Create your own awesome maps

Even on the go

with our free apps for iPhone, iPad and Android

Get Started

Already have an account?
Log In

Professional Responsibility by Mind Map: Professional Responsibility
0.0 stars - reviews range from 0 to 5

Professional Responsibility

Regulation of the Legal Profession

Regulation

source, state, Police powers. State courts, not legislatures, have ultimate power to regulate legal profession, courts, ultimate power in highest state court., case law, rules of court, and state statutes are used, Ethics/ABA Rules, most states have adopted ABA rules, maj. of states have rules patterned after models drafted by aba, bar assocation, each state has one. Maj have integrated bars, have to be member to practice in state, bar exam, cle, discipline, legislature, statutes, federal system, each fed. court has its own bar to which attorney must belong before practicing, gov. by fed statutes/case law/court or agency rules, attorneys subject to state ethics laws where attorney practices, multiple states, regulation by each state where A practices

after admission, misconduct, lawyer is subject to discipline not only for violationg a disciplinary rule, but also specific conduct, violating disciplinary rule, attempting to violate, assisting another to violate, using acts of another to violate, engaging in coduct, any conduct that criminal that shows dishonesty, untrustworthniness or unfitness, prejudicial to the administration of justice, knowingly assiting judge in conduct that is illegal, stating or implying hte ability to improperly influence gov. agency or official, duty to report, duty to report other lawyer for questions that raise substantial questions of lawyer's honesty, trustworthiness, or fitness as a lawyer, judges same, does not apply to, info protected by ethical duty/confidentiality, info gained during lawyer assistance program, alcohol abuse, disciplinary process, choice of law, generally tribunal's rules apply unless, tribunal's rules say otherwise, other conduct, rules of jurisdiction where conduct occurred unless, predominant effect is in some other jurisdiction, effect in other jurisdictions, states, dis. by one state conclusive but free to impose own sanctions, federal, ind. evaluation accepting as competent evidence state discipline, disability proceedings, if you are an alcoholic (incapacitated) gotta go to rehab to be reinstated

Admission to the practice of law

application, false statements, must not KNOWINGLY make fase statement of material fact (FSMF), failure to disclose info, must not fail to disclose fact necessary to correct a misapprehension known by applicant or lawyer, fail to respond to lawful demand for info, does not apply if protected by ethical duty or confidentiality

character and fitness, if question arises, applicant appears at hearing before admission committee, procedure due proces, relevant conduct, all past conduct, moral turpitude, convictions, false statements

citizenship/residency requirements, unconstitutional

Unauthorized Practice

dis. if practice law in jur. w/o license

multi jurisdictional practice, temporary, assocation with local lawyer who participates in matter, special permission to practice in local tribunal, pro hac vice (for the purpose of the matter only), Practice in home state, mediation or arbitration, services arise out of state which she is admitted, matters arising out of home state, reasonably-related, permanent, salaried employee of one client, in house counsel, to litigate must get permission pro hac vice, authorized by federal/local law, consequence, disciplinary rules of both states

non lawyers, can't practice law, activities involving legal knowledge and skill, advice on binding legal rights, traditionally performed by lawyers, ok to, appear before agency that also sees non-lawyers, accountants, fill out forms

Lawyer Client Relationship

Fees

When to agree, early in relationship, preferably in writing, clear fee arangement, cant be unreasonable, discipline, factors, time, labor, novelty, difficulty of question, skill required, experience, reputation, ability, whether lawyer taken away for other work

Collecting/Financing, payment in advance, must refund unearned part if fired or withdraws, does not apply to retainer, property for services, no proprietory intertest in cause of action, cutting off services, no fee arrangement that could cut off services in the middle of relationship, credit arrangements and security, credit card, bank loans, promissory note, attorney's lien

Contingent, reasonable, must be wrtten and signed by client, spell out how feel will be calculated, prohibited, criminal cases, domestic relations, securing divorce, alimony or support, amount of property settlement, exception, past due alimony/support

Disputes, file lawsuit, adr, retain fee, keep contested amount in trust account, Liens, statutory lien, can be also created through express agreement, retaining lien

Splitting, no splitting unless, lawyers w/i firm, separatin and retirement agreements, former partner or associate, certain splits w/ lawers outside firm, single bill to client and split if, total fee reasonable, split is in prportion ot services performed by each lawyer, clients agrees to the split in writing that discloses the share each lawyer will receive

Communication

inform client of decision that requires the client's informed consent, keep client reasoanbly informed w/ status of matter, reaspond promptly for client's request of info, consult w client if client expects the lawyer tod so something illegal

special circumstances, occasional reporting of routine devlopments normally unless diminished capacity

witholding information, court order forbids atty from sharing info, client would react imprudently if immediate communicaiton

Stages

Creation, Contractual relationship, terms are derived from custom and mutual agreement, lawyer is both client's fiduciary and agent, created when:, person indicates intent provide legal services and, lawyer agrees or, falils to clearly inform the person that he does not wish to represent her, implied assent, client reasonably relies on the representation, appointed by tribunal, can only reject with good cause, L would have to violate law or dis. rule, unreasonable financial burden, personal feelings would prevent adequate representation, duty to reject, client motive to harass or inure person, friv, lawyer incompetent, or too busy, feelings impair ability to represent

Scope, cannot assit client to commit crime or fraud, Decisions for client, accept settlement offer, plea, waive jury trial, testify in criminal case, appeal, Limits on lawyers, Client w/ diminished capacity, duties, treat as normal a/c, appointment of guardian, implied authority to reveal client info to extent necessary, emergency legal assistance, no other rep? imminent and irreperable harm? lawyer can take legal action on behalf of client

Termination, normally until end of matter, ways, client fires attorney, any time w/ or w/o cause, quantum meruit- reasoanble value of work done, contingency, does not arise until client gets settlment, court permission, court could say no to client if undue delay or disruption, can deny atty's request even if for good cause, withdrawal, mandatory, atty's mental or physical condition, atty required to violate law or disciplinary rule, permissive, No adverse impact, or client consents, adverse impact, justify client's interests and, crime/fraud, client persists in conduct, use atty's services to commit, objective repugnamt, c breaks promise to a, $$$ for atty, client won't cooperate, duties, give client, reasonable notice & chance to get atty, give back advance on fees not yet earned & turn over papers/property to which client is entitled

Lawyer Role

Counselor, advisor, duty to render candid advice, independent judgment, advice beyond the law, moral/economic/social/political when relevant to client's situation, volunteering advice, w/o being asked when appropriate, evaluation for use by third person, client's affairs if lawyer reasonably believes compatible w/ lawyer's other responsiblities to client, material harm?, need client's informed written consent, confidentiality, rules apply, liability to 3rd person, may be liable to 3rd person for neg. eval of a client's affairs, negotiator, must not make false statement of material fact, key factor, whether opponent would be reasonable in relying on the statement, value estimates and what a party would accept as a settlement are NOT statements of material fact, lawyer need not, volunteer facts detrimental to client's position or, correct an opponent's misapprehension regarding the strength of his client's case, 3rd party neutral, warning to unrepresented parties, atty should explain he doesn't represent person and a/c privilege does not attach, conflict of interest, after serving as 3rd party neutral, can't represent person in that matter, unless IWC, imputed to firm, screening allowed, no conflict when partisan arbitrator later asked to become party's lawyer, two or more nonclients- helps resolve. ethics plus aaa rules

Advocate, real claims only, discipline if law brings frivolous proceeding or taking a friv. position on an issue in a proceeding, friv, position one that cannot be supported by a good faith argument under existing law and cannot be supported by a good faith arugment for changing the law, does not prevent a lawyer for a criminal defendant so that prosecutor must prove every element of the crime, trial publicity, lawyer cannot make out-of-court statements thatlawyer reasonably should know will have a substantial likelihood of materially prejudicing case, right of reply, recent publicity not initiated by lawyer or client, make public statement to protect client form substantial undue predjudicial effect of recent publicitiy, dry facts about case permitted, public record, claim/defense, people involved, scheduling/step in litigation, fact that investigation is ongoing, warning of danger, booking info, rules apply to assocated lawyers in firm as well, counsel as witness, reasons to avoid dual role, c of i, confusion of advoacy w evidence, unfairness to the adverary, ethical limitations imposed, can't advoate when likely to be necessary witness except, uncontested matter/formality, nature/value of legal services rendered, withdrawal = substantial hardship to c, another lawyer in firm called as witness, except in c of i, Prosecutor, probable cause, protecting accused right to counsel, advised of right to counsel, procedure to obtain counsel, reasonable opportunity to obtain counsel, securing waiver of pretrial rights, unrepresented- don't get waiver of important pre-trial rights, disclosure, evidence, evidence to defense that negates guilt or mitigate degree of offense or punishment, remedy conviction, evidence that d wrongly convicted, cc evidence d was innocent, public statements about pending matters, no comments that make condemnation of accussed, supoenaing other lawyers, can supoena lawyer for evidence unless info not privileged, essential, and can't be obtained another way, other gov. lawyers, cant use position of power to obtain unfair results or unjust settlments, Leg/Admin proceedings, appearance in a representative capacity, disclose he is acting in rep. capacity, duties of candor and respect, limits, bilateral negotiations w gov, app for license or priv, gov investigating client's affairs, gov investiagationg c complaint wiht regular reporting requirments, ie tax returns

3) Lawyer's Duties

Types

Client, Over course of litigation, Competence, Legal knowledge/skill, complexit and specialized nature of matter, l general experience and training in field, amount of prep and study lawyer will give, whether lawyer can consult with another lawyer, Preparation, reasoanble, Emergency, only reasonably necessary to meet emergency, Thoroughness/Preparation, inquire into & analyze facts and legal elements in order to adequately prepare for matter, CLE, reasonable steps to keep abreast in new developments of field, Dilligence, Promptness, act w/ dedication and zeal, act on c's behalf w/ reasonable diligence and promptness, Completion, complete the matter, unless permitted to withdraw, A/c relationship, terminate or act w/ diligence if unsure if c/a relationship, Solo Practicioner, plan for untimely death or disability by designating another lawyer, Confidentiality, AC PRIVILEGE, rule of evidence limiting government from compelling protected information, Scope, confidential info b/n c & a & respecitve agents, conversations and letters, work/product immunity immune from discovery, made in anticipation of litigation, unless opp. shows sub. need for, inability to gather material w/o undue hardship, lawyer's mental impressions always, unless waived, duration, indefinitely, termination or death, exceptions, Client, seeks services for future crime/fraud, wills/gifts, client's competency or intent of client, court, communication relevant to b of d of relationship, civil litigation b/n 2 persons who were formerly joint clients, terms, attorney, person authorized to practice law, or c believes a is authorized, communication, info transmitted orally in writing, either way between C&A and their agents, does not apply to, client id, fee arrangements, prexisting document rule, doc does not become privileged by turning over to A, if discoverable in C or A's hands, A comes into possession of crime or instrument of crime, may hold onto as long as needed to obtain info for client, then turn over to authorities, confidential, made by means not intended to disclose info to outsiders, not destroyed by, 3rd party present to aid a/c relationship, eavesdropper, can be prevented from testifying, destroyed by, 3rd party not present to aid a/c relationship, client, person/entity seeking legal advice from atty, priv. includes prelim info even if no a/c relationship develops, holder, client, can waive or claim, waiver, failure to claim the privilege when there is a chance to do so or, when there is an intentional revelation of a signficant part of privileged communication, client not present, A claims on C's behalf when someone trying to obtain privileged info, ETHICAL DUTY, prevents atty from disclosing or using info to to disadvantage current/former/prospective client, w/o clients informed consent, Scope, communications protected by privilege + any other info atty obtains relating to representation, no matter what the source, broader than a/c privilege, communiation b/c a/c with 3rd party, fee arrangement/client id, info of past frauds/seeking future fraud, Exceptions, consent/ implied authority, atty may dislcose or use confidential info if client gives consent or has implied authority, Legal ethics advice, prevent harm, death or bodily harm, degree necessary, atty has discretion to disclose info but does not REQUIRE, financial harm, DISCRETION not a REQUIREMENT, court, dispute concerning attorney's conduct, malpractice, discipline violation, complicity w/ client in illegal act, law or court order, to extent necessary, Conflict of Interest, Lawyer must now allow personal interests, interests of another client, or interest of 3rd party interfere w/ loyalty to client, timing, before, must not take on matter, after, must withdraw, consequences, disqualification of litigated matter, professional discipline, cvil liablity (malpractice), imputed, to firms, exceptions, conflict is personal to disqualified lawyer, duties involved to former clients, lawyer timely screened from participation in matter and gets no fee, Types, clients, Current, Concurrent C of I, rep. of 1 client directly adverse to another client, significant risk that rep of one client will be materially limited by, the lawyer's own interest, lawyer's responsiblities to, another client, former client, third person, Informed Wrriten Consent, allowed if, lawyer reasonably believes he can competently and dilligently rep both, not prohibited by law, does not involve assertion of a claim by one client against another client rep by the lawyer in same litigation, definition, informed, each affected client must understand how conflict can harm him, revocation of consent, client can ALMOST always revoke consent, specific rules, material limitation, Co-parites, criminal, not permissible, civil, only if, lawyer can effectively rep both, informed written consent, Unrelated Case/inconsistent legal position, unless written consent:, can't if substantial risk that rep of one c will be materially limited by the lawyer's responsibilities to other, Nonlitigation matters, assessing, factors, length and intimacy of lawyer's relationship w/ one or more client, function lawyer will perform, effect of conflict on clients' interest, handling the conflict, lawyer may represent 2 clients if, concludes he can effectively rep both, informed, written consent, class action, unnamed members are not clients, other rules, biz transactions, never enter into transaction knowingly to acquire ownership, possessory, security, or money interest adverse to client unless, terms fair to client, terms fully disclosed in writing, & client can understand, client advised, misuse of confidential info, IC or exception to duty of confidentiality, applies to former/prospective clients, financial assistnace, no except, advancing litigation expenses, court costs, repayment contingent on outcome, paing costs and expenses for indigent clients, w/o provision of repayment, proprietory interest, subject of litigation, contingency and liens are exception, literary/media rights, may acquire after matteris completed, including appeals, gifts to lawyers, soliciting substantial gift, prohibited from SOLICITING, small gifts fine, may ACCEPT, But may be voided for undue influence, preparing legal instrument that creates substantial gift, not allowed, lucrative appointments, not prohibited from seeking to have himself named as executor of an estate or counsel to the execturo or to some other fee-paying position, aggregate settlment, no unless, clients come to agreement on how it will be shared, l discloses all terms of sharing agreement, how much each paid, lawyer's fee, client gives written informed consent, Former, confidentiality, opposing former client, using info for disadvantage, Opposing former client in substantially related matter, firm, clients of former firm, Disqualification, new firm, former firm, Prospective, confidential info, conflict of info, how to overcome, Other, Government, federal v. state, private work v. gov work, Gov---> Private (same matter), imputed disqualification, subsequent of use of info gained during gov serivce, Private --> Gov, ordinary conflict rules apply, personal and substantialrule applies, negotiating for private employment, Judicial service --> Private, rule, screening, law clerk, other adjudicative officers, Organization, loyalty, not to people, stockholders, officers, directors, conflict w/ constituents, caution constituent that she represents the organization, Protect, if substantial injruy, report, action to higher authority or highest authority if necessary, failt otake timely, appropriate action,, lawyer MAY report info to person outside org, only to extent necessary to prevent sub. injury, Unless, hired to investigate alleged violation of law or, defend org. or constituents against alleged violation of law, Conflicts, Rep org and associated person, serve as director and lawyer, Special duties of Securities lawyer, third persons, compensation, can't accept from 3rd party unless, IWC, 3rd party doesn't interfere w/ lawyers judgment, arrangement doesn't compromise confientiality, conflict, client's v. third person, liability insurance, Money and Property, s to d for misappropriating or borrowing client's money or property or for commingling it with her own money or property, trust fund account, Type of account, sum, large held for long period, separate interest-bearing account, interest belongs to client for whom it is held, small sums, pooled clint trust account, checking account that holds money entrusted by numerous clients, IOLTA, summ too small to earn any net interest, must put in pooled checking account that earns interest, after bank deducts service charges, bank sends remaining interset to state bar or local legal foundation to fund charitable legal programs, Location, state where lawyer practices, or elsewhere w/ client consent, Lawyer money, cannot be put in CTFA unless for sole purpose of paying bank service charges, funds that must be placed in account, advances, both client and lawyer have interest, exam tip, forwarding settlement check is proper, Third party has an interest, all money that a lawyer receives on behalf of a client must promptly be placed in a client trust fund acount, separate from lawyer's own personal and business accounts, safeguarding property, lawyer must id c's prperty as belonging to c and must put it in a safe place, duty, notify, when money or property has been received on client's behalf, keep records, complete, accurate, up-to-date records of money or property received on client's behalf, render accounting, periodic acounting to client, pay over promptly, or deliver property when it is due to the client or third party, Expedite Litigation, does not require lawyer to take actions that would harm client's interest, realizing financial or other gain is not a legit interest

Tribunal, candor, Discipline if, law, KNOWINGLY makes false statement of law to the court or, failing to correct a previously made false statement of material law or, failing to disclose DIRECTLY ADVERSE law of CONTROLLING jurisdiction, facts, KNOWINGLY making a false statement of fact to the court or, failing to correct a previously made false statement of material fact, FAILURE TO SPEAK sometimes = affirmative representation, failing to volunteer to the tribunal known facts harmful facts IF the proceeding is EX PARTE, Evidence, KNOWINGLY offering false evidence, except criminal defendant on his behalf, if client insists of testifying to false info, follow the persuasion, withdrawal, disclosure to court approach, later discovery of false info, 1. take to client confidentially and try to PERSUADE him to rectify situation, 2. Seek to WITHDRAW and, If withdrawal not permitted/will not remedy situation, lawyer must make disclosure to the court, Note:, obligation ceases at conclusion of proceedings which includes appeals, impartiality/decorum, improper, influence, ex parte communication, judges and court officials, jurors/prospective jurors, disruptive conduct, statements about judges or candidates for public legal office, false statements about judges or candidates for public legal office, candidates for judicial office

Opposing Party/Counsel, evidence, opponents access, falsifing and assisting perjury, witnesses, paying, securing absence or noncooperation of witness, violation of court rules/orders, abuse of discovery procedures, chicanery at trial, treats to gain advantage in civil cases, treating opponents w/ courtesy and respect

violations

single violation sufficent, subject lawyer to professional discipline, special circumstances regarding sanctions but not violation, to avoid discipline, put cases on temporary hold if necessary due to personal circumstances

malpractice liability, Disciplinary/Malpractice, forum for malpractice is civil court, not dis. tribunal, adversary is injured plaintiff, not state bar, purpose to compensate, not punish lawyer, ethics violation used as evidence of malpractice, theories, intentional tort, fraud, misrep, malicious prosecution, abuse of process, misuse of funds, breach of fiduciary duties, loyalty, confidentiality, honest dealing, breach of contract, express or implied promise by lawyer to use ordinary skill and care, negligence, duty, SOC, competence & diligency by attys in similar circumstances, to C and 3rd party intended to benefit from legal services, breach, legal research, if answer could have been found in normal reasearch there is breach, difficult matter, general practicioner should have sent to specialist, exam tip, b of d: can't escape liability by reimbursing client for losses, legal causation, but for, d's negligence, injury would not have occurred, unexpected injuries in unexpected ways, fair to hold d lialbe, damages, direct losses, indirect losses, but foreseealbe, liability for others, responeat superior, law clerk, secretary, w/i scope of employment, Partnership, always liable for partners neg. in ordinary course of business, insurance, vast majority don't require it, k to limit malpractice, No unless client independently represented, settling malpractice claims, no unless, advise person, in writing, to seek independnent advice about hte settlement and giving person timt to seek advice

Transactions w/ 3rd persons

truthfulness in statements to third party

must not make false statement of material fact or law, when dealing on behalf of client w/ 3rd person, lawyer must not make fs of law or fact, puffery permitted

must disclose material fact to avoid client's crime or fraud, unless lawyer is forbidden to do so by the ehtical duty of confidentiality, aba rules require lawyer to withdraw

Respect for rights of third persons

lawyer must not use means that have no substantial purpose other than to, embarass, delay, burden, 3rd person

lawyer must not use methods of obtaining evidence that violate legal rights of 3rd party

documents sent to lawyer by mistake, knows it was mistake, she must promptly notify ssender so that sender can take protective measures

Communications

person represented, When communication forbidden, lawyer knows person is represented by counsel in matter unless, person's counsel consents, unless the law or a court order authorizes the communication, Applications to organizations, corps or other orgs. are "persons", constitutents, individuals, officers, directors, employees, shareholders, lawyer must get consent of organization's counsel before communicating w/ a present org constituent, communications allowed by rule

Unrepresented persons, lawyer may communciate as long as attorney, does not imply she is disinterested, takes steps to clear up misunderstanding, does not purport ot give advice other than to get an attorney if the 3rd

Lawfirms/Associations

terms

partner

associate

of counsel

general counsel

Responsibilities

Those in supervisory capacity, duty to educate and guide in ethics matters, how duties fufulled, ethical responsibility for another lawyer's misconduct

subordinate lawyer, clear ethical violation, debatable ethical violation

non lawyers, duty to educate and guide in ethical matters, instruct and guide concerning legal ethics, ultimately responsible for their work, duty or partners and direct supervisors, must make reasonable efforts to assure nonlawyer acts ethically, ethical responsibility for nonlawyer's misconduct, subject to discipline if, ordered the conduct, knew about it and ratified it, learns about conduct and fails to remedy it

professional independence lawyers

fee splitting with non lawyers, death benefits permitted, compensation and retirements plans for nonlawyer employees, sale of law practice, sharing court-awarded fee w/ nonprofit organization

partnership w/ nonlawyer to practice law prohibited

nonlawyer involvement in incorporated firm or association

interference w/ lawyer's professional judgement

restrictions on right ot practice

def

sale

when sale permitted

protection of seller's clients after sale

ancillary services

def

nonlegal services and legal services provided together

nonlegal ser vices provided by entity controlled by lawyer

Public Service

pro bono

def

membership legal services org.

def

general rule

limitations on rule

quick advice programs

def

client consents

c of i, rules relaxed, unless leads to regular representation, imputed c of i relaxed

law reform programs

activities, may harm client, lawyer may serve as director, officer, or member of a lw reform goup, even though a reform advocated by the group may harm one of hte lawyer's clients, may benefit client, could materially beneift, must disclose the fact but does not have to disclose the identity of client

political conributions

def

exceptions, does not apply to employment or appointments:, uncompensated services, made on the basis of lawyer's experience and following a process that is free frome influence based on political contribution, made on a rotating basis from a list compiled w/o regard to political contribution

Ads/Solication

background

def

false and misleading ands and in-person sol may be banned

regulation of truthful, nondeceptive ads

Advertising

basic rule

limits, field of law, sample clients, responsible for content

payment for recommending a lawyer's service

reciprocal referral arrangements

types of info may be disseminated

Solicitation

rule

agent

free legal service offer

friends, family, clientss

targeted direct mail

harassing prospective clients

labeling

group/prepaid legal service plan

Communication of fields of practice

certified specialist

statement of fields of practice

patent and admirality lawers

Firm names and letterheads

names of lawyers who have entered public serivce

false implication of partnerhsip

firms, names of law firms, multistate firms, associated and affirilated law firms