final study guide-ethics

7/29/2019 Final Study Guide-Ethics

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SHORT ANSWER:

Respondeat Superior/Vicarious Liability:

Employers are responsible for the acts of their employees carried out in the course and scope of their

employment. This responsibility extends to vendors and others to which lawyers ay outsource work.

UPL Who does it protect?

Commingling of funds:

This is a basis for disciplinary action, as is conversion of funds, a much more serious breach. Commingling

refers only to mixing client funds with those of the attorney and does not require any intent to harm the client

or actual harm to the client. Conversion is the misappropriation of the clients funds for the attorneys or

firms use. Conversion may take place when the attorney draws funds from the client trust account for

personal use or for payment of firm expenses.

IOLTA (Interest on Lawyers Trust Accounts):

This is interest on Lawyers Trust Accounts. A program under which the interest from lawyers client trust

accounts, which is too small to pay to clients, is collected by banks and used by bar associations and/or courts

to fund law-related programs, like the bar disciplinary system, client security fund, or legal services for the

poor. IOLTA programs can be mandatory, voluntary or opt-out. A voluntary program means that a lawyer

must affirmatively decide to participate; an opt-out program means that all lawyers participate unless they

affirmatively declare not to. The plans cover only client funds that are too small in amount or are to be heldfor too brief a period to earn interest for the client. The majority of jurisdictions have voluntary or opt-out

plans, or some hybrid of the two, although a growing number of plans are being converted to mandatory

status. Each state has its own rules about how these funds are expended. The constitutionality of IOLTA

programs has been challenged in the courts on the grounds that clients have property rights in the interest

generated in these accounts, which rights are violated when the interest income, however small, is not paid to

the clients.

Confidentiality/ Attorney-Client Privilege:

Ethics rules on confidentiality are much broader than the attorney-client privilege, and require a lawyer not todivulge virtually any information about a client in any context.

The attorney-client privilege is a rule of evidence that protects confidential information from being divulged in

litigation by way of discovery or testimony. The general rule is that a client who seeks a lawyers advice may

invoke an unqualified privilege not to testify and to prevent the lawyer from testifying as to communications

made by the client in confidence to the lawyer. The client is the holder of the privilege and only the client may

waive it, by consenting to the disclosure. The attorney, however, must advise the client of the existence and


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protection of the privilege. The privilege does not cover material that is not classified as a communication,

such as physical evidence. The privilege lasts indefinitely.

4 Types of Sanctions:

Disbarment licensed revoked; suspensionattorney cant practice for a period of time; probation attorney

can practice on the condition that certain requirements are met; reprimand (reproval) slap on the hand, a

warning.

Is a firm with employee that has a conflict of interest disqualified from a case? Explain.

The conflict of one person in a firm may cause the entire firm to be disqualified from representing a client.

Vicarious or imputed disqualification is the imputation of a conflict to others in a firm so that the entire firm is

disqualified from undertaking the representation. Even if confidential info can be protected by screening, it

may not be possible to protect against the actual pressure to handle a case in a manner that will most benefit

the firm or the client.

Criticizing Judges:

Inappropriate criticism may give rise to disciplinary action, although it is not ordinarily grounds for contempt

proceedings b/c of free speech. Ethics rules prohibit lawyers from making false statements about the

qualifications or integrity of a judge Lawyers are protected from liability for derogatory statements about a

judge unless theyre made with knowledge of the statements falsity or with reckless disregard. Most

jurisdictions say that the 1st

Amendment does not protect lawyers from disciplinary action for criticizing

judges.

ESSAY - -

What matters should be covered in a written fee agreement?

Lawyers should communicate, preferably in writing, the scope of representation and the basis or rate of the

fee and expenses. Changes in rates and fees should also be explained. Contingency fee agreements must be in

writing and include the method and percentage by which the fee will be calculated and provision for payment

of costs.

Fee petitions, in general, must have:

Credentials and experience of the paralegal, including college education and degrees granted; years of work

experience and certification with statutory, court rule, or bar guidelines for paralegals. Detailed descriptions of

the work performed, including the number of hours spent and the exact nature of the work, which must be

professional and not clerical. Information on firm and market practices and rates, including paralegal

compensation, overhead allocated to paralegals, hourly rates and comparison data on practices and rates in

the legal community.


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How do you avoid malpractice?

Lawyers should use carefully drafted letters of engagement as well as letters terminating or declining

representation.

Clients should be selected carefully. Difficult personalities and questionable cases should not be accepted.

Lawyers and clients should enter into complete fee agreements

Clients should be charged reasonable fees in accord with the fee agreements.

Clients phone calls and e-mails should be returned promptly. Attorneys and paralegals should take the time to

educate the client about the law and show that they care

Lawyers/paralegals should listen to clients carefully and understand their goals.

Lawyers should exercise independent judgment and respect clients decisions.

Firms should have good management systems and well-trained personnel in place

Unethical coaching of a witness:

Usually comes with high-stakes cases. Paralegals must be mindful of the line between preparing witnesses to

give their testimony effectively and encouraging them to testify untruthfully. ABA Model Rule 4.4 prohibits

lawyers from engaging in any conduct the only purpose of which is to embarrass, delay, or burden a third

person

Ex-parte with jurors:

It is prohibited by ethics rules to prevent influence and bribery. Lawyers are prohibited even if they arent

involved in the case at issue. A lawyer may not circumvent these rules by using an agent, such as the client or

paralegal. A mistrial is likely to be declared if ex parte communications with jurors come to light.

Communicating with jurors after a trial is forbidden in some states.

Disruptive behavior in court:

Ex: Making faces or gestures to the judge or jury; asking a question that alludes to evidence known to be

inadmissible;; insulting the judge or opposing counsel; referring to the proceedings in an insulting manner;

making unsupportable or prejudicial side remarks to jury. The court may sanction lawyers to take an ethics

course, sanction them for written comments, sentenced to jail time, and suspension.

MULTIPLE CHOICE:

Spoliation: Destruction of evidence that may result in a civil cause of action for damages for interference with

the ability to prove a claim or defense.

Perjury: Making false statements under oath


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Two types of cases where contingency fees are prohibited:

Criminal cases and marital dissolutions, divorce and separation

final study guide-ethics

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