Duties To Client - When playing 5-Card STUD with a client's money, I must be a responsible professional.
COMMUNICATE with client
do not reveal CONFIDENCES
avoid CONFLICTS of interest
render CANDID advice
SAFEGUARD client's money & property
TERMINATE atty/client relationship fairly and properly
UNREASONABLE fees should not be charged
act with reasonable DILIGENCE
Withdrawing from Attorney/Client relationship - WE attorneys suffer from MANICURE withdrawal.
attorney is a WITNESS in the case, resulting in unfair prejudice to client
ETHICAL violation will occur if client is represented
MALICIOUS harassment will be brought upon opposing party with no good faith that claim/defense is warranted under law
ATTORNEY is being employed to commit past crime/fraud
proper NOTICE of withdrawal must be given to client*
INCOMPETENCY of attorney to handle matter
CRIMINAL or fraudulent conduct required
UNREASONABLE financial burden on attorney
REFUND all papers/property of client, along with unearned fees, upon withdrawal*
EXPENSES or fees promised by client are not paid
*these are procedural requirements of withdrawal
STATE REGULATION SOURCES
The authority to regulate practice within state courts is vested in the highest court of the jurisdiction.
There are two general classes of state bar associations:
o Integrated bar associations (all attorneys must join); and
o Voluntary bar associations.
o California has an integrated bar association
FEDERAL REGULATION SOURCES
Federal Courts: Each court creates its own admissions requirements, but most courts require only that an attorney be a member of the state’s bar in which the court sits and makes a formal application for admission to the federal bar.
o Federal Administrative Agencies: Only requirement is that one must be a member of a state bar.
o Federal Government Attorneys: Subject to state ethics laws and rules governing attorney conduct in each state in which s/he practices.
AMERICAN BAR ASSOCIATION
A voluntary organization. From 1969 to 1983, ABA’s standards were contained in the Model Code of Professional Responsibility. In 1983, the APA approved the Model Rules of Professional Conduct (RPC), which have been adopted by a majority of states.
CALIFORNIA ETHICS RULES
Must adhere to California Rules of Professional Conduct (Cal. RPC), which are based partly on the two ABA models, prior California rules, and the State Bar Act, a part of the California Business and Professions Code.
EDUCATIONAL REQUIREMENTS: Most states require an undergraduate degree plus three years of law school. (CA: Yes).
BAR EXAMINATION: Most jurisdictions require applicants to pass an examination (must be prepared and administered by an authorized organization, such as a state bar). (CA: Yes).
CITIZENSHIP REQUIREMENTS: No requirement that an applicant be a citizen of the United States. (CA does not require).
RESIDENCY REQUIREMENTS: Not allowed - violate the Privileges and Immunities Clause of the United States Constitution.
CHARACTER REQUIREMENTS: (CA: Yes)
o “Good Moral Character” or “Moral Turpitude” Test: Each applicant has the burden of showing that s/he possesses “good moral character.” Conduct contrary to justice, honesty, modesty, or good morals, constitutes “moral turpitude” and thus violates the “good moral character” test.
REQUIREMENTS - A lawyer may not:
o Violate / attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or use the acts of another to commit a violation;
o Commit a criminal act that reflects adversely upon the lawyer’s honesty / fitness as a lawyer;
o State or imply an ability to improperly influence a government agency / official, or achieve results by illegal or unethical means;
o Engage in conduct involving dishonesty, fraud, or misrepresentation;
o Engage in conduct prejudicial to the administration of justice; or
o Knowingly assist a judge or judicial officer in conduct that violates applicable rules of judicial conduct or other laws.
o The disciplinary proceeding is initiated by a complaint to the state bar.
o A preliminary screening process conducted by a state bar appointed panel examines the complaint, which is then followed by a non-public hearing.
o Lawyer’s Rights: A lawyer subject to disciplinary procedures retains basic rights to counsel and cross-examination of witnesses and the right to invoke the 5th Amendment.
TYPES OF DISCIPLINARY SANCTION
Most common penalties are:
2. Suspension; and
3. Public or private censure by the court or bar association.
UNAUTHORIZED PRACTICE OF LAW
The Rules prohibit a lawyer from:
o Practicing law in a jurisdiction where doing so violates the regulation of the legal professional in that jurisdiction; and
o Assisting a person who is not a member of the bar in performance of an activity that constitutes the unauthorized practice of law.
o In CA: It is a misdemeanor for anyone to practice law in CA without being an active member of the State Bar of California.
TYPES OF LEGAL PRACTICE
LAW FIRMS: Usually consist of partners, associates, and attorneys of counsel. A lawyer in practice must ensure that the client’s interests are paramount to the firm’s interests and that the client’s problems are handled with competence and care.
WORKING WITH NON-LAWYERS: A lawyer may not be a partner with a non-lawyer if any of the partnership activities consists of the practice of law.
CORPORATIONS: Because of certain favorable tax treatment, lawyers may incorporate.
ORGANIZATIONS: Legal services organizations include legal aid offices, public defender services, military legal assistance offices, and lawyer referral services
RESPONSIBILITIES OF A PARTNER/SUPERVISING ATTORNEY
A law firm must ensure that member lawyers conform to the RPC. Supervisory lawyers have comparable responsibility.
A lawyer will be responsible for another lawyer’s violation of the RPC if:
o The lawyer orders or ratifies the conduct involved; or
o The lawyer is a partner or similar manager of the law firm in which the other lawyer practices, or
o The lawyer has direct supervisory authority over the other lawyer, knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
o CA: A California lawyer is prohibited from assisting in, soliciting, or inducing an ethics violation from another person. If one member of a firm commits a disciplinary violation, other members of the firm can be disciplined if they approved it or knew about it and did nothing to prevent it.
SUBORDINATE LAWYER RESPONSIBILITIES
A lawyer is bound by the RPC even if s/he acts at the direction of another person.
RIGHT TO PRACTICE LIMITATIONS
A lawyer is prohibited from creating:
o A partnership or employment agreement that restricts the rights of a lawyer to practice after the relationship ends; or
o An agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a controversy between private parties
SELLING A PRACTICE
The RPC permits a lawyer to sell a law practice or an area of practice if:
o The entire practice, or the entire area of practice, is sold to one or more lawyers or law firms;
o The seller ceases the private practice of law, or ceases to practice in the particular area of law, in the geographical territory in which s/he formerly practiced;
o Client fees do not increase because of the sale; and
o The seller notifies each client of the sale and of the client’s right to hire a different lawyer or to take possession of the client’s file.
o CA - Differs in four ways:
1. California notice-to-clients requirements are more complicated;
2. The CA rule does not require the seller to cease practicing in the geographical territory in which s/he formerly practiced (but a sale agreement may contain a valid covenant not to compete for a reasonable period of time in a reasonable geographic area);
3. The CA rule does not permit the sale of an “area of practice” – it permits only the sale of “all or substantially all” of a law practice; and
4. The “substantially all” provision allows the seller to retain a few clients who pose a conflict of interest for the purchaser or who have a long relationship with the seller.
ADVERTISING AND SOLICITATION RULES
ADVERTISING: “Advertising” is a communication with the public at large. A lawyer is subject to discipline for any type of communication about the lawyer or his or her services that is false or misleading. A communication is false or misleading if it:
o Contains a material misrepresentation of law or fact; and
o Omits information that is necessary to make the communication as a whole not materially misleading.
SOLICITATION: “Solicitation” is a lawyer’s individual contact with a layperson designed to entice the layperson into hiring the lawyer. A lawyer must not seek fee-paying work by initiating personal or live telephone contact, or real time electronic contact, with a prospective client who is not a lawyer and with whom the lawyer has no personal, family, or prior professional connection.
DUTY OF CONFIDENTIALITY
A lawyer cannot reveal anything related to the representation of a client without the client’s consent.
Scope: This duty applies regardless of whether the client requests that the information be confidential.
Timing and Disclaimers
o The duty can attach before a lawyer/client relationship is formed;
o If no employment results, the party seeking to disqualify bears the burden of proof that the confidences were imparted; and
o Once it attaches it continues indefinitely.
o CA ends when an estate is settled.
DUTY OF CONFIDENTIALITY EXCEPTIONS
1. Consent: If a client consents after consultation, a lawyer may reveal information that is otherwise privileged.
o Death or substantial bodily harm:
o CA: If the attorney has reasonable belief that a disclosure is necessary to prevent a crime likely to result in death or serious bodily injury. The attorney must first make a good faith effort to persuade the client not to commit the act; Then s/he must inform the client the intent to reveal; But the revelation must be reasonable.
o ABA: Does not require a crime, just an act.
3. Fraud or Financial Crimes:
o CA: No financial exceptions to confidentiality.
o ABA: Yes, if the client is using attorney services to commit the crime and the disclosure would prevent or mitigate substantial financial loss.
4. Defending Oneself in Malpractice suits, in establishing the lawyer’s claim or defense, or Disciplinary actions brought against the lawyer.
5. Compelled by law: If compelled by law, final court order, or other controlling ethical duties, a lawyer may reveal client information
DUTY OF CONFIDENTALITY: CA EXCEPTIONS
Although California has no ethics rule on confidentiality, all lawyers promise (in the Attorney’s Oath) to maintain the confidences and secrets of their clients. On the Oath’s face, this promise has no exceptions, but California case law has created exceptions for disclosure:
o If compelled by law or court order;
o To collect an attorney’s fee; or
o To defend against a claim of legal malpractice, ineffective assistance of counsel, legal malpractice, in effective assistance of counsel, or other wrongdoing by the attorney.
o Additionally, California legislation allows (but does not require) an attorney to reveal a client’s confidential information when necessary to prevent a criminal act that will cause death or substantial bodily injury to someone.
DUTY OF LOYALTY TO CURRENT CLIENT- GENERAL CONFLICT OF INTEREST RULES
Conflicts of Interest: A lawyer has a duty of loyalty to his or her client; this duty is breached if the lawyer’s interest, another client, or a third party materially limits or is adverse to loyal representation. Breach can be actual and potential.
A lawyer may not agree to represent a client unless:
o S/he reasonably believes s/he can represent everyone effectively, despite potential or actual conflict. (ABA - Objective standard: depends on the reasonableness.)
o S/he informs each client involved in the conflict (if the lawyer’s duty of confidentiality would prevent him or her from the disclosure then consent might not even be possible).
o The client must consent, confirming in writing.
When a lawyer and firm members share a conflict of interest.
o CA: Same rules but does not subject a lawyer to discipline for imputed conflicts.
o Exceptions: Conflicts do not extend when they arise from previous governmental service, when the lawyer’s work for the adverse party was at a previous firm, or where the conflict of the lawyer arose from a personal relationship that would not affect the ability of other firm members to represent the client.
o Remedies: Refuse to take case; Advise clients to get separate counsel; and withdraw
DUTY OF LOYALTY: LAWYER-CLIENT CONFLICTS- PART 1
Business transactions or adverse interests: A lawyer may enter into business with a client or obtain an interest adverse to him if:
o Fairness: The terms are fair.
o Disclosure: Full disclosure is in comprehensible writing.
o Opportunity: The client has the opportunity to consult an outside lawyer.
o Consent: The client must give written consent.
Transactions must be fair and reasonable under the circumstances known to the lawyer when the interest was required.
Board services: Lawyers may serve on the board of directors of a corporate client, but this is discouraged (may compromise duty of loyalty and duty of confidentiality).
Limiting liability: A lawyer cannot limit client’s right to report that lawyer and cannot limit malpractice liability.
o ABA: Allows this limitation only if the client is represented by outside counsel in making the agreement.
o CA: Discourages contracts for publication rights before the end of proceedings but will tolerate if the judge is satisfied that the client clearly understands and consents.
o ABA: Allowed only after the representation has ended
DUTY OF LOYALTY: LAWYER-CLIENT CONFLICTS- PART 2
Loans and Advances to clients: CA: Prohibits the promise of paying prospective clients’ debts but allows loans in all matters for any purpose after being hired, so long as there is a written “IOU”.
o ABA: No financial assistance allowed, unless for costs and litigation expenses when representing an indigent or for the advance payment of litigation fees for a contingency agreement.
Use of Information: Use or communication of information relating to the representation of a client to his or her disadvantage and without consent violates duty and loyalty.
Gifts, to the lawyer or the lawyer’s family: A lawyer may not solicit substantial gifts from a client; or draft an instrument for a client who is not a close relative if it provides a substantial gift to the lawyer or his or her relative
Close relationships with a lawyer for the opposing party: A lawyer cannot represent a party opposing a party represented by the lawyer’s close relative without informed client consent. Not imputed onto other members of the firm.
CA: Explicitly disallows anyone in a relationship to the attorney.
Sexual Relations between lawyer and client: A lawyer must not have a sexual relationship with a client. CA:
Prohibits a lawyer from: Demanding sexual relations from a client as a condition of professional representation; Entering into sexual relations with a client by coercion or undue influence; or representing a client incompetently because of a sexual relationship with the client.
Trial Counsel as a necessary witness: CA: Prohibits attorney from testifying in a jury trial unless the client consents in writing. ABA: More restrictive.
DUTY OF LOYALTY: MULTIPLE CLIENTS GENERAL CONFLICTS RULES
Generally a lawyer may represent clients with potential conflicts with proper consent, but it is rarely proper if his or her interests are in actual conflict.
Opposite sides on the same matter = imputed disqualification.
Opposing present client’s interests:
o CA: Prohibits a lawyer from taking a case adverse to a client s/he is currently representing, regardless of the relationship of the cases.
o ABA: Does not prohibit, but rarely finds it reasonable.
o Statutory exception: CA does not extend this prohibition to representing a policy holder and his insurance company as joint clients (but only when the insurance provider’s interests are as an indemnity provider’s interests).
Two Clients - Inconsistent positions: A lawyer can argue both for and against the constitutionality of a mandatory sentencing law in two different appeals so long as both clients give consent but, if either would be disadvantaged, the attorney must withdraw
DUTY OF LOYALTY: MULTIPLE CLIENTS CONFLICTS RULES- FORMER GOV’T LAWYERS
Former government lawyers now in private practice:
o CA: Bars prosecutors from later working for the defendants of those cases (case law allows screening of other government colleagues).
o ABA: Bars government lawyers who worked “personally and substantially” on a matter:
• If the matter is a specific dispute between specific people over specific issues from working on the same matter in a private practice later; and
• Lawyer will need written consent of government employer.
o Imputed Disqualification: Other members of the firm may represent so long as three requirements are met: Lawyer is screened off; Lawyer does not share in any part of the fee; and the former government employer is informed (is not required to consent, just needs to be informed).
DUTY OF LOYALTY: THIRD PARTY CONFLICTS
When in conflict, a lawyer’s duty is to the client, not a third party.
Compensation from third party: Permitted only with informed client consent.
When the client is a company or organization: The lawyer must act in the best interests of the company, not any single member.
o Special obligations for federal security lawyers:
• Must report if there is a material violation of security laws up the ladder: CEO/Chief legal counsel OR to the board/highest member of the company, and
• It is permissible for a lawyer to disclose confidential information without the company’s consent if the lawyer reasonably believes it is necessary to prevent fraud, perjury, or substantial injury to the organization or investors.
FINANCIAL DUTIES TO CLIENT: ATTORNEY’S FEES- CONTINGENT & NON-CONTINGENT FEE CASES
Non-Contingent fee cases - Agreements must include: How the fee is calculated; What services are covered; and The lawyer and client duties.
o CA: Requires more than ABA - Must be in writing unless the fee is under $1,000, with a corporate client, for routine services for a regular client, or it is emergency or impractical.
Contingent Fee cases:
o Written agreement must be signed in writing by the client and contain:
• Attorney’s percent;
• What expenses are to be deducted from the recovery; and
• Whether the percent is taken before or after expenses.
o CA also requires the agreement state: How work not covered by the contingency fee will be paid; and that the lawyer’s fees are negotiable.
o Types of actions allowing contingent fees:
• ABA: May not be used in domestic relations or criminal cases.
• CA: Silent as to criminal cases and allowed in domestic relations so long as the fees do not induce the breakup of the marriage.
o Termination before contingency/judgment: If / when the client wins, the first lawyer who is terminated is entitled to compensation for the work actually done.
FINANCIAL DUTIES TO CLIENT: ATTORNEY’S FEES- FEE SPLITTING
Generally: Okay to split with other lawyers in your law firm.
Lawyer may split: With lawyer outside the firm if the total fee is ethical and there is written disclosure and consent.
o ABA: Requires division to be proportional to the amount of work done by each attorney.
o CA: Only requires that the fee not be unconscionable and that the client consents.
Non-lawyer splits: Generally not allowed.
• Death benefits paid to deceased lawyer’s firm or heirs for his or her work;
• Fees passed on as pension and salary to non-lawyer employees;
• Sharing of court-awarded legal fees with a non-profit organization that employed or recommended the lawyer; and
• A lawyer may pay the usual charges of a qualified lawyer referral service.
DUTY OF LOYALTY TO FORMER CLIENTS
If confidential information from a former client is relevant to the representation of the new client, a lawyer may be violating confidentiality and loyalty. If the two are materially affected, s/he cannot represent the new client
Use of non-public confidential information against a former client is unreasonable.
If a lawyer leaves his or her firm, can they s/he represent the client? Imputed disqualification applies if:
o The matters are substantially related to each other or are the same; and
o Any remaining lawyer has confidential, material information.
FINANCIAL DUTIES TO CLIENT: PARTNERSHIP WITH NON-LAWYERS IN PROVIDING LEGAL SERVICES
Prohibited for any practicing lawyer. Additionally, non-lawyers may not be partners, shareholders, officers, or control or direct a lawyer’s professional judgment.
Reciprocal agreements: Okay to have reciprocal referrals if they are not exclusive, and the attorney can explain the arrangement to the client at the time of referral.
o If a lawyer personally provides a client with law-related services along with legal services, s/he is subject to ethical rules.
o Generally: Attorney needs to generate the business individually, review each case for appropriate legal action, and control and supervise the consultants work.
FINANCIAL DUTIES TO CLIENT: CLIENT TRUST ACCOUNTS
Duty to safeguard client’s property: For example, by labeling it and storing it in a safe place (such as an office safe or safety deposit box).
Client-trust account: Money held for the client, includes money received on his behalf, advances for costs, expenses and fees.
o No borrowing or commingling with personal money; and
o Usually put in an individual interest bearing account (interest goes to client).
“Pooled” client trust account: Smaller funds from several clients at once; the interest will go to the state bar to fund legal services to the poor.
Disputed claims for fees / third party has lawful claim over the funds: Lawyer must withhold the disputed portion in the client trust account and wait for resolution of the claim.
Have to keep good records and accounting:
o CA: Requires you to keep paperwork for five years after final distribution and to make available for audits.
DUTY OF COMPETENCY
Duty: An attorney must render competent services to the client. If not, s/he is subject to discipline: By the Bar; Disqualification as counsel in a litigated matter; and Subject to civil malpractice liability.
o CA: The lawyer has the duty to supervise the work of subordinate attorneys and non-attorney employees. In addition, the lawyer must act with reasonable diligence and promptness in representing a client, must keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
Competency: Using the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.
o Relevant law: If an attorney does not know the relevant law, s/he cannot take on the matter unless s/he substantially researches the law or associates/confers with a lawyer who is competent in the area.
o Diligence: This includes the duty to be diligent, prompt, and in a zealous pursuit in completion of the case.
o Communication: The duty also requires that a lawyer keep clients informed about the case.
o Malpractice: A civil action brought by the client for money damages. NOTE: a disciplinary action is administrative and brought by the state bar
DUTY OF ACCEPTING REPRESENTATION
Lawyers are free to accept or reject any case.
Lawyers should accept:
o Cases of the defenseless or oppressed.
o A fair share of work without charge.
o ABA: Encourages 50 hours of pro bono.
Lawyers MUST reject: If the lawyer would violate a law or ethical rule by taking the case.
o Example: The lawyers is not in the physical or mental state to take the case; or
o The case would require making a frivolous legal argument (violates duty of candor).
DUTIES FOR WITHDRAWAL OF REPRESENTATION
Mandatory Withdrawal: An attorney must withdraw if continuing would:
o Violate a law or ethical rule (includes knowingly pursuing a frivolous claim);
o The lawyer’s physical or mental condition materially impairs the his or her ability to represent the client, or
o The lawyer is discharged.
o CA: Withdrawal is mandatory if:
• The lawyer knows or should know that the client is acting without probable cause to harass or maliciously injure another person; or
• The representation will result in the violation of the Rules of Professional Conduct, but not a violation of other law.
Permissive Withdrawal: Allowed if a lawyer believes there is good cause, and it would not cause substantial delay or disruption.
o Includes: Client failure to pay, acting illegally, or pursuing an object a lawyer finds “repugnant” or “improper”.
Procedures for Withdrawal:
o Provide timely notice to the client; and
o Must promptly return: Any unspent fee and expense advances; and all material papers and property. CA: Forbids withholding if the client has not paid the lawyer.
DUTY TO CLIENT WITH DIMINISHED CAPACITY
A lawyer must maintain a normal lawyer-client relationship to the greatest extent possible. A lawyer may seek the appointment of the guardian or take other protective action with respect to such a client if the lawyer reasonably believes that the client cannot adequately act to protect himself or herself from substantial harm.
A California lawyer may not seek the appointment of a guardian for a client against the client’s wishes, even if the lawyer reasonably believes that the client cannot adequately act to protect herself from harm
DUTY TO PRESENT EVIDENCE AND FACTS TRUTHFULLY
Lawyers cannot make false statements of material fact or offer evidence known to be false to the tribunal. Additionally, a lawyer must correct a false statement of material law or fact previously made or presented to the tribunal.
o Client Perjury: A lawyer must not knowingly facilitate client perjury.
o If civil cases: A lawyer must refuse to call the client as a witness.
o Criminal cases: Clients have a 5th Amendment right to testify on their own behalf, and 6th Amendment right to counsel. Take reasonable remedial measures to prevent:
• Counsel the person to testify truthfully.
• May try to withdraw from the case.
• CA: Must first try and persuade the defendant from falsely testifying. If this 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 or her up until the point s/he knows the defendant will testify falsely. From that point on, the lawyer may allow the defendant to testify in narrative fashion but cannot further the deception.
• ABA: Tell the judge; it does not protect from perjury.
Duty ends with the proceedings, so if after the proceedings, the client tells the attorney later s/he had lied, the attorney is not responsible
DUTY TO PRODUCE EVIDENCE
Lawyers may not suppress evidence that the lawyer/client has a legal obligation to reveal or produce, regardless of the duty of loyalty. This includes not obstructing/tampering with the fruits or instrumentalities of a crime. If a lawyer moves/alters evidence, s/he must tell the police and may be forced to testify.
Volunteering information: Ex Parte proceedings are unusual communications with the judge without the lawyer’s adversary present.
o Ethical duties of candor and fairness to the absent adversary apply; and
o Must reveal relevant information overriding the normal presumption that the attorney may not reveal facts harmful to the client.
DUTY TO ACCURATELY STATE THE LAW
An attorney must:
o Not knowingly make false statements of law;
o Be candid about the law;
o Cite adverse authority if it is from the controlling jurisdiction and is directly on point; and
o Not present frivolous claims or defenses.
DUTY TO UPHOLD THE LAW
If continued representation would require a lawyer to commit a crime, the lawyer must withdraw. Continued representation is permissive if the lawyer reasonably believes the actions are criminal/ fraudulent, but the lawyer is not assisting with them.
Preventing clients from committing a crime:
o Disclosure of confidences is permissive if a lawyer believes a client will commit an act that is reasonably likely to result in death or substantial bodily injury.
• ABA does not require a criminal act.
o If the act would only cause substantial financial loss:
• CA: Forbids from revealing the confidences.
• ABA: Permits disclosure only if attorney services were employed in the crime
DUTY OF HONESTY
Lawyers have the duty to behave honestly in all dealings, whether or not engaged in the practice of law.
DUTY OF FAIRNESS TOWARDS OTHERS
Duty to safeguard electronic documents: A lawyer has a duty to the client to protect electronically transmitted material.
When a document is accidentally sent to opposing counsel: A lawyer must stop reading it and notify opposing counsel once the lawyer realizes the document was inadvertently sent. This includes not copying/sharing the document, or using it to the party’s advantage (doing so can end with the lawyer being disqualified).
Communication with adversaries and third parties: A lawyer must be truthful and not mislead individuals regarding their interests. Additionally, a lawyer must not violate the legal rights of a person to obtain evidence or use means with no purpose but to delay.
Communication with a party represented by counsel on the subject of inquiry: Unless authorized by law, a lawyer must not communicate with a party s/he knows is represented by counsel on the matter without the consent of his counsel. This rule does not apply if the party is asking for a second opinion;
o ABA extends to all persons represented by counsel; and
o This does not apply if the individual does not have counsel.
DUTY TO NOT INTERFERE WITH A DEFENDANT’S RIGHT TO A FAIR TRIAL
Lawyers must avoid out-of-court statements that they should reasonably know have a substantial likelihood of materially prejudicing the case.
o Matters in the public record;
o Routine booking information;
o Warnings to the public; and
o Statements required to protect the client from substantial undue prejudice from recent publicity not self-initiated.
SPECIAL DUTY OF PROSECUTORS
Basic duty is to seek justice, not just win a case.
Higher ethical duties than criminal defense or civil attorneys.
Probable cause is needed.
Must provide exculpable evidence.
May not make comments that have a substantial likelihood of public condemnation of the accused.
DUTY TO PRESERVE THE IMPARTIALITY
1. Lawyers cannot try to influence anyone improperly; this includes not speaking with jurors (prospective and empanelled). However, lawyers may interview jurors after a trial, so long as the juror consents.
2. CA: Have to tell the jurors they have the right to refuse.
3. Trickery, referring to inadmissible material, alluding to matters unsupported by evidence, and asserting personal knowledge of facts at issue are not allowed.
4. A lawyer must avoid using abusive conduct and theatrics.
DUTY TO EXPEDITE CASES
1. CA: Lawyers must not delay cases to harass an adversary or for personal gain or convenience.
2. ABA: Affirmative duty to expedite.
3. Duty to follow procedural rules or court orders, unless lawyer is making a good faith challenge to its validity.
DUTIES TO THE PROFESSION AND THE PUBLIC
1. A lawyer may not engage in the unauthorized practice of law to safeguard the public from incompetence;
2. Practice in a state which the lawyer is not authorized to practice in or while suspended is not allowed;
3. “Pro hac vice”: Order by the local court or limited circumstances allowed by law.
Allows temporary practice in the state by an out-of-state lawyer in good standing is allowed if:
o The lawyer practices in the state who actively participates in the matter; or
o The services relate to ADR; or
o The case arises out of matters reasonably related to the lawyer’s practice in the state where s/he is admitted and are not services where the forum requires a pro hac vice appearance
DUTY TO REPORT MISCONDUCT
ABA: Lawyer must report to the appropriate professional authority any other lawyer’s or judge’s violation of the rules in legal or other context if relates to a substantial question of the person’s honesty, trustworthiness or fitness.
CA: No ethics rule that requires a lawyer to report misconduct by another lawyer but does require self-reporting to the State Bar when:
o Sued for malpractice three times in 12 months;
o Found civilly liable for fraud, breach of fiduciary duty, or the like;
o Sanctioned more than $1,000 (except for discovery sanctions);
o Charged with a felony;
o Convicted of certain serious crimes; or
o Disciplined in another jurisdiction.
CA: Also a lawyer can be disciplined for merely knowing of a firm member’s disciplinary violation but doing nothing to prevent it.
DUTY OF SUBORDINATE LAWYERS
Lawyers under the control or supervision of another attorney are:
o Liable for an ethical violation if it is a clear violation;
o Debatably liable if the partner is solely responsible;
o Liable if the subordinate ratifies the action or knew of the conduct and fails to take action.
DUTY OF MANAGING PARTNERS
Must make reasonable efforts to ensure that all those working within the firm, including non-lawyering assistants, behave in accordance with the firm’s professional obligations.