PR Flashcards
CA Distinctions to know from MRs
A-C privilege and exceptions in CA
DOC and exceptions to DOC in CA
False testimony by C or W
Fees–distinctions b/t CA and MR
Duty of Subordinate As
MR/CA–Subordinate A must conform to the ethics rules even if acting under the direction of supervising A. But the subordinate A does NOT violate ethics rules if he acts in accordance w/ supervising A’s reasonable resolution of arguable Q of prof duty.
L-C Relationship
Formation and Duration
No duty to accept rep, BUT duty to decline if it would violate ethical rule.
CA–A must NOT rep C if he knows no prob cause to bring action and action brought to harass/injure D.
A must NOT present claim/defense NOT warranted under existing law unless it can be supported by a GF arg seeking change in law.
A-C rel beings when C reasonably believes rel exists–NO formal writing req.
Duration:
–MR–the attorney-client relationship lasts forever
–CA– the relationship terminates once the client has died and his estate has been settled.
Corp Cs–lasts until dissolution of company
L-C Relationship
Scope or Rel–Settlement/Strategy/Assisting C in Crim/Fraudulent Conduct
Settlement–only C has auth to decide to accept settlement. A MUST comm all bona fide offers of settlement to C–agreeing to settlement w/o C consent subj to discipline.
Strategy–A has auth to make decisions about strategy for achieving C’s objectives. A must reasonably consult w/ C on case.
CA–A must notify C about any written settlement offer in civil matter.
Crim/Fraudulent conduct–A MUST NOT counsel/assist C in such conduct, otherwise subj to discipline and crim or civil liability.
*However A may discuss w/ C the legal consequences of any proposed course of conduct that may be crim/fraudulent–but if C’s course of action has already begun and is continuing, then A req to avoid assisting C and MUST withdraw.
L-C Relationship
Termination of Rep–Mandatory Withdrawal
MR–A MUST withdraw if failure to do so would result in violating ethics rules (e.g. counseling/assisting in crime/fraud).
CA–A MUST withdraw if he knows/should know C is asserting claim/defense w/o prob cause and for purpose of harassing/injuring (e.g. destroying D’s business); also MUST withdraw if A’s physical/mental condition makes it unreasonably diff for him to rep C.
CA–A MUST withdraw if he knows/reasonably should know that rep would result in violation of CARPC–e.g. counseling in crime/fraud.
L-C Relationship
Termination of Rel–Permissive Withdrawal
MR–A may seek withdrawal from rep at any time w/o materially harming C. A may withdraw even if it will harm C if C engages in crime/fraud using A’s services or insists on action A finds repugnant or has made rep unreasonably difficult; may also withdraw if C fails to pay A’s fee.
CA–A NOT permitted to withdraw merely b/c it may be done w/o material harm to C. Rather A may seek to withdraw when :
(1) C used A services for crime/fraud in the past or seeks to pursue crime/fraud;
(2) Claim not warranted and no GF arg for changing law; and
(3) C makes it unreasonably difficult for A to carry out rep.
L-C Relationship
Terminating Rel–Procedure for withdrawal and duties upon term
Procedure–A must give C reasonable notice before withdrawing/litigation pending need ct approval/ct may still order A to continue rep C.
Duties upon Term
CA–A must return all papers/prop to C
MR–Can retain papers/prop in order to obtain payment in some circumstances; must return any advance fees not earned.
Fees–EMPHASIZE
MR–A must charge fees reasonable under circumstances.
CA–Fees must NOT be unconscionable; factors include (1) amt of fees in proportion to value of services perf; (2) time req to work on case; (3) difficulty of case; (4) A’s experience in the area of law.
*Informed consent of C can also be considered in determining whether unconscionable fee.
Fees > $1K must be in writing and signed by both Ps stating services; exception if C is corp.
Other CA exceptions:
1) if C waived in writing her right to written fee K;
2) A provided similar services to this C in the past; or
3) A provided services in an emergency
Contingent Fees
MR–not allowed in (1) crim cases or (2) domestic cases
CA–not allowed in crim cases BUT allowed in SOME domestic cases–i.e. post-judgment balances due under child or spousal support .
All CF agreements must be in writing–signed by C, terms of calc fees and expenses C liable for, otherwise agreement voidable and A just entitled to reasonable fee.
CA–must also be signed by A.
Fee Splitting
MR/CA–NO fee splitting w/ Non-As NOT associated w/ firm (i.e. can use fees to comp non-A staff in your firm).
As in same firm=As can split fees
As in diff firm:
MR–Allowed if fee proportional to services provides by each A; C agrees in writing and total fee is reasonable.
CA–Allowed if As enter into written agreement; C has provided written consent after full disclosure; and total fee not unconscionable.
MR/CA–total fees must not be higher b/c mult As working on case.
Referral Fees
MR–Cannot pay someone for rec A’s services unless (1) part of legal services plan or (2) approved A-referral service.
CA–A may give gift/gratuity for referral so long as gift/gratuity not offered in anticipation/as consideration for referral.
Partnerships
MR/CA–no partnerships w/ non-As if any activities include practice of law.
Payment from 3P
An A may not accept payment for rep from someone other than the C, unless:
(1) C gives informed consent;
(2) There is no interference w/ A’s prof judgement; and
(3) A-C confidentiality is preserved.
Employing Disbarred A
CA–A cannot employ disbarred A to perform legal practice. Can employ to perform clerical duties. A must also serve written notice of disbarred A’s employment to CA Bar and each C on whose specific matter ineligible person will work. Disbarred A can only perform legal work preparatory in nature–i.e. as long as A reviews then ok, but if A just blindly follows disbarred A then breach of duty to avoid assisting in unauth practice of law.
Unauthorized Practice of Law
MR/CA–An A must NOT knowingly assist a P who is not admitted to the Bar in the unauth practice of law.
E.g.–Disbarred A can sit during depo but cannot actively assist other than w/ clerical duties; disbarred A passing notes akin to asking Qs and tantamount to unauth practice of law.
Duty of Confidentiality and Exceptions (also applicable to prospective Cs)
A prohibited from disclosing any info relating to rep of C unless disclosure auth by informed consent of C or impliedly authorized in order to carry out rep.
A must take reasonable precautions to safeguard confidential info
Exceptions:
MR–allowed to disclose if reasonably certain sub financial harm will occur to another.
MR–allowed to disclose to prevent “reasonably certain” death/sub bodily harm (applies even if 3P commits act)
CA–allowed to disclose to prevent “crim act” that A reasonably believes will result in death/sub bodily harm (applies even if 3P commits act); BUT in CA need to make GF effort to persuade C NOT to commit crim act before revealing.
A-C Privilege and Exceptions
Confidential comms b/t C & A privileged:
(1) C must intend for comm to be confidential and
(2) Comm must be for purpose of seeking legal advice/rep (privilege also applies to reps of A when rep working at direction of A to obtain info from C).
MR–privilege indefinite and survives C (unless C waives).
CA–privilege terms when C’s estate is settled and personal rep discharged (unless C waives).
Exceptions:
D seeks A’s advice in furtherance of crime/fraud (regardless of whether A knows about illegal activity)–CA applies to act committed by anyone, NOT just C.
Death/sub bodily harm–CA no privilege if A reasonably believes disclosure nec to prevent crim act that A reasonably believes likely to result in death/sub bodily harm.
A dispute b/t co-Cs who are now adverse to each other allows for disclosure of conf. comms relevant to dispute.
Work Product
Material created by A in anticipation of litigation–NOT discoverable unless ct determines denial of disco will:
(1) unfairly prejudice P seeking disco OR
(2) Result in injustice (e.g. transcript of interview w/ W who has died would be discoverable).
Writing reflecting A’s impressions/conclusions/opinions/legal research NEVER discoverable under any circumstances–e.g. the W transcript must omit A’s mental impressions.
Specific Conflicts w/ Current Cs
Business Transactions w/ Cs:
1) transaction must be fair and reasonable to C;
2) must disclose all terms to C in writing;
3) A must advise C in writing to get indp counsel;
4) C must give informed consent in a signed writing.
Acquiring an Interest in the Subj Matter of Litigation–NOT allowed EXCEPT:
1) Contingent fees;
2) Lien on C’s recovery (if auth by law);
Gifts from Cs–A cannot:
1) solicit sub gift from C unless relative;
2) Prepare instrument giving A or relative sub gift unless donee A related to C.
BUT in CA–A may prepare instrument giving sub gift to A even if not related to C, as long as C has been advised by an indp counsel.
Literary or Media Rights–A cannot have interest in book/movie related to rep but can have interest in media rights when case over.
Financial Assistance to C in Litigation–NOT allowed EXCEPT:
1) may advance ct costs/expenses;
2) may pay ct costs and expenses for indigent C;
3) when rep indigent C pro bono may give C modest gifts for basic living expenses.
Aggregate Settlement Agreements–get informed consent from each C in a signed writing.
3P Paying for Rep–C must give informed consent and 3P cannot interfere.
A serving as W in C’s case
CA–A may serve as a W in C’s case when testifying about the nature and value of legal services provided.
DOL
COI b/t A and C
A owes C a DOL–this duty includes duty to refrain from COI.
MR/CA–A must NOT rep C if rep may be materially limited by the A’s own interests, unless:
(1) A reasonably (subj and obj) believes he can provide competent and diligent rep to affected C.
(2) Rep not prohibited by law
(3) One C not suing another C
(4) Affected C gives written informed consent
Sexual Relations w/ Cs
Under both the MR and CA rules–lawyers are prohibited in engaging in sexual relationships with their clients, unless the sexual relationship existed prior to the attorney client relationship.
California also has a specific exclusion that applies to lawyers who are married.
A-C Conflict cont.
CA–Rel w/ opposing counsel
CA–Even when there is no signif risk that A’s rep of C will be materially limited, A is not permitted to rep C in a matter in which A knows/reasonably should know the other P’s A is a spouse, parent, child, or sibling of A, lives w/ A, is a C of A, or has an intimate personal rel w/ A unless A provides written disclosure of rel to C.
COI b/t concurrent Cs–EMPHASIZE
A must NOT rep C if:
(1) doing so would be directly adverse to the interests of another current C or;
(2) if there is signif risk that the rep of a C will be materially limited by A’s responsibilities to other C UNLESS:
—A reasonably believes (subj and obj) that she will be able to provide competent and dilligent rep to each affected C;
–Rep not prohibited by law;
–Rep does not involve rep of Ps on both sides of the same litigation; AND
–MR–informed C consent confirmed in writing; CA–informed written consent (i.e. full written disclosure of conflict and potential consequences).
