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Bar Prep > Professional Responsibility > Flashcards

Professional Responsibility Flashcards

1
Q

Grounds for Discipline

A

Actual or attempted rule violations
Crimes and dishonesty
Actions that harm the justice system
Discrimination and harassment relating to law practice

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2
Q

The lawyer has a duty of ____ to _____.

A

Usually to the clients
—-Confidentiality
—-Loyalty
—-Financial Responsibility
—-Competence
—-& Others
To entities other than clients (court, opposing counsel, 3Ps, public)
—-Candor
—-Fairness
—-Dignity & decorum
—-& others
Look for duties that conflict with each other

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3
Q

Attorney-Client Relationship: Formation

A

Express agreement
Implied agreement
Court agreement

Generally
Generally free to refuse

Pro Bono Work
Pro bono work encouraged, but not required (permissive)

Can’t seek to avoid court appointment without good cause

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4
Q

Declining or Terminating Representation: Must

A

Representation will result in violation
Physical or mental condition substantially impairs ability
Discharged by client
CA: Acting without probable cause, or will to maliciously hurt or harass someone

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5
Q

Declining or Terminating Representation: Permissive

A

Can be accomplished without material adverse effect on client
Good cause

ie.
The client persists in a criminal or fraudulent course of action involving the lawyer’s services
The client has already used the lawyer’s services to perpetrate a crime or fraud
The client fails substantially to fulfill an obligation to the lawyer (for example, paying bills) and has been given reasonable warning that the lawyer will withdraw if the obligation isn’t fulfilled
The representation has been rendered unreasonably difficult by the client
The client insists on taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement
The representation will result in an unreasonable financial burden on the lawyer

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6
Q

Declining or Terminating Representation: Permissive

A

Can be accomplished without material adverse effect on client
Good cause

ie.

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7
Q
A

The client persists in a criminal or fraudulent course of action involving the lawyer’s services
The client has already used the lawyer’s services to perpetrate a crime or fraud
The client fails substantially to fulfill an obligation to the lawyer (for example, paying bills) and has been given reasonable warning that the lawyer will withdraw if the obligation isn’t fulfilled
The representation has been rendered unreasonably difficult by the client
The client insists on taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement
The representation will result in an unreasonable financial burden on the lawyer

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8
Q

Good cause

A

The client persists in a criminal or fraudulent course of action involving the lawyer’s services
The client has already used the lawyer’s services to perpetrate a crime or fraud
The client fails substantially to fulfill an obligation to the lawyer (for example, paying bills) and has been given reasonable warning that the lawyer will withdraw if the obligation isn’t fulfilled
The representation has been rendered unreasonably difficult by the client
The client insists on taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement
The representation will result in an unreasonable financial burden on the lawyer

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9
Q

Declining or Terminating Representation: Permissive: Good cause examples

A

The client persists in a criminal or fraudulent course of action involving the lawyer’s services
The client has already used the lawyer’s services to perpetrate a crime or fraud
The client fails substantially to fulfill an obligation to the lawyer (for example, paying bills) and has been given reasonable warning that the lawyer will withdraw if the obligation isn’t fulfilled
The representation has been rendered unreasonably difficult by the client
The client insists on taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement
The representation will result in an unreasonable financial burden on the lawyer

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10
Q

Declining or Terminating Representation: Permissive

A

Can be accomplished without material adverse effect on client
Good cause
CA: Client knowingly and freely consents
But: Must continue representation if the Court says
CA: Protecting Clients’ Interests on Termination

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11
Q

Attorney-Client Relationship: When representation ends:

A

Hand over file (whether or not all fees paid)
Refund unearned payments
Give notice and time to find another lawyer

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12
Q

Scope and Allocation of Authority: When Client has Final Decision

A

Settlement
Pleas
Waiving jury trial in criminal case
Testifying in criminal case

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13
Q

Scope and Allocation of Authority: Client’s Criminal or Fraudulent Conduct

A

Can’t assist client, but may advise on legal consequences
CA: if CA law conflicts with federal or tribal law, attorney must inform the client

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14
Q

Scope of Representation

A

Can limit representation with client’s consent, must be:
Reasonable
Client consents

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15
Q

Scope and Allocation of Authority: Organization

A

Lawyer owes duty to organization, not individuals
Where individual within org is committing violation:
Lawyer must proceed as reasonably necessary to protect client’s interests (usually by reporting up)
If highest authority fails to act, may report outside organization to prevent substantial injury
CA DIFFERENCE: Outside reporting prohibited
May have to withdraw

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16
Q

Scope and Allocation of Authority: Securities Lawyers

A

Federal laws govern securities lawyers, and the relevant Sarbanes-Oxley rules are similar to the ABA approach. Reporting up (to the CEO or chief legal officer, and then to the highest authority) is mandatory. If all else fails, the lawyer may disclose the matter to the SEC without client consent if reasonably necessary to prevent substantial injury to the organization or its investors, to rectify financial injury from a violation that involved the lawyer’s services, or to prevent the client from committing perjury.
Even though California’s more restrictive confidentiality rules forbid outside reporting, federal law does not mandate it, so a California lawyer can comply with both
Open question on preemption.

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17
Q

Scope and Allocation of Authority: Client with Diminished Capacity

A

May take protective action if client can’t protect themselves from substantial harm

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18
Q

Duty of Competence

A

Legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation
CA: Also includes mental, emotional, and physical ability
Addressing competence problem:
Learn
Consult with competent lawyer

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19
Q

Distinguish Malpractice from Competence

A

Incompetence exposes a lawyer to:
(1) discipline by the Bar,
(2) disqualification in a litigated matter, and
(3) civil malpractice liability
Malpractice requires actual damages to client, but can be disciplined without harm

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20
Q

Duty of Diligence

A

Must act with reasonable diligence
CA: Subject to discipline only if violation was intentional, reckless, repeated or involved in gross negligencev

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21
Q

Duty of Communication

A

Explain matter and keep client informed
Promptly comply with reasonable requests for information
Communicate settlement and plea offers (unless specifically authorized to accept or reject)

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22
Q

Withholding Information from Client

A

A lawyer may delay the transmission of information to a client if the client would be likely to react imprudently to an immediate communication. However, the lawyer must disclose the information eventually.

CA: Only delay if the lawyer reasonably believes that the client would be likely to react in a way that may cause imminent harm to the client or others.

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23
Q

Communication and Informed Consent

A

The ABA Rules generally allow this communication to be oral.

Sometimes, a client’s oral consent must be “confirmed in a writing” by the lawyer that is promptly transmitted to the client

Sometimes disclosure must be signed in writing

CA: Allows lawyer to do more things with informed consent, but almost always needs to be in writing

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24
Q

Duties before and after relationship

A

Prospective clients, can be confident creating, etc

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25
Q

Duty of Confidentiality and Privilege

A

Can’t reveal information unless client consents or other exception applies
Can’t use information to client’s disadvantage
Must take reasonable measures to prevent access or disclosure

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26
Q

Duty of Confidentiality and Privilege: Timing

A

Applies to consultations with prospective clients
Continues after relationship ends, even after client dies

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27
Q

Duty of Confidentiality and Privilege: Exception to Duty

A

Always permissive, and only convey what is reasonably necessary
Consent, or implied authority
To prevent death or substantial bodily harm
CA: take precautions
Talk client out of it, then warn client unless unreasonable
Prevent or rectify substantial financial loss (ABA only)
Defend self or establish claim against client
Seek ethics opinion
Address conflicts (routine conflict checks)
Comply with court order, law, or other ethics rule
Should first try to challenge, narrow, or seek appellate review, etc.

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28
Q

Attorney-Client Privilege Definition and Scope

A

As your Evidence materials discuss, the attorney-client privilege allows a client to refuse to testify and prevent their lawyer from testifying before a court or other government tribunal about confidential communications between them or their respective agents.

Applies to LEGAL SERVICES communications

Attaches to prospective clients and continues after representation ends

CA: Ends when client dies and estate rep discharged

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29
Q

Key Differences between AC Privilege and Confidentiality

A

AC privilege is much narrower
Prevents testimony only
Confidentiality prevents all disclosures
Covers lawyer-client communications only and agents
Confidentiality covers all sorts of communications

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30
Q

Attorney-Client Privilege: Main Exception

A

Services used for crime or fraud

Client otherwise puts the legal services at issue in the case
In civil litigation between multiple persons who were formerly the joint clients of the lawyer

In certain situations where the lawyer is called to give evidence about the competency or intention of a client who has attempted to dispose of property by will or inter vivos transfer

CA: When disclosure is necessary to prevent a criminal act that the lawyer reasonably believes is likely to result in a person’s substantial bodily injury or death (also in confidentiality)

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31
Q

Duty of Loyalty and Conflicts of Interest

A

Owe a duty of loyalty to each client, zealous and uncompromised

Look out for personal or outside interests
Three types:
Unconsentable
Resolved with consent
Look like conflicts but not

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32
Q

Consequences for breaching Duty of Loyalty

A

disqualification
discipline
civil liability

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33
Q

Imputation

A

Generally, if lawyer disqualified then others at firm also disqualified

Exceptions:
Uniquely personal conflicts
Certain conflicts that allow disqualified lawyer to be screened off
Can be waived by prospective clients

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34
Q

Conflict: Direct Adversity

A

Representing one client directly adverse to another client
Significant risk of material limitation by lawyers own interests, duty to other client, or 3P

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35
Q

Steps for Resolving a Current Client Conflict

A

If there is a conflict as described above, the lawyer may still undertake the representation if the following 4 conditions are all satisfied:
Lawyer reasonably believes they can competently and diligently represent client
Not prohibited by law
Lawyer not on both sides of same litigation
Affected clients give informed consent, confirmed in writing

CA: Informed written consent

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36
Q

Direct Adversity Conflicts

A

Can’t represent client directly adverse to another

There is a direct adversity conflict even if the lawyer represents the clients in totally unrelated matters. The main examples of direct adversity are:
—A lawyer represents multiple clients in the same matter, and their interests are in actual conflict
—A lawyer accepts representation of a client who is an adverse party in a different matter the lawyer or firm is handling for an existing client.
—A lawyer accepts representation of a client in a matter adverse to an existing client of the lawyer or firm.
——Mere economic adversity (competitive companies) not enough

As part of representing a client, a lawyer must not conduct a harmful or embarrassing cross-examination of another existing client of the lawyer or firm.

Note, about parties not positions

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37
Q

Direct Adversity Conflicts: CA Distinction Insurance

A

CA: Under California law, a lawyer who is retained by an insurance company to represent an insured also represents the insurance company for conflicts purposes. Thus, the lawyer must not file a direct action against that same insurer in an unrelated case without the insurer’s consent.

However, by statute, the lawyer has no duty of loyalty to the insurer when the insurer’s interest in each matter is only as an indemnity provider and not as a direct party to the action.

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38
Q

Material Limitation Conflicts

A

A lawyer generally must not represent a client if there is a significant risk that the representation of the client will be materially limited by the lawyer’s own interest or by the lawyer’s responsibilities to another client, a former client, or a third person (unless the conflict is properly waived by the affected client(s))

CA: Always requires written disclosure of certain relationships

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39
Q

Business Transaction with Client

A

Not allowed unless all conditions met:
Terms fair to client
Terms and lawyer’s role fully disclosed in understandable way
Client advised in writing to get independent advice
Client gives informed consent in signed writing

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40
Q

Misuse of Client’s Confidential Information

A

Can’t use confidential information to client’s disadvantage without consent or confidentiality exception

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41
Q

Substantial Gifts from Clients

A

Can’t solicit or prepare instrument when gift recipient is self or relative
Exception: Client related to gift recipient

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42
Q

Financial Assistance

A

No financial assistance in connection with litigation,

Except
Advancing court costs and litigation expenses
Paying indigent client’s court costs and litigation expenses outright
When acting pro bono for indigent client, modest gifts for living expenses

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43
Q

Financial Assistance: CA

A

Can advance or pay any type of expense
Can’t promise to help potential clients
Can lend money for any purpose if client gives written promise to repay
With client’s consent, can pay client’s expense to third party from funds collected in case

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44
Q

Aggregate Settlement Agreements

A

Must fully disclose everything to each client and obtain informed consent in signed writing

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45
Q

Compensation from Someone Other than Client

A

A lawyer must not accept compensation for representing a client from someone other than the client unless:
(1) the client gives informed consent;
(2) there is no interference with the lawyer’s independence of professional judgment or with the lawyer-client relationship; and
(3) confidential information relating to the representation of the client is protected.

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46
Q

Compensation from Someone Other than Client: CA

A

CA: California rule requires the standard informed written consent.
The California rule also provides that disclosure and consent are not required at all if:
(1) nondisclosure or the compensation is otherwise authorized by court order; or
(2) the lawyer is rendering legal services on behalf of a public agency or nonprofit organization that provides legal services to the public.
The rule also notes that in emergency situations, the lawyer can obtain the client’s consent after the fact.

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47
Q

Settling Malpractice Claim with Client

A

Must advise client in writing that independent counsel is desirable and give them a chance to retain

They don’t have to

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48
Q

Prospectively Limiting Malpractice Liability

A

Prohibited unless client independently represented in agreement

CA: Always prohibited

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49
Q

Acquiring Literary or Media Rights Concerning Client’s Case

A

Prohibited until matter is entirely complete (gone through any possible appeal)
Discouraged unless judge is satisfied and client fully consents

CA: Not prohibited, treat as a business transaction with the client

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50
Q

Participation in Foreclosure or Sale—Must Comply with Probate Code (California Only)

A

In connection with a probate, foreclosure, receiver’s, trustee’s, or judicial sale, the California Rules provide that a lawyer must not do either of the following:
—Directly or indirectly purchase property in an action or proceeding in which such lawyer—or any other lawyer with whom the lawyer is personally or professionally affiliated—is acting as a lawyer for a party or as executor, receiver, trustee, administrator, guardian, or conservator
—Represent the seller in an action or proceeding in which the purchaser is a spouse or relative of the lawyer or another lawyer in the firm, or an employee of the lawyer or the firm
However, this rule does not prohibit a lawyer from participating in transactions that are authorized by and comply with the Probate Code

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51
Q

Sex with Clients

A

A lawyer must not have a sexual relationship with a client (even if the client consents and even if the representation won’t be affected) unless the sexual relationship pre-dates the lawyer-client relationship.

52
Q

Sex with Clients: Organizations

A

Applies to anyone who supervises or consults with the lawyer

53
Q

Sex with Clients: No Imputation

A

All of the other specific conflicts discussed above are imputed to other lawyers in the disqualified lawyer’s firm. However, a conflict created by a sexual relationship is personal in nature and unlike most conflicts, it is not imputed to the lawyer’s colleagues.

54
Q

Sex with Clients: Pre-Existing Relationship May Still Cause Conflict

A

Even where the sexual relationship predated the lawyer-client relationship, the lawyer should consider whether the sexual relationship will “materially limit” the lawyer-client relationship and implicate the general conflict of interest rule for current clients

55
Q

Sex with Clients: CA

A

Adds exception for marriage/domestic partnership with client

56
Q

Using Confidential Information to Former Client’s Disadvantage

A

Can’t use confidential information to former client’s disadvantage without consent or confidentiality exception

57
Q

Opposing Former Client in Substantially Related Matter

A

Can’t represent new client adverse to former client in same or substantially related manner
Without consent in writing from former client

Substantially Related:
Same transaction or dispute
Substantial risk that information likely obtained in prior representation would materially advance new client’s position

58
Q

Opposing Client of Former Firm in Substantially Related Matter

A

Prohibited without consent if lawyer actually acquired material confidential information at former firm

59
Q

Effect of Incoming Lawyer’s Conflict on Firm

A

If lawyer’s conflict comes from association with former firm, others at new firm won’t be disqualified if:
Disqualified lawyer screened
Disqualified lawyer doesn’t share in fee
Former client given notice

CA: Limits screening if disqualified lawyer substantially participated in a matter

60
Q

Firm Opposing Client of Departed Lawyer

A

Remaining lawyers can oppose former client unless:
Same or substantially related matter and
At least one remaining lawyer has material confidential information

61
Q

Prospective clients

A

Person who consults with lawyer in good faith about possibility of relationship

After consultation, can’t represent client against prospective client in same or substantially related matter if information could significantly harm prospective client

CA: Any material information creates conflict

How to Waive:
Both new and prospective clients must consent in writing

62
Q

Imputation and Screening

A

Others at firm not disqualified if disqualified lawyer:

Demonstrate that the disqualified lawyer took care to avoid exposure to more confidential information that was necessary to determine whether to represent the prospective client,

Demonstrate that the disqualified lawyer is timely screened from the matter and will not share in the fee, and

Give written notice to the prospective client

63
Q

Revolving Door Conflicts

A

Gets rid of “same or substantially related matter” with respect to conflicts
What triggers most of these conflicts is “personal and substantial involvement” in the same matter

Government Work to Private Sector
Private Work to Government Work
Prior Involvement as Judge, Law Clerk, or Third Party Neutral
Government Employee or Third-Party Neutral Negotiating for Private Employment

64
Q

Revolving Door Conflicts: Government Work to Private Sector

A

Can’t represent private client if personally and substantially involved in same matter while in government service, unless government agency consents in writing

Imputation and Screening
Imputation to others at the firm will be cured if:
(1) the disqualified lawyer is screened from the matter and does not share in the fee, and
(2) written notice is given to the government agency to ensure compliance.

65
Q

Revolving Door Conflicts: Government Work to Private Sector: Conflict Based on Information Gained During Government Service

A

After obtaining confidential governmental information about a person, can’t represent private client adverse to that person if information could be used against them
Not publicly available, under government authority
Imputation cured with screening

66
Q

Revolving Door Conflicts: Private Work to Government Work

A

After personally and substantially working on matter in private practice, can’t work on same matter for government without government employers consent

67
Q

Revolving Door Conflicts: Prior Involvement as Judge, Law Clerk, or Third Party Neutral

A

A lawyer must not represent a private client in a matter in which the lawyer has earlier participated personally and substantially while serving as a judge or other adjudicative officer or as a law clerk to such person, or as an arbitrator, mediator, or other third-party neutral,

Unless all parties to the proceedings give informed consent, confirmed in writing.

Imputation cured with screening and written notice to parties and tribunal
CA: Screening of prior mediator or settlement judge won’t work

68
Q

Revolving Door Conflicts: Government Employee or Third-Party Neutral Negotiating for Private Employment

A

Lawyer working on matter in these roles can’t negotiate for private employment with parties or attorneys

Exception: Law clerks

69
Q

Fee Amount

A

Must be reasonable

CA: Must not charge illegal or unconscionable fees

70
Q

Double Billing

A

Ordinarily, “double billing” is considered unreasonable and dishonest. (same work, two clients)

California allows double billing if:
(1) the fee charged to each is “not unconscionable”;
(2) the lawyer clearly disclosed the billing practice at the outset of the relationship; and
(3) the lawyer obtained both clients’ consent.

71
Q

Fees General Rule

A

Before or within reasonable time after starting representation, must communicate basis or rate

Exception: regularly represented client

CA: Requires written fee agreement if fee will exceed $1,000 unless:
Client is corporation
Client states in writing that they don’t want a written fee agreement
Client receiving same legal services as before
Emergency
Impractical

72
Q

Fees: Advance

A

Payment for legal services that haven’t been rendered yet; must be refunded if unearned

73
Q

Fees: True Retainer

A

Payment to ensure lawyer is available; need not be refunded

74
Q

Fees: Nonrefundable Fee

A

CA: Can’t call fee “nonrefundable” unless true retainer and client agrees in writing

75
Q

Fees: Accepting Property for Services

A

Allowed but watch for business transaction rules

76
Q

Contingent Fees

A

Fee that is dependent on outcome of matter
California law specifically limits the amount of contingent fee agreements in medical malpractice cases. The exact limits are beyond the scope of the bar exam.

77
Q

Contingent Fees: Writing and Disclosure Requirements

A

All contingent fee agreements must be in writing and signed by the client, and
Must disclose:
—How fee will be calculated
—CA: That lawyer’s amount is negotiable and not set by law
—Expenses that will be deducted
—Whether expenses will be deducted before or after fee
—Expenses client will pay regardless of outcome
—CA: How client will be charged for work not covered by contingency
—Can still recover fees for work after client wins even if discharged before trial

Prohibited when:
Criminal cases
Domestic relationship cases (but not collection cases)

78
Q

Separation of Funds

A

Client money goes into trust account
Commingling prohibited, but lawyer can pay bank service charges
Interest goes to client, or to state Bar from pooled client trust account

79
Q

Safekeeping and Delivery

A

Label non-monetary property and put in safe place
Promptly notify client or third person upon receipt of property, and promptly deliver property they are entitled to

80
Q

Disputed Property

A

Must be kept separate until dispute is resolved
Ie. 30k win, 10k to you but client says 5k
Can transfer 20k to client, 5k to self, keep 5k separate until dispute resolved

81
Q

Splitting Fees

A

Splitting legal fees with other lawyers in firm is allowed
Splitting fees with outside lawyers:
Allowed if:
Total fee is reasonable and not increased due to split
Either (1) split in proportion to each lawyer’s services or (2) each lawyer assumes joint responsibility

CA: Does not apply

Client agrees in writing that discloses each lawyer’s share

82
Q

Splitting fees with non-lawyers:

A

Prohibited

Except:
Paying a death benefit to a dead lawyer’s estate or other designated persons

Purchasing a law practice of a dead, disabled, or disappeared lawyer and paying the purchase price to the estate or nonlawyer representatives

Including nonlawyer employees in a compensation or retirement plan, even if the plan is funded by legal fees

Sharing court-awarded legal fees with a nonprofit organization that employed or recommended the lawyer in the matter

83
Q

Candor to the Tribunal: Stating law and facts

A

No false statements of fact or law
Correct prior false statements
In ex parte proceeding, disclose all material facts
Overrides general rule of not needing to disclose harmful facts about the case
Disclose controlling legal authority if directly adverse and opponent hasn’t done so

84
Q

Candor to the Tribunal: False evidence

A

Must refuse to offer evidence known to be false
May refuse to offer evidence reasonably believed (but not known) to be false
Reasonable Remedial Measures

85
Q

Candor to the Tribunal: Reasonable Remedial Measures

A

If evidence found to be false later, must:
—Urge client to withdraw or correct
—Seek to withdraw or strike evidence
—If all else fails, tell judge
CA: can’t disclose confidential information

86
Q

Candor to the Tribunal: False Evidence—Perjury by Criminal Defendant Client

A

Fifth Amendment constitutional right to testify and a Sixth Amendment right to the effective assistance of counsel

87
Q

ABA approach to Perjury by Criminal Defendant Client

A

if the client is a criminal defendant and the lawyer knows that the client intends to testify falsely (or has already done so), the lawyer must take measures similar to the “reasonable remedial measures” above:
(1) try to persuade the client not to testify falsely or to recant the false testimony;
(2) consider withdrawal; and
(3) if all else fails, reveal the situation to the judge.

88
Q

CA approach to Perjury by Criminal Defendant Client

A

(1) try to persuade the client not to testify falsely or to recant the false testimony;
(2) consider withdrawal; and
(3) The lawyer may offer the defendant’s testimony in a narrative form if the lawyer
(a) has made reasonable efforts to dissuade the client from testifying falsely and
(b) has unsuccessfully sought permission to withdraw.

Offering testimony in a narrative form means that the defense lawyer questions the defendant in the ordinary way up to the point of the false testimony. At that point, the defense lawyer asks a question that calls for a narrative answer (such as “What else happened?”). The defendant then tells their story. The defense lawyer is not permitted to rely on the false parts of the story when arguing the case to the trier of fact.

89
Q

Duration of Candor Obligations

A

These duties of candor (correcting false statements; rectifying false evidence) continue until the end of the proceedings: when a final judgment has been affirmed on appeal or the time for appeal has expired.

90
Q

Candor to the Tribunal: Frivolous Claims and Defenses

A

Prohibited, but defense lawyer in criminal case can make prosecutor prove every element

91
Q

Candor to the Tribunal: Expediting Litigation

A

Must make reasonable efforts to expedite litigation

CA: prohibits using means with no other purpose than to delay

92
Q

Candor to the Tribunal: Preserving Impartiality and Decorum of Tribunal

A

No improper means to sway members of tribunal
No gifts etc.

93
Q

Candor to the Tribunal: Preserving Impartiality and Decorum of Tribunal: Jury

A

Contact generally prohibited except through court order

94
Q

Candor to the Tribunal: Preserving Impartiality and Decorum of Tribunal: Trial Counsel as a Witness

A

Can’t be an advocate in a trial where lawyer is a necessary witness
Permitted when:
The trial lawyer’s testimony will relate solely to an uncontested issue;
The trial lawyer’s testimony will relate solely to the nature and value of legal services they have rendered in the case; or
Withdrawal would cause substantial hardship to the client
—CA: No substantial hardship ground, but conflict waivable with client’s informed written consent

Note, however, that the lawyer may generally proceed as trial counsel if other lawyers at their firm are likely to be witnesses (there is no imputed disqualification).

95
Q

Candor to the Tribunal: Preserving Impartiality and Decorum of Tribunal: Disruptive Conduct

A

A lawyer must not engage in conduct intended to disrupt a tribunal. This rule applies in depositions as well as in the courtroom.

CA: The California Rules do not include the above rule due to concerns that it is too broad and would not be interpreted in a consistent manner.

96
Q

Candor to the Tribunal: Preserving Impartiality and Decorum of Tribunal: “Chicanery” at Trial

A

During a trial, a lawyer must not:
Assert personal knowledge of facts
Refer to inadmissible material
State a personal opinion about the justness of a cause, the culpability of a civil litigant, or the guilt or innocence of an accused

CA: The California rule does not include the prohibition on referencing inadmissible material at trial. Additionally, the California rule only prohibits statements of personal opinion concerning the guilt or innocence of an accused.

97
Q

Duties to Opponents When Acting as Advocate: Access to Evidence

A

Can’t obstruct, alter, or conceal evidence
Difference between INFORMATION and physical evidence

CA: The California rule also specifically prohibits a lawyer from:
Suppressing evidence that the lawyer or the lawyer’s client has a legal obligation to reveal or produce

Advising a person to hide or to flee the jurisdiction for the purpose of making that person unavailable as a witness

98
Q

Duties to Opponents When Acting as Advocate: Paying Witnesses

A

Following are permitted but can’t be contingent on content or outcome:
Reasonable expenses
Loss of time
Expert fees

99
Q

Duties to Opponents When Acting as Advocate: Court Processes

A

DO NOT:
Abuse discovery procedures
Violate a court rule or order
Use threats to gain advantage in a civil case
Can’t threaten criminal administrative, or disciplinary charges to gain advantage

100
Q

Special Duties for Prosecutors

A

Prosecute only with probable cause
Respect right to counsel
Protect important pretrial rights
Timely disclose mitigating evidence
Disclose new, credible, and material evidence of innocence following conviction

101
Q

Trial Publicity/Right of Reply

A

Can’t make public statements that would materially prejudice case

Right of Reply
The lawyer is permitted to make a public statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client.

102
Q

Other Duties: Truthfulness in statements to others

A

No false statements of material fact
Must disclose facts to avoid assisting client in crime or fraud, subject to confidentiality

103
Q

Other Duties: Communicating With Represented Person

A

Can’t speak about matter unless either:
Person’s counsel consents
Authorized by law or court order

Note that this rule does not prohibit:
(1) conversations on topics unrelated to the matter; or
(2) communications between the parties (and the lawyer can advise their client on such communications).

CA: The California rule does not prohibit a lawyer from communicating with a public official or public entity.

104
Q

Other Duties: Communicating With Unrepresented Person

A

Can’t act disinterested
Must make role clear in the matter
If person and client have conflicting interests, can’t give person legal advice

105
Q

Other Duties: Acting as Third-Party Neutral

A

Must clarify non-attorney role

106
Q

Other Duties: Acting as an Advocate in Legislative and Administrative Proceedings

A

The lawyer must disclose that the appearance is in a representative capacity (but need not disclose the client’s identity).

Additionally, the lawyer must generally act as if they were in front of a court (for example, they must not offer false evidence, make false statements, attempt to improperly influence the decision-makers, obstruct access to evidence, and so forth).

107
Q

Other Duties: Receipt of Documents or Electronically Stored Information Sent by Mistake

A

Notify sender

CA:
Applies only to privileged writing or work product
Also requires lawyer to stop reading
If a document was sent intentionally, the receiving lawyer is free to mine the metadata.

108
Q

Other Duties: Heavy-Handed Tactics

A

In representing a client, a lawyer must not use means that have no substantial purpose other than to embarrass, delay, or burden a third person. Additionally, a lawyer must not use methods of obtaining evidence that violate a third person’s legal rights (for example, attorney-client privilege).

CA: Not in CA

109
Q

Advertising

A

No false or misleading statements in advertising
Including important omissions or misrepresentations
CA: A communication that states or implies that the lawyer is able to provide legal services in a language other than English, unless:
(1) the lawyer can actually provide legal services in that language, or
(2) the communication also states, in the language of the communication, the employment title of the person in the firm who speaks that language

110
Q

California Statutory Restrictions on Advertising

A

The California Business and Professions Code specifically prohibits advertisements that contain any of the following:

A guarantee or warranty of the outcome of a case (to avoid a violation, a lawyer should always include a disclaimer that the advertisement is not a guarantee or warranty)
Words or symbols that suggest quick cash or a quick settlement
An impersonation of a lawyer or client without disclosing that it is an impersonation
A dramatization of an accident or other event without disclosing that it is a dramatization
A contingent fee offer that does not warn that a client who loses a case must still pay litigation costs (if that is the arrangement) Although there is no specific ABA counterpart, these advertisements would likely also be considered misleading under the ABA Rules.
No need to memorize just understand

111
Q

Advertising: Communication of Specialties

A

Can’t claim to be certified specialist unless:
Certified by approved organization and
Name of certifying organization clearly identified

112
Q

Advertising: Must Identify Lawyer or Firm

A

Every communication about a lawyer or a lawyer’s services must identify the name and contact information of at least one lawyer or law firm responsible for its content.

113
Q

Solicitation: Live Person-to-Person Contact

A

Prohibited when significant motive is pecuniary gain
Pro bono can solicit all they want in person
Real time auditory or visual communications count

CA: The California rule is the same with respect to in-person and live telephone contact, but more broadly prohibits “real-time electronic contact.” Thus, text messages and chat room messages might be prohibited in California even if there is no real-time video or audio component (but there is no definitive guidance on this point).

114
Q

Solicitation: Live Person-to-Person Contact: Exceptions

A

Other lawyers
Relatives, friends, current and former clients
Routine business users of services

115
Q

Solicitation: Written, Recorded, or Electronic Communications

A

Generally permitted if truthful

CA: targeted communications must include the word “Advertisement,” or words of similar import, on the outside envelope (if any) and at the beginning and end of any recorded or electronic communication
Unless lawyer or clearly advertisement

116
Q

Solicitation: Written, Recorded, or Electronic Communications: Prohibited when:

A

A lawyer is prohibited from soliciting professional employment, regardless of what method is used or who the target is, if:
(1) the target has made known to the lawyer that they do not want to be solicited by the lawyer; or
(2) the solicitation involves coercion, duress, or harassment.

117
Q

Solicitation: Use of Agents to Solicit

A

Same rules as personal lawyer as if were the lawyer

118
Q

Solicitation: Prepaid or Group Legal Service Plans

A

A lawyer is permitted to participate in a prepaid or group legal service plan that uses personal contacts to enroll memberships for the plan, as long as the plan only contacts persons who are not known to need legal services in a particular matter covered by the plan (otherwise, this would be prohibited solicitation).

119
Q

Solicitation: Paying for Recommendations

A

Generally prohibited

Except:
Tokens of appreciation
Reciprocal referral arrangements, if non-exclusive and client is informed
Paying costs of advertising, legal service plan, etc

120
Q

Unauthorized Practice of Law

A

Can’t engage or assist in unauthorized practice of law
Can delegate with supervision (paralegals)

CA:
Employment of Disbarred, Suspended, Resigned, or Voluntarily Inactive Lawyer
In addition to the prohibition on assisting with unauthorized practice (above), an active California lawyer must comply with various requirements upon engaging the services of a disbarred, suspended, resigned, or voluntarily inactive lawyer (“ineligible person”).

Get list

121
Q

Multi-Jurisdictional Practice

A

Can practice only where licensed with limited exceptions:
The lawyer associates with an active local lawyer.
The lawyer obtains “pro hac vice” admission for a particular litigation matter.
The temporary practice reasonably relates to the lawyer’s home state practice and pro hac vice admission is not required for such practice.

122
Q

Relationships with Nonlawyers

A

The following are prohibited:
Forming partnership with nonlawyer that involves law practice
Letting nonlawyer lead or control law firm
Letting nonlawyer affect personal judgment

123
Q

Providing Law-Related Services

A

May be subject to ethics rules when providing these services in conjunction with legal services
Must be transparent with no A-C privilege

CA: California does not have a rule for law-related services.

124
Q

Arrangements Restricting Lawyer’s Right to Practice

A

Noncompete agreements and restrictive settlement agreements generally prohibited

125
Q

Responsibilities of Subordinate Lawyer

A

Not responsible for following supervisor’s reasonable resolution of arguable ethics question
Responsible for clear violation

126
Q

Lawyer’s Responsibility for Another’s Misconduct

A

Responsible for another’s violation if they ordered it, ratified it, or failed to mitigate it
Duty to train so comport with professional obligations

127
Q

Reporting Misconduct

A

Must generally report another lawyer’s or judges known and substantial violation (exceptions for confidential information and lawyer’s assistance programs)
CA: No duty to report others but must self-report certain matters
Can’t try to prevent person from making report

Bar Prep (18 decks)

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