Professional Responsibility Flashcards
1
Q
When is a Lawyer Subject to Discipline?
A
- Prohibits unlawful discrimination, harassment, and retaliation on the basis of a protected characteristic.
- A lawyer also must not permit unlawful discrimination by any other lawyers, or nonlawyer employees in the law firm in relation to the firm’s operations.
- Must notify state bar of any criminal, civil, or admin action premised on the same disciplinary conduct.
2
Q
Bounds of Representation
A
- May not violate a court order.
2. Must inform client of related conflicting tribal or federal law.
3
Q
Diminished Capacity Client
A
Lawyer may take protective action if reasonably believes client cannot protect themselves from substantial harm.
4
Q
Communication of Fee Agreement
A
If reasonably foreseeable that fee will exceed $1,000, then fee must be in writing (which must explain the basis or rate of the fee). However, this will not be required where:
- Client is a corporation
- Client says in writing doesn’t want a fee agreement
- Same as previously paid for legal services.
- Lawyer acted in emergency to protect clients rights.
- Impractical.
5
Q
Fee Amount
A
Prohibits illegal or unconscionable fee.
6
Q
Contingency Fees
A
Prohibited in criminal case and domestic relations cases where fee is contingent on the securing of divorce, alimony award, etc. Permitted in recovery of post judgment balances.
7
Q
Property for Services
A
ABA: May accept, so long as it isn’t a proprietary interest in the cause of action. Subject to a conflict of interest analysis.
CA: Only the conflict of interests analysis.
8
Q
Fees Paid in Advance
A
ABA: Allowed, but must refund unearned portion. Not required to refund a true retainer fee (meant to ensure lawyer availability).
CA: Same, but no non-refundable fees.
9
Q
Dividing Legal Fees
A
CA: Allows referral fees. Client consent required. Must not increase client fee solely by reason of referral fee.
10
Q
Mandatory Withdrawal
A
A lawyer must withdrawal from a representation if:
- the rep would result in a violation of the RPC or other law
- Lawyers physical or mental condition substantially impairs their representation of the client
- Discharged by the client; or
- CA SPECIFIC: Client action is solely for the purpose of harassing or maliciously injuring any person.
11
Q
Permissive Withdrawal
A
- C persists in criminal or fraud action involving lawyer’s services
- C used L’s services to commit crime or fraud
- C fails to pay and has been reasonably warned
- Representation rendered unreasonably difficult by client
- ABA SPECIFIC: C insists on taking action L considers repugnant or fundamentally disagrees with
- CA SPECIFIC: C knowingly and freely assents to termination
- CA SPECIFIC: Rep likely to result in ethical or legal violation
- CA SPECIFIC: L condition makes it difficult to continue.
12
Q
Attorney Client Privilege: Termination
A
CA: Terminates when clients estate is settled and rep is discharged.
13
Q
Exceptions to Attorney Client Privilege
A
- Client seeks attorney’s aid to enable or aid anyone to commit a future crime or fraud.
- For communications outside the scope of duties of A/C relationship.
- Civil litigation between former joint rep parties.
- Situations related to competency of client re: will or transfer.
- CA SPECIFIC: When necessary to prevent a criminal act that lawyer REASONABLY believes is likely to result in a person’s substantial bodily injury or death.
14
Q
Duty of Confidentiality
A
Broader than A/C privilege. Cannot reveal and must take affirmative steps to protect confidential information.
15
Q
When Information may be Disclosed
A
- Client gives informed consent; or
- Impliedly authorized; or
- AN EXCEPTION IS APPLICABLE
16
Q
Death or Bodily Harm Exception to Duty
A
Lawyer may be disclose confidential information to PREVENT a FUTURE CRIMINAL ACT, that is likely to result in death or substantial bodily harm. HOWEVER, Lawyer must”
- FIRST make a GOOD FAITH EFFORT to persuade the client not to commit or continue the criminal act; and
- As part of the foregoing, the Lawyer must INFORM the client of the lawyer’s ability or decision to reveal the information.
17
Q
Financial Loss Exception
A
California has no exception for financial loss (i.e., cannot reveal confidential information to stop a financial crime).
18
Q
To Collect Fee Exception
A
You can disclose information to collect a fee you are owed from said client.
19
Q
Response to Court Order Exception
A
May reveal information to comply with court order or other law.
20
Q
Legal Ethics Exception
A
California DOES NOT recognize an exception seeking confidential legal ethical advice.
21
Q
Legal Ethics Exception
A
California DOES NOT recognize an exception seeking confidential legal ethical advice.
22
Q
Conflicts Check
A
No California exception, except perhaps under impliedly authorized. Probably will not be tested.
23
Q
Separation of Funds
A
All money a lawyer receives for the benefit of a client, or for the benefit of a third person to whom the lawyer owes a legal duty, must be placed into an applicable trust account. Lawyer must NEVER comingle business or personal money with trust account, except for the SOLE purpose of paying bank service charges.
Account must be located in California, unless client written instructions specify otherwise (must have substantial jurisdictional relationship).
Note: Flat fee may be placed into operating account, except that Client must be alerted that they can opt to have it placed into trust account instead and that client is entitled to a refund of any unearned amount.
24
Q
Disputed Funds and Property
A
If L possesses property that at least two persons claim interest, L must keep disputed portion separate until resolution of the dispute. However L must promptly distribute the undisputed portion.
25
Imputation of Conflicts
When one lawyer cannot take on a matter because of a conflict of interest, the other lawyers in the firm are also barred from taking on that matter. Hence the term IMPUTED. Exceptions:
1. When conflict is PERSONAL to the disqualified lawyer.
2. When the conflict is based on disqualified prior rep or employment and is screened.
3. Waived by the affected client(s).
25
Imputation of Conflicts
When one lawyer cannot take on a matter because of a conflict of interest, the other lawyers in the firm are also barred from taking on that matter. Hence the term IMPUTED. Exceptions:
1. When conflict is PERSONAL to the disqualified lawyer.
2. When the conflict is based on disqualified prior rep or employment and is screened.
3. Waived by the affected client(s).
26
When Does a Conflict Exist?
1. The rep of one C is directly adverse to another C who the L represents in the same or a separate matter.
2. There is significant risk that the rep of the C will be materially limited by the L's own interest or by a L's responsibilities to another client, former client, or third person.
Can apply even where there is just opposed legal circumstances and L would potentially create precedent in case 1 that is adverse to the position in case 2.
27
Steps for Resolving a Current-Client Conflict
L may undertake a conflicted rep if:
1. L reasonably believes she can competently and diligently do so;
2. Not prohibited by law;
3. Does NOT involve asserting a claim against one of the rep'd parties;
4. Each C gives INFORMED WRITTEN CONSENT.
28
Written Disclosure Requirement for Lawyer Relationships
Following relationships ALWAYS require written disclosure to the C:
1. L has a legal, business, financial, professional, or personal relationship with a PARTY OR WITNESS in the C's matter.
2. The L is an immediate family member or intimate of another party's attorney in the C matter.
If one of the above would result in a material limitation, then the usual written consent is required.
29
Business Transactions With/Pecuniary Interest With Client
May not do so unless:
1. Fair terms
2. Terms/L's role fully disclosed to the C
3. C advised in writing that C should get independent advice; and
4. C gives informed consent in a writing signed by C.
Does not apply to normal commerce with C.
May not use C information to C disadvantage.
30
Substantial Gifts from Clients
Lawyer must not:
1. Solicit a substantial gift from a C
2. Prepare an instrument on behalf of C wherein L gets a gift
Does not apply if C has been advised by an independent lawyer who provides a cert of independent review.
31
Financial Assistance to Client
L must not provide financial assistance to C in ALL CONTEXTS, not just litigation. Additional details:
1. CA also prohibits L from 'buying' a C with promises to pay the potential debts of a C, but AFTER L is hired, the L may give a loan to C if C promises to repay.
2. Further, with C's consent, the L may pay debts of C from funds L collects for C, IF the L has the C's consent.
3. Lawyer MAY advance court costs and the repayment MAY be contingent on the outcome of the case.
4. If C is indigent the L may pay the costs and expenses associated with promoting or protecting client's interests NOT JUST LITIGATION.
32
Aggregate Settlement Agreements
L must not participate in the making of aggregate settlement agreements unless:
1. L discloses to EACH C the existence and nature of everything involved; and
2. Each C gives informed consent signed by C.
33
Compensation from someone other than C
L may not accept compensation for legal services from someone other than C without:
1. Informed WRITTEN consent;
2. No interference of L's professional judgment; and
3. Information relating to the representation of the client remains confidential. written consent from the client. Exceptions:
Disclosure and consent not required where:
1. Authorized by court order;
2. Services rendered on behalf of public agency or non-profit
3. Emergency situations
34
Settling Malpractice Claim
May not settle with former or unrepresented party without:
1. Advising party in writing that IC is desirable; and
2. Giving that party a reasonable chance to consult with IC.
35
Prospective limitation of malpractice liability
Not permitted in any circumstance in California.
36
Acquisition of Literary or Media Rights of C
Analyzed under pecuniary interest adverse to client rule.
37
Property Interest in Subject of Representation
Pecuniary Interest test
38
Participation in Foreclosure or Sale
L must not:
1. Purchase property where L is acting as executor, receive, administrator, etc.
2. Represent the seller in an action or proceeding in which the purchaser is a spouse or relative of the lawyer or another lawyer in the firm.
39
Sexual Relationship with Client
Not allowed unless relationship predates the L/C relationship, or where the L/C get married or enter into a registered domestic partnership.
Should consider conflict of interest in any event, this is not imputed to the other lawyers of the firm.
40
Conflict Involving Organizational Clients
L reps organization not the constituents thereof. If there is bad action taking place then L's only option is to bring it to the highest authority, after which if no action is taken the L may withdraw. But L may NOT report to outside organization (unless the other confidentiality exceptions are met).
41
Representing a Client Adverse to a Former Client
Cannot do so if interests of C are materially adverse to a former C who L represented same or substantially related matter, unless former C gives wirtten consent.
'substantially related = 1. same transaction or legal dispute; and 2. confidential information overspill risk.
42
Opposing Client of Former Firm in Same or Substantially Related Matter
Obviously if you have confidential information from prior rep you must be screened from same or substantially related matter unless you have written consent from the affected party.
43
Disqualification of Lawyer's New Firm
Screening and notice will not cure the imputation if the disqualified L substantially participated in the same of substantially related matter while at the prior firm. CANNOT DO IT. Whole firm will be disqualified.
44
Disqualification of Lawyer's Former Firm
Former firm generally not prohibited from repping C's who are materially adverse to those of a C of the formerly associated L unless:
1. the matter is same or substantially related to that in which the formerly associated L represented said client; and
2. the remaining L's of firm have protected confidential information about said client.
45
Competence and Diligence
ABA General Rule: L may become familiar/competent in a certain field through adequate preparation, but the C must be informed.
CA SPECIFIC: L must not intentionally, recklessly, repeatedly, or with gross negligence, fail to perform legal services.
46
Keeping Client Informed
L must explain matter to C to the extent necessary to permit C to make informed decisions.
Keep C reasonably informed about the matter, including all significant developments.
Comply with reasonable requests for information.
47
Communicating Plea Bargain and Settlement Offers
Must always promptly communicate the following to any client regardless of circumstances:
1. Proposed plea bargain or other dispositive offer in a criminal case
2. All amounts, terms, and conditions of ANY WRITTEN OFFER OF SETTLEMENT.
Oral offers usually significant enough to be passed on (i.e., constitute a 'significant development').
Can only withhold information if L reasonably believes C will react in a way resulting in imminent harm to C or others.
48
No Frivolous Claims or Contentions
L must not take a position that is either factually or legally frivolous. But in a CRIMINAL CASE the L may conduct the defense such that the P must prove every necessary element of the case.
49
Expediting Litigation
L may not use means that have no substantial purpose other than to delay or prolong the case.
50
Candor to the Tribunal: Applicable Law
A Lawyer must not:
1. Knowingly make a false statement of law to the court, or FAIL TO CORRECT a previous false statement of law;
2. Must not FAIL TO DISCLOSE legal authority in the CONTROLLING JURISDICTION that is adverse to the client's position and has not been disclosed by the opposing counsel; and
3. Cannot knowingly misquote to tribunal.
51
Candor to the Tribunal: Facts of the Case
Lawyer must not:
1. Knowingly make a false statement of FACT, OR FAIL TO CORRECT a previously made false statement of MATERIAL fact;
2. No obligation to volunteer a fact harmful to C, except in an exparte proceeding where L must disclose ALL MATERIAL FACTS.
52
Candor to the Tribunal: False Evidence
ABA:
1. L must REFUSE to offer evidence L knows is false.
2. L MAY refuse to offer evidence she reasonable believes is false.
3. If L offers evidence and later discovers falsity, then L must take reasonable remedial measures, including (i) urge C to cooperate in withdrawing or correcting it; (ii) if the former fails, seek to withdraw and/or take other measures to strike the evidence; and (iii) if all else fails disclose to Judge.
CA:
All of the above, EXCEPT the remedial measures MAY NOT INCLUDE TELLING THE JUDGE. CONFIDENTIALITY TRUMPS ALL.
53
Candor to the Tribunal: False Testimony by Criminal Defendant
Lawyer may take remedial measures to try and persuade client not to testify falsely, but MAY NOT reveal falsity to the Court.
Lawyer may offer the Client's testimony in a NARRATIVE FORM if:
1. Lawyer has made reasonable efforts to dissuade client from testifying; and
2. Has unsuccessfully sought permission to withdraw.
54
Candor to the Tribunal: Duration of Obligation
Continues until a final judgment has been affirmed on appeal or the time for appeal has expired.
55
Falsifying and Obstructing Access to Evidence
1. L must not falsify evidence or assist in perjury.
2. L must not obstruct access to evidence.
3. L may not advise a person to secrete himself or flee to avoid jurisdiction/unavailable as a a witness.
4. L may not suppress evidence.
56
Offering Payments or Inducements to Witnesses
Generally improper, except:
1. Reasonable costs for travel and incidentals.
2. Compensation for loss of time.
3. Reasonable fees to expert witness.
Payment may never be contingent on outcome of case.
57
Violating Court Order
Cannot do so; but may 'do so' for purposes of making a good faith challenge to its validity.
58
Using Threats to Gain Advantage in a Civil Dispute
Must not threaten criminal, administrative, or disciplinary charges for the purposes of GAINING AN ADVANTAGE for the client.
59
Prohibited Statements During Trial
1. Must not assert personal knowledge or facts;
| 2. Personal opinion of guilty or innocence of accused.
60
Improper Influence of Tribunal
Must not directly or indirectly give or lend anything of value to a judge, official, or employee, except as permitted by law.
Note: doesn't apply to campaign donations
61
Ex Parte Contact with Court
Generally L must not have ex parte contact with Judge or Court.
62
Ex Parte Contact with Jurors
1. During jury selection AND trial, a L connected with a case must not communicate directly or indirectly with a prospective juror or juror on ANY subject;
2. During trial a L NOT connected with the case, cannot communicate w/ juror about the case;
3. CALIFORNIA SPECIFIC: L cannot investigate juror such that juror would have their state of mind influenced in re: current or future jury service;
4. CALIFORNIA SPECIFIC: All of the above restrictions apply to the family of jurors;
5. CALIFORNIA SPECIFIC: L must promptly reveal improper conduct within the meaning of this card.
63
Trial Publicity
L connected with case must not make statement that L should reasonably know:
1. will be publicly disseminated; and
2. will have a substantial likelihood of materially prejudicing the case.
L also has a right of reply to protect a C from substantial undue prejudicial effect of recent publicity NOT initiated by L or the C.
64
Duties Owed to Client
1. Confidentiality
2. Loyalty
3. Financial Responsibilities.
4. Competence
5. Diligence
6. Communication
7. Catchall/Other reasonable things
65
Duty Owed to the Court
1. Candor/Truthfulness;
2. Fairness; and
3. Dignity Decorum
66
Duty of Loyalty: Conflict Interest
Duty of loyalty exclusively to your client, must avoid conflicts of interest. Conflict of interest exists where your representation is (i) directly adverse to another client; or (ii) there is a significant risk that your representation will be limited by your relationship to another client, a former client, or any third person.
Key word is material impairment.
Very few conflicts are non-consentable. Chief exception is where you represent parties that are likely to have claims against each other.
67
Duty of Confidentiality
Scope: Applies to everything you do for the client. You must take steps to safeguard their information.
When does it arise: It can arise even before the formation of the L/C relationship as a consequence if L invites and receives information that could be significantly harmful to the C.
Attorney Client Privilege vs. Duty of Confidentiality: Very similar, but confidentiality is broader, it applies regardless of the source of the information.
68
Duty of Confidentiality Exceptions
1. Consent
2. Defending yourself
3. Preventing death or substantial bodily harm ONLY. NOT FINANCIAL CRIMES IN CA.
4. To the extent required to prevent assisting in a crime or fraud, or to correct material evidence that was offered and which you discover is false.
69
Conflicts of Interest: Key Test
1. L reasonably believes L can represent everyone effectively despite conflict;
2. Inform each affected client with FULL disclosure; and
3. Client consents in writing.
70
Conflicts Among Current and Former Clients
Examples:
1. Representing A and B in the same case/area against each other:
NEVER ALLOWED.
2. Representing A and B where A and B are adverse, but you represent A for one type of legal work and B for another:
Permitted ONLY with informed reasonable consent of all the parties.
3. Representing A, B, and C in the same matter but not adverse to each other (yet):
Serious risk of conflicts that would require withdrawal. But permissible to attempt it with informed reasonable consent.
4. Representing A as a current client against B a former client:
Cannot take on A as a client if it is the same or substantially related matter where A's interests are materially adverse to B without B's consent. Also, may not use B's confidential information to assist A without B's consent.
5. Lawyer A moves from Government Work to Private Practice:
If L worked personally and substantially on a matter, L cannot work on same matter in later private practice without government consent. Regulations are not a 'matter'.
71
Duty of Loyalty: Self-Interested Transactions
1. Fair to the Client
2. Disclosed in a clear writing
3. Advise client to consult an outside lawyer; and
4. Client's consent in writing.
72
Financial Duties to Client
Primarily concerns:
1. Attorney fees;
2. Client Trust Accounts
73
Duty of Competence
Use of legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. California recognizes mental, emotional, and physical ability as part of competence.
74
Duty of Diligence
Duty to diligently and promptly pursue case to completion. (Owed to Client)
75
Duty to Communicate
Duty to keep C informed about the case and answer client communication.
1. Must inform of settlement offers and significant developments
2. Must inform if you do not have liability insurance or if you later lose it.
76
Mandatory Withdrawal
1. Fired by C
2. If continuing would violate a law or ethical rule.
3. L is physically or mentally unable to render competent service
4. If C acts without probable cause and to harass or maliciously injure another.
77
Permissive Withdrawal
Convincing Court of good cause, such as consistent criminal or fraudulent course of action.
78
Procedures for Withdrawal
1. Inform client;
2. Return any unspent fee; and
3. Return all client property and material papers. CANNOT HOLD HOSTAGE FOR PAYMENT.
79
Client Perjury
1. Civil Cases: Must NOT allow.
2. Criminal cases: Cannot forbid. Allow them to testify narratively. You can try and withdraw or convince them not to do it, but that's it.
80
Duty of Dignity
Owed to the Court. Don't be a dick.
81
Duty of Fairness
Owed to non-parties, general rule is the duty to behave honestly in all dealings. Examples:
1. Documents sent inadvertently, must stop reading as soon as you realize it is privileged or work product, and notify opposing counsel.
2. Represented Parties: Must not communicate with represented parties on the subject of the action without the consent of his counsel. Extends to all employees of a represented party.
3. Unrepresented Parties: Don't imply you are neutral and dont give legal advice.
4. Misconduct: Do not harass or discriminate against anyone. CA requires it to be unlawful.
5. Threats: Do not use threats of criminal/disciplinary, etc., action to gain an advantage in a matter.
6. Press: Avoid out of court statements likely to prejudice proceedings or rights.
7. Prosecutors have a special duty to seek justice, not just win cases. Must have probable cause and disclose evidence.
82
Unauthorized Practice of Law
Prohibited from:
1. Practicing law in a jurisdiction where doing so violates the regulation of the legal profession; or
2. Assisting another person in the unauthorized practice of law.
Test for if it is legal services: Is it beyond the capacities and knowledge of lay persons?
May delegate tasks to non-lawyers but responsible for the product.
83
Advertising
1. Do not mislead or omit material information (e.g., contingency advert that doesn't include mention of expenses);
2. Do not raise unjustified expectations (CA forbids ads with guarantees, warranties, predictions, etc.)
3. Claims of legal specialties, not permitted unless actually certified.
4. No payment for recommendations.
84
Solicitation
1. Do not specifically solicit individuals for legal services. Purpose is to avoid coercion, harassment, etc.
2. Remember, the agent of a Lawyer cannot do anything a lawyer cannot do.
85
Multijurisdictional Practice ABA vs. CA
ABA: Permissible where: (i) L is in good standing in at least one jurisdiction; (ii) associates with a lawyer in jurisdiction X who actively participates; and (iii) reasonably related to home state practice.
CA: Not allowed.
86
Policing Misconduct
ABA: Must report violations to the applicable third party reporting agency.
CA: No such requirement, but can be disciplined for knowing of a violation and staying silent. Also have an obligation to self-report for serious crimes, fraud, or sued for malpractice three times in a year.
87
Duties of Subordinate Lawyers
Must follow RPC even when acting at supervisor’s direction, but can safely follow supervisor’s directions regarding the reasonable resolution of an arguable question of professional duty
88
Duties of Supervising Lawyers
1. All partners, managers, and supervisors must make reasonable efforts to ensure that actions by lawyer and nonlawyer subordinates conform to the RPC/
2. Lawyer responsible for another lawyer’s/nonlawyer’s act if she:
a. Orders or ratifies the act
b. Supervises or manages the person, and knowingly fails to take remedial action
