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Bar Study > Professional Responsibility > Flashcards

Professional Responsibility Flashcards

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1
Q

Duties to clients

A

“Clients Love Fierce Counsel”

Confidentiality
Loyalty
Financial Responsibilities
Competence

& other reasonable things

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2
Q

Duties to non-clients

A

“Courts Feel Differently”

Candor/Truthfulness
Fairness
Dignity/Decorum

& other reasonable things

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3
Q

Mnemonic for duties of lawyers and to whom

A

“Clients Love Fierce Counsel; Courts Feel Differently”

Confidentiality
Loyalty
Financial Responsibilities
Competence

Candor/Truthfulness
Fairness
Dignity/Decorum

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4
Q

Other than clients, to whom do lawyers owe a duty?

A

Court, adversaries, third-parties, public

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5
Q

General rule re: duty of confidentiality

A

Do not reveal anything related to the representation without client consent.

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6
Q

Duty of confidentiality re: prospective clients and former clients

A

Duty of confidentiality attaches before the lawyer-client relationship, or even if NONE is formed.

After attaches, duty of confidentiality is ongoing through client’s lifetime.

Attorney-client privilege CA versus ABA:
CA–privilege ends with probate
ABA–extends after death of client indefinitely

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7
Q

Attorney client privilege versus duty of confidentiality

A

Duty of confidentiality = broader, relates to any disclosure

Attorney client privilege = rule of evidence about compelled testimony

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8
Q

Exceptions to duty of confidentiality

A

Consent

Lawyer defending himself. Can be malpractice, disciplinary action, a civil case to recover unpaid attorneys’ fees.

If compelled by court, law, or other ethical duty.

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9
Q

Duty of confidentiality and coming forward with info re: death or substantial bodily harm

A

ABA: the lawyer MAY breach the duty of confidentiality IF relates to death or substantial bodily harm, but don’t have to,

CA: (1) only for CRIMINAL acts that will result in death/serious bodily harm, (2) good faith effort to persuade client NOT to act, (3) TELL the client you are going to tell.

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10
Q

Duty of confidentiality re: financial crimes and harm

A

ABA: the lawyer MAY breach duty of confidentiality IF (1) the client is using the lawyer for the financial crime, AND (2) the disclosure will help prevent substantial financial harm.

CA: NO FINANCIAL CRIME EXCEPTIONS to duty of confidentiality

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11
Q

The relationships that might interfere with duty of loyality

A

(1) conflicts between or among clients
(2) conflicts between lawyer and client
(3) conflicts with third-party interference

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12
Q

When a representation will conflict with duty of loyalty

A

When the new representation will be (1) directly adverse to another client or (2) there is a SIGNIFICANT RISK that representation will be MATERIALLY LIMITED by

  • conflict between or among clients
  • conflict between lawyer and the new client
  • conflicts with third parties
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13
Q

Imputed disqualification

A

General rule: Any group of lawyers who work closely together share each other’s conflicts.

Exceptions:

(1) if the conflict is from previous government or previous firm work, okay if ETHICAL WALL.
(2) uniquely personal conflicts not imputed

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14
Q

A conflict may be tolerated if

A

A case-by-case factual analysis establishes

(1) you have REASONABLE BELIEF effective representation possible
(2) INFORM each affected client
(3) the client CONSENTS CONFIRMED IN WRITING

CA: requires the whole thing to be in writing, the list of conflicts and the client consent

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15
Q

Duty of loyalty re: possible conflict with between new client and current client in another matter

A

Okay if informed reasonable consent by all clients.

CA insurance rule: an insurance provider whose interest is ONLY related to indemnity will not provide basis for a conflict.

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16
Q

If new client’s work would be related to and impacted by confidential info known from previous client’s work

A

Can violate both duty of confidentiality and loyalty

It’s only okay if FORMER client consents.

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17
Q

General rule re: going from government to private practice

A

If the MATTER at the firm is the SAME MATTER as worked on in government and worked PERSONALLY AND SUBSTANTIALLY on the matter while in government

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18
Q

Imputed conflicts and government to private firm transitions

A

If you worked personally and substantially on a matter in the government and the firm is working on the same matter, the imputed conflict is resolved if:

(1) you’re screened off
(2) don’t share in the fee from that directly (but general profits share as a partner is okay)
(3) the former government employer is INFORMED (but consent not necessary)

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19
Q

Conflicts re: clerking then practicing

A

Can work on same matter if all parties consent

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20
Q

ABA versus CA and limiting malpractice liability

A

ABA: allowed only if the client is independently represented when they agree to that limitation

CA: you cannot limit malpractice liability at all

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21
Q

Payment in form of stock to the law firm

A

Okay if fair and reasonable, but cannot be so large as to hamper firm’s ability to give good advice

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22
Q

Board service as a lawyer

A

Generally frowned upon to do so on a corporate board because of duties of confidentiality and loyalty

Okay on a legal non-profit board

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23
Q

Selling rights to client’s story

A

ABA: not allowed during representation, but okay after

CA: generally discouraged but okay if judge allows

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24
Q

Loaning money to client

A

ABA: not allowed except for litigation related expenses

CA: it’s fine as long as written agreement, but cannot do it to attain prospective client’s business.

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25
Q

Lawyer as witness

A

ABA: only okay if (1) the testimony is about the legal services rendered, (2) the testimony is uncontested, (3) if lawyer brings distinctive value and failure to testify would impose substantial hardship on client.

CA: lawyer testimony okay if client consents

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26
Q

The lawyer on the other side is an immediate family member

A

Okay if all clients consent

CA also extends to “intimates” and co-habitants.

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27
Q

Sex with client

A

ABA: only okay if the sexual relationship was before the representation. Cannot develop during the representation.

CA: rule doesn’t apply with married or domestic partners

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28
Q

Federal securities laws and reporting violations

A

If lawyer observes violations, must report to highest levels of company.

If risk of fraud, substantial financial injury to investors or the organization, can report to SEC without client consent.

*preempts any CA regs/laws to the contrary

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29
Q

Non-contingent cases: fee agreement requirements

A

ABA: Agreement must include

(1) how fee is calculated
(2) what services are covered
(3) lawyer and client duties

CA adds on: (4) be in writing, UNLESS $1000 or less, corporate client, routine services for regular client, or emergency situation.

30
Q

Contingent cases: fee arrangement agreement requirements

A

(1) Written and signed by client
(2) percentage lawyer takes and whether before or after costs deducted
(3) what costs will be deducted

CA adds on: statement that lawyer fees are negotiable and how work not under the contingency arrangement (if any) will be paid.

31
Q

Limits on contingency fees

A

Not in criminal or domestic relations cases

ABA: fees must be reasonable taking everything into account (lawyer skill/value and complexity of case)

CA: fees must not be unconscionably high.

32
Q

If a contingent case and client fires the lawyer, how can lawyer recover?

A

In quantum meruit for work completed

33
Q

Double billing for a single period of time to two different clients IF the work is actually for both clients

A

Example: a status conference where you represent both clients in a mass tort case

ABA: usually unreasonable and dishonest

CA: okay if fee is not unconscionable, the clients consented in writing at the outset of the representation

34
Q

Lawyer referral fees

A

Reciprocal referrals okay only if (1) not exclusive and (2) the client knows of the arrangement

35
Q

What to do with client’s money

A

Put money in a client trust account (client gets interest), if not high enough to cover banking costs, put in special trust with California Bar.

Not commingled with any lawyer funds.

36
Q

Must keep client financial records related to the representation for at least

A

5 years

37
Q

Duty of competence

A

To use legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation

*CA includes a mental, emotional, and physical ability to carry out the representation

38
Q

Lawyer incompetence may expose the lawyer to

A

(1) Bar discipline, (2) disqualification in a matter, (3) civil malpractice liability

39
Q

Duty of diligence

A

Under the umbrella of “common sense duties”

To diligently pursue the case to completion

40
Q

Duty to communicate

A

Under the umbrella of “common sense duties”

Lawyer must keep client informed and communicate settlement offers

41
Q

Certain decisions rest ultimately exclusively with client

A

To accept/reject settlement, to testify in a criminal case

42
Q

Duty to withdraw from a case versus permissive withdrawal

A

ABA: MUST withdraw when fired or would break law or ethical rule. CA: MUST also withdraw if client is just trying to harass someone else.

ABA: MAY withdraw if you convince court there’s GOOD CAUSE, e.g., client is committing crimes, lawyer financial difficulty

43
Q

Process for withdrawal

A

(1) timely notify court

(2) return client property and papers, and any unspent fees.

44
Q

Lawyer advertising re: false or misleading

A

Cannot be false or misleading. Misleading means what a reasonable person would think when they saw the ad.

*CA presumes improper an ad that contains guarantees, warranties, or predictions of a result

45
Q

CA presumes improper an ad that

A

CA presumes improper an ad that contains guarantees, warranties, or predictions of a result

46
Q

Soliciting business

A

Lawyer can’t seek business for pecuniary gain by initiating a live or phone contact with a specific person with whom you have NO prior relationship with whatsoever.

47
Q

Client perjury

A

In CIVIL case, must not KNOWINGLY call any witness you know who intends to commit perjury

In CRIMINAL where DEFENDANT testifies: 
(1) tell D to tell truth
(2) try to withdraw
(3) tell judge
in CA: (4) allow D to testify in narrative form

If you only find out after, tell him to recant, but that’s it.

48
Q

Withdrawing re: client criminal acts

A

MUST withdraw if client wants YOU to commit acts

MAY withdraw if client himself wants to commit acts

49
Q

Documents sent inadvertently

A

If you receive an inadvertent disclosure, notify opposing counsel.

CA: stop reading as soon as you realize what it is

50
Q

Reporting a violation of another lawyer

A

ABA: you MUST report if you see another lawyer violate

CA: no requirement to report externally, but you can be disciplined for knowing about a colleague’s violation and doing nothing to PREVENT it (i.e., no duty to report but a duty to prevent).

51
Q

Senior versus subordinate violations: if a senior lawyer tells you to do something

A

If clearly a violation, you are liable

If debatable violation, only the superior is liable

52
Q

Duty to report a serious violation of another lawyer

A

ABA: yes
CA: no rule

53
Q

When withdrawal from a matter is mandatory

A

ABA:

(1) representation will violate RPC
(2) physical/mental impairment to representation
(3) lawyer discharged

CA:
also (4) if the lawyer knows client is prosecuting without probable cause and to harass.

54
Q

If a person is unrepresented and has interests directly adverse to lawyer’s client, and that person contacts the lawyer, what should the lawyer do?

A

Tell the person to get a lawyer and say nothing else

55
Q

If there’s a dispute between the lawyer and client over the fee, what should happen to the fee?

A

The lawyer must distribute any undisputed portion and keep the disputed portion in the client’s trust account.

56
Q

Re: the duty of competence, what levels of incompetence are prohibited by ABA and CA?

A

ABA: negligent, reckless, and intentional
CA: reckless and intentional

ABA: requires competence, which requires skill, thoroughness, and reasonable prep. This likely allows for discipline for obvious arguments negligently overlooked.

CA: requires not intentionally, recklessly, or repeatedly failing to perform competently. Single incidence of negligence likely not grounds for discipline.

57
Q

ABA fee splitting versus CA fee splitting

A

ABA: fee splitting okay if: (1) total fee reasonable, (2) client knows and agrees in writing, (3) either split is proportional to work by each lawyer or they both assume responsibility.
[A split with a lawyer who does NO work and assumes NO responsibility violates rule (3) and thus not okay.]

CA: fee splitting okay if (1) total fee is reasonable, (2) all details in writing, (3) client agrees in writing.

58
Q

Non-contingent fee writing requirements

A

ABA: recommends (not requires) be in writing.

CA: if over $1000, must be in writing, except if:

(1) corporation client
(2) client agrees need not be written
(3) routine work for routine client
(4) emergency
(5) a catchall for impractical situations

59
Q

If a lawyer has some personal or professional relationship with a party/lawyer/witness in the case, then what do?

A

If there’s SIGNIFICANT RISK of material limitation: client informed and written consent.

If there’s NOT significant risk of material limitation: just written disclosure to the client.

60
Q

Will a lawyer always be subject to discipline for committing a crime?

A

No, not all crimes subject to lawyer to discipline (e.g., traffic violations).

The crime must involve honesty/trustworthiness.

61
Q

To settle a malpractice claim with a former client, the lawyer must

A

Advise the former client in writing that they get the advice of another lawyer in the settlement.

62
Q

When a lawyer can be a witness

A

ABA: client can never consent, so lawyer must withdraw from case to be a witness, except where:

(1) testimony is on uncontested issue
(2) testimony is about the legal services
(3) withdrawal would cause hardship to the client and lawyer has distinctive value

CA: lawyer can testify without withdrawing if client consents

63
Q

When a lawyer can take a domestic relations case on contingency

A

A lawyer CANNOT take a domestic relations case on contingency.

But CAN take a post-judgment collections case re: domestic relations on contingency

64
Q

Explain duty of confidentiality

A

Relates to not disclosing ANYTHING about the representation in ANY manner, unless client consents.

65
Q

If there’s a person who’s represented by counsel + related to matter in which you (the lawyer) represent a party + you (the lawyer) know that person is represented + that person is not a party then

A

You cannot talk to him unless: (1) the other lawyer says okay or (2) law or court order requires.

66
Q

Lawyer talking to an organization’s employees (when the lawyer not representing the organization)

A

ABA: The lawyer must get permission from the org’s counsel to talk to (1) people who talk to the org counsel about the matter, (2) people who have authority to bind the org with respect to the matter, (3) whose conduct might be imputed to the org.

CA: similar but doesn’t have categories.

BOTH: you can talk to former employees.

67
Q

A lawyer can proceed with a representation despite a conflict if:

A

FOUR conditions met:

(1) Lawyer REASONABLY BELIEVES he can competently represent each affected client
(2) Representation is NOT PROHIBITED BY LAW
(3) Not both sides same matter before a tribunal
(4) Each client gives informed consent in writing (CA: “informed written consent”).

68
Q

Statements outside the courtroom

A

ABA and CA:

A lawyer cannot make extrajudicial statements that a REASONABLE PERSON would expect to be disseminated if they will have SUBSTANTIAL LIKELIHOOD of MATERIALLY PREJUDICING the proceeding.

69
Q

Statements about a judge/prosecutor/public officer/or candidate for such office

A

ABA rule: A lawyer cannot make a statement that the lawyer KNOWS is false about the QUALIFICATION of a judge, public legal official, or candidate.

CA Rule: this applies ONLY to judges and candidates for judgeships.

70
Q

A concurrent conflict of interest exists when

A

(a) the representation of one client will be directly adverse to another client; or
(b) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client, a third person, or by a personal interest of the lawyer.

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