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What are the state sources of regulation?
- 1. Courts
- 2. Bar Association
- 3. Legislature
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What are the 3 sources of regulation?
- 1. The state
- 2. federal system
- 3. Regulation by multiple states
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What misconduct may be regulated AFTER admission to the bar?
- 1. Attempting to violate a rule
- 2. Assisting or inducing another person to violate a rule
- 3. Using the acts of another to violate a rule
- 4. Engaging in criminal conduct that shows dishonesty, untrustworthiness, or unfitness
- 5. Engaging in conduct that is prejudicial to the admin of justice
- 6. Stating or implying an ability to improperly influence
- 7. Knowingly assisting a judge in conduct that is illegal
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A lawyer is subject to discipline for failing to report...
disciplinary violations that raise a substantial question as to the other L/J's honesty, trustworthiness, or fitness as a L/J
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Exceptions to duty to report rule
- 1. infor protected by duty of confidentiality
- 2. info gained while serving as member of an approved L's assistance program
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Disciplinary Process
- 1. Filing of complaint with state disciplinary authority
- 2. Response to charges
- 3. Investigation by grievance committee
- 4. Hearing
- 5. Review of decision by highest court in state
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Is an accused L entitled to procedural due process in disciplinary hearing?
Yes
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Choice of law in disciplinary proceedings
1. misconduct related to proceeding before a tribunal = rules of jurisdiction where tribunal sits
2. all other misconduct = rules of jurisdiction where misconduct occurred UNLESS the predominant effect of the conduct is some other jurisdiction
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Effect of Sanctions in other jurisdictions - Majority view
Sister states accept disciplinary action by one state as conclusive proof of a L's misconduct but are free to impose their own sanctions
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Effects of sanctions in other jurisdictions - federal court
Makes indpt evaluation, accepting as competent evidence the L discipline by a state
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unauthorized practice by L
A L is subject to discipline for practicing in a jurisdiction w/o being licensed to do so
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Permissible types of temporary multi-jurisdictional practices
- 1. Association with local L
- 2. Special permission to practice in local tribunal (pro hac vice)
- 3. Mediation or Arbitration arising out of practice in home state
- 4. Other practice arising out of practice in home state
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Permissible types of permanent multi-jurisdictional practice
1. L is salaried EE of her only client (i.e. - in house counsel) BUT to litigate must seek admission pro hac vice
2. legal services are authorized by fed or local law
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Consequences of multi-jurisdictional practice
subject to disciplinary rules in both states - where barred and where practicing
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Is a L subject to discipline for assisting a nonL to engage in the unauthorized practice of L?
Yes
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Practice of law includes those activities:
- 1. involving legal knowledge and skill
- 2. which constitutes advice concerning binding legal rights
- 3. traditionally performed by L
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It is not unauthorized practice for a nonL to:
1. appear before an agency that permits nonL professionals to do so
2. fill in the blanks on legal forms
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Consequences for unauthorized practice
NonL = may be subject to injunction, contempt, and criminal prosecution
L assisting nonL = subject to discipline
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Delegating work to nonL assistants
A L MUST supervise delegated work carefully and must be ultimately responsible for the results
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Training nonL for law-related work
A L may advise and instruct nonLs whose employment requires a knowledge of law
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Helping persons appear pro se
A L may advise persons who wish to appear on their own behalf in a legal matter
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May a L assist a suspended or disbarred L do work that constitutes the practice of law?
No
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Nature of the L/C relationship
1. contractual with the terms derived from custom & mutual agreement
2. fiduciary
3. agent
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When is the L/C relationship created?
- 1. implied assent & reasonable reliance
- 2. court appointments
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What is implied assent & reasonable reliance in the creation of L/C relationship?
A person indicates an intent that the L provide a legal service and the L fails to clearly decline representation whereby the person reasonably relies on the representation
reasonableness is a question of fact
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When may a L avoid court appointments to represent C?
for good cause
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What constitutes good cause regarding L avoiding a court appointment to represent a C?
- 1. result would be violation of rule
- 2. result would be unreasonable financial burden on L
- 3. L personal feelings would prevent her from representing the C effectively
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A L must refuse employment when (not take a case):
- 1. C motive is to harass or maliciously injury a person
- 2. case presents a factually or legally frivilous position
- 3. L is incompetent to handle the matter
- 4. L strong personal feelings may impair his ability of effective rep
- 5.L mental or physical condition would materially impair the representation
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Duties owed to prospective C
1. protect person's confidential info, including declining rep of others in the same or related matter
2. protect PC property
3. use reasonable care in giving the person legal advice
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Is there an ethical obligation to accept unpopular cases?
Yes - a L can fulfill his obligation to assist int he provision of legal services to those in need by accepting a fair share of unpopular matters or indigent or unpopular Cs
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When to agree on a fee
early in the relationship, preferably in writing
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Factors considered in determining reasonableness of fee
- 1. time/labor required
- 2. novelty/difficulty of questions involved
- 3. skill required
- 4. whether L is precluded from other work
- 5. what other L in community charge
- 6. amount at stake & results obtained
- 7. time limitations
- 8. experience, rep, & ability of L
- 9. whether fee is fixed or contingent
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May L require payment in advance?
Yes - L may require fee to be paid in advance but must refund any unearned part of the advance if L is fired or w/draws
L need not return a true retainer fee
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May L accept property for service?
Yes - provided that this doesn't involve a proprietary interest in the CoA or subject of litigation
subject to scrutiny to protect C from being taken advantage of
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May L make fee agreement that could cut off services in the middle of relationship?
No - this would put the C at a disadvantage
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May L accept payment via credit arrangements and security?
Yes - L may permit C to pay a fee by credit card, to finance fees thru bank loans, or to pay by an interest bearing PN
may also use attorney's lien if local law permits
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Contingent Fees - definition
L receives his fee only upon favorable resolution for his C...generally a % of the C's recovery
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Contingent fees generally
- 1. prohibited in criminal and domestic relations cases
- 2. must be reasonable
- 3. must be in writing
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Regarding fee disputes, a L may not use ____ to obtain compensation
- 1. illegal collection methods
- 2. improperly use confidential info
- 3. harass a C
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Remedies regarding fee disputes
- 1. filing suit to recover fee
- 2. use a common law or statutory charging lien
- 3. exercise a retaining lien (majority)
- 4. retain disputed amount in C trust account until resolution of dispute
- 5. mediation/arbitration
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Is fee splitting permitted?
Generally a L must NOT split fees with another L
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Exceptions to prohibition on fee splitting with other Ls
1. L w/in a firm including separation or retirement agreements to a former partner or associate
OR
- -total fee is reasonable;
- -split is in proportion to services performed by each L or some diff proportion if each L assumes joint responsibility; AND
- -C agrees in writing
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Are forwarding or referral fees permitted
Not if the referring L neither works on the case nor assumes responsibility for the case
L may set up a reciprocal referral arrangement in which L agrees to refer C to another L or nonL, provided the Cs referred are informed of the arrangement
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decisions to be made by C
- 1. settlement offer
- 2. plea
- 3. waive a jury trial
- 4. testify
- 5. appeal
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What constitute reasonable circumstances under which L may limit the scope of representation
- 1. disagreement exists b/t L & C about means to be used to reach the C's objectives
- 2. C insists on the L's assistance in violating a law or ethical rule
- 3. L discovers that a C has begun an illegal course of action and conduct is continuing
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Who has control over objectives?
C
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Who has control over means by which objectives are carried out?
L
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L duties regarding C with diminished capacity
-duty to maintain normal L/C relationship with the C
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When is protective action and appointment of guardian for C with diminished capacity appropriate?
when C faces a substantial risk of physical, financial, or other harm, L may take reasonable action to protect C
L has implied authority in these circumstances to reveal the C's confidential info to the extent necessary to protect the C
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Emergency legal assistance to nonC with seriously diminished capacity
- -facing imminent and irreparable harm to her health, safety, or financial interest & consults a L,
- - L may take reasonable steps on behalf of the person even if a L/C relationship hasn't been established
- -L reasonably believes person has no other representative
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L duties regarding emergency legal assistance to nonC with seriously diminished capacity
- -same duties as would with respect to a
- C
-normally L wouldn't seek compensation
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When communicating with a C, a L MUST:
- 1. promptly inform C of any decision that requires the C's informed consent
- 2. keep C reasonably informed about status of the matter and the means to be used to accomplish the C objectives
- 3. respond promptly when C makes a reasonable request for info
- 4. consult with C if C expects the L to do something illegal or unethical
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the amount and kind of info L should give to the C depends on...
the C's situation
if L regularly reps a C, the 2 may work out a convenient arrangement for occasional reporting of routine developments
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When may L withhold info from C?
1. C would be likely to react imprudently to an immediate communication
2. Court rule or order forbids L from sharing info with C
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3 ways in which L/C relationship may terminate prior to conclusion of the matter
- 1. C fires L
- 2. situations in which L must withdraw
- 3. situations in which L may withdraw
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When may C fire attorney?
at any time, with or w/o cause
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if C fires L, what is C liable for?
quantum meruit for the reasonable value of the work done
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when MUST an L withdraw?
- 1. L mental/physical condition would make it unreasonable for him to continue representing the C
- 2. continued rep would require the L to violate a rule or law
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When MAY an L withdraw?
- 1. no material adverse effect on C interests
- 2. C consents
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When may L withdraw even if material adversity exists?
- 1.C persists in criminal or fraudulent conduct
- 2. C has used L services to commit a past crime or fraud
- 3. C objective is repungant or against L beliefs
- 4. C breaks his promise to L
- 5. rep imposes an unreasonable $ burden on L
- 6. C won't cooperate in the rep
- 7. other good cause
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L duties upon termination of representation
- 1. L must give C reasonable notice of withdrawl & chance to get another L
- 2. refund any advance on fees not yet earned & expenses not yet spent
- 3. turn over all papers & property to which C is entitled
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Duty of competence includes:
- 1. legal knowledge & skill
- 2. throoughness & preparation
- 3. maintaining competence thru CLEs
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Factors for determining legal knowledge & skill in competence
- 1. complexity & specialized nature of the matter
- 2. L general experience
- 3. L training & experience in the field in question
- 4. amount of preparation & study the L will give to the matter
- 5. whether possible for L to refer the matter to, or consult with, another competent L
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May a L accept representation if the requisite competence can be achieved by reasonable preparation?
yes
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May L not competent in the field assist a C in an emergency situation?
yes but assistance shouldn't exceed what is reasonably necessary to meet the emergency
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Once a L takes on a C's matter, the duty of diligence requires:
- 1.acting on C's behalf with reasonable diligence & promptness
- 2. acting with dedication and zeal, taking whatever lawful & ethical steps are available to vindicate the C's cause
- 3. pursuing the matter to completion
- 4. terminating the relationship or acting with required diligence if there is any doubt as to whether the L/C relationship exists
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additional diligence duty for solo practitioners
planning for his untimely death or disability by designating another competent L to review the C's files and determine whether protective action is required
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How many violations are sufficient to impose discipline?
a single incident of misconduct
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How does malpractice action differ from a disciplinary matter?
- 1. forum (civil court v. disciplinary tribunal)
- 2. adversary (injured party v. state bar)
- 3. purpose (compensation v. punishment)
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Does violation of an ethics rule automatically mean L has committed malpractice?
No
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Does violation of an ethics rule create a presumption of malpractice?
No
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Is violation of an ethics rule relevant evidence of malpractice?
yes
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Theories of malpractice liability
- 1. intentional tort
- 2. breach of fiduciary duty
- 3. breach of K
- 4. negligence
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When may L be liable for negligence of others?
L may be held liable for injuries caused by a negligent legal secretary, law clerk, or other person acting w/in the scope of his employment
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Is malpractice insurance required?
no
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May L contract with C to limit malpractice liability?
not unless the C is indptly rep in making the K
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When may a L settle a pending or potential malpractice claim with an unrepresented C or former C?
After advising that person, in writing, to seek indpt advice about the settlement and giving that person time to seek that advice
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May a L who has breached a duty to his C escape discipline by reimbursing the C for any loss?
No
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