Professional Responsibility Flashcards

Question

Contracts *Limiting* a Lawyer’s Liability | (ABA vs. CA)

Answer 1

**_ABA:_** Contract is PERMITTED if the client is independently represented in making the agreement. **_CA:_** Lawyer CANNOT contract to limit prospective liability (for malpractice). **_ABA & CA:_** Lawyer CANNOT settle a claim for malpractice liability UNLESS: (a) client has independent lawyer; OR (b) the client is informed in writing that they may seek the advice of an independent lawyer (and is given an opportunity to do so).

Answer 2

Under both _ABA & CA_, a lawyer CANNOT engage in consensual sexual relations with a client UNLESS the relationship existed ***before*** the representation. \*In _CA_, a lawyer’s **spouse** or **registered domestic partner** are specifically *excluded* from the definition of “current client”.

Answer 3

The _Organization_ is the client, and lawyer MUST act in its best interest. \*The lawyer generally DOES NOT represent the officers, directors, or managers of the organization *individually* (unless otherwise agreed).

Answer 4

Lawyer MAY refer the matter to higher authorities within the organization. **_ABA:_** Permits disclosure to an outside source if there is a *clear violation of law* AND it’s needed to prevent *substantial injury*. **_CA:_** Only permits disclosure to outside source to prevent *death or substantial bodily harm* [see confidential info rule].

Answer 5

When: a) ***Discharged***; b) ***Physical/mental condition*** of lawyer exists (ABA = materially impairs the representation; CA = unreasonably difficult to effectively carry out representation); **OR** c) Continuing the representation would ***violate an ethics rule or other law.*** In _CA_: A lawyer must ALSO withdraw if he knows that the client is bringing an action (1) *without probable cause*, (2) for the *purpose of harassing or maliciously* injuring a person.

Answer 6

Lawyer must: 1) Provide timely notice to the client; **AND** 2) Promptly return any unspent fees and all of the client’s papers and property. \*After a lawsuit has been filed, the lawyer MUST obtain the court’sapproval to withdraw.

Answer 7

a) Client persists on a criminal or fraudulent course of action; b) Client used lawyer’s services to commit a crime or fraud; c) Client fails to substantially fulfill an obligation after reasonable warning (i.e. pay legal fees); d) Representation has been rendered unreasonably difficult by the client; e) Other good cause exists; f) Withdrawal will not materially damage the client’s interests; g) Client insists on an action the lawyer deems repugnant or has a fundamental disagreement with; **OR** h) Representation will result in an unreasonable financial burden on lawyer.

Answer 8

a) Client persists on a criminal or fraudulent course of action; b) Client used lawyer’s services to commit a crime or fraud; c) Client fails to substantially fulfill an obligation after reasonable warning (i.e. pay legal fees); d) Representation has been rendered unreasonably difficult by the client; e) Other good cause exists; f) Client insists on unwarranted claim, defense, position, or demand; g) Client freely and knowingly consents; h) Inability to work with co-counsel; i) Mental or physical condition makes representation difficult; OR j) Likely to violate an ethical rule.

Answer 9

To _knowingly_: a) Make a false statement of fact/law; b) Fail to correct a false statement of material fact or law; c) Fail to disclose known controlling legal authority (unless opposing counsel does so); **OR** d) Offer or use evidence that the lawyer knows to be false.

Answer 10

1) Try to persuade client to not commit perjury; 2) Attempt to withdraw from the case; **AND** 3) If attempt to withdraw is unsuccessful, then: a. _ABA:_ Lawyer must tell the court (including confidential info, if necessary). b. _CA_: Allow defendant to testify in narrative fashion (*cannot* disclose confidential info to the court).

Answer 11

To inform the tribunal of *all material facts* known that will enable the tribunal to make an informed decision (whether or not the facts are adverse).

Answer 12

It prohibits: Filing ***frivolous*** claims, defenses, arguments, or positions with the Court. \*A *good faith argument* for an extension, modification, or reversal of existing law is NOT deemed frivolous. In _CA_, the rule also specifically prohibits actions, defenses, positions, and appeals that *lack probable cause* AND are *intended to harass or maliciously injure.*

Answer 13

1) The other party is a relative, employee, or other agent of the client; **AND** 2) The lawyer reasonably believes that silence will not adversely affect the person’s interests.

Answer 14

For: a) Expenses reasonably incurred (i.e. travel, hotel); b) Reasonable compensation for loss of time; **OR** c) Reasonable fee to an expert witness. \*CANNOT offer an unlawful inducement to a witness *_or_* make payments contingent upon the content of the testimony or outcome of the case.

Answer 15

A lawyer CANNOT act as trial counsel when likely to be a *necessary witness*, _unless_: a) it relates to an uncontested issue; b) it relates to the nature/value of legal services rendered in case; c) the lawyer’s disqualification would create a substantial hardship on the client **[ABA only]**; **OR** d) lawyer has obtained informed written consent of the client **[CA only].**

Answer 16

If: a) Lawyer has **permission** from the ***other person’s lawyer***; \*Even if the represented person agrees, it is still a violation without the permission of their lawyer. b) Authorized by law or court order; **OR** c) Communications with a public official, board committee or body [**CA only**]

Answer 17

A lawyer participating in an investigation/litigation CANNOT make statements to the public which: 1) he ***knows*** (or should know), 2) will be ***disseminated by means of public communication***; **AND** 3) will have a ***substantial likelihood of materially prejudicing*** the case or influencing jurors.

Answer 18

Statements: 1) To protect the client from substantial undue prejudice. 2) Of the claim, offense, defense, or identity of persons (unless prohibited by law). 3) Regarding information in a public record. 4) To inform the public of an ongoing investigation. 5) Requesting assistance in obtaining evidence. 6) Warning of danger. 7) Of certain information in a criminal case.

Answer 19

Statements that have a *substantial likelihood* of **enhancing public disapproval** of the accused. Prosecutors MUST exercise *reasonable care* to prevent others under their supervision/direction from making statements that the Prosecutor would be prohibited from making.

Answer 20

Prosecutors MUST disclose any **exculpatory or mitigating evidence**. (The evidence must be provided *within a sufficient time* to allow the defendant to prepare for trial.)

Answer 21

If there are: 1) Sufficient facts; 2) To lead a reasonable person to believe; 3) That a crime was committed; **AND** 4) That the defendant committed the crime.

Answer 22

**_ABA:_** Must be ***reasonable*** in light of the skill, experience, time, degree of specialty, and difficulty required for the task. **_CA:_** Fee CANNOT be ***unconscionable or illegal***.

Answer 23

**_ABA_**: _NOT required to be in writing_, BUT the fee must be communicated to the client. **_CA_**: ALL agreements must be in *writing* unless: a) The fee is $1,000 or less; b) The work is routine work for a regular client; c) The client is a corporation; d) The client states in writing, after full disclosure, that a written fee agreement is not required; e) An emergency to avoid foreseeable prejudice to the client’s rights/interests; **OR** f) The circumstances make a written agreement impractical.

Answer 24

1) How the fee is calculated; 2) Nature of legal services to be provided; **AND** 3) The responsibilities of the lawyer and client.

Answer 25

An agreement between lawyer and client stating that the legal fees will be *paid out of any recovery* the client receives. Requirements: 1) Must be in a _writing signed by the client_; **AND** 2) _Include_: the % of recovery the lawyer will take, the expenses deducted from recovery, *_and_* whether the % will be taken before *or* after expenses.

Answer 26

The writing must also include: 1) How work/expenses *not* covered by the contingency fee will be charged; **AND** 2) That the fee is *not* set by law and is negotiable. Failure to comply with ethical rules, renders the agreement *voidable* at option of the client.

Answer 27

Prohibited: 1) In ***domestic relations matters*** – when payment is contingent upon divorce or amount obtained. 2) When representing a ***criminal defendant***.

Answer 28

When: 1) the total fee is reasonable; 2) the client agrees (incl. share of each lawyer) and the agreement is confirmed in writing; **AND** 3) the division is proportional to the work done by each lawyer (*unless* each is jointly responsible).

Answer 29

When: 1) the lawyers enter into a written division agreement; 2) the client consents in writing after full disclosure; **AND** 3) the total fee is not increased by virtue of the fee division agreement.

Answer 30

For: a) ***Death benefits*** paid to the deceased lawyer’s estate or heirs; b) Payments to an estate/representative for the ***purchase of a*** ***lawyer’s practice***; c) ***Compensation or retirement plan payments*** to non-lawyer employees; d) Court awarded legal fees that are shared with a ***non-profit organization*** that employed, retained, or recommended the lawyer; **OR** e) Authorized ***lawyer referral service [CA only]***.

Answer 31

Advertising is permitted in *_all formats_* if it: 1) Is not false or misleading; 2) Identifies at least one lawyer or law firm; 3) Does not hold out a lawyer to be a specialist, unless the lawyer is certified as such; **AND** 4) [**CA only**] clearly includes the word “Advertisement”, unless it’s apparent that the communication is an advertisement.

Answer 32

A lawyer _CANNOT solicit a person_ for professional employment by *in person, live telephone, or real time electronic contact* when a significant motive is for pecuniary gain, **UNLESS the person:** a) is alawyer; b) has a family, close personal, or prior professional relationship with the lawyer; **OR** c) routinely uses the type of legal services offered for business purposes [**ABA only**].

Answer 33

A lawyer may: a) Pay reasonable costs of permitted advertisements; b) Pay usual charges of a legal service plan or approved lawyer referral service; c) Pay for a law practice; **OR** d) Give nominal gifts as an expression of appreciation – *not* intended/expected to be compensation for recommending the lawyer’s services.

Answer 34

**YES.** However, non-lawyers CANNOT be partners, shareholders, or officers in a law firm or business that involves ***the practice of law***.

Answer 35

To: a) Violate ethical rules [or an attempt to – ABA only]; b) Commit a criminal act that reflects adversely on the honesty, trustworthiness, or fitness as a lawyer; c) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation; d) Engage in conduct that is prejudicial to the administration of justice; e) State/imply an ability to improperly influence a govt. agency or official; **AND/OR** f) Knowingly assist a judge or judicial officer in a violation of ethical rules or other law.

Answer 36

**_ABA:_** Must report another lawyer/judge when (1) the lawyer knows, (2) the other lawyer/judge violated an ethical rule, (3) that raises a substantial question, (4) as to their honesty, trustworthiness, or fitness as a lawyer/judge. **_CA:_** NOT required to report another lawyer/judge. But, all lawyers MUST self-report in certain instances.