Professional Responsibility - Bar Review

Question 1

Formation of client relationships

Answer 1

1. A person who consults a lawyer about the possibility of forming a client-lawyer relationship
2. with respect to a matter
3. is a prospective client. A lawyer-client relationship is formed when
4. a prospective client seeks legal services from a lawyer and the lawyer either
5. agrees to provide services or
6. fails to clearly decline services.

Question 2

Prospective clients

Answer 2

1. A person who consults with a lawyer about the possibility of forming a lawyer-client relationship
2. with respect to a matter
3. is a prospective client and entitled to the same degree of confidentiality as any other client.

Question 3

Organization as a client

Answer 3

1. A lawyer employed or retained by an organization represents the organization
2. acting through its duly authorized constituents.
3. A lawyer with an organization as a client is not representing the individual members of the organization and
4. could potentially violate the duty of confidentiality. E.g., CEO tries to use corporate attorney for personal purposes.

Question 4

Reporting organizational client malfeasance

Answer 4

1. If a lawyer for an organization knows that an officer, employee, or other person associated with the organization is engaged in a violation of a legal obligation to the organization, or
2. a violation fo law that reasonably might be imputed to the organization, the lawyer shall
3. proceed as is reasonably necessary in the best interests of the organization.
4. The lawyer shall refer the matter to the higher authority in the organization, including, if warranted by the circumstances, to the highest authority that can act on behalf of the organization as determined by applicable law.
5. In CA, the attorney may not inform outside authorities of organization malfeasance.

Question 5

Duty of competence

Answer 5

A lawyer shall provide competent representation to a client, which requires the legal knowledge, skill, thoroughness, and preparation necessary for the representation. A lawyer can make himself competent through reasonable preparation or by associating with a lawyer of established competence in the field. In CA, a lawyer shall not intentionally, recklessly, with gross negligence, or repeatedly fail to perform legal services with competence. Additionally, a lawyer must competently supervise their employees.

SKiPTS - Skill Knowledge Preparation Thoroughness Supervise

Question 6

Responsibilities of a subordinate lawyer

Answer 6

A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted as directed by another attorney. A subordinate lawyer does not violate the Rules if that lawyer acts in accordance with the supervisory lawyer’s reasonable resolution of an arguable question of professional duty.

Question 7

Allocation of authority

Answer 7

AACAACA - According ABA CA Abide Consult All settlements

1. According to both the ABA and CA, a lawyer shall abide by a client’s decisions concerning the objectives of representation and
2. shall consult with the client as to the means by which they are to be pursued.
3. The lawyer controls the legal strategy and tactical means of achieving those objectives.
4. The client must be told of all settlement offers, and only they can assent or decline.

-——

1. According to both the ABA and CA, a lawyer shall abide by a client’s decisions concerning the objectives of representation and
2. shall consult with the client as to the means by which they are to be pursued.
3. The client is responsible for determining their goals for representation, and the lawyer controls the legal strategy and tactical means of achieving those objectives.
4. The client must be told of all settlement offers, and only they can assent or decline.

Question 8

Duty of diligence

Answer 8

1. A lawyer shall act with reasonable diligence and promptness in representing a client.
2. In CA, a lawyer cannot intentionally, repeatedly, recklessly, or with gross negligence fail to act with reasonable diligence in representing their client.

Question 9

Duty of communication

Answer 9

SCORE - Significant Consent Objectives Requests Explain

1. A lawyer must keep the client reasonably informed about any SIGNIFICANT developments relating to the representation.
2. A lawyer must promptly inform the client of any decision requiring informed CONSENT,
3. consult their client regarding OBJECTIVES, and
4. promptly comply with reasonable REQUESTS for information.
5. A lawyer shall EXPLAIN a matter to the extent reasonably necessary for the client to make informed decisions regarding the representation.

Question 10

Reasonable fee

Answer 10

TiDE SPARR - Time Difficulty Expertise Specialty Preclusion Amount Relationship Results

A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. In CA, the fee may not be unconscionable (so exorbitant as to shock the conscience) or illegal. The factors to be considered in determining reasonableness of a fee include: 1) Time required; 2) Difficulty of case; 3) Expertise of lawyer; 4) Degree of specialty required; 5) Preclusion of other work; 6) Amount of fee; 7) Relationship with client; 8) Results obtained.

Question 11

Fee agreements

Answer 11

Written fee agreements are advisable under the ABA rules and mandatory in CA unless the fee is $1k or less, the work is routine, the client is a corporation, or the client waives the requirement for a writing.

Question 12

Fee sharing between lawyers

Answer 12

Proportionate Consents Reasonable increased unconscionable

Fees can be shared between lawyers not in the same firm if the division is in proportion to the service provided, the client consents in writing, and the total fee is reasonable. In CA, the fees cannot be increased because of the division and the fees aren’t unconscionable. At

Question 13

Contingency fee agreements

Answer 13

1. Signed writing
2. Percentage and deductions
3. Divorce, alimony, crimes
4. Not set by law - CA

These agreements state the lawyer’s fee will be paid out of any recovery the client receives. The agreement must be in writing, signed by the client, and include the percentage the lawyer will deduct, as well as the expenses and their deduction prior to or after the lawyer’s fee is deducted. A lawyer shall not charge a contingency fee in a divorce, alimony, or criminal case. In CA, the writing must include how expenses not in the agreement will be charged, and that he fees are not set by law, but are negotiable.

Question 14

Accepting payment from third parties

Answer 14

CIIC -Consents Independence Information Confidential

A lawyer shall not accept compensation for representing a client from one other than the client unless the client gives informed consent, there is no interference with the lawyer’s independence, and information relating to the representation of a client is protected.

Question 15

Financial and similar arrangements with non-lawyers

Answer 15

A lawyer or law firm shall not share legal fees directly or indirectly with a non-lawyer or with an organization that is not authorized to practice law, with limited exceptions. E.g., Licensed companies that market the services of licensed lawyers.

Question 16

Partnerships with non-lawyers

Answer 16

A lawyer shall not form a partnership or other organization with a non-lawyer if any of the activities of the partnership or organization includes the practice of law.

Question 17

Duty of financial integrity

Answer 17

A lawyer owes a duty of financial integrity to their client to bill appropriately and not to commingle funds.

Question 18

Duty of confidentiality

Answer 18

CIOMPA - Consents Impliedly Ordered Malpractice Prevent Advice

A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, and the disclosure is impliedly authorized in order to carry out the representation. Under the ABA, a lawyer may disclose confidential information when the client consents, when ordered by law, to defend in a malpractice suit, to prevent reasonably certain substantial crime and fraud, to secure legal advice for litigation between the lawyer and client, or to comply with court orders.

Question 19

Potential conflicts of interest

Answer 19

Occurs when the lawyer suspects a conflict but representation is not materially limited. ABA does not require informed written consent. CA does require informed written consent.

Question 20

Conflict of interest – current clients

Answer 20

No DM, BLOCD

1. No concurrent
2. Directly adverse
3. Materially limit
4. Belief
5. Law
6. Opponents
7. Consents
8. Disclosure

A lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if the representation is directly adverse to another client, or there is a significant risk that the lawyer’s representation will be materially limited due to personal interests or responsibilities to other clients or third parties, unless: 1) The lawyer reasonably believes he can provide competent representation; 2) Not prohibited by law; 3) Two party opponents are not represented by the same lawyer; and 4) Each client gives informed consent in writing (In CA, both disclosure and consent must be in writing).

Question 21

Conflict of interest – former clients

Answer 21

A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or substantially related matter when the person’s interests are materially adverse to the interests of the former client unless a former client gives informed consent.

Question 22

Conflict of interest – firms

Answer 22

When lawyers are associated with a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so.

Question 23

Business transactions with a client

Answer 23

SAPP FUD COW - Security Adverse Possessory Pecuniary Fair Understood Disclosed Consent Outside Writing

A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security, or other pecuniary interest adverse to a client unless: the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in a writing that can be reasonably understood by the client, the client is advised to consult with outside counsel and is given a reasonable opportunity to do so, and the client consents in writing.

Question 24

Gifts

Answer 24

A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift, unless the lawyer is related to the client.

Question 25

Duty of loyalty

Answer 25

BICI-CICI-CAP Best Interests Competing Interests Consent Informed Counsel Independent California Actual Potential A lawyer owes his clients a duty of loyalty, which requires that they must act in the client’s best interests and avoid conflicts. If representing clients with competing interests, an attorney must advise the parties and encourage them to seek independent counsel. The model rules encourage advisement in writing, that the client be advised of the conflict, and waive their rights related to the conflict. In CA, writing is required when an attorney represents clients with actual or potential conflicts.

Question 26

Permissive withdrawal

Answer 26

H CRUFFO - Harm Crime Repugnant Unreasonably Financial Fails Other Under the ABA, a lawyer may seek to withdraw if it can be done without materially harming the client. If it will harm the client, a lawyer may only withdraw if: 1) The client persists in crime or fraud; 2) Lawyer learns previous services were used to perpetuate crime; 3) The client insists upon taking action the lawyer finds repugnant; 4) Client fails to pay; 5) Representation will lead to a financial burden on the lawyer 6) Client has made representation unreasonably difficult; 7) Other good cause.

Question 27

Mandatory withdrawal

Answer 27

VFF-POM - Violation Fired Fraud Physical Or Mental A lawyer shall inquire into and assess the facts and circumstances of each representation to determine whether the lawyer may accept or continue the representation. A lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: 1) The representation will result in violation of the Model Rules or other law; 2) The lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client; 3) The lawyer is discharged; 4) The client or prospective client seeks to use or persists in using the lawyers services to commit or further a crime or fraud, despite the lawyer’s discussion regarding the limitations on the lawyer to assist with the proposed conduct.

Question 28

Withdrawal in CA

Answer 28

PHUACA -Probable Harass Unspent After Court Approval Required if the lawyer knows the client is bringing a case without probable cause or for the purpose of harassment. The lawyer must return unspent legal fees, notify the client and return their materials, and cannot hold materials pending payment. ABA and CA rules require that the lawyer obtain court approval if they seek withdrawal after the action was filed.

Question 29

Termination of representation

Answer 29

TERRPP -Time Employ Reasonable Refund Papers Property Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled, and refunding any advance payment of fees or expenses that have not been earned or incurred.

Question 30

Duty of candor toward the tribunal

Answer 30

FFFF A lawyer shall not knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of a material fact or law previously made to the tribunal by the lawyer, or fail to disclose to the tribunal legal authority known to be adverse or offer evidence known to be false. In CA, a lawyer is required to employ only means consistent with the truth, and never seek to mislead any judicial officer with false statements.

Question 31

Duty of fairness to opposing party and counsel

Answer 31

DOAFEC - Destroy Obstruct Alter Falsify Evidence Conceal A lawyer shall not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value. A lawyer shall not falsify evidence, counsel or assist a witness in testifying falsely, or offer an inducement to a witness that is prohibited by law.

Question 32

Communication with represented parties

Answer 32

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law or a court order.

Question 33

Duty of client candor remedial measures

Answer 33

If a lawyer knows of false testimony of a client during a deposition, eh client must take reasonable measures to remonstrate the client confidentially, advise the client of the lawyer’s duty of candor, and seek the client’s assistance to correct it.

Question 34

Lying clients

Answer 34

A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging in, or has engaged in criminal or fraudulent conduct relating to the proceedings shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. In CA, during criminal trials, the lawyer may allow the client to testify in the narrative without disclosing perjury.

Question 35

Malpractice liability

Answer 35

A lawyer may not make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless the client is independently represented in making the agreement. IN CA, a lawyer may not limit their malpractice liability.

Question 36

Referrals

Answer 36

Under the ABA, a lawyer may not give anything of value to a person for recommending the lawyer’s services, but they may engage in mutual referral of clients. In CA, referral fees can be paid if the client consents in writing, the fee does not increase costs to the client, and is not unconscionable.

Question 37

Reporting professional misconduct

Answer 37

A lawyer who knows that another lawyer/judge has committed a violation of the Model Rules that raises a substantial question as to that lawyer’s honest, trustworthiness, or fitness as a lawyer in other respects, shall inform the appropriate professional authority. In CA, a lawyer is required to report fraud, misappropriation of funds, and other criminal acts or conduct that raise “a substantial question” about the lawyer’s “honesty, trustworthiness, or fitness as a lawyer” if: 1) Charged with a felony; 2) Convicted of a serious crime; 3) Found guilty of a crime committed in a professional capacity; 4) Disciplined; 5) Sanctioned for $1,000 or more; 6) Sued for malpractice; or 7) A court judgement finds the lawyer grossly incompetent or willfully misrepresented a client.

Question 38

Misconduct

Answer 38

ACT-DiP-JuD - Assist Crime Trust Dishonesty Prejudicial Judge Discrimination It is professional misconduct for a lawyer to: 1) Violate or attempt to violate the Model Rules, knowingly assist another in doing so, or do so through acts of another; 2) Commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects; 3) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation; 4) Engage in conduct that is prejudicial to the administration of justice; 5) State or imply an ability to influence improperly a government agency or official to achieve results by means that violate the Model Rules or other law; 6) Knowingly assist a judge or judicial officer in conduct that is a violation of the applicable rules of judicial conduct and other law; or 7) Engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status, in conduct related to the practice of law.

Question 39

Third party payments

Answer 39

Allowing a third party to pay for legal fees is permissible, as long as such an agreement prohibits the third party from controlling the course of the representation. The third party has no privilege to be apprised of the case or of any confidential communication. Also, the client must give informed consent. In CA, this consent must be in writing.

Question 40

Advance of expenses

Answer 40

Under both the ABA and CA rules, a lawyer may advance litigation expenses. The agreement must be in writing and must state that the advance is a loan requiring repayment. In CA, a lawyer is permitted to loan funds to the client but must have a written agreement and the loan may not be used to entice the client in engaging the lawyer’s services.

Question 41

Loans and payment of personal or business expenses

Answer 41

A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except when advancing court costs and expenses of litigation when repayment is contingent on the outcome, and when the lawyer is representing an indigent client, where they may pay court costs and expenses of litigation on behalf of the client.

Question 42

Solicitation

Answer 42

A lawyer shall not solicit professional employment by live person-to-person contact when a significant motive for the lawyer doing so is the lawyer’s pecuniary gain, unless the contact is with a lawyer, friend, family, or they routinely use such services.

Question 43

Assisting non-lawyers in the unauthorized practice of law

Answer 43

A lawyer who assist a non-lawyer in unauthorized practice may be subject to civil and criminal penalties and is subject to discipline under the Model Rules. In CA, a lawyer must not employ, associate in practice with, or assist a person the lawyer knows or reasonably should know is a disbarred attorney with engaging int eh practice of law, but can hire them to preform para-legal duties.

Question 44

Trial publicity

Answer 44

DEP-LAP-DIC-PRAD - Dissemination Extrajudicial Prejudice - Limit Adverse Publicity - Defense Identification Claim - Public Record Apprehension Danger A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing the matter. Exceptions include statements to limit adverse publicity, when limited to the claim, defense, or identification of a person, when in a public record, warning of danger, or information necessary for apprehension.

Question 45

Inadvertent receipt of documents

Answer 45

A lawyer who receives a document or electronically stored information relating to the representation of the lawyer’s client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender.

Question 46

Sexual relations

Answer 46

A lawyer may not have sexual relations with a client unless a consensual sexual relationship existed between them when the lawyer-client relationship commenced.

Question 47

Ex parte communications with judges/officials in capacity

Answer 47

A lawyer is not permitted to communicate ex parte with persons serving in an official capacity in the proceeding, except for logistics and emergency information.

Question 48

Conduct involving deceit, dishonesty, fraud, or misrepresentation

Answer 48

Under the ABA, it is professional misconduct for a lawyer to engage in any of these activities.

Question 49

Threats

Answer 49

In CA, a lawyer shall not threaten criminal, administrative, or disciplinary charges to obtain an advantage in a civil suit. Rule 3-10 is not available during criminal cases.

Question 50

Special responsibilities of a prosecutor

Answer 50

PAWDOP - Probable Attorney Waiver Disclosure Order Protective The prosecutor in a criminal case shall: 1) Refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause; 2) Make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel, and has been given a reasonable opportunity to obtain counsel; 3) Not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing; and 4) Make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information know to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.