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ca bar > Professional Responsibility > Flashcards

Professional Responsibility Flashcards

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1
Q

Grounds for mandatory withdrawal of L/C relationship

A

Ethical rule violation
Lawyer’s health
Fired by client
[CA] No probable cause
[CA] Purpose of suit is harassment

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2
Q

Grounds for permissive withdrawal of L/C relationship

A

Crime/fraud
Client doesn’t pay
Client bad conduct
[ABA] unreasonable financial burden
[ABA] Client insists on repugnant course of action that lawyer fundamentally disagrees with
[CA] Inability to work with co-counsel
[CA] unwarranted claim

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3
Q

Termination responsibilities

A

Must give client: 1) reasonable notice, 2) time to find other counsel, 3) mitigate harm, and 4) return all client papers/property necessary for representation.

[ABA] Must return all that client is entitled to
[CA] Must return everything

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4
Q

Fee amount

A

[ABA] No unreasonable fees
[CA] No unconscionable fees

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5
Q

[CA] Writing requirement for fees

A

Fee agreement must be in writing if exceeds $5k, writing must include: 1 nature of services, 2) responsibilities of parties, 3) basis for calculating fee

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6
Q

[CA] Exceptions to writing requirement for fees

A

(CHEW)
Corporate client
History of past services
Emergency services
Waived by client

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7
Q

What are contingent fees

A

Contingent fees are fees paid upon the lawyer’s achievement of a particular outcome

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8
Q

Contingent fee requirements

A

In writing and signed by client
[CA] also signed by attorney

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9
Q

Exception to contingent fee agreements

A

No contingent fees for criminal matters and domestic matters based on divorce or alimony

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10
Q

Can lawyers in the same firm split fees

A

YES

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11
Q

Fee splitting requirements for lawyers from different firms

A

Lawyers in different firms can split fees if 1) client consents in writing, and 2) total fee not increased due to splitting.

[ABA] fee split must be in proportion to services performed by each lawyer

[CA] fee split permitted even if one lawyer does all the work

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12
Q

Are referral fees permitted under the ABA

A

No, lawyers cannot give anything of value for recommendation under the ABA

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13
Q

Are referral fees permitted in CA

A

Yes, lawyers may give a gift after a recommendation is made

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14
Q

Exception to referral fees

A

Lawyer can pay fees for legal services plan or approved referral services

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15
Q

Duty to maintain client fund accounts

A

Lawyers have a duty to segregate client funds in a separate client trust account, not commingled with the lawyer’s own funds, and to distributed undisputed funds.

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16
Q

Duty to maintain records

A

Lawyers must maintain client recovers for 5 years after close of case

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17
Q

L/C privilege

A

Rule of evidence protecting lawyer from disclosing confidential communication made by client intended to be confidential and for the purposes of representation

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18
Q

Exceptions to L/C privilege

A

future crime/fraud or death/substantial bodily harm

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19
Q

Work product rule

A

Rule of civil procedure that protects against disclosure during discovery of any material containing mental impressions, conclusions, opinions, legal theories prepared in anticipation of litigation

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20
Q

Exceptions to work product rule

A

Discoverable if denial will unfairly prejudice party

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21
Q

Duty of confidentiality

A

Rule of ethics that generally prohibits lawyers from disclosing any info related to representation of a client, no matter its source, absent client’s informed consent. Includes the affirmative duty to prevent inadvertent or unauthorized disclosures. Applies to good faith prospective clients unless the lawyer communicated they can’t represent.

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22
Q

Exceptions to the duty of confidentiality

A

[ABA] prevent death/substantial bodily harm or substantial financial injury
[CA] prevent criminal act that may result in death/substantial bodily harm

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23
Q

L/C conflict

A

Cannot rep client if representation may be materially limited by lawyer’s own interests

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24
Q

Exception to L/C conflict

A

1) lawyer reasonably believes they can provide competent rep, 2) rep not barred by law, and 3) client gives informed consent confirmed in writing

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25
Q

Current client conflict

A

Cannot rep client if 1) client interest directly adverse to another client, or 2) significant risk that rep is materially limited by lawyer’s responsibilities to another client

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26
Q

Exception to current client conflict

A

1) lawyer reasonably believes they can provide competent rep, 2) rep not barred by law, 3) no claim by one client against another in same proceeding, and 4) client gives informed consent confirmed in writing/written informed consent

27
Q

Current and former client conflict

A

Cannot rep client in same or substantially related matter as former client if interests are adverse

28
Q

Exception to current & former client conflict

A

former client gives informed consent confirmed in writing/written informed consent

29
Q

Prospective clients conflict of interest issue

A

Cannot rep client w/ interests materially adverse to that of a prospective client in same or substantially related matter if [ABA] lawyer received info that could be significantly harmful, or
[CA] lawyer received material info

30
Q

Exception to prospective clients conflict of interest issue

A

Both clients give informed consent confirmed in writing/written informed consent

31
Q

Conflict of interest issue when lawyer newly joins a private firm

A

Lawyer joining new firm can’t rep client in same or substantially similar matter if 1) client’s interests are materially adverse to client of former firm, and 2) lawyer acquired material confidential info about former client

32
Q

Exception to conflict of interests with private firms

A

Former client gives informed consent confirmed in writing/written informed consent

33
Q

Imputed disqualification

A

If one lawyer in a firm is conflicted, the whole firm is conflicted unless the conflict is personal or informed consent was given.

34
Q

Circumventing imputed disqualification

A

a new firm can screen off a new lawyer from participation to avoid conflict by 1) no fee for the disqualified lawyer, 2) former client receives written notice of screening, and 3) firm provides certification of compliance if requested.

35
Q

Prohibition on former gov’t lawyers

A

Former gov’t lawyer cannot rep client in a matter that the lawyer substantially participated in

36
Q

Exception to prohibition on former gov’t lawyers

A

gov’t agency gives informed consent confirmed in writing/written informed consent

37
Q

Organization client

A

Lawyer representing org owes duties of loyalty & confidentiality to the org, not to its individual constituents

38
Q

Organizational misconduct step 1

A

If a lawyer knows or should know that an agent’s actions may cause injury to the org, the lawyer must 1) urge the agent to reconsider, and if that fails then 2) report to highest authority.

39
Q

Organizational misconduct step 2

A

If the org fails to act after lawyer reported, then
[ABA] lawyer may disclose misconduct outside of the org to the extent reasonably necessary to prevent injury to the org or [CA] lawyer cannot disclose per duty of confidentiality but may withdraw

40
Q

3rd party payments

A

Cannot accept payment for 3rd party for representation

41
Q

Exception to 3rd party payments

A

1) client gives informed consent, 2) no interference w/ lawyer’s judgment, and 3) L/C confidentiality maintained

42
Q

Duty of competence

A

Lawyers have a duty to provide competent rep, meaning possessing knowledge, skill, preparation reasonably necessary for representation, and [CA] requisite mental/emotional/physical ability.

43
Q

Duty of diligence

A

Lawyer have a duty to provide diligent rep, meaning acting w/ commitment and dedication to client’s interest and without neglect or undue delay.

44
Q

Duty of communication

A

Lawyer must 1) regularly communicate w/ client, 2) keep client informed, 3) communicate scope of rep, 4) advise client about limitations, and 5) explain matters for client’s informed decision.

45
Q

Duty to avoid frivolous claims

A

Cannot file a claim/defense not supported by law or good faith argument for change.

46
Q

Duty of candor

A

a lawyer cannot knowingly make false statements of fact/law and have a duty to correct such statements; must take remedial action

47
Q

Duty to disclose controlling adverse legal authority

A

Only if not already disclosed by opposing counsel

48
Q

Duty of fairness to opposing party

A

1) Can’t suppress evidence legally obligated to produce, 2) can’t pay for induced testimony unless fee for expert W, 3) can’t violate discovery rules, 4) can’t allude to inadmissible facts in court, 5) can’t communicate ex parte w/ judge unless authorized

49
Q

Duty to jurors

A

Cannot communicate w/ any jurors or member of juror pool

50
Q

Communications to those represented by counsel

A

Cannot communicate about subject of rep with a person the lawyer knows is represented by another lawyer, absent consent

51
Q

Communications to those unrepresented

A

When communicating with unrepresented persons, a lawyer cannot give legal advice and must make clear who the lawyer represents.

52
Q

Trial publicity duty

A

Cannot make extrajudicial statement that the lawyer knows will be disseminated in media and has a substantial likelihood of materially prejudicing the proceeding

53
Q

Exception to trial publicity duty

A

May make statement to mitigate recent prejudicial publicity

54
Q

Duties of prosecutors

A

1) Must have PC, 2) ensure D is advised of right to counsel and has opportunity to obtain counsel, 3) timely disclose exculpatory evidence, 4) post-conviction promptly disclose new evidence creating likelihood of wrongful conviction, 5) cannot seek waiver of pretrial rights from unrepresented D

55
Q

Advertising limitations

A

Cannot make false or materially misleading statements about own person or services.

56
Q

Advertising requirements & permitted info

A

[ABA] name/contact info of at least one lawyer or firm
[CA] name and address of lawyer responsible for the ad.

Permitted to advertise fields of practice, fees for routine services, bar admission info, specializations/certificates

57
Q

Rule against solicitation

A

Cannot solicit prospective clients in person, by live phone, or [CA] real-time electronic contact if significant motive if financial gain

58
Q

Exceptions to solicitation limitations

A

Contacted person is a lawyer, family member, close personal friend, prior professional relationship

59
Q

Duty to report misconduct

A

[ABA] must report misconduct by another attorney if a lawyer has actual knowledge, [CA] no duty to report other lawyers but there is a duty to self report

60
Q

Unauthorized practice of law

A

A lawyer is subject to discipline for practicing in not-admitted jxs or for assisting non-lawyers in the unlicensed practice of law

61
Q

Duty to supervise

A

Must make reasonable efforts that others comply w/ the ethical rules and must take remedial action when possible

62
Q

Duty of subordinate lawyers

A

Subordinate lawyers must follow ethics rules even if acting under the discretion of supervising lawyers. No violation if the subordinate lawyer is acting in accordance w/ the supervising lawyer’s reasonable resolution of a question of professional duty. However, the subordinate lawyer does have the responsibility to undertake their own analysis of law applicable to the supervising lawyer’s conduct.

63
Q

Duty to avoid dishonesty/fraud

A

Duty exists regardless of whether the conduct relates to the practice of law

64
Q

Threat to gain advantage

A

In CA only, a lawyer must not threaten to bring criminal, administrative, or disciplinary charges in an effort to obtain an advantage in a civil dispute.

ca bar (14 decks)

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