Law School 1L > PR > Flashcards

PR Flashcards

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1
Q

Model Rule 8.3(a)

A

Imposes a duty to report to the state disciplinary authority another lawyer’s violation of the rules that “raises a substantial question as to that lawyers honesty, trustworthiness, or fitness.”

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2
Q

A lawyer risks discipline for not reporting professional misconduct when…

A

There is circumstantial evidence that would support a finding that the lawyer did, in fact, know of the misconduct.

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3
Q

Model Rule 1.6

A

Forbids disclosure of information relating to representation of a client unless the client is about to commit a crime, threatening, imminent, death or serious bodily injury. 

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4
Q

Under what rule can a disciplinary authority punish a lawyer without awaiting a criminal conviction? 

A

Rule 8.4(b)

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5
Q

Misappropriating client funds is basically…

A

A per se disbarment in many jurisdictions.

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6
Q

Strickland Test

A
  1. D must show counsel’s performance was deficient
  2. D must show that the deficient performance prejudiced the defense
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7
Q

Deficient Performance

A

Requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the 6th Amendment

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8
Q

When to use the Strickland Test?

A

When a criminal defendant does not receive effective assistance of counsel, and is entitled to habeas corpus relief, if the 2 elements of the test are met.

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9
Q

Under the law of negligent misrepresentation, can the plaintiff recover pecuniary damages?

A

Yes

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10
Q

Under the law of negligent misrepresentation, can the plaintiff recover expectation damages?

A

No

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11
Q

In most jurisdictions, the “but for” causation rule that the plaintiff in a criminal negligent misrepresentation case has to prove is..

A

But for counsel’s negligence, the defendant would have been found innocent and IS innocent.

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12
Q

When may a plaintiff NOT be required to come forward with expert testimony in a negligent misrepresentation case?

A

When their lawyer completely fails to take any action at all on the plaintiff’s case.

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13
Q

What is the standard of care in a negligent misrepresentation case?

A

A reasonable professional and is higher for lawyers who hold themselves as a specialist.

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14
Q

Togstad Rule

A

If a reasonable person in the client’s position would think that the lawyer has undertaken to provide legal services, the lawyer will owe that person a duty of care. ~ objective standard

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15
Q

Situations where lawyers create liability to nonclients:

A
  1. Drafting will/estate docs for their client’s beneficiaries
  2. Preparation of opinion letters where lawyer knows recipient of the opinion will rely on it.
  3. Knowingly providing substantial assistance to the client in breaching a fiduciary duty they owe to a third party (corporation v. person working for corporation)
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16
Q

If a client (NOT THE STATE) is bringing a claim against the lawyer, what law should we use to analyze the question?

A

Tort law (negligence) & Agency Law (fiduciary duty)

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17
Q

Difference between professional discipline and civil liability?

A

Civil liability has a causation element

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18
Q

Prejudice

A

Requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

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19
Q

Model Rule 5.1(a)

A

Partners in a law firm are required to make reasonable efforts to create procedures and structures to ensure compliance by all lawyers in the firm with the disciplinary rules.

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20
Q

Model Rule 5.1(b)

A

Individual supervisory lawyers may be subject to discipline for inadequate oversight of another attorney for whom the supervisor has “direct supervisory authority.”

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21
Q

Model Rule 5.1(c)

A

A lawyer is responsible for the conduct of another lawyer outside the scope of “direct supervisory authority” if they order said conduct or have managerial authority, know about conduct, could prevent or fix it, but fail to act.

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22
Q

Model Rule 8.3(a)

A

A lawyer must report another lawyer who is in violation of the rules of professional conduct

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23
Q

Model Rule 8.3(b)

A

A lawyer must report a judge who is in violation of the rules of professional conduct

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24
Q

The term substantial under model rule 8.3 refers to…

A

the seriousness of the possible offense, NOT the quantum of evidence of which the lawyer is aware.

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25
When is a report about misconduct not required?
1. Where it involves a violation of rule 1.6 2. When a lawyer is retained to represent a lawyer whose professional conduct is in question
26
Can a civil client recover under an Ineffective assistance of counsel?– NO
NO - This is a criminal law doctrine under the Sixth Amendment, not available in civil cases.
27
Belief or believes
That the person involved actually supposed the fact in question to be true. A person's belief may be inferred from circumstances.
28
Confirmed in writing
In reference to informed Consent of a person: denotes informed consent that is given in writing by the person or a writing that a lawyer promptly transmits to the person confirming an oral informed consent.
29
Informed Consent
A lawyer must communicate adequate information about: (i) the material risks of the proposed course of conduct; and (ii) reasonably available alternatives
30
Fraud or fraudulent
Conduct that is fraudulent under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive.
31
Knowingly/known/knows
ACTUAL knowledge of the fact in question. A person's knowledge may be inferred from circumstances.
32
Partner
A member of a partnership, a shareholder in a law firm organized as a professional corporation or a member of an association authorized to practice law.
33
Reasonable/reasonably
When used in relation to conduct by a lawyer = a reasonably prudent and competent lawyer
34
A lawyer's reasonable belief or reasonably believes
When the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable.
35
Screened
The isolation of a lawyer from ANY participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these Rules or other law.
36
Tribunal
A court Administrative agency/body acting in an adjudicative capacity. Legislative body
37
Writing or written
Tangible or electronic record or a communication or representation.
38
Communication under A/C Priv
ANY expression through which a privileged person undertakes to convey information to another privileged person and any document or other record revealing such expression.
39
When can a lawyer's agent be present for it to NOT break A/c privilege?
When the agent is there to facilitate the rendition of legal advice by the attorney. Ex: Clerical, admins, law clerks. Sometimes: Translators, accountants, experts, consultants (beware)
40
Elements of AC Privilege
1. A communication 2. Between Privileged persons 3. In confidence 4. For the purpose of obtaining or providing legal assistance for the client.
41
What does it mean for the purpose of obtaining or providing legal assistance for the client?
It is a communication made to or to assist a person: 1. Who is a lawyer or who the prospective client reasonably believes is a lawyer 2. Whom the client/prosp client consults for the purpose of obtaining legal assistance.
42
What is NOT legal assistance?
- When client seeks BUSINESS advice from lawyer - Client is using lawyer's assistance to commit a crime - Pal tells you a story of their weekend
43
When are conversations NOT privileged between more than one client? (like bus partners)
When there's a dispute that arises between the parties. (still privileged to the outside world just the conversations had)
43
Do pre-existing documents become privileged when you give them to a lawyer?
No.
44
What is the duration or attorney-client privilege?
FOREVER. Even after the client's death. (unless waived)
45
Examples of waiver of attorney-client privilege?
-Client tells someone else about communication afterwards -Client uses advice they got from the lawyer as a defense in another or related proceeding. -Third party in attendance (but priv never attached)
46
When can evidentiary protections be waived?
1. Express waiver 2. Failure to timely assert 3. Subsequent disclosure of information that is inconsistent w maintaining the protection (ex: if client gives to media) 4. Affirmative use as a "sword" (ex: my lawyer told me to do it) 5. Otherwise "putting in issue" with the lawyer's advice.
47
When does no privilege attach for A/C privilege?
1. Communication is witnessed by a third party 2. Client does NOT intend the communication to be confidential.
48
Work Product Elements:
1. Docs or tangible things 2. Prepared in anticipation of litigation 3. By or for a party or that party’s attorney or representative
49
A court MAY order a lawyer to reveal information protected under the ethical duty of 1. Confidentiality or 2. Attorney client privilege
1. Confidentiality that is NOT subject to the attorney client privilege.
50
Confidentiality is __________ than attorney client privilege
BROADER.
51
What is least likely to be permitted to reveal confidential information? 1. Information to prevent death or substantial bodily harm 2. Client consent 3. Implied Representation 4. Financial Injury
4 - Financial Injury.
52
Conflicts of interest may result in which types of sanctions?
Litigation and Disciplinary Sanctions
53
Lawyer takes on car accident case for injured driver and passenger. Turns out driver is at fault. Can lawyer keep both driver and passenger as clients?
Yes if both clients properly waive.
54
What are the requirements for a waiving a conflict?
1. Get client's informed consent, in writing 2. Lawyer MUST have reasonable belief the representation will NOT adversely affect representation of another client AND 3. ALL affected clients must waive
55
What requires damage?
Malpractice
56
What does not require damage
Discipline
57
What is the burden of proof for an ethics violation?
clear and convincing evidence
58
What is the burden of proof for malpractice?
Preponderance of evidence
59
Limiting Malpractice Liability Means...
Any agreement that reduces or eliminates a lawyer’s legal accountability for negligence before a claim even arises.
60
Prospective Limitation on Liability (1.8(h)(1))
Before any malpractice occurs, a lawyer may not make an agreement that prospectively limits liability for malpractice UNLESS the client is currently represented by independent counsel in making the agreement.
61
Settlement of Existing or Potential Claim (1.8(h)(2))
After malpractice has allegedly occurred, a lawyer shall NOT settle a malpractice claim with an unrepresented client/former client without 1. Advising IN WRITING for client to seek independent counsel and 2. Give reasonable opportunity to seek counsel.
62
Can a lawyer generally refuse to submit evidence that they believe is false?
Yes.
63
Does a lawyer's duty of correcting errors by a defendant who commit perjury continue after litigation ends?
No.
64
Prompt that states if attorney's action in allowing their client to testify was proper translates to....
Whether its proper to put up evidence that the lawyer reasonably believes may be false.
65
In what circumstances does a lawyer owe a duty to a non client?
1. When the lawyer knows that their client's main objectives is to help a third party 2. A duty to the non client will not impair the lawyer's duties to the client 3. The absence of a duty to a non client would make it unlikely that the lawyer could perform duties owed to the client **A lawyer MAY avoid liability to non client by making clear that any opinion/representation is directed only to client and may not be relied on by others.
66
A lawyer who acts as an escrow agent is one who
Temporarily holds in trust property to be transferred between parties upon conclusion of a transaction.
67
Does a lawyer who acts as an escrow agent owe a duty to all parties to a transaction (buyer and seller) or just to their client?
ALL parties.
68
Do prosecutors have a duty to search for exculpatory information?
No
69
Prosecutors are required to _______ disclose all ___________ evidence regardless of whether the evidence is ___________.
timely exculpatory material
70
A subordinate lawyer whose conduct violated the MRPC is NOT subject to discipline if:
1. A matter involving a professional judgment as to ethical obligations has no clear resolution (arguable Q of professional duty) OR 2. The subordinate lawyer acted in accordance with the supervising lawyer's reasonable resolution of the question of professional duty.
71
When is it permissible to share fees with nonlawyers?
1. To pay a dead lawyer's estate (or their heirs) for work dead lawyer performed. 2. Dead laywer's practice (alive lawyer can pay the estate an agreed upon price when they purchase dead lawyer's firm) 3. Nonlawyer employees in compensation or retirement plans based on firm profits 4. Court awarded fees shared with a nonprofit organization
72
Apparent Authority
Refers to situations where a lawyer appears to have authority to act on behalf of the client, even if the client never explicitly gave that authority.
73
Limitation to Apparent Authority?
Client objectives - including settlements
74
When can a lawyer accept payment from a 3rd party?
1. Client gives informed consent 2. There's no interference with the lawyer's independent professional judgment or the client-lawyer relationship AND 3. The lawyer protects confidential info relating to the representation of the client
75
Puffing
An opinion or judgment by a lawyer that is not made as a representation of fact to advocate for their client's position during negotiations.
76
Common examples of puffing:
1. Price or value estimates 2. Predictions about the viability of a claim
77
May a lawyer withhold relevant facts that undermine their client's position to an opposing lawyer?
YES.
78
Is an attorney subject to discipline if they make a statement to opposing counsel they believe is not truthful but at the same time, is also not a statement of material fact?
No.
79
An attorney who is doing pro bono work may not be subject to discipline when helping a client who has conflicting interests with the attorney's firm when:
1. Neither the attorney or client expect a continued legal representation AND 2. The attorney is not aware that their law firm had a conflict at the time they provided legal advice.
80
When must a judge recuse themselves if they have actual knowledge that a family member/spouse is a person who....
1. is part of the proceeding 2. acting as a lawyer in the proceeding 3. a person who has more than a de minimis interest that could be substantially affected by the proceeding OR 4. Likely to be a material witness in the proceeding. 5. Lives in the same household as the judge
81
Economic interest
ownership of more than a trivial (non–de minimis) legal or equitable interest in a party or subject matter that could be substantially affected by the proceeding
82
Situations that do NOT count as economic interests so a judge may not have to recuse themselves:
1. Judge owns shares in a mutual or common investment fund 2. Charitable organizations 3. Bank and credit union memberships 4. Government securities (owning state bonds or US treasury bonds will not disqualify judge where US or state is a party)
83
May an attorney post an ad that mentions their rates?
Yes, so long as the ad comports with the MRPC
84
Are lawyers allowed to receive anything of value for recommending another lawyer or nonlawyer's service?
Yes with limitations.
85
What are the limitations to when a lawyer may enter into a referral agreement with another lawyer or nonlawyer?
1. The agreement is not exclusive 2. The client is informed of the existence and nature of the agreement 3. The agreement doesn't interfere with the lawyer's professional judgment 4. The agreement is NOT of indefinite duration.
86
A lawyer's firm's attorneys are generally disqualified from representing anyone in connection with a matter in which the lawyer participated substantially as a mediator, arbitrator or 3rd party neutral unless the attorney hired....
1. PROMPTLY notifies the parties and court AND 2. TIMELY screens lawyer and that lawyer receives no part of the fee.
87
A lawyer who contracts with a 3rd party (like an investigator) on the client's behalf is liable to pay them for their services even when the lawyer and client have an agreement that the client will cover 3rd party expenses when:
1. The lawyer did not disclose the client's identity to 3rd party 2. 3rd party is one who provides goods/services used by lawyers and who, as they lawyer knows or reasonably should know, is relying on the lawyer's credit.
88
A lawyer shall refrain from telling a non client to not give out voluntary information to opposing counsel unless approached unless:
1. Person is a relative or employee of client AND 2. Lawyer reasonably believes that non client's interests will NOT be adversely affected
89
A conflict of interest based on a lawyer's personal interest is imputed ONLY IF:
It presents a significant risk of materially limiting the representation of the client by other lawyers in the firm.
90
Can a lawyer solicit live person-to-person contact for pro bono purposes?
Yes! - they just can't for pecuniary gain.
91
At the end of a contingency fee case the attorney must provide the client with:
A written statement showing the outcome and method of determining the client's payout portion of recover
92
Is there a requirement to tell your client your sharing fees with a lawyer in your firm?
No
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