All Flashcards
Avoiding judicial appointment ABA
A lawyer must not seek to avoid judicial appointment except for good cause: (1) it would cause an undue financial burden on the lawyer, (2) the client or cause is so repugnant to the lawyer that they wouldn’t be able to represent their client well, and (3) representing the client is likely to result in a violation of the rules
Avoiding judicial appointment CA
Did not adopt the same rule as ABA; in the CA oath, each lawyer promises to never reject for personal reasons the cause of the defenseless or oppressed
Sale of law practice ABA
If a lawyer sells their law practice, they must (1) sell the entire practice or entire field of practice, (2) the seller must cease to engage in the practice of law in that field or area, (3) the seller must given written notice to their clients, and (4) client’s fees must not be increased due to the sale
Sale of law practice CA
(1) all or substantially all of the practice must be sold (cannot sell field); (2) client’s confidential information must not be disclosed to a nonlawyer in the sale, (3) the seller must obtain each client’s written consent before the client’s matter is transferred to the buyer (if don’t after a while the consent presumed), and (4) the seller is not prohibited from practicing law following the sale.
Clients with diminished capacity
ABA- If a lawyer is representing a client with diminished capacity, they must maintain a normal lawyer client relationship, but the lawyer may take protective steps if they reasonably believe the client can’t protect themselves from substantial harm
CA- no similar rule
Reporting up (organization)
If a lawyer is representing an organization, they are representing the organization’s interests, not any one person in the organization. As such, if a lawyer is representing an organization and learns that a person associated with the organization is acting in a way that violates a duty to the organization or in a way the might be imputed to the organization, the lawyer must take steps to remedy that. (1) Report up to the highest authority to take action (2) if they don’t take action, may report to outside organization to take action (even if it violates duty of confidentiality). Step 2 is not allowed in CA! only if an exception to the confidentiality rule applies.
Competence
ABA- A lawyer has a duty to represent their client competently. This means acting with the legal knowledge, skills, thoroughness, and preparation reasonably necessary for the representation.
CA- includes mental, emotional, and physical ability as part of competence. A lawyer must not intentionally, recklessly, repeatedly, or with gross negligence fail to perform legal services with reasonable competence or diligence.
Duty of diligence
A lawyer must act with reasonable diligence when representing their client. This could mean managing their workload and acting within the client’s best interests. This does not mean you need to get mean with the other side.
CA- includes mental, emotional, and physical ability as part of competence. A lawyer must not intentionally, recklessly, repeatedly, or with gross negligence fail to perform legal services with reasonable competence or diligence.
Fee agreements
ABA- preferred in writing, but not required (unless contingency fee); before or within a reasonable time after commencing services, a lawyer must inform their clients about the basis or rate of the fee and the expenses the client will be responsible for (exception for regularly represented client)
CA- if it’s foreseeable that the expenses will be more than $1,000, then the fee agreement must be in writing to be enforceable unless the client is a corporation, client states in writing they don’t want a written agreement, the client has used the lawyer’s services consistently, or an emergency situation
Advance payments
ABA- a lawyer can require a fee to be paid in advance, but must refund any unearned portion, but a lawyer is not required to refund a true retainer fee (solely to make sure lawyer is available for client)
CA- same rule, but a lawyer cannot tell a client that any fee is nonrefundable or earned on receipt unless it’s a true retainer fee and the client agrees in writing that they will not be entitled to a refund
Contingency fee requirements
Contingency fees must be (1) reasonable (2) in writing and signed (3) with disclosures- how the fee will be calculated; what expenses will be deducted from the recovery; whether expenses will be deducted before or after the contingent fee; what expenses the client must pay regardless of outcome
CA additional disclosures: (1) the lawyer’s percentage is not set by law and can be negotiated and (2) how the client will be charged for work not covered by fee
Duty of confidentiality ABA and CA
ABA: A lawyer cannot reveal any information that is related to the representation of a client OR use that information against the client without the client’s consent
CA: A lawyer is required to maintain inviolate the confidence and at every peril to himself to preserve the secrets of the client
Exceptions to duty of confidentiality
- Consent or implied authority
- Reveal information to prevent reasonable certain death or substantial bodily harm (CA- CRIMINAL ACT that is likely to result in death or substantial bodily harm and must make good faith effort to persuade client to not make criminal act)
- Reveal information to prevent the client from committing a crime or fraud that is reasonably certain to create a substantial financial harm to a person if the client is using or used the lawyer’s services to do so (CA- does not recognize financial loss)
- Reveal information if client sues for malpractice, bring disciplinary actions against lawyer, or refuses to pay the lawyers
- Ethics advice (CA- does not recognize ethics exception)
- Detect and resolve conflicts of interest, but only to the extent necessary to determine if there is a conflict (CA- does not recognize conflict exception)
- To comply with a court order, but must first try to challenge the court order (CA- has recognized this exception, but duty of confidentiality supersedes all other ethics rules)
ACP
ABA: Applies to communications that were made in confidence between a lawyer and their client for the purpose of legal representation. Lasts forever, basically.
CA: Same rule, but terminates after the death of the client and their estate is settled and personal rep is discharged
Exceptions to ACP
- Client seeks services to enable or aid in fraud or crime
- Client puts legal services at issue
- Civil litigation between multiple people who were formerly joint clients
- Competency or intention of a client who has attempted to dispose of property by will or inter vivos transfer
- CA additional exception: necessary to prevent a criminal act that the lawyer believes is likely to result in substantial injury or death
Actual v. potential COI ABA and CA
CA: Requires consent for potential conflict of interest and an additional disclosure and consent if the potential COI ripens into an actual conflict
How to cure a COI ABA and CA
(1) Lawyer reasonably believes that he can represent all parties effectively despite potential or actual conflict.
ABA: Belief must be objectively reasonable (i.e. reasonable person standard)
CA: Good faith subjective belief will be sufficient.
(2) The representation of both clients is not against the law
(3) The clients cannot be directly adverse in the same matter
(4) Each affected client must give informed consent in writing
CA: requires informed written consent (both the disclosure to the client and the consent from the client must be in writing)
CA Additional COI disclosures
CA rules contain additional provisions regarding a lawyer’s relationships with parties, witnesses, and attorney’s involved in the client’s matter even if there is not a significant risk of material limitation present; must disclose the following relationships in writing to the client:
- When the lawyer has a relationship with a party or witness in the client’s matter
- The lawyer is an immediate family member of or lives with or is the client of the firm of another party’s attorney
(if material limitation then go through COI curing steps)
Business transactions with clients
A lawyer cannot enter into a business transaction with a client or knowingly acquire an ownership, possessory, security, or money interest that is adverse to a client unless
- The terms are fair to the client
- The terms and lawyer’s role in the transaction are fully disclosed to the client in a writing
- The client is advised in writing that they should seek independent legal advice
- The client gives informed consent in a writing signed by the client
(First Discuss Over Coffee) SIGNED BY THE CLIENT
Aggregate settlement agreements
A lawyer must not participate in the making of an aggregate settlement agreement unless the lawyer (1) discloses to each client the existence and nature of all the claim or please involved and (2) each client gives informed consent to the agreement in a signed writing
SIGNED WRITING
Compensation from someone other than the client ABA and CA
ABA: A lawyer must not take compensation from someone other than the client unless (1) the person paying does not interfere with the lawyer’s independence of professional judgment or with the relationship, (2) the client gives informed consent, and (3) confidential information with the client is still protected
CA: requires informed written consent, so disclosure needs to be written and consent needs to be written, but disclosure and consent are not required at all if (1) nondisclosure or the compensation is authorized by court order or (2) the lawyer is rendering legal services on behalf of a public agency or nonprofit; in emergency situations, you can get consent after the fact
Limiting malpractice liability ABA and CA
ABA: A lawyer cannot limit malpractice liability to a client unless the client is independently represented when making the agreement
CA: cannot limit at all in any circumstance
Sexual relationships ABA and CA
ABA: A lawyer must not have a sexual relationship with a client, even if the client consents and the representation won’t be affected, unless the relationship began before representation
CA: includes when the lawyer is married or in a domestic partnership
LOOK OUT FOR MATERIALLY LIMITING THOUGH!!!
Acquiring proprietary (ownership) interest in litigation ABA and CA
ABA: A lawyer must not acquire a proprietary interest in the cause of action or subject matter of litigation except if it’s a lien authorized by law for fees/expenses or a contract for a reasonable contingent fee in a civil case (limited to litigation matters)
CA: did not adopt this rule; treated as a business transaction and must comply with those rules
Referrals
ABA and CA: A lawyer must not give anything of value or promise to give anything of value for a person’s recommendation of the lawyers services.
Exceptions: reciprocal referral arrangement (non-exclusive and clients informed); purchase of a law practice, permitted advertisements, legal service plan charges, small gratuity as a token of appreciation
Solicitation- live person to person contact
ABA: A lawyer must not, by live person to person contact (includes in person, live telephone, or other real time visual or auditory communication), solicit professional employment when a significant motive for the lawyer’s doing so is pecuniary gain (being paid)
CA: more broadly prohibits real time electronic contact, which means text messages and chat room message could possibly be prohibited
(Communication is not solicitation if it is directed to the general public, responding to a request for information, or is auto generated in a internet search)
Exceptions to ban on face to face solicitation
ABA: A lawyer is generally not prohibited from initiating personal contact with another lawyer, a person with whom the lawyer has a relationship with, or a person who routinely uses for business purposes the type of legal services offered
CA: does not contain the exception for routine business users of legal services
Written, recorded, or electronic solicitation
All communications must be truthful and not misleading.
ABA: generally not prohibited if not deceptive even if to persons known to face a specific legal problem
CA: targeted communications must include the word advertisement on the outside of the envelope and at the beginning and end of any recorded communication UNLESS target is another lawyer or a close personal relationship or communication is clearly an advertisement
Solicitation is AT ALL TIMES impermissible when
Target of solicitation has made it known that they don’t want to be contacted or solicitation involves coercion, duress, or harassment
Limiting scope of representation
Can limit the scope of representation with (1) informed consent and if the (2) limitation is reasonable
Assisting client in criminal or fraudlulent conduct
ABA: must not counsel or assist a client in conduct they know is criminal or fraudulent
CA: also prohibits assisting a client in conduct that violates a court rule or ruling; if CA law conflicts with federal law, must advise client (think marijuana)
Discharge of lawyer with contingency fee
Discharged lawyer will be entitled to the reasonable value of their services performed up to discharge, but claim for fee does not arise until contingency passes
Splitting fee between lawyers in different firms
ABA: can submit a single bill to the client if (1) total fee is reasonable, (2) either (a) split is in proportion to services performed or (b) each lawyer assumed joint responsibility, and (3) client agrees to split in writing that discloses shares
CA: fee does not need to be proportionate or assumption of joint responsibility, but agreement to divide fees must be in writing, total must not be increased due to splitting fees, and written consent to division
Imputation of conflict
If a lawyer has a COI, then it’s also imputed to their firm, but this can be cured with (1) screening, (2) notice to affected client(s), and (3) the client does not share in the profits of the case
Imputation does not result from purely personal conflicts, like past sexual relations
Preparing instruments
ABA: cannot prepare an instrument that gives a gift from a client to laywer or lawyer’s famil
CA: can do this if the client is advised by an independent laywer who provides a certificate of independent review
Financial Assistance to Client ABA
Must not provide financial assistance to a client in LITIGATION unless:
- can advance court costs and expenses of litigation for any client and repayment can be contingent
- lawyer representing indigent client may pay court costs and expenses outright
- for indigent pro bono client, can provide modest gifts for basic living expenses, but can’t imply the gifts will keep coming or that they need to be repaid
Financial Assistance to Client CA
APPLIES TO ALL CASES, NOT JUST LITIGATION
- can advance court costs and expenses of litigation, and any other expenses for promoting client’s interests for any client and repayment can be contingent
- lawyer representing indigent client may pay court costs and expenses outright
- after lawyer is hired, can lend client money for any purpose if the client gives written promise to pay back
CANNOT BUY CLIENT BY PROMISING TO PAY THEIR DEBTS
NO PRO BONO EXCEPTION
Aggregate settlement agreements
- lawyer must disclose to each client the nature and existence of all the claims or pleas and the participation of each person in the settlement
- give informed consent signed by the clients
Compensation from someone other than the client
- client gives informed consent (CA informed written consent)
- no interference with independent decision making
- confidentiality
Representing an organization
The lawyer owes a duty to the organization, not the directors, officers, agency employees, shareholder, ownwers, etc., but does work through them
Lawyer must explain the identity of the lawyer’s client whenever the lawyer knows or should know that the organization’s interest are adverse to those of the constituent with whom the lawyer is dealing
Opposing a client of former firm
A lawyer cannot oppose a client of their former if the firm represented the client in a matter and the lawyer acquired confidential information that is material to the matter– cannot them represent someone in the same or a substantially related matter if that person’s interest are materially adverse to those of the former firm’s client, unless get informed consent, confirmed in writing (CA informed written consent)
Imputation to new firm unless screening, notice, and no sharing fees (CA- screening will only cure if the disqualified lawyer did not substantially participate in the matter)
Opposing prospective clients
A lawyer who obtains confidential information during a consultation cannot later represent a different person with interests materially adverse to those of the prospective client in the same or a substantially related matter if the information obtained could be SIGNIFICANTLY HARMFUL, imputation to firm
CA: conflict only exists if lawyer obtained MATERIAL information to matter
Can be cured by:
- both clients provide consent confirmed in writing to the lawyer or firm handling it OR
- other lawyers in firm handle it and demonstrate disqualified lawyer took care to avoid exposure more confidential info than necessary, timely screening, and written notice to prospective client so they can see over
Communicating with clients about plea bargains and settlement offers
A lawyer must notify the client of any proffered plea bargain or settlement offer, unless the client has previously indicated the proposal would be acceptable or unacceptable, or previously authorized the lawyer to accept or reject the offer
CA ADDITION: always promptly communicate the following to the client, regardless of circumstances:
- criminal case- all terms of proposed plea bargain
- all other matters- all terms of any written offer of settlement made to client (must notify of oral if significant development)
Keeping client up to date
Must keep them reasonably informed about the status of the matter; includes all SIGNIFICANT DEVELOPMENTS and the means by which the lawyer will achieve objectives; comply with reasonably requests for information
Withholding information from client
A lawyer can delay the transmission of information to a client if they think the client would react imprudently to immediate communication
CA: only delay if immediate communication would cause imminent harm to client or others
Expediting litigation
ABA: A lawyer must make reasonable efforts to expedite litigation consistent with the interests of the client
CA: does not have this rule to expedite, but a laywer is prohibited from using means that have no substantial purpose other than to delay or prolong a proceedings and cause unnecessary expenses
Using false evidence
A lawyer must refuse to offer evidence that the lawyer KNOWS is false, knows means actual knowledge, but actual knowledge can also be inferred from circumstances
A lawyer can refuse to offer evidence they reasonably believe is false, except for criminal D’s testimony
Discovery of Use of False Evidence
If a lawyer offered evidence and later discover it is false, the MUST TAKE REASONABLE MEASURES.
1. speak confidentially with client and urge client to withdraw evidence
2. if client will not cooperate, lawyer should consider asking court for permission to withdraw
3. if withdrawal is not permitted or will not solve the answer, then lawyer must disclose situation to judge, even with confidentiality rules
CA: remedial measures cannot involve revealing confidential information
False testimony by clients
Basically the same principles as discovery of false evidence.
Civil- lawyer cannot call client to the test; if already testified, remedial measures
Criminal- constitutional right to testify and effective assistance of counsel; same remedial measures as discovery of false evidence
CA criminal- can offer D’s testimony in narrative form if made reasonable efforts to dissuade client and unsuccessfully sought permission to withdraw
Reporting professional misconduct
ABA: a lawyer who knows that another lawyer has violated the rule in such a way that raises a substantial question as to that lawyers honesty, trustworthiness, or fitness as a lawyer MUST REPORT the violation; can be subject to discipline for not reporting
Exceptions to confidential information and lawyer assistance programs
CA: no duty to report misconduct by another lawyer, but a duty to report misconduct of themselves in a variety of situations: sued for malpractice three times in 12 month; civill liable for fraud or the like, charged with a felony, convicted of serious crimes, etc.
Cannot inhibit disciplinary complaints
Opponent’s access to evidence
A lawyer must not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy, or conceal a document or other items having evidentiary value (or counsel someone else to do this)
CA ADDITION: cannot suppress evidence if legal obligation to reveal and cannot advise a person to secrete himself or to flee the jdx to make unavailable as a witness
Discovery procedures
A lawyer must not make a frivolous discovery request or fail to make reasonable efforts to comply with a legally proper discovery request
CA: a violation of a discovery rule does not necessarily constitute an ethical violation
Using threats to gain advantage in civil case
ABA: not included in rules, but has been acknowledged in opinions
CA: A lawyer must not threaten to present disciplinary charges IN ORDER TO GAIN AN ADVANTAGE for their client; but can say that they will and actually do it
Improper influence over tribunal
Must not seek to influence a judge or court official juror, etc, by improper means
CA: prohibits more specifically a lawyer from giving or lending anything of value to a judge, official, or employee of a tribunal except as permitted; can contribute to campaign fund for judge
Disruptive conduct
ABA: must not engage in conduct intended to disrupt a tribunal
CA: too broad; doesn’t have this rule
Public statements (trial publicity)
A lawyer who is connected with a case must not make any extrajudicial statements that the lawyer reasonably should know (1) will be disseminated by means of public communication and (2) will have a substantial likelihood of materially hurting case; dry facts permitted
Right of reply to try to fix damage if reasonable
Prosecutors duties to their own case
-Refrain from prosecuting if they know the case is not based on probable cause
-Make timely disclosures to the defense of all evidence that tends to negate the guilt of the accused or mitigate the offense
-Cannot subpoena a lawyer to present evidence about their client unless they reasonably believe that information is not (1) privileged or (2) evidence is essential, and (3) no feasible alternative (no CA rule)
-Exercise reasonable care to prevent investigators or other persons assistant the prosecutor in a criminal case from making extrajudicial statement that the prosecutor would be prohibited from making
Prosecutor duties regarding any criminal case
If prosecutor becomes aware of new, material, and credible evidence creating a reasonable likelihood that a convicted defendant did not commit the crime, the prosecutor must promptly disclose the evidence to an appropriate court or authority
IF THE CONVICTION TOOK PLACE IN P’S JDX
P must also disclose information to D and undertake further investigation
If there is clear and convincing evidence establishing that a D was convicted of a crime that they did not commit in their jdx, then must seek to remedy the conviction
Communicating with represented organizations
Lawyer must get consent of the organization counsel before talking to a person who supervises, directs, or regularly communicates with the organization’s lawyer or a person with authority to obligate the organization with respect to the matter or any current employee whose act or omission in connection with the matter may be imputed to the organization for liability (CONSENT IS NOT NEEDED FOR FORMER EMPLOYEE)
Receipt of document or ESI by mistake
ABA: if know or reasonably know it was sent by mistake, promptly notify the send so they can take protective measures
CA: only applies if the information is privileged or subject to WPD and must refrain from examining it more than necessary to determine that it’s privileged; return or seek agreement on how to handle it
Unauthorized practice of law
Must not engaged in or assist with the unauthorized practice of law
Can delegate work to nonlawyer assistants, but must supervise very carefully and must be responsible for the results
CA: employment of disbarred, suspended, resigned, or voluntarily inactive lawyers
Considered ineligible to perform various duties
Can do things like research, drafting, and clerical function
Lawyer must provide notice to state bar and client if the ineligible person is working on their case
Support activities only- do not need to notify
Statements about judicial and legal officials
Must not make a statement that the lawyer knows is false about the qualifications or integrity of a judge, hearing officer, or public legal official, or about a candidate for a judicial or legal office; and with reckless disregard as to truth of falsity
CA: only applies to judicial officials and candidates (not public legal officials and candidates)
Law-related services
can provide law related services to clients, but a lawyer who provides them is still subject to the rules if the services are not distinct from one another or the nonlegal services are provided by an entity that is controlled by the lawyer
Discharge of lawyer with contingency fee
Discharged lawyer will be entitled to the reasonable value of their services performed up to discharge, but claim for fee does not arise until contingency passes
Splitting fees between lawyers in different firms
ABA: can submit a single bill to the client if (1) total fee is reasonable, (2) either (a) split is in proportion to services performed or (b) each lawyer assumed joint responsibility, and (3) client agrees to split in writing that discloses shares
CA: fee does not need to be proportionate or assumption of joint responsibility, but agreement to divide fees must be in writing, total must not be increased due to splitting fees, and written consent to division
Permissive withdrawal CA
(1) client persists in a course of action involving lawyers services that the lawyer reasonably believes is criminal or fraudulent
(2) client has used lawyer’s services to perpetuate crime or fraud
(3) client fails to substantially fulfill an obligation to the lawyer regarding their services and has been given a reasonable warning about withdrawal
(4) representation rendered unreasonably difficult by client
(5) client knowingly and freely assent to termination
(6) continuation likely to result in violation (will result = mandatory)
(7) lawyer’s mental or physical condition makes is difficult for lawyer to carry out rep (unreasonably difficult = mandatory)
(8) inability to work with co-counsel and best interests of client
ACP covers communications with who regarding corporate client?
covers:
(1) between lawyer and high-ranking corporate official
Between lawyer and employee if:
(1) if they communicate with the lawyer at the direction of the employee’s superior
(2) employee knows that the communication is to assist the corporation in obtaining legal advice
(3) subject within the scope of the employee’s duties
Imputation of conflict
If a lawyer has a COI, then it’s also imputed to their firm, but this can be cured with (1) screening, (2) notice to affected client(s), and (3) the client does not share in the profits of the case
Imputation does not result from purely personal conflicts, like past sexual relations
Representing an organization
The lawyer owes a duty to the organization, not the directors, officers, agency employees, shareholder, ownwers, etc., but does work through them
Lawyer must explain the identity of the lawyer’s client whenever the lawyer knows or should know that the organization’s interest are adverse to those of the constituent with whom the lawyer is dealing
Opposing client of former firm
A lawyer cannot oppose a client of their former if the firm represented the client in a matter and the lawyer acquired confidential information that is material to the matter– cannot them represent someone in the same or a substantially related matter if that person’s interest are materially adverse to those of the former firm’s client, unless get informed consent, confirmed in writing (CA informed written consent)
Imputation to new firm unless screening, notice, and no sharing fees (CA- screening will only cure if the disqualified lawyer did not substantially participate in the matter)
Opposing prospective clients
A lawyer who obtains confidential information during a consultation cannot later represent a different person with interests materially adverse to those of the prospective client in the same or a substantially related matter if the information obtained could be SIGNIFICANTLY HARMFUL, imputation to firm
CA: conflict only exists if lawyer obtained MATERIAL information to matter
Can be cured by:
- both clients provide consent confirmed in writing to the lawyer or firm handling it OR
- other lawyers in firm handle it and demonstrate disqualified lawyer took care to avoid exposure more confidential info than necessary, timely screening, and written notice to prospective client so they can see over
Conflicts based on government employment- public to private
A lawyer cannot represent a private client in a matter in which the lawyer participated personally and substantially while in government service unless government gives informed consent confirmed in writing.
Imputation to firm unless normal screening rules
Conflicts based on government employment- private to public
A lawyer currently serving in government work is subject to current and former conflict of interest rules and must not participate in a matter in which they personally and substantially participated in while in private practice unless government agency gives informed consent confirmed in writing or negotiate for private employment while participating personally and substantially in matter (except law clerks)
Conflict involving judges, judicial officials, and third-party neutrals
A lawyer must not represent a private client in a matter in which the lawyer has earlier participated personally and substantially while serving as a judge or other adjudicative officer or as a law clerk unless ALL PARTIS to the proceedings give informed consent, confirmed in writing
Can cure imputation with screening
CA: if disqualification is based on their prior service as a mediator or settlement judge, then imputation cannot be cured
Keeping client up to date
Must keep them reasonably informed about the status of the matter; includes all SIGNIFICANT DEVELOPMENTS and the means by which the lawyer will achieve objectives; comply with reasonably requests for information
Discharge of lawyer with contingency fee
Discharged lawyer will be entitled to the reasonable value of their services performed up to discharge, but claim for fee does not arise until contingency passes
Splitting fees between lawyers in different firms
ABA: can submit a single bill to the client if (1) total fee is reasonable, (2) either (a) split is in proportion to services performed or (b) each lawyer assumed joint responsibility, and (3) client agrees to split in writing that discloses shares
CA: fee does not need to be proportionate or assumption of joint responsibility, but agreement to divide fees must be in writing, total must not be increased due to splitting fees, and written consent to division
Representing an organization
The lawyer owes a duty to the organization, not the directors, officers, agency employees, shareholder, ownwers, etc., but does work through them
Lawyer must explain the identity of the lawyer’s client whenever the lawyer knows or should know that the organization’s interest are adverse to those of the constituent with whom the lawyer is dealing
Splitting fees with non-lawyers
Cannot share legal fees with non-lawyers unless:
1. death benefit to dead lawyer’s estate
2. lawyer who buys the practice of a dead, disabled, or disappeared lawyer
3. nonlawyer employees in compensation or retirement plan
4. court-awarded legal fees with a nonprofit that employed or recommened lawyer
CA ADDITIONS: with non profit organization even if throug settlement or other resolution and payments to lawyer referral services
Ethical responsibility for another’s misconduct
subject to discipline for violation committed by another lawyer or act of nonlawyer if lawyer ordered the misconduct or knew about it and ratified it OR the lawyer is a partner or manager or has direct supervisory responsibility over the second person and failed to take remedial action when they could have
Advertisements
-Must be true and not misleading
-Must identify the name and contact information of at least one lawyer or firm responsible for the content
CA ADDITIONS: cannot contain a guarantee or warranty of the outcome of the case; quick cash/settlement; impersonation of lawyer without disclosing impersonation; dramatization without disclosing dramatization; contingency fee that doesn’t warn that they still might have to pay costs
Communication of fields of practice
Can communicate that they do or do not practice in particular fields of law or communicate that their practice specializes in a certain field, but may NOT state that they are certified as a specialist unless (1) the lawyer has been certified as a specialist by an organization approved by an appropriate authority and (2) the name of the certifying organization is identified in the communication
Prepaid or group plans
A lawyer can participate in a prepaid or group legal service plan that uses personal contacts to enroll memberships for the plan so long as the plan only contacts persons who are not known to need legal services in a particular matter covered by the plan
Communication of fields of practice
Can communicate that they do or do not practice in particular fields of law or communicate that their practice specializes in a certain field, but may NOT state that they are certified as a specialist unless (1) the lawyer has been certified as a specialist by an organization approved by an appropriate authority and (2) the name of the certifying organization is identified in the communication
Political contributions to obtain government employment
A lawyer or firm must not accept a government leg engagement (employment that a public official has the power to award) or an appointment by a judge if the lawyer or firm makes or solicits a political contribution for the purpose of obtaining such employment or appointment (pay to play)
No CA counterpart
All communications to the public must be…
True and not misleading. (Common sense that they are misleading or not true).
CA Additions for misleading: a communication that implies that a lawyer can advise in a language other than english (must say if it’s not the lawyer and is just a paralegal); a communication that says “no fee without recovery” unless it discloses whether or not client will be liable for losses
Permissive withdrawal ABA
- The client persists in a course of action involving lawyer’s services that the lawyer reasonably believes is criminal or fraudulent.
- Client has used lawyer’s services to perpetuate a crime or fraud.
- Client fails to fulfill an obligation to a lawyer and lawyer gives reasonable notice of withdrawing.
- Representation is unreasonably difficult due to client.
- A client insists on the lawyer taking an action that they think is repugnant.
- Unreasonable financial burden on lawyer.
- Withdrawal can be accomplished without material adverse effect on the client.
- Other good cause.
Mandatory withdrawal ABA
- The representation will result in violation of the RPC.
- Lawyer’s physical or mental condition substantially impairs their ability.
- Lawyer is discharged by client.
Mandatory withdrawal CA
- The representation will result in violation of the RPC.
- Lawyer’s physical or mental condition makes it UNREASONABLY DIFFICULT to carry out their representation.
- Lawyer is discharged by client.
- Lawyer knows or reasonably should know that the client is brining an action without probable cause and for the purpose of harassing or being malicious to other side.
Trial counsel as witness
ABA: trial counsel cannot serve as counsel in a case where they will likely be a necessary witness unless the testimony will relate to an uncontested issue, when the testimony will relate only to the value of the legal services they rendered, or withdrawal would cause substantial hardship.
CA: instead of substantial hardship, lawyer may act as an advocate in the matter if the client provides informed written consent (consent will not solve problem).
