Professional Responsibility

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Professional Responsibility by Mind Map: Professional Responsibility

1. Regulation of the Legal Profession

1.1. Regulation

1.1.1. source

1.1.1.1. state

1.1.1.1.1. Police powers. State courts, not legislatures, have ultimate power to regulate legal profession

1.1.1.1.2. courts

1.1.1.1.3. bar assocation

1.1.1.1.4. legislature

1.1.1.2. federal system

1.1.1.2.1. each fed. court has its own bar to which attorney must belong before practicing

1.1.1.2.2. gov. by fed statutes/case law/court or agency rules

1.1.1.2.3. attorneys subject to state ethics laws where attorney practices

1.1.1.3. multiple states

1.1.1.3.1. regulation by each state where A practices

1.1.2. after admission

1.1.2.1. misconduct

1.1.2.1.1. lawyer is subject to discipline not only for violationg a disciplinary rule, but also specific conduct

1.1.2.1.2. duty to report

1.1.2.2. disciplinary process

1.1.2.2.1. choice of law

1.1.2.2.2. effect in other jurisdictions

1.1.2.2.3. disability proceedings

1.2. Admission to the practice of law

1.2.1. application

1.2.1.1. false statements

1.2.1.1.1. must not KNOWINGLY make fase statement of material fact (FSMF)

1.2.1.2. failure to disclose info

1.2.1.2.1. must not fail to disclose fact necessary to correct a misapprehension known by applicant or lawyer

1.2.1.2.2. fail to respond to lawful demand for info

1.2.1.2.3. does not apply if protected by ethical duty or confidentiality

1.2.2. character and fitness

1.2.2.1. if question arises, applicant appears at hearing before admission committee

1.2.2.1.1. procedure due proces

1.2.2.2. relevant conduct

1.2.2.2.1. all past conduct

1.2.2.2.2. moral turpitude

1.2.3. citizenship/residency requirements

1.2.3.1. unconstitutional

1.3. Unauthorized Practice

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

1.3.2. multi jurisdictional practice

1.3.2.1. temporary

1.3.2.1.1. assocation with local lawyer who participates in matter

1.3.2.1.2. special permission to practice in local tribunal

1.3.2.1.3. Practice in home state

1.3.2.2. permanent

1.3.2.2.1. salaried employee of one client

1.3.2.2.2. authorized by federal/local law

1.3.2.3. consequence

1.3.2.3.1. disciplinary rules of both states

1.3.3. non lawyers

1.3.3.1. can't practice law

1.3.3.1.1. activities involving legal knowledge and skill

1.3.3.1.2. advice on binding legal rights

1.3.3.1.3. traditionally performed by lawyers

1.3.3.2. ok to

1.3.3.2.1. appear before agency that also sees non-lawyers

1.3.3.2.2. fill out forms

2. Lawyer Client Relationship

2.1. Fees

2.1.1. When to agree

2.1.1.1. early in relationship, preferably in writing, clear fee arangement

2.1.1.2. cant be unreasonable

2.1.1.2.1. discipline

2.1.1.2.2. factors

2.1.2. Collecting/Financing

2.1.2.1. payment in advance

2.1.2.1.1. must refund unearned part if fired or withdraws

2.1.2.2. property for services

2.1.2.2.1. no proprietory intertest in cause of action

2.1.2.3. cutting off services

2.1.2.3.1. no fee arrangement that could cut off services in the middle of relationship

2.1.2.4. credit arrangements and security

2.1.2.4.1. credit card, bank loans, promissory note, attorney's lien

2.1.3. Contingent

2.1.3.1. reasonable

2.1.3.2. must be wrtten and signed by client

2.1.3.2.1. spell out how feel will be calculated

2.1.3.3. prohibited

2.1.3.3.1. criminal cases

2.1.3.3.2. domestic relations

2.1.4. Disputes

2.1.4.1. file lawsuit

2.1.4.2. adr

2.1.4.3. retain fee

2.1.4.3.1. keep contested amount in trust account

2.1.4.4. Liens

2.1.4.4.1. statutory lien

2.1.4.4.2. retaining lien

2.1.5. Splitting

2.1.5.1. no splitting unless

2.1.5.1.1. lawyers w/i firm

2.1.5.1.2. separatin and retirement agreements

2.1.5.1.3. certain splits w/ lawers outside firm

2.2. Communication

2.2.1. 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

2.2.2. special circumstances

2.2.2.1. occasional reporting of routine devlopments normally unless diminished capacity

2.2.3. witholding information

2.2.3.1. court order forbids atty from sharing info

2.2.3.2. client would react imprudently if immediate communicaiton

2.3. Stages

2.3.1. Creation

2.3.1.1. Contractual relationship, terms are derived from custom and mutual agreement

2.3.1.1.1. lawyer is both client's fiduciary and agent

2.3.1.1.2. created when:

2.3.2. Scope

2.3.2.1. cannot assit client to commit crime or fraud

2.3.2.2. Decisions for client

2.3.2.2.1. accept settlement offer

2.3.2.2.2. plea

2.3.2.2.3. waive jury trial

2.3.2.2.4. testify in criminal case

2.3.2.2.5. appeal

2.3.2.3. Limits on lawyers

2.3.2.4. Client w/ diminished capacity

2.3.2.4.1. duties

2.3.2.4.2. appointment of guardian

2.3.2.4.3. emergency legal assistance

2.3.3. Termination

2.3.3.1. normally until end of matter

2.3.3.2. ways

2.3.3.2.1. client fires attorney

2.3.3.2.2. court permission

2.3.3.2.3. withdrawal

2.3.3.3. duties

2.3.3.3.1. give client

2.4. Lawyer Role

2.4.1. Counselor

2.4.1.1. advisor

2.4.1.1.1. duty to render candid advice

2.4.1.1.2. advice beyond the law

2.4.1.1.3. volunteering advice

2.4.1.2. evaluation for use by third person

2.4.1.2.1. client's affairs if lawyer reasonably believes compatible w/ lawyer's other responsiblities to client

2.4.1.2.2. confidentiality

2.4.1.2.3. liability to 3rd person

2.4.1.3. negotiator

2.4.1.3.1. must not make false statement of material fact

2.4.1.3.2. lawyer need not

2.4.1.4. 3rd party neutral

2.4.1.4.1. warning to unrepresented parties

2.4.1.4.2. conflict of interest

2.4.1.4.3. two or more nonclients- helps resolve. ethics plus aaa rules

2.4.2. Advocate

2.4.2.1. real claims only

2.4.2.1.1. discipline if law brings frivolous proceeding or taking a friv. position on an issue in a proceeding

2.4.2.1.2. friv

2.4.2.2. trial publicity

2.4.2.2.1. lawyer cannot make out-of-court statements thatlawyer reasonably should know will have a substantial likelihood of materially prejudicing case

2.4.2.2.2. right of reply

2.4.2.2.3. dry facts about case permitted

2.4.2.3. counsel as witness

2.4.2.3.1. reasons to avoid dual role

2.4.2.3.2. ethical limitations imposed

2.4.2.4. Prosecutor

2.4.2.4.1. probable cause

2.4.2.4.2. protecting accused right to counsel

2.4.2.4.3. securing waiver of pretrial rights

2.4.2.4.4. disclosure

2.4.2.4.5. public statements about pending matters

2.4.2.4.6. supoenaing other lawyers

2.4.2.5. Leg/Admin proceedings

2.4.2.5.1. appearance in a representative capacity

2.4.2.5.2. duties of candor and respect

2.4.2.5.3. limits

3. 3) Lawyer's Duties

3.1. Types

3.1.1. Client

3.1.1.1. Over course of litigation

3.1.1.1.1. Competence

3.1.1.1.2. Dilligence

3.1.1.1.3. Confidentiality

3.1.1.1.4. Conflict of Interest

3.1.1.1.5. Money and Property

3.1.1.1.6. Expedite Litigation

3.1.2. Tribunal

3.1.2.1. candor

3.1.2.1.1. Discipline if

3.1.2.2. impartiality/decorum

3.1.2.2.1. improper

3.1.2.2.2. disruptive conduct

3.1.2.2.3. statements about judges or candidates for public legal office

3.1.3. Opposing Party/Counsel

3.1.3.1. evidence

3.1.3.1.1. opponents access

3.1.3.1.2. falsifing and assisting perjury

3.1.3.2. witnesses

3.1.3.2.1. paying

3.1.3.2.2. securing absence or noncooperation of witness

3.1.3.3. violation of court rules/orders

3.1.3.4. abuse of discovery procedures

3.1.3.5. chicanery at trial

3.1.3.6. treats to gain advantage in civil cases

3.1.3.7. treating opponents w/ courtesy and respect

3.2. violations

3.2.1. single violation sufficent

3.2.1.1. subject lawyer to professional discipline

3.2.1.2. special circumstances regarding sanctions but not violation

3.2.1.2.1. to avoid discipline, put cases on temporary hold if necessary due to personal circumstances

3.2.2. malpractice liability

3.2.2.1. Disciplinary/Malpractice

3.2.2.1.1. forum for malpractice is civil court

3.2.2.1.2. adversary is injured plaintiff

3.2.2.1.3. purpose to compensate

3.2.2.2. ethics violation used as evidence of malpractice

3.2.2.3. theories

3.2.2.3.1. intentional tort

3.2.2.3.2. breach of fiduciary duties

3.2.2.3.3. breach of contract

3.2.2.3.4. negligence

3.2.2.4. liability for others

3.2.2.4.1. responeat superior

3.2.2.4.2. Partnership

3.2.2.5. insurance

3.2.2.5.1. vast majority don't require it

3.2.2.6. k to limit malpractice

3.2.2.6.1. No unless client independently represented

3.2.2.7. settling malpractice claims

3.2.2.7.1. no unless

4. Transactions w/ 3rd persons

4.1. truthfulness in statements to third party

4.1.1. must not make false statement of material fact or law

4.1.1.1. when dealing on behalf of client w/ 3rd person, lawyer must not make fs of law or fact

4.1.1.1.1. puffery permitted

4.1.2. must disclose material fact to avoid client's crime or fraud

4.1.2.1. unless lawyer is forbidden to do so by the ehtical duty of confidentiality

4.1.2.1.1. aba rules require lawyer to withdraw

4.2. Respect for rights of third persons

4.2.1. lawyer must not use means that have no substantial purpose other than to

4.2.1.1. embarass, delay, burden, 3rd person

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

4.2.3. documents sent to lawyer by mistake

4.2.3.1. knows it was mistake, she must promptly notify ssender so that sender can take protective measures

4.3. Communications

4.3.1. person represented

4.3.1.1. When communication forbidden

4.3.1.1.1. lawyer knows person is represented by counsel in matter unless

4.3.1.2. Applications to organizations

4.3.1.2.1. corps or other orgs. are "persons"

4.3.1.2.2. constitutents

4.3.1.2.3. lawyer must get consent of organization's counsel before communicating w/ a present org constituent

4.3.1.3. communications allowed by rule

4.3.2. Unrepresented persons

4.3.2.1. lawyer may communciate as long as attorney

4.3.2.1.1. does not imply she is disinterested

4.3.2.1.2. takes steps to clear up misunderstanding

4.3.2.1.3. does not purport ot give advice other than to get an attorney if the 3rd

5. Lawfirms/Associations

5.1. terms

5.1.1. partner

5.1.2. associate

5.1.3. of counsel

5.1.4. general counsel

5.2. Responsibilities

5.2.1. Those in supervisory capacity

5.2.1.1. duty to educate and guide in ethics matters

5.2.1.2. how duties fufulled

5.2.1.3. ethical responsibility for another lawyer's misconduct

5.2.2. subordinate lawyer

5.2.2.1. clear ethical violation

5.2.2.2. debatable ethical violation

5.2.3. non lawyers

5.2.3.1. duty to educate and guide in ethical matters

5.2.3.1.1. instruct and guide concerning legal ethics

5.2.3.1.2. ultimately responsible for their work

5.2.3.2. duty or partners and direct supervisors

5.2.3.2.1. must make reasonable efforts to assure nonlawyer acts ethically

5.2.3.3. ethical responsibility for nonlawyer's misconduct

5.2.3.3.1. subject to discipline if

5.3. professional independence lawyers

5.3.1. fee splitting with non lawyers

5.3.1.1. death benefits permitted

5.3.1.2. compensation and retirements plans for nonlawyer employees

5.3.1.3. sale of law practice

5.3.1.4. sharing court-awarded fee w/ nonprofit organization

5.3.2. partnership w/ nonlawyer to practice law prohibited

5.3.3. nonlawyer involvement in incorporated firm or association

5.3.4. interference w/ lawyer's professional judgement

5.4. restrictions on right ot practice

5.4.1. def

5.5. sale

5.5.1. when sale permitted

5.5.2. protection of seller's clients after sale

5.6. ancillary services

5.6.1. def

5.6.2. nonlegal services and legal services provided together

5.6.3. nonlegal ser vices provided by entity controlled by lawyer

6. Public Service

6.1. pro bono

6.1.1. def

6.2. membership legal services org.

6.2.1. def

6.2.2. general rule

6.2.3. limitations on rule

6.3. quick advice programs

6.3.1. def

6.3.2. client consents

6.3.3. c of i

6.3.3.1. rules relaxed

6.3.3.1.1. unless leads to regular representation

6.3.3.2. imputed c of i relaxed

6.4. law reform programs

6.4.1. activities

6.4.1.1. may harm client

6.4.1.1.1. 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

6.4.1.2. may benefit client

6.4.1.2.1. could materially beneift, must disclose the fact but does not have to disclose the identity of client

6.5. political conributions

6.5.1. def

6.5.2. exceptions

6.5.2.1. does not apply to employment or appointments:

6.5.2.1.1. uncompensated services

6.5.2.1.2. made on the basis of lawyer's experience and following a process that is free frome influence based on political contribution

6.5.2.1.3. made on a rotating basis from a list compiled w/o regard to political contribution

7. Ads/Solication

7.1. background

7.1.1. def

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

7.1.3. regulation of truthful, nondeceptive ads

7.2. Advertising

7.2.1. basic rule

7.2.2. limits

7.2.2.1. field of law

7.2.2.2. sample clients

7.2.2.3. responsible for content

7.2.3. payment for recommending a lawyer's service

7.2.4. reciprocal referral arrangements

7.2.5. types of info may be disseminated

7.3. Solicitation

7.3.1. rule

7.3.2. agent

7.3.3. free legal service offer

7.3.4. friends, family, clientss

7.3.5. targeted direct mail

7.3.6. harassing prospective clients

7.3.7. labeling

7.3.8. group/prepaid legal service plan

7.4. Communication of fields of practice

7.4.1. certified specialist

7.4.2. statement of fields of practice

7.4.3. patent and admirality lawers

7.5. Firm names and letterheads

7.5.1. names of lawyers who have entered public serivce

7.5.2. false implication of partnerhsip

7.5.3. firms

7.5.3.1. names of law firms

7.5.3.2. multistate firms

7.5.3.3. associated and affirilated law firms