Professional Responsibility Flashcards
1
Q
When does the lawyer-client relationship begin?
A
The lawyer-client relationship begins when the client reasonably believes that the relationship exists
2
Q
Who determines the means and who determines the ends?
A
the lawyer determines the means and the client determines the ends
3
Q
A lawyer MUST reasonably consult with the client about the means of representation
A
0
4
Q
In CA, what must the lawyer notify the client of?
A
Significant developments
an offer to plea bargain, a written settlement offer, and an oral settlement offer if it is a significant development
5
Q
In CA, when may a lawyer withdraw over a fundamental disagreement?
A
When the severe disagreement makes representation unreasonably difficult
6
Q
What should a lawyer do if the legality of conduct is unclear?
A
the lawyer may take steps in good faith to determine the validity, scope, meaning, or application of the law
7
Q
What happens if continued representation will result in a violation of an ethical rule?
A
CA and the ABA require a lawyer to withdraw when continued representation will lead to an ethical violation
8
Q
What happens if continued representation will result in a violation of any law, criminal or civil?
A
The ABA has a broad rule that says representation that will lead to an ethical violation or violation of “any other law” means the lawyer must withdraw.
In CA, withdrawal is required when representation will violate an ethical rule, but NOT other laws
9
Q
What are the situations in which a lawyer must withdraw?
A
- ethical rule violation
- lawyer’s health
- fired by client,
- (CA) when the client makes claims without probable cause AND for improper purposes
- (ABA) violation of law
10
Q
When may a lawyer withdraw due to their own health?
A
when the lawyer’s health makes representation “unreasonably difficult” they must withdraw; if merely “difficult” they may withdraw
11
Q
What are the responsibilities upon termination of representation?
A
1) provide reasonable notice and allow time to find other counsel
2) mitigate consequences (return papers) [The ABA permits a lawyer to keep papers to obtain payment, but CA does not allow this]
3) recover/refund fees (recover fees for services rendered, but must return any unearned fees) (may keep a true retainer fee)
12
Q
What are the rules on appropriate fees?
A
ABA: a lawyer may not charge an unreasonable fee
CA: a lawyer may not charge an unconscionable fee
13
Q
What are the 10 universally relevant factors to consider in whether the lawyer’s fee is unreasonable/unconscionable?
A
Timely labor lawyers forego fun time relating difficult, novel work.
1) Time required;
2) Labor required;
3) experience, reputation, and ability of the Lawyer
4) whether the lawyer will have to Forego other employment
5) Fee (fixed or contingent)
6) Time limitations;
7) Relationship (the nature and length with the client);
8) Difficulty of the case;
9) Novelty of the case;
10) the amount of Work involved and the results obtained;
14
Q
What is an ABA-only factor to consider in whether the lawyer’s fee is unreasonable
A
the customary fee in the locality and community
15
Q
What are the 5 CA-only factors to consider in whether the lawyer’s fee is unconscionable?
A
Sophisticated fraudsters consent amount disclosed
1) the relative Sophistication of the lawyer and client
2) whether the lawyer is engaged in Fraud in setting the fee
3) whether the client gave informed Consent
4) the Amount of the fee in proportion to the value of the services performed
5) whether the lawyer has failed to Disclose material facts
16
Q
What is the writing requirement for fee agreements?
A
ABA: prefer, but do not require, writing
CA: fee agreement must be in writing if the fee will exceed $1,000 (exceptions apply)
17
Q
What must be included in the written fee agreement?
A
NRF
1) the nature of the services
2) responsibilities of the parties
3) fee calculation (how)
18
Q
Exceptions for the usual requirement for a written fee agreement? (CA only)
A
CHEW [like a dog chewed the fee agreement]
C-client is a Corporation
H-History of similar services
E-Emergency services
W-Waiver in writing
19
Q
Contingent fees must be in writing and signed by the client
A
In CA, they must also be signed by the lawyer
20
Q
What happens, in CA, if the contingent fee agreement is not properly complied and the client voids the voidable agreement?
A
the lawyer may still collect a reasonable fee
21
Q
What must a contingent fee agreement include?
A
1) the basis for calculating the fee;
2) client’s liability;
3) whether expenses will be deducted before or after the contingent fee is calculated
4) (CA) requires stating the fact that the lawyer’s fee is negotiable (if not subject to CA’s statutory medical malpractice fee limits)
5) (CA) whether the client will have to pay the lawyer for related matters not covered by the agreement
22
Q
When are contingent fee agreement matters prohibited?
A
in criminal matters and in domestic relations cases (if the fee is contingent on the client securing a divorce or is based on the amount of support recovered
23
Q
When may fees be split with a lawyer who is not in the same firm?
A
The client must consent in writing after disclosure of the terms of the agreement; AND
-the total fee is not increased due to the fee-splitting
24
Q
What is the ABA-rule about fee splitting with a lawyer not in the same firm?
A
The fee must be reasonable and split in proportion to the services of the lawyer, unless each lawyer assumes joint responsibility.
25
What is the CA-rule about fee splitting with a lawyer not in the same firm?
the lawyer must enter into a written agreement at or about the time of the client's consent and provide full written disclosure that includes the identity of the lawyers. The total fee cannot be unconscionable
26
What are exceptions to the general rule that a lawyer cannot share fees with a non-lawyer?
1) payment to a lawyer's estate as a death benefit/inheritance
2) payment to law firm staff for compensation or retirement agreements
3) payment ordered by a court to be shared with a nonprofit
4) payment to a lawyer's estate or representative by a lawyer who purchases the practice
5) (CA) payment to a lawyer referral service
27
What are the rules for referral fees?
ABA: A lawyer may not give anything of value to a person or entity for recommending the lawyer, except for a (i) legal services plan or (ii) approved lawyer-referral service.
CA: A lawyer may give a gift or gratuity after a recommendation is made. Just no gift or promise to secure a recommendation
28
What happens when there is a dispute with a client over property or funds?
the disputed portion of the client's property or funds must be kept separate and must not be withdrawn until the dispute is resolved; the undisputed portion must be sent to the client
29
What must a lawyer do upon receipt of funds or property in which the client has an interest?
a lawyer must provide timely notice when he receives funds or property in which the client or a third party has an interest
30
How long must records be maintained after the close of the client's case?
five years
31
What are the three doctrines to protect confidential information?
1) the lawyer-client privilege
2) the work-product doctrine
3) the duty of confidentiality
32
When does the lawyer-client privilege terminate?
The privilege generally survives the client's death. In CA, it terminates when the client's estate is settled, and the personal representative is discharged
33
Exceptions to the lawyer-client privilege?
1) lawyer's services were used to further future crime/fraud
2) disputes (between lawyer/client, co-clients, client's heirs)
3) (CA) if the lawyer believes that disclosure is necessary to prevent a criminal act that the lawyer reasonably believes is likely to result in death or substantial bodily harm
34
When does the absolute protection of an attorney's work product apply in CA?
LOCI
any writing that reflects the attorney's legal theories, opinions, conclusions, impressions in anticipation of litigation
35
What is the general rule of the duty of confidentiality?
a lawyer must NOT reveal ANY information relating to the representation of a client
36
When does the duty of confidentiality not attach to a prospective client (one who consults, but ultimately does not hire the lawyer)?
The duty of confidentiality does not attach in a few situations.
1) the prospective client has no good-faith intention to retain the lawyer;
2) after the lawyer states she is unwilling or unable to represent the client;
3) unilaterally without a reasonable expectation that the lawyer will be retained
37
Can a lawyer reveal confidential information when there is a possibility of death or substantial bodily harm?
A lawyer MAY reveal information reasonably believed necessary to prevent:
- (ABA) reasonably certain death or substantial bodily harm
- (CA) a criminal act that is reasonably believed will result in death or substantial bodily harm
38
What duty does CA place on a lawyer who chooses to disclose confidential information because she reasonably believed it is necessary to prevent a criminal act that is reasonably believed will result in death or substantial bodily harm?
1) If reasonable, take steps to dissuade the client from committing the act; and
2) inform the client of the lawyer's decision to reveal the information
39
What are the permissive exceptions to the duty of confidentiality?
1) to Secure legal advice about the lawyer's compliance with the rules
2) to Establish a claim or defense in a dispute with a client
3) Reasonable belief of death or substantial bodily harm
40
What is the duty of loyalty?
the lawyer must put the client's interests above all other interests and refrain from any conflicts of interests
41
When answering a conflict of interest question always state which of the categories this situation falls into. For example: "The issue regards a conflict of interest between OilCo (current client) and GasCo (former client). "What are the four possible conflict of interest categories?
1) between the lawyer and client
2) between current and/or former clients
3) between a third-party payor and a client
4) between an organizational client and its members
42
What is the general rule of conflicts between a lawyer and client?
a lawyer may NOT represent a client if there is a significant risk that the representation will be materially limited by the lawyer's own interests
43
What is the exception to the general rule against concurrent conflicts of interest?
1) the lawyer reasonably (subjectively and objectively) believes she can provide competent and diligent representation to each client;
2) the representation is not prohibited by law;
3) no direct adversity; and
4) the affected client gives informed consent (CA: informed written consent) (ABA: confirmed in writing)
44
What is the standard for reasonable belief?
the standard for reasonable belief is both subjective (the lawyer's belief) AND objective (whether a disinterested lawyer would think it is reasonable)
45
What is the exception to the general rule against representing a client when the lawyer is in a close relationship with opposing counsel (such as a relative or family member)?
The lawyer reasonably believes she can provide competent and diligent representation AND
- CA: provides written disclosure to the client
- ABA: each affected client gives informed consent
46
CA: A lawyer may NOT represent a client if the lawyer (or another lawyer in the same firm) has a relationship with, or responsibility to, a party in the matter unless:
- the lawyer reasonably believes she can provide competent and diligent representation; and
- provides written disclosure to the client
47
Generally lawyers cannot have sexual relationships with a client (and this is an unwaivable conflict) unless...
there is an ongoing and consensual sexual relationship that predates the representation
48
CA exception on sexual relations with a client
The general ban does not apply to a lawyer's spouse or registered domestic partner
49
Generally a lawyer may NOT act as both lawyer and necessary witness in an action unless the lawyer's testimony relates to:
- an uncontested issue; or
| - the nature and value of legal services that the lawyer has provided
50
What are the rules on proprietary interests?
A lawyer may NOT acquire a proprietary interest in the cause of action or subject matter of the litigation. There is an exception for contingent fee agreements or liens to secure payment
51
What is the general rule regarding financial assistance to a client?
A lawyer generally may not provide financial assistance to the client if made in connection with ongoing or expected litigation
-CA bans all payments of personal or business expenses, even for prospective clients
52
Generally a lawyer may NOT enter into a business transaction with a client or knowingly acquire an adverse ownership or financial interest unless:
- the terms are fair and reasonable to the client and disclosed in writing;
- the client is given a reasonable opportunity to seek independent counsel; and
- the client gives informed consent in signed writing
53
What is the rule on literary or media rights
Prior to the conclusion of representation, a lawyer may NOT make nor negotiate an agreement giving the lawyer literary or media rights based on the representation
-There is no equivalent CA rule
54
What is the rule on solicitation of gifts?
A lawyer may NOT solicit or draft an instrument (e.g., will or trust) that gives a substantial gift to the lawyer or lawyer's relatives unless the client
-is related to the lawyer by blood or affinity, or
(CA) has been advised by independent counsel or the gift is fair and there is no undue influence
55
When may a lawyer or the lawyer's relative accept a gift from a client?
When the gift is not a product of undue influence
56
CA and ABA: A lawyer may NOT make an agreement with a client to limit malpractice liability
The ABA has an exception if the client is represented by independent counsel
57
Generally a lawyer may NOT represent a client whose interests are directly adverse to another client, or if there is a significant risk that representation would be materially limited by the lawyer's responsibilities to another client. What is the exception?
1) the lawyer reasonably (subjectively and objectively) believes that she can provide competent and diligent representation to each client;
2) the representation is not prohibited by law;
3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation; AND
4) the client gives informed consent? (ABA: informed consent, confirmed in writing) (CA: written informed consent)
58
What is the general rule regarding conflicts between current and former client
A lawyer may NOT represent a client in the same or substantially related matter as a former client if their interests are materially adverse to each other
59
What is the exception when there is conflict between current and former client?
Proper consent from the former client
- ABA: informed consent, confirmed in writing
- CA: informed written consent
60
What are the standards regarding conflicts between current and prospective clients?
A lawyer cannot represent a prospective client...
CA: if the lawyer acquired material confidential information from the prospective client
ABA: if the lawyer acquired information that could be significantly harmful to the prospective client
61
A lawyer who joins a new law firm may NOT represent a client in the same or substantially related matter if:
the client's interest is materially adverse to a client of the former law firm; and
the lawyer acquired material confidential information about the former client
62
What is the exception to the situation of a lawyer switching firms and bringing a conflict?
the former client gives informed consent
- ABA: informed consent, confirmed in writing
- CA: informed consent
63
What is the rule when a lawyer leaves the government?
A former government lawyer may NOT represent a client in a matter in which the lawyer participated personally and substantially, unless the government gives its informed consent
64
What is the general rule of imputed disqualification?
if one lawyer in the firm is conflicted, the whole firm is conflicted
65
What are exceptions to the rule of imputed disqualifications?
waiver, personal conflicts (familial or sexual relationships)
66
What does a firm do if the new lawyer brings a conflict that could be imputed to the entire firm?
the new firm may "screen off" the lawyer from participation in the matter
67
In CA, what is the rule on "screening" a joining lawyer?
the new firm can only screen a lawyer if the lawyer did not substantially participate in the same or a substantially related matter with prior firm
68
What are the requirements for screening?
1) the disqualified lawyer must not be apportioned any part of the fee
2) the former client must receive written notice; and
3) if requested by the client, the firm must provide a certification of compliance
69
What is the general conflict with third parties rule?
A lawyer must NOT accept compensation from a third party for representing a client
70
What is the exception to the general rule against taking compensation from a third party for representing a client?
- There is no interference with the lawyer's professional judgment or the lawyer-client privilege;
- client confidentiality preserved; AND
- the client gives informed consent (CA informed written consent)
71
What must a lawyer, who is representing an organization, do when she knows or reasonably should know that the actions of an agent of the organization may be illegal or likely to cause substantial injury to the organization?
the lawyer must:
-urge the individual to reconsider;
-if that fails, the lawyer MUST report the misconduct "up the ladder" to the highest authority within the organization
if an individual's action becomes adverse to the entity, the lawyer MUST advise the individual of the conflict and urge them to seek independent counsel
72
What must the lawyer do if the action is a clear violation of law and the entity fails to act after the lawyer has exhausted internal remedies?
- ABA: the lawyer MAY disclose the misconduct outside the organization to the extent reasonably necessary to prevent substantial injury to the organization
- CA: the lawyer may NOT disclose per the duty of confidentiality but the lawyer MAY withdraw if the client persists in illegal conduct likely to cause substantial injury to the organization. Only if there is a "reasonably certain" risk of death or substantial bodily harm may the lawyer report out.
73
What is the duty of competence?
a lawyer must possess the knowledge, skill, and preparation reasonably necessary for representation. In CA the lawyer must also have the mental, emotional, and physical ability
74
What is the duty of diligence, ABA and CA rule?
ABA: A lawyer must act with reasonable diligence and promptness in representing a client
CA: A lawyer shall not intentionally, repeatedly, recklessly, or with gross negligence fail to act with reasonable diligence in representing a client
75
What is the duty of communication?
the lawyer must regularly communicate with the client.
Additionally, the lawyer MUST:
- Keep the client reasonably informed about the status of the matter (in CA it is significant developments) and promptly comply with requests for information
- communicate the scope of representation and reasonably consult with the client about the means to accomplish the client's objective
- advise the client as to relevant limitations if the client expects unlawful or unethical assistance; and
- explain matters to allow for an informed decision
76
What is the duty to avoid frivolous claims?
a lawyer must NOT present a claim or defense not warranted under the law or supported by a good-faith argument for extension, modification, or reversal of the law
77
CA: A lawyer must NOT assert a claim or defense without probable cause in order to harass or maliciously injure another
o
78
What is the duty to correct?
a lawyer must correct a false statement of material fact or law previously made to the tribunal (including depositions)
79
What are the rules on the use of legal authority?
A lawyer MUST disclose controlling adverse legal authority if not disclosed by opposing counsel
-CA: a lawyer must not knowingly misquote a book or other legal authority
80
What happens if the lawyer is not certain and only has a reasonable belief that the evidence is false?
the lawyer has the discretion whether to offer it; when the lawyer has a reasonable belief of the falsity of a criminal defendant's testimony, the lawyer must honor the the client's testimony and does not have this discretion
81
What must a lawyer do before known false testimony by the client?
A lawyer MUST take reasonable remedial measures and urge client not to lie. If the client refuses, the lawyer MAY seek court permission to withdraw (CA) or MUST withdraw (ABA).
82
In a situation where the client/witness seeks to lie and the attorney's request for withdrawal is denied, what must the lawyer do?
ABA: the lawyer MUST notify the court even if it requires the lawyer to reveal client confidential information
CA: the lawyer MUST NOT breach client confidentiality; the lawyer can question the defendant until the point of the falsehood and then allow the defendant to testify through narrative without asking the defendant questions
83
What must a lawyer do after false testimony by the client/witness?
1) the lawyer MUST take reasonable remedial measures and urge the client to withdraw the false statement;
2) if that fails, the lawyer MAY seek permission from the court to withdraw, if feasible;
3) if withdrawal is not an option
- --ABA: the lawyer MUST notify the court
- --CA: the lawyer must not disclose the client perjury
84
How long must the duty of candor continue?
until final judgment has been affirmed on appeal or the time for appeal has passed
85
After a proceeding ends, what contact with a juror is permitted?
contact with a juror, after the proceeding, is permitted if not involving duress, misrepresentation, or harassment
86
What is the general rule regarding trial publicity?
A lawyer may NOT make an out-of-court statement the lawyer knows or should know will be publicly disseminated and will have a substantial likelihood of materially prejudicing the proceeding
87
A lawyer may NOT, without consent of the other lawyer, communicate directly or indirectly about the subject matter of the representation with any person the lawyer knows is represented by counsel
this rule applies even if the represented person initiates or consents to the communication
88
What are a lawyer's duties when dealing with unrepresented parties?
1) a lawyer may NOT imply that she is disinterested, and in the event of a misunderstanding, the lawyer must make reasonable efforts to clarify her role
2) if the interests of the party are in conflict with the client, the lawyer may not offer advice other than urge the party to get counsel
89
What is the general rule of advertising?
a lawyer may NOT make any false or materially misleading communication about herself or her services
90
What makes a statement false or misleading (in the context of advertisements)?
a statement is false or misleading if it contains a material misrepresentation of law or fact or omits a fact necessary to make a communication as a whole not misleading
91
What is the required content of an advertisement?
ABA: name and contact information of at least one lawyer or firm responsible for the content
CA: the name and address of the lawyer responsible for its content
92
A lawyer may not use a firm name, trade name, or other professional designation that is misleading.
o
93
In CA, what content is presumed to be false or misleading?
- guarantees about the outcome of the legal matter, including statements about quick settlements
- testimonials or endorsements of a lawyer, without a disclaimer
- dramatization of an event or an impersonation of a client, without a disclaimer
94
A lawyer may claim to be a "certified specialist" only if she is certified by an entity authorized by the state bar and the entity is identified in the communication
Just claiming to be a "specialist" is ok so long as it is not false or misleading
95
Generally, lawyers cannot solicit professional services through person-to-person contact (or via real-time electronic contact in CA), but when is it permitted?
when the lawyer has a family, close personal, or prior professional relationship with the individual; the person is a lawyer.
-Also the ABA allows this solicitation for persons who, for business purposes, routinely use the type of legal services provided by the lawyer
96
all written, recorded, or electronic communication from a lawyer soliciting professional employment from any person known to be in need of legal services in a particular matter must include the word “Advertisement” or words of similar import (such as “advertising material”) on the outside of mailing envelopes, if any, and at the beginning and ending of all recorded or electronic communications.
o
97
Runners and cappers (agents monitoring for legal work in public places) are prohibited.
Not just an ethical violation, but criminal in CA.
98
A lawyer may be subject to discipline for misconduct even though a client is not harmed
o
99
What is the duty of managerial lawyers?
MUST make reasonable efforts to ensure the firm's lawyers and non-lawyers comply with the rules by instituting policies and procedures
100
What is the duty of lawyers with supervisory authority?
a lawyer with authority to supervise lawyers or non-lawyer employees or agents must make reasonable efforts to ensure compliance with the ethical rules
101
A managerial lawyer is subject to discipline if the lawyer knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
o
102
What is the duty of a subordinate lawyer?
a subordinate lawyer is bound by the rules. If there is an arguable question of professional duty, the lawyer follows the supervisor's reasonable resolution. The lawyer must undertake their own analysis of the law. If reasonable minds would not differ, the issue is not an "arguable question."
103
Under the ABA (no CA equivalent!), when must a lawyer report misconduct of another lawyer?
A lawyer MUST report misconduct of another lawyer if she has actual knowledge of misconduct that raises a substantial question as to the honesty, trustworthiness, or fitness to practice law. A substantial question involves a "material matter of clear and weighty importance."
-CA does not require reporting
104
In CA, a lawyer MUST self-report her own misconduct, in writing within 30 days of having knowledge of
- a judgment for fraud, misrepresentation, or breach of duty
- discipline by any professional or occupational agency or licensing board
- judicial sanction
- felony charge
- etc
105
A lawyer may NOT form a partnership with a non-lawyer if ANY of the partnership activities constitutes the practice of law
Ex: A lawyer is not permitted to form a partnership with a paralegal, even if the partnership activities include the paralegal's assistance to the lawyer's practice of law.
106
If a lawyer provides ancillary services (financial planning, social work, tax preparation) along with legal services to the same client, the rules of professional conduct govern ALL transactions with the client
ABA exception: the rule applies unless the law-related services are distinct and the lawyer has taken reasonable steps to ensure the recipient knows the protections of the lawyer-client relationship do not apply
107
a sale of a law firm is permitted when
1) the sale is of all or substantially all of the lawyer's practice
2) the lawyer exercises competence in finding a buyer
3) client fees are not increased as a result of the sale; AND
4) written notice to clients is provided
- ABA only: the lawyer must cease to practice in the state
- consent of a client is presumed if no objection is made within 90 days
108
In CA, a lawyer is not permitted to represent a client if he knows/should know there is no probable cause to bring the action and that the action is being brought to harass or maliciously injure a person.
o
109
What are the ABA and CA rules on permissive withdrawal?
ABA: a lawyer may seek to withdraw at any time he can do so
without materially harming the client.
CA: a lawyer is not permitted to withdraw merely because it may be
done without material harm to the client.
110
A client has an absolute right to discharge (fire) a lawyer for reason or no reason.
o
111
All contingency fees must be in writing
o
112
In California, all funds received or held for the benefit of clients by a lawyer or law firm, including advances for costs and expenses, must be deposited in one or more identifiable bank accounts labeled “Trust Account,” “Client’s Funds Account,” or something similar.
o
113
When is a confidential communication covered under the A-C privilege?
- The client must intend for communication to be confidential; and
- The communication must be for purpose of seeking legal advice and representation.
114
Generally work product that is protected by qualified privilege is not discoverable except:
the court determines that denial of
discovery will unfairly prejudice the party seeking discovery in preparing that party’s
claim/defense or will result in an injustice. A good example is when only one side was able to interview a witness
115
What is a same/substantially related manner when analyzing a conflict between current and former clients?
Is the same transaction/dispute as the prior client’s; or
Involves substantial risk that confidential factual information from the prior representation will advance the new client’s position.
116
Upon learning of an action by a person associated with organization that will likely cause substantial injury to the organization, what must the lawyer do?
the lawyer must proceed as is reasonably necessary in the best interest of the organization.
117
What can a lawyer do if they are presently not competent or new?
a lawyer may accept representation if competence can be achieved by
reasonable preparation or association with another lawyer who has competence in the field
118
A good-faith argument for an extension, modification, or reversal of existing law is
not frivolous.
o
119
CA: A lawyer may not pay/offer to pay a witness contingent on his/her
testimony or the outcome of the case, but a lawyer may advance witness expenses
and expert witness fees
o
120
A lawyer is generally prohibited from communicating with a constituent of an
organization.
However, consent is not required to communicate with a former constituent.
121
An attorney may negotiate the terms of a transaction or settlement agreement with an
unrepresented person.
o
122
a lawyer may make a statement to protect a client from the prejudicial effect
of publicity that was not initiated by the attorney or client.
o
123
If an attorney makes an out of court statement, be sure to analyze whether it is factual in nature and whether it has a substantial likelihood of materially prejudicing the proceeding.
o
124
What are the duties of prosecutors?
PENCE [imagine Pence becomes a prosecutor]
1) must not Prosecute a charge that he knows is not supported by probable
cause.
2) must timely disclose all Exculpatory or mitigating evidence
3) must disclose any New, credible evidence creating a
likelihood that a convicted defendant did not commit the offense.
4) make reasonable efforts to ensure the accused is advised of the right to Counsel
5) refrain from making Extrajudicial statements that have a substantial likelihood of heightening public condemnation of the accused
125
California lawyers are specifically prohibited from (and subject to discipline for) threatening to bring “criminal, administrative, or disciplinary charges” in an effort to obtain an advantage in a civil dispute.
o
126
A lawyer must not employ, associate in practice with, or assist a person the lawyer knows or reasonably should know is an ineligible person to practice law
A lawyer may employ, associate in practice with, or assist an ineligible person to perform research, drafting or clerical activities
127
The lawyer must serve written notice of the ineligible person’s employment upon the State Bar and each client on whose specific matter the ineligible person will work. CA RPC Rule 5.3.1(d)
o
128
What are the rules on limiting a witness?
ABA: A lawyer shall not request others to refrain from giving relevant information unless a relative or agent of client
CA: A lawyer shall not advise a person to secrete himself or leave the jurisdiction to avoid being able to testify
129
In CA, a lawyer is permitted by statute to represent both the insured and the insurer, despite the inherent conflict.
o
130
What are the rules on financial assistance/advances to clients?
ABA: A lawyer shall not provide financial assistance to a client in connection with litigation, with the exception of contingency cases or indigent clients. Usually the client remains liable for these payments.
CA: A lawyer may lend money to a client, for any purpose, so long as the client promises in writing to repay the loan
131
What is the CA exception to the duty to communicate?
A lawyer may delay transmission of information to a client if the lawyer reasonably believes that the client would be likely to react in a way that may cause imminent harm to the client or others
132
What are the ABA exceptions to the duty of confidentiality beyond the CA exceptions?
1) the disclosure is impliedly authorized to represent the client
2) to prevent a client's crime/fraud
3) to secure legal advice
authorized, prevent, legal
133
What are the CA exceptions to the duty of confidentiality?
DCCC
1) to Defend in a Controversy between the lawyer and client
2) when the client gives informed Consent
2) when Compelled by law or court order (ABA includes ethics rules)
134
What are the differences in the crime/fraud exception to confidentiality according to ABA and CA?
CA: when necessary to prevent a crime that would cause reasonably certain death or substantial bodily harm (however there are additional procedures)
ABA: Much less strict
1) the lawyer reasonably believes the disclosure is necessary to prevent reasonably certain death or substantial bodily harm.
2) to prevent/mitigate a client's crime or fraud.
3) to mitigate or rectify a client's crime or fraud that results in substantial injury to the financial interests of another when the client used the lawyer's services to commit crime/fraud
135
What must happen when there is a fee dispute between lawyer and client?
CA requires the lawyer to submit the dispute for arbitration; the ABA only encourages arbitration
136
When is a reciprocal referral agreement between lawyers ok?
1) it is not exclusive and
| 2) the client is informed of the agreement
137
What is the standard of competence in CA?
A lawyer must not intentionally, recklessly, with gross negligence, or repeatedly fail to perform legal services with competence. (lower standard than the ABA
138
What does reasonable diligence mean?
the lawyer acts with commitment and dedication to the interests of the client and does not neglect or disregard, or unduly delay a legal matter entrusted to the lawyer
139
What must a lawyer do as part of their duty to safekeep client's physical property?
1) identify and label the property
2) put the property in a safe place and safeguard
3) maintain a journal of the property, and
4) do not commingle client and lawyer property
140
What must a lawyer do as part of their duty to safekeep client's money?
1) place client funds in a trust account
2) prompt payment (such as after settlement)
3) during a disagreement, the lawyer must send to the client any money not in dispute; the disputed amount must be placed in a trust account
141
What are a lawyer's duties of fairness to the court?
A lawyer shall not knowingly
- make a false statement of fact or law to the tribunal (or fail to correct)
- fail to disclose adverse legal authority
- offer evidence the lawyer knows to be false
- refrain from taking reasonable remedial measures when the client intends to engage in fraudulent or criminal activity
142
What are a lawyer's duties of fairness to opposing counsel?
A lawyer shall:
- not obstruct evidence
- not falsify evidence
- promptly notify the sender of any materials inadvertently sent to the lawyer (CA also says the lawyer must refrain from examining the writing)
- not allude to any matter the lawyer does not reasonably believe is relevant or will not be supported by admissible evidence during trial
- ABA: make a frivolous discovery request
- ABA: request others to refrain from giving relevant information unless a relative or agent of client
- CA: pay a witness to testify except for reasonable compensation
- CCA: advise a person to secrete themselves or leave the jurisdiction to avoid being able to testify
143
What are a lawyer's duties of decorum to the tribunal?
A lawyer shall not:
- seek to influence jurors, judges
- communicate ex parte during proceedings
- engage in conduct intended to disrupt proceedings
- communicate with jurors after they are discharged if they do not want to communicate
144
CA: Lawyers are prohibited from suppressing any evidence that must be revealed
o
145
What are the possible areas to discuss within lawyer-client relationship?
1) duty of loyalty
2) duty to communicate
3) duty of confidentiality
4) duty to avoid fee misunderstandings
5) duty of competence/care
6) duty of diligence
7) duty to safekeep property
8) scope of representation
9) A-C privilege
10) withdrawal
146
What are the possible areas to discuss within professional integrity?
1) ads/solicitation
2) unauthorized practice of law
3) liability for other lawyer's misconduct
4) duty of fairness
5) reporting ethical violations
6) duty to public/profession
147
dual representation in a criminal case is not prohibited in law.
However, it is generally discouraged due to the conflict of interest risk
148
What is the work-product privilege?
Generally, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative. Disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation are absolutely protected. For all other trial preparation materials, a court may order discovery if the party shows that it has a substantial need for the materials to prepare its case and cannot, without undue hardship, obtain a substantial equivalent by other means.
149
Who holds the a-c privilege?
the client
150
Can a client's attorney or former attorney testify on the matter?
yes if there is no available privilege to stop this
151
when is work product given an absolute privilege?
a writing that reflects a lawyer’s impressions, conclusions, opinions, or legal research or theories
152
When is work-product given a qualified privilege?
all work-product that is NOT a lawyer’s impressions, conclusions, opinions, or legal research or theories
153
Both the MR and CA RPC permit attorneys to compensate an EXPERT witness based upon the reasonable rate in the expert’s profession and for reasonable expenses incurred as a result of testifying.
O
154
Giving money after an expert witness testifies may be both a gift and a referral fee
o
155
What are all the main duties a lawyer must follow?
communicate, diligence, loyalty, confidentiality, competence, fairness, decorum
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156
What is required by the duty of candor?
A lawyer may not knowingly make or offer a false statement of fact or fail to correct a false statement of material fact previously made.
Additionally, if a lawyer, the lawyer’s client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer must take reasonable remedial measures.
157
It is ok for an expert witness to:
- say something contradicting a past statement
- say something contradicting what the manufacturer says
o
158
What is the rule on personal knowledge by a lawyer?
a lawyer may not assert personal knowledge of a fact in issue
Ex: The expert witness says the roof material is flawed and the lawyer says he agrees based on the lawyer's personal inspection
159
When must a lawyer follow the client's orders?
- criminal: pleading, waiving jury trial, testifying
| - civil: whether to settle
160
What are possible claims against a lawyer?
- legal malpractice (negligence)
| - breach of contract
