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PR > PR FEDERAL AND CA > Flashcards

PR FEDERAL AND CA Flashcards

1
Q

Duties to your Client

A

Confidentiality
Loyalty
Financial responsibility
Competence

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2
Q

Duties to entities other than your client

A

Candor / Truthfulness
Fairness
Dignity / Decorum

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3
Q

Duty of Truthful Advertising

A

Advertising:

  • a general attempt to obtain business
  • constitutionally protected commercial speech - so long as truthful and not misleading or deceptive

CA Law Prohibits (Business & Professions Code)

  • a guarantee or warranty of outcome
  • words or symbols that suggest quick cash or a quick settlement
  • an impersonation of a lawyer or client without disclosure
  • a dramatization without disclosure; and
  • a contingent fee offer that odes not warn that a client who loses a case must still pay litigation costs if that is the arrangement

*only state and discuss the part of the rule that is applicable under the facts

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4
Q

Avoidance of Solicitation

A

Solicitation:

  • directed to a specific person the lawyer knows or reasonably should know needs legal services
  • Live person-to-person contact =
  • live telephone and other real-time visual or auditory person-to-person communications where the person is subject to a direct personal encounter without time for reflection

Except:

  • not seeking fee-paying work
  • people other than relatives, current, former clients

A lawyer may not use a “capper” to initiate such personal contact

CA RPC solicitation:

  • Written solicitations must include the word “advertisement” on the outside of the envelope and recorded solicitations must include a statement at the beginning and ending of the recording that it is an advertisement
  • ABA dropped this rule
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5
Q

Avoidance of Solicitation - Targeted Direct Mail SOlicitations

A

ABA: OK if directed truthful, non-deceptive communication with prospective clients known to need specific legal services, absent knowledge prospective client does not want to receive communications

CA only: must be labeled as “advertising material”

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6
Q

Duty to Make Reasonable Fee Arrangements

A

Financial assistance / buying clients (advances, loans, and other financial arrangements)

Reasonable fees

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7
Q

Buying Clients Prohibited

A

ABA Model rules:

  • no financial assistance except
  • advance court costs
  • pay indigent client costs
  • applies only to litigation

CA rules:

  • prohibits promise to pay debts
  • applies in all situations
  • permits loans AFTER representation begins WITH written agreement BUT implicates financial conflict rules
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8
Q

Reasonable Fees

A

ABA: reasonable;
California: “non unconscionable”:

  • difficulty
  • prevailing rates
  • impact on lawyer
  • informed consent - CA only

*rarely an issue - lack of experience
obvi $2K an hour is insane bruh

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9
Q

Contingent Fees

A

Agreement must be in writing signed by the client (both ABA and CA)

Rule on costs

ABA & CA prohibit contingency fees in criminal cases, and in domestic relations cases if fee is contingent on securing dissolution, spousal support, or a property settlement in lieu of spousal support

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10
Q

Fee Splitting with Lawyers

A

Model Rules:

  • client consent (confirmed in writing)
  • no increase in client cost
  • proportional to work done OR
  • both attorneys assume joint legal and ethical responsibility
  • referral fees not allowed (only a gratuity)

CA rules:

  • agreement with other lawyer in writing
  • client informed written consent
  • no increase in cost
  • BUT referral fees allowed:
  • cannot be consideration for agreement to refer;
  • still requires written agreement by client;
  • cannot increase fee
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11
Q

Referral Fees

A

ABA:

  • only permit “nominal gifts as expression of appreciation”
  • permit non-exclusive reciprocal referral agreements (client informed) with other lawyers and nonlawyer professionals

CA RPC:

  • referral fees as “gratuity” permitted
  • permit non-exclusive reciprocal referral agreements (client informed) with other lawyers and nonlawyer professionals
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12
Q

Duty of Loyalty - Conflicts

A

Def. conflict of interest: conflict of interest exists when the representation of a client will be directly adverse to the interests of another client; or there is a significant risk that the representation of a client will be materially limited by the lawyer’s personal interests or by the interests of another client

  • discuss potential conflicts
  • then determine if they ripen into actual conflicts
  • BE SPECIFIC. EXPLAIN CONFLICT AND HOW IT ARISES!
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13
Q

Waiving the Conflict - Accepting/Continuing Representation

A

ABA:

  • lawyer reasonably believes he can represent each
  • not prohibited by law
  • conflict is not direct in same case
  • obtains informed, written consent
  • but consent need only be CONFIRMED in writing by the client

CA:

  • lawyer reasonably believes he can represent each
  • not prohibited by law
  • conflict is not direct in same case
  • obtains informed, written consent IF conflict is between clients/former clients; or poses a significant risk the representation will be materially limited by interests of lawyer, other clients, or third persons

BUT, even if no significant risk the representation will be limited, written disclosure to client is required where the lawyer has, or knows that another lawyer in the lawyer’s firm has, a legal, business, financial, professional, or personal relationship with or responsibility to a party or witness in the same matter; or another party’s lawyer is a spouse, parent, child, or sibling of the lawyer, lives with the lawyer, is a client of the lawyer or another lawyer in the lawyer’s firm, or has an intimate personal relationship with the lawyer

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14
Q

Duty of Loyalty

A

Types of conflicts:

  • Concurrent conflicts - between or among attorney and client; current clients
  • former clients and clients of former firm
  • imputed conflicts
  • financial conflicts
  • aggregate settlements
  • malpractice liability
  • insurance defense
  • sexual relations with client
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15
Q

Def. of Conflicts

A

Conflict exists where interests of client directly and materially adverse to interests of another client OR:

  1. significant risk
  2. representation will be materially limited by lawyer’s own interest, interest of client, former client, or 3rd person

CA: requires prompt disclosure of facts giving rise to malpractice claim - type of conflict with lawyer’s interest

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16
Q

Former Clients

A

Cannot represent new client in substantially similar matter and materially adverse to former client

If former firm represented client while attorney was there and attorney learned client’s confidential information, attorney learned client’s confidential information, attorney may not represent client at new firm where it is same or substantially similar and new client is materially adverse to client of former firm

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17
Q

Conflicts Representing Organizations

A

Attorney represents organization, NOT its employees

Common issues:

  • conflict between organization and employees
  • organization paying for representation of employees
  • confidentiality - employee of organization often misunderstands (could be violation of duty of honesty)
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18
Q

Agreements Limiting Malpractice

A

ABA: lawyer should withdraw or advise client to seek independent counsel, fully disclose terms and effect in writing

Prospective limit on liability:
- prohibited in CA

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19
Q

Imputed Conflicts

A

Generally conflicts the entire firm except

  • former govt attorney (special rule)
  • conflict is a purely personal interest
  • conflict caused by close family relationship
  • conflict resulting from rule on sexual relationships
20
Q

Imputed Conflicts - Screening

A

Conflict will not be imputed if the conflict is with a former client of attorney while at a different firm AND:

  • disqualified lawyer is timely screened
  • disqualified lawyer receives no part of the fee
  • written notice to affected former client and opportunity to object/challenge in tribunal
  • certifications of compliance regularly provided to former client
21
Q

Conflict Rules involving Govt Attorneys

A

ABA and CA rules prohibit a lawyer from representing a client in connection with a matter in which the lawyer participated personally and substantially as a govt officer or employee, unless the appropriate govt agency gives informed written consent

22
Q

Financial Interests and Informed Consent

A

Requirements for financial transactions:

  1. the transaction to be fair and reasonable to the client
  2. fully disclosed and transmitted in writing to the client
  3. client must be informed in writing to seek the advice of independent legal counsel and must be given reasonable opportunity to do so; and
  4. client understands lawyer’s role in the transaction
23
Q

Purchasing Property at Foreclosure

A

California forbids a lawyer from:

  1. purchasing foreclosure property where the lawyer or affiliate represents a party, and
  2. from representing a seller where the purchaser is a spouse, relative or employee of the lawyer
24
Q

Solicitation of Gifts

A

Model rule:
- must not “solicit” gift

CA rule:

  • must not “solicit” gifts
  • may only prepare instrument with gift if related to client or client is advised by independent lawyer who provides certificate of review
  • rebuttable presumption of undue influence if attorney prepares the instrument (statutory undue influence) - often tested in wills & trusts
25
Q

Media Rights

A

ABA:
- express prohibition until after conclusion of representation

CA:

  • no rule on point
  • trial judge must ensure def. understands the conflict
26
Q

Sexual Relations with the CLient

A

ABA:
- prohibited unless preexisting consensual relationship

CA:
- same - explicitly excludes if client is spouse or domestic partner

CA requires: state bar to try to obtain client’s statement before charging violation of this rule if report comes from third party

27
Q

Client Property and Records

A

Must hold property of clients or third persons separate from the lawyer’s own property

Must keep records of client funds and other property

Must keep the client informed and deliver funds or other property to the client or a third person entitled to receive the funds or property; and

If the lawyer is in possession of funds or other property to which the lawyer or a third person has a claim, and the client disputes the claim, the lawyer must keep the disputed portion of the funds or property separate

In CA: a lawyer must preserve records of client funds or other property for five years after the money or property is distributed

Must return client documents

May not pay or promise to pay client funds to any person other than the client without the client’s consent

Trust account rule

  • where undisputed, funds due attorney must be paid out to avoid commingling, and funds due client MUST be disbursed
  • where disputed fees, MUST remain in trust account until resolved
28
Q

Duty of Competence

A

The duty to have the knowledge, skill, preparation and thoroughness necessary to undertake effective representation of the client:

  1. learn the necessary knowledge within a reasonable time that does not cause the client undue delay, or
  2. associates an experienced attorney, or
  3. faces an emergency situation, or
  4. dont take on the case

CA: the lawyer must possess the mental, emotional, and physical ability for performance of the lawyer’s role

29
Q

Duties of Care and Communication

A

Duty of Care
- the duty of care is the duty to pursue a matter diligently and with the skill and attention that one would give to one’s own personal matters

Duty of communication:
- must keep a client reasonably informed about the status
*communicate ALL plea offers: all reasonable settlement offers
- promptly comply with reasonable requests for information
CA rule: disclose lack of malpractice insurance

30
Q

Scope of Representation

A

May be defined and limited by agreement

Must not advise or assist a client to commit a crime or fraud

May discuss the legal consequences of a proposed course of action

31
Q

Duty of Confidentiality

A

Attorney-client privilege - evidence issue
- issues concerning the privilege include its scope, duration, and exceptions

Attorney Work-product privilege
- lawyer’s thoughts and impressions

Confidentiality
- duty to maintain client secrets - any information, however learned

32
Q

Breaching Confidentiality - Permitted Exceptions to Duty

A

ABA (they’re permissive):

  • prevent death, GBI
  • prevent serious financial loss
  • rectify serious financial loss
  • final court order
  • fee collection litigation
  • ethics defense
  • malpractice defense
  • remedy false testimony by client

CA:
- prevention of death or GBI

CA case law:

  • final court order
  • fee collection litigation
  • ethics defense
  • malpractice defense
  • criminal defense
33
Q

“Reporting Out”

A

ABA:
- allows organization’s lawyer to report out (reveal confidential information) when lawyer believes violation of legal obligation by organization reasonably certain to result in substantial injury to organization

CA:
- does NOT allow reporting out. lawyer’s only recourse after going as high as possible within the organization is to withdraw

34
Q

Sarbanes-Oxley

A

WTf is this???

Duty of securities lawyer to report to:

  • chief legal officer
  • board of directors
  • audit committee
  • committee of outside directors
  • law authorizes report to SEC

Potential conflict with CA RPC if securities lawyer notifies SEC

35
Q

Unauthorized Practice of Law

A

A lawyer may not permit or assist someone in the unauthorized practice of law

Practice of law includes those things that require the professional judgment of a lawyer

CA def: legal advice and counsel, and the preparation of legal instruments and contracts by which legal rights are secured

A lawyer may not split fees with a non-lawyer, pay “referral” fees to a non-lawyer, or engage in the practice of law or sharing of legal income with a non-lawyer - including, a disbarred former lawyer

36
Q

Unauthorized Practice of Law—

Employment of Disbarred Attorneys

A 
Lawyer may not employ a disbarred
attorney to:
- render legal advice to a client,
- negotiate for a client,
- appear in a court or other hearing,
- represent a client in a discovery matter,
handle client funds,
- or engage in the practice of law

CA DOES allow lawyer to employ a
disbarred attorney to:
- to do legal work that is preparatory (such as
legal research, prepare pleadings and briefs
and draft discovery),
- communicate regarding scheduling, billing,
and receipt of messages, and
- attend depositions to provide clerical
assistance to the lawyer actively conducting
the deposition

REQUIREMENT OF NOTICE:
- If an attorney does employ a disbarred
attorney, the attorney must serve written
notice of such employment, prior to or at
the time of employing the disbarred
attorney, on the State Bar and on every
client on whose matters the disbarred
attorney will be working (including proof
of service of the written notice).

37
Q

Duty of Fair Rpresentation

A
  • Improper contact of juror or judge
  • Improper trial publicity—”substantially
    prejudice an adjudicative proceeding”
  • Obstructing access to evidence
  • Falsify evidence
  • Spoliate (destroy) evidence
  • Make frivolous discovery
    requests/objections
  • Fail to notify opposing counsel inadvertently disclosed documents
  • Assert personal knowledge of facts
  • Contact party represented by counsel
  • False/misleading statements to court, opposing counsel, opposing party
  • Fail to disclose fact necessary to prevent criminal act/fraud
  • Allude to matters unsupported by admissible evidence
  • Lawyer shall not counsel client to engage, or assist a client inconduct that the lawyer knows is criminal, fraudulent, or a violation of law or rule
  • CA—may not threaten criminal or administrative proceeding to gain advantage in civil matter
  • CA–cause for discipline for an attorney to report, or threaten to report, the suspected immigration status of a witness or party to the proceeding
38
Q

Criminal Defendants who Testify Falsely

A

Lawyer must allow the defendant to
testify even if the lawyer reasonably
believes that the testimony will be false

ABA: lawyer must disclose information
to the tribunal to set the matter straight,
even if the information is privileged or
confidential

CA: Lawyer must first try to persuade the defendant
not to testify falsely.
-If that fails, the lawyer may ask the tribunal for
permission to withdraw.
- If that fails, the lawyer may call the defendant as a
witness and question him up to the point at which the
lawyer knows the defendant will testify falsely.
- From that point on, the lawyer may allow the
defendant to testify in a narrative fashion.
- Lawyer may not use any false testimony in his
closing argument.
- Lawyer may not disclose privileged or confidential
information to the tribunal to set the matter straight

39
Q

Contact with Represented Party

A 
Lawyer must not communicate about the
matter with a person he knows to be
represented by counsel in the matter
unless:
- person's counsel has granted permission
OR
- he is otherwise authorized by law or court
order to make the direct communication
40
Q

Contact with Represented

Organization as Party

A

Lawyer must get the consent of the
organization’s counsel before
communicating with a constituent of the
organization:

(i) who supervises or regularly consults with
the organization’s lawyer about the matter,
(ii) who has authority to obligate the
organization with respect to the matter, or
(iii) whose conduct in the matter may be
imputed to the organization for purposes of
civil or criminal liability

41
Q

Duties of a Public Prosecutor–

ABA

A
  • Refrain from prosecuting a charge P knows is not supported
    by probable cause;
  • Reasonable efforts to ensure that Defendant has been advised of the right to counsel;
  • Not seek to obtain from an unrepresented Defendant a waiver of trial rights;
  • Timely disclosure of exculpatory evidence and mitigating circumstances;
  • Promptly disclose new, credible, and material evidence that creates a reasonable likelihood that a convicted defendant did not commit the subject offense;
  • Exercise reasonable care to prevent subordinates (including investigators and police) from making statements that the prosecutor is prohibited from making
  • Prevent investigators and others from pretrial
    publicity that the prosecutor would be barred
    from making;
  • Refrain from making public statements that
    have a substantial likelihood of heightening
    public condemnation of the accused;
  • Refrain from subpoenaing an attorney in a
    criminal proceeding; and
  • Seek to remedy a conviction when the
    prosecutor knows of clear and convincing
    evidence that a defendant did not commit the
    offense
42
Q

Additional Duty of Public

Prosecutor–CA

A 
Prosecutor shall “make timely disclosure
to the defense of all evidence or
information known to the prosecutor that
the prosecutor knows or reasonably
should know tends to negate the guilt of
the accused, mitigate the offense, or
mitigate the sentence.”

*Includes impeachment evidence.

43
Q

Duty to the Public

A

Commission of fraud, crime, serious immoral
act is a breach of duty to the public

Under the RPC a lawyer must report rule
violations by other attorneys

CA has no ethics rule that requires an attorney
to report another attorney. Instead, CA
lawyers are required to report themselves to
the State Bar for:
- Convictions
- Felony charges
- Civil liability—fraud/breach of fiduciary duty
- Sanctions > $1000
- > 3 malpractice suits in 12 months

44
Q

Duty to Withdraw Issues

A

Is Court Permission Required

What steps must the lawyer take to protect a client’s interests.

Continued duty of confidentiality

45
Q

Mandatory Withdrawal

A
  1. The representation will result in
    violation of the RPC or other law,
  2. The lawyer’s physical or mental
    condition materially impairs the lawyer’s
    ability to represent the client, or
  3. The lawyer is discharged.
46
Q

Permissive Withdrawal

A

Withdrawal can be accomplished without material adverse effect on the interests of client—NOT in CA;

The client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent;

The client has used the lawyer’s services to perpetrate a crime or fraud;

The client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement—NOT in CA;

The client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;

The representation will result in an unreasonable financial burden on the lawyer—NOT in CA; or

Other good cause for withdrawal exists.

  • *CA:
  • Insists on presenting claim or defense not warranted;
  • Insists Attorney engage in conduct contrary to Attorney advice
  • Continuation of representation will result in violation of law or RPC
  • Makes it unreasonably difficult
47
Q

Withdrawal

A 
ABA: if attorney’s work has been used
by the client to commit a fraud, the
attorney must withdraw from the
representation, and may be required to
give notice of the withdrawal to others
(noisy withdrawal)

CA: such action by the client is grounds
for permissive withdrawal, but NO noisy
withdrawal

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