Exam 2 Judicial Processes

sovereign immunity

"The king can do no wrong". You cant sue the government, without its consent. If you sue the government and win, the government would have to pay you out of the tax money. Its literally like suing yourself.

Ethical Rules

1. Competence 2. Fees 3. SafeKeeping Property 4. Confidentiality 5. Conflict of Interests

Where does the law come from (four sources of law) where limitations to Access to Courts are found or (Limitations on Judicial Relief)

1. Constitutional Law 2. Statues 3. Case Law 4. Administration

Sanctions

1. Reprimand- Lower Level Punishment- A warning, usually verbal. 2. Suspension-license 3. Disbarment- When a lawyer is expelled from the Bar (the bar association they belong to), so that they no longer have the right to practice law.

DEFUNIS v. ODEGAARD (1974)

1974. Plaintiff sued law school for discrimination against whites. He was admitted to the school pursuant to a trial court preliminary injunction. When case reached the Supreme Court, the plaintiff was in his last year of school and the law school said he could finish. Case dismissed on mootness because there no longer was a controversy.

Limitations Established by Statutes: TORT REFORM

A law that limits the amount of damages you can get when suing someone. Changes to law designed to make it harder for plaintiffs to sue, or designed to reduce the potential compensation available after a lawsuit has been filed and won

Fee Splitting

A single client bill covering the fee of two or more attorneys who are not in the same firm. An agreement between two lawyers to represent a party, must be signed off by everybody involved.

Limitations Established by Statutes: STATUTE OF LIMITATIONS

A time period established by the legislature in which you have the right to file your case. Or bring your action to court. It cqn Deny ones access to court.

immunity through contract

A type of immunity from prosecution created voluntarily by parties to a contract, where they promise not to sue one another for matters pertaining to performance of the contract

Limitations Established by Constitutional law: ACT OF STATE DOCTRINE

American Courts should not determine the validity of public acts committed by a foreign government within its own territory.

Limitations Established by Constitutional law: ADVISORY OPINIONS

An advisory opinion is an opinion issued by a court or a commission like an election commission that does not have the effect of adjudicating a specific legal case, but merely advises on the constitutionality or interpretation of a law.

Safekeeping Property

An attorney shall hold client's property separate from the attorney's own property. ie. - all funds should be held in separate accounts with complete records kept on each. Lawyers shall not commingle (mix) law firm funds with client funds.

Factors that make fees "reasonable"

An attorney's fees shall be reasonable a. Amount of time and labor involved b. The complexity of the case. c. The experience and reputation of the attorney. d. The customary fee in the locality for the same kind of case. e. The basis for the fee must be communicated before an attorney begins representation.

Attorney Client Privilege

Attorney client is evidentiary rules that applies to judicial and other proceeding in which attorney may be called as a witness. Attorney can refuse to disclose communication with his client if the purpose of the communication was to facilitate the provision of legal services for the client. Simply put- Special Right or Privilege, the attorney can't tell anyone what the client said. It is an Evidentiary right, meaning it has to do with evidence. Prevents the admission of an attorney-client conversation from becoming evidence.

Limitations Established by Constitutional law: POLITICAL QUESTION

Doctrine that states that the court should not decide on cases that raise political questions, which the judiciary feel violates the separation of powers doctrine. Courts don't want to second guess other branches of the government.

Flat Fees

Flat one time rate.

Contingency

Get a percentage of the overall recovery. You don't get paid unless your client gets paid. Should NOT be used in Criminal cases or domestic cases.

Competence

Having the knowledge and skill that is reasonably necessary to represent a particular client.

BELK v. U. S

In Belk, we were asked whether the Government committed a compensable taking by entering the Algiers Accords, which espoused the claims of U.S. nationals against the Iranian government, thus extinguishing their right to sue Iran for damages done to them by captivity.

Limitations Established by Constitutional law: RIPENESS

In order for a case to be heard it must be Ripe. When a case is ripe is when, the facts of the conflict have matured into an existing substantial controversy warranting judicial intervention. And one must have a current personal stake or standing in the outcome of the controversy.

Confidentiality

Information that other do not have a right to review. (Ethical duty to preserve your clients secrets.)

Privileged Confidentiality

Information whose access to it is restricted.

To be "Competent" a lawyer must...

Legally Research- Stay up to date with developments in the legal field. CLE- (Continue Legal Education), every two years lawyers are required to "go back to school" to prove to the bar that they have continued in their legal education to keep up with their profession. Discuss local Cases with colleagues, (stay in the loop).

Confidentiality of Information (Model Rule 1.6 )

Model Rule 1.6 - an attorney must not reveal information relating to the representation of a client unless: a. The client consents to the disclosure b. The Attorney reasonably believed the disclosure is necessary to prevent a client from committing a criminal act that is likely to result in imminent death or substantial bodily harm.

governmental officials immunity

Officials must act within the scope of their employment. Absolutely immune from liability when acting within their authority.

Imputed Disqualification

Once one attorney in an office is disqualified then the entire firm is disqualified.

Limitations Established by Administrative Law: IMMUNITY

Protection. The law provides immunity for tort liability occasionally.

Limitations Established by Case Law: RES JUDICATA

Res Judicata (Civil): ("A matter judged"), The case has already been decided, and cant come back to court (Civil law version of double jeopardy).

Hourly Fees

Retainer (deposit, paying for an attorneys time in advance. Once the retainer is used up, attorneys ask for another retainer) plus hourly rate. If the lawyer is done with your case before the retainer is used up, the remaining money is returned to the client.

BUSH v. GORE (2000)

The court ruled that manual recounts of presidential ballots in the Nov. 2000 election could not proceed because inconsistent evaluation standards in different counties violated the equal protection clause. In effect, the ruling meant Bush would win the election.

charitable immunity

The doctrine of charitable immunity frees charitable institutions from any civil liability that may attach as a consequence of the charity's tortious acts.

Conflicts of Interest

The presence of divided loyalty that actually or potentially places a person at a disadvantage event though this person is owed undivided loyalty. Simply Put- Divided loyalty that puts a person at a disadvantage. When the interest of the client is not identical to the interest of the attorney or vice versa. Note: Actual harm does not have to occur only the presence of potential.

Fees

There are three ways that attorneys charge fees. 1. Hourly Fees 2. Contingency 3. Flat Fees

Limitations Established by Constitutional law: CASE OR CONTROVERSY

There must be a case or controversy, otherwise you don't get to bring it to court.

Limitations Established by Constitutional law: MOOTNESS

When a case has passed ripeness or there is no longer an existing substantial controversy, or one no longer has a current personal stake or standing in the outcome of said controversy.

Requirements for something to be confidential:

When a client discloses their "secrets" themselves; Based upon relationship with other person

Fee Padding

When a lawyer claims that they have worked for more hours then they actually have. Overstated the time spent when charging clients.

Limitations Established by Constitutional law: ADVERSARY SYSTEM

You can't come to court unless there is a real controversy where there can be repercussions.

Interspousal Immunity or family members immunity

You cant sue your spouse. Its Pretty much gone nowadays.

BIAS

a predisposition to act or think a certain way. This can create or result in conflict of interest.

Areas of Conflict

a. Business Transactions with a client b. Gifts from a Client Gifts from client are usually not a problem unless a document must be prepared to complete the gift. c Sex with a Client Vulnerability factor (avoid it until case is over) d. Personal Bias A predisposition to think and perhaps act in a certain way.

Functions of Legal Ethics

a. Governs moral and ethical behavior of members of profession towards one another, their clients and the Courts. b. Identify and remove inappropriate conduct from legal professions. c. Protect clients and public.

STANDING

capacity of a party to bring suit in court.

Purpose of confidentiality

client can discuss cases with attorneys openly.

Areas of Conflict cont.

e. Multiple Representation When the same attorney represents both sides in a case. Notes: there is not an absolute ban on multiple representation but such representation is discouraged. Example: dissolution. f. Former client/present adversary Occurs when a former client is now an adversary. Without the consent of the former client it is unethical for an attorney to switch sides and represent another side. But consent is only needed when the second case is the same as the first or the two are substantially related. Key Point: The duty of loyalty to a client does not end once the case is over. g. Law firm Disqualification Definition - If an attorney is disqualified from representing a client because of a conflict of interest, every attorney in the same law firm is also disqualified unless the client being protected by the rule consents.

Ethics

rules that embody standards of behavior to which members of an organization must conform.

Client can consent to Attorney disclosure if...

the client is properly consulted about the proposed disclosure in advance (but it is client's right to waive).