All Flashcards
1
Q
General Substantive Standards: A lawyer may not:
A
- Violate, attempt to violate, induce violation of the Rules
- Commit a criminal act that reflects adversely on honesty or fitness as a lawyer
- State/Imply an ability to improperly influence a gov. agency/official
- Engage in conduct involving dishonesty, fraud, or misrepresentation
- Engage in conduct prejudicial to the admin of justice
- Engage in discrimination in conduct related to the practice of law
2
Q
Unauthorized Practice of Law
A
A lawyer may not practice or assist one to practice where it violates the regulation of legal profession in that jurisdiction.
In CA it’s a misdemeanor to practice law without being an active member of the Bar
3
Q
Consulting Services
A
CA: A lawyer can provide legal consulting services for pay as long as they don’t appear before court, sign pleadings, or have direct contact with opposing counsel
4
Q
CA Multi-Jurisdictional Practice Rules
A
In-House: Can serve as in-house counsel without passing the Bar as long as you register and pay dues. Can’t make court appearances, can;t represent individuals.
Legal Services Attorney: Can practice for up to 3 years under close supervision of a CA lawyer. Not eligible if failed CA Bar within prior 5 years.
5
Q
Law Firm Name
A
Can’t use name of lawyer holding public office
Must place jurisdictional limits on lawyers not licensed to practice in certain jurisdictions
May not imply practice in a partnership if they do not
6
Q
Lawyers in Association with Nonlawyers
A
Can’t be a partner with a nonlawyer if any partnership activity consists of the practice of law
Can’t share legal fees with a nonlawyer (exceptions: death benefits, purchasing a firm from a deceased lawyer’s estate, compensation/retirement plans, sharing with nonprofits that employed or recommended the lawyer.)
May not permit another to direct or regulate a lawyer’s professional judgment
7
Q
Legal Service Organizations
A
May serve as director, officer or member, even if they serve persons having interests adverse to a lawyer’s client. Lawyer must not knowingly participate in a decision that would be incompatible with the lawyer’s obligations to a client, or when the decision could have a material adverse effect on the representation of a client whose interests are adverse to a client of the lawyer
8
Q
Responsibilities of a Supervisor ABA
A
A lawyer will be responsible for another non/lawyer’s violation of the rules if:
- the lawyer orders/ratifies the conduct, or
- the lawyer is partner/manager or has direct supervisory authority and knows of the conduct at a time when consequences can be avoided or mitigated but failed to take reasonable remedial action.
9
Q
Responsibilities of a Supervisor CA
A
A CA lawyer is prohibited from assisting in, soliciting, or inducing a violation. If one member commits a violation, other members can be disciplined if they approved it or new about it and did nothing to prevent it.
10
Q
Responsibilities of a Subordinate Lawyer
A
Not subject to discipline if you act in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty.
11
Q
Restrictions on Right to Practice
A
A lawyer must not offer or make an agreement or settlement that restricts the rights of a lawyer to practice after termination of the relationship
12
Q
Sale of a Law Practice ABA
A
Can sell all or part of a practice if its sold to a lawyer, the seller ceases private practice or ceases practice in that area of law in that geographic territory, client fees don’t increase, and the seller notifies each client of the sale and their right to hire a different lawyer or take possession of their client file.
13
Q
Sale of a Law Practice CA
A
The lawyer does not have to cease practicing in the geographic territory, but a sales agreement may contain a reasonable covenant not to compete.
Does not permit sale of an area of practice, can only sell all or substantially all of a practice, which allows retention of clients that pose a conflict to the buyer or have a long relationship with the seller.
14
Q
Advertising ABA
A
Communications must:
Not contain a material misrepresentation or omit information necessary to make the communication not materially misleading.
Contain the name/address of a lawyer
Communications may contain contact info, type of services, basis of fee determination, foreign language ability, references
15
Q
Advertising CA
A CA lawyer MAY NOT made ads that contain:
A
A CA lawyer MAY NOT make ads that contain
(i) a guarantee or warranty of the outcome of a case
(ii) words/symbols that suggest quick cash/settlement
(iii) impersonation/dramatization without disclosure
(iv) a contingent fee offer without disclosing that losers must pay litigation costs
16
Q
Advertising CA
False/Misleading
A
The following are rebuttable presumptions of false/misleading communications:
(i) Communications delivered to a hospitalized client or one suffering from physical/mental stress;
(ii) mailings that seek fee paying work that aren’t clearly labeled as ads
(iii) communications containing testimonials/ endorsements without a disclaimer
17
Q
Solicitation ABA
A
A lawyer must not seek fee-paying work by initiating personal or live telephone contact, or real-time electronic contact, with a non-lawyer and with whom the lawyer has no personal, family or prior professional connection
18
Q
Solicitation CA
A
Prohibits all telephone contact, not merely ‘live’ contact
Does not specifically prohibit electronic contact
Prohibits any type of conduct soliciting employment in a specific matter when the sender knows that person is already represented by counsel
19
Q
Targeted Direct-Mail Solicitations
A
Absent actual knowledge that the person does not wish to receive communications from the lawyer, a lawyer may send truthful, non-deceptive letters to persons known to face a specific legal problem.
20
Q
Communications Regarding Field of Practice
A
May tell the public which field you do/don’t practice in
Lawyers admitted to practice patent/admiralty may label themselves as such
Lawyers may hold themselves out as a certified specialist if the certifying org. has been approved by the state bar/ABA and the communication clearly ID’s the org.
21
Q
Clients with Diminished Capatcity
A
May seek the appointment of a guardian or take protective action if you reasonably believe that the client cannot adequately act to protect herself from substantial harm.
CA: May not seek the appointment of a guardian against the client’s wishes
22
Q
Concurrent Conflicts of Interest
A
A lawyer must not represent a client if the representation is directly adverse to the interests of another client or there is a significant risk that the representation will be materially limited by the lawyer’s personal interests or the interests of another.
23
Q
Client Consent to Concurrent Conflicts ABA
A
A lawyer may undertake a concurrent conflict representation if:
(i) it is objectively reasonable for the lawyer to believe she can competently and diligently represent each client
(ii) the representation is not prohibited by law
(iii) the representation is not for parties on both sides of a case
(iv) each client gives informed consent, confirmed in writing (if a client refuses disclosure necessary for consent, the conflict is unconsentable)
24
Q
Client Consent to Concurrent Conflicts CA
A
Does not contain an objective reasonable lawyer standard, looks at the subjective reasonableness of the lawyer’s belief
Applies to potential and actual concurrent conflicts
Requires informed written consent (both disclosure and consent)
Requires only written disclosure when the conflict arises out of the lawyer’s prior relationships or personal interests
25
Specific Kinds of Conflicts:
| Ownership or Financial Interest Adverse to Client
A lawyer must not enter into a business transaction with a client or knowingly acquire an ownership/other pecuniary interest adverse to a client unless:
(i) The transaction terms are fair and reasonable to the client and fully disclosed in a writing that's reasonably understandable by the client;
(ii) The client is informed of the desirability of seeking, and is given a chance to seek, the advice of independent legal counsel; and
(iii) The client gives informed consent in a signed writing
26
Specific Kinds of Conflicts:
| Improper Use of Info
A lawyer must not use info relating to the representation of a client to the disadvantage of the client unless the client gives informed consent
27
Specific Kinds of Conflicts:
| Designating Oneself as a Beneficiary
A lawyer must not solicit a substantial gift from a client or prepare an instrument giving the lawyer a substantial gift, except when the client is related to the donee.
CA: A lawyer is prohibited from inducing the gift, but not from preparing the instrument
28
Specific Kinds of Conflicts:
| Literary or Media Rights Based on Representation
Prior to the conclusion of representation, a lawyer must not make/negotiate an agreement giving the lawyer literary or media rights based on info relating to the representation
CA: Has no provision, but case law considers this a serious conflict which requires a judge ensure the client fully understands the conflict prior to waiving it.
29
Specific Kinds of Conflicts:
| Financial Assistance to Client ABA
A lawyer must not provide financial assistance to a client in litigation except (i) a lawyer may contingently advance court costs/expenses and (ii) a lawyer representing an indigent client may pay court costs/expenses
30
Specific Kinds of Conflicts:
| Financial Assistance to Client CA
Rule applies in all contexts, not just litigation
Prohibits a lawyer from "buying" a client with a promise to pay the client's personal/business debts
Permits a lawyer to lend money to a client for any purpose after the lawyer is hired if the client gives a written promise to repay
A lawyer may pay/agree to pay the client's expenses to a third party from damages, but must obtain client consent prior to doing so
31
Specific Kinds of Conflicts:
| Compensation from Third Parties
A lawyer must not accept compensation from a non-client unless (i) the client gives informed consent; (ii) there's no interference with the lawyer's independent professional judgment/the lawyer-client relationship; and (iii) client confidentiality is protected
32
Specific Kinds of Conflicts:
| Aggregate Settlement in Multiple Representation
A lawyer representing 2+ clients must not settle unless each client gives informed consent in a signed writing. Disclosure must explain the existence and nature of all the claims and the participation of each person in the settlement
33
Specific Kinds of Conflicts:
| Limiting Liability for Malpractice
A lawyer must not make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless the client is independently represented in making the agreement.
CA: A lawyer may not limit liability in any circumstance
34
Specific Kinds of Conflicts:
| Settling Malpractice Claims
A lawyer must not settle a malpractice claim with an unrepresented or former client without advising that person in writing that independent counsel is desirable and giving that person a reasonable chance to consult with independent counsel.
35
Specific Kinds of Conflicts:
| Lawyer's who are Closely Related to Each Other
Lawyers closely related by blood or marriage must obtain informed consent before representing different clients in the same or substantially related matter
CA: Extends to (i) lawyer's who are clients of the other lawyer; (ii) lawyer's who live together; and (iii) lawyer's with an intimate personal relationship
36
Specific Kinds of Conflicts:
| Proprietary Interest in the Cause of Action
A lawyer must not obtain a proprietary interest in a client's cause of action except that the lawyer may (i) acquire a lien to secure fees/expenses and (ii) may contract with a client for a reasonable contingent fee in a civil case
CA: Does not authorize retaining liens and requires prompt release to the client of all his papers and property
37
Specific Kinds of Conflicts:
| Sexual Relations ABA
A lawyer must not have sexual relations with a client.
Doesn't apply if relations predated the lawyer-client relationship, but must ensure the ability to represent is unaffected by sexual relations.
A lawyer representing an org. must not have sexual relations with an employee who supervises or consults with lawyer about org.'s legal matters.
Sexual relations conflicts are not imputed
38
Specific Kinds of Conflicts:
| Sexual Relations CA
A lawyer is prohibited from:
Demanding sexual relations with a client as a condition of representation
Use coercion or undue influence to enter into a sexual relationship with a client
Represent a client incompetently because of the sexual relationship with the client
39
Specific Kinds of Conflicts:
| Conflicts Raised by Liability Insurance
Some states say the client is the policy holder, not the insurance company
CA: The policy holder and insurance company are joint clients
40
General Rule of Imputed Conflicts
If a lawyer faces a conflict of interest, no lawyer in that lawyer's firm may represent the client.
41
Exceptions to the General Rule of Imputed Conflicts
(i) Conflicts caused by government lawyers
(ii) Conflicts caused by a personal interest that don't present a significant risk of materially limiting the representation by the other lawyers in the firm
(iii) Conflicts caused by a lawyer's close familial relationship with another lawyer
(iv) Conflicts caused by a lawyer's sexual relationship with the client
(v) Conflicts arising out of a lawyer's prior association with a law firm if the DQ'd lawyer is timely screened
42
Screening of a DQ'd Lawyer to Avoid Imputation
Must be timely screened
Must be apportioned no part of the fee
Must provide prompt written notice to affected former clients
Must provide ongoing certifications of compliance with screening procedures
43
CA Imputed Conflicts and Screening
The CA Rules are silent about imputed conflicts of interest so a CA lawyer is not subject to discipline for an imputed conflict.
44
Conflicts of Interest Regarding Former Clients
A lawyer may not represent a person in the same or substantially related matter if that person's interests are materially adverse to the interests of a former client, unless the former client gives informed consent, confirmed in writing.
45
Conflicts of Interest Regarding Former Clients of a Firm
A lawyer may not represent a person in the same or a substantially related matter in which the lawyer's prior firm represented a client if that person's interests are materially adverse to the client and if the lawyer acquired material confidential information about that client, unless the former client gives consent, confirmed in writing
46
Using or Revealing Information about a Former Client
A lawyer who formerly represented a client may not thereafter use info relating to the representation to the disadvantage of the former client (unless allowed by the Rules or the info became generally known); or reveal info relating to that representation.
CA has no counterpart rule, but must maintain client confidences and may not reveal former client's confidential info or use it to their disadvantage.
47
ABA Prospective Clients
A consultation sufficient to create a prospective client occurs when (i) the lawyer specifically requests/invites the submission of info about potential representation without clear warning limiting the lawyer's obligations and (ii) a person provides information in response
48
Conflicts of Interests of Prospective Clients
A lawyer who obtains confidential info during prelim discussions with a prospective client must not later represent a different person in the same or substantially related matter if the confidential info could significantly harm the prospective client.
This conflict is imputed.
49
Overcoming a Prospective Client Conflict
Obtain informed consent, confirmed in writing from the affected and prospective client; or
Demonstrate that you took care to avoid exposure to any more confidential than was necessary to determine whether to represent the client; were properly screened; and gave written notice to the prospective client.
50
CA Prospective Clients
CA does not have a counterpart rule, but case law has established representation beings when the lawyer learns material confidential info.
51
Trial Counsel as Witness ABA
A lawyer may not serve as trial counsel in litigation when the lawyer is likely to be a necessary witness.
Exceptions:
The testimony will relate solely to an uncontested matter;
The testimony will concern only the nature and value of legal services rendered; or
Withdrawal would result in a substantial hardship to the client because the the lawyer's distinctive value to the case
52
Trial Counsel as Witness CA
Trial counsel is prohibited from testifying as a witness before a JURY unless the testimony concerns an uncontested matter, the nature and value of her services, or the client consents
53
Conflicts in Representing an Organization:
| Acting in Best Interests of Org. ABA
A lawyer must report advocated actions that may cause the org. substantial injury to a higher authority in the org., and if necessary to the highest authority.
If the highest authority fails to take timely, appropriate action, the lawyer MAY report outside the corp. to the extent the lawyer reasonably believes necessary to prevent substantial injury to the org.
54
Conflicts in Representing an Organization:
| Acting in Best Interests of Org. ABA
CA lawyers are PROHIBITED from disclosing confidential info about the violation to the outsider unless the disclosure is necessary to prevent a criminal act that will cause death or substantial bodily harm to someone. A CA lawyer may withdraw however.
55
Sarbanes-Oxley Reporting Requirements
If a lawyer becomes aware of credible evidence that her client is materially violating federal/state securities law, has breached a fiduciary duty under federal/state law, or has committed a similar material violation, she MUST report to the org.'s Chief Legal Officer.
The CLO must investigate and report results to the reporting lawyer.
If an appropriate response is not taken, lawyer must report to the Board/Audit Committee/Outside Director Committee.
When reporting, the lawyer may reveal to the SEC confidential info reasonably necessary to stop or rectify a violation that will cause substantial financial injury or to prevent perjury.
56
Conflicts When a Lawyer Leaves a Firm
A firm may represent clients with interests adverse to clients of the former lawyer unless (i) the matter is the same or substantially related to that in which the former lawyer represented the client and (ii) any lawyer remaining in the firm knows material confidential info.
57
Conflicts Rules for Gov. Officers/Employees:
| Prior Government Employment
A lawyer must not represent a client in connection with a matter in which the lawyer participated personally and substantially as a government officer/employee unless the appropriate government agency gives informed consent, confirmed in writing.
CA: Has not adopted this rule, but prevents a criminal prosecutor from later participating on the defense side of the case
58
Conflicts Rules for Gov. Officers/Employees:
| Screening Procedures
Other lawyers in the firm may handle the matter if: (i) the DQ'd lawyer is screened and does not share in any fees; and (ii) the appropriate gov. agency is promptly notified of the screening arrangement
59
Conflicts Rules for Gov. Officers/Employees:
| Former Government Employee's who Know Confidential Government Info
If a government lawyer learns confidential government information about a person, the lawyer must not represent a client whose interests are adverse to that person in a matter in which the info could be used to the material disadvantage of that person.
Gov. screening procedures are allowed.
60
Conflicts Rules for Gov. Officers/Employees:
| Current Government Lawyers
A current governmental lawyer must obtain informed consent, confirmed in writing, from the appropriate government agency before undertaking a government assignment that involves a matter in which the lawyer participated personally and substantially before entering government service.
61
Conflicts Rules for Gov. Officers/Employees:
| Seeking Private Employment
A current governmental lawyer must not negotiate for private employment with a party in a matter in which the lawyer is participating personally and substantially
62
Conflicts Rules for Former Judges
A lawyer must not represent anyone in a matter in which the lawyer participated personally and substantially as a judge, adjudicative officer, or law clerk, except with informed consent, confirmed in writing.
Screening is allowed
63
Conflicts Rules for Gov. Officers/Employees:
| Negotiating for Future Employment
A lawyer serving personally and substantially in a matter as a judge must not negotiate for future employment with a party.
A law clerk may negotiate if the law clerk first notifies the judge.
64
Special Conflict Rules for Limited Legal Service Programs
A lawyer providing short-term limited legal services under a sponsored program without expectation of continuing representation is subject to a concurrent conflict only if the lawyer knows the representation involves a conflict and has an imputed conflict only if the lawyer knows that another lawyer in her firm would have a conflict.
65
Establishing Compensation for Legal Services:
| Duty to Avoid Fee Misunderstandings
ABA: When a lawyer has not regularly represented the client, the fee must be communicated to the client, preferably in writing, before or within a reasonable time after commencing representation
CA: A written fee agreement is required if the fees will exceed $1000 except when (i) the client is a corporation, (ii) the client waives in writing, (iii) the services are the same kind the client has previously received and payed for; (iv) the lawyer acted in an emergency; or (v) a writing is impractical for other reasons
66
Establishing Compensation for Legal Services:
| Reasonableness of Fees
ABA: A fee must be reasonable based on factors such as time, labor and skilled required, customary fee within the locality for similar work, the amount involved and result obtained, and the experience, ability, reputation of the attorney.
CA: Prohibits unconscionable fees
67
Establishing Compensation for Legal Services:
| Contingent Fees
ABA: Must be in writing, signed by the client, and state the method by which the fee is to be determined. Prohibited in domestic relations matters and criminal cases.
CA: Silent on prohibition in domestic relations/criminal cases
68
Establishing Compensation for Legal Services:
| Referral Fees
ABA: Referral fees are prohibited. A division of fees is allowed if in proportion to services performed or each lawyer assumes joint responsibility. A fee split must be in writing, state the share each lawyer is to receive, and be signed by the client.
CA: A lawyer may pay a referral fee to an outside lawyer who referred the case to her if the client knows all the terms and consents in writing and the total fee is not increased because of the referral fee
69
Disclosure of Professional Liability Insurance
A lawyer who knows or should know that he does not have professional liability insurance must inform he client in writing at the time of engagement whenever it is reasonably foreseeable that the amount of legal representation will exceed four hours.
70
Duty of Care:
| Competent Representation ABA
Requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. Relevant factors include the relative complexity/specialized nature of the matter, the lawyer's experience and training, the lawyer's ability to prepare and study, the feasibility of referring or consulting with a competent lawyer. Before retaining assistance, the lawyer should reasonable believe doing so would contribute to the competent legal and ethical representation of the client and obtain informed consent from the client.
71
Duty of Care:
| Competent Representation CA
A lawyer must not intentionally, recklessly, or repeatedly fail to perform legal services with competence. Duty of competence also includes a duty to supervise the work of subordinate attorneys/nonattorneys
72
Duty of Care:
| Diligence and Communication
A lawyer must act with reasonable diligence and promptness in representing a client and must keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
73
Duty of Confidentiality
| Attorney Client Privilege
Allows a client to refuse to testify and prevent his attorney from testifying in court about confidential communications.
74
Duty of Confidentiality
| Attorney Client Privilege in Corporations
In corporations applies to communications between attorney and high ranking corporate official, and corporate employees if the communication (i) concerns a subject with the scope of the employee's duties, (ii) the employee communicates with the attorney at the direction of the employee's superior, and (iii) knows that the communication is to assist the corporation in obtaining legal advice.
75
Duty of Confidentiality
| Scope of Attorney Client Privilege
Covers direct communications pertaining to legal services between attorney and client, and communications made through or in the presence of a lawyer's employee.
CA: Privilege attaches to the entire confidential communication, not just communication pertaining to legal services
76
Duty of Confidentiality
| Duration of Attorney Client Privilege
ABA: Indefinite
CA: Terminates when a deceased client's estate is settled and his personal representative discharged
77
Duty of Confidentiality
| Exceptions to Attorney Client Privilege
ABA: The privilege does not apply where (i) the client seeks the attorney's services to commit a future crime or fraud; (ii) the communication is relevant to a breach of duties of the attorney-client relationship; (iii) civil litigation arises between former joint clients; and (iv) the attorney can furnish evidence about the competency or intention in a will or intervivos transfer.
CA: The above and (v) if the lawyer reasonably believes disclosure is necessary to prevent a criminal act that the lawyer reasonably believes is likely to result in substantial bodily harm or death
78
Duty of Confidentiality
A lawyer must not reveal info relating to the representation of a client and must take reasonable efforts to prevent the inadvertent or unauthorized disclosure/access to such info. Applies regardless of when confidential info was obtained.
79
Exceptions to Duty of Confidentiality (8)
A lawyer may reveal confidential info if:
(i) the client gives informed consent;
(ii) impliedly authorized to carry out the representation
(iii) the lawyer reasonable believes it is necessary to prevent reasonably certain death or substantial bodily harm
(iv) necessary to prevent the client from committing a crime or fraud likely to cause substantial financial loss AND the client has/is using the lawyer's services to commit the crime/fraud
(v) required by law or court order
(vi) necessary to collect a fee or protect the lawyer
(vii) necessary to obtain advice about ethics rules
(viii) conflict checks
80
Exceptions to Duty of Confidentiality ABA
A lawyer may reveal confidential info:
(i) if compelled by law or court order
(ii) to collect an attorney's fee
(iii) to defend against malpractice claim
(iv) if necessary to prevent a criminal act that will cause death or substantial bodily harm
81
Duty of Confidentiality
| Evaluations for Use by Third Persons
A lawyer may provide an evaluation for a third party if (i) the lawyer reasonably believes making the eval is compatible with the lawyer's relationship with the client, and (ii) the lawyer obtains client's informed consent if the eval is likely to materially harm the client's interests.
82
Duty to Protect A Client's Property
A lawyer must hold client property separate from lawyer's own property; must keep records of client funds and other property (CA: 5 years); must keep client informed and deliver funds to client or third party entitled to receive funds, and, if the client disputes the claim, the lawyer must keep disputed funds separate.
83
Duty of Representation
Must exercise independent professional judgment and render candid service. The client decides the objectives of representation, whether/on what terms to settle, plea to enter, waiver of jury trial, and whether to testify in own defense.
A lawyer may limit scope if the limitation is reasonable and client gives informed consent.
84
Duty of Representation
| Assisting in Criminal or Fraudulent Conduct
A lawyer must not counsel/assist in conduct the lawyer knows is criminal/fraudulent. If the client insists, the lawyer must withdraw. If the lawyer later discovers such use, the lawyer must withdraw. If the use has or will cause substantial financial injury the lawyer MAY reveal confidential info to prevent, rectify, or mitigate. The lawyer MUST reveal confidential info if it is the only way to avoid assisting in the crime/fraud
85
Communication with Adverse Parties and Third Persons:
| Represented Person
A lawyer must not communicate about a matter with a person he KNOWS to be represented by counsel unless the counsel has granted by permission. Rule applies even if the represented person initiated or consented to communication.
86
Communication with Adverse Parties and Third Persons:
| Unrepresented Person
A lawyer may communicate with the unrepresented person directly. However, the lawyer must (i) not state or imply that she is disinterested; (ii) clear up misunderstandings about her role; (iii) not give advice other than to obtain counsel
87
Communication with Adverse Parties and Third Persons:
| Organizations
A lawyer must obtain consent before communicating with a person (i) who supervises/regularly consults with org.'s lawyer; (ii) who has authority to obligate the org., or (iii) whose conduct may be imputed to the org.
Consent of counsel representing employee in individual capacity is sufficient.
Consent not required to communicate with former employees, but may not pry into org.'s legal rightrs
88
Communication with Adverse Parties and Third Persons:
| Respect for Rights of Third Persons
Must not use (i) means that have no substantial purpose other than to embarrass, delay or burden a third person, or (ii) methods of obtaining evidence that violate the legal rights of such person
89
Inadvertently Sent Documents
If a lawyer receives a document relating to representation of a client that appears to be confidential and the lawyer knows or should know the document was sent inadvertently, the lawyer must stop looking and promptly notify the sender. Attorney-client and work product privilege is not waived in federal proceedings if the holder took reasonable steps to prevent disclosure and rectify the error
90
Documents Sent Intentionally from Anonymous Source
CA: When an unnamed source provides a lawyer with a document apparently containing privileged communications between the opposing counsel his client, the lawyer must not read the material and must notify opposing counsel
91
Truthfulness in Statements to Others
A lawyer must not knowingly (i) make a false statement of material fact or law to a third person, or (ii) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure violates client confidentiality
92
The Conduct of Litigation
A lawyer must not make frivolous claims or defenses, and must make reasonable efforts to expedite litigation consistent with the interests of the client
93
Candor Toward the Tribunal
A lawyer must not knowingly
(i) make a false statement of material fact or law to a tribunal;
(ii) Fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer
(iii) Fail to disclose to the tribunal controlling legal authority that is directly adverse to the position of the client and not disclosed by opposing counsel; or
(iv) Offer false evidence
94
False Evidence
A lawyer must not knowingly offer false evidence, may refuse to offer evidence believed to be false, and must take reasonable remedial measures if false evidence is offered.
95
Knowingly Offering False Evidence
A lawyer must not offer evidence she knows is false. If part of a W's testimony is known to be false, may allow testimony as to the truthful portion. If a client insists on offering false evidence a lawyer must 1) try to convince the client otherwise, then 2) refuse to offer the evidence. A lawyer may ask the tribunal for permission to withdraw.
96
Evidence Believed to be False
A lawyer MAY refuse to offer evidence she reasonably believes is false, except for the testimony of a D in a criminal case.
97
Reasonable Remedial Measures if False Evidence is Offered
1) Must speak confidentially with the client/W to warn that person of the lawyer's duty to reveal false evidence and seek cooperation in withdrawing or correcting false evidence
2) If that fails, MAY ask for permission to withdraw
3) The lawyer must disclose enough info to the tribunal to set the matter straight, even if info protected by privilege or confidentiality
CA: Silent on remedial measures, a lawyer is prohibited from misleading with false statements and many only use means consistent with the truth
98
Criminal D Who Insists on Testifying Falsely ABA
A lawyer must allow the D to testify, even if the lawyer reasonably testimony will be false. However, the lawyer must try to convince D not to testify falsely. If that fails, may ask for permission to withdraw. As a last resort, may disclose info to tribunal.
99
Criminal D Who Insists on Testifying Falsely CA
The lawyer must first try to persuade the D not to testify falsely.
Then may ask for permission to withdraw.
Then may call the D as a W and question until the point of false testimony, then may allow the D to testify in a narrative fashion,
MUST not use false testimony is closing argument
100
Required Disclosures in Ex Parte Proceeding
ABA: A lawyer must inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, regardless whether the facts are adverse to her client.
CA: A lawyer has no special duty of candor
101
Fairness to Opposing Party and Counsel (6+1)
ABA: A lawyer must not:
(i) unlawfully obstruct access to evidence, or alter, destroy or conceal material with potential evidentiary value
(ii) Falsify evidence, counsel a W to testify falsely, offer an inducement to a W prohibited by law
(iii) Knowingly disobey an tribunal rules
(iv) Make frivolous discovery requests or fail to make reasonably diligent efforts to comply with proper discovery requests
(v) In trial, allude to any matter the lawyer does not believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue, or state a personal opinion
(vi) Request a person other than a client to refrain from voluntarily giving relevant info unless the person is a relative/employee of the client and the lawyer reasonably believes that person's interests will not be adversely affected by refraining from giving info
CA: Threaten to bring disciplinary, admin, or criminal proceedings to gain an advantage in a civil dispute
102
Avoiding Improper Contact with Jurors/the Court
A lawyer must not (i) illegally seek to influence a judge, juror, prospective juror, or other official; (ii) communicate ex parte with such person except as permitted by law or court order; or (iii) engage in conduct intended to disrupt a tribunal
103
Trial Publicity
A lawyer must not made extrajudicial statements that the lawyer knows or reasonably should know will be disseminated and have a substantial likelihood of materially prejudicing an adjudicative proceeding. A lawyer may make a state a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or her client.
104
Mandatory Withdrawal ABA
If (i) the representation will result in a violation of the Rules or law; (ii) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client, or (iii) the lawyer is discharged
105
Mandatory Withdrawal CA
If (i) the lawyer knows or should know the client is acting without probable cause and to harass or maliciously injure another person; or (ii) the representation will result in a violation of the Rules (but not other law)
106
Permissive Withdrawal ABA
(i) Withdrawal can be accomplished without material adverse effect on the interests of the client;
(ii) The client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal/fraudulent
(iii) The client has used the lawyer's services to perpetrate a crime or fraud
(iv) The client insists on action the lawyer considers repugnant or with which the lawyer has a fundamental disagreement
(v) The client fails to substantially fulfill an obligation to the lawyer and has been given reasonable warning withdrawal will occur unless the obligation's fulfilled
(vi) The representation will result in an unreasonable financial burden on the lawyer; or
(vii) Other good cause for withdrawal exists.
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Permissive Withdrawal CA
(ii) The client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal/fraudulent
(iv) The client insists on action the lawyer considers repugnant or with which the lawyer has a fundamental disagreement
(v) The client fails to substantially fulfill an obligation to the lawyer and has been given reasonable warning withdrawal will occur unless the obligation's fulfilled
(vii) Other good cause for withdrawal exists.
108
Political Contributions to Obtain Government Employment
A lawyer must not accept gov. legal employment or judicial appointment if the lawyer makes a political contribution for the purpose of obtaining such employment. Exceptions for uncompensated services, employment on the basis of lawyer's experience in a process free from contribution influence, or made on a rotating basis.
109
Statements about Legal Officials
A lawyer must not make a statement that the lawyer knows to be false or with reckless disregard as to its truth concerning the qualifications or integrity of a legal official.
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Special Role of the Public Prosecutor
In criminal cases, prosecutor must:
(i) refrain from prosecuting charges the prosecutor knows is not supported by probable cause
(ii) Make reasonable efforts to assure the accused has been advised of right to counsel
(iii) Not seek to obtain waivers by unrepresented clients of important pretrial rights
(iv) Make timely disclosure to the defense of all info known to tend to negate or mitigate the offense
(v) Exercise reasonable care to prevent the making of prohibited extrajudicial statements
(vi) Not subpoena a lawyer unless the prosecutor reasonably believes the info is not privileged, is essential and there is no feasible alternative
(vii) Refrain from making extrajudicial comments with a substantial likelihood of heightening public condemnation
(viii) Promptly disclose new credible material info which creates a reasonable liklihood of innocence
(ix) Seek to remedy a wrong conviction
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Reporting Professional Misconduct ABA
A lawyer who knows another lawyer has violated the Rules raising a substantial question as to that lawyer's honesty or fitness as a lawyer must report the conduct.
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Reporting Professional Misconduct CA
CA has no rules requiring reporting other lawyers.
A lawyer must self-report when:
(i) sued for malpractice 3x in a year
(ii) Found civilly liable for fraud, breach of fiduciary duty, or the like
(iii) Sanctioned more than $1,000 (except discovery sanctions)
(iv) Charged with a felony
(v) Convicted of certain serious crimes; or
(vi) Disciplined in another jurisdiction
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Must Not Inhibit Disciplinary Complaints CA
A lawyer must not make or seek an agreement (i) prohibiting a person from reporting a professional misconduct claim or settlement; (ii) requiring a person to withdraw or refrain from cooperating with such a claim; or (iii) providing that the record of any civil action for professional misconduct be sealed from review by the disciplinary agency
