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Legal PROFESSION
| Question | Answer |
|---|---|
| roles of lawyer | Integral to accessing government power and protecting people from government power – guardian of due process need to commuicate- SPAULDING |
| Lawyer regulation | highest courts for states and federal - gov orgs |
| R: Admission t the bar | ABA school, MPRE, Cjaracter and fitness, pass the bar |
| LR: Discipline process | Intake and investigation, Charging decision, Filing of formal charges or complaint, Panel hearing and decision, Appeal to full board, Appeal to state supreme court |
| LR: D: Sactions | Disbarment, suspension, public reprimand, private reprimand- court may order- restitution, treatment program and other sanction |
| LR: D: FACTORS | Factors- aggravating: Prior offenses, Dishonest or selfish motive, Pattern, Multiple offenses, Cooperation, Submission of false evidicne during disciplacy process, refusal to Ackolege wrong doing, Faill to maek restitution, Vuniabit of victims op mitgat |
| LR: RULE- 8.4 misconduct | knowingly- act that refelcts adversly on lawyer honesty, trustworthness, fitness, conduct with fraud, decit, or PREJUDICAL |
| LR: Rule - 8.5- disciplinary authority | liciesed and prcaticeing int, before tribunal considerstion of primary effect |
| lr: rule 8.3- reporting professioanl miscondcut | knows and substaital question of hoensty, truttworthness, fitness- consideration of 1.6- ask cleitn for permission |
| Legal Malpractice | Breah of an express or implied contract, Breach of fiduciarcy duty(PUNITIVE DAMS), Breach of a duty of ordinary care or negligent - Prove: duty- RC unless held out, breach , casuaetion, damages plaintiff- The client and certain third parties - |
| Attorny- cleitn relationship: formation | Formed Expressly or impliedly – doe not have to be written Implied – Receive confidential information from a person and then provided legal advice- |
| ACR: Duty to prospective clients | A person who consults with a lawyer about the possibility of forming a client- lawyer relationship with respect to a matter is a prospective client 1. Still a duty to provide competent legal advice a. Regardless or express or implied contract |
| ACR: ALLOCATION OF POWER- | means v. object , red dog |
| ACR: Entity theory | A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents – 1.13a |
| ACR: Entiy mirdana- | a. The lawyer represents the organization b. The lawyer cannot represent the individual c. The individual may wish to obtain independent representation d. Discussions between the lawyer and the individual may not be privileged* |
| ACR: UP AND OUT | substainal injury to the comapny go up and then out if they dont do it, exception if hried for issue cant go out - same for gov |
| ACR: insured | 1. Insurance company, lawyer, and insured 2. Lawyer represents: a. Always the insured; sometimes the insurance company is a joint client - LIMIT BY 1.2C reasonabel under circs |
| ACR: Dimished capacity | try to maintain a normal relationship, seek protective action if needed, allowed to revarl information to necessary extetn |
| ACR: Fiducary duty | Attorneys must act as fiduciary of their clients even when the lawyers interest and the client interest diverge- duties include- lots on moeny stuff |
| ACR: FEES | sepreation and suhc 1.5 specail for contigency - need wiritng and expalin money |
| ACR: FEES: CONTINGECNT | e fee is to be determined, Litigation and other expenses to be deducted, such expense are to be deducted before of after, any expenses that the client must pay whether or not the client prevails, In writing before and fater- after with stuff above |
| ACR; Fraudelent fee | often cosndieration of reasonable- no doubel billing, fee chruicng and such |
| ACR: DUTIES WITH FUNDS | segregation, record keeping, notification, delivery, accounting RUEL 1.15 |
| ACR: TERMINATING REPERSENTATION | cleints chocie, mandatoy and permissive, court approval |
| Fundemental duties of a lawyer | comptence, leganal knowlega and skill, throughness and prep, diligence, communcation |
| FDL: COMPETENCE | Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.- IEX- study or assocation |
| FDL: DILIGENCE | A lawyer shall act with reasonable diligence and promptness in representing a client |
| FDL: Communication | promtly inform, reaosnblu consult, shall exmplain |
| fdl: iac | CRIMINAL ONLY - 6TH RIGHT- test strckland v. wahsington - deficent performance of counsel and prejudice - some cases where prejudice is presummed- dempends on cir |
| CAW: Confidentiality | infor relating to repersentaion- unless informed consent, impliedly authorized or exception of part b - harm, fraud, rectify injury, legal advice, establsih claim, court order, employemnt changes - reaosnbel efforts to prevent issue |
| CAW: Att- client- | a communication made between privliged person in confidence for the purpose of obtaining of providing legal assistance for the client |
| CAW: ATT-CL- ORG | New rule: Privilege covers communications between organization’s lawyer and all organizational employees acting within the scope of their employment- govenr emtnt common intrest doctrien |
| CAW: Att-cl- Waivers | Client consent, voluntary disclosure to a third party, protecting the privilege in litigation – timely object, selective waiver- mostly rejected, partial disclosure- consideration for subject matter, inadvertande discolure |
| CAW: Att- CL- Exceptions | crime-fruad, joint-cleints, self-defense |
| CAW: Work product | FRCP 26(b)(3): “Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney…). - orgirany v. opinion |
| Conflicts: current | current - 1.7- directly adveres or significnat risk of materali limited, exception - rb, no prohibited, infomed consent, not one cliam agsint other clinet by same lawyer |
| C: civil v. criminal | civil -joint reprentations is ussaly ok, hough concner when posisbel clim or limtied fund- do a 1.7b crimi- ussalu no |
| Current: repersentaiton of subsariy | 1. lawyer who represents a corporation or other organization does not, by virtue of that representation, necessarily represent any constituent or affiliated organization, such as a parent or subsidiary |
| Current- postional | conflict of interest exists, however, if there is a significant risk that a lawyer's action on behalf of one client will materially limit the lawyer's effectiveness in representing another client in a different case- precedent |
| current - personal | Rule 1.8(a)-(j) governs lawyer conduct in some very common personal-interest conflict situations 1.7 - significant risk representation will be materially limited by the lawyer’s responsibilities to client by a personal interest of the lawyer.” |
| Curent- persoan - 1.8 | specif situation each with own requriemnts- buenses transaction, infomation that could disdvanatge, soict for gifts, media rigths, finaicala ssiate and exceptions , comepnsation from another, aggregate setltment, malprcatcie claims, propetary intrest, sex |
| Curect- witness- | cant be advocate and witness- unles uncontesed, substantial harm, or about services. |
| former cleints | ruel 1.9 - in same of substaitnly related infoor use information to disadvantage - subslatial realtionships |
| former- advance waier | 1.7- comm 22- depemds on understisnd og clcien treally- limited in what can be done |
| Prosepective client | shall not rep another if learned confidnetial information during prospective meeting- in significatly harmful |
| third person conflcits- | significnat harma nd also the payemtn by another |
| imputation | when the firm also cant take it there are certain one- do doubel check |
| nonprofit and court annexed limited leagl services | short term legal services- unless knows |
| conflict of intrests for current and former in gov | shall not repersent a client in connection with matter in hich the lawyer participated personally and substaitly - give notice get gov consent |
| special conflcits- judeg \ | lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer ” without informed consent of all parties |
| FA: Meritorious claims and expediitng litigation | : “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous |
| FA: Fairness to opposing party and counsel | unlaw obsturct unlawfully alter destroy or conceal a document or falsify evidicne counsel or assit a witness to testify falsy |
| FA: Candor to court | honest to court, depends on ex parte, telling of even adverse amterial facts |
| clint- false testimony - | civil litigation - reasonably belives |
| FA; Witness prep | 1. Can: suggest language, mock cross- s long as true – issue of authentic |
| fa: no contact rules | rule 4.2- only with lawyers consnet, though client can talk to each other |
| i. Communicating with unrepresented Persons | make clear not there alwyer, never be disintrested, shall not give legal advice |
| turthfullness in statement to others | not knowingly make false statements, fail to discolse a material fact to a third person when discolusre is needed to avoid assting a criminal or fraudulent - outside tribunial - confidnetlayty trups candor |
| Rule 3.5: Impartiality & Decorum of the Tribunal | ex parte communcation, disscussion wht jurors |
| EC: Prosecutor | rule 3.8 - probabel cause and brady info |
| EC: Criminal attorny | ruel 3.4- punts to law , evdicne and concealemnt, and putting client on stand narrive and knowingly |
| unathoirized practcie of law | ruel 5.1 reasoanbel efforts and measures, simalr to 5.3 , 5.2- subtoate attorny - question though, |
| UPL: Lawyers independnece | use of 5.4 and 7.2 - multidiciplanry practice, fee sharing, no comenatse non-lawyers , prohibtion on non-lawyer financial investment in or control of law firms |
| UPL: Reestriontion of practing law | Rule 5.6: “A lawyer shall no t restricts the right of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement; orbagreement in which a restriction on the lawyer’s right to practice settlement |
| UPL: Practice of law | sell place or practcie , limited practcie, notice, and fees dont chnage |
| UPL def | without a licnes e |
| UPL: MUltip jurisdictional - | rule 5.5 - cer cirs where cane pratcei assoant or aribation or such - reaosnbely related - factors of chocie of law and such |
| Ma: Communication v. solicitation | Rule 7.3(a): “a communication initiated by or on behalf of a lawyer or law firm that is directed to a specific person the lawyer Rule 7.3(b): “A lawyer shall not solicit by ‘live person-to-person contact |
| MA: Summary | 1. Is there solicitation – 7.3 a. No, i. Then not false or misleading – 7.1 ii. Then 7.2- naming, certs, claims, garutnres 1. And its comments 2. THEN IS there a DISCLAIMER a. May be okay , but no then issue prob |
| MA: Marketing - con | 1977: Bates v. State of Arizona (Court struck down Arizona prohibition as it applied to truthful advertising)- |
| MA: M: CON: EXPANSION | Areas of practice (RMJ) Certified Trial Specialist trial Advocacy” (Peel) CPA and certified financial planner (Ibanez) Newspaper ad targeting those who suffered injuries from Dalkon Shield (Zauderer) Direct mailings to potential clients (Shapero |
| MA: M: CON: EX:ELABORATION | Florida rules prohibited plaintiffs’ lawyers from contacting accident victims or their families for 30 days following the incident. |
| MA:M :COM | Consideration marketing has some societal value (information about the law, information about the lawyer – leads to constitutional protection Commercial speech – intermiedate scrutiny |
| MA: M: RULES | a. Rule 7.1: “A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading.” (More general/ broad audience) b. Rule 7.2: Specific rules |
| Ma: M:rules: comm | 1. COMM: 3.1- May create unjustified expectation in client/ unsub compareison - Flordia bar v. pape – use of central hudson test ii. COMM 5: 7.1- talks about firm names and communications COMM 9 - commun about that – what law they prac |
| MA: Regulation: Sol: con | prohibited solicitation some limited exceptions. Attorney Ohralik solicited two clients hospital and one at home. challenged his suspension upheld Ohio’s solicitation ban is constitutional as applied to Ohralik |
| MA: Reg: SOL: Rules | Rule 7.3(a): Solicitation is “a communication initiated by or Rule 7.3(b): “A lawyer shall not solicit professional employment by live person-to-person contact law firm’s pecuniary gain” Comment 2: “‘Live person-to-person contact’ |
| JE | 1. Federal judges are subject to the Code of Conduct for United States Judges (also based on Model Code)- separate code 2. U.S. Supreme Court Code of Conduct (2023) |
| JE: Canon 1 | i. A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid the impropriety and the appearance of impropriety |
| JE: Cannon 2 | perform the duties of judicial office impartially, competently and diligently- 2.2: “uphold and apply law…”Ensuring integrity of the decision, 2.3(A): “without bias or prejudice” 2.9(A): no improper ex parte, 2.9(C): no independent factual inves |
| JE: Cannon 3 | A judge shall conduct the judge’s personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office 3.6, 3.2, 3.13a |
| JE: Discipline | 1. Disqualification when “the judge’s impartiality might reasonably be questioned.” Jud. R. 2.11. objective standard issues of - friend sand socal media CHENEY CASE |
| JAccess: civil gideon | i. No Constitutional right to counsel in civil cases- Gideon attempt to change this |
| Access: justice gap | 1. Where can a person go who needs a lawyer but can’t afford one? a. Free legal services, non-profits law school clinics, pro bonos b. Many people unaware they are having a legal issue |
| A: Solutions | Providing Better Resources for Self-Represented, Simplifying court procedure, Mandatory Pro Bono-6.1,Technology, Regulatory Change, Non-lawyers delivering legal services a. Unbundled legal services 8. Rrgualiton of the legal profession |
| AI/Future: Use | risks but efficent 1.1- competence and COMM 8 to 1.1, 1.6 – confidentiality – iii. 1.4- communication- should talk to client iv. 5.1- supervision – also 5.3 considerations v. 1.5- fees – reasonable so this effiecny will change that |
| AI:F: hALUICATION | lawyers and judges alike - fallen prey 1. 1.1- competence 2. 3.3- false statements to the court 3. 11- federal rules of civil procedure 4. 3.1- frivolous arguments |
| A/FL other risks | with AI can lead to sanctions, reprimand, pro hac vice revoked, payments, stuck briefs, sanctions e. Other issues 1. Privilege 2. The Haves vs. the Have Nots 3. The future of law practice/the future of law school 4. Other comments/questions |
Created by:
Vanderhoof_