PR

Question 1

Sex w/Clients (PR)

Answer 1

NO consensual sex w/C unless preexisting relationship

CA: allows consensual sex if preexisting OR new relations w/C

Question 2

Duty of Diligence (PR)

Answer 2

Duty to diligently and promptly pursue case to completion

Question 3

Prof Resp starting sentence

Answer 3

“A lawyer has a duty of xxx, to client/corp/xx”

Question 4

Financial Duties: Client Trust Accounts (RP)

Answer 4

• Duty to safeguard C’s property by labeling and storing it in a safe place
• Money MUST be held in C’s interest-bearing Trust acct (Interest goes to C - NEVER commingle funds)
• Pooled Trust acct: if funds are small to cover bank charges, funds can be pooled in one trust acct (Interest goes to CalBar)
• Disputes: Lawyer MUST keep PORTION of disputed funds in Trust acct until dispute between C and Lawyer is resolved
• Keep records for 5yrs

Question 5

Duty to Produce Evidence (PR)

Answer 5

1) MUST not suppress any evidence C is legally obligated to produce, regardless of Duty of Loyalty
- MUST not obstruct access to or tamper w/fruits or instrumentality of a crime
- MUST NOT disclose privileged communication from C about the evidence (Draw line between physical evidence and confidential info)

2) MUST not interfere w/evidence by touching or moving it
- May retain evidence for reasonable time to prepare client’s case (e.g. conduct tests)

3) Ex Parte communications: MUST volunteer relevant info communicated in ex-parte proceedings to opposing party

4) Prosecutors: MUST timely disclose evidence favorable to the defense REGARDLESS of damissibility or impact on outcome (exceeds Constitutional Brady obligations)
- MUST have PC to charge

Question 6

DoLoyalty: Conflict of Interest waiver (PR)

Answer 6

Duty to not have potential or actual conflicts of interests

1) Lawyer believes he can represent everyone effectively despite the conflict
AND
2) Inform each affected C (UNLESS disclosure of confidential info is required for C to understand the conflict then NOT allowed)
AND
3) All C consents, confirmed in writing
ABA: lawyer’s memorializing C’s consent is sufficient
CA: C’s consent itself MUST be in writing but only written disclosure if conflict with former client or Lawyer’s personal interest
CA: must disclose if potential and then again if actual conflict

Question 7

Duty of Confidentiality (PR)

Answer 7

Duty NOT to reveal anything related to the representation (learned before, during or after rep) of a client or use that information against the client w/o consent

• Broader scope than atty-client relationship
• Scope: applies REGARDLESS whether C requested confidentiality
• Can attach before atty-client relationship (e.g. consultation)
• Disclaimer: MUST be SPECIFIC and clear
• Timing: continues AFTER death
• CA: protects confidentiality more than ABA

Question 8

Duty to Preserve Dignity of the Court (PR)

Answer 8

1) Duty to preserve decorum and impartiality of the tribunal:
- MUST not communicate w/prospective or empaneled jurors before and during trial (After may communicate w/juror’s consent)
- No chicanery (trickery) (e.g referring to inadmissible material unsupported by evidence)
- No abusive conduct: Lawyer MUST stand firm against abuse by Judge BUT should avoid reciprocation

2) Duty to expedite case:
- MUST not delay cases to harass an adversary, or for own personal gain/convenience
- MUST follow procedural rules UNLESS making a good faith challenge

Question 9

Scope of Representation (PR)

Answer 9

Client makes decisions about substantive rights

Lawyer makes decision on legal strategy

• C may limit scope of representation w/C’s consent

Question 10

Duty of Fairness (PR)

Answer 10

1) MUST behave honestly on ALL dealings in and out of court
2) MUST promote public confidence in the integrity and efficiency of the legal system and profession
3) California ONLY: No threats to bring disciplinary admin or criminal proceedings as leverage in civil dispute
4) Inadvertent disclosure: Stop reading, notify opposing, do NOT disseminate or use documents
5) Represented parties: MUST not communicate w/person Layers knows is represented on the subject of inquiry w/o consent of counsel unless giving second legal opinion

6) Press: MUST avoid out of court statements the Lawyer reasonably should know to have a substantial likelihood of materially prejudicing the case
- Exception: matter in public record, routine booking info, warnings to the public, info of ongoing investigation, and TO MITIGATE undue prejudice to C from publicity NOT started by representing Lawyer

Question 11

DoLoyalty: Conflicts between/among Clients (PR)

Answer 11

• Direct Conflicts arises when representing C’s w/directly adverse interests
• Concurrent Conflict arise when there is a significant risk that the representation of a client will be materially limited by the lawyer’s personal interests or by the interest of another client, former client, or third person.

1) Opposing sides + same proceeding in Ct:
- Lawyer cannot represent opposing parties in the same matter

2) Opposing a current client + another matter:
- Lawyer MUST obtain consent from ALL clients
- CA: no conflict representing Insurance Co (indemnity provider interest only)

3) Clients w/inconsistent positions: positions dont create conflicts

4) Multiple clients + same manner
- Must disclose and obtain consent
- Remedy: withdraw from both clients and advise them to get separate counsel

5) New clients + manner related to former client:
- Confidentiality continues until after death
- MUST not represent NEW client w/interest materially adverse to former client w/o consent from former client

6) Gov lawyer to private practice:
- Gov lawyer who works personally and substantially in a matter cannot work on same matter w/o Gov’s consent
- DQ imputed on Firm unless 1) lawyer is screened-off (ethics wall), 2) no share in fees in the matter, 3) Gov is notified (no consent required)
- CA: does NOT impute purely personal conflicts
- TP neutrals: Judges, judicial clerks, MUST obtain consent from ALL parties
- CA: prosecutor is DQ w/o exceptions from working on defense of same case

Question 12

DoLoyalty: TP act causes conflict (RP)

Answer 12

• Lawyer’s SOLE duty is to the client (not TP)
• Payment for services from TP allowed ONLY w/informed client consent AND no interference w/Layer’s independence of professional judgment AND info remains confidential
• Corp client: if insider violates law, lawyer MUST report matter to CEO or Chief Legal Counsel. If no action, report higher up the latter. If no action and Lawyer reasonably believes it necessary to prevent fraud, perjury or substantial injury to Corp or rectify violation involving lawyer’s services THEN Lawyer MAY disclose confidential info

Question 13

Duty of Candor to the Court (PR)

Answer 13

1) Court: MUST not make false statement of material facts or offer evidence known to be false to a tribunal OR fail to correct a false statement of material fact or law the Lawyer previously presented

2) Client perjury: MUST not knowingly facility client perjury
- Civil: MUST refuse to call Witness, or C if Lawyer knows W or C intent to lie on the stand
- Criminal: (1) Counsel C to testify truthfully or not take the stand, if fails, (2) Try to withdraw, if fails, (3) Tell the Judge (Duty of Confidentiality and 6thAmd right to counsel does NOT shield perjury)
CA: Allow C to testify in narrative fashion but DO NOT further the deception

3) Witness prep: MUST not assist Witness to testify fasely or to become unavailable

Question 14

Duty to Withdraw (PR)

Answer 14

1) Mandatory: Lawyer MUST withdraw from pending case ONLY w/permission from Court:
- Fired
- Continuing would violate law or ethical rule
- Lawyer’s physical or mental condition materially impairs Lawyer’s ability to represent C
CA: MUST withdraw if C acts to harass or maliciously injure another

2) Permissive: Lawyer MAY withdraw for good cause ONLY w/permission from Court
- C persist in criminal, fraudulent, or repugnant actions
- C fails to fulfill obligation AFTER reasonable warning (e.g. fee agreement)
- Continued representation will unreasonably financially burden the Lawyer

3) Procedure:
- Timely notice to client
AND
- Prompt return of unearned and unspent fees
- Prompt return of property, and MATERIAL papers, including Lawyer’s work product
CA: cannot hold client’s materials hostage for payment

Question 15

Duties of Subordinate Lawyers

Answer 15

Order by supervising/controlling Lawyer to Subordinate Lawyers

1) Clear violation: subordinate Lawyer is subject to discipline
2) Debatable problem: Supervisor is solely responsible
3) Supervisor violates also if ratifies actions or knew of the conduct and failed to take action
4) Managing partners MUST make reasonable efforts to ensure non-lawyer assistant/employees comport w/professional obligations of a Lawyer

Question 16

Duty of Candor to the Public (PR)

Answer 16

1) Advertising: MUST not be false or misleading
- Labeling: MUST be labeled as advertising and if applicable “dramatization,” or “impersonation” etc
- MUST ID at least one Lawyer responsible
- CA: presumes improper if ad contains Guarantees, Warranties, or Predictions of result
- Specialty: MUST be certified specialist
- MUST not harass or solicit someone who opted out
- Mailings: MUST be labeled as “Advertising Material”
- MUST keep records of ad content for 2yrs

2) Solicitation: one-on-one contact w/layperson
- NO solicitation for pecuniary gain by initiating a live (chat-room) or telephone contact w/non-clients w/whom there is no prior professional or personal relationship
- CA: Chat-room allowed because C can walk away
- CA: presumes improper communication at scene of accident or en route to MD facility, and to potential clients that Lawyer should know are not in physical or mental state to exercise reasonable judgment

3) Agents CANT do anything a Lawyer cant do

Question 17

DoLoyalty: Conflicts between lawyer and client (PR)

Answer 17

1) Substantial Gifts: NO soliciting or drafting legal instruments for substantial gifts from C to lawyer or lawyer’s family
- Exception: C is lawyer’s family

2) Limiting liability: CANNOT limit malpractice liab unless C is independently represented
CA: COMPLETELY prohibited to lim liab

3) Publication Rights: NO K to sell rights to D’s story BEFORE the representation has ended
- CA: allowed ONLY if Judge approves it

4) Loans to clients: NO financial assistance to client, except: litigation expenses if indigent or contingent fee case
- CA: loans to C allowed ONLY if in writing
- CA: no loan if Lawyer is “buying” a potential client w/promise to pay C’s debts

5) Buss transactions or adverse interest:
- Lawyer may enter into buss w/client or obtain interest adverse to C if: First Discuss Over Coffee
Fair: terms are fair to C
Disclosure: Disclosed in writing
Outside rep: C is advised to consult w/IC (only advised)
Consent: C consents in writing

6) Trial lawyer as Witness:
- Lawyer cannot be a Witness unless: a) testimony is uncontested, b) testimony about legal services rendered, c) withdrawing is poses substantial risk to C (no other atty to represent C)
- CA: Lawyer may testify ONLY on Bench Trial

7) Close relationship w/adverse lawyer:
- Lawyer cannot represent party when opposing Lawyers are related
- ABA: familial relationship
- CA: familial + intimate relationship
- CA: MUST also disclose legal, business, or personal relationship w/any party or witness (NO consent required only disclosure)

Question 18

Duties owed by lawyer

Answer 18

Clients Love Fierce Counsel, Cts Feel Differently

• Duties owed to Clients:
  Confidentiality

Loyalty

Financial Responsibility

Competence

• Duties owed to Ct, adversaries, TP, and public
  Candor (truthfulness)

Fairness

Decorum

Question 19

Duty to present the Law (PR)

Answer 19

MUST be candid about the law and cite to adverse authority if controlling an on point

Question 20

Duty of Financial Resp to C: Fees and Fee Agreements (PR)

Answer 20

1) Non-contingent Agreements:
- New C: fee must be communicated to C before or w/in reasonable time after representation (NO writing required)
- MUST include how fee is calculated and services covered
CA: MUST be written if >$1K+, unless Corp client, same prior services w/same C, emergency situation, or impractical for other reasons

2) Contingent Agreement: MUST be in writing, signed by C, and % of fee
- Contingent NOT allowed: domestic relation matters (unless to recover postjudgement), crim cases
- Lawyer fired is entitled to reasonable value for service performed IF AND WHEN C wins the case

3) Fee: MUST be reasonable based on time, labor, skill, local customary fees, experience, and reputation
CA: MUST not be unconscionable

4) Referral Fees:
- Allowed: outside lawyer if division is proportionate to services performed by each OR Lawyer assumes joint responsibility for representation. MUST be in writing, informed to C in writing, and written consent
CA: inform C, and written consent, and NOT unconscionable, and not increase C’s original fee
- NOT allowed: sharing w/non-lawyers

Question 21

Accepting Clients (PR)

Answer 21

• Lawyer should accept fair share of pro bono work

- MUST reject case if taking it would violate law or ethical rule (e.g. Lawyer not in physical or mental capacity)

Question 22

Duty to Communicate (PR)

Answer 22

Duty to Keep Clients informed about the case, answer communications, and convey settlement offers

• If Settlement offer made to joint clients, must be presented to ALL Cs and agree on division of settlement

Question 23

Duty of Confidentiality exceptions (PR)

Answer 23

• Consent by client
• Defending a C’s claim against lawyer for:
  1) malpractice
  2) disciplinary action
  3) C refusal to pay fees (reveal to evaluate fees)
• Compelled by Ct order, law, or other ethical duty (e.g. conflicts check at new firm)
  1) Death or substantial bodily harm: lawyer MAY reveal what’s necessary to prevent the act if lawyer believe it will prevent reasonably CERTAIN death or substantial bodily harm, AFTER lawyer first made a good faith effort to persuade the C to NOT commit the act
  CA: must ALSO notify C of lawyer’s decision to reveal C’s confidences
  2) Crime or Fraud causing financial injury: lawyer MAY reveal confidential info if C is using lawyer’s services to further the crime and disclosure would prevent or mitigate substantial financial loss
  CA: NO crime/fraud exceptions (MUST keep confidentiality)
• CA: protects confidentiality more than ABA

Question 24

Duty to the Profession and Public (PR)

Answer 24

1) NO Unauthorized or unlicensed practice of law: anything beyond the capacities and knowledge of laypersons

2) Policing misconduct:
- MUST report to appropriate authority a Lawyer’s or Judge’s violations of ethics rules in ANY legal OR non-legal context if it raises a substantial question as to that person’s honesty, trustworthiness, or fitness as a lawyer
- CA: NO external reporting required, MUST internal report (e.g. counsel Lawyer or tell supervisor)

Question 25

Duty of Competence (PR)

Answer 25

Duty to render competent service to C, using legal knowledge, and skill in preparation reasonably necessary for the representation

• Unknown: If Lawyer doesn’t know the relevant law, Lawyer shouldn’t take the case unless Lawyer can learn it w/o undue expense or delay OR work w/another competent Lawyer
• CA: Lawyer is subject to discipline ONLY if Intentionally, Recklessly, or Repeatedly fails to perform legal services