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prof responsibility Flashcards

(82 cards)

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1
Q

Formation of lawyer-client relationship

A

A lawyer-client relationship is formed when a client reasonably believes that the lawyer is providing legal services on their behalf.

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2
Q

Lawyer’s Duty to Clients

A

Lawyers owe clients a basic duty of loyalty and independent professional judgment.

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3
Q

Duty of loyalty

A

A lawyer must act in the client’s best interests, avoid conflicts of interest, and not represent adverse interests without informed written consent.

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4
Q

Attorney-client privilege (definition)

A

Privilege protects confidential communications between a lawyer and client made for the purpose of obtaining or providing legal advice. Applies when the client reasonably believes the lawyer represents them and intends confidentiality.

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5
Q

Attorney-client privilege: Who holds privilege

A

The client holds the privilege.

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6
Q

Attorney-client privilege: Duration

A

Privilege continues indefinitely, surviving the end of representation and even the client’s death.

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7
Q

Attorney-client privilege exceptions

A
  1. Future crime or fraud; 2. Attorney–client disputes; 3. Estate disputes.
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8
Q

Duty of Confidentiality (general rule)

A

A lawyer must not disclose information relating to representation unless the client gives informed consent or disclosure is impliedly authorized.

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9
Q

Duty of confidentiality exceptions: Prevent substantial financial harm

A

A lawyer may disclose to prevent substantial financial harm caused by criminal acts of the client or a third party.

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10
Q

Duty of confidentiality exceptions: Prevent death or serious injury

A

A lawyer may disclose to prevent reasonably certain death or serious bodily harm.

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11
Q

Duty of confidentiality exceptions: Lawyer-client controversy

A

May disclose to establish a claim/defense in a dispute with a client or respond to allegations concerning representation.

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12
Q

Duty of confidentiality exceptions: Secure legal advice

A

A lawyer may reveal confidential information to secure legal advice about compliance with the rules.

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13
Q

Duty of confidentiality exceptions: Compliance with law or court order

A

A lawyer may disclose when required by law or court order.

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14
Q

Duty of confidentiality: Scope

A

Covers privileged information and all information relating to representation, including observations and third-party communications.

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15
Q

Duty of confidentiality: Prospective client

A

A lawyer may not use or reveal information learned from a prospective client, even if no relationship forms.

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16
Q

Prospective client exception: No reasonable expectation

A

A person who unilaterally communicates without a reasonable expectation of representation is not a prospective client.

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17
Q

Informed consent (definition)

A

Consent given after the lawyer communicates all material risks and reasonable alternatives.

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18
Q

Informed consent: When NOT allowed

A

Not allowed if representation violates law/RPC, involves one client asserting a claim against another in the same matter, or the lawyer cannot provide adequate representation.

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19
Q

Implied authority to disclose

A

Disclosure is allowed when impliedly authorized to carry out representation or when sharing with lawyers in the same firm, unless the client instructs otherwise.

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20
Q

Third-party presence and privilege

A

Privilege is destroyed if a non-necessary third party is present, unless they assist communication or are a representative.

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21
Q

Duty of communication

A

A lawyer must keep the client reasonably informed, respond to requests, and explain matters to allow informed decisions.

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22
Q

Competence

A

Competent representation requires legal knowledge, skill, thoroughness, and preparation. Lawyers may accept cases if competence can be achieved through preparation or association.

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23
Q

Scope and authority

A

Client determines objectives; lawyer determines means, after consultation.

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24
Q

Diligence

A

A lawyer must act with reasonable diligence and promptness and must not willfully abandon a matter.

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25
Dedication to client’s interests
A lawyer must be committed to the client’s interests but need not pursue every possible advantage or use offensive tactics.
26
Client funds
Client funds must be kept in a separate interest-bearing or IOLTA account, not commingled, and remain the client’s property until earned.
27
Reporting misconduct
Lawyers should report serious misconduct by other lawyers, but Georgia imposes no discipline for failing to report.
28
Conflict of interest (material limitation)
A lawyer may not represent a client if representation may be materially limited by the lawyer’s own interests unless the client gives informed written consent.
29
Representing directly adverse parties
Representation of opposing parties in the same matter is prohibited, with limited exceptions for diverse enterprises.
30
Material limitation conflict
Exists when there is significant risk the lawyer’s responsibilities or interests will materially limit representation.
31
Opposing lawyers related
A lawyer may not represent a client against an opposing lawyer who is a close family member unless clients give informed consent; not imputed to their firms.
32
Proprietary interest in litigation
A lawyer may not obtain a proprietary interest except for statutory liens and reasonable contingent fees (not in criminal or domestic cases).
33
Providing financial assistance
A lawyer may not provide financial help except advancing litigation costs, which may be contingent on outcome.
34
Business transactions with client
Allowed only with full written disclosure, opportunity to seek independent counsel, and signed informed consent.
35
Business transaction exception
Standard commercial transactions for goods/services marketed to the public are exempt.
36
Literary/media rights
Georgia prohibits negotiating literary/media rights relating to representation before the matter concludes.
37
Gifts from clients
A lawyer may not prepare an instrument giving a substantial gift to themselves or family unless related; unsolicited customary gifts are allowed.
38
Limiting malpractice liability
Prospective limitation is prohibited unless the client is advised in writing to seek independent counsel.
39
Accepting payment from third parties
Allowed only with client informed consent, no interference with judgment, and maintained confidentiality.
40
Aggregate settlements
Representation of multiple clients requires written informed consent for aggregate settlements or plea agreements.
41
Sexual relations with client
Likely violates fiduciary duty and creates a conflict under Rule 1.7(a).
42
Firm imputation
Conflicts of one lawyer are imputed to the firm unless waived with informed written consent after full disclosure and opportunity to consult independent counsel.
43
Material adversity to former client
A lawyer may not represent someone against a former client in the same or substantially related matter unless the former client gives informed written consent.
44
Using former-client information
Prohibited if used to disadvantage the former client, unless allowed under confidentiality rules or the information is generally known.
45
Lawyer switching firms: new firm limitations
A lawyer may not represent someone in a substantially related matter adverse to a former client if the lawyer has material confidential information, unless former client consents.
46
Lawyer switching firms: old firm limitations
A former firm may represent adverse clients unless the matter is the same/substantially related and a remaining lawyer has material confidential information.
47
Former adjudicator/neutral rule
A lawyer may not represent anyone in a matter where they were a judge, law clerk, arbitrator, mediator, or neutral unless all parties give informed written consent.
48
Neutral role exception
A partisan arbitrator in a panel may later represent the same party.
49
Firm disqualification from former neutral
Firm is disqualified unless the lawyer is timely screened, receives no fee, and written notice is given to the tribunal.
50
Employment negotiations with parties
A judge/neutral may not negotiate employment with parties/lawyers in a matter; law clerks must notify their judge first.
51
Former government lawyer: restrictions
May not represent a client in a matter the lawyer handled personally and substantially as a government lawyer unless the agency consents in writing.
52
Former government lawyer’s firm disqualification
Firm is disqualified unless the lawyer is screened, receives no fee, and notice is given to the client and agency.
53
Confidential government information rule
A lawyer with confidential government information about a person may not represent a private client adverse to that person using that information.
54
Firm use of confidential government information
Firm may represent if the lawyer is screened and receives no fee.
55
Government lawyer employment negotiation
A current government lawyer may not negotiate private employment with parties/lawyers in matters they are working on.
56
Prospective client conflicts
A lawyer may not represent a client adverse to a prospective client in the same/substantially related matter if harmful information was received, unless both give informed written consent.
57
Firm conflicts from prospective clients
Firm is disqualified unless screening is used.
58
Duty of loyalty to organization
A lawyer for an organization represents the organization, not the individuals.
59
Representing organization and employees
Permitted if no conflict exists; organization’s consent must come from someone other than the represented employee.
60
Explaining identity of client
Lawyer must clarify they represent the organization, not the constituent, when interests may diverge.
61
Rectifying organizational misconduct
Lawyer must act in the organization’s best interests upon learning of serious violations.
62
Reporting organizational misconduct
Lawyer must report misconduct to higher authority unless not in organization’s best interests.
63
Reporting to highest authority fails
If highest authority fails to act and substantial injury is likely, the lawyer may disclose necessary information externally.
64
Withdrawal due to reporting retaliation
If discharged or withdrawing due to reporting, lawyer must ensure highest authority is informed.
65
Fees
Fees must be reasonable and communicated, preferably in writing, before or shortly after representation begins.
66
Contingent fees
Allowed except in domestic relations and criminal cases; must be in writing and specify calculation method and expense treatment.
67
Advancing costs
A lawyer may advance costs; repayment may be contingent in indigent or contingency cases.
68
Third-party compensation
Allowed only with client’s informed consent, no interference, and confidentiality protection.
69
Referral fees
Lawyers may not pay for recommendations but may pay standard referral-service fees.
70
Firm names
Names must not be false or misleading.
71
Holding out as a firm
Lawyers cannot imply they are a firm unless they actually practice together.
72
Practice areas
A lawyer may state practice areas if truthful and not misleading.
73
Advertising rules
Ads may not be false or misleading or create unjustified expectations; must identify the responsible lawyer.
74
Ad retention
Ads must be kept for two years after last use.
75
Solicitation rules
Written solicitation cannot be coercive, must be labeled 'advertisement,' and cannot target personal injury victims within 30 days.
76
Withdrawal
Mandatory if continued representation violates law or ethics; optional with good cause and no material adverse effect; must protect client’s interests on withdrawal.
77
Duty to avoid prejudicial statements
A lawyer must not make extrajudicial statements likely to materially prejudice a proceeding.
78
Receiving inadvertently sent documents
A lawyer must promptly notify the sender.
79
Special duties of prosecutors
Must seek justice, disclose exculpatory evidence, ensure probable cause, and protect defendants’ rights.
80
Duty of candor to tribunal
A lawyer must not knowingly make false statements, fail to correct false evidence, or fail to disclose controlling adverse authority.
81
False testimony by criminal defendant
Lawyer must dissuade; if client persists, lawyer may withdraw or take reasonable remedial measures, including disclosure if necessary.
82
Improper contact with jurors
A lawyer must not have improper ex parte contact with jurors before, during, or after trial except in narrow permitted circumstances.
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