20781936
Description
Flashcards by JD Advising, updated more than 1 year ago
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Created by JD Advising
over 4 years ago
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| Question | Answer |
| What is the lawyer’s role as an advisor? | In representing a client, a lawyer shall exercise independent professional judgment and render candid advice, even if it is not what the client wants to hear. In rendering advice, a lawyer may refer not only to law, but to other considerations such as moral, economic, social, and political factors that may be relevant to the client's situation. |
| What is the lawyer’s role as an evaluator? | A lawyer may provide an evaluation of a matter affecting a client for the use of someone other than the client if the lawyer reasonably believes that making the evaluation is compatible with other aspects of the lawyer's relationship with the client. When the lawyer knows or reasonably should know that the evaluation is likely to affect the client's interests materially and adversely, the lawyer shall not provide the evaluation unless the client gives informed consent. Except as disclosure is authorized in connection with a report of an evaluation, information relating to the evaluation is otherwise protected by the confidentiality rules. |
| What is the lawyer’s role as a negotiator? | A lawyer must not make a false statement of material fact when the lawyer is a negotiator. However, the lawyer can engage in “puffing” (e.g., estimating the settlement value or the party’s intention to settle). Further, a lawyer has no duty to volunteer facts unfavorable to the client or correct a misapprehension made by the other side unless the lawyer or client caused it. |
| What is the lawyer’s role as an arbitrator, mediator, or third-party neutral? | Definition: a lawyer serves as a third-party neutral when the lawyer assists two or more persons who are not clients of the lawyer to reach a resolution of a dispute or other matter that has arisen between them. Unrepresented parties: A lawyer serving as a third-party neutral shall inform unrepresented parties that the lawyer is not representing them. When the lawyer knows or reasonably should know that a party does not understand the lawyer's role in the matter, the lawyer shall explain the difference between the lawyer's role as a third-party neutral and a lawyer's role as one who represents a client. |
| When may a lawyer represent one of the parties following an arbitration when the lawyer served as the arbitrator/mediator/third-party neutral? | If asked to serve as a lawyer for one of the parties, the lawyer may only do so if all parties give their informed consent in writing. This is imputed to the firm but if the lawyer is screened and apportioned no fee, then the conflict is resolved. i) Exception: as mentioned above, there is no conflict if a lawyer who served as a partisan arbitrator is asked to become that party’s lawyer. |
| Why is a prosecutor’s role unique compared to other lawyers? | A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice, that guilt is decided upon the basis of sufficient evidence, and that special precautions are taken to prevent and to rectify the conviction of innocent persons. |
| What are some of the special duties that are unique to prosecutors? (1) | A prosecutor must: a) Refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause. b) Make reasonable efforts to assure that the accused has been advised of: i) the right to obtain counsel, ii) the procedure for obtaining counsel, and iii) has been given reasonable opportunity to obtain counsel. c) Not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing. d) Make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense. And, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal. (1/2) |
| What are some of the special duties that are unique to prosecutors? (2) | e) Not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes: i) the information sought is not protected from disclosure by any applicable privilege, ii) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution, and iii) there is no other feasible alternative to obtain the information. f) Refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees, or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making. (Note that this does not apply to statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose.) (2/2) |
| What is a prosecutor’s duty when he learns of evidence that creates a likelihood that a convicted defendant did not commit an offense? | When a prosecutor knows of new, credible, and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall: a) Promptly disclose that evidence to an appropriate court or authority. b) If the conviction was obtained in the prosecutor’s jurisdiction: i) promptly disclose that evidence to the defendant unless a court authorizes delay, and ii) undertake further investigation or make reasonable efforts to cause an investigation in order to determine whether the defendant was convicted of an offense that the defendant did not commit. When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction. |
| What is the duty of a lawyer who appears in a nonadjudicative proceeding? | A lawyer representing a client before a legislative body or administrative agency in a non-adjudicative proceeding shall disclose that the appearance is in a representative capacity. In representation before bodies such as legislatures, municipal councils, and executive and administrative agencies acting in a rule-making or policy-making capacity, lawyers present facts, formulate issues, and advance arguments in the matters under consideration. The decision-making body, such as a court, should be able to rely on the integrity of the submissions made to it. A lawyer appearing before such a body must deal with it honestly and in conformity with applicable rules of procedure. |
| When a lawyer represents an organization, who is the lawyer’s client? | In dealing with an organization's directors, officers, employees, members, shareholders, or other constituents, a lawyer shall explain the identity of the client when the lawyer knows or reasonably should know that the organization's interests are adverse to those of the constituents with whom the lawyer is dealing. A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders, or other constituents, subject to the provisions of present conflict rules (Rule 1.7). If the organization's consent to the dual representation is required, the consent shall be given by an appropriate official of the organization, other than the individual who is to be represented, or by the shareholders. |
| When does a lawyer who represents an organization have a duty to report misconduct within the organization? | If a lawyer for an organization knows that a person associated with the organization is acting or going to act in a matter that is a violation of a legal obligation to the organization or a violation of law that reasonably might be imputed to the organization and that is likely to result in substantial injury to the organization, then the lawyer shall proceed as is reasonably necessary in the best interests of the organization. Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so, the lawyer shall refer the matter to higher authority in the organization (usually the board of directors), including, if warranted by the circumstances, to the highest authority that can act on behalf of the organization as determined by applicable law (e.g., this could be a corporation’s outside directors). |
| When may a lawyer for an organization report internal misconduct outside of the organization? | 1) If despite the lawyer's efforts, the highest authority that can act on behalf of the organization insists upon or fails to address in a timely and appropriate manner an action or a refusal to act, that is clearly a violation of law; and 2) the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization; 3) then the lawyer may reveal information relating to the representation whether or not the confidentiality rules (Rule 1.6) permits such disclosure, but only if and to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization. a) Exception: this shall not apply with respect to information relating to a lawyer's representation of an organization to investigate an alleged violation of law or to defend the organization or an officer, employee, or other constituent associated with the organization against a claim arising out of an alleged violation of law. |
| May a lawyer serve as both a lawyer and a director of an organization? | A lawyer may serve as both a director and a lawyer, but should always make sure that the attorney-client privilege does not apply when the lawyer is acting as a director. |
| What is the Sarbanes-Oxley Act and who does it apply to? | This act, passed by Congress in 2002, instructs the Securities and Exchange Commission (SEC) to make rules for securities lawyers who discover clients violating federal or state securities laws. Applies to “securities lawyers”: These are lawyers who represent an issuer of securities and who practice before the SEC. (This includes lawyers who transact business with the SEC, communicate with the SEC, or give advice on documents that are filed with the SEC.) |
| When is reporting mandatory under the Sarbanes-Oxley Act? | Securities’ lawyers who become aware of credible evidence that their client is materially violating a federal or state securities law must report it to the clients chief legal officer (CLO) or chief executive officer (CEO). This also applies if there is credible evidence that the client’s personnel breached a fiduciary duty under state or federal law or has committed a “similar material violation” under federal or state law. |
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