Rule Statements

Question 1

supervision of non-lawyers

Answer 1

Under the Model Rules and the CRPC, a lawyer with direct supervisory authority over another lawyer or non-lawyer must make reasonable efforts to ensure that the supervised person’s conduct conforms to the ethics rules.

Question 1

duty to avoid the unauthorized practice of law (CA)

Answer 1

do not not employ, associate in practice with, or assist a person the lawyer knows or reasonably should know is not a licensed lawyer to:

(i) render legal advice to a client,
(ii) make appearances on behalf of a client,
(iii) appear as a representative of the client in admin or discovery matters, or
(iv) engage in activities that constitute the practice of law.

However, a lawyer may employ, associate in practice with, or assist an ineligible person to perform research, drafting, or clerical activities.

AARP = advise, appear, rep client, practice law

CDR: clerical, draft, research

Question 2

threatening a claim to gain advantage

Answer 2

California lawyers are specifically prohibited from, and subject to discipline for, threatening to bring “criminal, administrative, or disciplinary charges” in an effort to obtain an advantage in a civil dispute.

Question 3

duty to not file a frivolous claim

Answer 3

The MR prohibit lawyers from bringing or defending a proceeding, or taking a position, unless there is a basis in law and fact for doing so that is not frivolous.

Under the CRPC, a lawyer must not present a claim or defense in litigation that is not warranted under existing law, unless it can be supported by a good-faith argument for an extension, modification, or reversal of such existing law.

Question 4

comms with represented organization

Answer 4

Under the Model Rules, a lawyer is prohibited from communicating with a constituent of the organization who has authority to obligate the organization, or whose act or omission may be imputed for purposes of civil or criminal liability.

Under the CRPC, a lawyer is prohibited from communicating with
(i) a current officer, director, partner, or managing agent of the organization or
(ii) a current constituent of the organization if the subject of the communication is any act or omission of such person that can be imputed

Question 5

duty of competence

Answer 5

Under the Model Rules, a lawyer is obligated to provide competent representation to a client and must possess the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

The CRPC require that a lawyer not intentionally, recklessly, or repeatedly fail to perform legal services with competence. And lawyer must have: (i) the learning and skill and (ii) mental, emotional, and physical ability reasonably necessary for the representation.

MR: PS TK
CA: RR I

Question 6

duty of loyalty

Answer 6

Lawyers owe clients a basic duty of loyalty and independent professional judgment. When a lawyer’s independent professional judgment is potentially compromised by a conflict of interest, the lawyer may be in breach of the duty of loyalty. A conflict of interest may arise between the lawyer and the client, current clients, current and prospective clients, current and former clients, or between current clients and third parties

Question 7

conflict of interest- current clients

Answer 7

Under the Model Rules and CAPR, a lawyer must not represent a client if:
directly adverse to the interests of another current client or
a significant risk that the representation of the client will be materially limited

unless:
(i) the lawyer reasonably believes that she will be able to provide competent and diligent representation;
(ii) the representation is not prohibited by law;
(iii) the representation does not involve the same litigation or other proceeding before a tribunal; and
(iv) each affected client gives informed consent, confirmed in writing. in CA, need informed written consent

Question 8

conflict of interest -former clients

Answer 8

Under the Model Rules, a lawyer who has previously represented a client in a matter must not subsequently represent another person:
-in the same or a substantially related matter
-in which that person’s interests are materially adverse to the interests of the former client
-unless the former client gives informed consent, confirmed in writing.

Question 9

duty of confidentiality

Answer 9

Under the Model Rules, a lawyer is prohibited from disclosing information relating to the representation of a client, unless:
* the client gives informed consent;
* the disclosure is impliedly authorized in order to carry out the representation;
* death/substantial harm or financial harm

The CRPC requires lawyers to “maintain inviolate the confidence, and at every peril to himself to preserve the secrets of the client.”
* unless the client gives informed consent
* death/substantial harm

Question 10

lawyer-client privilege

Answer 10

• client’s communication with a lawyer
• The communication must be intended to be confidential
• purpose of seeking legal advice

The client holds the privilege and is the only one who may waive it. The lawyer must assert the privilege on the client’s behalf to protect the client’s interests.

exception: A dispute between co-clients who are now adverse to each other

Question 11

payment from a third party

Answer 11

A lawyer may not accept payment for representation from someone other than the client, unless: (i) the client gives informed consent; (ii) there is no interference with the lawyer’s professional judgment; and (iii) lawyer-client confidentiality is preserved.

Question 12

attorney-client relationship formation

Answer 12

The lawyer-client relationship begins when the client reasonably believes the relationship exists. No formal writing or agreement is required.

Question 13

organization as client

Answer 13

A lawyer who represents an organization owes the duties of loyalty and confidentiality to the organization, not to its individual constituents.

In dealing with an organization’s constituents, a lawyer must:
* explain the identity of the client whenever organization’s interests are or may become adverse to those of the constituents
* not mislead such a constituent into believing that the constituent may communicate confidential information

Question 14

communication of fee

Answer 14

All rate or fee arrangements must be communicated to the client before, or within a reasonable time after, the relationship commences.

Question 15

written fee agreement

Answer 15

California requires that a contract for services be in writing when it is reasonably foreseeable that the total expense to a client, including attorney’s fees, will exceed $1,000.

A copy of the written contract, signed by both parties, must be given to the client or the client’s representative

However, as an exception to the rule, a writing is not required when the client is a corporation.

Question 16

duty to communicate

Answer 16

Lawyers have a duty to communicate with clients, to keep them reasonably informed of the status of the matter, and to respond to their reasonable requests for information so that they can make informed decisions.

Question 17

withdrawal - when rep would require breaking PR rules

Answer 17

MR, a lawyer must withdraw if failure to do so would result in violating the ethics rules or other law.

CA RPC, a lawyer must withdraw if he knows or reasonably should know that the representation would result in a violation of the CA RPC or the SBA.

Question 18

conflict of interest- atty-client

Answer 18

A potential conflict of interest arises when there is a significant risk that the representation of a client will be materially limited by the lawyer’s personal interests or the interests of another current or former client or third party.

However, under both the ABA Model Rules (MR) and the California Rules of Professional Conduct (CA RPC), if there is a concurrent potential COI, a lawyer may undertake the representation if (i) the lawyer reasonably believes that he can competently and diligently represent each affected client, (ii) it is not prohibited by law, (iii) it does not involve the assertion of a claim by one client against another client who is represented by the lawyer in the same case or other proceeding before a tribunal, and (iv) each affected client gives informed, written consent (MR “informed consent, confirmed in writing”).

Question 19

inadvertent disclosure

Answer 19

Under the MR, a lawyer who receives a documentand who knows or reasonably should know that the document was inadvertently sent must promptly notify the sender.

CA RPC, when it is reasonably apparent to a lawyer that a writing was inadvertently sent or produced, and the lawyer knows or reasonably should know that the writing is privileged or subject to the work product doctrine, the lawyer must:
(i) refrain from examining the writing any more than is necessary to determine that it is privileged and
(ii) promptly notify the sender.

Question 20

duty of diligence

Answer 20

Under the MR, a lawyer must act with reasonable diligence and promptness in representing a client.

Under the CA RPC, a lawyer shall not intentionally, repeatedly, recklessly, or with gross negligence fail to act with reasonable diligence in representing a client

Question 21

duty to accept representation

Answer 21

in general there is no duty to accept representation. However, there is a duty to reject it if it would violate an ethical rule or frivolous claim (CA: maliciously injure or harass)

Question 22

relationship formation - not allowed to do it (CA)

Answer 22

In California a lawyer is not permitted to represent a client if they know or should know there is no probable cause to bring the action and that the action is being brought to harass or maliciously injure a person

Question 23

scope of relationship: settlement

Answer 23

Only the client has the authority to make the decision to accept the settlement. The attorney must communicate all bona fide offers of the settlement to the client.

CA: lawyer must notify about any offer to plea bargain in a criminal matter and any written settlement offer in a civil matter. A lawyer must communicate an oral settlement offer in a civil matter if it is a significant development

Question 24

scope of relationship: strategy

Answer 24

the attorney has the authority to make decisions about strategy for achieving the client's goals. The attorney should reasonably consult with the client and keep them reasonably informed

Question 25

scope of relationship: crime/fraud

Answer 25

a lawyer must not counsel or assist the client in criminal or fraudulent conduct. if the client is currently engaging in such conduct, the attorney must stop assisting the client and withdraw from the relationship

Question 26

termination

Answer 26

a client has an absolute right to discharge a lawyer for no reason. the lawyer must withdraw if discharged unless ordered to continue by a court.

Question 27

mandatory withdrawal

Answer 27

an attorney must withdraw if failure to do so would result in violating ethics rules or (ABA) other law. fired by client Health of lawyer makes it unreasonably difficult to carry out rep (MR: materially impairs) CA only: lawyer must withdraw if they know or should know the client is asserting a claim/defense without probable cause and for the purpose of harassing or maliciously injuring a person

Question 28

permissive withdrawal MR

Answer 28

Model rules: lawyer can seek to withdraw at any time he can do so without materially harming the client or he can withdraw even if harm will result if: -client engages in criminal or fraudulent action -attorney learns that the client used his services to commit criminal or fraudulent action -the client insists on a course of action that the lawyer finds repugnant or with which the attorney has a fundamental disagreement with (NOT CA) -the client made representation unreasonably difficult (ex: failure to communicate; NOT CA) -the representation will result in an unreasonable financial burden on the lawyer (NOT CA) -if continued representation is likely to result in a violation of ethical rule or any other law -lawyer's mental or physical health makes representation difficult -client insists that the lawyer pursue conduct that is criminal or fraudulent -client breaches material term of agreement regarding lawyer's services -other good cause ## Footnote NV BICH F LRD: no material harm; violation of law; breach material term; insist c/f; c/f, health; financial burden; learn of C/F, repugnant, difficult rep

Question 29

CA permissive withdrawal

Answer 29

-client insists on presenting claim/defense not warranted under existing law and can't be supported by good-faith argument for extension, modification, or reversal of existing law -client seeks to pursue a criminal/fraudulent course of conduct or has used services to advance course of conduct that the lawyer reasonable believes was a crime or fraud -client insists lawyer pursue course of conduct that is criminal or fraudulent -client renders it unreasonably difficult for lawyer to carry out representation effectively -representation likely to result in violation of CA rules or State Bar Act -inability to work with co-counsel if withdrawal is in best interest of client ## Footnote UCC IVF = unreasonably difficult; co-counsel; c/f; insist c/f; violation; frivolous and insist

Question 30

procedure for withdrawal

Answer 30

lawyer must give client reasonable notice before withdrawing so client has a reasonable opportunity to find new representation. a lawyer who wants to withdraw when the litigation is pending must obtain court approval.

Question 31

duties upon termination

Answer 31

upon termination a lawyer has a duty to minimize harm to the client. the lawyer must return all papers and property to the client and safeguard those from damage. MR: attorney can retain papers to obtain payment. CA: cannot, must return all attorney must promptly return any advanced fees not yet earned

Question 32

fees amount (MR)

Answer 32

a lawyer must charge fees that are reasonable under the circumstances

Question 33

fees amount (CA)

Answer 33

fees must not be unconscionable (consider: amount, time worked on case, hourly fee, difficulty of case, lawyer's experience)

Question 34

contingent fees

Answer 34

Contingent fees are generally permitted under the Model Rules and CA Rules, but are not allowed in (i) criminal cases or (ii) domestic cases when the fee is contingent on obtaining divorce or on the amount of support recovered.

Question 35

contingent fee agreement and what happens if void

Answer 35

A contingent fee agreement requires:  Writing, signed by client;  Terms of calculating fees; and  Expenses that clients are liable for. CA only: A duplicate copy of the agreement signed by the attorney and client must be provided to the client at the time of signing. failure to comply: agreement is voidable but attorney is entitled to a reasonable fee

Question 36

fee splitting - same firm

Answer 36

Lawyers in the same firm may split fees.

Question 37

fee splitting - lawyers from different rules (MR)

Answer 37

Model Rules: Fee splitting is allowed if: * The fee is in proportion to the services provided by each lawyer; * The client agrees in writing to the fee-splitting; and * The total charged fee is reasonable. Under the Model Rules and CA Rules, the total fees must not be higher because multiple attorneys are working on the case.

Question 38

fee splitting - lawyers from different rules (CA)

Answer 38

CA Rules: Fee splitting is allowed if: * The lawyers enter in a written agreement to divide the fee; * The client has provided written consent after full disclosure of the fee splitting; and * The total fee charged is not unconscionable. Under the Model Rules and CA Rules, the total fees must not be higher because multiple attorneys are working on the case.

Question 39

referral fees (MR)

Answer 39

The Model Rules generally prohibit paying someone for recommending a lawyer’s services, unless paying the fees of a (i) legal services plan or (ii) approved lawyer-referral service. (iii) nominal gifts for appreciation

Question 40

referral fees (CA)

Answer 40

Under CA Rules, a lawyer may give a gift or gratuity for a referral, if not offered in anticipation of the referral or future referrals.

Question 41

fee splitting with non lawyers

Answer 41

Fees may not be split with non-lawyers and a partnership may not be made with non-lawyers if any of the activities include the practice of law.

Question 42

client fund accounts

Answer 42

In California, all funds received or held for the benefit of clients must be deposited in one or more identifiable bank accounts labeled “Trust Account,” “Client’s Funds Account,” or something similar.

Question 43

commingle funds (MR)

Answer 43

Lawyers must keep client property and funds separate from their own and are subject to discipline for commingling funds. =

Question 44

commingle funds (CA)

Answer 44

No commingling except for funds reasonably sufficient to pay bank charges.

Question 45

dispute over funds

Answer 45

If there is a dispute over the fees owed to the lawyer, the lawyer must distribute the undisputed funds to the client and keep the disputed funds in the client’s trust account.

Question 46

lawyer-client privilege: when does it end

Answer 46

Under the Model Rules, the privilege is indefinite, and survives the client’s death. Under the CA Rules, it terminates when the client’s estate is settled and the personal representative is discharged.

Question 47

lawyer-client privilege exceptions

Answer 47

Future Crime or Fraud: * Under the Model Rules, there is no privilege when a communication relates to a client’s future crime or fraud. * In California, this exception applies to a future crime or fraud committed by anyone, not just the client. Death or Substantial Bodily Harm: In California, no privilege applies if the lawyer reasonably believes that disclosure of any confidential communication relating to the representation of a client is necessary to prevent a criminal act that the lawyer reasonably believes is likely to result in the death or substantial bodily harm of an individual.

Question 48

work product

Answer 48

Work product generally refers to material created by the attorney in anticipation of litigation. In California, a writing that reflects a lawyer’s impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances. -->witness statements collected by (or at the direction of) an attorney are protected at least by a qualified work-product privilege as a matter of law. If it is so inextricably intertwined with the attorney’s mental impressions, then it may be entitled to an absolute work-product privilege. otherwise work product is only discoverable if -will unfairly prejudice the party seeking discovery -or will result in an injustice.

Question 49

exceptions to duty of confidentiality - death or substantial harm

Answer 49

MR: may disclosure to prevent “reasonably certain” death or substantial bodily harm. Imminent harm or death is not required; a present and substantial threat is sufficient. CA: may disclosure reasonably believed necessary to prevent a criminal act that the lawyer reasonably believes will result in death or substantial bodily harm. must be a “criminal act” Under the Model Rules and CA Rules, this exception applies even if a third party and not the client causes the potential harm or death. In CA, before revealing this information, an attorney must, if reasonable, make a good- faith effort to persuade the client to not commit/continue the criminal act and say they can reveal

Question 50

exception to confidentiality - financial harm

Answer 50

The Model Rules allow (but do not require) an attorney to reveal confidential information if he reasonably believes it is necessary to prevent the client from committing a crime/fraud that will result in substantial financial injury

Question 51

duty of confidentiality prospective clients

Answer 51

Generally, a lawyer owes a duty of confidentiality to a prospective client and the lawyer cannot use or reveal information learned during a consultation, even if no attorney-client relationship is formed.

Question 52

conflict of interest: lawyer and client conflict

Answer 52

Under the Model Rules and CA Rules, a lawyer must not represent a client if representation may be materially limited by the lawyer’s own interests, unless: o The lawyer reasonably (subjectively and objectively) believes he can provide competent and diligent representation to the affected client; o The representation is not prohibited by law; and o The affected client gives informed consent, confirmed in writing. A lawyer’s own interests include his personal interests, such as friendships and family relationships, and memberships on committees.

Question 53

COI: lawyer-client: opposing lawyers related

Answer 53

o Model Rules: A lawyer related to another lawyer (e.g., parent, child, sibling, or spouse) may not represent a client in a matter in which the other lawyer is representing another party, unless each client gives informed consent. o CA Rules: A lawyer is not permitted to represent a client in a matter in which the lawyer knows or reasonably should know that the other party’s lawyer is a relative, lives with the lawyer, is a client of the lawyer, or has an intimate personal relationship with the lawyer, unless the lawyer first informs the client in writing of the relationship.

Question 54

COI: lawyer-client: sex

Answer 54

The Model Rules and CA Rules prohibit sexual relations with a client, unless a consensual sexual relationship already existed when the attorney-client relationship began. The client cannot waive this conflict through informed consent. CA: exception for spouses and domestic partners

Question 55

COI: lawyer-client: lawyer as a witness

Answer 55

A lawyer is not permitted to act as an advocate at a trial in which the lawyer is likely to be a necessary witness unless: o The testimony relates to an uncontested issue; or o The testimony relates to the nature and value of legal services rendered in the case; or o (Model Rules only) Disqualification of the lawyer would work substantial hardship on the client; or o (CA Rules only) The lawyer has obtained the client’s informed written consent.

Question 56

COI: lawyer-client: acquiring interest in litigation (MR)

Answer 56

Under the Model Rules, a lawyer must not obtain a proprietary interest in the cause of action or subject matter of the litigation in which he/she represents a client, unless: o The lawyer acquires a lien by law to secure payment of a fee; or o The lawyer contracts for a reasonable contingency fee, so long as the case is not criminal or a domestic-relations matter.

Question 57

COI: lawyer-client: financial assistance to client / advancing costs (MR)

Answer 57

The Model Rules prohibit financial assistance to a client with respect to pending or planned litigation, except that a lawyer is permitted to advance litigation costs. repayment may be made contingent on the outcome of the case. exception: indigent clients

Question 58

COI: lawyer-client: financial assistance to client/ advancing costs (CA)

Answer 58

A lawyer is not permitted to pay personal or business expenses of a prospective or existing client. However:  An attorney may (with client consent) pay expenses to third persons related to the representation;  The lawyer may advance litigation costs to the client, with repayment contingent on the outcome of the case; and  The attorney may lend money to the client if the client promises in writing to repay the loan. ## Footnote TAP = third party, advance costs, promise to repay loan

Question 59

COI: lawyer-client: entering into business transactions w client

Answer 59

A lawyer must not enter into a business transaction with a client or knowingly acquire an adverse interest to the client, unless:  The terms are fully disclosed in writing;  The terms are fair and reasonable;  The client understands the terms;  The client consents in writing; and  The client is encouraged to seek independent counsel and given an opportunity to do so. ## Footnote FCI Dublin Ca= fair, consent, independnet counsel, disclosed, client consents

Question 60

agreement to limit malpractice recovery

Answer 60

* CA Rules: forbidden. * Model Rules: ok if client is repped by an independnet lawyer. both the Model Rules and the CA RPC permit settlement of a legal malpractice claim with an unrepresented client or former client as long as the client is informed in writing of the advisability of retaining new counsel and is given a reasonable opportunity to seek representation by another lawyer in making the agreement.

Question 61

same/substantially related matter

Answer 61

A substantially related matter will be found if the new client’s matter: o Is the same transaction/dispute as the prior client’s; or o Involves substantial risk that confidential factual information from the prior representation will advance the new client’s position.

Question 62

COI: prospective clients

Answer 62

A lawyer cannot represent a client with: * interests materially adverse to those of a prospective client * in the same or substantially related matter if the lawyer received information * (CA requires “material information”) from the prospective client * that could be significantly harmful * (CA does not require the information to be “significantly harmful”) to the prospective client unless both clients give: o Informed consent, confirmed in writing (Model Rules); or o Informed written consent (CA rules). ## Footnote MS HII: materially adverse, same or substantially related, harmful/significantly harmful, information/material information, informed consent

Question 63

organizational misconduct

Answer 63

Upon learning of an action by a person associated with organization that will likely cause substantial injury to the organization, the lawyer must proceed as is reasonably necessary in the best interest of the organization. within org:  The lawyer must report the matter to higher authority in the organization unless it is not in the best interest of the organization to do so.  CA Rules: In taking any action, the lawyer must not reveal any client confidential information. outside org:  Model Rules: The lawyer may (not required) reveal information to outside authorities to the extent necessary to prevent the injury if: * The lawyer reports to the highest authority; * The authority refuses or fails to act in a timely manner; * The misconduct is a clear violation of law; and * The lawyer reasonably believes the violation is reasonably certain to cause substantial injury to the organization.  The CA Rules do not allow the lawyer to reveal confidential information to outside authorities unless the Death or Substantial Harm exception to the Duty of Confidentiality applies.

Question 64

avoiding improper influence

Answer 64

A lawyer must not seek to influence a judge, juror, prospective juror, or other official by means prohibited by law.

Question 65

duty to avoid frivolous claims as they relate to 3Ps

Answer 65

Lawyers are prohibited from asserting or defending an action or issue in an action unless there is a basis in law and fact. A good-faith argument for an extension, modification, or reversal of existing law is not frivolous. Model Rules: A claim brought to embarrass, delay, or burden a third person is a violation of the rules. CA Rules: A lawyer must not bring or continue an action, conduct a defense, assert a position in litigation, or take an appeal without probable cause and for the purpose of harassing or maliciously injuring any person.

Question 66

duty of candor to tribunal

Answer 66

 A lawyer must not knowingly make a false statement of law or fact to the court.  A lawyer is required to correct a false statement of law or fact previously made.

Question 67

duty of fairness to opposing party/counsel: evidence

Answer 67

Evidence: A lawyer must not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy, or hide a document/material, or counsel/assist another person in doing so. CA: cannot suppress evid legally obligated to disclose

Question 68

learning of false evidence after offered

Answer 68

If a lawyer learns about false evidence after it has been presented, the lawyer must take reasonable remedial measures: * Must urge the client to correct the false statement/evidence * Model Rules: If withdrawal is not permitted, disclose the false evidence to the court, even it requires the lawyer to reveal otherwise protected confidential information. * CA Rules: If withdrawal is not permitted, the lawyer may not disclose confidential information that is protected by the rules. A lawyer should not re-state or ratify false evidence by referencing it during a closing argument.

Question 69

criminal defendants/false evidence

Answer 69

 An attorney can only refuse to offer a criminal defendant’s testimony if he knows it is false.  If the lawyer reasonably believes, but does not know the testimony is false, the attorney must offer the testimony.  If he knows the testimony is false or will be false, the attorney must urge the client to correct the false statement/evidence. * If the client refuses, the attorney must withdraw from representation under the Model Rules; under the CA Rules, withdrawal is optional.  If withdrawal is denied: * CA Rules: The lawyer can question the defendant until the point of the falsehood and then allow the defendant to testify through narrative without asking the defendant questions. * Model Rules: The lawyer must disclose the false evidence to the court, even it requires the lawyer to reveal otherwise protected confidential information.

Question 70

perjury

Answer 70

A lawyer must not falsify evidence and may not counsel a witness to testify falsely or assist a witness in testifying falsely.

Question 71

communications to juror

Answer 71

A lawyer is not permitted to communicate with jurors outside of court before or during the proceeding.

Question 72

communications to persons represented

Answer 72

 A lawyer is not permitted to communicate about the representation with a person the lawyer knows to be represented by another lawyer without consent.  If the represented person contacts the lawyer, the lawyer must terminate the communication upon learning that the person is represented.

Question 73

communications to organizations represented by counsel

Answer 73

 A lawyer is generally prohibited from communicating with a constituent of an organization.  However, consent is not required to communicate with a former constituent.

Question 74

communications to persons unrepresented by counsel

Answer 74

 When communicating with a person not represented by counsel, an attorney must not give legal advice and must make it clear who he represents.  An attorney may negotiate the terms of a transaction or settlement agreement with an unrepresented person.

Question 75

trial publicity

Answer 75

 A lawyer is not permitted to make an out of court statement that he knows/should know (i) will be distributed publicly and (ii) will have a substantial likelihood of materially prejudicing the court proceeding.  General facts about the case ok  can make a statement to protect a client from the prejudicial effect of publicity that was not initiated by the attorney or client.

Question 76

special prosecutor duties

Answer 76

o A prosecutor must not prosecute a charge that he knows is not supported by probable cause. o A prosecutor is required to timely disclose all exculpatory evidence and information that tends to disprove guilt or mitigates the offenses. o New evidence: The prosecutor must disclose any new, credible evidence creating a likelihood that a convicted defendant did not commit the offense. extrajudicial statements that would have the substantial likelihood of heightening public condemnation of the accused, and exercise reasonable to prevent other persons assisting or associated with the prosecutor from making such statements. take special precautions to prevent and reverse conviction of innocent Ds

Question 77

advertising

Answer 77

o A lawyer must not make false or materially misleading statements about himself or hisservices. o Advertising Requirements:  The name and address of the attorney must be included.  Attorneys can state that they specialize in an area of law.  A lawyer may not state/imply she is a certified specialist in an area of law unless she is actually certified. Under the Model Rules, instead of the “address,” the advertisement must include the “contact information” of at least one lawyer or firm responsible for its content, which can include a website address, a telephone number, an e-mail address, or a physical office location. CA: —ads cannot guarantee the outcome of a legal matter, promise immediate cash or quick settlements, or offer representation on a contingent basis unless it also indicates whether C will be responsible for costs if no recovery is obtained

Question 78

solicitation

Answer 78

CA: Solicitation of prospective clients in person, by live telephone, or by real-time electronic contact is prohibited when a significant motive for the lawyer’s action is the lawyer’s pecuniary gain, unless the person contacted is:  A lawyer;  A family member;  A close personal friend; or  Has a prior professional relationship with the soliciting lawyer. The Model Rules do not prohibit real-time electronic contact and they contain an additional exception for solicitation of a person who routinely uses for business purposes the type of legal services offered by the lawyer. Attorneys are permitted to send general professional announcements to people in the area. General announcements by lawyers are not considered solicitations of professional employment.

Question 79

reporting misconduct

Answer 79

Model Rules: A lawyer is required to report misconduct by another attorney when the lawyer has actual knowledge of the misconduct.  The duty is limited to misconduct relating to the attorney’s honesty or professional fitness. CA: The California Rules now require a lawyer to report misconduct of another lawyer when the lawyer: -knows of credible evidence that another lawyer has engaged in misconduct -that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer.

Question 80

imputation of conflict

Answer 80

if one lawyer in a firm has a conflict, that conflict is imputed to the rest of the lawyers in the firm unless that lawyer is screened

Question 81

screening

Answer 81

Under the MR, any COI that arises from the lawyer’s association with a prior law firm will not be imputed to the lawyer’s new firm if (i) the disqualified lawyer is timely screened and is apportioned no part of the fee, (ii) written notice is given to any affected former client , and (iii) certification of compliance with ethical rules and with screening procedures is provided to the former client by the screened lawyer and by a partner of the firm at reasonable intervals upon the former client’s written request and upon termination of the screening procedures. Under the CA RPC, any conflict of interest that arises from the lawyer’s association with a prior law firm will not be imputed to the lawyer’s new firm if (i) the prohibited lawyer did not substantially participate in the same or a substantially related matter, (ii) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee, and (iii) written notice is given to any affected former client to enable the former client to ascertain compliance with the ethics rules.

Question 82

duty of fairness to opposing party/counsel: witnesses

Answer 82

Witnesses: * A lawyer generally may not request that a witness refrain from speaking to another party. * A lawyer may pay a non-expert witness reasonable expenses related to testifying. * An expert witness may be paid a reasonable rate and compensated for reasonable expenses. * CA Rules: A lawyer may not pay/offer to pay a witness contingent on his/her testimony or the outcome of the case, but a lawyer may advance witness expenses and expert witness fees.

Question 83

subordinate lawyers

Answer 83

A subordinate lawyer is bound by the rules, notwithstanding a directive by a supervisor, unless obeying a supervisor’s reasonable resolution to an arguable question of professional duty. o The subordinate lawyer has a responsibility to undertake her own analysis of the law applicable to the supervising lawyer’s conduct.

Question 84

exceptions to fee splitting

Answer 84

(i) a non-lawyer paid over a reasonable period after the death of the lawyer according to the lawyer’s law firm operating agreement (ii) a lawyer who purchases the practice of a deceased, disabled, or missing lawyer and pays lawyer’s estate or the representative; (iii) law-firm personnel though a compensation or retirement plan (iv) a lawyer who shares court-awarded legal fees with a nonprofit organization that employed, retrained, or recommended employment of the lawyer ## Footnote PACS = purchase practice; after death of lawyer; comp/retirement plan; share w/ nonprofit

Question 85

runners and cappers

Answer 85

Lawyers can't employ agents to monitor accidents and other events likely to produce legal work and to solicit business for the lawyer CA: criminal violation, and any such contract is specifically void as illegal in CA Exceptions: pro bono, legal insurance, lawyer referral service or legal service plan

Question 86

ex parte communications with judge

Answer 86

not permitted to communicate ex parte with any person serving in an official capacity in the proceeding, such as a judge. unless: involving logistical matters and not the merits and emergency communications authorized by law or court order are permitted.

Question 87

govt conflicts of interest

Answer 87

Government lawyers A former government lawyer may NOT represent a client in a matter in which the lawyer participated personally and substantially Unless the government agency gives its informed consent x ABA: informed consent, confirmed in writing x CA: informed written consent

Question 88

assist/induce/ratify

Answer 88

A lawyer may NOT violate or knowingly assist in or induce a violation of the rules. cannot ratify misconduct of another

Question 89

Duty When Joining a Partnership or Corporation

Answer 89

Partnership: A lawyer may NOT form a partnership with a non lawyer if ANY of the partnership activities constitute the practice of law. Professional Corporation: A lawyer may NOT practice law in a professional corporation or for-profit association, if a non-lawyer has any ownership interest, a position of management, or has the right to control the lawyer’s professional judgment.

Question 90

noncompetes

Answer 90

lawyers can't enter into these

Question 91

sale of law practice

Answer 91

A sale is permitted when: 1. The sale is of all or substantially all of the lawyer’s practice (ABA: or “practice area”); 2. The lawyer exercises competence in finding a buyer; 3. Client fees are not increased as a result of the sale; and 4.written notice to clients is provided. o ABA only: the lawyer must cease to practice in the state. o Consent of a client is presumed if no objection is made within 90 days.

Question 92

expedite

Answer 92

MR—L must make reasonable efforts to expedite litigation consistent with the interests of C (course of action must be for a substantial purpose other than delay) CA—no specific duty to expedite litigation; instead, L must not use means that have no substantial purpose other than to delay or prolong the proceeding or to cause needless expense

Question 93

targeted mailings

Answer 93

CA: L may issue written, recorded, or electronic communications that include the word “Advertisement” or words of similar import on outside of mailing envelopes, and at the beginning and ending of all recorded or electronic communications (MR) no similar requirement

Question 94

quantum meruit

Answer 94

contingent fee but rlsp terminated early then recover in quantum meruit, a fee reasonable for the services