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Legal Ethics and Professional Responsibility '24, Chs. 7&8, and Judicial Ethics

Horizontales
___, a factor impacting a legal professional’s competence, is required by Model Rule 1.3, “A lawyer shall act with reasonable ___ and promptness in representing a client.” A dictionary definition of ___ is "steady, earnest, and energetic effort : devoted and painstaking work and application to accomplish an undertaking." According to Abraham Lincoln, “The leading rule for the lawyer, as for the man of every other calling, is ___. Leave nothing for to-morrow which can be done to-day.”
Critics of the new CODE OF CONDUCT FOR JUSTICES OF THE Supreme Court OF THE UNITED STATES have pointed out that the Code has no ___ provisions.
A lawyer who works on a contingency (contingent) fee method of compensation for legal services receives a ___ of their client’s monetary award as compensation rather than billing a fixed hourly rate.
State bars have developed lawyer's ___ programs, which are sponsored programs designed to promote professional competence through wellness management, substance abuse recovery, stress management, and mental health services.
The act of keeping the client’s ___ in the lawyer’s own account is known as commingling and the act of using the client’s ___ is known as conversion. Both actions violate the ABA’s Model Rule 1.15(a).
The attorney and legal professional's ethical duty of truthfulness is described in Model Rule 4.1 "__ in Statements to Others", and in Model Rule 3.3(a) "Candor Toward the Tribunal." Model Rule 4.1 requires, "in the course of representing a client, a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6." Model Rule 3.3(a) Candor Toward the Tribunal, dictates that lawyer may not "knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or (3) offer evidence that the lawyer knows to be false..."
Another factor impacting competence is professionalism, which means that one's conduct and communication must demonstrate competence as well as ___ for one’s self and others. Along with ___, this factor requires civility, and effective time management. One cause of a lack of professionalism is when attorneys take on too many cases, more than they can handle. Another type of professionalism problem is when attorneys engage in personal misconduct that impacts their professional life.
The two main types of ethical violations involving untruthfulness in representing a client include: 1) making frivolous claims, discovery requests, motions, etc., and 2) offering ___ evidence.
In Caperton v. A.T. Massey Coal Co. (2009) the U.S. Supreme Court held that Judge Benjamin’s failure to recuse himself from a case violated the ___ Process Clause of the 14th Amendment where the judge had received large campaign contributions from, and through the efforts of, the respondent corporation's CEO.
After years of requests from members of congress, groups of law professors, the ABA, and many other members of the public, the ___ finally formally adopted in November 2023 a set of ethical rules called "CODE OF CONDUCT FOR JUSTICES OF THE ___ OF THE UNITED STATES."
Model Rule 1.5(a) “A lawyer shall not make an agreement for, charge, or collect an __ fee or an __ amount for expenses.” Describing the factors to be considered in determining whether a fee is ___, including examples of ___ billing, would be a good essay question.
Lawyers have a professional responsibility to provide voluntary legal services to those unable to pay, called ___ service. Some jurisdictions provide for fulfilling this obligation by providing financial support for organizations that provide legal services to persons of limited means.
___, a factor impacting a legal professional’s competence, requires education, training, and developing relationships with competent mentors/supervision, allowing new lawyers to develop the necessary skills and expertise to represent a client in a legal matter.
A cause of action for legal ___ based on negligence has four elements: 1) A duty owed by the defendant to the plaintiff 2) A breach of that duty, shown through a failure to exercise reasonable care (what a reasonable lawyer would have done) 3) Losses suffered by the plaintiff 4) Causation (a direct, foreseeable link between the defendant’s negligent conduct and the plaintiff ’s losses).
ABA Model Rule 1.5 (b) requires early communication with the client regarding fees, stating “the scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, ___ or within a reasonable time after commencing the representation...."
The Code of Conduct for United States Judges consists of five basic principles: ___ 1, A Judge Should Uphold the Integrity and Independence of the Judiciary; ___ 2, A Judge Should Avoid Impropriety and the Appearance of Impropriety in All Activities; ___ 3, A Judge Should Perform the Duties of the Office Fairly, Impartially and Diligently; ___ 4, A Judge May Engage in Extrajudicial Activities That Are Consistent With the Obligations of Judicial Office; and ___ 5, A Judge Should Refrain From Political Activity.
The consequences of ex parte communication are severe, and can include declaration of a mistrial, a reversal on ___, ethics charges, and/or sanctions.
Paralegal fees can under some circumstances be recovered from the ___ party in litigation.
Most federal judges are governed by the Code of ___ for United States Judges, which was adopted by the Judicial Conference of the United States and was originally based on the ABA’s Model Code of Judicial Conduct. Every state, including Indiana, has adopted some version of the model code.
Law firms may also bill for the time a paralegal spends on substantive ___ work under an hourly rate structure, at a lower rate than the attorneys’ rates.
A law office must keep the client’s money (e.g., advance payments, or settlement checks) in a client ___ account, which must be kept completely separate from the lawyer’s or law firm’s money.
Verticales
The three common types of legal ___, or ways that legal ___ are structured, include the hourly rate, the contingency fee, and the fixed fee. (The benefits/drawbacks of each of these types of fees in various types of cases, and hypotheticals for determining which fees are unethical in certain circumstances and why, would be good essay questions.)
The first and most important ethical rule for lawyers is ABA Model Rule 1.1: “A lawyer shall provide ___ representation to a client. ___ representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”
The "White Castle brawl" judges were found to have violated the provisions of the Indiana Code of Judicial Conduct requiring judges to act at all times "in a manner that promotes public confidence in the ___, independence, and impartiality of the judiciary [Rule 1.2]"; and the rule prohibiting judges from participating in "extrajudicial activities that would appear to a reasonable person to undermine the judge’s ___, independence, or impartiality [Rule 3.1(C)]."
Contingency fees are particularly common in personal ___ cases. They are also used in tax appeals, civil rights cases and other cases where the outcome of the damages is unknown. The percentage usually increases as the lawyer’s efforts for recovery increase. For example, a lower percentage is charged if the case settles prior to trial, a higher percentage if the case requires a trial, and an even higher percentage if winning the case requires an appeal.
ABA Model Rule 3.5 prohibits ___ communication, which is communicating with a judge, juror, or prospective juror in the absence of the other party or that party’s attorney. ___ communication is forbidden as a matter of fundamental fairness.
Although the CODE OF CONDUCT FOR JUSTICES OF THE SUPREME COURT OF THE UNITED STATES also contains five basic principles, or canons, bearing the same titles as the Code of Conduct for United States Judges, the Supreme Court's rules are more ___ than those imposed on other federal judges.
Only ___ can accept cases and set fees.
ABA Model Rule 4.3 requires that a lawyer making contact with an ___ person must clearly explain to that person that the lawyer is not neutral, not disinterested. A lawyer may not give legal advice to an ___ person if their interests may conflict with those of the lawyer’s client.
The terms "fees" and "___" in reference to a legal case are not synonymous. Fees are what the lawyer’s/paralegal’s time and efforts are worth. Fees could be hourly, contingent, or fixed. ___ are expenses associated with the representation. ___ could include expert witness fees, medical exams, deposition and transcript fees, and other discovery expenses. Clients, especially plaintiffs, might not realize there will be ___ so they must be clearly explained.
A ___ has ethical obligations additional to those expected of all attorneys, including: 1) a ___ may not charge someone with a crime when there is no probable cause for doing so, 2) a ___ must protect a defendant’s constitutional rights to a defense lawyer, 3) a ___ must protect a defendant against a mistaken waiver of the right against self-incrimination; 4) a ___ must give to the defendant any evidence which would tend to be “exculpatory,” in a timely manner, and must disclose to the court and to a convicted defendant any unprivileged mitigating information that could affect sentencing.
A paralegal (or other nonlawyer) be held liable for legal malpractice (professional negligence) if they are engaging in the ___ practice of law. Most courts take the view that if nonlawyers act like lawyers, then they will be held to the professional standards to which lawyers are accountable.
A fixed ___ method of compensation for legal services is a predetermined ___ that covers all of the lawyer’s efforts in services rendered for a particular client matter—it is based on all legal work needing to be done. This method can be commonplace for fairly routine and standardized legal services like simple wills, standard real estate documents, uncontested divorces, and straightforward bankruptcy petitions.
Because it is essential that attorneys and legal professionals capably and effectively ___ technology and be able to locate, understand, and integrate information for problem-solving and to meet specific objectives, and because this legal research is now accomplished is now accomplished with constantly evolving search engines and online databases, another essential factor impacting a legal professional's competence is technology fluency and information literacy.
Attorneys and other legal professionals keep up to date on developments in the law, such as new court decisions and new legislation, through ___ legal education. Most jurisdictions have formal ___ legal education credit requirements and voluntary paralegal membership organizations have ___ legal education requirements for their paralegal members as well.
A factor impacting a legal professional’s competence is effective communication. ABA Model Rule 1.4 requires, with regard to this factor, “A lawyer shall: (1) promptly inform the ___ of any decision or circumstance with respect to which the ___’s informed consent, as defined in Rule 1.0(e), is required by these Rules; (2) reasonably consult with the ___ about the means by which the ___’s objectives are to be accomplished; (3) keep the ___ reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the ___ about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law."
Special rules that apply to contingency fee agreements include: they are not allowed in criminal nor divorce cases; some statutes put limits on certain kinds of contingency fees; contingency fees must be in writing and the client must ___, stating the percentage to be taken and the method in which the percentage will be determined; contingency fee agreements must state whether the percentage taken will be based on the net (after costs are paid) or the gross (before); contingency fee agreements must state how litigation costs and expenses will be calculated and if the client must pay them in the event of a loss.
Rule 4.2, Communication with Person Represented by Counsel, a.k.a "the anti-___ rule," prevents an attorney (and by extension any member of their legal team) from having ___ concerning a legal matter with a person who is represented by counsel in that legal matter. (A hypothetical requiring identification of a violation of this, and other ethical rules governing attorney conduct, would be a good essay question.)
The terms "___" and "retainer" in reference to a legal case are not synonymous. A(n) ___ is a prepayment for future legal services, a prepayment of legal fees before they have been earned. An ___ is earned as the lawyer works, so is subject to being refunded, at least in part, in the event that the lawyer-client relationship terminates before the lawyer’s billable time has equaled the amount of the ___. If a lawyer fails to return the unearned portion of an ___ fee, sanctions can range from suspension to disbarment. In contrast, a retainer is a payment made to secure a lawyer’s availability, earned simply by the lawyer agreeing to be totally available to work on the client’s matter. A general retainer can be nonrefundable as it is not a prepayment of the lawyer’s future services. (Some jurisdictions require clear explanations about this fact, or require them to be refundable.) Some jurisdictions are starting to reject nonrefundable retainers on public policy grounds.
Factors that go into a law office’s determination of its attorneys’ hourly ___ include: the type of law being practiced; in-court litigation rates, vs. out-of-court rates; experience level and reputation of the lawyer; and geographical location, as lawyers in larger metropolitan areas generally charge more than their counterparts in smaller cities due to such factors as the cost of commercial rent and cost of living.
The ABA Model Rule 5.4 prohibits lawyers from sharing legal fees with nonlawyers, which includes paralegals and legal assistants. This prohibition is designed to protect the lawyer’s independent judgment. For instance, a lawyer may not ___ a paralegal or legal assistant based upon the number of cases brought in by that employee or based upon a percentage of what the lawyer made on a particular case. A lawyer can ___ a paralegal a bonus based on general firm success or total income of the firm, but not reflecting success in a particular case. (Hypotheticals involving paralegal payment methods would be good essay questions.)