Differences between CA and MR

Question 1

Confidentiality

Answer 1

CA: Attorney may disclose confidential info to prevent a criminal act they reasonably believe is likely to result in death or substantial bodily harm

MR Lawyers may disclose info (not necessarily criminal) to prevent reasonably certain death or substantial bodily harm.

E.g., MR Lawyers may disclose confidential info to stop, mitigate, or cure a crime or fraud where:
(i) it is reasonably certain will/did result in substantial financial injury and
(ii) lawyer’s services were used.
CA: Does not allow for that exception.

Question 2

Reporting professional misconduct

Answer 2

CA: attorneys must “self-report” for an exclusive list of specific incidents. CA attorneys have no obligation to report on other attorneys.

MR: Lawyers must report misconduct of other attorneys, if the misconduct raises a “substantial question” about lawyer’s “honesty, trustworthiness or fitness as a lawyer.”

Question 3

Written fee agreements

Answer 3

In both CA and MR: Contingency fee agreements must be in writing

MR: Signed by client only. In non-contingency fee cases, there is no requirement of writing, though it is preferred.

CA requires a written agreement in any case where costs and fees are expected to exceed $1,000. (B&P 6147: signed by client and attorney.)

Question 4

Referral fees to non-affiliated lawyers

Answer 4

CA: Traditional referral fees are allowed. Also requires a written agreement between the lawyers about the fee splitting.

MR: Do not allow referral fees. A referring lawyer can only be paid in proportion to the services performed on that matter or joint responsibility.

Note that the rules require disclosure and consent to client.

Question 5

Advancing money to clients in connection to pending or contemplated litigation

Answer 5

MR: Lawyers can only advance clients money to cover court costs and fees.

CA: Lawyers (after employment) can loan clients money for personal expenses or any purpose so long as a promise to repay is in writing and they follow the “Doing Business with Clients Rule.”

Question 6

Returning Client Papers if client hasn’t paid bill

Answer 6

MR: the attorney may keep client papers if permitted by local law and if it won’t damage client’s interests.

CA: the attorney must return papers whether client has paid for them or not.

Question 7

Trial lawyer as witness

Answer 7

MR: Lawyer can only testify as to non-contested matter, fees, or if not testifying creates a substantial hardship to client.

CA: Lawyer can testify on any issue if client consents in writing.

Question 8

Prospectively limiting liability

Answer 8

MR 1.8: A client must be represented by independent counsel before signing an agreement with a lawyer saying “I will not sue you for malpractice,” i.e., prospectively limiting liability.

CRPC 1.8.8 absolutely prohibits prospectively limiting liability

Question 9

Disclosure of errors and omissions insurance

Answer 9

CA: Lawyers must disclose in writing if they do not carry malpractice insurance IF they anticipate providing more than four hours of services.

Also, if during the representation the lawyer decided not to continue carrying malpractice insurance, the lawyer must notify existing clients.

There is no MR requirement.

Question 10

Literary Rights to Lawyer at beginning of representation

Answer 10

E.g., “before representation has ended, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights”

MR: Forbidden before conclusion of representation.

CA: It is ok if there is compliance with the rule on doing business with a client

Question 11

Med Mal Fee Caps in California

Answer 11

Not in MR

B&P 6146: Attorney cannot collect a contingency fee for representing someone seeking damages against a health care provider for negligence in excess of the following limits:

1) 40% of the first $50,000 recovered.
2) 33.3% of the next $50,000 recovered.
3) 25% of the next $500,000 recovered.
(4) 15% of any amount on which the recovery exceeds $600,000

Question 12

Client with Diminished Capacity

Answer 12

MR:
- A lawyer shall try to maintain a normal client-lawyer relationship with a client who has diminished capacity.

• A lawyer may take reasonably necessary protective actions if they believe the client is at risk at harm. The lawyer is impliedly authorized to reveal information about the client to the extent reasonably necessary to protect the client’s interests.

No comparable rule in CA

Question 13

Evaluation for Use by Third Person

Answer 13

MR: A lawyer can do this if the lawyer reasonably believes that making the evaluation is compatible with other aspects of the lawyer’s relationship with the client.

CA has no comparable rule

Question 14

Law Related Services

Answer 14

“Law-related services” are services that could be performed in conjunction with legal services, and that are not prohibited as unauthorized practice of law when provided by a nonlawyer.

IN BOTH: Lawyer is subject to discipline if their law-related services are not distinct from the legal services to clients (i.e., both legal and non-legal services offered)

MR: Lawyer shall also be subject to discipline if they don’t tell their client that the law-related services are not legal services and that the protections of the client-lawyer relationship do not exist.

CA: No comparable rule, but prohibits generally lawyers and non-lawyers owning business IF any part of that business is the provision of legal services.

No prohibition for lawyers to own businesses with non-lawyers where not legal services are provided.

Question 15

Threatening Criminal, Administrative, or Disciplinary Charges to Gain Advantage in Civil Litigation

Answer 15

MR: Not specifically mentioned, but you cannot intentionally embarrass or burden 3rd party, commit criminal extortion, or prejudice the administration of justice.

Not permitted in CA

Question 16

Unknowingly Presenting False Material Evidence

Answer 16

MR: If a lawyer learns that they presented false evidence, they must report this information to the court “if necessary” to remediate the problem EVEN IF it violates client confidentiality.

CA: Can only report this UNLESS it violates client confidentiality, in which case you cannot

Question 17

Knowingly Presenting Perjured Criminal Defendant Testimony

Answer 17

CA: If lawyer knows a criminal defendant client intends to offer false testimony, the lawyer must use the narrative approach and not refer to the defendant’s testimony in the closing argument.

MR not in conflict with this approach; refers to local law on issue.

Question 18

Flat Fees

Answer 18

CA: Flat fee should be deposited in the law firms bank account before the work is done, but certain disclosures are made to client and if over $1000 the client agrees in writing.

This is not addressed in the MR

Question 19

True Retainer

Answer 19

CA describes a fee earned on receipt that is not paid for any work performed or that will be performed. Client must agree in writing following disclosures.

This is not addressed in the MR

Question 20

Written Disclosures

Answer 20

MR: If adverse lawyers are closely related by blood or marriage, conflict is presumed to raise a significant risk and informed written consent is required from both affected clients.

CA: Broader
Business, financial, personal, and blood relationships that a lawyer has with a party or a witness OR knows other lawyers in the firm have with a party or a witness,

must be disclosed in writing to a client regardless of whether there is a significant risk the lawyer will be materially impaired in representing the client.

Question 21

Proprietary Interest in the Subject Matter of the Litigation

Answer 21

MR: This is expressly prohibited.

There is no corresponding prohibition in CA, but it must comply with CRPC 1.7(b) & (d), which could operate as a de facto prohibition in some instances.

Question 22

Advertising and Solicitation

Answer 22

CA: Rebuttable presumption that the attorney’s communications are a violation of the rules. This merely affects the burden of proof in disciplinary proceeding.

MR does not have such presumptive violations- Person claiming an attorney violated this has the burden of proof

Question 23

Up the Ladder/and “Loyal Disclosure” Reporting of Corporate Client Conduct

Answer 23

BOTH rules: An attorney must report any conduct that would result in criminal or civil liability that would result in substantial injury to the client “up the [corporate] ladder,” if it is in the best interests of the corporation to do so in the reasonable judgment of the attorney.

Only under MR: An attorney is permitted to make a “loyal disclosure” outside the corporation if the attorney believes it is necessary to avoid substantial injury to the corporation. MR 1.13(c).

CA prohibits divulging confidential information outside the corporate hierarchy absent the informed consent of the client.

Question 24

Mandatory Withdrawal

Answer 24

MR: The attorney must withdraw if continued representation will result in a violation of the MR or of “other law.”

CA: there is no provision for mandatory withdrawal for violation of “other law.” Such situations are the subject of permissive withdrawal. Compare MR 1.16(a)(1) with CRPC 1.16 (a)(1) and 1.16 (b)(2), and (3).

Question 25

Personal Opinions as to the Credibility of Witnesses

Answer 25

MR: An attorney is prohibited from expressing his or her opinion as to the credibility of a witness, and as to the guilt or innocence of an accused.

CA: makes it a disciplinary violation ONLY if an attorney expresses an opinion as to the guilt or innocence of the accused

i.e., In CA you CAN express opinion about credibility of a witness

Question 26

Payment of Witnesses for their time attending or testifying

Answer 26

CA: Permits payment of a witness “for loss of time attending or testifying.” This has been interpreted as including paying a reasonable fee for the time spent, e.g., interviewing the police officer who wrote an accident report.

There is no equivalent under the MR. However, such payments are consistent with ABA Opinions of Rule 3.4

Question 27

Disciplinary Violation for Making Frivolous Discovery Requests

Answer 27

MR: Makes it a disciplinary violation to “make a frivolous discovery request.”

CA: There is no direct equivalent, as California leaves discovery abuses to the sanction power of the court and other statutory remedies

Question 28

Advice to Secrete a Witness from the Jurisdiction

Answer 28

MR: prohibits a lawyer from advising or assisting anyone to “unlawfully obstruct another party’ s access to evidence.”
- Unclear whether advising a witness to leave the jurisdiction is “unlawfully” obstructing the opponent’s access to evidence

CA: prohibits a lawyer from counseling or assisting a witness to hide themselves or make that person unavailable as a witness