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Flashcards in Professional Responsibility Deck (97):
1

Acceptance/rejection of clients

No duty to accept representation, except duty to accept court appointments UNLESS there is good cause to decline (lack of competence, improper C/I, or unreasonably burdensome)

CA: lawyer had duty never to reject for person reasons

2

Prohibited objectives of employment

(1) act for the purpose of harassing or maliciously injuring a person; or (2) presenting a claim or defense not warranted under existing law (unless supported by good faith argument for modification or reversal

3

Undertaking representation

L/C relationship begins when C reasonably believes the relationship exists (no formal writing required)

4

Duty to reject

If representation would violate an ethical rule or if L's physical/mental condition materially impairs his ability to represent C

5

Decisions made by C

objectives and goals of representation; L must communicate settlement offers to C and C must make decision to accept; testifying in criminal case; waiving right to trial by jury; entering a plea

6

Decisions made by L

Procedural tactics; L can limit scope of representation if it is reasonable under the circumstances and C gives informed consent

7

Prohibition on counseling crimes or fraud

Lawyer may dicsuss legal consequences of any proposed course of conduct with client and may counsel or assist client to make good faith effort to determine validity, scope, meaning or application of law; if C's conduct has already begun, L is required to avoid assisting the client and must withdraw from representation

8

Mandatory withdrawal (violation of rules)

MR: L must withdraw if failure to withdraw would result in violating the ethics rules or other laws

CA: L must withdraw if he KSK that continued employment will violate CA rules (but not other laws)

9

Mandatory withdraw (health)

L must withdraw if L's physical or mental condition materially impairs his ability to represent C

10

Mandatory withdraw (bad faith)

(CA only) L KSK C asserted a claim without probable cause or to harass or injure another person

11

Mandatory withdraw (discharge)

(MR) C has absolute right to discharge L

12

Permissive withdrawal (MR)

No material harm to client; or with harm if: (1) L reasonably believes C's actions are criminal/fraudulent, finds them repugnant or L has a fundamental disagreement with C's course of action; (2) C used L's services to perpetrate a crime/fraud (not in CA); (3) Representation causes unreasonable financial burden (not in CA); (4) C breaches obligation to L regarding expenses/fees; (5) C make representation unreasonably difficult

13

Permissive withdrawal (CA)

(1) C's claim is not supported under existing law or good faith argument for modification/reversal; (2) C pursues (or insists L pursue) an illegal course of conduct; (3) C makes representation unreasonably difficult; (4) C insists L behave against L's judgment; (5) C breaches obligation to L regarding expenses/fess; (6) continued employment will likely violate CA rules; (7) health compromises (but not materially impairs) his ability to carry out the presentation

14

Duties on termination (lawyer)

Return client papers: (MR) L can retain papers as security for fee; (CA) must return all papers regardless of fee payment

Returning fees: (MR) L must promptly refund any unearned advance fees (rule doesn't apply to true retainer fee in CA)

15

Duties on termination (client)

L entitled to fix/hourly fees in quantum meruit for value of services rendered, and (CA) contingency fees generally allocated as reasonable value of services

16

Reasonable fees (MR)

difficulty of case; preclusion of other employment; type of fee arrangement; L's expertise; customary fee for similar services in given locality

17

Unconscionable fees (CA)

fee amount in proportion to value of services; L's and C's relative sophistication; novelty/difficulty of legal questions involved; preclusion of other employment for L; amount involved/results obtained; time limitations; nature/length of professional relationship; L's experience/reputation; fixed or contingent fee; time/labor; C's informed consent

18

Fee agreement (writing requirements)

(CA only) (1) must be in writing, signed by both parties when it is reasonably foreseeable fee is more than $1000 or contingent; (2) signed copy given to client; (3) basis of compensation; (4) nature of legal services; (4) contractual responsibilities of L and C

Failure to comply -> K is voidable by C, L entitled to reasonable fee

19

Contingent fees (MR)

Not allowed for domestic/criminal matters; (1) must be in writing; (2) signature of client; (3) fee calculation methodology; (4) details of calculation for expense deductions

20

Contingent fees (CA)

Not allowed for dissolution of marriage; (1) in writing signed by both L and C; (2) contingency fee rate; (3) how disbursements/costs will affect contingency fee and C's recovery; (4) extent to which C must compensate L for matters not covered in contract

21

Fee splitting (lawyers from different firms)

MR: fee in proportion to services rendered, C's written consent, total fee is reasonable

CA: C's written consent after full disclosure; total fee not higher solely because of fee splitting; not unconscionable

22

Fee splitting (referral fees)

MR: not permitted for mere recommendations; if lawyer performs service for client prior to referral, may be reasonably compensated

CA: permitted if satisfies fee splitting rules

23

Fee splitting (non-lawyers)

not permitted if activities include practice of law; a lawyer may not pay, gift or promise anything to a member of the media in anticipation or return for publicity in a news item (CA only)

24

Fee splitting (reciprocal referral)

(1) cannot be exclusive; (2) client must be informed of existence/nature of agreement; (3) must not be of indefinite duration; (4) cannot interfere with lawyer's professional judgment in making referrals or providing substantive legal services

25

C's fund accounts

(1) all funds must be deposited into an identified bank account; (2) no commingling; (3) must maintain account records for five years (CA)

26

Lawyer-client privilege

(1) C must intend for communication to be confidential; (2) communication must be made for purpose of seeking legal advice/representation; (3) C hold privilege, L must assert privilege on C's behalf; (4) indefinite duration, survives C's death (CA- terminates when C's estate is settled)

27

Lawyer-client privilege exceptions

(1) communication relates to C's future crime/fraud (in CA, can be committed by anyone, not just C); (2) disputes between L and C or co-Cs; (3) information likely to result in substantial bodily injury of death (CA)

28

Work product

CA: writings that reflect L's impressions, conclusions, opinions or legal research/theories are not discoverable under any circumstance

Other work product may be discoverable if denial would unfairly prejudice the other party

No privilege if lawyer is suspected of participating in crime/fraud or action between lawyer and client

29

Confidentiality

MR: L prohibited from disclosing info relating to representation of C (regardless of source); or information that could reasonably lead to discovery of protected info by third party, unless C gives informed consent or disclosure is implied authorized

CA: L required to maintain inviolate the confidence and at every peril to himself preserve the secrets of C

30

Confidentiality (prospective client)

L generally not permitted to use/reveal information learned in consultation with prospective C; a person who unilaterally communicated information to L without any reasonable expectation of forming a relationship with L is not a prospective client)

31

Preserving confidentiality

L must take reasonable precautions to safeguard confidential information from inadvertent/authorized disclosure to unintended recipients

32

Exceptions to confidentiality (client authorization)

L may reveal confidential info if C gives informed consent after adequate communication of material risks and reasonably available alternatives; implied authority to disclose if necessary to carry out representation

33

Exception to confidentiality (death/substantial bodily harm)

If the lawyer reasonably believes disclosure is necessary to prevent reasonably certain/imminent death or seriously bodily harm, then the lawyer may (but not required) to disclose no more than necessary to prevent the criminal act

CA: before disclosure, L must make good faith effort (if reasonable) to persuade C not to commit/continue criminal act or prevent threatened harm

34

Exception to confidentiality (substantial financial harm)

(MR only) may reveal confidential info if lawyer reasonably believes it is necessary to prevent client from committing a crime that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used the lawyer's services; can also prevent, mitigate or rectify is injury has resulted

35

Exceptions to confidentiality

(1) securing legal advice regarding L's personal responsibility (MR); (2) reasonably necessary to establish claim/defense on L's behalf in conflict with C; (3) compliance with other laws/court order

36

Conflict of interest (lawyer's personal interest)

(MR) L must not represent C if the representation may be materially limited by L's own interests unless (i) L believes (subjective and objective) he can provide competent/diligent representation to affected C; (ii) the presentation is not prohibited by law; (iii) the affected C gives informed consent, confirmed in writing

(CA) lawyer only needs to provide written disclosure of any personal interests that might substantially affect representation

37

C/I (opposing Ls related)

MR: related Ls (parent, child, sibling or spouse) cannot represent Cs in same matter, unless each client gives informed consent

CA: also includes clients of L, lives with L, has intimate personal relationship with L, unless L gives C written disclosure of relationship

38

C/I sexual relations with C

MR: not allowed unless consensual sexual relations predates the L/C relationship (cannot be waived)

CA: (1) L cannot demand sexual relations with C as condition of representation, (2) use coercion/intimidation or undue influence in entering relations with client, or (3) continue representation if sexual relations cause L to perform L's duties incompetently; (4) rules do not apply to ongoing consensual relations that predate L/C relationship

39

Lawyer as witness

MR: L is not permitted to represent C if L is likely to be a necessary witness unless testimony relates to an uncontested issue; value of legal services; or disqualification would be a substantial hardship to C

CA (jury trials only): L is not permitted to represent C unless the testimony relates to an uncontested matter; value of legal services; or if L obtains C's informed written consent

40

Proprietary interest in causes of action

(MR) not permitted except (i) when L acquires a lien to secure fee payment or (ii) contingent fees

41

Financial assistance to C

MR: prohibited with respect to pending litigation except L is permitted to advance litigation costs to C

CA: (1) not permitted to directly/indirectly pay for personal/business expenses of a prospective or existing C; (2) but can be paid to third party w/ C's consent from funds collected as result of representation; (3) but L is permitted to advance reasonable litigation costs to C; (4) can lend money to C if C promises in writing to repay loan

42

Business transaction with C/adverse interest

not permitted unless terms are fully disclosed (and understood by C) in writing; fair and reasonable to C; and C is advised of desirability of and given opportunity to seek independent counsel; client gives written consent

43

literary/media rights

(MR only) not permitted prior to the conclusion of representation

44

soliciting gifts

L cannot solicit a gift/prepare an instrument giving a substantial gift to L (unless related) but unsolicited gifts are generally acceptable if they meet the standards of fairness

45

Prospectively limiting malpractice recovery

MR: permitted if C seeks independent counsel regarding agreement

CA: prohibited

46

Settlement of legal malpractice claim

permitted if C is informed in writing of advisability of retianing new counsel and is given a reasonable opportunity to seek independent counsel regarding agreement

47

C/I current clients (MR)

(actual conflict only) L cannot represent Cs with directly adverse interests or significant risk representation will be materially limited by L's responsibility to current client unless (1) L reasonably believes (subjective and objective standards) that he can provide competent/diligent representation, (2) the representation is not prohibited by law, (3) Cs are not opposing parties in same lawsuit or transaction, and (4) Cs give informed written consent

Simultaneous representation of clients whose interests are only economically adverse in unrelated litigation, is not C/I.

48

C/I current clients (CA)

(actual and potential conflicts)—need informed written consent to represent (1) Cs with potential or actual conflicts, (2) to represent current C and in a separate matter take on new C with interests adverse to current C, or (3) to accept a new C because representation of current C leads to confidential information material to new C’s matter

49

C/I current and former Cs (MR)

L cannot represent a new C in the same or substantially related matter (same transaction or substantial risk that confidential information obtained from former C could materially advance new C’s position) as a former C if new C’s interests are materially adverse to the former C’s interests (unless former C gives informed written consent)

50

C/I current and former Cs (CA)

L cannot accept employment adverse to former C when L has obtained confidential information material to new employment due to representation of former C, without his informed written consent

51

L switches private firms

L cannot represent a person in the same or substantially related matter when the lawyer's previous firm has represented a client whose interests are materially adverse to that new person and about whom the lawyer had acquired confidential information that is material to the matter; the former client may given informed written consent.

52

Screening

C/I will not be imputed if disqualified L is screened off and doesn't share the fee, and written notice and certification of compliance with ethical rules is given to former C

53

Former government L

(MR) prohibited from representing C in a matter (need not be adverse) in which L participated personally and substantially as a government L; unless appropriate gov. agency gives informed written consent

No similar rule in CA

54

C/I prospective Cs

cannot represent a client with interests materially adverse to those of a prospective client in the same or substantially related matter if the lawyer received information from the prospective client that could be signficiantly harmful to that person in the matter unless both Cs give informed written consent or there is limited exposure, timely screening, no sharing of fee, and notice to prospective C

55

Third party payment to L

MR: not permitted unless C gives (1) informed consent; (2) no interference with L's professional judgment; (3) L/C confidentiality is preserved

CA: in addition, C must consent in writing

56

Organization as C

L owes duty of loyalty/confidentiality to organization; dual representation is permitted as long as no other conflicts exist; but L must explain C's identity to constituents when organization's interests become adverse to those of the constitutents

57

Organization as C (rectifying misconduct)

L must proceed as is reasonably necessary in the best interest of the organization when he learns of action by an employee that is likely to cause substantial injury to organization

58

Reporting misconduct (within organization)

MR: L may report to higher authority in the organization if L reasonably believes it in the best interest of organization

CA: may also urge reconsideration of matter

59

Reporting misconduct (outside organization)

MR: if higher authority fails to act in timely or appropriate manner, and it is a clear violation of law and lawyer reasonably believes it is reasonably certain to result in substantial injury to organization, L can report to an outside authority to the extent necessary to prevent substantial injury

CA: L must honor duty of confidentiality; may only withdraw; L may reveal info as necessary to prevent a criminal act he reasonably believes is likely to result in death or substantial bodily harm

60

Conflicts based on L's services as arbitrator, mediator or judge

(MR) L may not represent C in a matter in which L participated personally and substantially unless all parties give informed written consent

61

Compentence

L must possess the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation (CA also includes duty to supervise)

CA: lawyer not intentionally, recklessly or repeatedly fail to perform legal services wit competence (diligence, learning and skill, mental, emotional, and physical ability reasonably necessary for the performance of such services)

62

L lacks competence

(1) L must decline/withdraw; (2) become competent without unreasonable delay; or (3) associate with competent counsel

63

Diligence

L must be dedicated and committed to C's interests despite inconvenience/obstruction, control his workload, act with reasonable promptness and pursue all matters to completion

64

Impartiality, civility, courtesy and decorum

L must not disrupt a tribunal; must present evidence and argument so C's cause is decided according to law; refrain from abuse or hostile conduct; and not improperly influence a judge/juror

65

Duty to avoid frivolous claims

MR: L cannot bring claims unless there is a basis in law and fact for doing so that is not frivolous (good faith argument for change in existing law is not frivolous)

CA: L cannot seek or continue employment if L knows or should know that a claim is not warranted under existing law (unless it can be supported by good faith argument for change)

66

Duty to expedite litigation

L must make reasonable efforts to expedite litigation consistent with interests of C (course of action must be for a substantial purpose other than delay)

67

Duty of candor to tribunal

MR: L must not knowingly make (and must correct) false statements of law or fact; but L is not under duty to reveal unfavorable facts unless doing so is necessary to avoid assisting C in a criminal/fraudulent act

CA: must not seek to mislead by artifice/false statement of law/fact

68

Fairness to opposing party (access to evidence)

(MR) L must not unlawfully obstruct another party's access to evidence or suppress/destroy/conceal a document having potential evidentiary value

CA: required to not suppress any evidence the L or C has legal obligation to reveal or produce

69

Inducement to witnesses

(1) L can pay non-expert witnesses reasonable compensation for loss of time and travel; (2) can pay expert witnesses a reasonable fee for professional services and travel

70

Witness fraud and perjury

MR: L prohibited from knowingly (actual knowledge) offering false evidence and may refuse to admit evidence that L reasonably believes is false

CA: L must only employ those means consistent with the truth, and never seek to mislead the judge by artifice or a false statement of fact/law

71

Learning of false material evidence after it's offered

MR: L must take reasonable remedial measures and urge client to retract/correct false statement; if that doesn't work, and withdrawal not permitted/won't remedy situation then must make disclosure reasonably necessary to remedy situation

CA: no rule on this

72

Client fraud and perjury (criminal defendant)

MR: L prohibited from refusing to offer D's testimony when L reasonably believes, but does not know, that testimony is false (L must take remedial measures when he knows testimony is false, and if C refuses to correct statement L must withdraw)

CA: if D commits perjury, L may ask for permission to withdraw; if denied, L may embrace a narrative approach and continue to question D up to point of falsehood/may not rely on perjured testimony in closing

73

Threatening charges

CA: prohibited from threatening to bring criminal, administrative or disciplinary charges in effort to obtain advantage in a civil dispute

74

Communications with C

duty to keep C informed of status of matter and to respond to C's reasonable requests for info so C is able to make informed decisions (including settlement offers and plea bargaining)

75

Improper ex parte communication

L is not permitted to do so unless for "housekeeping" matters or for an emergency

76

Communication with jurors

May NOT communicate with juror before and during the proceeding; After proceeding, can communicate with juror consent, but not to harass, embarrass or influence juror’s actions in future jury service

77

Truthfulness in statements to third person

L must not knowingly make a false statement/misrepresentation of material fact to a third person; if duty of confidentiality prohibits L from disclosing facts about C's commission of crime/fraud and continued representation would assist with crime/fraud, L must withdraw and notify affected third party of withdrawal

78

Communication with persons represented by counsel

L is not permitted to communicate about the subject of representation with any person L actually knows is represented by counsel unless L has consent of other L or is authorized to do so by law

79

Communication with person unrepresented by counsel

may not state/imply he is disinterested; when L knows or should know that an unrepresented person misunderstands L's role, L must make reasonable efforts to correct misunderstanding; can't given legal advice to unrepresented person

80

Respect for rights of third persons

L must not use means that have no substantial purpose other than to embarrass, delay or burden a third party

81

Trial publicity

L is not permitted to make an extra-judicial statement that L knows or reasonably should know will be disseminated publicly and have a substantial likelihood of materially prejudicing an adjudicative matter in a proceeding (unless to protect C from substantial undue prejudicial effect of recent publicity not initiated by C or L)

82

Special responsibilities of prosecutor

(1) must lay charges only when supported by probable cause; (2) see that D is accorded all of his constitutional due process rights; (3) seek a guilty verdict based on the evidence and showing of proof beyond a reasonable doubt; (4) take special precautions to prevent and reverse convictions of innocent Ds; (5) Timely disclose all exculpatory evidence and information

83

Advertising

L must not make false or materially misleading statements about L or his services

MR: ad must include name, address; can claim specialization

CA: ads cannot guarantee outcome of legal matter, promise immediate cash or quick settlements, or offer representation on a contingent basis unless it also indicates whether C will be responsible for costs if no recovery is obtained

84

Solicitation (in person, live-telephone, real time electronic contact)

prohibited when a significant motive for L's action is L's pecuniary gain (strong possibility of undue influence, intimidation and over-reaching)

85

Runners/cappers

not allowed in CA

86

Solicitation (prospective Cs)

not allowed to contact prospective Cs who have communicated a desire not to be solicited or when the solicitation involves coercion, duress or harassment

87

Targeted mailing, recording or ads

L may issue written, recorded or electronic communications that satisfy the appropriate ethics rules, must be labeled clearly as advertising material

88

Misconduct by others

L is subject to discipline for misconduct by others if L (1) orders the misconduct; (2) ratifies it with knowledge of the specific conduct; or (3) is someone with direct supervisory authority over another L or law-related employee, and knows of conduct at a time when its consequences can be avoided/mitigated but fails to take reasonable remedial action

89

Misconduct by others (Partners in a law firm)

must make reasonable efforts to ensure the firm has measures in place that give reasonable assurances that all Ls and non-Ls in firm conform to MR

90

Misconduct by others (direct supervisor)

Must make reasonable efforts to ensure that the supervised person's conduct conforms to MR

91

Duties of subordinate Ls

not in violation of MR if acting in accordance with supervising L's reasonable resolution of an arguable question of professional duty

92

Reporting misconduct

MR: if L has actual knowledge of misconduct, he must report it if it has to do with material matters of clear and weight importance

CA: no requirement of L to report misconduct of another L

93

Unauthorized practice of law

L is obligated to ensure only authorized person engage in practice of law and are subject to discipline for assisting non-Ls in unlicensed practice of law

94

Exceptions to writing requirement for fees

(1) corporate C, (2) C waives written contract after full disclosure, (3) fee implied by previous similar services by L to C, (4) emergency situation to avoid prejudice to C, or (5) writing impracticable (Not applicable to contingent fee – that must be in writing, no exceptions)

95

Adverse legal authority

Must disclose controlling adverse legal authority if not disclosed by opposing counsel

96

requesting person not give relevant info to another party

may NOT request witness other than client to refrain from voluntarily giving relevant information to another party unless (1) the person is a relative or employee or other agent of client; and (2) lawyer reasonably believes that person's interests will not be adversely affected

97

Grounds of misconduct

1. violate MR
2. commit criminal act that reflects badly on lawyers honesty
3. engage in conduct involving dishonesty, fraud, deceit or misrepresentation (need not be criminal)
4. prejudicial to admin of justice
5. improperly influence gov. agency/official

CA: can't violate the rules or help others violate the rules