation?
A lawyer must not financially assist a client whose litigation is pending or contemplated.
May an attorney advance litigation expenses?
A lawyer may advance court costs and other litigation expenses on the client's behalf, and repayment may be contingent on the outcome of the case.
May an attorney pay costs and expenses for indigents?
A lawyer may pay the court costs and litigation expenses for an indigent client, without any provision for repayment.
Under what conditions may an attorney assist in the creation of an aggregate settlement agreement for several co-parties?
- The clients come to an agreement about how the aggregate sum will be shared;
- The lawyer discloses to each client all terms of the sharing agreement.Each client gives informed, written consent.
Under what conditions may an attorney make an agreement witha client that waives or limits the attorny's liability for legal malpractice?
Only if the client consents and is independently represented.
May a lawyer settle a malpractice claim?
Only if the lawyer first advises the client in writing to seek the advice of an independent lawyer regarding the settlement. Arbitration agreements are fair game.
Under what conditions may a lawyer accept monies from a third party?
- The client gives informed, written consent;
- The third person does not interfere with the lawyer's judgment in representing the client, and;
- The arrangement does not compromise the client's confidential information.
Opposing Former Client - Confidential Information
A lawyer who has confidential info. to a former client, cannot use it to his disadvantage unless the former client consents in writing.
Opposing Former Client in Substantially Related Matter
Absent informed, written consent of the former client, a lawyer must not represent a client whose interests are materially adverse to those of the former client in a matter that is "substantially related" to a matter in which the lawyer represented the former client.
CONFLICTS WHEN PRIVATE LAWYERS CHANGE JOBS
(Two principles apply)
- DISQUALIFICATION OF LAWERS NEW FIRM
- (New firm must not knowingly represent a person in the same or related matter in which the switching lawyer, or firm had previously represented a client whose interests are materially adverse to that person and about whom the switching lawyer has acquired confidential info material to the matter... unless written informed consent)
- DISQUALIFICATION OF FORMER FIRM
- (Former firm is not prohibited thereafter from representing a person with interests materially adverse to those of a client formerly represented by the switching lawyer, unless: (i) the matter is the same or related to that in which the switching lawyer represented the client, and (ii) any lawyer remaining in the former firm has confidential information relating to the matter).
Who may an attorney who switched into private work after working for the government represent?
Must not represent a private client in a matter in which the lawyer participated personally and substantially while in government service, unless the government agency gives informed, written consent.
If a lawyer is disqualified by the above rule, the other lawyers in her firm are also disqualified unless:
- The former government lawyer is timely screened off from the case;
- The former lawyer is not apportioned a part of the fee earned in the case; and
- Written Notice is given to the government agency to enable it to make sure that the above conditions are met.
Subsequent Use of Info Gained During Gov Service
A government lawyer who receives confidential government information about a person must not later represent a private client whose interests are adverse to that person, when the information could be used to harm that person.
If an attorney goes to work for the government after working in the private sector:
Ordinary Conflict Rules Apply
May a government attorney negotiate for private employment with an attorney on the other side?
No, a government attorney working personally and substantially on a matter, must not negotiate for private employment with any party or lawyer who is involved in that matter.
What rules should one follow when switching from a judicial service to private practice?
The general rule is that a lawyer must not represent a private client in a matter in which the lawyer previously participated personally and substantially while serving as a judge or other adjudicative officer, or arbitrator, mediator, or other third-party neutral, unless all parties to the proceeding give informed, written consent.
(of the remaining members of the firm) can be avoided if:
- The lawyer is timely screened off from the matter;
- The lawyer is not apportioned any part of the fee earned in the matter; and
- Written notice is given to the parties and the appropriate tribunal so that they can ensure that the above conditions are met.
How must a law clerk go about gaining private employment?
A law clerk to a judicial officer must notify the officer before negotiating for private employment with a party (or the attorney for a party) in a matter in which the law clerk is participating personally and substantially.
Lawyer's Duty Concerning Confidential Information Involving Prospective Clients?
The A-C privilege protects confidential communications between a lawyer and a prospective client. The ethical duty of confidentiality also applies to discussions between a lawyer and prospective client. Thus, the lawyer must not reveal or use information learned during those discussions, unless an exception to the duty of confidentiality applies.
Can a lawyer who simply interviewed one client represent another client with adverse interests?
Not if the information could significantly harm the prospective client. This is imputed to others in a firm.
How to overcome prospective client conflict?
Obtain informed, written consent from the affected client and the prospective client. OR
- Demonstrate that the lawyer took care to avoid exposure to any more confidential information than was necessary to determine whether to represent the prospective client; and
- That the disqualified lawyer is timely screened from any participation in the matter and will not share the fee; and
- Give written notice to the prospective client.
What is the duty of loyalty owed by an attorney to a client organization?
A lawyer owes a duty of loyalty to the organization, not to the people who are its constituents.
Where does an attorneys duty lie when there is a conflict between an Organization and one of its Constituents?
To the organization!
May an attorney represent both an organization and one of its constituents?
Yes, so long as the general COI rules are satisfied.
Can an attorney serve as both director and lawyer of an organization?
It is possible but is not recommended.
What are a securities lawyer's duties under the Sarbanes-Oxley Act?
The rules apply to lawyers who represent an issuer of securities and who practice before the SEC.
If a securities lawyer becomes aware of credible evidence that her client is materially violating a federal or state securities law, she must report the evidence to her client's chief legal officer. The chief legal officer must then conduct an internal investigation.
If the CLO concludes that a violation occurred, the CLO must take all reasonable steps to get client to make an appropriate response (to stop or remedy the violation and make sure it does not happen again). Those results are then reported to the SEC.
If the securities lawyer believes that the CLO did not achieve an appropriate response from the client, the securities lawyer must report the evidence to either the client's board of directors.
A securities lawyer may reveal to the SEC any confidential information that is reasonably necessary to: (i) stop the client from committing a violation that will cause substantial financial injury to the client or its investors; (ii) rectify such a financial injury if the lawyer's services were used to further the violation; or (iii) prevent the client from committing or suborning perjury in an SEC matter or lying in any matter within the jurisdiction of any branch of the federal government.
A securities lawyer who complies with the S-O rules cannot be held civilly liable for doing so and cannot be disciplined under any inconsistent state rule.
If fired, a securities lawyer may tell the BOD and initiate a wrongful termination suit.
What are the general rules of a client trust fund account?
All money that a lawyer receives on behalf of a client must promptly be placed in a client trust fund account, separate from the lawyer's own personal and business accounts.
The fund must be located in the state where the lawyer practices.
A lawyer must not put her own money into the account except for paying bank service charges.
Where should an attorney place a large sum of money awarded to his client?
In an account separate from his Escrow account that draws interest.
Where should an attorney place small sum awards?
In a pooled account.
Where should an attorney put advances?
A trust account. The lawyer may make withdrawals as fees are earned if there is no dispute concerning the lawyer's right to do so.
What should an attorney do with funds in which both the client and attorney have an interest?
Place them in a trust account until a proper accounting or severance has been conducted to divide the money out.
What can a lawyer do with funds in which a third party is entitled to some?
He can refuse to surrender the fund until the third party had been paid.
What is an attorney's role as a counselor?
A lawyer must render candid legal advice to the client and may also give advice based on moral, economic, social, or political advice when relevant.
How must an attorney act during the course of negotiations (i.e., settlements)?
A lawyer must not make a false statement of material fact. However, a lawyer need not volunteer facts that would be detrimental to the client's position or correct an opponent's misapprehension regarding the strength of his client's case.
Under what rules must an attorney comply when serving as a third-party neutral (i.e., mediator, arbitrator)?
Subject not only to the ordinary rules of legal ethics, but also to various codes of conduct devised by groups such as the American Arbitration Association.
A lawyer serving as a third-party neutral must explain the situation to the unrepresented party. The lawyer should explain that the A-C privilege does not apply to communications between them.
A lawyer who serves as a third-party neutral in a matter must not thereafter become the lawyer for anyone involved in the matter, unless all of the parties give their informed written consent. Such a conflict is imputed to a firm, but may be cured by screening. No conflict arises when a lawyer who served as a partisan arbitrator for a party is later asked to become that party's lawyer.
What constitutes a "frivolous" proceeding or position?
One that cannot be supported by a good faith argument under existing law and cannot be supported by a good faith argument for changing the law.
When does an attorney have a duty to expedite litigation?
A lawyer has an affirmative duty to expedite litigation so long as it does not harm the client's interest (keep the litigation on schedule).
What is an attorney's duty of candor about applicable law?
An attorney is subject to discipline if he knowingly makes a false statement of law or fails to correct a previously made false statement of material law OR fails to disclose directly adverse law of controlling jurisdiction.
What is an attorney's duty of candor regarding facts?
An attorney is subject to discipline for knowingly making false statement of fact to the court or failing to correct a previously made false statement of material fact OR fails to volunteer to the tribunal known harmful facts if the proceeding is ex parte.
What is an attorney's duty of candor as it relates to evidence?
A lawyer is subject to discipline for offering evidence that the lawyer knows
is false and may refuse to offer evidence that she reasonably believes
is false, except for a criminal defendant's testimony on his own behalf.
If a lawyer offered a piece of evidence and later discovers it to be false, she must:
- Talk to the client and try to persuade him to rectify the situation;
- If that fails, seek to withdraw; and
- If withdrawal is not permitted, make disclosure to the court.
NOTE: This duty ends once the proceeding (including appeals process) is over.
What should an attorney do if the client insists on testifying to something that the lawyer knows is false?
- Talk to the client and try to persuade him to rectify the situation;
- If that fails, seek to withdraw; and
- If withdrawal is not permitted or will not remedy the situation, the lawyer must make disclosure to the court.
Ways in which a party to an adjudicative procedure might commit criminal or fraudulent conduct?
- Hiding or destroying evidence;
- bribing a witness;
- Intimidating a juror;
- Buying a judge, and;
- Failing to obey a law or court order to disclose information.
What payments to witnesses are proper:
- Travel, meals, and lodging expenses;
- Compensation for time lost from the witness's job; and
- Reasonable fees to expert witnesses, but these may not be contingent of the outcome of the case or the content of the expert's testimony.
What chicanery must an attorney avoid at trial?
- Referring to inadmissible material;
- Asserting personal knowledge of contested facts; and
- Asserting personal opinions about the justness of a cause, credibility of a witness, culpability of a civil litigant, or guilt or innocence of an accused.
When may an attorney use threats to gain advantage in a civil case?
A lawyer may bring, or threaten to bring, criminal charges against her adversary in order to gain an advantage for her client in a civil case if the criminal and civil matters are closely related and the civil case and criminal charges are warranted. However, a lawyer must not threaten to report adversary counsel for a disciplinary violation to gain such an advantage. Disciplinary violations cannot be used as bargaining chips.
Improper Ex Parte Communication
While a proceeding is pending in a tribunal, a lawyer must not have an ex parte communication with a judge, court official, juror, or prospective juror except when authorized by law or court order.
A written communication to a judicial officer is not ex parte if a copy of the communication is timely sent to the opposing parties. A lawyer, however, must not communicate orally on the merits of the matter with a judicial officer without giving adequate notice to her adversary.
What type of communication is allowed and not allowed between a lawyer and a potential juror?
In general, before and during the trial of a case, a lawyer connected with the case must not communicate on any subject with a juror or prospective juror.
After the trial is over and the jury is discharged, a lawyer must not communicate with a former jury member if: (i) local law or a court order prohibits such communication; (ii) the juror has told the lawyer that he does not want to communicate; or (iii) the communication involves misrepresentation, coercion, or harassment. Also, even a lawyer who is not connected with the case must not communicate with a juror about the case during trial.
What is a lawyers right of reply in pertaining to trial publicity?
Despite the general rule that a lawyer should not make an out-of-court public statement that might prejudice the case, a lawyer may make a public statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client.
This rule is imputed to members of a firm as well.
What is a lawyers right to speak to "dry facts" about a case?
Despite the general rule against prejudicial statements, a lawyer connected with the case may publicly state certain "dry facts" about the case, including:
- Any information alread in the public record;
- What claim and defense are involved;
- The names of the people involved;
- The scheduling or result of any step in litigation;
- The fact that an investifation is ongoing;
- A warning of danger if appropriate; and
- Routine booking information about a criminal defendant (name, address, arresting officers, etc.)
When may trial counsel also serves as a witness?
- Her testimony will concern only an uncontested matter or a mere formality;
- Her testimony will concern only the nature and value of the legal services rendered in the case;
- Her withdrawal as trial counsel would cause a substantial hardship on her client, or;
- Another lawyer in her firm is likely to be called a s witness (unless to continue would constitute a conflict of interest).
In addition to complying with the above rule, a lawyer who is both an advocate and a witness must also comply with the general conflict of interest principles regarding current and former clients.
What are the special responsibilities of a prosecutor?
- Must have probable cause;
- Must protect the accused's right to counsel;
- Must not seek to obtain from an unrepresented accused a waiver of important pretrial rights;
- Must timely disclose all evidence and info known to her to defense that tends to negate the guilt of the accused;
- Must disclose all unprivileged mitigating info known to the prosecutor;
- Must not make extrajudicial statements that have a substantial likelihood of heightening public condemnation of the accused.
- A prosecutor must not subpoena a lawyer to give evidence about a client unless the information is not privileged, is essential, and cannot be obtained in any other way.
What guidelines must an attorney follow when speaking to a third party?
A lawyer must not make false statements of law or fact.
A lawyer must disclose material facts to a third person when necessary to avoid assisting the client in a crime or fraud, unless the lawyer is forbidden to do so by the ethical duty of confidentiality, in which case the ABA rules require the lawyer to withdraw.
When is a lawyer forbidden to communicate with other persons represented by counsel?
A lawyer must not communicate about a matter with a person the lawyer knows is represented by counsel in that matter, unless that person's counsel consents, or unless the law or a court order authorizes the communication.
In regards to an organization, a lawyer must get the consent of the organizations counsel before communicating with a present organization constituent: (i) who supervises, directs, or regularly consults with the organization's lawyer about the matter; (ii) whose conduct may be imputed to the organization under civil or criminal law; or (iii) who has authority to obligate the organization concerning the matter. Consent is NOT needed when speaking with a former constituent.
When may an attorney communicate with a represented third party?
When authorized by law or court order or when the communication does not concern the subject of the representation. Also, represented parties are not prohibited from communicating directly with each other. Furthermore, a lawyer is not prohibited from interviewing the intended unrepresented witnesses of the opposing party.
What precautions must an attorney take when dealing with unrepresented persons?
When dealing with an unrepresented person, a lawyer must not state or imply that he is disinterested and must make reasonable efforts to correct any misunderstanding by the unrepresented person as to his role in the matter. Likewise, if the lawyer know that his client's interests are likely to be in conflict with those of the unrepresented person, he must not give legal advice to that person (other than to get a lawyer).
What is a partners duty to educate and guide in ethics matters?
The partners or managing lawyers of a firm, and other supervisory lawyers, must make reasonable efforts to assure that the other lawyers adhere to the Rules of Professional Conduct. A lawyer who directly supervises another lawyer's work must reasonably assure that the other lawyer adhere to the rules.
When might an attorney be liable for another attorney's ethical violations?
- The first lawyer ordered it or knowingly ratified it, or;
- The first lawyer is a partner or manager or has direct supervisory responsibility over the second lawyer and learns of the misconduct at a time when it can be remedied but fails to take reasonable remedial action.
What are the responsibilities of a subordinate lawyer?
If a supervisory lawyer orders a subordinate lawyer to commit a clear ethics violation, the subordinate lawyer will be subject to discipline if he carries out the order. A subordinate lawyer will not be subject to discipline, however, for following a supervisory lawyer's reasonable resolution of a debatable ethics question.
What are an attorney's duties concerning non-lawyer assistants?
A lawyer should instruct and guide her nonlawyer assistants concerning legal ethics and should be ultimately responsible for their work.
Law firm partners and managers and other direct supervisors must make reasonable efforts to assure that their nonlawyer employees act ethically.
A lawyer is subject to discipline when a nonlawyer does something that would violate a disciplinary rule if: (i) the lawyer ordered the conduct or knew about it and ratified it, or (ii) the lawyer is a partner or manager or has direct supervisory responsibility over the nonlawyer and learns about the misconduct at a time when it can be remedied but fails to take reasonable remedial action.
What exceptions are there to fee splitting with non-lawyers?
Death Benefits (A firm may pay a death benefit over a reasonable period of time to the dead lawyer's survivors, the nonlawyer employees may be included as well).
Sale of a law practice - A lawyer who buys another's practice may pay the purchase price to the estate or representatives of the lawyer.
Sharing court-awarded attorneys fees with nonprofit organization.
May an attorney form a partnership with a non-lawyer?
May an attorney practice in a firm or other association if a nonlawyer owns an interes in the firm?
No, not if a nonlawyer owns an interest in the firm, is a director or officer, or has the right to direct or control the professional judgment of a lawyer.
What conditions must be met in order to sell a law practice?
If the seller ceases to engage in the private practice of law or the sold field of practice in the area in which the practice has been conducted,
The entire practice or field of practice is sold to one or more lawyers or firms, and
Written notice is given to the seller's clients.
Upon sale, the purchaser must undertake all client matters in the practice and not just those that generate substantial fees. Also, clients' fees cannot be increased due to the sale. The purchaser must honor existing fee agreements made by the seller.
Does a lawyer have to do PRO BONO work?
Every lawyer has a professional responsibility to provide legal service to people who cannot afford it. The ABA recommends a minimum of 50 hours per year of uncompensated legal work for poor people or organizations that serve the needs of poor people.
Must an attorney be a member of a legal service organization?
A lawyer may serve as a director, officer, or member of a legal services organization, even though the organization serves persons whose interests are adverse to those of the lawyer's regular clients.
However, a lawyer must not participate if doing so: (i) would be incompatible with the lawyer's obligations to a client under the general conflict of interest rules, or (ii) would adversely affect the representation of one of the organization's clients.
May a lawyer participate in a quick-advice programs?
A lawyer may participate in a quick-advice program sponsored by a court or nonprofit organization, such as a legal-advice hotline, advice-only clinic, or program that show people how to represent themselves in small claims court. A lawyer-client relationship exists between the lawyer and person who obtains the quick advice, but neither the lawyer nor person expects the relationship to continue past the quick-advice stage.
- Client must consent to short-term limited legal service
- Conflict of Interest rules are relaxed
- Imputed Conflict Rule also relaxed
- Conflicts rules apply fully if quick advice leads to regular representation