Professional Documents
Culture Documents
Handout File 1
Handout File 1
Handout File 1
I.
2.
3.
Format of exam: 60 multiple choice questions with four possible answers per question.
-
Students are not penalized for a wrong answer; therefore, you should guess if dont
know the answer.
2. LECTURE HANDOUT
II.
Model Rules
You don't have to join the ABA; the ABA can't sanction you. They just write these
rules. Which are "must" or "should"?
b.
Comments
Nonbinding; they just elaborate on the rules. They are typically aspirational
2.
Courts
Power to regulate lawyers; adopt rules for lawyer conduct; we are a self-policing
profession, so there are responsibilities placed on us too.
3.
b.
c.
LECTURE HANDOUT 3.
B.
By other lawyers
You have a duty to report information that you know about that another lawyer
has done. 24/7 worldwide duty. If you don't report, you face discipline.
b.
By judges
If we are aware of a judicial code violation, then we must report that.
2.
Duty of confidentiality
This trumps the duty to report.
** QUESTION **
Seymour is applying for admission to State As Bar. When Seymour was in high school, he and
his parents lived in State B, next door to attorney Azevedo. Azevedo is admitted to practice in
State B, but not in State A. Seymour seemed to be a promising lad, and Azevedo was
disappointed to learn that during his senior year in high school he was convicted of burglarizing
a liquor store. After serving his sentence, Seymour went to college and later to law school.
Azevedo has had no contact with Seymour since his high school years, but so far as Azevedo
knows, Seymour has not done anything since high school that would reflect badly on his
character. The Bar of State A sent Azevedo a routine questionnaire, asking a series of questions
about Seymours character. Azevedo does not know whether Seymour disclosed the burglary
conviction on his bar application, and she does not know where to contact him to find out.
How should Azevedo respond to the questionnaire?
A.
She should not respond at all, because she has no relevant information to
provide.
B.
She should not respond at all, because as a State B lawyer she is not
obligated to provide information to the Bar of State A.
4. LECTURE HANDOUT
C.
D.
She should state what she knows about Seymour, including mention of his
burglary conviction.
***
3.
b.
4.
b.
For any other conduct, the rules of the jurisdiction in which the
conduct occurred
lawyers _____________________________,
or, if the
predominant effect of the conduct is in a different jurisdiction, the
rules of that jurisdiction must be applied to the conduct.
Lawyers duties
You've got to have a license to do these things
a.
Appearances ___________________________________________
b.
Taking depositions
c.
Negotiating settlements
LECTURE HANDOUT 5.
Clerks duties (paralegal, law student)
2.
b.
c.
Write memos.
EMPHASIS ON SUPERVISION OF A LICENSED LAWYER
** QUESTION **
Attorney Arlo has hired Clarissa, a third-year student at a local law school, to assist him as his
clerk. Clarissa is not licensed under any state law or court rule that allows third-year law students
to engage in practice under the supervision of a licensed attorney. Arlo has Clarissa perform the
following tasks:
I.
Drafting a release form for personal injury plaintiffs to sign after their cases have been
settled (Arlo himself has the plaintiffs sign the forms).
II.
Interviewing witnesses to accidents, and having them sign Clarissas written version of
the interview.
III.
I. only.
B.
III. Only.
C.
D.
D.
6. LECTURE HANDOUT
Pro hac vice (for one case only): A lawyer admitted in one jurisdiction can be
admitted in another jurisdiction to practice in one case.
You'll have to associate yourself with a local lawyer to ensure that local rules are followed.
A lawyer who is admitted in one jurisdiction, and who is in good standing, can
provide legal services on a temporary basis in another jurisdiction that are
undertaken in association with a lawyer who is admitted to practice in that other
jurisdiction and who ________________________________________________.
III.
Creation of Relationship
Lawyers have a general freedom to accept or decline clients
1.
Consensual relationship
No duty to accept clients
____________________________________________________________
____________________________________________________________
2.
Appointments
A lawyer must not seek to avoid appointment by a tribunal to represent a
person except for good cause, such as:
A confl
flict; if the appointment would result in unreasonable fi
financial burden; personal
____________________________________________________________
inability of the lawyer to effectively represent the client.
____________________________________________________________
____________________________________________________________
3.
Rejecting cases
If a lawyer is not appointed to represent a client, the lawyer can reject the
case:
The
lawyer can reject a case for any reason or no reason.
____________________________________________________________
B.
Scope of Representation
1.
2.
A lawyer may limit the scope of the representation if: (1) the limitation is
reasonable under the circumstances, and (2) the client gives informed
consent.
E.g., I'll stay with you through disco if the client gives informed consent
Clients decisions vs. lawyers decisions
In a civil case, a lawyer must abide by a clients decision whether to
____________________________________________________________
Settle (you've gotta relate all settlement offers to the lcient)
In a criminal case, the lawyer must abide by the clients decision, after
consultation with the lawyer, as to:
LECTURE HANDOUT 7.
a.
Plea deals
b.
c.
C.
But a lawyer may discuss the legal consequences of any proposed course
of conduct with a client and may counsel or assist a client to make a good
faith effort to determine the validity, scope, meaning, or application of the
law.
We can council about illegal conduct and the consequences of it
Lawyers Duty of Communication
A lawyer must:
1.
Reasonably consult with the client about the means by which the clients
objectives are to be accomplished;Strategy; theory; etc.
2.
Keep the client reasonably informed about the status of the matter;
3.
4.
8. LECTURE HANDOUT
2.
3.
b.
c.
Whether lawyer must turn away other cases, if the client is aware
of this;
d.
e.
The amount at stake and the results obtained for the client;
f.
g.
The nature and length of the relationship between the lawyer and
client;
h.
i.
Prohibited in:
1)
LECTURE HANDOUT 9.
2)
c.
Writing
1)
2)
3)
Lawyers in firm
Yes, that's fifine in any manner that's agreed upon.
3)
The lawyers who pay $10k for sending the case are subject to discipline,
unless the other lawyer i spersonally responsible for the case
c.
** QUESTION **
Two years ago, Weaver obtained a divorce from her husband Hubbard in State A. The court
awarded Weaver custody of the three children and ordered Hubbard to pay Weaver $3,000 per
month in child support and alimony payments. The lawyer who represented Weaver in the
divorce proceedings died. Hubbard failed to make the $3,000 payments for seventeen months in
a row. Weaver ran out of money and in desperation hired attorney Avilla to represent her in a
proceeding to collect the past due payments from Hubbard. State A has no law or court rule that
requires the loser to pay the winners attorney fees in domestic relations matters. Because
Weaver had no money to pay Avilla a regular fee, Avilla agreed to do the work on a contingent
fee basis for 10% of whatever amount Weaver was ultimately able to recover. Avilla won an
award for Weaver of the entire amount due ($51,000), and by tracking down and attaching
Hubbards secret bank account, he got the full amount paid to Weaver. He then sent Weaver a
bill for his share, $5,100.
Is Avilla subject to discipline?
Correct A.
B.
C.
D.
No, unless $5,100 is an unreasonably high fee for the work Avilla did.
No, because Weaver had no money to pay a regular fee.
No exception for indigence
Yes, because Avilla used a contingent fee in a domestic relations matter.
It's a collections case, not a domestic matter
Yes, because Avilla took a portion of the money that was intended for
support of Weaver and the children.
Lawyers get to get paid, so this isn't true.
***
E.
Three ways:
a.
Client fires lawyer (client always has power to terminate attorneyclient relationship)
Any reason or no reason
b.
2)
3)
c.
3)
4)
6)
7)
8)
2.
3.
Reasonable notice
Reasonable time to fifind another lawyer
4.
IV.
Competence
A lawyer must provide competent representation to a client. Competent
representation requires the legal knowledge, skill, thoroughness and preparation
reasonably necessary for the representation.
Three ways to avoid an incompetence problem:
How do I become
competent?
1.
2.
3.
B.
Diligence
A lawyer must act with reasonable diligence and promptness in representing a
client.
The lawyers duty to act with reasonable diligence does not require the use of
offensive tactics
or preclude the treating of all persons involved in
the legal process with courtesy and respect.
A lawyers work load must be controlled so that each matter can be handled
______________________
and ______________________.
competently
diligently
A lawyers duty to act with diligence does not preclude the lawyer from agreeing
to reasonable continuances
that will not prejudice the lawyers client.
C.
Malpractice Liability
Just because you violate a rule does not mean you commit malpractice, and
vice versa.
Violation of a rule is evidence of malpractice
1.
Intentional tort
b.
c.
Breach of contract
d.
Negligence
1)
To clients;
2)
Proximate cause
BUT FOR TEST.
2.
Standard of care
a.
General practitioner
Competent representation
A lawyer must provide competent representation to a client,
which requires the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation.
b.
Specialists
Higher standard of care for specialists
3.
Limitation of liability
UNLESS CLIENT IS INDEPENDENTLY
A lawyer must not make an agreement prospectively limiting the lawyers
REPRESENTED IN
MAKING THE AGREEMENT liability to a client for malpractice unless the client is independently
represented in making the agreement.
4.
Settlement of malpractice
A lawyer must not settle a claim or potential claim for legal malpractice
with an unrepresented client or former client unless:
That person is advised, in writing, of the desirability of seeking independent
legal review. If you're about to settle a malpractice case and they're not represented,
you must advise them in writing that they have that option.
D.
Duty of Confidentiality
Broader the A/C Privilege
to the representation of a client
A lawyer must not reveal information: relating
__________________________________
1.
Examples:
Lawyers conversation with a witness:
Not privileged, but it is protected under broader umbrella of confifidentiality
Newspaper article concerning clients case:
If I cut the article out and put it in the file,
fi then it's confifidential with regard to the
client, even though everybody might know about it anyway.
2.
b.
d.
e.
To comply with other law or a court order
If a court is ordering you to reveal something, you may reveal it.
f.
To prevent reasonably certain death or substantial bodily harm
______________________________________________________
______________________________________________________
______________________________________________________
3.
g.
h.
i.
k.
Prospective clients
Even when no lawyer-client relationship ensues, a lawyer who has had
discussions with a prospective client must not use or reveal information
learned in the consultation.
E.
A lawyer may deposit the lawyers own funds in a client trust account for
the sole purpose of paying bank service charges.
2.
Safeguard property
Securities and valuable jewelry must be kept in safe deposit box
Other valuables can be kept in locked desk drawer
3.
4.
5.
Disputed claims
a.
Lawyer v. Client: The lawyer must hold disputed portion of the funds
in escrow until dispute is resolved.
______________________________________________________
If you claim 10 and client claims 3, you can take 3
since that's not disputed.
b.
V.
Conflicts of Interest
A.
B.
C.
1.
D.
Only a notice
requirement
E.
Informed consent
from former client
F.
Informed consent
of both clients
G.
1.
2.
3.
Legislation
Legislation is not a "matter." You can write legislation and then go into pvt practice
and fifight the same legislation.
H.
Confidential Information
Harmful use of confifidentialA lawyer must not use information relating to the representation of a client to the
info requires informed
disadvantage of a client without informed consent. Therefore, a lawyer may not
consent
use one clients confidential information to benefit another client or the lawyer if
it will disadvantage the client.
Does not extend to non-harmful info.
However, the rule does not prohibit uses that do not disadvantage the client. For
example, a lawyer who learns a government agencys interpretation of trade
legislation during the representation of one client may properly use that
information to benefit other clients.
J.
1.
A lawyer may acquire a lien authorized by law to secure the lawyers fee
or expenses. This may include liens granted by statute, liens originating in
common law, and liens acquired by contract with the client.
2.
2.
in writing
Terms are fully disclosed to client _____________________
that client
can reasonably understand;
3.
4.
In writing
Client consents ____________________
to the essential terms of the
transaction and the lawyers role in the transaction.
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
K.
Financial Assistance
A lawyer must not provide financial assistance to a client in connection with
pending or contemplated litigation, except:
We pay in advance court costs and fifiling fees. E.g., expert costs
For example, a lawyer may not make a loan to the client for personal expenses
living arrangements
N.
O.
Sexual Relations with Clients
Can't sleep with clients. If you were already sleeping with a client before, then you can keep
sleeping with them.
P.
Organization as Client
A lawyer employed or retained by an organization represents the organization
acting through its duly organized constituents and, in dealing with those
constituents:
Must explain the identity of the client.
Lawyer as Advisor
In rendering advice, a lawyer may refer not only to law but to other considerations
moral, economic, social, and political factors
such as ___________________________________________________________
____________________________________________ that may be relevant to the
client's situation.
B.
Lawyer as Evaluator
At the clients request, a lawyer may provide an evaluation of a matter affecting a
client for the use of a third party.
Examples: Lawyer for seller renders an opinion concerning the title of property
for the information of a prospective purchaser; lawyer for borrower provides
summary of clients financial information to a prospective lender.
When the lawyer knows or reasonably should know that the evaluation is likely to
have a material and negative effect on the clients interests, the lawyer must not
provide the evaluation unless __________________________________________
the
client gives an informed consent. If your report is probably going to be bad,
__________________________________________.
get their informed consent in writing.
Lawyer as Negotiator
truthful
A lawyer is required to be _________________
when dealing with others on a
clients behalf, but generally has no affirmative duty to inform an opposing party
relevant facts
of ________________________________________.
Under generally accepted conventions in negotiation, certain types of statements
ordinarily are not taken as statements of material fact:
1. "Puffery"
____________________________________________________________
- estimates of price and value.
2.
D.
____________________________________________________________
Client's
acceptable settlement limits.
E.
Lawyer as Advocate
1.
False statements
A lawyer must not knowingly make a false statement of
fact or law
______________________________
to a tribunal or fail to correct
a false statement of material fact or law previously made to the
tribunal by the lawyer.
b.
Legal authority
c.
3.
Evidence
A lawyer may not unlawfully obstruct another partys access to
evidence or unlawfully alter, destroy, or conceal a document or
other material having potential evidentiary value.
b.
Discovery Requests
In pretrial procedure, a lawyer must not make a frivolous discovery
request or fail to make a reasonably diligent effort to comply with
a legally proper discovery request by an opposing party.
c.
4.
2)
knowledge
Assert personal ________________of
facts in issue except
when testifying as a witness;
3)
opinion
State a personal ________________
as to the justness of a
cause, the credibility of a witness, the culpability of a civil
litigant, or the guilt or innocence of an accused; or
4)
b.
c.
d.
5.
(i)
(ii)
(iii)
Lawyer as Prosecutor
A lawyer serving as a prosecutor in a criminal action must refrain from
prosecuting a charge that the prosecutor knows is not supported by
probable cause
________________________________________________________.
G.
A prosecutor must make timely disclosure to the defense of all known evidence or
information that tends to _____________________________________________
________________________________________________________.
negates the guilt of the accused or mitigates the offense (Brady)
Must disclose potentially exculpatory evidence
Lawyer as Witness
A lawyer must not act as an advocate at a trial in which the lawyer is likely to be a
necessary witness.
Exceptions:
H.
1.
2.
3.
Substantial hardship
____________________________________________________________
____________________________________________________________
4.
1.
2.
B.
Lawyer consents
2.
Authorized by law
3.
Note: The parties to the lawsuit may communicate directly with each other and a
lawyer does not violate the above rule by informing the client of that fact.
Note: If the adverse party is an organization (e.g., corporation), the lawyer must
obtain permission from the organizations counsel to communicate with:
1.
2.
3.
2.
D.
2.
Partners
A partner in a law firm, and a lawyer with comparable managerial
authority in a law firm, must make reasonable efforts to ensure that the
firm has in effect measures giving reasonable assurance that all lawyers in
the firm _____________________________________________________
conform with the model rules
___________________________________________________________.
2.
Supervising lawyers
A lawyer having direct supervisory authority over another lawyer must
make reasonable efforts to ensure that the other lawyer _______________
___________________________________________________________.
conforms to the rules
3.
Vicarious responsibility
A lawyer is responsible for another lawyers violation of the Rules of
Professional Conduct if:
a.
knows
The lawyer ____________
or, with knowledge of the specific
ratififies
conduct, ____________
the conduct involved; or
b.
C.
D.
2.
2.
The lawyer orders or, with the knowledge of the specific conduct,
__________________
the conduct involved; or
ratififies
b.
b.
c.
d.
E.
2.
No non-compete
IX.
Public Service
A.
C.
D.
X.
2.
b.
2.
When the lawyer knows that the interests of a client may be materially
benefited by a decision in which the lawyer participates, the lawyer must
disclose _____________________________________________________
that fact, but need not identify the client.
___________________________________________________________.
Attorney Advertising
First amendment right to advertise services. Rules impact anything you do.
Examples: Yellow page ads, office signs, business cards, announcements,
letterhead, brochures, letters sent by mail, recorded phone messages, Internet
websites.
Identification of Advertiser
Any communication concerning a lawyers services must include the
name and office address of at least one lawyer or law firm responsible for
its content.
2.
b.
If you say something about past accomplishments, you have to have a disclaimer
that past acocmplishments are not a guarantee of future success
3.
Languages spoken;
b.
Educational background;
c.
d.
e.
4.
5.
Direct mail
Permitted, but subject to restrictions.
Solicitation
Generally, impermissible to solicit cases
A lawyer must not solicit professional employment from a prospective client by
in-person, live telephone or real-time electronic contact when a significant motive
for the lawyers doing so is the lawyers pecuniary gain.
If not looking to collect fees, then it's ok to solicit.
Permissible solicitations:
1.
2.
Education
Lawyers can conduct seminars and educate the public hoping that
people call them
3.
No fee
4.
5.
Present clients
6.
Former clients
Even these permissible solicitations are prohibited if the prospective client has
made known to the lawyer a desire not to be solicited by the lawyer ___________
_________________________________________________________________.
C.
A lawyer may state that he or she does (or does not) practice in particular
D.
b.
2.
Trade names
3.
Judicial Ethics
A.
B.
General Obligations
1.
Conduct
Independence and integrity on the bench and in personal life
C.
Gifts
Judges can't accept gifts if prohibited or that would challenge the judge's impartiality
3.
Duty to report
Must report gifts received
4.
5.
Activities outside judicial office don't interfere with judicial duties or create
a conflflict
6.
Litigation Responsibilities
1.
Competence
Keep up with th elaw
2.
Promptness __________________________________________________
Be on time
3.
Decorum
Enforce rules of the courtroom; can't require a lawyer to control his client
4.
Ex parte communication
A judge must not initiate, permit, or consider ex parte communications,
i.e., a communication between a judge and a representative from one side
of a matter when no representative from the other side is present.
D.
a.
b.
Mediation or settlement
c.
Emergencies
TRO
Disqualification
A judge must disqualify himself or herself in a proceeding in which the judges
impartiality might reasonably be questioned.
1.
Bias or personal knowledge _____________________________________
concerning hte case or people involved int he case, the judge has to offer to step
down
Prior involvement:
a.
b.
c.
2.
Former partner or close relative _________________________________
involved in the case; anyone closer than a cousin is too close.
3.
Economic interest
A judge must disqualify herself if she knows that, either as an individual
or a fiduciary, she has an economic interest in the matter or in one of the
parties or she has any other interest that is more than de minimis and that
could be substantially affected by the proceedings.
E.
Remittal of disqualification
Parties can waive any grounds except the personal bias
Extrajudicial Activities
1.
3.
Law-related organization
A judge may serve as an officer, director, trustee, or nonlegal advisor of a
government agency or private organization devoted to the improvement of
the law.
Fundraising
Judges can assist in planning for fundraising, but they cannot personally
solicit contributions UNLESS
(a) from a family member; or
(b) from a judge they do not supervice
Fiduciary activities
Generally, a judge must not serve as an executor, administrator, trustee,
guardian or other fiduciary.
Exception: A judge may serve in such a capacity for a member of the
judges family where these conditions are met:
a.
b.
c.
Reporting misconduct
a.
Personal knowledge
Must report
b.
Information of violation
The judge must take appropriate action, which may include reporting it
5.
Testimony
subpoenaed
A judge must not testify as a character witness unless ________________.
6.
Nonprofit organizations
A judge may serve as an officer, director or trustee for a nonprofit
educational, religious or charitable organization.
a.
b.
c.
7.
Teaching
Permitted
9.
References
Permitted, so long as they make it clear that it is a personal recommendation
10.
Membership in organization
a.
b.
11.
F.
Practice of law
Represent themselves pro se
Can give free advice to family members
Public speaking
Can speak on behalf of own candidacy
Cannot make speeches on behalf of a political organization
b.
Soliciting votes
Publically endorce candidates for same judicial offifice
Can solicit votes
c.
Fundraising ___________________________________________
______________________________________________________
Make the donation to the campaign committee
** QUESTION **
State A Appeals Court Judge Joy is the treasurer of Food for Millions, a national charitable
organization that raises money to send food to starving nations.
Which of the following may Judge Joy do in his capacity as treasurer?
I.
Personally solicit contributions from other judges on the State A Appeals Court.
II.
III.
IV.
B.
C.
IV. only.
D.
G.
Conflict of Interest
** QUESTION **
Judge Josephine ruled in favor of Plaintiff in a civil action where Defendant was ordered to pay
Plaintiff $50,000 in damages. Josephine has since resigned from the bench. Defendant has
refused to pay the $50,000, asserting that the verdict was obtained through improper means.
Defendant asks Josephine, now in private practice, if she will represent him.
Would Josephine be subject to discipline if she represents Defendant?
A.
No, unless Josephine was a party to fraud when the original verdict was handed
down.
C.
Yes, because Josephine ruled on this case when she was a judge.
D.