Conflicts
A concurrent conflict interest exists if:
(1) the representation of one client will be directly adverse to another client or
(2) there is a significant risk that the representation of one more clients will be materially limited by the lawyer's responsibilities to another client, a former client, a third person, or by personal interest.
Under what circumstances, does an attorney have to disclose authority that is adverse to its position?
when the authority is controlling and binding and opposing counsel has not already disclosed it
what are the 8 factors used to determine the reasonableness of a fee:
(1) the time, labor, difficulty, and skill required
(2) the likelihood of whether the particular employment will preclude other employment by the lawyer
(3) the fee usually charged in the area for similar legal services
(4) the amount involved and the results obtained
(5) the time limitations imposed by the client or by the circumstances
(6) the nature and length of the professional relationship with the client
(7) the experience, reputation, and ability of the lawyer
(8) whether the fee is fixed or contingent
a lawyer shall not reveal information relating to the representation of a client unless:
(1) the client gives informed consent
(2) the disclosure is impliedly authorized in order to carry out representation or is permitted under 1.6(b)
(1) the United States constitution keeps it out
(2) a federal statute keeps it out
(3) the FRE keep is out (i.e., hearsay); or
(4) other rules prescribed by the Supreme Court
Define material limitation (hint: what are the critical questions involved in determining whether representation is materially limited)
(1) the likelihood that a different in interests will eventuate and (2) if it does, whether it will materially (seriously) interfere with the lawyer's independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client.
a lawyer may refuse to offer evidence that the lawyer reasonably believes to be false, other than "..."
what is "defendant testimony in a criminal matter."
what are the two types of matters that cannot be done on a contingency fee?
criminal and divorce
what are the 7 situations in which a lawyer MAY reveal confidential information
(1) to prevent reasonably certain death or substantial bodily harm
(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property in furtherance of which the client has used the lawyer's service
(3) to prevent, mitigate, or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services
(4) to secure legal advice about the lawyer's compliance with these rules
(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge of civil claim against the lawyer based upon conduct in which the client was involved or to respond to allegations in any proceeding concerning the lawyer's representation of the client;
(6) to comply with a court order
(7) to detect and resolve conflicts of interest arising from the lawyer's change of employment or from changes int he composition or ownership of a firm, but only if the revealed information would not compromise the ACP or otherwise prejudice the client.
Evidence is relevant if:
(a) it has any tendency to make a fact or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action
Under Rule 1.7, notwithstanding the existence of a concurrent conflict of interest, under paragraph (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes diligent and competent representation is possible to each affected client;
(2) the representation is not prohibited by law
(3) the representation does not involve the assertion of a claim by one client against another represented by the same lawyer in the same litigation; and,
(4) each affected client gives informed consent, confirmed in writing.
when a lawyer represents a client in an adjudicative proceeding who knows that a person intends to engage, engaged, or is engaging in criminal or fraudulent conduct relating to the proceeding shall
take reasonable remedial measures, including, if necessary disclosure to the tribunal.
fee splitting between lawyers across different forms may only be made if
(2) the client agrees to the arrangement, including the share each lawyer will receive
(3) the agreement is confirmed in writing
(4) the total fee is reasonable
true or false: a lawyer shall make efforts to prevent inadvertent disclosures
false - a lawyer shall make REASONABLE efforts to prevent inadvertent disclosures.
If the court admits evidence that is admissible against a party or for a purpose but not against another party or for another purpose the court on timely request must
restrict the evidence to its proper scope and instruct the jury accordingly
1.9(a) - A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in a "...."
substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.
Substantially Related -> matters are substantially related if they involve the same transaction or legal dispute or is there otherwise a substantial risk that confidential factual information as would have normally been obtained would materially advance the client's position in the subsequent matter.
except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve as a legitimate law enforcement purpose refrain from
making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused
(1) preferably in writing
(2) before or within a reasonable time after commencing representation except if it's a regular client with a regular rate.
Can lawyers in a firm, in the course of firm's practice, disclose to each other information relating to a client of the firm
Yes, unless the client has instructed that particular information be confined to specified lawyers.
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following:
unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence
*note* all relevant evidence is prejudicial. This rule only concerns itself with unfair prejudice.
Except as the law may otherwise expressly permit, a lawyer who has formerly served as a public officer or employee of the government:
(1) is subject to rule 1.9(c) and
(2) shall not represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate agency gives its informed consent, confirmed in writing.
a lawyer who is participating or has participated in the investigation or litigation of a matter shall not:
make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.
a fee may be contingent
if it is in writing signed by the client and states the method by which the fee is to be determined, including percentages in the event of settlement, trial, or appeal and whether expenses will be deducted before or after contingent fee calculated. Must be clear as to what expenses the client will be responsible for.
Attorney Ellis represents a software developer who is being sued by a former business partner for breach of contract. During the course of representation, the client confesses to Ellis that he has been secretly copying proprietary code from a third-party competitor and incorporating it into his company’s product. Ellis believes this could potentially lead to criminal prosecution or significant civil liability if discovered, but it is unrelated to the breach of contract case.
A few weeks later, Ellis receives a subpoena from the competitor’s attorney, seeking all communications with the client. The client strongly objects and refuses to waive confidentiality.
Is Ellis permitted to disclose the information?
(A) Yes, because Ellis reasonably believes disclosure is necessary to avoid criminal liability for himself.
(B) Yes, because the competitor has a right to know the information to protect its intellectual property.
(C) No, because there is no exception under Rule 1.6 that permits disclosure in this scenario without client consent.
(D) No, unless Ellis believes that disclosing the information is necessary to prevent reasonably certain death or substantial bodily harm.
C
hearsay is not admissible unless any of the following otherwise:
(1) a federal statute;
(2) these rules;
(3) other rules prescribed by the Supreme Court.