Professional Responsibility Flashcards
(139 cards)
1
Q
What categories subject lawyers to discipline?
A
Competence, confidentiality, criminality, conflicts, and candor.
2
Q
What acts can per se bring discipline even if not violating the rules or while not acting as an attorney.
A
(1) Crimes, or (2) dishonest acts such as fraud or misrepresentation.
3
Q
What is counter to the administration of justice?
A
(1) Suppressing evidence, (2) knowingly aiding a judge in judicial violations, and (3) even just implying undue influence on public officials, (4) knowing or recklessly making a false statement about the qualifications of judicial figures or public ministers of justice, (5) discrimination or harassment in practicing law.
4
Q
Which rules apply?
A
The jurisdiction where the offense occurs.
5
Q
What is the building block sentence for responding to professional responsibility questions?
A
The lawyer has a duty of ____ to ____ .
6
Q
What are the core duties owed to clients?
A
(1) Confidentiality, (2) loyalty, (3) financial responsibility, and (4) competence.
7
Q
What are duties owed to non-client entities?
A
(1) Candor, (2) fairness, (3) dignity and decorum.
8
Q
Other than clients, to whom do lawyers owe duties?
A
(1) Courts, (2) adversaries, (3) other lawyers, and (4) the public at large.
9
Q
What is a good mnemoic for the duties?
A
Clients love fierce council; courts feel differently.
10
Q
What does CLFC;CFD mean?
A
Duties to Clients:
Confidentiality, Loyalty, Financial Responsibility, Competence;
Duties to courts & other attorneys:
Candor, Fairness, Dignity & Decorum.
11
Q
How are lawyer-client relationships formed?
A
(1) Express, (2) Implied agreement, (3) court appointment.
12
Q
When is there an implied agreement with a client?
A
Attorney fails to decline when a person reasonably relies.
13
Q
Why can an attorney refuse service to clients?
A
To any client for any reason other than explicit discrimination. Sometimes an attorney must NOT represent.
14
Q
When should an attorney do pro bono?
A
There is no requirement, but it is encouraged to give 50 hours a year. A lawyer should not avoid being appointed without good cause however.
15
Q
When must an attorney decline or withdraw from representation?
A
Violations of the (1) rules of conduct or (2) some other law; or (3) incapacity to competently to represent; or (4) the lawyer is discharged.
16
Q
What are two additional requirements for in CA for client malfeasance justifying withdraw?
A
(1) acting without probable cause or (2) purpose of harassment.
17
Q
When may an attorney withdraw?
A
(1) Will not affect clients’ material interests, (2) good cause, (3) mutual withdrawal.
18
Q
What are some examples of “good cause” for withdraw or refusal? ✡️
A
(1) Persistent in fraudulent or criminal acts, (2) use of previous services to commit a crime, (3) failure by client to fulfill obligations after good notice, (4) unreasonable client, (5) client insists on repugnant action, (6) insistence on an action that imposes a financial burden on the attorney.
19
Q
When must an attorney continue representation even if the client wants to fire the attorney?
A
In a court-appointed representation.
20
Q
What does a client have a right to regardless of the client conduct at or leading to termination?
A
A client always has a right to receive their file and refund of money or property.
21
Q
What must a lawyer not do for the client?
A
Assist in any fraudulent or criminal conduct. This is different from informing them of the consequences of their action.
22
Q
What must the attorney do if the client insists on illegal conduct after being advised?
A
The attorney must withdraw.
23
Q
What must an attorney do for conflicts between federal and state law conflicts?
A
An attorney must inform the client of the conflict. e.g. Marijuana
24
Q
How may an attorney limit representation?
A
(1) If reasonable, and (2) client agrees in writing.
25
What must an attorney do when representing an organization?
Be clear in talking to individuals in the corporation that you represent the entity, not the individual regardless of their role in the organization.
26
What must an attorney do if there is a violation of the law by an individual?
The attorney must report the violation to a higher authority.
27
What must an attorney do if the highest authority fails to act to remedy illegal conduct?
The attorney is not required to do anything, but the attorney MAY report it outside the organization to the proper civil authorities. Except in CA.
28
When does California authorize outside reporting in an organization?
The attorney may withdraw, but may NOT report outside the entity.
29
What federal obligations of disclosure are put upon the general counsel in a corporation?
Disclosure of securities fraud to the SEC. However, in CA the counsel may still be liable for violating confidentiality.
30
What must an attorney do for a diminished client?
(1) Act towards them as normally as possible, or (2) take a protective action.
31
When may an attorney take a protective action for a diminished client?
If there is high likelihood of harm without taking action on their behalf.
32
What is the duty of competence?
(1) Knowledge, (2) skill, (3) thoroughness, and (4) diligence (5) reasonably necessary for representation.
33
What does CA have as a prerequisite for competence?
Mental, emotional, and physical capacity to be competent.
34
What must an attorney do if they are not an expert in a certain area of law?
(1) Withdraw unless (2) able to gain adequate knowledge quickly or (3) consult with another attorney or (4) in an emergency.
35
What are the liabilities of incompetence?
(1) Discipline from the bar, (2) disqualification in litigated matters, and (3) legal malpractice action.
36
When can a client bring a malpractice action?
Any incompetence even if the client is not harmed.
37
What is a violation of the duty of diligence in CA?
(1) Intentional, (2) repeated, or (3) reckless incompetence.
38
What is the lawyers duty of communcation?
(1) Explain the matter to the client to allow an informed decision, (2) reasonably inform them about the matter, and (3) promptly comply with all reasonable requests from the client.
39
What is the duty of communicating bargains or settlements?
You must communicate it to the client unless they have already explicitly previously decided.
40
When may an attorney withhold communication?
If doing so would reasonably lead to the client acting imprudently or harmfully and it must only be temporary. In CA it must involve a reaction producing imminent harm.
41
What does it mean to "inform" a client?
Adequately explaining the risks and benefits for alternative courses of conduct or probable outcomes.
42
What form of communication for informing a client is permissible?
Oral communication is permissible, so long as the attorney confirms their acknowledgment in writing.
43
What are the levels of informing consent?
(1) informed, (2) informed in writing, (3) informed and signed, and (4) informed and signed JUST for the diclosure.
44
What are the CA requirements for informed consent?
Informed in writing.
45
When do obligations to a client attach?
An attorney has obligations to prospective clients before a relationship is formed or even if that person never becomes a client.
46
What is the duty of confidentiality?
An attorney must not communicate anything related to the representation of the client without informed and written consent from the client.
47
What must an attorney do to preserve confidentiality?
An attorney must take reasonable steps to protect client information from any breach including electronic breaches.
48
When does the duty of confidentiality attach?
For all communications and matters regardless of whether the source of information or whether it would embarrass or harm the client.
49
What physical harms allow disclosure?
If the attorney reasonably believes the client will cause death or substantial bodily harm. In CA the attorney MUST first try to dissuade the client and warn them you will disclose unless it would be unreasonable to do so in the circumstances.
50
What financial harm sanction disclosure?
Reasonably certain to cause substantial financial loss if the client is using or has used the attorney's services and may be used even after to remedy. No similar CA exception.
51
What is the SOS exception to disclosure?
An attorney may disclose the information to defend against malpractice or in bringing a claim against the client.
52
What is the confidentiality ethics exception?
Under the ABA only an attorney may disclose some information to discuss the ethics of representation with another attorney.
53
What are the disclosure exceptions?
ABA & CA: (1) Physical harm, (2) SOS, (3) ethics [limited in CA], (4) court order; ABA only: (1) financial harm, (2) illegal conduct.
54
When may an attorney disclose in a court order?
After the attorney first attempts to appeal the order.
55
What is the scope of attorney-client privileges?
For individuals, only those relating to legal services. For corporations, only those relating to duties. Other personal or business advice may not be protected under a court order. Much narrower than the PR duty of confidentiality.
56
What are the types of conflicts?
(1) Unwaivable, (2) resolved with consent or other condition, (3) superficial conflicts.
57
What is the consequence of failing to handle conflicts?
(1) Disqualified if in litigation, (2) disciplined, or (3) civil liability.
58
What is imputation?
The conflicts that arise within a firm or office between clients of colleagues.
59
What are the exceptions to conflicts by imputation?
(1) Personal, and (2) prior clients.
60
When can a former representation be waived by imputation?
(1) With the consent of the client or (2) after screening and written notice to the former client.
61
What kinds of conflicts are significant?
(1) Material interests and (2) direct adversity.
62
What is direct adversity?
A client who is directly against another client in the same or another matter or the attorney themselves.
63
What is a material limitation?
(1) Lawyers personal interest, (2) duties to other clients or third-parties.
64
How may a conflict be waived?
(1) Lawyer reasonably believes they can diligently and competently represent the client, (2) representation is not prohibited by law, (3) no assertion of a claim against another client in the same proceeding in the same tribunal, (4) each client gives informed consent in writing.
65
What is required for informed written consent when waiving dual representation potential conflicts?
Without violating confidentiality, explaining the risks associated with representing both clients where there is a conflict.
66
What does CA require for informing a client?
(1) The informing written, (2) the consent in writing.
67
When can an attorney represent adverse clients?
It may only be permitted with informed written consent if it is not in the same matter.
68
When do conflicts tend to arise?
When multiple clients on one side of litigation are represented together and decide to file cross-claims against each other.
69
What must an attorney not do with a client when they have several clients?
Cross-examining one client on behalf of another client even if in different matters.
70
What is not sufficient for adversity?
Mere economic competition.
71
What is the CA special exception for insurance?
If an attorney is retained by an insurance company and represents the insurance company, but by statute, the lawyer has no duty of loyalty to the insurer when the insurer is merely an indemnity party.
72
How does CA differ from ABA for certain conflicts?
CA is more expansive to include any "intimate" partner or known person who may be involved with a witness.
73
What are the requirements for entering into a business deal with a non-attorney?
(1) Fair to client, (2) terms and lawyers role disclosed in writing, (3) client is advised in writing before entering into the arrangement, and (4) client gives informed written consent.
74
FDOC; First Discuss Over Coffee
For business deals with a client it must be:
| Fair to client; Disclosing risks; On paper; Consent.
75
What are the rules for receiving gifts?
Attorneys may not solicit substantial gifts for themselves or kin or prepare an instrument on behalf of the client for the attorney or a relative from any non-relative.
76
What gifts may an attorney give?
(1) Services to relatives, (2) necessary means for indigent clients so long as not used as a means to gain clients.
77
What CA rule applies to payments?
With client consent, an attorney may pay other parties.
78
What must be done for a setttlement with multiple clients?
If multiple clients, every client must agree and sign after informed written consent.
79
When may an attorney accept third-party payment for a client?
(1) No interference between paying party and client, (2) maintained confidentiality, and (3) informed written consent from the client.
80
When can an attorney settle with a former client?
After informed written disclosure to the other client with an opportunity to seek alternative council.
81
When may an attorney waive malpractice?
Under ABA: if in association with other representation;
| Under CA: never.
82
What are the limitations on media or literary rights?
An attorney may not claim them during representation, but it may seek the rights after. CA does not have a rule but will treat it as a business relationship with the same rules.
83
What are the CA limitations on proprietary interests (story rights) in litigation?
An attorney may obtain the rights as a contingency with appropriate informed written consent.
84
What is the rule on sexual relationships?
A lawyer may not represent a client and have sex with them unless the lawyer had a pre-existing sexual relationship. If an organization this applies to constituents of the organization.
85
What are non-imputed conflicts?
Sexual relationships are not imputed to colleagues.
86
When are matters substantially related?
Same transaction/dispute or if confidentiality violations may advance the interests of client.
87
How may a conflict with a former client by imputation be cured?
(1) screened, (2) no bonuses, (3) notice to the former client. In CA there must be no material representation of the former client.
88
What is the rule for conflicts with the government?
You must not represent a client if you substantially represented a government entity in a similar matter.
89
What is the limitation for representing private clients after working for a government?
Attorneys must not directly represent a client where the attorney gained confidential information about the client from the government.
90
What must be included in a contingency agreement?
Writing detailing (1) percentage, (2) how expenses will be deducted, (3) whether a fee is taken before or after expenses, and (4) what expenses the client will pay regardless of the outcome. In CA a client must be informed how.
91
What must an attorney do with client money?
Put it into a client trust account.
92
How can an attorney manage funds for multiple clients?
Put all of the clients' funds into a single account if small and deliver any earned interest to the state bar for helping indigent clients.
93
What must a lawyer do with disputed property?
The amount in controversy must be moved to an escrow account until the dispute is resolved.
94
How may attorneys split fees?
(1) informed written consent from a client after disclosure of (2) each attorney's fees, so long as (3), it does not increase the overall cost of representation. In CA the amounts do not have to be proportional and may involve referrals.
95
What must an attorney do when being a third-party neutral?
Inform both parties that as a neutral arbitrator or mediator the attorney is not representing either party.
96
What must an attorney do when they receive an unintentional disclosure by opposing counsel?
ABA requires notification or if in CA if it is a work product stop reading and notify the other council or judicial authority.
97
What is the nature of metadata in proper disclosures?
Fair game for any disclosure.
98
What are forbidden in legal ads?
No false or misleading statements such as omissions that lead to false impressions. Claiming certain certifications without having the certification.
99
What must an attorney include in an Ad?
The lawyer or firm in every communication with appropriate contact information.
100
What is the limitation on in person solicitation?
An attorney may not make a "live" solicitation for pecuniary gain. CA forbids electronic communications.
101
What are the exceptions to prohibitions on solicitation of legal clients?
(1) Friends & family, (2) other attorneys, (3) routine business users of this kind.
102
Can an attorney pay for referals?
Yes, under the ABA there must be no fee-splitting from referrals.
103
Who may not practice law?
(1) Unlicensed in that state, (2) disbarred people.
104
What is the unauthorized practice of law?
Any activities beyond the capacity of the average lay person.
105
When may an attorney work in a jurisdiction they have not been licensed?
(1) Pro hac vice admission, (2) relates to home law, (3) association with another attorney, (4) in-house counsel, or (5) authorized by law.
106
What is the nature of non-compete agreements for lawyers?
Generally prohibited.
107
What is the effect of a junior associate following a potential violation of the PR?
If it is an arguable question or grey area, that is acceptable and the senior attorney will be held responsible. A clear violation must not be done by the junior attorney.
108
What subjects an attorney to discipline under the ABA?
(1) Trying or violating RPC; (2) Criminal acts showing dishonesty, (3) Any dishonest conduct, (4) Stating or implying ability to improperly influence a government agency or official, (5) Conduct prejudicial to administration of justice, (6) knowingly helping judge violate rules or laws, (7) Harassing or discriminating in practice of law.
109
What subjects an attorney to discipline under CA?
Same as ABA, except CA adds to prohibition on harassment by (1) prohibiting unlawful discrimination on basis of protected characteristic, (2) permitting unlawful discrimination by anyone in the firm, (3) If subject to discipline they must notify State Bar of any related action against them for same conduct.
110
How is a lawyer-client relationship formed in both ABA & CA?
(1) Express agreement, (2) Implied agreement if reasonable to believe on part of client by lawyers action, (3) Appointment by court.
111
What is the ABA rule on avoiding appointment by the court?
Lawyers must not avoid without good cause such as: (1) Likely to violate RPC or other law, (2) likely to result in an unreasonable financial burden, (3) client is so repugnant it would impair lawyer-client relationship or ability of lawyer to represent.
112
What is the CA rule on accepting appointments by court?
No similar, but oath is to never reject for personal reasons the cause of the defenseless or the oppressed.
113
When must an attorney reject or withdraw a client under the ABA?
(1) Representation will violate RPC/law, (2) Lawyer's psychosomatic condition impairs ability to represent, (3) discharged by the client.
114
When must an attorney reject or withdraw from a client under CA?
Same as ABA plus, Client is (1) bringing an act, defense, or position in litigation without probable cause and (2) for purpose of harassing or maliciously injuring another.
115
What are the eight areas in the ABA an attorney may withdraw?
(1) Withdraw will not affect material interests, (2) client persists in criminal/fraudulent actions involving lawyers services, (3) client has used services to perpetrate a crime/fraud, (4) client fails to substantially fulfill obligations (re:pay) after reasonable warning of withdraw without compliance, (5) client makes it unreasonably difficult, (6) client insists on taking actions lawyer finds repugnant or fundamentally disagreeable, (7) unreasonable burden on lawyer, (8) other good cause.
116
How does CA rules differ for withdraw?
(1) No material affect to client is insufficient by itself, a client must also knowingly and freely assent. (2) No right for repugnant actions or unreasonable financial burden, (3) other named good causes.
117
What are some other named good causes in CA not specified in the ABA?
(1) Lawyer unable to work with co-counsel and would serve clients interest to withdraw, (2) psychosomatic condition of lawyer would make it "difficult" but is not enough to mandate withdraw.
118
Under the ABA what are the rules for selling a law practice?
(1) Entire practice OR field must be sold to one or more lawyers/firms, (2) seller must cease to engage in the private practice, either in the field or in geographic region/jurisdiction, (3) provide written notice to client with option to take files and go elsewhere, no response in 90 days is consent, (4) fees must not increase solely because of sale.
119
How does CA require for a seller of a law practice?
CA requires "all or substantially all" of the practice to cease, in CA a lawyer cannot just sell a field of practice, BUT seller is not prohibited from practicing law.
120
What does CA require of clients before sale of a practice?
Client written informed consent, but 90 day presumed consent still valid.
121
What is an exception to the ABA prohibition on practice after the sale of a law firm?
The seller may still serve in-house in a charity.
122
When do clients have final decision?
(1) Settlements, (2) please, (3) waiver of jury trial in criminal case, (4) if they will testify in a criminal case.
123
What may a lawyer do if a client is engaged in criminal/fraudulent conduct?
So long as they are not using services to perform the acts an attorney may inform the client of the legal consequences and in CA if the acts violate a court rule/ruling.
124
What must a CA lawyer due when there is a potential for illegal conduct due to conflicting laws?
Where there is a conflict between federal, state, or tribal law the lawyer must inform the client of the conflict.
125
What must a lawyer do to limit their scope of representation?
With the clients informed (written) consent.
126
What is the ABA rule for dealing with a client of diminished capacity?
Must try to maintain a normal relationship, but may have to take protective action if there is a reasonable belief client cannot protect themselves from substantial harm and may if necessary to reveal confidential info.
127
What is competence & diligence in the ABA?
Must act with legal and skill reasonably necessary. May become competent through preparation or consultation of other lawyers. May act in an emergency.
128
What is considered incompetence in CA?
An attorney must not "intentionally, recklessly, repeatedly, or with gross negligence" fail to perform services with reasonable competence. Unlike ABA, minor or isolated acts are more tolerable.
Competence also includes mental, emotional, and physical ability to reasonably necessary to perform.
129
What must a lawyer do to communicate in any jurisdiction?
(1) Explain to the extent necessary to make an informed decision, (2) keep client informed of all significant developments, (3) respond to all reasonable requests for information.
130
What must an attorney communicate in CA about liability insurance?
If the lawyer doesn't have insurance, they must inform the client (1) in writing, (2) at the time of the engagement, and (3) within 30 days of a lapse.
131
What is the CA exception to needing to inform about lacking liability insurance?
(1) Less than four hours, (2) government or in-house counsel, (3) rending services in an emergency.
132
How does CA differ from communications of plea bargains and settlement offers?
Lawyers must always promptly communicate to the client (1) a proposed plea bargain with all terms and conditions, and (2) all amounts, terms, and conditions of any written settlement offer.
133
When may an attorney withhold information from a client?
In ABA may delay if client would be likely to react imprudently to an immediate communication. In CA a delay is allowed only if the lawyer reasonably believes client would be likely to react causing imminent harm.
134
When may an attorney disclose confidential information when there is not an emergency?
In both jurisdictions (1) with informed consent or (2) disclosure is authorized as necessary to carry out duties.
135
What are the harm prevention ABA exceptions to confidentiality?
If disclosure of confidential info will reasonably prevent (1) certain death or substantial bodily harm or (2) crime or fraud reasonably certain to cause substantial financial loss by using lawyers services.
136
What are the harm prevention CA exceptions to confidentiality?
Only to prevent (1) a criminal act (2) likely to result in death or serious injury (3) after a good faith attempt to persuade client to refrain and (4) warning of disclosure.
137
What are the confidentiality exceptions in both ABA & CA for non-emergencies and non-client interests?
Disclosure of confidential info to collect a legal fee or defend in a legal malpractice suit or in compliance with a court order.
138
What are ABA exceptions that CA does not have for disclosures?
(1) To prevent fraud, (2) to seek legal ethics advice, (3) to detect or address conflicts of interest in an organizational change.
139
When does the attorney-client privilege end?
ABA: Perpetual even after death; CA: after client's estate is settled and personal representative is discharge.
