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Professional Responsibility [Highly Tested Rules] Flashcards

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1
Q

What are the ways a lawyer-client relationship can be formed?

A

A lawyer-client relationship may be formed:
1. by express oral or written agreement between the lawyer and client;
2. by implied agreement; OR
3. by a court’s appointment of counsel

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2
Q

How is a lawyer-client relationship formed by implied agreement?

A

A lawyer-client relationship is formed by implied agreement when:
1. a prospective client seeks legal advice or services from a lawyer in their professional capacity;
2. the lawyer fails to make clear that he does not want to undertake the representation; and
3. the lawyer knows or should know that the prospective client is reasonably relying on the lawyer to provide the legal services

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3
Q

Which descisions are the client’s to make, and which decisions are the lawyer’s?

A

A lawyer must abide by the client’s substantive decisions after the lawyer has consulted with the client, and the lawyer is responsible for employing the appropriate legal strategy

The client has the final decision as to:
1. whether to accept a settlement offer;
2. what plea to enter;
3. whether to waive a jury trial in a criminal case; AND
4. whether the client will testify in a criminal case

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4
Q

When may a lawyer limit the scope of a representation?

A

A lawyer may limit the scope of the representation if:
1. the limitation is reasonable under the circumstances; AND
2. the client gives informed consent

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5
Q

What are the rules regarding advising or assisting a client in criminal or fraudulent conduct?

A

ABA: A lawyer must NOT counsel or assist the client in illegal or fraudulent conduct
* The lawyer may advise the client of the legal consequences of a proposed course of action, but if the client insists on pursuing an illegal or unethical course of conduct, the lawyer must withdraw

CA: The California rule also prohibits a lawyer from assisting a client in conduct that violates a court rule or ruling
* The commentary also provides that, if California law conflicts with federal or tribal law (e.g., with respect to marijuana laws), the lawyer must inform the client about the related federal or tribal law or policy

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6
Q

To whom does a lawyer owe a duty when the client is an organization?

A

When a lawyer’s client is an organization, the lawyer represents and owes a duty to the organization, not the people associated with the organization, and the lawyer must explain this whenever the organization’s interests are adverse to those of the individuals at the organization with whom the lawyer is dealing

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7
Q

What must a lawyer do to protect an organizational client’s interests?

A

If a lawyer learns that a person associated with the organization has acted, or is about to act, in violation of a duty to the organization or the law in a way that might be imputed to the organization, the lawyer must proceed as reasonably necessary to protect the organization’s interests, which ordinarily involves reporting the matter to a higher authority in the organization

Outside Reporting:
If the highest authority in the organization fails to act, the lawyer may (but is not required to) report the information to appropriate persons outside the organization to the extent that reporting is necessary to prevent substantial injury to the organization
* CA: The CA Rules do NOT authorize outside reporting UNLESS an exception to the duty of confidentiality applies; if the highest authority in the organization fails to take action, the lawyer may withdraw

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8
Q

When MUST a lawyer withdraw from (or decline to accept) a representation?

A

A lawyer MUST decline to take on a representation, or MUST withdraw from representation, if:
1. the representation will result in a violation of the rules of professional conduct or other law;
2. the lawyer’s physical or mental condition substantially impairs the lawyer’s ability to represent the client;
3. the lawyer is discharged by the client; OR
4. CA: the client is bringing an action, conducting a defense, asserting a position in litigation, or taking an appeal, without probable cause and for the purpose of harassing or maliciously injuring any person

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9
Q

When MAY a lawyer withdraw from a representation under the ABA Rules?

A

Under the ABA Rules, a lawyer MAY withdraw from representation if:
1. the client persists in a criminal or fraudulent course of action involving the lawyer’s services;
2. the client has already used the lawyer’s services to perpetrate a crime or fraud;
3. the client fails substantially to fulfill an obligation to the lawyer (e.g., paying bills) and has been given reasonable warning that the lawyer will withdraw if the obligation is not fulfilled;
4. the representation has been rendered unreasonably difficult by the client;
5. the client insists on taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;
6. the representation will result in an unreasonable financial burden on the lawyer; OR
7. withdrawal can be accomplished without material adverse effect on the client’s interests

EXCEPTION: When court ordered to do so, a lawyer must continue representation notwithstanding good cause for terminating the representation

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10
Q

When MAY a lawyer withdraw from a representation under the CA Rules?

A

Under the CA Rules, a lawyer MAY withdraw from representation if:
1. the client persists in a criminal or fraudulent course of action involving the lawyer’s services;
2. the client has already used the lawyer’s services to perpetrate a crime or fraud;
3. the client fails substantially to fulfill an obligation to the lawyer (e.g., paying bills) and has been given reasonable warning that the lawyer will withdraw if the obligation is not fulfilled;
4. the representation has been rendered unreasonably difficult by the client;
5. the lawyer is unable to work with co-counsel, and withdrawing would serve the client’s interests;
6. the lawyer’s mental or physical condition makes it “difficult” to continue representing the client (but not severe enough to require mandatory withdrawal); OR
7. the client knowingly and freely assents to termination of the representation

EXCEPTION: When court ordered to do so, a lawyer must continue representation notwithstanding good cause for terminating the representation

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11
Q

What must a lawyer do upon termination of a representation?

A

When terminating representation, a lawyer must take steps to the extent reasonably practicable to protect a client’s interests, such as:
1. giving reasonable notice to the client;
2. affording the client time to retain other counsel;
3. surrendering papers and property to which the client is entitled; AND
4. refunding any unearned advance payments

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12
Q

What does the duty of competence require?

A

A lawyer owes a duty of competence to their client, which requires the lawyer to apply the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation, including by keeping abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology
* CA: The CA Rules also require the lawyer to apply the mental, emotional, and physical ability reasonably necessary for the performance of legal services
* EXCEPTION: In an emergency, a lawyer may give advice or assistance to a client in a matter in which the lawyer would ordinarily lack competence, but such assistance should be limited to that reasonable necessary under the circumstances

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13
Q

What does the duty of competence require when a lawyer lacks knowledge or experience?

A

If a lawyer lacks knowledge or experience in a particular field, the lawyer must NOT undertake the representation UNLESS:
1. the lawyer acquires sufficient knowledge and skill through necessary study before performance is required; OR
2. the lawyer associates or consults with a lawyer of established competence in the field

CA: The CA Rules provide that a lawyer must not intentionally, recklessly, repeatedly, or with gross negligence fail to perform legal services with reasonable competence
* This means that a California lawyer generally is NOT subject to discipline for a minor, isolated breach of the duty of competence

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14
Q

What does the duty of diligence require?

A

A lawyer must act with reasonable diligence and promptness in representing a client, which includes:
1. controlling their workload so that each matter can be handled competently; AND
2. acting with commitment and dedication to the client’s interests

CA: The CA Rules provide that a lawyer must not intentionally, recklessly, repeatedly, or with gross negligence fail to perform legal services with reasonable diligence
* This means that a California lawyer generally is NOT subject to discipline for a minor, isolated breach of the duty of diligence

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15
Q

What does the duty to communicate require?

A

The duty to communicate requires a lawyer to:
1. explain the matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation;
2. promptly inform the client of any decision or circumstance that requires the client’s informed consent;
3. reasonably consult with the client about legal strategy;
4. keep the client reasonably informed about the status of the matter, including all significant developments;
5. promptly comply with the client’s reasonable requests for information; AND
6. consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by law or ethical rules

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16
Q

What does the duty to communicate require with respect to plea bargains and settlement offers under the ABA Rules?

A

Under the ABA Rules, a lawyer must promptly inform the client of any settlement offer or proffered plea bargain unless the client has previously (1) indicated that the proposal will be acceptable or unacceptable or (2) authorized the lawyer to accept or reject the offer

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17
Q

What does the duty to communicate require with respect to plea bargains and settlement offers under the CA Rules?

A

Under the CA Rules, a lawyer must ALWAYS promptly communicate the following to a client, regardless of the circumstances:
1. in a criminal case, all terms and conditions of a proposed plea bargain or other dispositive offer; AND
2. in all other matters, all amounts, terms and conditions of any written settlement offer
> NOTE: In accordance with the general duty to communicate, an oral settlement offer must be communicated to the client if it constitutes a significant development (which will almost always be the case)

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18
Q

When may a lawyer withhold information from a client under the ABA Rules?

A

Under the ABA Rules, a lawyer may delay communicating information to a client if the client would be likely to react imprudently to an immediate communication

NOTE: The lawyer may only delay disclosure; the lawyer must eventually disclose the information

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19
Q

When may a lawyer withhold information from a client under the CA Rules?

A

Under the CA Rules, a lawyer may delay communicating information to a client only if the lawyer reasonably believes that the client would be likely to react in a way that may cause imminent harm to the client or others

NOTE: The lawyer may only delay disclosure; the lawyer must eventually disclose the information

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20
Q

What do the CA Rules specifically require a lawyer to disclose to a client regarding professional liability insurance?

A

The CA Rules provide that:
* when a lawyer does NOT have professional liability insurance, they must inform the client in writing at the time of engagement
* if a lawyer loses their professional liability insurance during the representation, they must inform the client within 30 days

EXCEPTIONS: Disclosure is NOT required when:
1. the representation will not exceed 4 hours;
2. the lawyer is acting within their direct employment as a government lawyer or in-house counsel; OR
3. the lawyer is rendering legal services in an emergency

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21
Q

What does the duty of confidentiality require?

A

A lawyer must NOT reveal any information relating to the representation of a client, regardless of the source of information, unless an exception applies
* The duty of confidentiality requires a lawyer to take reasonable measures to prevent unauthorized access to, or inadvertent disclosure of, the client’s confidential information

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22
Q

What is the scope and duration of the duty of confidentiality?

A

SCOPE:
The duty of confidentiality applies regardless of whether the client requested that it be kept “confidential” or whether its revelation might harm or embarrass the client; it applies regardless of the source of the information, and it prevents all types of disclosure

DURATION:
The duty of confidentiality applies to information gained during consultations with prospective clients, even if the lawyer is not hired, and it continues to apply after the lawyer-client relationship has terminated and even after the client has died

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23
Q

What are the exceptions to the duty of confidentiality under the ABA Rules?

A

Under the ABA Rules, a lawyer may disclose confidential information:
1. if the client gives informed consent;
2. if the disclosure is impliedly authorized to carry out the representation;
3. to prevent reasonably certain death or substantial bodily harm;
4. to prevent the client from committing a crime or fraud that is reasonably certain to cause substantial financial loss to a person (or to rectify or mitigate the financial loss if the crime or fraud has already been committed), and the client is using or has used the lawyer’s services in furtherance of the crime or fraud;
5. to collect a legal fee or defend the lawyer from some charge or claim of wrongdoing;
6. to obtain confidential legal ethics advice;
7. to detect or address conflicts of interest resulting from an organizational change (e.g., change of employment, merger, or purchase of a law practice); OR
8. to comply with a court order or other law

NOTE: Even where an exception applies, the lawyer may disclose a client’s confidential information only to the extent reasonably necessary to meet the exception

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24
Q

What are the exceptions to the duty of confidentiality under the CA Rules?

A

Under the CA Rules, a lawyer may disclose confidential information:
1. if the client gives informed consent;
2. to prevent a future criminal act that is likely to result in death or substantial bodily harm; provided that, before disclosure, the lawyer must, if reasonable under the circumstances, (i) make a good faith effort to persuade the client not to commit or continue the criminal act or to pursue a course of conduct that will prevent the crime, and (ii) inform the client of the lawyer’s ability or decision to disclose the confidential information;
3. to collect a legal fee or defend the lawyer against some charge or claim of wrongdoing; OR
4. when compelled by court order or other law

NOTE: Even where an exception applies, the lawyer may disclose a client’s confidential information only to the extent reasonably necessary to meet the exeption

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25
What is the attorney-client privilege, and when does it terminate?
The **attorney-client privilege** allows a client to **refuse to testify and prevent their lawyer from testifying** before a court or other government tribunal about **confidential communications between them or their respective agents** that pertain to **legal services** * The attorney-client privilege attaches to consultations with prospective clients and continues after the representation ends **CA:** In **California**, the attorney-client privilege **terminates** after the client's death **when the client's estate is settled and the personal representative is discharged**
26
What are the exceptions to the attorney-client privilege?
The **attorney-client privilege** does **NOT** apply: 1. where the client seeks the attorney's services to ***enable or aid anyone*** to commit a ***future crime or fraud*** 2. to a communication that is relevant to an issue of ***breach*** (by either lawyer or client) of the ***duties arising out of the attorney-client relationship*** 3. where the ***client otherwise puts the legal services at issue*** in the case 4. in ***civil litigation*** between multiple persons who were ***formerly the joint clients*** of the lawyer 5. to a communication that is relevant to a ***dispute between persons claiming through the same deceased client*** 6. **CA:** when disclosure is ***necessary to*** ***prevent*** ***a CRIMINAL act*** that the lawyer ***reasonably believes*** is ***likely*** to result in ***substantial bodily injury or death*** to any person
27
What does the duty of loyalty require?
A lawyer owes a **duty of loyalty** to his client and **must avoid conflicts of interest**
28
What are the consequences of failing to avoid or properly address conflicts of interest?
A lawyer's **failure to avoid or properly address a conflict** of interest can result in: 1. ***disqualification as counsel*** in a litigated matter; 2. professional ***disciplinary action***; AND/OR 3. ***civil liability*** for legal malpractice
29
What is imputed disqualification, and when does it not apply?
Generally, a lawyer's **disqualifying conflict** of interest is **imputed to his entire firm** * **"Firm"** means any ***group*** of lawyers who ***practice closely together*** **EXCEPTIONS:** An **imputed disqualification** can be **waived** with the **informed consent** of the **affected client**, and imputed disqualification **does NOT apply**: 1. when the conflict is ***uniquely personal*** to the disqualified lawyer ***AND*** ***would not materially limit*** the representation of the client by the other lawyers in his firm (e.g., a conflict based on the lawyer's sexual relationship with a client); OR 2. when the conflict is based on certain situations involving the ***disqualified lawyer's prior representation or employment***, or the disqualified lawyer's ***consultation with a prospective client*** ***AND***: (i) the disqualified lawyer is ***timely screened*** from the matter, meaning they do not work on the matter, discuss it with those who do, or have access to case files (ii) the disqualified lawyer ***does not share in the fee*** from the matter (although receiving a general salary or partnership share is fine) (iii) the ***affected client is given notice*** to ensure compliance (iv) **CA:** if the disqualifying conflict is based on the **disqualified lawyer's relationship to a *former firm's* client**, the **CA Rules** also provide that the imputation will be cured **only if** the disqualified lawyer **did not *substantially participate* in the same or substantially related matter** giving rise to the conflict at such former firm
30
When does a concurrent conflict exist?
As a general rule, a lawyer must **NOT** represent a client if a **concurrent conflict** exists A **concurrent conflict** exists if 1. the client will be ***directly adverse*** to another client who is represented by the lawyer (whether in the same or a separate matter); OR 2. there is a ***significant risk that the representation of the client will be materially limited*** by the ***lawyer's personal interests*** or by the lawyer's ***duties*** to ***another client***, a ***former client***, or a ***third person***
31
When may a lawyer undertake a representation despite a concurrent conflict?
Notwithstanding the existence of a **concurrent conflict**, a lawyer **MAY** still undertake the representation IF: 1. the lawyer ***reasonably believes*** that they can ***competently and diligently represent each affected client*** despite the conflict (an objective ***"reasonably prudent and competent lawyer" standard***); 2. the representation is ***not prohibited by law***; 3. the representation ***does not involve*** asserting a ***claim by one client against another client*** represented by that lawyer in the ***same proceeding before a tribunal*** (i.e., the lawyer cannot represent parties on **opposite sides of the same litigation**); **AND** 4. each affected client gives [**ABA:** ***informed consent, confirmed in writing***] [**CA:** ***informed written consent***]
32
What is the rule regarding concurrent conflicts in criminal cases?
Although many concurrent conflicts of interest are resolvable by client consent in civil cases, the **ABA and CA Rules caution *against* representing co-defendants in a *criminal* case** due to the high likelihood that their interests will diverge
33
Under the CA Rules, what types of relationships must a lawyer ALWAYS disclose to a client?
Even where a **"material limitation"** conflict is ***not*** **present**, the **CA Rules** provide that a lawyer **must *always* provide** the client **written disclosure** of the following relationships: 1. the lawyer (or another lawyer in their firm) has a **legal, business, financial, professional, or personal relationship** with, or responsibility to, a ***party or witness*** in the client's matter; OR 2. the lawyer (or another lawyer in their firm) is an immediate **family member** of, **lives with**, is in an **intimate personal relationship** with, or is a **client** of the firm of, ***another party's attorney*** in the client's matter
34
What is a disqualifying "former client" conflict?
A lawyer must **NOT represent** a client whose interests are **materially adverse** to those of a **former client** in a matter that is the **same or substantially related** to a matter in which the lawyer represented the former client **UNLESS** the ***former client*** gives: **ABA:** ***informed consent, confirmed in writing*** **CA:** ***informed written consent***
35
When are two matters "substantially related" for purposes of former client conflicts?
Two matters are "substantially related" if: 1. they involve the ***same transaction or legal dispute***; OR 2. there is a ***substantial risk*** that ***confidential factual information*** that would ***normally have been obtained*** in the ***prior representation*** would ***materially advance the client's position*** in the ***subsequent matter***
36
What is a disqualifying conflict with a client of the lawyer's former firm?
If a lawyer's **former firm** represented a client in a matter and the lawyer **ACTUALLY ACQUIRED confidential information** that is **material** to the matter while working at the former firm, the lawyer **must NOT subsequently represent another person** in the **same or a substantially related matter** **ADVERSE** to the **former firm's client** **UNLESS** the ***former firm's client*** gives: **ABA:** ***informed consent, confirmed in writing*** **CA:** ***informed written consent***
37
How may imputation of a disqualifying "former firm" conflict be cured?
Where a lawyer's **former-client conflict arises out of the lawyer's association with a former firm**, the **imputation will be cured** and **does NOT disqualify other lawyers at his new firm** if: 1. the disqualified lawyer is ***timely screened*** from the matter 2. the disqualified lawyer ***does not share in the fee*** from the matter 3. the ***former client is given notice*** to ensure compliance 4. **CA:** the disqualified lawyer ***did not substantially participate*** in the same or substantially related matter while at the former firm **Conflict Can Also Be Waived** Additionally, the disqualified lawyer's new firm is **not disqualified** from representing the new client if the ***former client waives*** the conflict by giving: **ABA:** ***informed consent, confirmed in writing*** **CA:** ***informed written consent***
38
When does a firm have a disqualifying conflict in relation to a departing lawyer's client?
If a **lawyer represented a client in a matter and then left his firm, taking the representation** with him, his **former firm is NOT prohibited** from representing a client **adverse** to that former client **UNLESS**: 1. the matter is the ***same or substantially related*** to that in which the departing lawyer represented the former client; **AND** 2. ***at least one remaining lawyer*** in the firm ***has confidential information*** that is ***MATERIAL*** to the matter **Conflict Can Also Be Waived** Additionally, the former firm is **not disqualified** from representing the new client if the ***former client waives*** the conflict by giving: **ABA:** ***informed consent, confirmed in writing*** **CA:** ***informed written consent***
39
What is a prospective client?
A **prospective client** is a person who ***consults with a lawyer in good faith about the possibility of forming a lawyer-client relationship*** with respect to a matter * A person is **NOT** a prospective client if they ***unilaterally*** communicate information to a lawyer without any reasonable expectation that the lawyer is willing to discuss the possibility of representation
40
When does a lawyer have a disqualifying conflict with a prospective client?
A lawyer who **obtains confidential information** during a consultation with a **prospective client** must **NOT** subsequently represent a client **adverse** to the prospective client in the **same or a substantially related matter** if the confidential information could be **SIGNIFICANTLY HARMFUL** to the prospective client **unless** **BOTH** the **current client** and the **prospective client** give: * **ABA:** ***informed consent, confirmed in writing*** * **CA:** ***informed written consent*** **CA:** The **CA Rules** provide that a conflict exists if the **confidential information** gained from the prospective client is ***MATERIAL* to the current matter**; it does **NOT** need to be **"significantly harmful"** to the prospective client
41
How may an imputed disqualification on account of a prospective client conflict be cured?
If a lawyer has a **disqualifying prospective client-conflict**, it **will NOT be imputed** to other lawyers at his firm if they: 1. demonstrate that the ***disqualified lawyer took care to avoid exposure to more confidential information than was necessary*** to determine whether to represent the prospective client; 2. demonstrate that the disqualified lawyer is ***timely screened*** from the matter and ***will not share in the fee*** from the matter; AND 3. give ***written notice*** to the ***prospective client***
42
When does a former government lawyer have a disqualifying conflict on account of a prior matter, and how may imputation of that conflict to the lawyer's firm be cured?
A lawyer who **leaves government service and enters private practice** must **NOT** represent a private client in a matter in which the lawyer **participated personally and substantially** while in government service **UNLESS** the government agency gives: * **ABA:** ***informed consent, confirmed in writing*** * **CA:** ***informed written consent*** **Curing Imputation:** The former government lawyer's disqualifying conflict will **NOT be imputed** to other lawyers at his new firm if: 1. the disqualified lawyer is ***timely screened*** from the matter; 2. the disqualified lawyer ***does not share in the fee*** from the matter; AND 3. ***written notice*** is given to the ***government agency*** to ensure compliance
43
When does a former government lawyer have a disqualifying conflict on account of a information gained while a government lawyer, and how may imputation of that conflict to the lawyer's firm be cured?
If a lawyer **ACTUALLY received "confidential government information" about a person** while in government service, the lawyer **must NOT later represent a private client whose interests are adverse** to that person, when the information could be used to the **material disadvantage** of that person * ***"Confidential government information"*** means information gained under government authority that the government is prohibited from revealing and that is not available to the public **Curing Imputation:** Imputation to others at the lawyer's new firm will be cured if the disqualified lawyer is **timely screened** from the matter and **does not share in the fee**
44
What is the special conflict rule regarding use of a client's confidential information?
A lawyer must **NOT** use **confidential** information to a **client's disadvantage** **UNLESS**: 1. the client gives ***informed consent***; OR 2. an ***exception to the duty of confidentiality*** applies **NOTE:** A lawyer is similarly prohibited from using confidential information to the disadvantage of a **former** or **prospective** **client**, unless the information has become ***generally known***
45
What is the special conflict rule regarding business transactions with a client?
A lawyer must **NOT** enter into a **business transaction** with a client, or **knowingly acquire** an ownership, possessory, security or **pecuniary interest** that is **adverse** to a client, **UNLESS**: 1. the terms are ***fair*** to the client; 2. the ***terms and lawyer's role*** in the transaction are ***disclosed to the client in a writing*** that the client can reasonably understand; 3. the client is ***advised in writing that they should get independent advice from an outside lawyer*** before entering into the transaction; AND 4. the client gives ***informed consent***, in a ***writing signed by the client*** **NOTE:** This rule **does not apply to standard commercial transactions** between the lawyer and client for products or services that the client generally markets to others
46
Under the ABA Rules, what is the special conflict rule regarding a lawyer providing financial assistance to a client?
Under the **ABA Rules**, a lawyer **must NOT provide financial assistance** to a client in connection with **pending or contemplated litigation** **EXCEPT**: 1. the lawyer may ***advance*** court costs and litigation expenses, and the ***repayment may be contingent on the outcome*** of the case; 2. if the client is ***indigent***, the lawyer may ***pay the court costs and litigation expenses outright***; AND 3. a lawyer representing an ***indigent*** client ***pro bono*** may provide ***modest gifts*** to the client for ***basic living expenses***; however, the lawyer must ***not*** (i) promise or imply the availability of such gifts, (ii) seek or accept reimbursement from the client or anyone affiliated with the client, or (iii) publicize or advertise a willingness to provide such gifts to prospective clients
47
Under the CA Rules, what is the special conflict rule regarding a lawyer providing financial assistance to a client?
Under the **CA Rules**, a lawyer **must NOT provide financial assistance** to a client **EXCEPT**: 1. the lawyer may ***advance any expenses*** incurred in ***promoting or protecting*** the client's interests (regardless of whether in a litigated matter), and the ***repayment may be contingent on the outcome*** of the case; 2. if the client is ***indigent***, the lawyer may ***outright pay*** for any expenses incurred in ***promoting or protecting*** the client's interests; 3. ***after being hired***, the lawyer may ***lend the client money for any purpose*** if the client gives them a ***written promise to repay*** the loan; AND 4. with the ***client's consent***, the lawyer may ***pay, or agree to pay***, the ***client's expenses to a third party*** from ***funds collected for the client*** as a result of the representation
48
What are the specific conflict rules regarding a lawyer accepting compensation from third parties?
A lawyer **must NOT accept compensation** for representing a client from a **third party** **UNLESS**: 1. there is ***no interference*** with the lawyer's independence of professional judgment or the lawyer-client relationship; 2. ***confidential information*** relating to the representation of the client is ***protected***; AND 3. **ABA:** the client gives ***informed consent*** **CA:** the client gives ***informed written consent*** **CA:** Under the **CA Rules**, disclosure and consent are **not required** at all if: 1. nondisclosure or the compensation is otherwise ***authorized by court order***; OR 2. the lawyer is rendering legal services on behalf of a ***public agency or nonprofit organization*** that provides legal services to the public
49
What is the special conflict rule regarding settlement of a claim with a client?
A lawyer must **NOT settle a claim** or potential claim for **malpractice liability** with an ***unrepresented*** **client or former client** without: 1. ***advising*** that person ***in writing*** that ***independent counsel is desirable***; AND 2. giving that person a ***reasonable chance to consult*** with independent counsel
50
What are the special conflict rules regarding prospectively limiting malpractice liability?
**ABA:** Under the **ABA Rules**, a lawyer must **NOT** make an agreement **prospectively limiting the lawyer's malpractice liability** to a client unless the client is **independently represented** in making the agreement **CA:** The **CA Rules** **do not allow a lawyer to prospectively limit malpractice liability** to a client **under any circumstance**
51
What are the special conflict rules regarding sexual relationships with clients?
A lawyer **must NOT have a sexual relationship** with a client unless: 1. the sexual relationship ***pre-dates*** the lawyer-client relationship 2. **CA:** the lawyer and client are ***married*** or in a ***registered domestic partnership*** **NOTE:** If the client is an **organization**, the rule applies to a sexual relationship with a **constituent of the organization** who **supervises the lawyer's work** or **consults the lawyer** about the organization's **legal matters**
52
What is the special conflict rule regarding a lawyer's membership in a legal services organization?
A lawyer **MAY serve as a director, officer or member of a legal services organization** even though the organization serves persons whose interests are adverse to the lawyer's regular clients; however, the lawyer **must not knowingly participate in a decision or action** of the organization if doing so: 1. would be ***incompatible*** with the lawyer's ***obligations to a client under the general conflict of interest rules***; OR 2. would ***adversely affect the representation of one of the organization's clients*** whose interests are adverse to those of one of the lawyer's clients
53
What are the ABA Rules regarding legal fees?
Under the **ABA Rules**, a lawyer must **NOT** make an agreement for, charge, or collect an **unreasonable** fee or an unreasonable amount for expenses
54
What are the CA Rules regarding legal fees?
The **CA Rules** prohibit **illegal** or **unconsionable** fees (i.e., a fee ***so exorbitant and wholly disproportionate*** to the services performed as to ***shock the conscience***)
55
What factors are considered in determining whether a fee is reasonable under the ABA Rules? | "TENT FLAW"
Under the **ABA Rules**, the following factors are considered in determining whether a fee is ***reasonable***: 1. **T**ime and labor required 2. **E**xperience, ability and reputation of the lawyer 3. **N**ovelty and difficulty of issues involved 4. **T**ime limitations imposed by client or circumstances 5. **F**ees customarily charged within locality for similar work 6. **L**ikelihood that representation will preclude other employment 7. **A**mount involved and result obtained 8. **W**hether fee is fixed or contingent | "TENT FLAW"
56
What factors are considered in determining whether a fee is unconscionable under the CA Rules?
Under the **CA Rules**, in determining whether a fee is ***unconscionable***, a court will consider the factors applicable under the ABA Rules as well as: 1. ***Failure to disclose material facts*** 2. ***Fraud or overreaching*** in negotiating or setting the fee 3. ***Relative sophistication*** of lawyer and client 4. Whether the client gave ***informed consent***
57
What do the ABA Rules require for fee agreements?
Under the **ABA Rules**, a lawyer must, **before or within a reasonable time after** commencing a representation, **communicate the basis or rate of the fee** and the **expenses** for which the client will be responsible * As a general rule, fee agreements ***need NOT be in writing*** (except for contingency fee agreements), although a writing is preferable **EXCEPTION:** If the lawyer ***regularly represents*** the client and will be ***charging the same basis or rate*** as in other matters, this communication is ***NOT required*** each time
58
What do the CA Rules require for fee agreements?
Under **California law**, it if is **reasonably foreseeable** that the total expense to the client (including legal fees) **will exceed $1,000**, the fee agreement **MUST be in writing** to be enforceable **EXCEPTIONS:** Even if the total expense to the client will exceed $1,000, a **written agreement is NOT required** if: 1. the client is a ***corporation***; 2. the client states in ***writing*** that they ***do not want a written fee agreement***; 3. the legal services are the ***same kind of services*** that the client has ***previously received and paid for***; 4. the lawyer acted in an ***emergency*** to protect the client's rights; OR 5. a writing is ***impractical*** for other reasons
59
What are the rules regarding advance payments / retainers?
A lawyer **may require** an advance payment (including a flat fee), but the lawyer **must refund the unearned portion** of the fee if the client fires the lawyer or the lawyer does not perform the services * But a lawyer is **NOT required to refund** a **true retainer** fee (i.e., a fee that is paid solely to ensure the lawyer's availability) **CA:** The **CA Rules** specifically **prohibit** a lawyer from **telling the client** that any **fee is "nonrefundable,"** "earned on receipt," or similar **UNLESS**: 1. the fee is a ***true retainer*** (i.e., paid solely to ensure the lawyer's availability); AND 2. the client ***agrees in writing after disclosure*** that they will ***not be entitled to any refund***
60
What are the rules regarding contingency fees?
A **contingent fee** must be **reasonable**, and a lawyer **must not use a contingent fee** when the facts of the case make it **unreasonable** to do so **CA:** California law specifically **limits** the amount of contingency fee agreements in **medical malpractice** cases (maximum amounts start with 40% of the first $50,000, and end with 15% of any amount in excess of $600,000)
61
What are the rules regarding contingency fee agreements?
All **contingent fee agreements** must be in **writing** and **signed by the client**, and must **disclose**: 1. how the fee will be ***calculated*** 2. ***what expenses*** will be ***deducted*** from the recovery 3. whether expenses will be ***deducted before or after*** the contingent fee is ***calculated*** 4. what ***expenses*** the ***client must pay regardless of the outcome*** 5. **CA:** that the ***lawyer's percentage is not set by law*** and ***can be negotiated*** between the lawyer and client 6. **CA:** ***how*** the client will be ***charged for work not covered by the contingency*** Additionally, **at the end of the case**, the lawyer must give the client a **written statement** describing: 1. the ***outcome***; 2. the ***remittance*** to the client; AND 3. how the remittance was ***calculated***
62
When are contingency fee agreements prohibited?
A lawyer must **NOT** enter into a **contingent fee agreement** for: 1. defending a client in a **criminal case**; OR 2. representing a client in a **domestic relations case** where the fee is contingent on the ***securing of a divorce***, the amount of an ***alimony or child support award***, or the amount of a ***property settlement*** (but contingent fee agreements are permitted in a suit to recover post-judgment balances under an existing order)
63
What are the ABA Rules regarding sharing fees with outside lawyers?
Under the **ABA Rules**, a lawyer may **share legal fees** with a **lawyer at a different firm** **ONLY IF**: 1. the total fee is ***reasonable***; 2. either the ***split*** is (a) ***proportionate to the services performed*** by each lawyer, or (b) in some other proportion if ***each lawyer assumes joint responsibility*** for the matter; AND 3. the ***client agrees to the split*** in a ***writing*** that ***discloses each lawyer's share***
64
What are the CA Rules regarding sharing fees with outside lawyers?
The **CA Rules** **allow** **"true" referral fees** and do not require that the split among lawyers be proportionate to services or that the lawyers assume joint responsibility, **BUT**: 1. the ***agreement*** between the lawyers to divide the fee ***must be in writing***; 2. the ***total fee charged*** by all lawyers ***must not be increased solely by reason of the fee-splitting agreement***; AND 3. the client must provide ***informed written consent*** to the ***fee division and its terms***
65
What are the ABA/CA rules regarding sharing fees with non-lawyers?
A lawyer or law firm **must NOT share legal fees** with a **nonlawyer**, subject to the following limited exceptions: 1. paying a **death benefit** to a dead lawyer's estate or other designated persons 2. **purchasing a law practice** of a dead, disabled or disappeared lawyer and paying the purchase price to the estate or nonlawyer representatives 3. including nonlawyer employees in a **compensation or retirement program** (even if funded by legal fees) 4. sharing **court-awarded legal fees** with a **nonprofit organization** that employed or recommended the lawyer in the matter
66
What are the additional CA-only exceptions to the prohibition against sharing legal fees with non-lawyers?
The **CA Rules** recognize the additional exceptions to the rule against sharing legal fees with a nonlawyer: 1. sharing **legal fees** that are **not** court-awarded with a **nonprofit organization** that brought the lawyer into the matter if: (i) the organization qualifies as a **501(c)(3) exempt** organization; (ii) the lawyer enters into a **written agreement with the organization** to divide the fee; (iii) the **client gives informed written consent** to the proposed **fee division** and its **terms** (including the ***identity of the organization***); AND (iv) the **total fee charged by the lawyer is not increased** solely by reason of the fee division agreement 2. paying a **prescribed registration, referral or other fee** to a **lawyer referral service** established, sponsored and operated in accordance with the State Bar of California's Minimum Standards for Lawyer Referral Services
67
What are the rules regarding safeguarding client property?
**A lawyer** **MUST**: 1. ***identify and label*** securities and property of the client or third person and put them in a safe deposit box or other ***place of safekeeping*** as soon as practicable 2. ***promptly notify*** the client or third person ***when the lawyer receives funds or property*** in which the client or third person has an interest 3. ***promptly deliver funds or property*** to which the client or third person is entitled 4. ***render written accountings*** and ***maintain records for at least 5 years after final distribution of property***
68
What are the rules regarding separation of client funds?
All **money that a lawyer receives in connection with a representation** (whether from the client or a third party) must promptly be placed in an **interest-bearing client trust account**, separate from the lawyer's own personal and business accounts * The lawyer must **NEVER** place their ***own money*** or their ***firm's money*** into the client trust account, ***except for*** the sole purpose of paying ***bank service charges*** **CA:** The California separation of funds rule ***applies to all funds received or held*** by a lawyer for the ***benefit of a client***, or for the benefit of a ***third person to whom the lawyer owes a legal duty***, and the trust account must be maintained in ***California***, or, with the client's ***written consent***, in a ***different jurisdiction*** with which the ***client has a substantial relationship***
69
What are the rules regarding disputed funds?
When a **lawyer possesses property in which at least 2 persons claim interests** (one of whom may be the lawyer), the **disputed portion must be kept separate** by the lawyer until resolution of the dispute, but the lawyer **must promptly distribute** all portions of the property that are **NOT in dispute**
70
What are the rules regarding false statements of law made to a court?
A lawyer must **NOT** **knowingly**: 1. ***make a false statement of law*** to the court 2. ***fail to correct*** a ***previous false statement of law*** made to the court 3. ***fail to disclose*** to the court ***legal authority in the controlling jurisdiction*** that is ***directly adverse*** to the client's position and ***has not been disclosed by opposing counsel*** 4. **CA:** ***misquote*** to the court the language of a book, statute, decision or other authority
71
What are the rules regarding false statements of fact made to a court?
A lawyer must **NOT knowingly** **make a false statement of fact** to the court, or **fail to correct** a previously made false statement of **material** fact **NOTE:** As a general rule, a lawyer is under no obligation to volunteer a fact that is harmful to their client's case; however, in an **ex parte proceeding**, the lawyer must inform the court of **all material facts known to the lawyer** that will help the court make an informed decision
72
What are the rules regarding the offer of false evidence?
A lawyer **MUST refuse to offer evidence** that the lawyer ***knows*** is **false** * A lawyer **MAY refuse to offer evidence** that they ***reasonably believe*** is **false**, except for a criminal defendant's testimony on their own behalf **REMEDIAL MEASURES:** If a lawyer has offered evidence they **later discover is false**, they must take **reasonable remedial measures**: 1. ***urge the client to cooperate*** in withdrawing or correcting the false evidence; 2. if unsuccessful, ***seek to withdraw*** if necessary, and/or ***take other measures to strike*** the evidence; AND 3. if all else fails, ***disclose the situation to the judge***, even if that means disclosing confidential client information > **CA:** The **CA Rules** provide that reasonable remedial measures **must NOT involve revealing confidential client information**
73
What are the rules regarding perjury by a criminal defendant?
If the **client is a criminal defendant** and the lawyer **knows** that the **client intends to testify falsely** (or has already done so), the lawyer must take **reasonable remedial measures**: 1. ***try to persuade the client*** not to testify falsely or to recant the false testimony; 2. seek to ***withdraw***; AND 3. if all else fails: **ABA:** ***reveal the situation to the judge*** **CA:** offer the defendant's testimony in ***narrative form***
74
What are the rules regarding frivolous claims and defenses?
A lawyer who is serving as an **advocate in a legal proceeding** must **NOT take a position unless** there is a **non-frivolous basis in law and fact** for doing so **CA:** The **CA Rules** also **prohibit** a lawyer from bringing or continuing an action, conducting a defense, asserting a position in litigation, or taking an appeal, **without probable cause** and **for the purpose of harassing or maliciously injuring** any person **EXCEPTIONS:** * A position is ***not frivolous*** if the lawyer can make a ***good-faith argument*** for an ***extension, modification or reversal of existing law*** * The lawyer for the **defendant** in a ***criminal*** case may conduct the defense so that the ***prosecutor must prove every necessary element*** of the case
75
What are the rules regarding opposing counsel's access to evidence?
**A lawyer must NOT**: 1. unlawfully ***obstruct*** another party's ***access to evidence*** 2. unlawfully ***alter, destroy or conceal evidence*** 3. **CA:** ***suppress evidence*** that the lawyer or his client has a legal obligation to produce 4. **CA:** ***advise a person to hide or flee*** the jurisdiction for the purpose of making that person ***unavailable as a witness***
76
What are the rules regarding advising a person not to give information to an opposing party?
Under the **ABA Rules**, a lawyer **may advise a person not to give information** to an opponent or other party **ONLY IF**: 1. the person is a ***client*** or the client's ***relative, employee or agent***; AND 2. the lawyer ***reasonably believes that the person's interests will not be harmed*** by not volunteering the information **CA:** California has **no equivalent rule**
77
What are the rules regarding abuse of the discovery process?
**ABA:** Under the **ABA Rules**, a lawyer: 1. must **NOT** make a **frivolous discovery request**; AND 2. **MUST** make **reasonable efforts to comply** with a **legally proper discovery request** made by his adversary **CA:** California has **no equivalent rule**; in fact, the comments to the CA Rules note that a **violation of a discovery rule or statute** does ***not necessarily constitute an ethical violation***
78
What is the general rule regarding lawyer advertisements?
Lawyers **may advertise in any media** but must **NOT make a false or misleading statement** about **themselves** or **their services**
79
When is a statement in a lawyer advertisement "misleading"?
A statement is **"misleading"** if it: 1. would lead a reasonable person to reach an ***unfounded conclusion*** 2. reports the lawyer's ***achievements*** on behalf of clients and would lead a reasonable person to form an ***unjustified expectation of receiving the same results in a similar matter*** 3. contains an ***unsubstantiated comparison or claim*** of the lawyer's services or fees, presented with such specificity as to lead a reasonable person to conclude that the comparison or claim can be substantiated 4. **CA:** states or implies that the lawyer is ***able to provide legal services in a language other than English***, unless (i) the lawyer can actually provide legal services in such language or (ii) the communication also states, in the language of the communication, the employment title of the person in the firm who speaks the language 5. **CA:** states or implies ***"no fee without recovery"*** unless the communication also expressly discloses ***whether or not the client will be liable for costs***
80
What does the California Business and Professions Code specifically prohibit in lawyer advertisements?
The **California Business and Professions Code** specifically **prohibits** advertisements that contain: 1. a ***guarantee or warranty*** of the ***outcome*** of a case; 2. words or symbols that ***suggest quick cash*** or a ***quick settlement***; 3. an ***impersonation*** of a lawyer or client without disclosing that it is an impersonation; 4. a ***dramatization*** of an accident or other event without disclosing that it is a dramatization; OR 5. a ***contingent fee offer*** that ***does not warn*** that a client who loses a case ***must still pay litigation costs*** (if that is in fact the arrangement)
81
What are the rules regarding communication of specialties in lawyer advertisements?
A lawyer **may communicate the fact** that they **do or do not practice in particular fields** of law, and that their **practice specializes in, is limited to, or is concentrated in a particular field** of law, as long as such a statement is **not false or misleading** A lawyer **must not state or imply** they are ***certified* as a specialist** in a particular field of law **unless**: 1. the lawyer ***has in fact been certified*** as a specialist by an approved organization; AND 2. the ***name of the certifying organization is clearly identified*** in the communication
82
What is solicitation of legal services?
A **solicitation** is a **targeted communication initiated by the lawyer** that is directed to a specific person the lawyer knows or reasonably should know needs legal services in a particular matter, and that directly or indirectly offers to provide legal services in that matter
83
What are the rules regarding live, person-to-person solicitation?
Subject to limited exceptions, a lawyer **must NOT, by live person-to-person contact, solicit** professional employment when a **significant motive** is the lawyer's **pecuniary gain** * ***"Live person-to-person contact"*** means ***in-person, live telephone or other real-time viusal or auditory person-to-person communications*** where the targeted person is subject to a direct personal encounter without time for reflection **EXCEPTIONS:** A lawyer is **not prohibited** from soliciting the following persons by live person-to-person contact: 1. another ***lawyer*** 2. a person with whom the lawyer has a ***familial***, ***close personal***, or ***prior professional relationship*** (including current and former clients) 3. **ABA:** a person who ***routinely uses for business purposes the type of legal services*** offered by the lawyer **BUT:** The lawyer **IS STILL PROHIBITED from soliciting the foregoing persons** (by any means) if (i) they have ***made known*** to the lawyer ***they do not want to be solicited*** or (ii) the solicitation involves ***coercion, duress or harassment***
84
What are the rules regarding targeted written or telephonic solicitation?
A lawyer is generally **PERMITTED to send truthful, nondeceptive communications** via mail, email or recorded telephone messages to **persons known to face a specific legal problem UNLESS**: 1. the person has ***made known*** to the lawyer ***they do not want to be solicited***; OR 2. the solicitation involves ***coercion, duress or harassment*** **CA:** The **CA Rules** also provide that targeted communications **must include "advertisement" or words of similar import** on the ***outside envelope (if any)*** or at the ***beginning and end of any recorded or electronic communication*** **UNLESS**: 1. the target is ***another lawyer***, or a person with whom the lawyer has a ***close personal or prior professional relationship***; OR 2. it is ***apparent from the context*** that the communication is an ***advertisement***
85
What are the rules regarding a lawyer paying for recommendations?
As a general rule, a lawyer **must NOT give anything of value for another person's recommendation** of the lawyer's services However, a lawyer **MAY**: 1. give a ***nominal gift or gratuity as a token of appreciation***; provided the gift or gratuity was ***not offered or given in consideration of an understanding*** that such a ***gift or gratuity would be forthcoming*** or that ***referrals would be made or encouraged in the future***; 2. refer a client to another lawyer or a nonlawyer professional as part of a ***reciprocal referral arrangement*** with such person, ***provided that*** (i) such arrangement is ***not exclusive*** and (ii) the ***client is informed*** of the ***existence*** and ***nature*** of the arrangement; 3. pay the ***reasonable costs of advertising***; 4. pay the ***usual charges*** of a ***legal service plan***, ***not-for-profit lawyer referral service*** or ***qualified lawyer referral service***; AND 5. pay to ***purchase a law practice***
86
What are the CA Rules regarding the employment of disbarred, suspended, resigned or voluntarily inactive lawyers?
An active **California** lawyer must comply with various requirements upon engaging the services of a **disbarred, suspended, resigned or voluntarily inactive lawyer ("ineligible person")**, including: 1. notifying the California State Bar in writing before engaging the ineligible person and after the ineligible person's employment is terminated; AND 2. providing written notice to all clients on whose matters the ineligible person will work **Prohibited Activities** The ineligible person **cannot** engage in: 1. legal consultation; 2. negotiations; 3. appearances on the client's behalf; 4. handling the client's funds; OR 5. other activities that constitute the practice of law **Permitted Activities** The ineligible person **CAN** engage in: 1. research; 2. drafting; 3. clerical assistance; AND 4. direct communication with the client limited to scheduling, billing, updates, etc. **NOTE:** This rule **does not apply** if the ineligible person is **employed for the sole purpose of providing support activities**, e.g., equipment maintenance, courier or delivery services, catering, etc.
87
What are the rules regarding association with non-lawyers?
To ensure that lawyers maintain their professional independence: 1. a lawyer **must not form a partnership or other organization with a nonlawyer** if any of the organization's activities consist of the practice of law 2. **law firms must not be set up in such a way that a *nonlawyer***: (i) ***owns an interest*** in the firm; (ii) is a corporate ***officer or director*** of the firm; OR (iii) has the right to ***direct or control*** a lawyer's professional judgment 3. a lawyer **must not permit a person who recommends, employs or pays** the lawyer to render legal services for another to **direct or regulate** the lawyer's professional judgment
88
When is a lawyer subject to discipline for another lawyer's misconduct?
A lawyer is subject to discipline for a disciplinary violation committed by a second lawyer (or an act of a nonlawyer that, if done by a lawyer, would subject them to disciplinary action) when: 1. the lawyer ***ordered*** the second lawyer's (or nonlawyer's) misconduct, or ***knew about and ratified*** such misconduct; OR 2. the lawyer was a ***partner, manager, or had direct supervisory responsibility*** over the second lawyer (or nonlawyer), and they ***knew about the misconduct at a time*** when its consequences could be avoided or mitigated but ***failed to reasonable remedial action***
89
What is a lawyer's responsibilities vis-a-vis subordinates?
A **partner or other managing lawyer** in a firm must make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurances that **all members of the firm conform to the rules of professional conduct** * A lawyer with direct supervisory authority over particular lawyers has the same responsibility with respect to those lawyers
90
What are a subordinate lawyer's responsibilities?
A **subordinate lawyer** will be **responsible** for **clearly unethical misconduct** even if they were "just following orders" * However, a subordinate lawyer will **NOT be subject to discipline** for acting in accordance with a **supervisor's reasonable resolution of an arguable question of professional duty**
91
When is a lawyer subject to disciplinary action?
A lawyer is **subject to discipline** for any of the following acts of **professional misconduct**: 1. an ***actual or attempted violation*** of a rule of professional conduct, either ***individually or through the acts of another***; 2. committing a ***criminal act that reflects adversely*** on the lawyer's ***honesty, trustworthiness, or fitness as a lawyer*** in other respects; 3. engaging in ***any conduct*** involving ***dishonesty, fraud, deceit or misrepresentation***; 4. engaging in conduct ***prejudicial to the administration of justice***; 5. knowingly ***assisting a judge in violating the rules of judicial conduct*** or other law; 6. ***stating or implying an ability to improperly influence a government agency or official*** to achieve results by illegal or unethical means; 7. making a statement they ***know to be false***, or with ***reckless disregard as to the truth or falsity***, about the ***qualifications or integrity of a judge or judicial candidate*** [**ABA:** also ***public legal officer or candidate***]; 8. engaging in ***harassment*** or ***discrimination*** in conduct related to the practice of law ***based on a protected characteristic*** **CA:** The **CA Rule** only applies to **"unlawful"** discrimination, but also **prohibits unlawful retaliation** and **permitting unlawful discrimination or harassment** in relation to a law firm's operations; a lawyer who is subject to a disciplinary proceeding for violating this rule must also **promptly notify the California State Bar** of any criminal civil or administrative action **premised on the same conduct**
92
What are the special duties of a prosecutor in their own case?
**A prosecutor in a criminal case MUST:** 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 counsel*** and has been given ***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 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 mitigate the offense***, unless the prosecutor is relieved of this responsibility by a protective order (this duty exceeds the constitutional Brady obligation) 5. exercise reasonable care to ***prevent investigators or other persons*** assisting the prosecutor in a criminal case from ***making an extrajudicial statement that the prosecutor would be prohibited from making*** 6. **ABA:** ***not subpoena a lawyer to present evidence*** about a client ***unless*** the prosecutor ***reasonably believes***: (i) the information is ***not privileged***; (ii) the evidence is ***essential***; AND (iii) there is ***no feasible alternative***
93
What are the special duties of prosecutors with respect to any case?
**Must Disclose New, Credible and Material Exculpatory Evidence:** * When a prosecutor **knows** of **new, credible and material evidence** creating a **reasonable likelihood** that a convicted **defendant did not commit the offense** for which he was convicted, the prosecutor must **promptly disclose** the evidence to an **appropriate court or authority** * If the conviction occurred in the **prosecutor's own jurisdiction**, the prosecutor must also **promptly disclose** the evidence to the **defendant** and make **reasonable efforts to cause an investigation** **Must Remedy Conviction of Innocent in Own Jurisdiction:** * When a prosecutor **knows** of **clear and convincing evidence** establishing that a defendant in the **prosecutor's own jurisdiction** was **convicted of an offense he did not commit**, the prosecutor **must seek to remedy the conviction**
94
What are the rules regarding extrajudicial statements?
A lawyer who is **connected with a case** (or any associated lawyer in their firm) must **NOT make any extrajudicial statement** that the lawyer **reasonably should know**: 1. will be ***publicly disseminated***; AND 2. will have a ***substantial likelihood*** of ***materially prejudicing*** the case
95
When is a lawyer entitled to reply to an extrajudicial statement?
A lawyer is **permitted to make a public statement** that a reasonable lawyer would belive is **required to protect a client** from the substantial undue prejudicial effect of **recent publicity NOT initiated by the lawyer or his client**
96
What are the rules regarding communication with a represented person?
When a lawyer **KNOWS a person is represented by counsel** in one of the lawyer's matters, the lawyer **must NOT communicate with that person about the subject of the representation UNLESS**: 1. the person's counsel has ***granted permission*** 2. the lawyer is ***otherwise authorized by law or court order*** to make the direct communication 3. **CA:** the person is a ***public official or entity*** **NOTE:** Subject to the above exceptions, this rule also covers any **high-ranking employee or other constituent of a represented organization** whose communication **might bind or be imputed to the organization**

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