Professional Responsibility

Question 1

DUTIES TO CLIENTS

Answer 1

Competence
Diligence
Loyalty – conflict of interest
Fees
Duty to safekeep client property
Confidentiality
Communicate

Question 2

What is the duty of competence?

Answer 2

ABA L must have legal knowledge, skill, thoroughness and preparation reasonably necessary to represent C

Question 3

What is the duty of competence in CA?

Answer 3

[CA] L may not intentionally, recklessly, with gross negligence, or repeatedly fail to perform legal services with competence. Competence includes a duty to supervise work of subordinate L and non-L employees

Question 4

Can a lawyer gain competency and if so how?

Answer 4

L may gain competency by 1) associating w/ lawyer reasonably believed to be competent, or 2) acquiring sufficient learning and skill before performance w/o undue expense or delay. But L may advise or assist in a true emergency (e.g., impracticable to reach another L) to extent reasonably necessary

Question 5

Can competency be waived and if so under what circumstance?

Answer 5

Competency cannot be waived by client under any circumstances

Question 6

What is the duty of diligence and what does CA add to this duty?

Answer 6

L must act with reasonable diligence and promptness in representing C

L may not intentionally, repeatedly, recklessly or with gross negligence fail to act with reasonable diligence in representing C (“reasonable diligence” is commitment and dedication to C’s interests)

Question 7

What is the duty of loyalty?

Answer 7

Conflict of interest rules!

L may not accept or continue representation of C if

(1) the representation is directly adverse to another C’s interests (“actual” COI);
(2) there is a “significant risk” that representation of C will be materially limited by L’s responsibilities to another C or former C, or by personal interest of L (“potential” COI); or [CA]
(3) L has legal, business, financial, professional, or personal relationship w/ party or witness in same matter;

UNLESS L obtains informed written consent (IWC) from Cs, or L reasonably believes he can competently and diligently represent each C (IWC and reasonable belief required for any of (1) – (3))

Question 8

What is concurrent conflict of interest?

Answer 8

Exists where (1) or (2) above. L cannot represent C if there’s a concurrent COI with another C, unless L reasonably believes he can competently and diligently represent both Cs + each affected client gives IWC

Question 9

What is an imputed disqualification

Answer 9

One L’s COI disqualifies entire firm, unless it’s 1) due to L’s personal interest, 2) L is screened from participation in subject matter of former representation, given no fee, and former C notified in writing, or 3) L is leaving the firm

Question 10

What is a conflict of interest in business transactions?

Answer 10

L must not enter a biz transaction with C unless 1) terms are fair and reasonable to C and fully disclosed in writing, 2) C advised in writing to seek counsel, 3) informed consent in writing by C

Question 11

What is the rule on gifts from clients?

Answer 11

A lawyer cannot induce or solicit a substantial gift from a client. Cannot prepare an instrument giving himself a gift, unless L is related to client

Question 12

What is the rule on sexual relations with clients and what is different about it in CA?

Answer 12

L may not have sexual relation with C, unless existed before A-C relationship. L’s conduct not imputed to firm. If C is an org, rule applies to any constituent of org who supervises, directs, or regularly consults with L concerning org’s legal matters. [Consider COI (2) & (3) above.]

[CA] Same, unless C is L’s spouse or registered domestic partner

Question 13

Can there be a proprietary interest in C’s property under ABA and CA?

Answer 13

Allowed as lien to secure fees, reas contingency fee. [CA] Not allowed

Question 14

Can a lawyer loan a client money under ABA and in CA?

Answer 14

L cannot provide financial assistance to C in connection w/ litigation, except for advancing litigation expenses (repayment may be contingent on outcome), or paying litigation expenses for an indigent C

[CA] Same, plus L may lend money to C for any purpose if C gives written promise to repay

Question 15

How does conflicts of interest affect former clients?

Answer 15

If relationship w/ former C will “substantially affect” relationship w/ new C, must give written disclosure to new C.

1.“Substantially affect”: Law or facts overlap, or confidences of one would hurt one to help another

Question 16

What is the rule for fees under the ABA and CA?

Answer 16

Fees cannot be”

[ABA MR] “unreasonable”
or
[CA] “illegal or unconscionable”.

Factors include novelty and difficulty of legal issues, time limitation, nature of relationship w/ client, experience, contingency,

[CA: amount in proportion to value of services, relative sophistication of attorney and client, client’s informed consent to fee]

Question 17

What is the rule on fee agreements?

Answer 17

preferably in writing, except for regularly represented clients with same basis or rate

1.[CA] For non-contingency cases, writing required only if expenses reasonably foreseeable > $1k

Question 18

What are the rules to a contingency fee and when are they not permitted?

Answer 18

Contingency fee agreement must be in writing
1.
Not allowed for criminal or domestic relation cases (divorce, determining alimony/support, property settlement). [CA] Same

Question 19

When can a lawyer accept third party compensation?

Answer 19

May accept compensation from someone other than C only if

1) C gives informed consent
([CA] C gives informed, written consent (IWC)),

2) there is no interference with L’s independence of professional judgment or with AC relationship, and

3) C info is kept confidential

Question 20

What is the rule on retainer fees?

Answer 20

L may not keep unearned fees. L may recover unpaid fees if fired by C (not after withdrawal)

[CA] True retainer: L and C may agree in writing to non-refundable fee to ensure L’s availability

Question 21

What is the rule on referral fees?

Answer 21

Referral fees generally prohibited (except nominal gifts)

[ABA]. L may divide fees w/ another L (see § vi)

[CA] “Pure referral fee” permitted. L may be compensated without involvement in the matter

Question 22

Is fee splitting permitted and what is rule in CA?

Answer 22

must only happen between lawyers, and only if

[ABA]
1) division is proportional to work done by each lawyer,
2) C agrees in writing, and
3) total fee is reasonable

[CA]
1) Ls enter into written agreement,
2) C gives written consent,
3) total fee not increased

Question 23

What is the rule of California Arbitration?

Answer 23

C may elect arbitration of dispute of L’s fees, unless agreed in writing to mandatory arb

Question 24

What is the duty to safekeep property and what Bar has an exception?

Answer 24

Must keep funds in separate trust account. Commingling with L’s funds permitted to the extent reasonably necessary to pay bank charges. Any disputed portion must remain in the trust account

[CA] EXCEPTION: Advance flat fee may be deposited in operating account with written disclosure to C

If flat fee > $1k, agreement and notice to deposit are written and signed by C

Question 25

What is the duty of confidentiality?

Answer 25

L must not reveal information relating to the representation of C without informed consent of C

Question 26

What is the exception to the duty of confidentiality?

Answer 26

L may reveal to the extent L reasonably believes necessary to prevent reasonably certain death or substantial bodily harm

([CA] to prevent a criminal act that L reasonably believes is likely to result in death or substantial bodily harm, after dissuading C and informing C that info can be revealed),

prevent crime/fraud likely to cause substantial financial harm ([CA] N/A),

get ethics advice ([CA] N/A).

Suit against client (including to collect fees) ([CA] N/A).

Compelled by law or court order ([CA] N/A)

Question 27

What is the attorney- client privilege?

Answer 27

Evidentiary privilege that allows C to refuse to testify and prevent L from testifying in court about communications. Extends to preliminary consultation w/ L. EXCEPTIONS: C seeks services to enable future crime/fraud (compare w/ confidentiality exception), suit v. client, formerly joint clients, competency or intention of testator client, [CA: to prevent substantial bodily injury or death]

Question 28

What is the rule when an organization is a client?

Answer 28

L represents the organization and must conform representation to the idea that C is the org

Question 29

What is a rogue employee and what must an attorney do in response to one?

Answer 29

Rogue employee: When L knows that action of (rogue) officer or employee is likely to result in substantial injury to the org, L must proceed as is reasonably necessary in the best interest of the org

Reporting up: L must report to the higher authority (up to highest). If this fails, and there is substantial risk of harm to the org, L may reveal info relating to representation to extent necessary

[CA] L must not violate duty of confidentiality (except to prevent death or substantial bodily harm. If this fails, L has a right or may have duty to withdraw

Question 30

How does a lawyer interact with org’s constituents?

Answer 30

When L is dealing with org’s constituents (directors, officers, e’ee, members, s/h) and reasonably should know org’s interests are adverse to those of constituents (e’ee sues), L must explain C’s adverse interest

1.L must obtain consent of org’s counsel before communicating with a constituent of the org

Question 31

What is the duty to communicate?

Answer 31

L must communicate with and keep C reasonably informed of all significant developments in representation. If a settlement offer is made, L must convey offer to all Cs and get agreement (joint clients must agree on division of settlement)

Question 32

How must a lawyer respond to client’s instructions?

Answer 32

L must abide by C’s decisions regarding objectives of representation and reasonably consult with C as to the means pursued. L must abide by C’s decision on whether to settle, and in criminal cases, decisions on what plea bargain to enter, whether C will testify, whether to waive jury trial

1.L may limit scope of representation if reas. under the circumstances and C gives informed consent

L must not accept employment if he knows or should know the purpose of the suit is frivolous

1.Not considered “frivolous” to make a criminal prosecutor prove each element of a crime, however

Question 33

What does zealous advocacy entail?

Answer 33

w/in bounds of law: L may not advise (can explain) violation of law or file frivolous suit

1. Criminal defense: L may conduct a defense such that P must establish case beyond a reas. doubt

Question 34

When must an attorney withdraw?

Answer 34

if representation will result in violation of the rules or other law,

L’s physical or mental condition [ABA] materially impairs ability to represent client / [CA] renders it unreasonably difficult to carry out representation effectively],

or

L is discharged by C, or [CA] frivolous litigation (L knows or reasonably should know C’s action is without probable cause and for purpose of harassing or maliciously injuring a person)

Either for termination or withdrawal, need court permission if in proceeding before a court

Question 35

When is withdrawal permissive?

Answer 35

if: C insists on taking action L considers repugnant or has fundamental disagreement with [CA: N/A],

insists on pursuing criminal or fraudulent action,

representation will be unreasonably difficult,

C freely agrees to termination, or other good cause [CA: any of foregoing, or

C insists on action not warranted under existing law, or continued representation is likely to result in violation of these rules]

Either for termination or withdrawal, need court permission if in proceeding before a court

Question 36

What is the duty of withdrawing attny?

Answer 36

Notice and opp. to get other counsel, return unearned fees, return client files

Question 37

What is malpractice liability under ABA and CA?

Answer 37

Liability may not be prospectively limited,

[ABA] unless C is independently represented in the agreement. C needs written notice and reasonable opportunity to seek independent counsel before settling w/ L

[CA] Criminal Δ who sues a lawyer for malpractice must make a colorable claim of actual innocence
[CA] Will or trust: Intended beneficiary known to L may also hold L liable for malpractice

Question 38

What is a prosecutor’s duties to tribunal?

Answer 38

Criminal prosecutor duties:
Must have probable cause to bring charges,
make reasonable efforts to protect Δ’s right to counsel,
refrain from extrajudicial comments biased against Δ,
disclose mitigating evidence to Δ, and
[CA] when prosecutor knows of new evidence creating reasonable likelihood that Δ did not commit the offense, promptly disclose to court (if conviction was obtained in prosecutor’s jurisdiction, promptly disclose evidence to Δ)

Question 39

What is the duty of candor?

Answer 39

L has a duty not to knowingly (i) make a false statement of material fact or law, or fail to correct it, (ii) offer false evidence (including from witness or client), or (iii) fail to disclose controlling, directly adverse authority. L may refuse to offer evidence he reasonably believes is false or disclose adverse facts

Question 40

What is the duty of candor in relation to criminal defendants and false evidence?

Answer 40

Testimony of criminal Δ: If L reasonably believes testimony will be false, must still allow Δ to testify

False evidence: If L knows evidence will be false: Try to dissuade C, ask court to withdraw, or testify in narrative. If this fails, disclose false evidence to tribunal as reasonably necessary [CA] unless confidential

Question 41

What is the duty to preserve decorum?

Answer 41

L may not communicate ex parte with or gift a judge (except campaign contributions). L may not communicate with jurors during proceedings, seek to influence jurors, or harass jurors

Lawyer as witness: L may not advocate at a trial where L is likely to be a witness, UNLESS testimony relates to uncontested issue, nature and value of legal services, [ABA] substantial hardship on C, or [CA] L obtained IWC

Question 42

What is the duty of fairness to opposing party and what are the three specific duties?

Answer 42

L may not engage in dishonest conduct or trick the opposing party

Duty not to tamper with evidence: L may not alter, destroy, or hide evid. or witnesses from opposing party

Duty to produce incriminating evidence: L who receives incriminating evidence from C must turn it over

Can accommodate conflict w/ duty of confidentiality by refusing to disclose its source

Inadvertent disclosure: If L inadvertently receives confidential doc, must stop reading and notify sender

Duty to expedite litigation: L must make reasonable efforts to expedite litigation

Question 43

What is the California threat rule?

Answer 43

L may not threaten criminal, administrative, or disciplinary charges to gain advantage in civil case

Question 44

What are rules in regards to interacting with witnesses?

Answer 44

L may not bribe witnesses. L may provide reasonable expenses, reasonable lost wages, reasonable expert witness fees, but these compensations cannot be contingent on content of testimony

Question 45

What is the rule as to trial publicity

Answer 45

L may state to media re charges, defense, investigation exists, schedule, ask help, warn public danger

L may not make media statement if there is a substantial likelihood it will result in material prejudice

Question 46

What are rules as to third parties?

Answer 46

Represented 3P: L may not communicate about the matter with other party L knows is represented by counsel, unless 3P’s counsel consented and L does not intend to embarrass, delay or burden 3P; or unless legally authorized

Unrepresented 3P: L may communicate with 3P only if L does not imply impartiality, explains role if necessary, and does not give advice other than to get counsel if L knows C’s interests have reas. chance of being adverse to 3P

Question 47

What are the rules as to advertisement?

Answer 47

(generally allowed): L may communicate information regarding L’s services through any media. False or misleading communication containing material misrepresentation of fact or law are prohibited

Presumed violations: Communication delivered to potential C in a time of physical/mental stress, or delivered at accident scene, hospital, or healthcare center are presumed to be false and misleading, unless L proves otherwise; omitting a necessary fact; stating past result without disclaimer

[CA] Testimonials (unless disclaimer), guarantees, predictions, implied affiliations

L may communicate what he practices but cannot state or imply he is a specialist unless certified

Mailings seeking fee-paying work must be clearly labeled as advertisements

Question 48

What are the rules to solicitation?

Answer 48

(generally prohibited): L may not seek work for gain by in-person, live telephone, or real-time electronic contract, unless person contacted a lawyer, or has family, close personal, or prior professional relationship with L

Prohibited: Soliciting employment from prospect who indicated a desire not to be solicited

[CA] Runner/capper: Cannot give anything of value to a person for recommending L or services, or reward a person for a rec made that resulted in employment, except for reas. media cost

Referrals: L may arrange reciprocal referrals with another L or non-L professional if it is not exclusive, and L explains to C when making referral

Permitted: Targeted direct mail (unless L knows that prospective C does not want communications from L, L may send non-deceptive letters to persons known to face a specific legal problem (e.g., accident victims)), contact is a lawyer or has prior relationship with L (family, close personal, professional), lack pecuniary motive (pro bono), client-initiated call

Question 49

What is the rule as to bar admission?

Answer 49

On the application for admission to the bar, a member is prohibited from making a false statement of or knowingly fail to disclose material facts. May not further an application of one who he knows to be unqualified

Question 50

What is the vicarious liability of an attorney?

Answer 50

A lawyer must supervise subordinates and make reasonable efforts to ensure compliance

Supervisor is responsible for another lawyer if he
1) orders misconduct,
2) ratifies misconduct (approve after finding subordinate’s misconduct), or
3) fails to remedy (stop, prevent, dissuade)

Subordinate L is not protected from discipline, unless following supervisor’s directions that were a reasonable resolution of an arguable question of PR ethics. If supervisor is patently wrong, no protection

A lawyer having direct supervisory authority over a non-lawyer must make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer

Question 51

What are the rules as to sale of a practice?

Answer 51

A law practice may be sold, only if 1) notice to client (regarding sale, right to select own counsel), 2) confidentiality and COI rules still apply, and 3) fees do not increase because of sale

Entire ([CA] substantially all of) practice must be sold. Must cease practicing law in the geographic area

Question 52

Can an attorney form a partnership with a non-lawyer?

Answer 52

May not form a partnership with a non-lawyer if any activity of venture constitutes the practice of law

Question 53

What are grounds for discipline after admission?

Answer 53

A lawyer may not violate the rules or knowingly assist or induce others, or commit a criminal act or engage in conduct that reflects dishonesty

[CA] L may not commit felony, crime, or act involving “moral turpitude, dishonesty, or corruption”

Question 54

What is the duty to report misconduct?

Answer 54

If L knows of another L’s violation of rules ([CA] criminal act under CA law or conduct involving dishonesty, fraud, deceit, reckless/intentional misrepresentation, or misappropriation of funds) that raises substantial question as to honesty, trustworthiness, or fitness as lawyer, L must report to authority ([CA] State Bar)

EXCEPTION: No obligation to report if misconduct learned through confidentiality or privilege
[CA] Self-reporting required if sanctions > $1k, 3 suits were filed v. L w/in 1 year, or facing felony charges