Professional Responsibility

Question 1

Professional Responsibility Roadmap

Answer 1

1. A-C
2. Duty to Client
3. Duty to Profession
4. Duty to Opposing Party
5. Duty to the Court

Question 2

Duty to Client Outline

Answer 2

Fee agreements

Confidentiality
- Duty of confidentiality
- Lawyer Client Privilege
- Work Product Doctrine (CA)

Duty to avoid Conflict of Interest
- L-C, current clients, former clients

Duty of Competence
Duty of Diligence
Duty of Communication

Question 3

Duty to Profession Outline

Answer 3

Consequences for rule violation
Unauthorized practice of law
Association with nonlawyers
Providing law related services
Solicitation
Advertising
Duty to Supervise
Duty to Report Misconduct

Question 4

Duty to Opposing Party Outline

Answer 4

Duty of Fairness
Duty not to Contact Represented Party

Question 5

Duty to the Court Outline

Answer 5

Duty of Candor
Duty of Honesty
Trial Publicity
Duty to Jurors
Duty to Judge
Duties of a Prosecutor

Question 6

Formation of L-C relationship

Answer 6

In general, there is no duty to accept representation. However, there is a duty to reject if it would violate an ethical rule

CA Frivolous claim:

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.

The attorney also must not present a claim or defense that is not warranted under existing
law, unless it can be supported by a good-faith argument seeking a change in the law

Question 7

A-C relationship begins

Answer 7

when the client reasonably believes the relationship exists, and no formal writing is required

Question 8

Scope of Relationship: Settlement

Answer 8

Only the client has the authority to make the decision to accept the settlement.

The attorney must communicate all bona fide offers of settlement to the client. A lawyer
who agrees to a settlement without the client’s consent is subject to discipline.

Question 9

Scope of Relationship: Strategy

Answer 9

The attorney has the authority to make decisions about strategy for achieving the client’s
goals.

The attorney should reasonably consult with the client and keep him/her reasonably
informed about the case status.

Question 10

Scope of Relationship: Assisting client in criminal/ fradulent conduct

Answer 10

A lawyer must not counsel or assist the client in criminal or fraudulent conduct.

If the client is currently engaging in such conduct, the attorney must stop assisting the
client and withdraw from representation

Question 11

Termination of the relationship

Answer 11

A client has an absolute right to discharge (fire) a lawyer for reason or no reason. The lawyer
must withdraw if discharged, unless ordered to continue by a court.

Attorneys must follow ethical rules when terminating representation of a client.

Question 12

Mandatory withdrawal

Answer 12

• An attorney must withdraw if failure to do so would result in violating ethics rules or other
  law.
• A lawyer must not counsel or assist the client in criminal or fraudulent conduct.

Under CA

• A lawyer must withdraw if he knows/should know the client is asserting a
  claim/defense without probable cause and for the purpose of harassing or maliciously
  injuring a person.

Question 13

Permissive withdrawal (MR)

Answer 13

a lawyer can withdraw, even if harm will result, in a number of situations, including if:

-client engages in crime or fraud

• Attorney learns that the client used his services to commit criminal or fraudulent action

-The client insists on course of action that the lawyer finds repugnant or which the attorney has fundamental disagreement with;

• Client has made representation difficult
• unreasonable financial burden on the lawyer

Question 14

Permissive withdrawal (CA)

Answer 14

A lawyer is not permitted to withdraw merely because it may be done without material harm to client. A lawyer can withdraw when:

-The client insists on presenting a claim or defense not warranted under existing law
and which cannot be supported by a good-faith argument for an extension,
modification, or reversal of existing law;

• The client either seeks to pursue a criminal or fraudulent course of conduct or has used
  the lawyer’s services to advance a course of conduct that the lawyer reasonably
  believes was a crime or fraud;
• The client insists that the lawyer pursue a course of conduct that is criminal or
  fraudulent;
• The client, by other conduct, renders it unreasonably difficult for the lawyer to carry
  out the representation effectively; or
• A continuation of representation is likely to result in a violation of the CA rules or State
  Bar Act.

Question 15

Procedures for withdrawal

Answer 15

A lawyer must give the client reasonable notice before withdrawing, to give the client a
reasonable opportunity to find new representation.

A lawyer who wants to withdraw when litigation is pending must obtain court approval.

A court may order the attorney to continue representing the client if withdrawal would
materially harm the client’s case.

Question 16

Duties upon termination

Answer 16

Upon termination, a lawyer has a duty to minimize the harm to the client

The lawyer must return all papers and property to the client. This includes a duty to
safeguard the client’s property and papers from damage while they are in the
attorney’s possession.

MR

an attorney may retain papers in order to obtain payment in limited circumstances;

CA

require the return of all papers and property.

An attorney must also promptly return any advanced fees that were not earned.

Question 17

Fees

Answer 17

MR: a lawyer must charge fees that are reasonable under the circumstances

CA: fees must not be unconscionable

• if the fees will exceed $1,000:

The agreement generally must (i) be in writing, (ii) state the fees and services to be provided, and (iii) be signed by both parties; and

▪ A copy of the written contract, signed by both parties, must be given to the client or his/her
representative.

o A writing is not required if the client is a corporation.

o All contingency fee agreements must be in writing.

Question 18

Contingent Fees

Answer 18

Contingent fees are generally permitted under the Model Rules and CA Rules, but are not
allowed in (i) criminal cases or (ii) domestic cases when the fee is contingent on obtaining
divorce or on the amount of support recovered.

Requires:
(1) writing, signed by client
(2) Terms of calculating fees: and
(3) Expenses that clients are liable for

CA only: A duplicate copy of the agreement signed by the attorney and client must be provided
to the client at the time of signing. The agreement is voidable by. the client, but the attorney is entitled to a reasonable fee

Question 19

Fee Splitting

Answer 19

• Lawyers in the same firm may split fees
• Lawyers from different firms

MR: allowed if
(1) the fee is in proportion to the service provided by each lawyer
(2) the client agrees in writing to the fee-splitting ; and
(3) The total charged fee is reasonable
(4) the total fee must not be higher because multiple attorneys are working on the case

CA Rule: allowed if
(1) The lawyer entered in a written agreement to divide the fee
(2) the client has provided written consent after full disclosure of the fee splitting; and
(3) The total fee charged is not unconscionable

Question 20

Referral Fees

Answer 20

MR: generally prohibit paying someone for recommending a lawyer’s services,
unless paying the fees of a (i) legal services plan or (ii) approved lawyer-referral service.

CA: a lawyer may give a gift or gratuity for a referral, provided that the gift or
gratuity was not offered in anticipation of the referral or future referrals.

Question 21

Nonlawyers

Answer 21

Fees may not be split with non-lawyers and a partnership may not be made with nonlawyers if any of the activities include the practice of law

Question 22

Client’s Funds Accounts

Answer 22

No Commingling Funds

Question 23

Disputes over funds

Answer 23

If there is a dispute over the fees owed to the lawyer, the lawyer must distribute the
undisputed funds to the client and keep the disputed funds in the client’s trust account

Question 24

L-C Privilege

Answer 24

(1) the client must intend for communication to be confidential; and
(2) the communication must be for purpose of seeking legal advice and representation

MR: right is indefinite
CA: terminates when the client’s estate is settled and the personal representative is discharge

Exception:
MR: future crime/fraud
CA: future crime/ fraud + Death and substantial bodily harm

Question 25

Work Product

Answer 25

CA:

a writing that reflects a lawyer’s impressions, conclusions, opinions, or legal
research or theories is not discoverable under any circumstances

Exception: denial of discovery
will unfairly prejudice the party seeking discovery in preparing that party’s claim/defense or will
result in an injustice

Question 26

Duty of Confidentiality

Answer 26

1. A lawyer is prohibited from disclosing any information relating to the representation of a client, unless the disclosure is authorized by the informed consent of the client or impliedly
   authorized in order to carry out the representation
2. A lawyer must take reasonable precautions to safeguard confidential information from
   inadvertent/unauthorized disclosure to unintended recipients.

• extends to prospective clients

Exception:

MR: Death or substantial harm + Financial harm
CA: Death or substantial harm

Question 27

Conflict of Interest: L-C

Answer 27

MR: a lawyer must not represent a client if representation may be materially limited by the lawyer’s own interest, unless:
(1) the lawyer reasonably believes he can provide competent and siligent representation
(2) The representation is not prohibited by law ; and
(3) The affected client gives informed consent, confirmed in writing

Question 28

Conflict of Interest L-C: Personal Interest