pierceb's version from 2015-07-23 23:48



Question Answer
What is the North Carolina Rule on where a client's money should be kept?Lawyer MUST keep all client money in an "IOLTA" - INTEREST ON LAWYER TRUST ACCOUNT account deemed eligible by NCIOLTA.
Who must the attorney notify concerning IOLTA accounts?Must notify the state bar upon opening and closing an IOLTA account. Must include: (i) name of the bank where account is maintained; (ii) name of the account; (iii) account number and (iv) name and bar number of the lawyers in the firm.
The are the rules of money and IOLTA accounts?No commingingly of lawyer's money with client money. Small sums of money used in a pooled trust account but cannot use clients' money for the benefit of another client. For a large sum held for a long period of time must be separate interest bearing account within interest going to the client.



Question Answer
What must be included in a fee agreement?(1) scope of representation; (2) basis or rate of fee; and (3) expenses for which client will be responsible-
When should a fee agreement be completed?Before commencement of representation or a reasonable time after commencement.
Fee Agreement - NC Exceptiona fee agreement is not necessarily required where a lawyer charges a "regularly represented client" on the same basis or rate in subsequent matters.
What is a contingent fee?A fee that is dependent on the successful resolution of a client's claim payable from the judgment.
What must the attorney do if there is a fee dispute between himself and client?Keep disputed portion in client's IOLTA account. Layer must (i) make a reasonable effort to inform client of NORTH CAROLINA STATE BAR'S FEE DISPUTE RESOLUTION PROGRAM at least 30 DAYS prior to initiating proceedings, and (ii) participate in good faith in fee dispute resolution process.
What are the requirements for a contingent fee?Must be (i) in writing; (ii) signed by the client; and (iii) state the method by which the fee is to be determined.
When is a contingent fee NOT permitted?(i) criminal cases and (ii) domestic relations cases. NC Exception: Permitted for criminal or civil asset forfeiture action if not otherwise prohibited by law.



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What is an attorney-client privilege?Allows a client to refuse to testify and prevent his attorney from testifying in court about "confidential communications" between the two.
When is a communication confidential?Communications are confidential if made by an individual to an attorney who is sought out for the purpose of obtaining legal advice.
How long does attorney-client privilege last?The privilege is held by the client alone. The privilege is indefinite, meaning, it exists even after the attorney-client relationship has terminated.
Is information an attorney discover on his own privileged?Most likely not. Privilege does not apply to anything the attorney discovers on his own.
If the client is a corporation, what does the privilege cover?Confidential communications between the attorney and a high ranking corporate official, with exception.
Will the presence of a 3rd party destroy privilege?Generally, no. Presence of a 3rd party DOES NOT destroy privilege if the 3rd party was present to help further the attorney client relationship.
What is the exception to the corporate-client communications?Privilege only applies to communications between attorney and high-ranking corporate official, UNLESS (i) an employee communicates with the attorney "at the direction of the employee's superior"; (ii) the "employee knows" that the communcation is to help the corporation get legal advice; AND (iii) the communication concerns a "subject within the scope of the employee's duties" for the corporation.
What does the rule of "confidentiality" cover?A lawyer must not reveal "any information relating to the representation" of a client. This applies to all information relating to representation even after the attorney-client relationship has terminated.
What are some exceptions to the rule of confidentiality?Disclosure is permitted: (i) with client's consent or implied authority; (ii) to prevent death or substantial bodily harm; (iii) disclosure to prevent or rectify substantial financial loss; (iv) required by court, ethics rules, or law; (v) necessary to collect a fee or protect lawyer; (vi) to obtain legal ethics advice; or (vii) necessary to address conflicts of interest.
When does attorney-client privilege apply to a particular communication?Applies if (1) the lawyer-client relationship "existed" at the time the communication was made; (2) the communication was "made in confidence;" (3) the communication "relates to a matter about which the lawyer is being professionally consulted;" (4) the communication was mafe in the "course of giving or seeking legal advice" for a proper purpose; and (5) the client has "not waived the privilege."
As between multiple clients being represented by one attorney (e.g., four church members in a bus accident), does attorney-client privilege and confidentiality attach?NO! Once consideration for common representation of multiple clients by one lawyer is the effect on a-c privilege and a-c confidentiality. As between the represented clients, the privilege would not attach, thus, the attorney's first conversation with the clients should address this concern first.



Question Answer
When may a lawyer engage in a relationship that presents a concurrent conflict of interest?(i) attorney "reasonably believes" that she can "competently and diligently" represent each affected client; (ii) representation is "not prohibited by law"; (iii) representation "does not involve the assertion of a claim by one client against another client"; and (iv) each affected client gives "informed consent, confirmed in writing."
What is a concurrent conflict of interest?When (i) representation of a client will be "directly adverse" to the interest of another client, OR (ii) there is a "significant risk" that the representation of a client will be "materially limited" to the lawyer's personal interest or his responsibilities to another client, former client, or third person.
What is the general rule about conflicts of interest?A lawyer must not enter into a relationship where there is a potential conflict of interest that is likely to adversely affect his ability to exercise "independent and professional" judgment.
May a lawyer provide financial assistance to a client?Generally no, unless, (i) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter, AND (ii) a lawyer representing an "indigent" client may pay court costs and expenses of litigation on behalf of the client.
Duty to Prospective Client-who is a prospective client?a prospective client is a person who "consults" with a lawyer about the possibility of "forming a client-lawyer relationship" with respect to a matter.
Does attorney-client privilege protect communications between lawyer and prospective client?Yes
Generally, a lawyer may not testify for a client as a "necessary witness". However, when can he?(i) uncontested issue (e.g., proceeding concerning an uncontested will, attorney may testify as tot the testamentary capacity of the decedent); (ii) nature and value of legal services (e.g., suit for attorney's fees); or (iii) substantial hardship (e.g., attorney has dinstinctive value as a witness).
When will one lawyer's conflict of interest be imputed to the entire firm? Exceptions?While lawyers are associated in a firm, none of them may knowingly represent a client when any one of them practicing alone would be prohibited from doing so. Unless: (i) the prohibition is based on a personal interest and does not present a significant risk of materially limiting the representation of the lcient by the remaining lawyers in the firm; OR (ii) the disqualified lawyer is timely screened from any participation in the matter, apportioned no part of the fee and former client is given notice.
Is there an imputation of conflict to a firm even when the attorney terminates employment with the firm?Generally, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer unless: (i) the matter is the "same or substantially related" to that in which the formerly associated lawyer represented the client; and (ii) any lawyer remaining in the firm has information about a material matter protected by confidentiality.
When dealing with settlements, a lawyer who represents multiple clients should obtain INFORMED CONSENT CONFIRMED IN WRITING from who?ALL involved clients. In addition, the North Carolina RPC protect each client's right to make the final decision of whether to accept or deny the settlement offer.



Question Answer
What is the rule for communication with represented persons?It is impermissible. In the representation of a client, a lawyer MUST NOT communicate about the "subject of the representation" with a person he knows to be represented by counsel in the matter UNLESS the other counsel consents, authorized by law, or court order. This rule applies to communication with ANY PERSON, even if not a party, who is represented by counsel concerning the matter to which the communication related.
Can an attorney communication with employees of a corporation involved in litigation?Corporations and other organizations are "persons" for the purposes of this rule. Lawyer must get consent from organization's counsel before communicating with: (i) person who "SUPERVISES, DIRECTS, or REGULARLY CONSULTS" with the organization's lawyer concerning the matter; (ii) person with "AUTHORITY TO OBLIGATE" the organization with respect to the matter ,or (iii) person whose "ACT OR OMISSION" in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.



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What is the general rule for advertisements?Must be TRUE and NOT MISLEADING. A lawyer must not make a false or misleading communication about the lawyer or the lawyer's services. Ads must be "TRUE AND NOT MISLEADING!" "TRUE AND NOT MISLEADING!" "TRUE AND NOT MISLEADING!" "TRUE AND NOT MISLEADING!" "TRUE AND NOT MISLEADING!"
What constitutes "false and misleading"?"False and misleading" includes "MATERIAL MISREPRESENTATIONS" of law or fact, and "OMISSIONS" of fact that are necessary to make a statement, considered as a whole, not materially misleading.
A truthful communication can be misleading if...substantial likelihood that the communication will lead a reasonable person to reach an unjustified conclusion concerning the attorney.
What must be included in advertisement?The advertiser's ID. That is, (i) the name and (ii) office address of at least one lawyer or firm responsible for its contents.
May an attorney make payments for recommending lawyer's services? Exceptions?As a general rule, an attorney MUST NOT give "anything of value" for a person's recommendation of the lawyer's services. However, a lawyer may: (i) pay the reasonable costs of permitted advertisements (e.g., broadcast airtime, ads...); (ii) pay charges of a legal service plan or a NOT-FOR-PROFIT or qualified lawyer referral service; (iii) (referral agreement) refer clients to another lawyer or a nonlawyer professional pursuant to an agreement not otherwise prohibited by the RPC that provides for the other person to refer clients or customers to the lawyer. NOTE. Any such reciprocal referral agreement MUST NOT BE EXCLUSIVE (AND) the client MUST BE INFORMED of the existence and nature of the agreement.
May a lawyer use a website?Yes. So long as the information contained therein is "TRUE AND NOT MISLEADING." The website must clearly indicate the jurisdiction(s) in which the attorney is licensed to practice law, and the website contains the physical address of the attorney's principal office.
Are internet directories permissible?Yes. NC permits a lawyer to participate in a directory of lawyers on the internet if the information about the lawyer in the directory is truthful. (e.g., an attorney listing her firm, for a fee, on an internet directory of Asheville law firms.) Because this is not a referral service. The general rule is that "a lawyer must"NOT GIVE ANYTHING OF VALUE" to a person for recommending the lawyer's services.
Advertisement v. SolicitationAdvertisement = communication with the PUBLIC AT LARGE... Solicitation = "TARGETED" communication initiated by the lawyer to a specific person.



Question Answer
What is a solicitation?Solicitation is a "targeted communication initiated by the lawyer" that is directed to a specific person and that offers to provide, or can be reasonably be understood as offering to provide, legal services.
When is a communication generally not a solicitation?If it (i) is directed to the general public (e.g., billboard, website, etc...); (ii) responds to a request for information; or (iii) is automatically generated in response to an Internet search.
Is in-person/electronic solicitation permitted?Generally, a lawyer must NOT, by in-person, live telephone, or real-time electronic contract, solicit professional employment when a significant motive for the lawyer's doing is the lawyer's pecuniary gain.



Question Answer
What is the general rule?Lawyer must not make FRIVOLOUS CLAIMS OR DEFENSES. Additionally, lawyer must make reasonable efforts to expedite litigation consistent with the interests of the client.
Under Candor, a lawyer must not knowingly...(1) make a FALSE STATEMENT of fact or law to a tribunal: (2) failt to CORRECT a false statement of MATERIAL FACT or law previously made to the tribunal by the lawyer; (3) failt to disclose to the tribunal LEGAL AUTHORITY in the controlling jurisdiction known to the lawyer to be directly adverse to th eposition of the client and not disclosed by opposing counsel; OR (4) fooder FALSE EVIDENCE.
Trial Publicity: general ruleA lawyer participating in litigation of a matter MUST NOT make an EXTRAJUDICIAL STATEMENT that she 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.
Trial Publicty: What is the "Right to Reply"?Lawyer is permitted to make a sstatement that a reasonable lawyer would believe is required to PROTECT a CLIENT from SUBSTANITAL UNDUE PREJUDICIAL EFFECT of recent publicity no initiated by the lawyer of her client.