Professional Responsibility Flashcards

Question

Fees

Answer 1

Fees must not be unreasonable (ABA) or unconscionable (CA) Relevant factors: (1) time and labor required, (2) hourly rate, (3) difficulty of the case, (4) lawyer's experience/reputation Writing requirement - Writing is preferred under ABA but not required. Writing is REQUIRED in CA if fees > $1000 unless ICHEW (Impracticable, Corporation, History of similar services, Emergency, Waiver by client). In CA - agreement must be in writing + (1) state fees, (2) state services to be provided, (3) and be signed by both parties.

Answer 2

Must be in writing and signed by client (and lawyer, in CA) Not permitted in criminal cases or domestic cases if fees is contingent on obtaining divorce or on amount of support recovered. Requirements: (1) basis and terms for calculating fee (2) expenses client is liable for (3) IN CA ONLY - must state that lawyer's fee is negotiable + whether client will have to pay for related matters not covered by contingent fee agreement Failure to comply - agreement is voidable by client, but attorney is entitled to a reasonable fee

Answer 3

(a) Lawyers in same firm - OK to split (b) Lawyers from different firms OK if (1) client agrees in writing to fee-splitting arrangement after full disclosure of arrangement terms (2) total fee charged in not increased due to fee-splitting ABA - (3) fee is split in proportion to services provided by each lawyer CA - (3) lawyers must enter into a written agreement at the time of client's consent (c) Fee splitting with non-lawyer NOT OK unless salary to staff or referral service (CA) (plus few more exceptions) Also remember, for fees generally, in CA fees must not be unconscionable and under ABA, fees must not be unreasonable

Answer 4

ABA - not allowed unless paying the fees of a legal services plan or approved lawyer-referral services. Nominal gifts may be allowed (be sure to analyze whether the fee is a gift or a referral fee) 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 Note - referral fees can take the form of money or gifts from an attorney to another person. Look for any form of payment to someone in exchange for referring a client

Answer 5

In CA, all funds received or held in benefit of clients (including advances) must be deposited in a identifiable bank account labeled "Trust Account," "Client's Funds Account" or something similar A lawyer must keep client funds and property separate from her own. Clients funds must be deposited into a separate client trust account. Exceptions: (1) Lawyer's funds may be deposited into the trust account to pay or avoid bank charges (2) An award belonging to both the lawyer and client can be deposited into the client trust account if promptly dispersed to the lawyer and client. TIMING: In CA, lawyer must inform client within 14 days of receipt of funds or other property

Answer 6

When there is a dispute, disputed portion must remain in client's trust account and undisputed funds must be sent to client

Answer 7

Lawyer must keep client's funds and property safe, and must pay or deliver items to which client is entitled to upon request.

Answer 8

Must keep records (client ledger and accounting) for 5 years after close of client's case.

Answer 9

Client must intend for communication to be confidential, and must be for purpose of seeking legal advice. Client holds privilege, but lawyer must assert on client's behalf. Termination: In ABA - privilege is indefinite In CA - terminates upon death of client and settlement of his/her estate. Exceptions (Fraud/Crime): Communications made when client seeks lawyer's services for client's fraud/crime (ABA) or anyone's fraud/crime (CA) (Disputes): Communications relevant to a dispute between the lawyer and client, between co-clients, or among a deceased client's heirs are not privileged

Answer 10

In CA - writing that reflects a lawyer's mental impressions, conclusions, legal theories, or opinions is not discoverable under any circumstances (absolute privilege) Other lawyer work (i.e. transcripts from interview with witness) product only discoverable if denial of discovery would unfairly prejudice party seeking discovery or will result in injustice

Answer 11

Lawyer is prohibited from disclosing any information relating to the representation of a client unless (1) disclosure is authorized by the informed consent of the client, or (2) disclosure is impliedly authorized in order to carry out representation. Lawyer must take reasonable steps to prevent inadvertent or unauthorized disclosure Exceptions (permissible, not compulsory): (1) Death or substantial harm (ABA - to prevent reasonably certain death or substantial harm by anybody; CA - to prevent CRIMINAL ACTS reasonably certain to cause death or substantial harm, BUT ONLY AFTER good-faith effort is made to persuade client to not commit crime, and after informing client of attorney's ability to reveal information) (2) Financial harm (ABA only - if necessary to prevent client from committing crime/fraud that will cause substantial injury to financial interests of another) Duty is also owed to prospective clients unless (1) no good-faith intention to retain lawyer, (2) communication is made after lawyer declines representation, (3) when there is no reasonable expectation lawyer will accept representation

Answer 12

Lawyer may not represent a client if representation may be materially limited by client's own interests, unless: (1) lawyer reasonably (objectively and subjectively) believes he/she can provide competent and diligent representation (2) representation is not prohibited by law, and (3) client gives informed consent confirmed in writing (ABA) or informed written consent (CA) Situations (all require written disclosure to client, that representation not be prohibited by law, and reasonable belief that diligent and competent representation may still be provided): (1) opposing lawyers related (both clients need to give informed consent because both lawyers would have COI with their respective clients) (2) relationship to a party or witness

Answer 13

Lawyer owes a duty of loyalty to client. When a conflict of interest exists, the lawyer may be in breach of the duty of loyalty. A conflict of interest may arise between the lawyer and the client, current clients, current and prospective clients, current and former clients, or between current clients and third parties.

Answer 14

prohibited unless a consensual relationship already existed prior to formation of Lawyer-Client relationship (client cannot consent to conflict, it's a general ban)

Answer 15

Lawyer cannot act as a necessary witness in an action unless (1) testimony relates to an uncontested issue, OR (2) testimony relates to nature and value of legal services provided by lawyer, OR ABA - (3) disqualification of lawyer would work substantial hardship on client CA - (3) client provides written informed consent

Answer 16

Interest in Litigation - ABA - lawyer cannot have a proprietary interest in subject matter of litigation unless (1) contingency fee, or (2) lien to secure payment CA - no equivalent rule Financial assistance - ABA - lawyer may NOT provided financial assistance to client if made in connection with ongoing litigation (exception = lawyer may advance litigation costs, and it is ok to only have client pay back costs on a contingency fee basis; indigent clients do not need to repay) CA - Cannot pay personal or business expenses of prospective or existing client (but lawyer may advance litigation costs) Business transactions with client - Lawyer may not enter into a business transaction with a client or knowingly acquire an adverse interest to client unless: (1) terms are fair and reasonable (2) client is advised in writing and given reasonable opportunity to seek independent counsel (3) client provides written informed consent after being fully disclosed on terms

Answer 17

A lawyer may not provide representation to a client if (1) doing so would be directly adverse to the interests of another current client, or (2) there is a significant risk representation would be materially limited by the lawyer's responsibilities to the other client, unless: (a) lawyer reasonably (subjectively and objectively) believes she will be able to provide competent and diligent representation, (b) representation is not prohibited by law, (c) the representation is not for parties on both sides of the same litigation or proceeding, and (d) client gives written informed consent (CA) or informed consent confirmed in writing (ABA).

Answer 18

A lawyer may not represent a client in a matter that is the same or substantially related to a matter for which the lawyer provided services to a former client if their interests are MATERIALLY ADVERSE to each other unless ABA - informed consent confirmed in writing CA - informed written consent from FORMER client

Answer 19

A lawyer cannot represent a client with interests materially adverse to those of a prospective client in the same or substantially related matter if CA - the lawyer received MATERIAL CONFIDENTIAL information from the prospective client ABA - the lawyer acquired information from the prospective client that could be SIGNIFICANTLY HARMFUL to the prospective client unless both give informed consent confirmed in writing (ABA) or informed written consent (CA)

Answer 20

A lawyer may not accept payment from a third party unless: (1) there is no interference with the lawyer's judgment (2) lawyer-client confidentiality is preserved (3) client gives informed consent (ABA) or informed written consent (CA)

Answer 21

Lawyer representing entity owes a fiduciary duty to entity, not its constituents. Lawyer may represent constituents as well if there is no conflict (apply rule for COI between current clients) Organizational misconduct: - upon learning of misconduct, lawyer must proceed in best interests of organization. Reporting Within vs Reporting Outside (see other cards)

Answer 22

When a lawyer knows that an action of an agent of the organization is illegal or likely to cause substantial injury to the organization, lawyer must: (1) urge individual to reconsider, (2) report misconduct to highest authority in the organization Must always act in best interest of organization.

Answer 23

If the action is a clear violation of law and the entity fails to act after the lawyer has exhausted internal remedies: ABA - lawyer MAY disclose misconduct outside of the organization to prevent substantial injury to the organization CA - lawyer MAY NOT disclose confidential information (unless death/substantial bodily harm exception applies), but may withdraw if client persists in illegal conduct likely to cause substantial injury

Answer 24

A lawyer must not seek to influence a judge, a prospective juror, a juror, or other official by means prohibited by law

Answer 25

Evidence - A lawyer must not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy, or hide a document/material, or counsel/assist another person in doing so.

Answer 26

A lawyer must not falsify evidence and may not counsel a witness to testify falsely or assist a witness in testifying falsely. False evidence - a lawyer may not knowingly offer false evidence and may refuse to submit evidence she reasonably believes is false If a lawyer learns about false evidence before or after it has been presented, the lawyer must take reasonable remedial measures: - must urge client to withdraw false statement/evidence - may ask court to withdraw representation - ABA - if request to withdraw representation is denied, must notify court of false evidence even if it would disclose confidential information - CA - lawyer cannot disclose confidential info under any circumstances Criminal Ds - if Criminal D refuses to correct false statement lawyer MUST withdraw under ABA (though withdrawal is optional under CA) - If withdrawal is denied, CA - can allow D to testify about falsehood in narrative form MR - must disclose false evidence to court even if it reveals otherwise protected information

Answer 27

A lawyer is not permitted to make an out of court statement that he knows/should know (i) will be distributed publicly and (ii) will have a substantial likelihood of materially prejudicing the court proceeding. General facts about the case, such as the claims and identity of the parties, may be discussed publicly. However, a lawyer may make a statement to protect a client from the prejudicial effect of publicity that was not initiated by the attorney or client

Answer 28

- A prosecutor must not prosecute a charge that he knows is not supported by probable cause. - A prosecutor is required to timely disclose all exculpatory evidence and information that tends to disprove guilt or mitigates the offenses. - New evidence: The prosecutor must disclose any new, credible evidence creating a likelihood that a convicted defendant did not commit the offense.

Answer 29

Under MR, a lawyer related to another lawyer (parent, sibling, spouse) may not represent a client in a matter in which the other lawyer is representing another party unless client gives informed consent Under CA, a lawyer may not represent a client in a matter in which the other party's lawyer is a relative, lives with the lawyer, is a client of the lawyer, or had an intimate personal relationship with the lawyer, unless informed written consent is obtained.

Answer 30

A lawyer may not assert personal knowledge of facts in issue except when testifying as a witness.

Answer 31

May compensate expert witness fees based on reasonable rate. May also advance as part of costs and expenses of litigation

Answer 32

ABA and CA allow for reasonable compensation to be paid to expert witnesses. That may encompass gifts so long as the gift was reasonable and not provided with the intent of eliciting favorable testimony.

Answer 33

A lawyer is not permitted to (1) make a frivolous discovery request or (2) fail to make a reasonably diligent effort to comply with a proper discovery request.

Answer 34

Under the ABA, any COI that arises from a lawyer's association with a prior law firm will not be imputed to the lawyer's new firm if (1) the disqualified lawyer is timely screened for the matter and is apportioned no party of the fee, (2) written notice is given to any affected former client, and (3) certification of compliance with ethical rules and screening procedure is provided to former client at reasonable intervals Under CA, will not be imputed if (1) L did not substantially participate in previous matter, (2) L is properly screened and given no portion of fee, and (3) written notice is provided to former client Main difference - in both, need to provide written notice to client, and need to screen/give no apportionment of fee Under ABA - OK even if L substantially participated; but also need to give regular updates on screening Under CA - screening does not protect if L substantially participated

Answer 35

A prosecute must not prosecute a charge that the prosecute knows is not without probable cause

Answer 36

May not make extrajudicial statements that have substantial likelihood of heightening public condemnation of accused

Answer 37

A prosecutor must ensure that the defendant is accorded all constitutional rights

Answer 38

Prosecutor must make share that client is advised of right to counsel

Answer 39

A prosecutor is required to timely disclose all exculpatory evidence and information that tends to disprove guilt or mitigates the offenses. New evidence: The prosecutor must disclose any new, credible evidence creating a likelihood that a convicted defendant did not commit the offense.

Answer 40

A lawyer is not permitted to make an out of court statement that he knows/should know (i) will be distributed publicly and (ii) will have a substantial likelihood of materially prejudicing the court proceeding. But can correct prejudicial effect of publicity not initiated by lawyer or client Out of court statements are more likely to be prejudicial in criminal proceedings Lawyer may discuss general facts of the case

Answer 41

Under the ABA and CA, a prosecutor must exercise reasonable care to prevent persons under the prosecutor's supervision or direction - including law enforcement personnel or employees, from making public extrajudicial statements that the prosecutor would be prohibited from making

Answer 42

A lawyer is not permitted to communicate ex parte with a judge unless for logistical matters or emergency communications

Answer 43

- Lawyer may not enter into a business transaction with a client or knowingly acquire an adverse interest to client unless: (1) terms are fair and reasonable (2) client is advised in writing and given reasonable opportunity to seek independent counsel (3) client provides written informed consent after being fully disclosed on terms

Answer 44

Lawyers who employ agents to monitor accidents and other events likely to produce legal work and to solicit business for the lawyer are subject to discipline. In CA, the use of runners is a criminal violation