Professional Responsibility Flashcards
1
Q
Sources of Law for Lawyers
A
- CRPC and COPRAC opinions
- Business and Professions Code
- ABA model rules and opinions
- Evidence Code
- Case law
2
Q
Questions to analyse an ethical dilemma
A
- Does conduct violate an ethical rule?
- Does conduct violate another lawyer obligation?
- Is the law firm subject to civil liability?
- Are conflicts between different ethical rules?
- How would you resolve the issue?
3
Q
What do you do if you don’t have competence?
A
- Acquire it - educate yourself
- Consult with others
- Refer to someone else
- Decline representation
4
Q
Rule on Competence
A
- A lawyer shall provide competent representation. Requires knowledge, skill, thoroughness and preparation.
- In California, a lawyer shall not intentionally, recklessly or with gross negligence be incompetent
5
Q
When a lawyer receives a referral fee from another lawyer?
=> FEE SHARING
A
- Both must be written.
- ABA is more strict. Lawyers can split fee anyhow under a joint representation. If not using joint rep, fees must be proportional to work lawyers did. Both lawyers must do work. Unconscionable or unreasonable fees are banned.
- Cali is less strict. No joint representation required. Fee does not have to be fair to lawyers and lawyer can do referral service. Only unconscionable fees banned.
- Lawyer cannot raise price to factor in referral fee.
6
Q
What happens if a lawyer makes a referral to a negligent lawyer?
A
- ABA Model Rules do not explicitly state a “negligent referral” rule, but concept is covered under competence rules.
- Law protects clients from themselves so it would look at WHO IS IN A BETTER POSITION BETWEEN THE LAWYER AND CLIENT!!
- Lawyers have knowledge about the risk, so they cannot allow a client to consent to incompetent representation.
- Rationale is to protect the client. We are not worried about protecting the lawyer. The ABA rules do not want to encourage a business model where lawyers just refer each other. They might not do legal work and simply just refer. California feels lawyers should have this freedom.
7
Q
What happens if a lawyer falls asleep during a trial?
A
- Lawyer can fail to be mentally competent or diligent. Only liable for malpractice if there are damages to the client. The defendant must show that that conduct prejudiced them - trial’s outcome would have been different
- Malpractice claims generally come from unmet expectations or lack of communication.
8
Q
When does a lawyer’s fiduciary duties to a client begin?
A
Fiduciary duty generally begins after attorney-client relationship has been established, not before.
9
Q
What does civil liability look like for a lawyer?
A
- Elements of a negligence claim are Duty of an attorney-client relationship, breach of standard of care, causation, damages.
- For a motion for summary judgment, you have to show that there was no possible way to show attorney-client relationship so the case goes away. If you lose the motion, it goes to trial and you consider settling or going to trial
10
Q
What duties are owed to prospective clients?
A
- Prospective clients are entitled to confidentiality.
- When the lawyer affirmatively states in advance that he is not willing to represent the prospective client, the client can no longer expect confidentiality
- A non-client client spoke to a lawyer about suing his own former lawyer, which was their current client. They had to keep that info confidential
11
Q
Does talking to an audience about the law form a lawyer-client relationship?
A
Talking to a panel does not form an attorney-client relationship with everyone since it is general advice. Legal advice is when you apply it to a person’s situation
12
Q
Test for Attorney-Client Relationship
A
- Did the client seek advice from the lawyer?
- Was it within the lawyer’s area of competence?
- Did the lawyer, either directly or implicitly, agree to give the requested advice?
13
Q
Ways to form accidental attorney-client relationship?
A
- Accommodation clients - lawyer represents an added person along with regular client
- Self-help websites going too far
- Ghostwriting complaint without putting name on it as lawyer must first investigate facts to ensure it is not frivolous
14
Q
Can a lawyer accept payment from a third party?
A
- Yes. but the lawyer must still exercise independent professional judgement and the person is not part of the privilege
- Attorneys’ fees agreements are confidential in California
15
Q
Lawyer vs client’s role
A
- Clients decides on the objectives of representation.
- Lawyer consults with client on to the means by which they are to be pursued.
- Client decides on goals, outcome, appeal, settlement, plea, jury or bench trial, whether to testify
16
Q
What kind of fees are banned?
A
Unreasonable fees for clients
- Excessive fees are to be determined on a case-by-case basis, taking into account the circumstances of both parties.
- Courts look at if one took advantage, bargaining power and unfair terms
- In one case, lawyer could not charge client on time to acquire competence and education
- A fee agreement can be reevaluated if circumstances significantly change
- Lawyers can obtain an ownership interest instead of cash but it cannot be significant like 10%
17
Q
Are contingency fees allowed?
A
Yes but not in criminal cases or divorce/alimony/property settlement unless there is a child support in place already and person wants to go to trial.
- A contingency fee with no risk is not allowed.
- In medical cases, contingency percentages must decrease as the award increases.
- To be enforceable against a client, Contingency fees must be in WRITING in order to be paid
- Lawyers cannot acquire a proprietary interest in the cause of action. Contingency fee is exempt.
18
Q
Are written fee agreements confidential?
A
Written fee agreements are confidential if you are not operating in a public sphere but if you are working in public sphere or with public entity, FOIA applies and no confidentiality
19
Q
Types of Fee Arrangements
A
- Hourly fee - most common
- Flat fee - fixed amount for specific services
- For FLAT fees and HOURLY fees, Client gives a deposit against future billings. Lawyer receives money and puts in a client trust account. Each month or whenever, the lawyer will send the client a bill and if the client agrees, the lawyer will take money from account and put it in their account. - Contingency fee - based on an uncertain event
- Retainer Fee - Payment for access to the lawyer. Like reservation at a restaurant. Payment for the lawyer to agree to take the client’s case
- In California, if a client pays a retainer fee and does not use lawyer’s services, they must be refunded unless they specify to the client that it is a true retainer fee that goes into their account not the client trust account and it is earned on receipt.
20
Q
What are the rules on hiding evidence?
A
- Lawyer cannot knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made.
- Lawyer can obstruct access to evidence or hide, change or destroy evidence. They can take temporary possession to do a limited exam.
- If lawyer offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take REASONABLE REMEDIAL MEASURES, including, if necessary, disclosure to the tribunal.
- Evidence belongs to both parties and you have to inform your client of your decision to turn the gun in. If they wanted to dispose of the evidence, you have to counsel them not to do it.
- If they walk away with the evidence, everything is confidential. Optional in California to disclose if they say they are going to harm someone else.
- If the client tells lawyer where they hid evidence, lawyer can keep that information confidential as long as they DID NOT TOUCH it. No longer privileged when lawyer removes or alters evidence.
21
Q
What are the ABA exceptions to confidentiality?
A
LAWYER MAY –> OPTIONAL
1. Prevent reasonably certain death or SBI
2. Prevent client from committing crime/fraud that will likely harm someone’s financial interests or property
3. Seeking advice on complying with ethics rules
4. Defend themselves from controversy between the lawyer and the client in a civil or criminal charge
5. Law or court order
6. Detect and resolve employment conflicts of interest that does not compromise attorney-client privilege
7. Report up the ladder
8. Diminished capacity
22
Q
What are California’s exceptions to confidentiality?
A
- Prevent CRIMINAL act reasonably certain death or SBI for both confidentiality and privilege.
- Lawyer must make good faith effort to DISSUADE client AND INFORM client of lawyer’s decision to disclose. Disclosure should not be more than necessary.
- The self-defence and crime/fraud exception only applies to privilege.
- Crime/fraud exception does not apply to cannabis.
23
Q
Where does confidentiality come from?
A
- It comes from con law, contract law and fiduciary duty.
- It covers information relating to the representation.
- It does not matter how and what form. It includes your observations about your client
- Lawyers are also obliged to label written communications with an appropriate description.
- Lawyers should argue that their refusal to speak is consistent with the privilege and, if the lawyer is subject to an adverse
decision on the issue, to seek if at all possible appellate review, including suffering a possible contempt citation
24
Q
What does attorney-client privilege cover?
A
- Confidential communications between attorney and client for purposes of legal advice.
- It also applies to ADMINISTRATIVE settings
- If a client gave lawyer auto maintenance record, it would not be privileged as it was prepared for the purpose of securing legal advice. It was only presented to secure legal advice.
- An email can be privileged regardless of whether it is marked as a confidential communication since it was not shared with others.
- Your own observation of client’s driving can be privileged
- If the client’s whole family is there while the clients is telling secrets, the lawyer must still keep it confidential but it is not privileged so they may be called to testify about it.
25
How does the duty to communicate look like?
A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
26
When does confidentiality for a former client end?
- Never
- Lawyers can also get the client's or their personal representative's permission to snitch after they die.
27
Can a lawyer disclose confidential info to hired experts?
- In ABA formal opinion, there is implied permission to disclose certain info w/o client consent but this is just an opinion. Best to follow confidentiality
- The consulted person should ask the consulting attorney to waive any conflicts of interest or agree to an ethical screen.
- In California, there is no exception. Confidentiality still applies so use hypotheticals.
28
Can a lawyer form a partnership with a nonlawyer?
NO
- A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law.
- Concern that non-lawyers in MDPs might be compelled by law or subpoena to divulge information that a lawyer would not be allowed to divulge due to client confidentiality.
MUST NOT
29
Can lawyers share legal fees with a nonlawyer
Lawyers cannot share legal fees directly or indirectly with a nonlawyer or with an organization that is not authorised to practice law.
- A lawyer could hire an accountant separately and pay him a set rate an hour and 15% of the profits
30
Work-Product Privilege
- “Work product” covers lawyers' impressions, conclusions, and strategies during the preparation of a case. They are immune from discovery by the other side.
- intended to preserve a zone of privacy
in which a lawyer or other representatives of a party can prepare and develop legal theories and strategy
31
What are some digital competency rules?
- Protect client information - Encryption helps prevent unauthorized access or disclosure. Recommended for highly sensitive stuff
- Sending messages through Wi-Fi network at a coffee shop or airport lounge might jeopardise confidentiality.
- Lawyer must be up to date with changes in the law and its practice, including the benefits and risks associated with relevant technology.
- Standard of reasonableness applies - Lawyers must take reasonable steps to protect client information when using electronic communications.
32
What are some security threats?
1. Bad pineapple - intercepts communications and creates a separate file of everything that goes across a separate network
2. 0-day exploit - exploit a weakness or unseen way into a network
3. Ransomware - a computer programme that lands on a computer and encrypts everything. To get access back to your data, you have to send $$
4. Phishing - funny looking email
33
How can metadata be misused?
* When lawyers don't remove confidential metadata from documents before sending or "mine" metadata in documents received from opposing counsel.
- ABA opinion is that looking at metadata is not banned, as long as the receiving lawyer promptly notifies the sender of the inadvertent transmission.
- A lawyer’s failure to protect confidential information on devices (e.g., not using passwords) might lead to malpractice, even if the action wasn’t unethical.
34
What happens when a lawyer receives a confidential document by accident?
- Under ABA, if they know or reasonably should know that the document was inadvertently sent, they MUST promptly notify the sender.
- In California, they must read no more than is necessary to determine that it is privileged or subject to the work product doctrine, and promptly notify the sender.
- In a Cali case, California Court of Appeals held that inadvertent disclosure did not waive privilege as the info was marked privileged and confidential.
35
When is there a conflict of interest with CURRENT CLIENTS?
1. Representing one client will; be directly adverse to another OR
2. Significant risk representing one client will be materially limited by the lawyer's responsibilities to another client (FULL THROTTLE RULE)
36
Steps to cure a conflict of interest with a current client?
1. Lawyer reasonably believes that they can provide competent and diligent representation to each affected client. It would not be materially impaired due to his loyalty. (FULL THROTTLE)
2. The law does not ban it
3. It is not the same litigation or proceeding before a tribunal
4. Client gives written consent
37
What happens when a lawyer represents multiple people on a matter of common interest?
- In California, the lawyer must disclose both “the actual and reasonably foreseeable adverse consequences” to clients of representing multiple clients. None of them can claim privilege against another client in a later dispute.
- Lawyer can do a LIMITED SCOPE REPRESENTATION, define who they are representing and consequences and conflict waiver.
- Not a good idea for private lawyer to represent two co-defs One could be offered a plea deal to snitch on the other. Court can let them do that but they will have each of the clients go through a consent conversation on the record.
- Def must prove that an actual conflict adversely affected the lawyer’s performance for conviction to be reversed.
38
What happens when someone starts a company and retains the same lawyer for the company?
-If someone keeps a lawyer to form an entity and the lawyer starts representing the entity, once the entity is incorporated, “the entity rule applies retroactively such that the lawyer's pre-incorporation involvement with the person was actually with the entity, not the person.
39
Can clients waive conflicts in advance?
- ABA allows the limited use of advance waivers for the “sophisticated” client who “reasonably understands the material risks” of the waiver and “the actual and reasonably foreseeable adverse consequences.
- The waiver would have to be reevaluated later if circumstances changed to see whether a further waiver was necessary or if representation should stop.
- California's rules are stricter than the ABA's in requiring lawyers to obtain written consent after explaining the relevant circumstances and potential adverse consequences
- ABA merely considers consequences when evaluating waivers, but doesn't require them to be explicitly addressed before consent.
- California federal cases have also found waivers invalid if they do not fully disclose potential future conflicts.
40
Who does a lawyer representing a company give advice to?
- They represent the company but give advice to duly authorized constituents.
- Confidences shared by one partner must be disclosed to all, including limited partners.
- Confidential info can be shared among all partners and one partner cannot assert attorney-client privilege against the other. Both have access to info.
41
What can a lawyer do if a CEO is doing a fraud?
Under ABA, proceed as is reasonably necessary in the best interest of the organization.
They MUST report up and MAY report out.
In California, they MUST report up but CANNOT report out
- If the lawyer is hired specifically to investigate or defend the organisation concerning the wrongdoing, this rule does not apply and the lawyer cannot report
- If the CEO fires the lawyer, they can no longer report out. Has a duty to tell the other partners.
42
What is privileged when a lawyer is representing a company?
Corporate attorney-client privilege applies not only to the "control group" (top executives) but also to communications between a corporation’s lawyers and employees at all levels, provided the communications were made at the DIRECTION OF CORPORATE SUPERIORS for the purpose of securing legal advice.
- An attorney acting in a non-legal capacity like doing interviews not for the purpose of providing legal advice cannot use privilege
43
If a lawyer represents a parent company, can they represent someone suing the subsidiary?
MAYBE
- Just because a company is affiliated (e.g., subsidiary) with a current client, it does not automatically mean the lawyer cannot represent someone against that affiliate.
- ABA opinion is that lawyer is only banned from representation if the affiliate is an actual client or if the new representation would materially limit the law firm's ability to fulfill its duties to the original client.
44
Upjohn Warning
- Upjohn Warning: A disclaimer issued by an attorney to an employee of a company that the attorney does not represent the employee, but rather the company as legal entity.
- Best to notify that attorney-client privilege belongs only to the company.
- There is a potential for conflict if employees believe they are receiving personal legal advice.
45
When a company is sold, does privilege move to new owners?
YES
- "practical consequences" test: When control of a corporation changes, such as through the sale of stock, the new management inherits the privilege.
- Client owns the files. When a new company buys the older company, they own everything except info about the merger transaction.
- An asset sale does not transfer control over the privilege. The sale of assets does not acquire the whole entity.
46
When MUST a lawyer withdrew representation
1. If they are fired
2. If it will make them violate ethics rules
3. If the lawyer mental or physical condition impairs them
4. Cannot provide competent representation
5. Unwaivable conflict of interest
- Cali includes a Frivolous claim to harass or maliciously injure someone
47
When CAN a lawyer CHOOSE TO WITHDRAW representation
1. If lawyer has financial challenges as a significant impediment to the situation, you can withdraw but it has to be a real hardship.
2. No reason but it does not harm client's interests
3. When a lawyer finds the client's actions repugnant or in fundamental disagreement
4. the client's actions make continued representation unreasonably difficult.
48
Bad Idea File
1. Representing both husband and wife in a divorce proceeding
2. A private attorney representing multiple criminal defendants in a criminal case
3. Representing a company on company matters and then its CEO
4. Joining the board of directors of a client
49
Best option is to take fee upfront and put it in client trust a/c but what if client cannot pay lawyer?
- Lawyer can ask judge for a substitute public defender lawyer. Must tell client why they'd like to withdraw.
- Could take a credit card or do instalments too. Or ask for an old car.
- If there is no other option, they might have to take the case for free if the judge does not give permission to withdraw. Advise him effectively.
- Could technically aks client to fire them.
AT THE END OF THE DAY, CLIENT OWNS THEIR FILE
50
Can lawyers do business dealings with clients?
1. Yes if transaction is fair and there is waiver of conflict and disclosure.
2. They cannot use the client's info to the client's disadvantage
3. Cannot ask for gifts or prepare instruments where they receive gifts unless client is a relative
4. Cannot get media rights until representation ends
5. Can only pay for small court costs, small modest gifts for basic living expenses for indigent clients and contingency agreements.
6. Must disclose terms to all clients for aggregate settlements.
7. Cannot limited liability by banning clients from suing
51
What difference does California have with business transactions with clients?
1. Silent on media rights. Case law allows for it during representation with written client consent
2. Lawyers can only do written lending agreements. California is more stricter on liens.
3. Insurance companies can pay for lawyers to defends the insured under 3rd party payment as long as insurance company and client's interests are aligned.
4. Lawyer must disclose terms to all clients for aggregate settlements except for CLASS ACTIONS.
5. Lawyer cannot get property at a foreclosure if they have a connection to the property.
52
Personal Relationships and Sex with client
- Lawyer cannot have sex with client unless sexual relationship began before representation
- Lawyers cannot represent a client against someone whose lawyer is related to them or to their sexual partner. Exceptions is if they disclose in writing to client
- In one case, lawyers were suspended for 30 days after continuing to represent a client who was considering cooperating with the authorities, which contradicted their policy not to represent cooperating clients. There was a personal conflict of interest and it affected their independent judgement
53
Duty to Former Clients
- Cannot represent another adverse person in the same or a substantially related matter. Informed Client consent in writing is needed.
- The lawyer has the continuing obligation to preserve the client's confidences and secrets after the representation
- Screening allows lawyers to go to different firms. Cali extends this to law students
- SUBSTANTIAL RELATIONSHIP TEST between the former and current subject matters
54
Substantial Relationship Test
- Is there a substantial relationship between the former and the current subject matter?
- Ahman test in California is (1) factual similarity of the cases, (2) legal similarity, and (3) the extent of the lawyer’s involvement.
- California is stricter because The "playbook approach" assumes that knowledge of a client’s general strategies or internal workings creates a substantial relationship. ABA says this does not create a substantial relationship.
55
Hot Potato Doctrine
If a law firm represent Person A in a minor issue and they are a small client. If Google wants to sue Person A, the law firm cannot withdraw from Person A and represent Google instead even though they are the more lucrative option.
A law firm cannot drop a client to take on an opposing client that is more lucrative.
56
`What do you do if the client has diminished capacity?
Client is unable to act in their own interest
1. Lawyer must as far as possible, maintain a normal client-lawyer relationship
2. Lawyer can seek a guardian or “other protective action” where the lawyer “reasonably believes” the client is not able to act in his or her own interest
3. Lawyer is impliedly authorized to reveal info but only to the extent necessary to protect the client's interests. Lawyer must take the least restrictive action possible.
- California does not have this so you just try to follow client's wishes
-
57
What if the Guardian ad litem and attorney are the same and there is a conflict?
- If the attorney (represents child) is also the guardian ad litem (represents child's best interests) and have differing opinions from the different capacities, the lawyer can withdraw from one role with permission from court.
- If you ask to withdraw, the court might ask why. ABA rules allow disclosure for court orders. California does not. The California lawyer would just ask to withdraw without disclosing why
58
Can privilege be waived to show competence?
- In a California case, Bolden appealed an order that said he was incompetent. The Penal Code required his lawyer to give his opinion on the client's competence but the lawyer said this was privileged. The Court held that the Penal Code did not violate privilege and the lawyer still had to give his opinion on the client's competence as the evidence was based on observations rather than confidential communications.
59
Can a lawyer represent someone with different personal views?
Lawyers can represent someone that they don't share the same personal view with as long as they can do it competently. Full-throttle rule.
60
What must lawyers consider?
- Lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.
- MAKE SURE TO ADVICE ABOUT OTHER POTENTIAL ISSUES TO LEGAL REMEDIES
- Understanding and bridging cultural gaps has become a crucial skill for lawyers.
61
Is there an issue if a lawyer cannot understand their client's culture?
- Lack of sensitivity to cultural differences can be an ethics issue. Failure to do so could not only hinder communication but could also lead to ethical violations in representing clients fairly and competently
- Client-centered advocacy can help break free from the dangerous patterns of paternalism in domestic abuse cases, which can inadvertently mirror abusive behaviours.
62
Can lawyers be required to provide legal services to those who can't pay?
Yes
Every lawyer has a professional responsibility to provide legal services to those unable to pay. ABA recommends 50 hours of pro bono.
63
WHEN A LAWYER KNOWS A CLIENT'S STORY IS FALSE, BUT THEY HAVE TO DEFEND THE CLIENT?
- They cannot present false evidence they know is false.
- Objective is to create a reasonable doubt in the jury's mind, not to present the truth so they can cross-examine the truthful witness.
- A lawyer could still argue that the prosecution has not proven the defendant's guilt beyond a reasonable doubt, without resorting to knowingly false claims.
- They could also suggest alternative explanations for the facts but the jury must be informed that these alternative explanations are not based on a good faith belief in their truth but are offered solely to weigh the evidence.
64
What if a lawyer's omission implies a falsehood?
- A lawyer must correct it
- A lawyer must not fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.
- ABA allows lawyer to take remedial measures up to and including disclosure to the tribunal.
- California does not so testifying in the narrative is the best option but not a great one.
65
Perjury Trilemma
1. Lawyer's duty to provide effective assistance by seeking all relevant facts.
2. Duty to maintain client confidentiality
3. Duty to be candid with the court
66
What should a lawyer do after false testimony has been presented and they were involved?
1. Advise the Client to Correct the Falsehood.
2. Withdraw if Necessary - Withdrawal is only permissible if it doesn't prejudice the client and is supported by extraordinary reasons, such as the lawyer's knowledge of perjury.
3. Disclose to the Court: not in California
67
Can a lawyer bring a frivolous claim?
No
- If there is no factual or legal basis for the claim, not allowed to bring claim
- If it is a case with merits but very likely to lose, lawyer can still bring case
- If there was no quorum at 2 meetings, that is a technicality they can sue on once investigated. The standard for frivolousness is rather high
68
What must a lawyer do before filling in a complaint?
- An attorney to conduct a reasonable inquiry into the facts
- Lawyers can rely on clients' factual statements if they are “objectively reasonable.” However, this does not absolve them of the duty to investigate
- In one case, Court upheld sanctions for a lawyer who filed a claim that was initially unsupported but later gained merit.
69
When must lawyer disclose adverse authority?
- Lawyer must disclose if opposing counsel has not disclosed, even if it weakens the client’s position.
- Lawyer has to disclose if it is controlling authority. Not required to disclose authority from another jurisdiction.
- Failing to cite the authority on the grounds that the case material is dicta would, at worst, run afoul of the rules and, at best, undermine the credibility of the lawyer
70
What can lawyers do if they submit a frivolous claim?
The "safe harbor" provision allows lawyers to withdraw a filing. Purpose of sanctions was solely to deter improper filings and not to punish.
71
Can a male lawyers call all the female opposing lawyers "honey"?
No
- A lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.
- Lawyers cannot harass or discriminate based on the protected characteristics
- For California, harassment must be unlawful. It also covers unlawful retaliation against these people.
- Lawyers can still withdraw from representation if it impairs ability based on like LGBT, etc.
- Non-supervisorial lawyer that become aware of discriminatory hiring practice and managerial lawyer must take action
72
Does a junior lawyer get in trouble for following his boss' unethical orders?
- A junior lawyer that does something clearly wrong under the supervisor's guidance would be in trouble and his supervisor would be in trouble. The supervisor would also be in trouble if he knows of the conduct and does nothing.
- It has to be a very close call or difficult question. There must be a reasonable view on both sides.
73
Must firms ensure lawyers comply with ethical rules?
Yes
- Every firm must have at least one partner that is responsible for the firm and they must have measures to ensure that all the lawyers are following the rules.
- The firm itself or the supervisor might be subject to disciple for failing to have that program.
- A person who orders something bad or knows a junior lawyer did the bad thing can be in trouble.
74
What are discovery violations?
- Withholding requested documents
- A firm had to pay the opposing side’s attorneys’ fees for providing evasive and incorrect responses to discovery requests
75
How must a lawyer conduct themselves in negotiations?
- A lawyer may not “make a false statement of material fact” to a third party.
- Lawyers cannot outright lie but they can engage in puffing, exaggeration, or non-material misrepresentation.
- Lawyers must correct material misimpressions if the lawyer’s silence or omission would be equivalent to an affirmative false statement.
- Estimates of price or values and intention to an acceptable settlement of a claim is mere puffery. You can lie about that.
- Confidentiality still applies which limits disclosure.
- Lawyers cannot engage in dishonesty, fraud, deceit, or misrepresentation.
76
What happens if there is misrepresentation in negotiations?
- The contract may be voided, and the lawyer may be liable in tort to the injured party.
- California's case law limits the ability to undo a "done deal" even if fraud is present, thereby restricting third-party liability for lawyers. Settlement agreements are binding, especially when they include broad releases of claims.
77
What is the main aim of prosecutors
To seek justice, not merely to convict (Berger v. United States).
Protect the innocent, serve the public, be honest and transparent in court and professional obligations
78
Prosecutor’s Duty in Plea Negotiations
Prosecutors have a duty to disclose exculpatory evidence which shows the accused's innocence (Brady v. Maryland), but they are not required to disclose non-evidentiary information (e.g., the death of a witness) that does not directly affect guilt or punishment.
79
Can Prosecutors (DAs) make election campaign promises not to prosecute certain crimes?
As long as her campaign promise was: 1. Truthful; and 2. Not motivated by bias or another prohibited motive, it would be okay to fulfill the promise not to prosecute certain things.
- In promising not to prosecute loitering, she is not ignoring the law. She is simply saying that it is deprioritized and she will not spend resources on prosecuting loitering.
80
When is a Prosecutor banned from prosecuting someone?
When the prosecutor knows that the charge is not supported by probable cause
81
What does a Prosecutor have to disclose to the Defence?
- All evidence or information they know tends to mitigates the offense regarding sentencing. except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.
- All evidence they know tends to negate guilt of the accused (Exculpatory evidence).
- Impeachment evidence (credibility issues with witnesses)
- Remedy is disciplinary action against the prosecutor.
82
Brady v. Maryland
- Prosecutors must disclose evidence favourable to defendant but there must be materiality - it would have made a difference if the evidence had been disclosed. Standard is if it undermines evidence in the outcome.
- This includes a custom where the def gets reduced sentence for his testimony.
- This applies to anything in the possession of the State.
- Remedy is a new trial for the def.
- A prosecutor who withholds Brady evidence may avoid reversal of the conviction if it is not material.
83
What are the Standards expected of a Lawyer's Honesty?
1. A lawyer cannot make a misstatement of material law or fact in the course of representing a client.
2. Lawyers cannot engage in conduct involving dishonesty, fraud, deceit or misrepresentation, or misappropriation of funds/property ever.
84
Prosecutor Discretion
- ABA standards lists permissible factors for discretion to decide to prosecute or not (e.g., harm caused, defendant’s cooperation) and impermissible factors (e.g., race, religion, personal agenda). Hard to prove things like ethnic discrimination.
- U.S. v. Singleton allowed a prosecutor to say if you testify, we will be lenient in the sentencing we push for.
85
Can prosecutors be sues for their action tied to trials?
- Prosecutors have absolute Immunity (Imbler v. Pachtman) and CANNOT be sued for actions tied to trials (e.g., withholding Brady evidence). They can only be disciplined.
- Writ of Mandamus: an action through a court to compel a public official to do their job. A person can try to force a prosecutor to prosecute a case but the judge would have to agree with your argument.
86
Can a government lawyer work in private practice due to conflicts of interest?
Yes they can
When they go out of government practice and into a private practice, they can be screened. The government lawyer will not work on matters they had personal and substantial involvement but their firm can.
87
Do prosecutors have free speech?
Yes but it is limited
- When public employees speak pursuant to official duties, it is not protected speech. This restricts freedom of speech.
- Prosecutors must follow office policies, even if they disagree ethically.
- This case means that prosecutors risk retaliation if they challenge misconduct internally.
- It also conflicts with ABA Standards requiring prosecutors to report misconduct independently
- The Whistle Blower Act allows for disclosure in the public interest
88
Ernesto's client (Giant) produces defective Bluetooth speakers which will stop working right after the one year warranty ends. What should Ernesto do?
Ernie should advise beyond the legal issue as he sees best. Ernie cannot be deceptive or dishonest and just tell the client what they want to hear. He does not have to tell them to fix it if it cheaper to be sued. The client ultimately decides whether to settle the claim and the lawyer must respect it. If the action is likely to result in substantial injury to the organization, he must report up the ladder. We need more info for this.
Courts can pierce the veil of privilege where there is fraud.
89
Must lawyers do noisy withdrawals?
- They don't have to but can choose to according to Sarbanes-Oxley Act
- Noisy withdrawal: Lawyer disavows the product which basically reveals confidential info without revealing it as people know it as scam
- If something is really bad, lawyers may face professional disciplinary proceedings if they do not withdraw from the lawyer-client relationship and report continuing corporate wrong-doing to prosecuting authorities
90
Can companies "cure" their unethical conduct?
- Companies can co-operate to make the penalties better but things like willful ignorance and willful obstruction (of evidence) increases the penalties for the organization
- Company can have effective compliance programs, self-reporting, and co-operation to make penalties better
91
If a lawyer whistleblows and is fired BY A COMPANY, can they sue?
- Balla v. Gambro, Inc. - In-house counsel reported FDA violations and was fired. He sued for retaliatory discharge. THE MAJORITY VIEW IS THAT In-house counsel must comply with ethical duties like reporting wrongdoing but cannot sue for retaliatory discharge.
- General Dynamics Corp. v. Superior Court - California allowed retaliatory discharge claims if proven without breaching privilege. California Whistleblower Protection Act bans retaliation against state employees who report improper activity
92
Stephen is an expert in toxic substances. He believes the waste might be toxic but research out there goes both ways. Technically, the waste is not hazardous as currently defined but there are other ways it might be hazardous. What should he do?
1. If Stephen writes a letter that the waste is not hazardous as now defined without including additional research, the letter is misleading and he could get in trouble.
2. It also violates the duty of candour. Lawyers have a duty to provided candid advice to the client, not just say what the lawyer wants.
3. If the lawyer gives all research in the letter and the waste is not toxic, the lawyer is fine. If he argued that Shiela ordered him to write it, he would likely not be able to argue Rule 5.2 because he knew what to write but chose the limit his candid advice. Government lawyers are held to higher standards.
4. The duty of communication involves the client being reasonably informed.
5. Lawyers must disclose material facts when it is necessary to avoid assisting a criminal or fraudulent act.
93
Would Stephen have been liable to the third party for the letter?
- Usually, lawyers will NOT have liability to third parties unless the lawyer acted knowingly or recklessly, transmit misleading info, it was attributed to the lawyer and letter was designed to have a 3rd party rely on it.
- Vega v. Jones Day - A law firm drafted a misleading disclosure schedule in a merger. HELD: A "half-truth" can constitute fraudulent concealment.
- Kline v. First Western - Lawyers can be liable for reckless disregard even if they didn’t know the opinion was false.
- Ackerman v. Schwartz - Lawyers can be liable if they allow their misleading letters to be used fraudulently, even if they didn’t draft them for third parties.
94
What happens when one lawyer witnesses another lawyer doing something wrong?
- Lawyers cannot engage in conduct involving dishonesty, fraud, deceit or misrepresentation.
- The witnessing lawyer must inform the appropriate professional authority when it raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer.
- Confidential info is excluded.
95
What if one lawyer sees another lawyer overbilling?
ABA
- Overbilling is not confidential info. Fee arrangement and billing reports are generally confidential BUT there may be ways to report overbilling without disclosing confidential information about the client.
- Both ABA and CALI states that if a lawyer is in a lawyer's assistance program, that info is not subject to reporting.
- Public entity fee arrangements subject to FOIA are not confidential as the public have a right to transparency.
96
What if one lawyer sees another lawyer overbilling?
California
- The same above applies but California's rule is more specific and requires credible evidence.
- They must act with undue delay.
- It includes reporting for criminal acts.
- Comment 9 states that lawyers cannot agree to not report each other
- Also bans threats to gain an advantage in civil litigation
97
What happens when a junior lawyer does something wrong under the supervisor's guidance?
- A junior lawyer that does something clearly wrong under the supervisor's guidance would be in trouble and his supervisor would be in trouble. The supervisor would also be in trouble if he knows of the conduct and does nothing.
- A junior lawyer cannot defend themselves by saying my boss told me to unless there is an arguable question over what the ethical rules are and there is a disagreement between the junior and supervising lawyer. There is not much of a safe harbour here.
98
Can a LAW FIRM firm fire a lawyer for whistleblowing?
- Law firms cannot fire associates for insisting on reporting ethical violations
- California Labor Code prohibits employers from retaliating against employees who report illegal or unsafe activities.
99
What were the ethical issues with the torture memos?
1. Duty of Candour - Lawyers must provide objective, balanced advice, not just what the client wants to hear.
2. Assisting Criminal Conduct: If the memo was intended to immunize torturers, it could constitute aiding illegal activity. 3. Duty to the Client: The lawyer's client was the executive branch, not individuals. Lawyers must protect the organization’s interests, not enable misconduct.
100
How did billable hours develop?
- Before, the typical lawyer's bill was determined by what the attorney considered appropriate. It was based on the lawyer's subjective assessment of the value of their services (value billing). Some rates were codified.
- Goldfarb v. Virginia State Bar HELD that Formalized fee schedules, including schedules setting minimum fees violated antitrust laws.
- Billable hours then became popular instead.
101
Are written fee agreements mandatory?
- ABA rules don’t require written fee agreements (except for contingencies).
- California Business and Professions Code Section 6148 requires written fee agreements when the total fees and costs are reasonably foreseeable to exceed $1,000.
102
What are some examples of unethical billing practices?
1. Featherbedding: When you get Random people working full time on random research to rack up the bill.
2. Double-billing: Charging multiple clients for the same time/work like recycling legal research.
3. Hidden Surcharges: Markups on expenses (e.g., photocopying, travel).
4. Cryptic Invoices: Lack of transparency in billing statements.
5. Charging client full hours for 15 minutes tasks.
6. Charging clients longer than was spent in court.
103
What are some factor the court will use to determine if a fee is reasonable?
1. The time and labour required
2. The novelty and difficulty of the questions
3. The skill required to perform the legal service.
4. The likelihood that accepting the employment will preclude other employment
5. The fee customarily charged in the locality for similar services
6. Time limits by the client and results obtained
7. Lawyer's experience and reputation
104
What must lawyers disclose about billing?
- Lawyers must clearly explain billing methods before engagement.
- Invoices must itemize charges (e.g., time spent, specific expenses).
- Reasonableness: Fees and expenses must reflect actual effort/costs, not inflated profits. California uses unconscionability.
105
What are some ABA rules on billing for actual costs?
- Outside services (e.g., court fees, expert witnesses) must be billed at the actual cost (no surcharges).
- In-house services (e.g., photocopying, meals) must reflect direct cost + reasonable overhead (e.g., operator salary).
- Overhead should be included in fees, not separate.
106
Are true retainers allowed?
- ABA is silent on it so we assume it is allowed.
- California rules specifically mention true retainers are earned on receipt so the client agrees in writing after a full disclosure that they will not be entitled to a refund.
107
Are women lawyers allowed to be paid less than male lawyers?
No, under the ABA and California rules, women lawyers are not allowed to be paid less than male lawyers for the same work. State and federal laws prohibit pay disparities based on sex.
108
When a lawyer notices that another lawyer is showing signs of alcoholism, what is the best thing they can do?
- They should gently confront the lawyer and suggest AA programs like the Lawyer Assistance Programs (LAP). "The Other Bar" also helps lawyers struggling with addiction.
- They must report to state bar if "material impairment" harms clients.
- The managing lawyer must intervene and may report to the state bar. They are only required to report if the lawyer becomes incompetent which affects the clients. Low bar for competence.
109
What ethical rules are relevant for alcoholism or substance addiction?
1. Competence
2. Cali Business and Professions Code Section 6234 - Any information provided to or obtained by the Lawyers Assistance Program or subcommittee remains confidentiality
3. Mandatory withdrawal from the representation if lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client. Material is a high bar linked to outcome
4. Reporting requirement if a violation of the rules raises a "substantial question as to honesty, trustworthiness or fitness as a lawyer"
5. Lawyer supervisors must ensure other lawyers comply with ethical rules. They get in trouble if they knew of the violation but failed to act.
6. Tell client if "material impairment" harms clients.
110
How forgiving are courts of substance abuse?
- In re Kersey, An alcoholic lawyer committed 24 ethics violations. In the D.C. Court of Appeals, he was disbarred but got a 5-year probation with supervision since he completed a alcohol detoxification program. Many states adopted this mitigation approach for addiction-related misconduct.
- California uses this approach.
- Mitigation is allowed for alcoholism, depression, prescription drug abuse—but not for illegal drugs like cocaine. Rationale: Criminal conduct disqualifies mitigation under Kersey.
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Responsibility of Law Firms regarding Substance Abuse
1. Develop policies to address impairment.
2. Disclose to clients if representation is materially affected (but protect lawyer’s privacy). They don't have to report if there was no harm.
3. Must Report to discipline boards if harm occurs. They can choose to report if harm occurs.
112
When law firms advertise their services, can they make guarantees?
- Law firms cannot make guarantees like you can count on us to win. The rule is that they have to give some context and background information.
- Generally, more context is needed when you say a defense lawyer won their case. What do they mean by win?
113
What is solicitation?
- Solicitations are targeted communications for purpose of offering legal services.
- No in-person, live telephone or real-time electronic solicitation of clients.
- No solicitation where recipient does not want to be solicited.
- Billboards an dinternet banners are not direct solicitation. It is an offer to the public. You could drive by it and ignore it but in-person conversations are treated as more serious.
- ABA has an exception for in-person solicitation for people who routinely use legal services. California DOES NOT
114
Can lawyers advertise no foul, no fee?
- Lawyers can advertise a "no foul, no fee" arrangement, also known as a contingency fee arrangement, as long as it's truthful and doesn't violate advertising rules
- There are generally costs and expenses to litigate that a person must pay. The lawyer can agree to cover all the expenses and repayment is contingent on the award if they win.
- If they lose, a lawyer cannot use their own personal funds to pay the fee. They need to be clear on how the billing is done.
115
Can a lawyer advertise that clients will get the professional, top class service they should expect?
Yes
116
A law firm wants to hire actors to play their lawyers in a series of TV spots advertising. Is this allowed?
Yes
117
Can private law firms use the same name as a government agency?
A trade name may be used by a lawyer in private practice if it does not imply a connection with a government agency or with a public or charitable legal services organization and is not misleading
118
What are advertising rules for lawyers?
1. No false or misleading ads about the lawyer or their services. This means a material misrepresentation of fact or law, or omitting a fact necessary to make the statement not materially misleading.
2. Lawyer cannot give compensation to a person for recommending their services but they can give a nominal gift of appreciation. They could pay for a qualified lawyer referral service.
3. A lawyer may have an agreement to refer clients to another lawyer if the agreement is not exclusive and the client is informed of the agreement.
119
When can a lawyer say that they are a certified specialist?
- Only when they have gone through the process to become a certified specialist.
- You can only say you specialised in an area but not "certified specialist" if you have not done the process.
120
Can a lawyer give political contributions to obtain government legal engagements or Appointments by Judges?
A lawyer or law firm MUST not accept a government legal engagement or an appointment by a judge if they make a political contribution to be considered for that engagement
- NO DONATIONS FOR APPOINTMENTS
121
What are California's rules on advertising for lawyers?
CALIFORNIA BUSINESS AND PROFESSIONS CODE Sections 6157-6159
1. No false or misleading statement or omissions
2. No guarantees of outcome, no impersonation without disclosure
3. No celebrity spokesperson unless there is disclosure of their title
4. If a lawyer is not the one paying for an ad, the ad must disclose any existing or past business relationship between them and the paying party.
5. Ads for lawyer referral services must state of the lawyer is in other referral services and if the service makes profit
6. There is a Presumption of deception in messages like the outcome of a case without context
7. Ads online showing results in a specific case must state that results varies or explain the facts about it
8. Complaints are made to State Bar with name of advertiser, ad description and specific violations.
9. Lawyers must keep a copy of ads for one year
122
Cases on Advertising
1. Bates v. State Bar of Arizona
2. Central Hudson Gas & Elec. Corp
3. Re R.M.J.
4. Zauderer v. Office of Disciplinary Counsel
5. Ibanez v. Florida Board of Accountancy
6. Hunter v. Virginia State Bar
123
Bates v. State Bar of Arizona
- Two Arizona lawyers opened a legal clinic and advertised the prices of their services with the newspaper ad.
- HELD: Blanket bans on truthful, non-deceptive advertising for routine legal services violate the First Amendment. THIS ONLY APPLIES TO ROUTINE SERVICES.
- States may regulate ads that are false, deceptive, or misleading.
- States may impose reasonable restrictions (e.g., disclaimers, time/place/manner rules).
124
Central Hudson Gas & Elec. Corp
TEST IS:
1. Is speech lawful & not misleading?
2. Is there a substantial government interest in the regulation?
3. Does the regulation advance the governmental interest?
4. Is the regulation “not more extensive then necessary”?
125
Re R.M.J
States cannot overly restrict truthful ads.
126
Zauderer v. Office of Disciplinary Counsel
Contingency fee ads must disclose costs. Lawyer was disciplined for nor telling client they may be responsible for the costs.
127
Ibanez v. Florida Board of Accountancy
Dual-credentialed lawyers can advertise their certifications.
128
Hunter v. Virginia State Bar
- A lawyer’s blog promoting case wins is not protected if it is primarily self-promotional.
- Posts about case results must include: "Results depend on case specifics" or "Past results don’t guarantee future outcomes."
129
Cases on Solicitation
1. Shapero v Kentucky Bar
2. Ohralik v. Ohio State Bar
3. In Re Primus
4. Florida Bar v Went for It
130
Shapero v Kentucky Bar
Targeted direct mail from attorneys to people facing foreclosure is allowed. People can always throw targeted mail away. Targeted mail ads are protected as Written solicitation is less intrusive than in-person contact. California requires specific disclaimers on direct mail (e.g., "This is an advertisement").
131
Ohralik v. Ohio State Bar
- Someone was injured and taken to hospital. While she was hospital, Ohralik pressured her to sign an engagement agreement. She hired a different lawyer later and he sued her for that contract.
- HELD: Ohralik got in trouble for in person solicitation. No real-time communications allowed like IG live, phone calls, etc.
- Exceptions like family members or if the client is another lawyer.
132
In Re Primus
- An ACLU attorney met in-person with potential clients who had forced sterilization to get public benefits.
- The lawyer was working for ACLU and they got paid based on salary regardless of if the person became a client.
- There was no pecuniary/financial gain for the lawyer as they did not have to be paid and the purpose was to rectify a public harm so in-person solicitation is allowed.
133
Shapero v Kentucky Bar
Court allowed a limited ban on solicitation for targeted mail within 30 days of an accident. It was a reasonable ban. It was narrowly tailored to protect privacy and public trust.
134
What kind of blogs are regulated?
COPRAC Formal Opinion 2016-196
1. Direct or indirect legal services in attorney blogs
2. Firm blogs
3. Stand-alone blogs may be subject to regulation if there is direct or indirect expression of the attorney's availability for legal services
135
Do lawyers hired by insurance companies have to tell the client this?
They don't need to explicitly disclose that they are employed by the insurance company. California says Anything on the letterhead other than “Law Division” of X insurance would be misleading
136
What are the ethical rules on Pro Bono?
1. Lawyers should aspire to render 50 hours of pro bono
2. Lawyers can refuse representation if likely to result in an unreasonable financial burden or case is repugnant that would impair the attorney's ability to render competent representation or lead to violating ethical rules. Financial hardship is a High bar.
3. Lawyer may participate in law reform activities even where the reform could affect a client. Disclosure is required If the reform would benefit the lawyer's client.
4. Lawyers can provide limited representation through the LSO unless they know of a current conflict.
137
Rules where a lawyer is a director, officer, or member of a legal services organization?
1. A legal services organization is not a client.
2. Lawyer can serve on the board of a legal services organization even if their interests are adverse to a client of the organization. However, the lawyer must be mindful of potential conflicts of interest and ensure that their involvement doesn't compromise their duties to their current clients or the organization's clients.
3. They can sit on the board but must remove themselves from decisions that negatively impact the organization's client when it conflicts with their private client because their loyalty will generally be with the paying client.
138
Can a lawyer reject a poor person's case?
- California Business and Professions Code section 6068 states that "Never to reject, for any consideration personal to himself or herself, the cause of the defenseless or the oppressed."
- ABA just has the financial hardship and repugnant case and if it leads to violating ethical rules thing.
139
What are the sources of law for judges?
California
1. Article 6 of the California Constitution allows the Supreme court to develop the California Code of Judicial Ethics
Federal
1. Code of Conduct for Unites States Judges - does not apply to Supreme Court justices
2. Model Code of Judicial Conduct
140
What statements can judges not make?
1. Public statements that might reasonably be expected to affect outcome or where he appears biased
2. Private statements that might interfere with a case
3. Pledges, promises, commitments that show impartiality, even for future cases
4. Judges shall require staff to refrain from such comments
5. False or misleading statements
141
When must a judge disqualify himself?
1. Where “impartiality might reasonably be questioned” or where he appears biased
2. Personal bias or knowledge
3. Personal connection like former lawyer or witness
4. “more than a de minimus interest”
5. Economic interest (including past contributions)
6. Public statements of bias
- Judges must be informed of direct family members' personal and economic interests
- Parties can insinuate a disqualification waiver
142
What groups can a judge not join?
- A judge cannot hold membership in any organization that practices discrimination or use their facilities.
- Exception for isolated events where there is no perceived endorsement, Religion, and Military
- Judge cannot be a member of a golf association that is male-only members or even hold meetings at that golf club
143
What are the Rules on Judges receiving Gifts?
- ABA says Judges can accept gits that don't undermine their independence, integrity or impartiality but must report it.
- Judges must report Compensation, Gifts, and Reimbursements.
- Judges can accept and must report Gifts incidental to public testimonial and Invitations to attend a paid event for free (applies to judge’s “plus 1” also).
- They don't have to report low value gifts, gifts from close friends & relatives, awards open to others.
- California bans judges from receiving gifts from lawyers unless it is an ordinary social hospitality but they may still have to report it.
CALIFORNIA IS STRICTER
144
Can judges identify themselves with political parties?
- No, they cannot engage in partisan politics unless it is their own public partisan judicial election.
- They cannot Solicit funds for political organizations
145
Can judges receive compensation for extrajudicial services?
- ABA says judges can receive compensation for extrajudicial activities like speaking or writing, as long as it's reasonable and doesn't compromise their impartiality.
- California says they CANNOT get compensation for performing a marriage, a speech, article, or attendance at any conference, meeting, social event, meal gathering, etc. They can get compensation for earned for personal services custom to their profession like teaching or writing for a publisher.
