Legal Ethics

Disclosures Expressly or Impliedly Authorized by Client

(what a client authorizes with informed consent to disclose) 1. Express authorization requires informed consent: client agrees to proposed course of conduct after lawyer sufficiently explains material risks and reasonable alternatives. 2. Implied authorization to carry out representation (except screened member) (When client tells you something, client understands up front. Essentially talking about somebody that has a conflict but is screened out. Beyond that, need express information and get client's informed consent).

Relationship of the Dual Profession Lawyer with Non-Lawyers

- Soliciting legal business: can't use dual profession to solicit - Attorney/client privilege: Does not apply in dual profession. Don't get special real estate broker confidentiality.

Procedure if client insists on lying under oath on stand

1) Attempt to dissuade client 2) Request permission to withdraw 3) Do as instructed (Do whatever judge tells you to do but just don't ask questions if know what client will say. Don't bring back up testimony. Let them perjure.) 4) Give client reasonable notice to get a new lawyer

Elements of "Screen"

1) Written disclosure to the other side (this lawyer works for us now) 2) No working on or discussing case or access to file by "screened-off" attorney (cannot have access to the case) 3) No fee to "screened-off" attorney (Don't want lawyer that can pretend not involved, should be no incentive to and get involved).

Retainer-2 Types

1. Advance on Fees: (don't bill me every hour - put into account as earned) (belongs) to client (goes into trust account) and any unearned portion must be returned if lawyer is fired or withdraws 2. Availability retainer (belongs) to attorney (goes into lawyer's account) (Being paid to be on retainer means cannot sign with anyone else and that lawyer will represent if ever get indicted)

Past Crimes

1. Are considered secrets 2. Death of client does not end obligations (lawyer goes to grave with information).

4 Ways to Temporarily Practice in Another State

1. Associate with an active local lawyer 2. Pro Hac Vice-special permission from the state 3. Clients involved in multi-state business 4. Anything reasonably related to a lawyer's home-state practice

Candor to the Tribunal

1. Can't bury adverse decision (Must bring up adverse case that goes against what saying). 2. No explanation is required to be given to court 3. Can distinguish away 4. Can offer a good faith argument to change the law

Communication with Unrepresented Person

1. Can't give legal advice 2. Cannot appear disinterested when you are in fact an advocate/adversary 3. Can negotiate a transaction or settle client's dispute with un-represented person

Confidentiality expectation exists if

1. Client manifests intent that lawyer represents him and lawyer agrees. 2. Client manifests intent and lawyer fails to make clear that there is no representative and the lawyer knows/should know that the client is reasonably relying on the representative.

Ohio Requirements to Practice

1. Education - degree from accredited school 2. Knowledge - pass bar exam 3. Character - pass C&F evaluation

Requirements of Competency

1. Knowledge and skill 2. Competency through preparation or association (requires controlled workload, seeing case through to completion, reasonable promptness, dedication to client's interests) 3. Maintaining competence (if lacking, must withdraw, update knowledge, or associate with out counsel)

Respecting Rights of Witnesses

1. No contingent fees for experts 2. Can pay reasonable expenses and lost wages, but can't condition payment on testimony 3. No need to obtain permission of other side to interview a witness Except: Corporate employees of managerial responsibility or whose acts could be imputed to corporation requires consent of organization's in-house counsel 4. Can advise witnesses they don't have to voluntarily testify if: a) Person is related to or is an agent of the party that lawyer represents, and b) The person will not be harmed by not volunteering

Current Client Conflicts: Lawyer's Personal Interest or Duties

1. No loans to clients in connection with pending or contemplated litigation; no de minimus exceptions Exception: Advancing costs of litigation (most cannot afford suits) 2. Rule of imputation - what one lawyer can't take, the firm (partners, associates, and "of counsel") can't take (except the lawyer as witness (see below) and where conflict is uniquely personal to the lawyer (sexual relations) -Sexual relationships with clients that are not pre-existing to the representation are subject to discipline; consent or harm irrelevant; no rule of imputation, but screening required. 3. Acquiring an Interest in Litigation (Lawyer can't acquire an interest in the case) Exceptions: a. Contingency Fees b. Security lien (recognizes lawyers interest in their work product)

3 Types of Discipline

1. Public or Private Admonishment 2. Suspension 3. Disbarment

Mandatory Withdrawal

Attorney must withdraw from representation if: 1. Duty to reject 2. Client fraud and refusal to rectify (lying on the stand, but won't fix, need to let go) 3. Client "insists" on violation of law or ethical rule (insists that attorney do something illegal). 4. Client has begun an illegal course of action

Inherant Power of Courts to Regulate Lawyers

Because the practice of law directly affects the administration of justice, courts have the inherent power to regulate the legal profession. State courts - regulate all matters within jurisdiction Federal courts - each federal court has its own bar and lawyers must be admitted to such before can practice in a specific fed court

Fairness to Opposing Counsel

Civility and Courtesy are aspirational.

Former Client Conflict-Imputed on Firm

Lawyer may not represent a person in the same or substantially related matter in which a firm with which the lawyer was formerly associated represented a client: 1) Whose interests are materially adverse to this person; and 2) About whom the lawyer had acquired material information protected by the model rules, unless client gives informed, written consent.

Law reform activities affecting client interests

Lawyer must disclose that she is working in representative capacity. When lawyer works on law reform project and is asked to participate in a decision that would materially benefit a client, the lawyer must disclose that fact (but don't have to identify client).

Meritorious Claims and Contentions

Lawyer must have good faith basis for actions; make only meritorious claims and contentions.

Operating Account

Lawyer's money to run the office

Lawyers representing family

Lawyers related as parent, child, sibling, or spouse shall not represent adverse parties, unless full informed consent; but no rule of imputation.

Publication Rights

No percentage of publication rights based upon representation until case is over, appeals and all. After the fact, then can pay form royalties.

Ancillary (or law-related) services

OK to provide services reasonably performed in conjunction with and related to legal services. NOTE: 1) Non-legal and legal provided together: accounting, financial services, lobbying, then rules apply to both! 2) Non-legal services provided by entity controlled by the lawyer: lawyer must assure that client knows of their interest and that it is not legal services. Failure to do so will mean: rules apply to all services.

When are partners in a firm subject to discipline for misconduct by others?

Partners in a law firm should make reasonable efforts to ensure the firm has measures in place that give reasonable assurance that all lawyers in the firm conform to the Rules and that the conduct of all non-lawyers working for the firm conforms to the Rules. Partner lawyers may be subject to discipline for ratifying conduct by a non-lawyer if the conduct would have violated the disciplinary rules if it had been engaged in by a lawyer. EXAM NOTE: The obligations of partner-lawyers are often tested in the context of paralegals or other non-lawyers making mistakes without the lawyer's knowledge. The outcome depends on whether the firm's procedures and measures existed and were followed. If a question indicates that a subordinate engaged in misconduct without the lawyer's knowledge, check to see if preventative measures (e.g., employee training, an employee conduct handbook) were taken.

Prospective Clients

Prospective Client Conflicts Basic Rule: An expectation of Protection and a relationship will be seen as established if: 1. Client manifests intent that there is representation and lawyer agrees. 2. Lawyer knows or should know that the prospective client is relying on the understanding.

Aggregate Settlement of Claims

When representing two or more clients, lawyer shall not make an aggregate settlement of claims without informed consent in writing from each client after full review of entire settlement as to all parties which includes: A. Clients have come to an agreement among themselves about how the aggregate sum will be shared; B. Disclosure to each client of all the terms including: i. Total amount to be paid or received ii. Must disclose details of every other client's participation (here's who's getting what...want to be sure that everyone thinks is fair) iii. How the lawyer's fee and costs are getting paid. iv. and the existence and nature of all claims, defenses, and pleas involved in the settlement.

Decisions belonging to the client

Whether to: a. Sue b. Settle (must inform client of all settlement offers unless client has specifically and with informed consent, authorized a decision. When offer comes in need to say what do you want to do). c. Testify (in a criminal case) - can advise whether to testify but client's choice d. Plea e. Jury/bench f. Appeal

Procedural and tactical decisions belonging to the attorney.

[law, tactics, and strategy] a. Which court to file in b. Depositions - do we take/not take? c. Discovery - whether + what to seek/produce d. Continuances - whether to request or grant a request EXCEPTIONS: (ie, procedural or tactical issues which belong to client) 1) Case expenses - going to depose 40 people 2) Third person's "well being" - put child on the stand

2) Matter a lawyer in private practice cannot take, when as a government lawyer/judge, he did the work.

a) A contract that was drafted for the government b) Where you ruled on the merits (as a judge - can't say going in private practice soon). However, someone else in the firm can take the case—so long as the former government lawyer is timely "screened."

Permissible Permanent Multi-Jurisdictional Practice

a. Employed by her only client which has several offices Ex: Corporate and government lawyers company all over country. b. Legal services authorized by federal or local law Ex: Admitted to practice before USPTO Consequences: Subject to both states' rules Law firm with offices in more than one jurisdiction may use the same name in each jurisdiction, but identification of the lawyers in an office of the firm shall indicate the jurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located.

Activities that do not require a license (Not APL)

a. Interview people b. Filling in forms c. Writing legal memos

Client-Lawyer Contracts

1. Lawyer can limit representation 2. Basic rules of contract construction apply (needs to be writing in the contract, if ambiguity, construed against the drafter).

Trial Publicity

1. Lawyer connected with case must not make a public statement outside courtroom that the lawyer reasonably should know would have a substantial likelihood of materially prejudicing the case. 2. Lawyer can speak publicly what a reasonable lawyer would believe is required to protect client from substantial undue prejudicial effect of recent publicity not initiated by the lawyer or client. (If prosecution started it, defendant can respond to it). Lawyers MAY state "dry facts" about the case (shouldn't be getting people stirred up about the case and what's going on. Don't say anything but dry facts).

Communication with Represented Persons (other parties)

1. Must go through the client's lawyer. 2. Parties may communicate directly with each other and lawyers may inform them of this fact. (Parties can talk to one another).

Implied Authority to Break Confidentiality

1. Necessary to carry out representation 2. Within a firm Lawyers in a firm may, in the course of the firm's practice, disclose to each other information relating to a client of the firm, unless the client has instructed that particular information be confined to specified lawyers.

Termination of Attorney/Client Relationship-General

1. Need Court permission when matter is in litigation and must return client's property, including the case file and unused portion of retainer. 2. Judge's decision is often affected by the particular state of the matter when the withdrawal is sought. 3. Client has the power to fire the attorney (but attorney can't fire clients)

Grounds of Misconduct after Admittance

1. Violation or an attempt to violate any of the Rules, knowingly assisting or inducing another to do so, or to do so through the acts of another; 2. Commission of an illegal act that reflects adversely on the lawyer's honesty or trustworthiness; 3. Engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation (note that such conduct need not be criminal in nature); 4. Engaging in conduct prejudicial to the administration of justice (note that such need not be criminal or dishonest in nature); 5. Stating or implying an ability to influence improperly a government agency or official; 6. Knowingly assisting a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law; 7. Engaging, in a professional capacity, in conduct involving discrimination prohibited by law because of race, color, religion, age, gender, sexual orientation, national origin, marital status, or disability; or 8. Engaging in any other conduct that adversely reflects on the lawyer's fitness to practice law.

Exceptions to Attorney-Client Privilege

1. Waived by Client 2. Client seeks attorney's service to engage in or assist in future crime/fraud 3. Communication is relevant to issue of breach of attorney-client relationship. (when disclosing information is relevant to breach, will let client defend self, have to disclose privileged information.

Exceptions to Confidentiality Rule

1. Waived by Client 2. Required by law or court order 3. Informed Consent 4. Implied authority to disclose to further the representation 5. Client Fraud or Perjury - 2 prongs 6. To obtain legal or ethical advice for lawyer. Use of hypotheticals with colleague is ok if discrete to protect identity of client. 7. To prevent reasonably certain (used to be imminent) death or substantial bodily harm, (assumes in the future): permitted to reveal information to the extent necessary to prevent the harm which does not need to be the product of a crime. 8. To prevent substantial financial harm or fraud if the client is or has used the lawyer's services in the matter. Also true if the client has already acted and disclosure can prevent or mitigate the consequent financial harm.

Subordinate not responsible for his/her own acts if...

1. You were told to do it 2. And it is at least arguable that you thought what you did was okay (technical mistake)

Malpractice

A charge of malpractice does not necessarily mean a rule has been violated, so there won't necessarily be discipline imposed.

Duty to Report Peer Misconduct

A lawyer generally must report misconduct by another lawyer to the appropriate professional authority when know of misconduct. 2 Pronged Duty: 1. Report what you know; (unless it is protected as a confidence) 2. Be available to testify (no anonymous reporting) EXAM NOTE: The ABA requires lawyers to report the misconduct of other lawyers that raise a substantial question about a lawyer's fitness to practice law. Ohio lawyers are subject to a broader duty of reporting since they must report "a question" concerning fitness to practice.

Lawyer appearing in nonadjudicative proceeding (state legislators-part-time)

A lawyer may serve as a state legislator or hold other public office when permitted by law. The lawyer may not use her public office to attempt to influence a tribunal in a pending matter. A lawyer may serve as a director, officer or member of an organization involved in reform of the law or its administration, notwithstanding that the reform may affect the interests of a client of the lawyer.

Exercising Diligence and Due Care

A lawyer must 1. Reasonably consult with client about the means by which the client's objectives are to be accomplished 2. Keep client reasonably informed about status of/developments in the case 3. Promptly comply with reasonable requests for information 4. Explain matters to client to extent reasonably necessary to permit client to make informed decisions regarding representation. 5. Communicate all settlement offers not specifically addressed in blanket authority from client.

Former Client Conflict of Interest

A lawyer who formerly represented a client in a matter may not thereafter represent another client int he same or substantially same related matter if that client's interest are materially adverse to the interests of the former client, unless the former client given informed, written consent.

Duties of Direct Supervisors

A lawyer with direct supervisory authority over another lawyer or non-lawyer employee must make reasonable efforts to ensure that the supervised person's conduct conforms to the Rules. A layperson assisting a lawyer by preparing legal papers without proper supervision may be engaging in the unauthorized practice of law. Similarly, a lawyer who fails to properly supervise his employees may be violating the Rules' prohibition against aiding a non-lawyer in the unauthorized practice of law. EXAM NOTE: Supervisory obligations are frequently tested. Questions may involve non-lawyers who are not properly instructed on the need to maintain confidential communications.

Client Fraud or Perjury - 2 prongs

A) Client has committed fraud or perjury (past): NOT DISCLOSABLE B) Client is committing fraud or perjury: lawyer must seek to withdraw from the matter and if such effort is denied, OR if withdrawal DOES NOT RESOLVE PROBLEM, then lawyer must disclose the fraud to the judge. Exception: Lawyer has the duty to rectify FALSE TESTIMONY until the end of the proceedings, appeals and all.

Contingent Fee Arrangments

A. Must not use in criminal case (no incentive fee). B. Must not use in domestic relations case 1) "Past due" support payments are debt and therefore okay C. Contingencies Fee must be explained - in writing(s) and must notify the client of any expenses for which they are liable, whether or not the client wins the case. 1) Before you take the case (explain arrangement up front) 2) After the case is concluded (settlement letter) - here's what we've settled for

If Incompetent/lacking legal expertise-Exceptions

A.L.E. 1. Association - will associate self with someone that does 2. Learn - willing to learn but need more time 3. Emergency - lawyer can do what needs to do to handle situation

Third Party Compensation and Influence

Attorney can be paid by a third person, but requires (1) written informed consent by the client and (2) confidences must be kept

Permissive Withdrawal

Can be for any reason where's there's no material harm to client, or if client consents, or Where one of these conditions is met: a) client persists in criminal or fraudulent conduct b) client has used attorney's services to commit past crime or fraud c) client's objective is repugnant or imprudent d) client breaks promise to lawyer to pay the fee e) unreasonable financial hardship for attorney's practice f) client will not cooperate BUT! cannot abandon client. Must take the proper steps to avoid material adverse effect on client.

Concurrent Client Conflict

Can represent more than one client in same matter as long. 1. Reasonable belief of no adverse effect 2. Client gives written informed consent.

Conflict of Interest-Consent Steps

Can take a case when conflict exists if ALL clients give their informed consent and a reasonably prudent lawyer would take the case. STEPS: 1. Client must agree 2. Lawyer explains material risks and reasonable alternatives 3. Client(s) agree in writing Then decide if reasonably prudent lawyer would take case.

Competence

Competence is a 2-pronged duty: Professional Responsibility and Malpractice; committing malpractice does not automatically mean a disciplinary rule has been violated, and visa-versa. Must show that but for what I did, you would not have won. Burden in on the client).

Contingency Fee Requirements

Contingencies Fee must be explained - in writing(s) and must notify the client of any expenses for which they are liable, whether or not the client wins the case. 1) Before you take the case (explain arrangement up front) 2) After the case is concluded (settlement letter) - here's what we've settled for.

Contingency Fee

Contingent fee arrangements - must be reasonable; signed by client. -No criminal cases -No publication rights -No domestic relations case Exception: "Past due" support payments are debt and therefore okay

Lawyer Representing an Entity or Other Organization

Corporate representation - lawyer represents the corporation/entity, not an individual officer or director Revealing confidential information should only be done to extent necessary to protect corporation.

Respecting Rights of Jurors

DURING TRIAL: No lawyer connected with the case can talk about case with a juror unless authorized by law or court order. (only speak to during opening and closing). No de minimus exception AFTER TRIAL: Must not communicate if any of these 3 conditions is met: 1. Court says not 2. Juror says doesn't want to, doesn't have to 3. If purpose is harassment

Licenses in more than one state-Discipline

Discipline by one state does not mean the other will discipline you. They will do their own valuation first. But a lawyer licensed in Ohio is subject to discipline even if his conduct takes place elsewhere

Documents/Fax by Mistake

Documents sent to lawyer by mistake - must promptly notify sender Errant fax problem. Something that comes to you that's not for you.

Reasonable vs. Excessive Fees

Excessive fees and Minimum fees are prohibited. Factors in setting a reasonable fee a. Time and labor b. Difficulty and novelty of questions c. Experience, reputation and abilities d. Relationships: nature and length e. Exclusions (whether lawyer must turn away other cases if client knows of this) f. Fixed or contingent (contingent can be higher) g. Fees customarily charged

Fee Splitting within a firm

Fee Splitting within a Firm Attorneys in the same law firm, by agreement, may legitimately share or split fees earned by any of them. Fees may even be shared with an attorney who has retired from the firm.

Fee Arrangement

Fee arrangement (scope of representation, basis or rate of fee, and expenses for which client will be responsible) shall be communicated to client before (or within a reasonable time after) representation starts. Exception: When a lawyer will charge a regularly represented client on the same basis or rate in subsequent matters.

Imputation upon lawyer's termination with Firm

Firm not prohibited unless: 1. Matter is same or substantially related to that in which the formerly associated lawyer represented the client; and 2. Any lawyer remaining in the firm has information protected by confidentiality and relating to using or revealing information pertaining to the representation that is material to the matter.

Disputed Claims

Following the receipt of settlement, the lawyer must notify the client promptly, keep records, render accounting, and pay out promptly. If disputed, that portion remains in the client trust account.

Duty to Accept Cases

General Rule: A lawyer is not under a duty to accept representation of any client. Exceptions: 1. COURT APPOINTMENTS must take so long as no good cause exists to decline. Good cause to decline representation exists if: a) Representing the client is likely to result in violation of the Ohio Rules of Professional Conduct or other laws; or b) Representing the client is likely to result in an unreasonable financial burden on the lawyer. 3) UNDERTAKING REPRESENTATION Once a lawyer undertakes representation, the full range of obligations and duties to a client exists. The lawyer is both a fiduciary and agent of the client. [Also: Defenseless or Oppressed client: should take Fair share of pro-bono: should take]

Fee Splitting w/ Nonlawyer

General Rule: CAN'T DO IT! Exceptions: 1. Errors of a deceased attorney 2. Employees in the form of salaries and as part of pensions or bonus plans 3. Lawyer may share court-awarded legal fees with a non-profit organization that employed, retained or recommended employment of the lawyer in the matter. (pro-bono work)

Restrictions on Right to Practice

General Rule: Can't do it! Exceptions: 1. Retirement 2. Settle a claim (dispute) Solo Practitioner has a special duty to plan for death or disability by designating another competent lawyer to review my files, notify clients, take protective action (so nothing goes wrong).

Limiting Malpractice Liability

Generally, cannot limit liability prospectively UNLESS client has independent representation in making the agreement. (When client asks to take case and you say that you're incompetent but client is insistent, you can protect self).

IOLTA

IOLTA (or similar) means: (Interest On Lawyer's Trust Accounts) Lawyer doesn't get the interest, doesn't go to clients. Money is swept out and given to Ohio Legal Assistance Foundation.

Procedure if learn of violated duty within corporation.

If lawyer for organization learns that an act has been or is about to be committed in a way that violates a duty to the organization or a law in a way that might be imputed to the organization, AND if the violation is likely to cause substantial injury to the organization, the lawyer must proceed as is reasonably necessary to protect the interests of the organization. 1. Must report violation to higher authority (president) and to outside directors if necessary. 2. May report relevant information to appropriate persons outside the organization only if, and to the extent that, the lawyer reasonably believes such reporting is necessary to prevent substantial injury to the organization. 3. Narrow range of discretion: lawyers need not report violation if she reasonably believes that the organization's best interests do not require the violation to be reported.

Safekeeping Funds and Client's other property

If other than money, Lawyer must safeguard client's property

Conflicts of Interest-Generally

In general lawyer cannot represent adverse interests of client or prospective client. In some instances, conflict can be cured if BOTH of the following occur: 1. Lawyer fully explains risks and alternatives (informed consent) 2. Client agrees in writing (can be electronic) ALWAYS a conflict to represent a current client against a current client. CANNOT undertake even with consent.

Supervisor responsible for acts of subordinate if...

In general, a lawyer is subject to discipline for acts of misconduct committed by another if the lawyer 1. ORDERS the misconduct ("I need you to go bribe the jurors"). 2. RATIFIES the misconduct with knowledge of the specific conduct ("I bribed the jurors." "Good job!"); or 3. Knew of misconduct at a time when consequences could be avoided or mitigated and the lawyer fails to take reasonable remedial action.

Judge/Government Employee Conflict

Judge or government employee who later goes into private practice may not represent a party on a matter she or he worked on personally. RULE: Cannot take "matters" where previously acted or had substantial responsibility absent written informed consent, but no rule of imputation—so long as lawyer is "screened off" from the case. "Matter" is specific facts with specific parties

Record Keeping

Keep records for 7 years after termination of case. Includes fee agreement, record for each client on whose behalf funds were held, each bank account, and all statements, slips, and cancelled checks for each account. Perform monthly reconciliation.

Lawyer as Director of Company

Lawyer can be a director of company, but no attorney-client privilege in board meetings.

Exception to Concurrent Conflict

Lawyer can represent despite concurrent conflict if: 1. Can provide competent and diligent representation to each affected client; 2. Representation is not prohibited by law; 3. The representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and 4. Each affected client gives informed consent, confirmed in writing.

Acquiring an Interest in the Case

Lawyer can't acquire an interest in the case. Exceptions: a. Contingency Fees b. Security lien (recognizes lawyers interest in their work product)

Business Transactions With Clients

Lawyer can't enter into a business deal with a client. Exceptions: 1. If an ordinary transaction 2. As long as the terms are fair (really just an issue when go in on business decision together) Requires in writing: a. full disclosure of terms b. advised to get independent counsel c. informed consent, signed by client

Client Trust Accounts

Lawyer must keep all clients' money in a separate (trust) account in the state where the lawyer practices, (UNLESS the client: Consents to the account being elsewhere). No commingling of lawyer's money with client money. For small sums, may use a Pooled trust account— but cannot use one client's money for the benefit of another client. For a large sum held for a long period of time, must be separate interest-bearing account with interest going to client. (Different states define small amount in different ways) Exception: Lawyer money can cover bank service charges

Work Product Doctrine

Material prepared by a lawyer for or in anticipation of litigation is immune from discovery unless the other side shows a substantial need for the material and an inability to gather the material without undue hardship. A lawyer's mental impressions or opinions are always immune from discovery regardless of need, unless immunity is waived.

Lawyer as Arbitrator, Mediator or Other Third Party Neutral

Must explain that there is no attorney-client relationship to an unrepresented party. They should know that lawyer doesn't have a A/C relationship with them. Have to let them know cannot do that. If litigation, must withdraw If mediation doesn't work, must withdraw.

Prosecutors and Other Government Lawyers

Must not prosecute without probable cause Assure the accused is advised of his right to counsel, knows how to get counsel, and is given a chance to get counsel. Must seek to remedy the conviction of a defendant in his/her jurisdiction if he/she knows of clear and convincing evidence that the defendant was innocent. Disclose new, credible and material evidence that creates a reasonable likelihood that a defendant was wrongly convicted. Prosecutors have duty to do job fairly!

Concurrent Conflict of Interest

Must not represent client if doing so would be: 1. Directly adverse to the interests of another current client; or 2. There is a significant risk that the representation of the client will be materially limited by the lawyer's personal interests or responsibilities to current client.

Imputation of Conflict onto Firm

No lawyers in firm can represent client where conflict exists with another client (former/concurrent) unless: 1. Prohibition is based on a personal interest of the prohibited lawyer and no significant risk of materially limiting the representation of the client by firm's remaining lawyers; or 2. Disqualified lawyer was properly screened, and gets no part of fee, and former client given notice.

Confidentiality

Privilege protects confidential communication; confidentiality covers the same AND any other information obtained by the attorney relating to representation, regardless of the source including that which may be embarrassing or derogatory to the client. Privilege is held by client and NOT by the attorney. Presence of Third Person: does not destroy confidentiality if the third person was present to help further the attorney-client relationship.

When does a Attorney-Client relationship begin?

Reasonable belief of representation The lawyer-client relationship begins when the client reasonably believes the relationship exists. No formal writing or agreement is required. EXAM NOTE: Look for casual conversations between a lawyer and a potential client; if the facts indicate the client reasonably believes the relationship exists, it does.

Civil liability for incompetence including malpractice

Recovery comes from cause of action based in: contracts, torts, or fiduciary relationship Requires money loss and causation Purpose of civil malpractice claim is compensation (client would have won except for us).

Sale of a Law Practice

Requirements for Valid Sale 1. The entire practice or entire field of practice must be sold. 2. Seller must exercise competence in identifying a competent purchaser. 3. Written notice must be given to seller's clients regarding: a) the sale b) client's right to get their files returned c) client's right to get new counsel d) consent will be presumed if the client takes no action within 90 days of the receipt of the notice. If notice cannot be given for some reason, then a court order is required to authorize the transfer of the representation. 4. Seller must cease to engage in private practice of law (or at least in the sold field). 5. Purchaser must take (not only tell) all cases, can't say taking these cases, if buy them all, have to sell them all.

Lawyer as a Witness

Rule: Lawyer can't be necessary witness for client Exceptions: a. Uncontested matter (can testify) b. Legal fees (testify) c. Substantial Hardship to the Client (complete retrial would cost thousands). Disqualification not imputed to other members of firm.

Security Violations - Sarbanes-Oxley Act

There is a Duty of Securities lawyers to report up the chain of command to CEO; If not appropriate response, must report to board of directors and may report to SEC. (When it comes to securities lawyers need to work way up command). Consequences of Reporting: SEC protects lawyer.

Diminished Mental Capacity Client Decisions

When client is under diminished mental capacity, or is a minor, client decisions do not shift to lawyer. Rather, you must have a guardian appoint But, the lawyer should both respect and involve the client as much as possible for input on decisions that impact the client's well-being.

Matters former government lawyer/judge can take even though did the work...

a) Drafting laws b) Compiling statistics

Duty to Reject Cases

a) Physical or mental inability b) Conflict of interest c) Frivolous claim or defense d) Strong feelings or bias e) Incompetence/Lacking the legal expertise

Activities that require a license-(APL if not licensed)

a. Appearing in court and at depositions b. Drafting documents that impact substantial legal rights (trust, will, contract) c. Negotiating settlement

Lawyer as an Adviser

a. Client entitled to all information—entitled to candid advice b. Should give legal, moral, economic, or ethical advice

Lawyer as an Evaluator

a. Must be compatible with other aspects of representation, and b. Client's written informed consent c. Must be truthful in the evaluation; if harmful result, get informed consent in writing Get them to sign up front.