Docstoc

220

Document Sample
220 Powered By Docstoc
					   1.0
          o 1.0(b) – “confirmed in writing”
          o 1.0(e) – “informed consent”
          o 1.0(n) – “writing”
 1.1 – Competence
     o Several factors
     o Several means of assisting, increasing competence
     o Thoroughness and Preparation
 1.2 – Scope of Representation
          oa
                  Client decides objectives
                  Consult with client regarding means
          o b - Just because you represent someone doesn’t mean
            you agree with them.
          o c - Reasonable limitation on scope of
            representation
          o 1.2(d) – Don’t help a client break the
            law.
               “There is a critical distinction
                between presenting an analysis of
                legal aspects of questionable
                conduct and recommending the
                means by which a crime or fraud
                might be committed with
                impunity.”
               Duty to withdraw upon discovery
                of criminality or fraud
               Duty to give notice and disaffirm
                upon discovery of criminality or
                fraud
   1.4 – Communication
        o Tell client
               Whatever is necessary regarding informed consent
               Your perception of appropriate means and objectives in representation
               About the status
               Answers to his questions
               What you can’t do, when relevant
        o Do it so client understands.
 1.5
        o 1.5(a) – Unreasonable fees -8 factors
              Not exclusive
              Arrangements should be in writing
        o Tell the client
        o Contingency fees
        o 1.5(d) – Prohibited contingent fees
              Divorce matters
              Criminal matters
        o Inter-firm fee division
              Proportional
              Client agrees
              Reasonable
 1.6 – Confidentiality
     o a – Informed consent
     o b – Exceptions (permissible, not obligatory, disclosure)
           Risk of death or substantial bodily harm
           Prevent crime, fraud, substantial bodily harm
           Prevent, mitigate, rectify substantial injury to finances
             of 3d party resulting from client’s fraud or crime
           Getting more legal help
           Legal self-defense
           Court order
     o Comments
           “A lawyer’s use of a hypothetical to discuss issues
             relating to the representation is permissible so long as
             there is no reasonable likelihood that the listener will be
             able to ascertain the identity of the client or the
             situation involved.”
           Overriding value of life and physical integrity
           Privilege builds on privilege
 1.7 – Conflicts of Interests: Current Clients
     o Text
           Prohibited concurrent representation
                 Directly adverse
                 Risk of interfering with responsibilities to other
                   clients
           Permitted exceptions
                 Lawyer believes it’s OK
                 Not prohibited by law
                 Not same matter
                 Informed consent
           Casebook
                 Identify client(s)
                 Determine whether a conflict exists
                 Determine whether conflict is consent-able
                 Consult with client, obtain informed consent
   1.8 – Conflict of Interest – Current Clients – Specific Rules – REVIEW
       o (a)
                Don’t go into business against client except as casebook directs:
                Casebook
                    Transaction must be fair
                    Advise to seek independent counsel
                    Informed Consent
       o 1.8(d) – No book, etc., deals before representation concluded
 1.9 – Former Clients
     o Do not go against former client in same or substantially related matter.
     o Do not take on new client if your old firm
            Represented someone on the opposing side in the same or
              substantially related matter
              Gave you protected information about the client relevant to
                the matter.
       o If you or your firm has represented someone
              Don’t use confidential information against the former client.
              Don’t breach attorney/client privilege.
 1.10 – Imputation
      o If one lawyer in a firm is disqualified, they all are, unless the disqualification
          results from a personal interest of the attorney.
      o If a lawyer leaves a firm, the firm can take on clients in postures opposing the
          departed lawyer’s clients, unless
               the matters are connected to the matters handled by the departed lawyer
                  for the departed client, AND
               any remaining lawyer has confidential information from the departed
                  lawyer/client relationship.
      o These disqualifications are waive-able.
      o Special provisions apply when one “firm” is the government.
 1.11 – Conflicts for Government Lawyers
      o (a)
               See 1.9c
               Don’t represent a client in a matter you worked on for the government
                  unless the government gives informed consent.
      o (b) If a lawyer in a firm is disqualified under (a), the firm is disqualified unless
               screen the former government lawyer
               tell the government
      o (c)
               Can’t use confidential government information against whomever the
                  information is about
               Can’t take on case.
               Firm can, if former government lawyer is screened.
      o (d) Government lawyers
               Are still subject to 1.7 and 1.9
               Can’t
                       Handle cases handled for private clients before beginning public
                          practice (government can give informed consent)
                       Try to get a job handling cases they’re handling for the
                          government.
      o (e) Special definition of “matter”
 1.12 – Former judges, etc.
 1.13 – Organizational clients – Reporting Up
     o Lawyer represents organization through its constituents.
     o Report to higher-ups in organization breach of fiduciary duty
       by lower constituents.
     o (c) If
            the highest-up does nothing AND
            the breach of fiduciary duty will lead to “substantial
             injury” to the organization THEN
            you MAY reveal the breach.
     o (c) doesn’t apply when you’re defending the organization or
       its constituents
     o If you’re fired or forced to withdraw, you retain your duty to
       report up.
     o Remind the actual people you work with that you represent
       the organization, not them.
     o If there’s no conflict of interest, you can represent the actual
       people you work under at the organization in addition to the
       organization.
 1.15 – Safekeeping property – trust accounts
     o Duty not to commingle
     o Duty to maintain records
     o Duty to notify promptly
     o Duty to deliver
     o Duty to render a full accounting
 1.16 – Declining or Terminating Representation
    o Required declensions, withdrawals
          Violation of the MRs
          Lawyer CAN’T
          Discharge
    o Permissible withdrawals
          No “material adverse effect on the interests
           of the client”
          Client persists in crime or fraud
          Client used lawyer to commit crime or fraud
          Prof. Walker’s favorite: “Repugnant” client
           action
           Client doesn’t pay, etc.
           “Unreasonable financial burden on the
             lawyer”
           Etc.
       o Get court’s permission
       o Do it nicely.
 2.1 – “independent professional judgment” / “candid
  advice”
   3.1 – Meritorious Claims and Contentions (compare FRCP 11?)
        o Good faith basis in law and fact
        o Except where a criminal record or imprisonment is on the line, then force the
           prosecutor to make his case
   3.3 – Candor toward the tribunal
        o Don’t:
                Lie, watch others lie
                Conceal damaging precedent
                Watch others lie
                [But you have to know, not just believe, they’re lying.]
        o Don’t watch others lie.
        o Keep it up until the matter’s over.
        o Full disclosure in ex parte proceeding.
 3.4 – “Fairness to Opposing Party and Counsel” [EVER DISCUSSED?]
     o (f) – Don’t tell someone to keep quiet,
             unless they’re
                    an employee or
                    relative of the client
             and the muted person won’t be adversely affected by his
               silence.
   3.3 – Candor toward the tribunal
        o Don’t:
                Lie, watch others lie
                Conceal damaging precedent
                Watch others lie
                [But you have to know, not just believe, they’re lying.]
        o Don’t watch others lie.
        o Keep it up until the matter’s over.
        o Full disclosure in ex parte proceeding.
   3.7
        o (a) lawyer can’t be witness unless
                uncontested issue
                  about fees
                  “substantial hardship” on client
                  CB
                       Designed to prevent prejudice in the tribunal or opposing party, not
                          the client
                       Therefore, not waive-able
       o (b)
                  another lawyer in lawyer’s firm may be witness, unless precluded by 1.7
                   or 1.9
                CB
                        Designed to protect client
                        Therefore, waive-able
   3.8 – Special Responsibilities of a Prosecutor
   4.1 – Truthfulness: Don’t
        o Lie to anyone
        o Keep quiet, allowing crime or fraud, except when information is protected by
           attorney-client privilege.
        o Applies only to statements of fact.
 4.2 – Communication with Represented Person – Don’t do it without
     o the presence,
     o knowledge, or
     o permission of the other’s lawyer,
     o unless the law or the court says it’s OK.
 4.3 - Unrepresented person
     o Tell him whom you represent.
     o If possibly adverse, give no advice, except to get independent
        representation.
 4.4 – Respect for Rights of Third Persons
     o Have it.
     o Send back, etc., documents accidentally in your possession.
   5.5 – Unauthorized practice of law
   5.6 – Restrictions on Right to Practice
        o Nothing like a covenant not to compete, except regarding retirement
        o Restriction on lawyer’s right to practice as part of a settlement
   7.1 – Don’t lie, mislead, omit material facts.
   7.2
        o Permits advertising
        o No referral fees, except
                 Advertising expenses
                 Regulated referral services
                 Purchase of a practice
                 Under reciprocal referral agreements, if
                        Agreement is non-exclusive
                        Client is informed
   7.3 – Direct contact with prospective clients
        o Don’t contact a client to make money, unless the potential client is
                a lawyer
                a friend
        o Don’t bug people.
        o Identify “Advertising Material”
        o OKs referral agreements
   7.4
        o You may state your legitimate specialty.
        o You may not mislead regarding “certification.”
 7.5 – Firm Names and Letterheads
 8.4 – Misconduct
      o Violate the rules, help others violate the rules
      o Crimes involving fraud, legal profession
      o State or imply ability to influence apart from Rules, law

				
DOCUMENT INFO
Shared By:
Categories:
Tags:
Stats:
views:8
posted:8/27/2011
language:English
pages:8