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CA Bar Exam - Essays > Professional Responsibility > Flashcards

Professional Responsibility Flashcards

1
Q

`

PR Dating Profile (Lawyer-Client Relationship)

A

It’s a privilege to date me because:

I am competent, diligent, and loyal.

I’m great communicator, I won’t misunderstand you, you can say things in confidence to me.

I’ll safekeep your things, I’ll scope out your boundaries.

I’ll withdraw if things don’t work out.

  • Attorney-Client Privilege
  • Duty of Competence
  • Duty of Diligence
  • Duty of Loyalty
  • Duty to Communicate
  • Duty to Avoid Misunderstandings about Fees
  • Duty of Confidentiality
  • Duty to Safekeep Property
  • Scope of Representation
  • Withdrawal
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2
Q

Professional Integrity Mnemonic

A

“It’s fair to hold the public liable for unauthorized reports of ass”

  • Duty of Fairness
  • Duty to the Public/Profession
  • Liability for other lawyers’ misconduct
  • Unauthorized Practice of Law
  • Reporting Ethical Violations
  • Advertisements/Solicitations
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3
Q

Duty of Loyalty

A

A lawyer has a duty of loyalty to their client to put the interest of their client above all other interests and to avoid any conflicts of interest

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4
Q

Concurrent conflict of interest (generally)

A

A concurrent conflict of interest exists when:

  • (1) the representation of one client will be directly adverse to
    another client or
  • (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client, a third person, or by a personal interest of the lawyer
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5
Q

Exception to concurrent conflicts of interest

A

A lawyer may still represent the client despite a concurrent conflict if:

  1. The lawyer reasonably believes that they will be able to provide competent and diligent representation to each affected client without an adverse effect
  2. The representation is not prohibited by law
  3. The clients are not directly adverse
  4. Each client gives informed consent confirmed in writing
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6
Q

CA COI rule: no risk limitation (re: certain relationships)

A

Even if there is no significant risk that a relationship will cause the lawyer’s representation of the client to be materially limited, a lawyer must still provide written disclosure of the relationship to the client if:

  1. The lawyer (or another lawyer in lawyer’s firm) has any kind of relationship to a party or witness OR
  2. The lawyer knows/reasonably should know that another party’s lawyer is related to the lawyer, lives with lawyer, is in an intimate relationship w/ lawyer, or is a client of lawyer (or is a CL of another lawyer in lawyer’s firm)
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7
Q

CoI between two or more clients

CA: Insurance

A

Lawyers are permitted to represent both insurers and insureds when the insurer has the contractual right to unilaterally select counsel for the insured, resulting in no conflict of interest. This inherent conflict is deemed not so, by statute

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8
Q

CoI between two or more clients

Corporate/organizations client

A

A lawyer employed by an organization or corporation represents that org/corp and must act in the best interest of the org/corp

(lawyer may also represent the org and its officers - see other card for rule)

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9
Q

CoI between two or more clients

Representation of organization’s individuals

A

A lawyer may also represent the organization and its officers, directors, employees, shareholders, or other constituents if the requirements for the exception to represent those with concurrent conflicts are met

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10
Q

CoI between two or more clients

Reporting misconduct to a higher authority

A

If the lawyer knows that an officer, employee, or other person associated w/ org is engaged in (or intends to engage in) action that (CA: lawyer knows or reasonably should know) violates the law and is likely to result in substantial injury to the org, the lawyer shall report the matter up to a higher authority in the org, unless the lawyer reasonably believes that it is not in the best interest of the org to do so

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11
Q

What can a lawyer do if they report misconduct to org’s highest authority and the highest authority fails to act?

A

If the highest authority fails to take action and the lawyer reasonably believes the violation will result in substantial injury to the org:

  • ABA only: the lawyer may report out and reveal information, even if confidential, if such disclosure is necessary to prevent the injury.
  • CA: the lawyer may not report out and disclose information outside the org if it will violate the duty of confidentiality; rather the lawyer should urge reconsideration of the matter to the higher authorities within the org, resign from representation, or withdraw from representation, subject to the narrow exception below:
    • Exception for death/substantial bodily harm: the lawyer may report out if necessary to prevent a criminal act likely to result in death or substantial bodily harm
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12
Q

CoI between two or more clients

What is the rule re: aggregate settlement or guilty pleas when the lawyer represents two or more clients?

A

A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients or, in a criminal case, an aggregate agreement as to guilt or pleas, unless each client gives informed written consent

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13
Q

What are the CoI rules re: former government employees?

A

A lawyer who used to be a government employee shall not represent a client in connection with a matter in which the lawyer participated personally and substantially as a government employee, UNLESS the governmental agency gives informed written consent.

The same standard applies to lawyers who served as judges, adjudicative officers, law clerks, arbitrators, mediators, or other third-party neutral persons

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14
Q

What is imputed firm disqualification? Can it be waived by the client?

A

A conflict for one attorney in the firm is imputed to all other attorneys in the firm, resulting in their disqualification, unless:

  • The conflict is based on a personal interest of the disqualified lawyer and does not present a significant risk of materially limiting the representation by the other firm attorneys OR
  • the conflict is based on a former client at a prior firm, the conflicted lawyer is timely screened behind an ethical wall from any participation in the matter, and the former client is provided written notice and certifications of compliance with the screening procedures and CA only: the prohibited lawyer did not substantially participate in the same or a substantially related matter
    • A client can waive any imputed disqualification with informed written consent
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15
Q

What are the CoI rules re: when a lawyer leaves a firm?

A

When a lawyer leaves a firm, the firm may thereafter represent a person with interests materially adverse to those of a client represented by the formerly associated lawyer unless:

  • The matter is substantially the same and
  • Any remaining lawyer has confidential information that is material to the matter
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16
Q

What are the CoI rules re: compensation from third parties?

A

A lawyer shall not accept compensation from third parties to represent a client unless

  1. The client gives informed consent (CA requires informed written consent)
  2. There is no interference with the lawyer’s independent professional judgment or with the lawyer-client relationship and
  3. Information relating to the representation remains confidential
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17
Q

What are the CoI rules when opposing lawyer is lawyer’s relative?

A

When lawyers are closely related by blood or marriage, they must obtain informed consent before representing clients in the same or substantially related matters

  • CA: California follows the rule above but extends it, requiring written disclosures when one lawyer is a client of the other lawyer, two lawyers cohabitate, or two lawyers have a personal intimate relationship.
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18
Q

What is the CoI rule re: lawyer’s personal beliefs?

A

The lawyer may still represent the client despite any conflict with his personal beliefs, with full disclosure and informed written consent

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19
Q

What is the CoI rule re: sexual relations with clients?

A

the lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed before the lawyer client relationship commenced (CA: follows same rule but clarifies that the above rule does not apply to sexual relations with the lawyer’s spouse or registered domestic partner

  • CA defines sexual relations as including sexual intercourse or the touching of an intimate part of another person for the purpose of sexual arousal, gratification, or abuse
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20
Q

What is the CoI rule re: business transactions with clients?

A

A business transaction w/ a client:

  • must be fair and reasonable to the client
  • the terms must be fully disclosed in writing to the client (CA: also requires that the lawyer’s role in the transaction be fully disclosed in writing)
  • the client is advised in writing to seek independent counsel (CA: that the client is actually represented by an independent lawyer of the client’s choice) AND
  • The client gives informed written consent to the essential terms including whether the lawyer is representing the client in the transaction
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21
Q

What is the CoI rule re: solicitation of gifts?

A

solicitation of gifts from the client creates a conflict between the client and the lawyers personal interests

  • A lawyer shall not solicit any substantial gift from a client or prepare an instrument that gives the lawyer (or a person related to the lawyer) a gift unless the lawyer/person is related to the client.
  • California additional exception: a lawyer may accept a gift if the client has been advised by an independent lawyer who has provided a certificate of independent review OR if the gift is fair and there is no undue influence
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22
Q

What is the CoI rule re: proprietary interest?

A

a lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation unless to

  • Acquire a lien to secure the lawyer’s fees or
  • Contract with a client for a reasonable contingency fee in a civil case
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23
Q

What is the CoI interest rule re: financial assistance/advances to clients?

A

Providing financial assistance or advances to the client creates a conflict between the client and the lawyer’s personal interest

  • ABA only: a lawyer shall not provide financial assistance to a client in connection with litigation, with the exception of
    • Contingency cases:a lawyer may advancecourt costs and expenses of litigation in contingency cases, the repayment of which is dependent on the case outcome OR
    • Indigent clients: a lawyer can advance court costs and expenses of litigation on behalf of indigent clients
  • California rule: a lawyer may lend money to the client after employment, for any purpose, if the client promises in writing to repay the loan
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24
Q

What are the CoI rules re: limiting malpractice liability?

A
  • ABA only: a lawyer may not agree to limit their own liability to the client without advising the client unless client is represented by an independent counsel.
  • CA: CA rules do not allow a lawyer to prospectively limit liability to a client
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25
Q

What are the CoI rules re: settlement of claims?

A
  • a lawyer shall not settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking the advice of independent counsel and then is given a reasonable opportunity to seek the advice
    • CA: a lawyer shall not settle a claim or potential claim for such liability with an unrepresented client or former client unless they are represented by independent counsel)
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26
Q

Duty to Communicate

A

A lawyer has a duty to reasonably communicate with a client and keep them informed of the status of their case so that the client can make informed decisions.

CA: allows a lawyer to delay communication of information to a client if the lawyer reasonably believes that the client may cause imminent harm to the themselves or others

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27
Q

Scope of Representation

A

The lawyer must abide by the client’s substantive decisions after the lawyer has consulted with the client (ex: settle, plea, or wave jury trial; expenses, testify, appeal). The lawyer is responsible for employing the appropriate legal strategy (ex: motions, discovery, witness or evidence use, etc.)

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28
Q

ABA: Duty of Confidentiality

A

ABA: the lawyer shall not reveal info relating to the representation of a client, except the lawyer may in the following situations (“Cats And Dogs Can Cuddle, Sleep and Dream” - Consent, Authorized, Death, Crime, Comply, Secure, Defense):

  • The client gives informed consent
  • The disclosure is impliedly authorized to represent the client
  • The lawyer reasonably believes the disclosure is necessary to prevent reasonably certain death or substantial bodily harm
  • To prevent the client from committing a crime or fraud (or to mitigate or rectify a crime or fraud) committed by the client that has resulted/will result in substantial injury to the financial interests or property of another and the client has used the lawyer’s services to do so
  • To comply with a court order, ethics rule, or statute
  • To secure legal advice about the lawyer’s compliance with ethics rules OR
  • To establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, or in defense of the contact the client was involved in with the lawyer services (ex: defend malpractice, collect fees)
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29
Q

CA: Duty of Confidentiality

A

a lawyer shall not reveal information relating to the representation of a client without the informed consent of the client, except the lawyer may in the following situations:

  • When necessary to prevent a crime that would cause reasonably certain death or substantial bodily harm. However, the lawyer MUST first:
    • Make a good faith effort to persuade the client not to commit the crime
    • Inform the client of the lawyer’s ability to reveal the information AND
    • Only reveal as much information as necessary to prevent the crime
  • When compelled by law or court order
  • To establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, or in defense of the conduct the client was involved in with the lawyer’s services (ex: defend malpractice, collect fees)

[CA rule much stricter, provides fewer grounds permitting revealing confidential info]

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30
Q

Attorney-Client Privilege

A

Attorney-client privilege allows the client to keep confidential all communications with their attorney.

For the communication to be considered confidential, it (1) must have been intended to be confidential and (2) made for the purpose of facilitating legal services.

The client can refuse to testify and prevent his attorney from testifying.

  • Only applies to communications, not physical evidence turned over to lawyer.
  • Confidential communications: the communication must be intended to be confidential
    • The presence of a third party may serve to waive the privilege, unless where necessary (ex: translator, paralegal, etc).
  • California Evidence Code (CEC) only: allows holder to stop eavesdroppers and other wrongful inceptors from revealing confidential information.
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31
Q

For A-C Privilege, must the communication have been made for the purpose of facilitating legal services?

A

Yes, though a fee need not be paid

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32
Q

Who holds the the A-C privilege?

A

only the client holds the privilege and the lawyer may assert it on the client’s behalf

33
Q

Corporation/organization attorney-client privilege

A
  • Federal common law: federal common law applies to employees/agents if authorized by the corporation to make the communication to the lawyer
  • CEC: applies to employees/agents if the natural person to speak to the lawyer on behalf of the corporation, or the employee did something for which the corporation may be held liable and the corporation instructed her to tell its lawyer what happened (as applied, both FRE and CEC yield the same result)
34
Q

How long does the attorney-client privilege last?

A
  • Privilege lasts until:
    • Federal common law: after death with the exception of a will contest.
    • CEC: Privilege evaporates when the dead client’s estate has been fully distributed and their personal representative has been discharged
35
Q

When does the attorney-client privilege NOT apply?

A
  • The attorney-client privilege doesn’t apply if:
    • Lawyer’s services were used to further crime or fraud
    • Relates to a dispute between the lawyer and client
    • Two or more parties consult on a matter of common interest and the communication is offered by one against another
    • CEC only: lawyer reasonably believes the disclosure is necessary to prevent a crime that is likely to result in death or substantial bodily harm
36
Q

What is the difference between duty of confidentiality and attorney-client privilege?

A

DoC applies to communications that could reasonably result in the discovery of confidential info

A-C privilege is much more narrow, only applies when the lawyer or client will be testifying about confidential communications and it only applies to those communications pertaining to legal services

37
Q

ABA: regular fee agreement rules

A
  • ABA rule (reasonable fees): all fees must be reasonable considering the following factors [“TENT FLAW”]:
    • Time limitations imposed by the client or circumstances
    • Experience, reputation, and ability of the lawyer
    • Nature and length of the relationship with the client
    • Time and labor, novelty and difficulty, and skill required
    • Fee customarily charged in the locality for similar services
    • Likelihood that the acceptance will preclude other employment
    • Amount involved and results obtained and
    • Whether the fee is fixed or contingent
38
Q

CA: regular fee agreement rules

A
  • CA rule (not unconscionable): fees may not be unconscionably high based on the same factors as reasonableness above for the ABA as well as these additional CA factors [“Furry Dogs Satisfy Anxious Cunts” - Fraud, Disclose, Sophistication, Amount, Consent]
    • Whether the lawyer engaged in fraud or overreaching in setting the fee
    • Whether the lawyer failed to disclose material facts
    • Sophistication of both the lawyer and the client
    • The amount of the fee in proportion to the value of the services performed
    • Whether the client gave informed consent to the fee
39
Q

What should fee agreements state/identify?

A
  • How the fee is calculated
  • The general nature of the legal services, and the responsibilities of the lawyer and the client
40
Q

Is there a writing requirement for fee agreements?

A
  • ABA: writing is generally not required for a fee agreement unless it is a contingency fee
  • CA: requires all fee agreements to be in writing unless:
    • the fee is $1000 or less
    • The client is a corporation
    • The agreement was made during an emergency
    • The client waives the writing requirement in writing, OR
    • The legal services are of the same kind that the client has previously received and paid for
41
Q

Disputed fee

A

If a fee is disputed by a third person (usually a client’s creditor), the lawyer must hold separate the disputed portion of the funds until the claim is resolved

42
Q

Fee dispute arbitration

A
  • CA: requires a lawyer to submit to arbitration for fee disputes
  • ABA: only encourages lawyers to submit to arbitration for fee disputes
43
Q

Contingency fee agreement rules

A
  • A contingency fee agreement is one in which the fee is dependent on the outcome of the matter. Contingency fee agreement must:
    • Be in writing
    • Be signed by the client (CA: requires the agreement to be signed by both the lawyer and the client with each having a copy)
    • State the method by which the fee is to be determined, including percentages in the event of a settlement, trial, or appeal
    • State the litigation and other expenses to be deducted from the recovery and
    • State whether such expenses will be deducted before or after the contingent fee is calculated (CA: look at how disbursements and costs will affect the contingency fee and client’s recovery and if the client will have to pay any related matters not covered by the agreement)
  • CA: CA contingency fee rules further require that the agreement state that the fee is negotiable (unless the claim is for negligence against a healthcare provider, in which case, the first $50K can be 40%, the next $50K would be 33%, the next $50K would be 25%, and 15% for any excess beyond that)
44
Q

Are contingency fee agreements allowed for domestic or criminal cases?

A

a lawyer may not enter into a contingent fee agreement in a domestic relations matter (subject to a very narrow exception) or a criminal case

45
Q

Fee Splitting

A
  • ABA: Division of fees between lawyers who are not in the same firm may be made only if:
    • The division is proportionate to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation
    • Client agrees to the division and consents in writing AND
    • The total fee is reasonable
  • CA: Division of fees between lawyers who are not in the same firm may be made only if:
    • The lawyers enter into a written agreement to divide the fee
    • The client consents in writing after full written disclosure that the fees will be divided along with the identity of the lawyers and the terms of the division end
    • The total fee is not increased simply because of the division fees
46
Q

Can lawyers share fees with non-lawyers?

A

No, a lawyer may not share legal fees with a non-lawyer

47
Q

What is the rule re: “finder’s fee” or gifts?

A
  • ABA (does not allow finder’s fees of gifts): a lawyer shall not give anything of value to a person for recommending the lawyer’s services unless it is a qualified referral service that has been approved by an appropriate regulatory authority.
  • CA: allows a lawyer to make a gift of gratuity for a past recommendation resulting in employment if the gift was not offered or given as consideration of a promise, agreement or understanding that the referral would be forthcoming or continue in the future.
48
Q

What is the rule: referral fees between lawyers?

A

a reciprocal referral agreement between lawyers is permissible if it is not exclusive and the client is informed of the agreement. A lawyer shall not give anything of value to a person for recommending the lawyer services unless it is a qualified referral service that has been approved by an appropriate regulatory authority (CA: allows gifts for past recommendations that resulted in employment)

49
Q

Duty of Competence

A

A lawyer shall represent the client with the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

  • Additional CA duty of competence rules:
    • A lawyer must not intentionally, recklessly, gross negligently, or repeatedly fail to perform legal services with competence (lower standard than ABA rule)
    • A lawyer’s duty to act competently applies to learning and skill, and mental, physical, and emotional ability.
  • Both ABA and CA: Allow a lawyer to associate or consult with another competent lawyer, acquire the necessary skills to become competent before performance is required, or refer the matter to another competent lawyer
50
Q

Duty of Diligence

A
  • ABA: the lawyer shall act with reasonable diligence and promptness in representing a client
  • CA: a lawyer shall not intentionally, repeatedly, recklessly or gross negligently fail to act with reasonable diligence in representing a client
    • Reasonable diligence means that a lawyer acts with commitment and dedication to the interest of the client and does not neglect, disregard, or unduly delay a legal matter.
51
Q

Duty to safe-keep client’s property

A

A lawyer shall hold property of clients or third persons connected with representation separate from the lawyer’s own property

52
Q

What does it mean for a lawyer to safe-keep a client’s money? Where must the money be kept?

A
  • lawyer has a duty to keep client’s money separate and not commingle funds.
    • Client trust account: funds must be kept in a client trust account and lawyer must keep accounting records for five years
53
Q

What are the rules re: advance payments as they pertain to lawyers?

A
  • ABA: the lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred.
  • CA: A flat fee paid in advance may be deposited in a lawyer’s operating account if the lawyer discloses to the client in writing that the client can require the fees to be deposited in a trust account until the fee is earned and the client is entitled to a refund of any amount not earned
    • If the fee exceeds $1000 the client’s agreement to deposit the flat fee in the lawyer’s operating account needs to be in writing and signed by the client
54
Q

Do lawyers have to promptly pay clients any funds that are due? What about in regards to contingency agreement?

A

Yes. Lawyer must promptly pay the client any funds due (settlement proceeds, etc). But if there is a contingency agreement, lawyer may hold back the funds he reasonably believes he is due.

55
Q

What must a lawyer do if there is a fee dispute with a client?

A

lawyer must send any money not in dispute and leave disputed portion and trust account pending dispute resolution (CA: allows clients to have mandatory fee arbitration for fee disputes)

56
Q

Should a lawyer safe-keep a client’s physical property?

A

A lawyer shall hold a client’s or third party’s physical property that is connected with the lawyer’s representation separate from the lawyer’s own property. The lawyer must:

  • Identify and label the property
  • Put the property in a safe place and safeguard
  • Maintain a journal of the property, and
  • Not commingle the property with the lawyer’s own property
57
Q

Mandatory withdrawal

A

a lawyer shall withdraw from representation when

  • The representation will result in a violation of the rules of professional conduct or other law
    • CA: mandatory withdrawal applies when the representation will result in a violation of the rules of professional conduct, but not other laws
  • The lawyer’s mental or physical condition materially impairs lawyer’s ability to represent the client
  • The lawyer is discharged
  • The lawyer knows or should know that the client is bringing an action without probable cause or to harass or maliciously injure a person (CA rule only).
58
Q

ABA and CA rules re: Permissive withdrawal

A

a lawyer may withdraw from representation if:

  • ABA and CA permissive withdrawal: a lawyer may withdraw from representation when
    • The client insists on action involving the lawyer’s services that (per ABA lawyer reasonably believes) is fraudulent or criminal
    • The client has used the lawyer’s services to perpetuate a crime or fraud (CA says lawyer reasonably believed it was a crime or fraud)
    • The representation has been rendered unreasonably difficult by the client
    • The client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled
    • Other good cause exists
59
Q

ABA only rules re: permissive withdrawal

A

ABA ONLY permissive withdrawal: in addition to the rule above, ABA also permits withdrawal when:

  • The client has use the lawyer’s services to perpetuate a crime or fraud
  • The client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement OR
  • The lawyer can do so without material adverse effect on the interest of the client OR
  • The representation will result in an unreasonable financial burden on the lawyer
60
Q

CA only rules re: Permissive Withdrawal

A

CA ONLY permissive withdrawal: in addition to the common rules above, CA also permits withdrawal when:

  • The client insists on presenting claims or defenses that cannot be supported by good faith
  • The client knowingly and freely assents to the termination
  • Lawyer’s mental and physical condition make it difficult to continue
  • A continuation is likely to result in violation of the California Rules of Professional Responsibility OR
  • The lawyer is unable to work with co-counsel
61
Q

What is the lawyer’s duty to the client upon withdrawal?

A

when the court grants permission for withdrawal, the attorney shall protect the client’s interests and:

  • Provide the client with reasonable notice to allow time to seek other counsel
  • Surrender papers and property (the lawyer may retain a copy) and
  • Refund any advanced fees not yet earned
62
Q

What are the rules re: advertising?

A

Advertising allowed: advertising must not be false or misleading. A lawyer may advertise services through written, recorded or electronic communication, including public media, unless the prospective client has made it known to the lawyer of his desire not to be solicited. All advertisements must:

  • Be truthful. A lawyer shall not make false or misleading communications about the lawyer or the lawyer’s services
  • Contain the name and office address of at least one lawyer responsible for its content
  • Be labeled as advertising material: all written, recorded, or electronic communications must include the words “advertising material” on the outside of the envelope and at the beginning and end of any recorded or electronic communication. (CA: allows the word “advertisement” or similar words)
63
Q

Can lawyers engage in direct solicitation?

A

No direct solicitation: a lawyer may not conduct in-person, live telephone, or real-time electronic contact for pecuniary gain, subject to the following exceptions:

  • Free legal services
  • Family members
  • Clients and former clients OR
  • Truthful, nondeceptive letters, labeled as advertising material, to people known to have a specific legal problem
64
Q

What communications does CA presume to be in violation of advertising/solicitation rules?

A

CA: presumes the following communications to be in violation of the rules:

  • Express guarantees or warranties
  • Testimonials or endorsements without a disclaimer that it is not a guarantee, warranty, or prediction of results
  • “No fee without recovery” communications, unless it also states whether the client will be liable for costs (and any other statements that may be true but are misleading)
65
Q

What are the rules re: a lawyer advertising themselves as a specialist?

A

Specialists: a lawyer shall not imply or state that he is certified as a specialist in a particular field of law, unless:

  • The lawyer has been certified as a specialist by the ABA or a state-approved organization (CA: requires certification to come from an org accredited by CA State Bar) AND
  • The name of the certifying organization is clearly identified in the communication
66
Q

What is the rule re: the unauthorized practice of law?

A

No practice with a non-lawyer: a lawyer shall not practice with or form a partnership or association authorized to practice law with a non-lawyer

  • A lawyer shall not share legal fees with a non-lawyer
  • A non-lawyer shall not direct or control the lawyer’s professional judgment
67
Q

What is the rule re: liability for other lawyer’s conduct?

A

a lawyer will be responsible for another lawyer’s violation of the RPC if the lawyer knowingly ratifies the conduct, is a partner or has direct supervisory authority over the other lawyer and could have mitigated the consequences

68
Q

Duty of Fairness

A

A lawyer has a general duty of fairness to third parties, opposing counsel, and the court

69
Q

Duty of fairness to represented parties (party, witness, corp/org)

A
  • Represented party or witness: a lawyer shall not communicate with parties or witnesses known to be represented by another lawyer unless the other lawyer has consented or the communication is authorized by law or court order
    • Represented corporation/organization: a lawyer must obtain consent of organization’s lawyer before speaking with:
      • One who supervises or regularly consults with organization’s lawyer or
      • One who has the authority to obligate the organization regarding the matter at issue or
      • One whose conduct in the matter may be imputed to the organization
70
Q

Duty of fairness to the court

A

a lawyer shall not knowingly:

  • Make a false statement to the court or fail to correct a false statement of material fact or law previously made
  • Fail to disclose adverse legal authority or
  • Offer evidence that the lawyer knows to be false (perjury)
  • A lawyer who knows the client intends to engage in fraudulent or criminal activity shall take reasonable remedial measures, including, if necessary and permissible, disclosure to the court
71
Q

Duty of fairness to opposing counsel

A

A lawyer shall not:

  • Unlawfully obstruct evidence, or destroy or conceal (CA: includes suppress) documents or other material
  • Falsify evidence
  • Promptly notify the sender of any materials inadvertently sent to lawyer (CA: also states the lawyer should refrain from examining the writing to the extent possible)
  • Knowingly disobey the court rules
  • Allude to any matter the lawyer does not reasonably believe is relevant or will not be supported by admissible evidence during trial (CA: says not to assert personal knowledge of facts)
  • ABA: make a frivolous discovery request or fail to reasonably comply with discovery requests
  • ABA: request others to refrain from giving relevant information unless a relative or agent of client
  • CA: pay a witness to testify unless for reasonable expert fees, compensation for loss of time for witness to testify, or reasonable expenses incurred
  • CA: advise a person to secrete himself of leave the jurisdiction to avoid being able to testify
72
Q

What is the CA rule re: duty not to suppress evidence?

A

CA: prohibits a lawyer from suppressing any evidence that the lawyer or the lawyer’s client has a legal obligation to reveal or produce

73
Q

Duty of decorum to the tribunal

A

a lawyer shall not:

  • Seek to influence jurors, judges, or other officials
  • Communicate ex parte with such persons during proceedings
  • Engage in conduct intended to disrupt proceedings or
  • Communicate with jurors after they are discharged if they don’t want to communicate
74
Q

What are the rules re trial publicity? What must the lawyer not say because it’s likely prejudicial?

A

a lawyer shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be publicly disseminated and have a substantial likelihood of materially prejudicing the proceeding

  • A lawyer may state the claim, offense, or defense involved; information in public records; that an investigation is in progress; requests for information; warnings of danger; and the status of the accused in a criminal case
  • The following is likely prejudicial, and a lawyer may not publicly state the following:
    • Character, credibility, reputation, or criminal record of a party
    • Possibility of a guilty plea or contents of a confession
    • Opinion as to guilt or innocence of criminal defendant OR
    • Information the lawyer reasonably knows is likely to be inadmissible
75
Q

What are the rules re: the special duties of prosecutors?

A

Public prosecutors shall

  • Refrain from prosecuting charges that are not supported by probable cause
  • Make reasonable efforts to ensure the accused is advised of the right to counsel
  • Make timely disclosure to the defense of all exculpatory evidence
  • Refrain from making extrajudicial statements that have a substantial likelihood of heightening public condemnation of the accused and
  • Seek to remedy wrongful convictions
76
Q

Duty to report ethical violations

A
  • ABA: a lawyer who knows that another lawyer has committed a violation of the RPC that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer shall inform the appropriate professional authority
  • CA: permits, but does not require, the reporting of ethical violations
  • CA: requires lawyers to report themselves when a lawyer has been:
    • Sued for malpractice 3 times in 12 months
    • Found civilly liable for fraud, breach of fiduciary duty, etc
    • Sanctioned more than $1000
    • Charged with a felony
    • Convicted of a serious crime
    • Disciplined in another jurisdiction
77
Q

Duty to the public/profession

A
  • A lawyer should promote public confidence in the profession
    • No frivolous claims: a lawyer shall not bring or defend a proceeding unless there is a good faith basis in law and fact for doing so that is not frivolous
    • No criminal conduct: a lawyer shall not counsel a client to engage, or assist a client, in criminal or fraudulent conduct, but may counsel the client to discuss the legal consequences and assist them in making a good faith effort to understand the law.
  • CA rules
    • No harassing: CA prohibits a lawyer from seeking, accepting, or continuing employment to conduct a defense or a case without probable cause or for the purpose of harassing or maliciously injuring any person.
    • No threats: CA prohibits a lawyer from threatening to present criminal, administrative, or disciplinary charges to obtain an unfair advantage in a civil dispute.
78
Q

Relationship to a Party or Witness (CA)

A

A lawyer may not represent a client if the lawyer (or another lawyer at the same firm) has a relationship with, or resposibility to, a party in the matter UNLESS

(1) the lawyer reasonably believes they can provide competent and diligent representation and
(2) provides written disclosure to the client

The relationship can be legal, business, financial, professional, or personal

CA Bar Exam - Essays (7 decks)

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