CA PR Flashcards
Professional Responsibility
Formation of lawyer client privilege?
In general no duty to accept representation. However, there is a duty to reject it if it would violate and ethical rule.
In CA, a lawyer is not permitted to represent a client if he knows or should know there is no probable cause to bring an action and that the action is being is being brought to harass or maliciously injure.
When can’t an attorney not present a claim or defefense?
The attorney must not present a claim or defense that is not warranted under existing law, unless it can be supported by a good faith argument seeking to change the law.
When does attorney client relationship begin
When client reasonably believes the relationship exists
What is the scope of relationship and duties of attorney and client
Client has attorney to make decisions that accept the settlement.
The attorney must communicate all bonanfide offers to the client.
Attorney- alls strategic decisions he is the means to clients end.
Assisting client in criminal/fraudulent conduct?
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 representation.
When shall an attorney mandatorily withdraw
1) if failure to do so would result in a violation of ethical rules or law;
2) Assisting in criminal conduct
3) In CA, a lawyer must withdraw if he knows or should know the client is asserting a claim or defense without probable cause AND for the purpose or harassing or maliciously injuring a person
Permissive Withdrawal- Model Rea
At Anytime, without material harm to client
Permissive Withdrawal- CA
A lawyer is not permitted to withdraw. A lawyer must seek to withdraw under the following basis:
Client insists on presenting a claim or defense not warranted under existing law and no good faith argument on the law exists.
Client seeks to pursue a criminal or fraudulent course of conduct or the client has used lawyers services a to advance a course of conduct that the lawyer reasonably believes is crime/fraud.
Client insists lawyer pursue a course of conduct that is criminal or fraudulent
Continue representation is likely to result in violation of CA rules or State Bar Act.
Withdrawal even with harm to client model rules
Client engages in criminal or fraudulent action
Attorney learns that client used his services for crime or fraud
Client insists on course of action that lawyer finds repugnant or lawyer has a fundamental disagreement with
The client has made representation unreasonably difficult
The representation will result in financial burden on lawyer (not a basis for withdrawal in CA)
Procedure for withdrawal
Give client reasonable notice and reasonable opportunity to fine new representation
When litigation pending must obtain court approval
Duties upon termination
Lawyer must safeguard and return all papers and property to the client; this includes the duty to safeguard such
Under model rules an attorney may retain papers to obtain payment-
I’m California attorneys cannot retain poets and must return all papers and property.
Attorney must return advanced fees which were not earned.
Fee’s under model rule- cost
Charge a fee reasonable under the circumstances
Fees- CA rules
Attorneys fees must not be unconscionable
Writing of fee agreement
In CA if fees exceed $1,000 they must be in writing- The agreement must be in writing; state free and services and be signed by both parties with a copy of the agreement given to the client.-
Contingent fee agreements required…
To be in writing, Signed by client
Terms of calculations fees and expenses client is liable for.
CA also provides that a duplicate signed by attoenunbe provided to cleaner at time if signaling
What happens if fee agreement doesn’t comply with formalities?
Voidable by client but attorney gets reasonable fee for work done.
If Criminal Defendant wants to testify?
May counsel them not to but have to assent to them testifying if they so wish.
When are contingent fees prohibited?
Criminal Cases and domestic relations cases
CA Contingency Fee’s must
1) include fee rate
2) how disbursments/costs will affect contingency fee and C’s recovery, extent to which C must compensate L for costs
Advanced Payment
Permitted but unearned portion must be returned upon termination (not required for a retainer)
Terms of Payment can C pay in property?
Property is permitted for payment but not as a propierty interest in the cause of action or subtject of ltigation.
Curtailing services?
Permitted but be careful, contract limiting L’s services upt t a stated amoutn when more extensive serves are foreseeable is not permissible
Fee Splitting- Lawyers from Different Firms- MR
Fee in proportion to services rendered, C’s written consent, and total fee charged is reasonable
Fee Splitting- Different Firms- CA
L’s enter into a written agreement to dive the fee, C’s written consent after full disclosure, and total fee not higher solely because of fee splitting
Referral fees- MR
Not Permitted
Referral Fee’s- C
L may offer or give a give or gratuity to a person having made a recomendation resulting in the employment of L or L’s firm… Must not be given as consideration or promise for furthcoming referrals
Referral Fee’s- CA- Referral services
L or law firm may 1) pay prescribed registration, referral or fee to referrel service that is established or operated with State Bar standards
2) share with or pay legal fee that arises from a settlment or other resolution that is not court-awarded with a nonprofit organization that is employed, retained or facilited L’s employment in the matter if agreement to divide fee is in writing and client consents in writing
Referral Fee’s- Non Lawyers
Non-Lawyers not permitted if activities include practice o flaw
Client Fund Account Rules
1) In general, all funds must be deposited into identifiable bank account
2) no co-mingling
3) Recordkeeping- must maintain account recrods for five years (CA)
4) Dispute over funds- disputed portion of funds must not be withdrawn from C trust account until dispute is resolved
5) Notice and Delivery of funds
Notice and Delivery of Fund Model Rules
Notice- L must promptly notify C of receipt of funds
Delivery- L must promptly deliver undisputed funds to C
Notice and Delivery of Funds CA
Notice- L must notify C no later than receipt of funds.
Delivery- Rebuttable presumption of violation if not delivered within 45, absent good cause
Lawyer Client Privilege Elements
Confidential- C must intend a communication to be confidential
Communication- but be purpose of seeking legal advice/representation
C hold privilege- Only C can waive it and L must assert on C’s behalf
Duration- indefinite, survives C’s death (CA- terminates when C’s estate is settled)
Exceptoions to duty of confidentiality
Crime Fraud Exception
Disputes between L and C or co-C’s
Information likely to result in substantial bodily injury or death
Work Product
Writings that reflect L’s impressions, conclusions, opinions or legal research not discoverable under any circumstances.
Prospective Client
MR- generally not permitted to use/reveal information
CA
Communications are not protected if made by:
Person who consults with L wthout good faith intention to retaik
After L states she is unwilling or unable to represent the person
Unilaterally without a reasonable expectation that L will be retained
Preserving Confidentialy
L must take reasonable precautions to safeguard confidential information from inadvertent/unauthorized disclosure to unintended recipeients
Informed Consent- Duty of Confidentiality
L may reveal confedential information if C gives infomred consent after adequate communication of material risks and other available alterntives
Implied authority to disclose
Permitted if necessary to carry out the respresentation
Exception to Duty of Confidentially- MR
Allows disclosure to prevent “reasonably certain” death or substantial bodily harm
Exception to Confidentiality CA
disclosure reasonably believed necessary to prevent criminal act L believes will result in death or substantial bodily harm. Before disclosure, L must make good-faith effort to persuade C not to commit/continue the criminal act or prevent the threatened death or substantial bodily harm
Duty of Confidentialy= Disclosure significant financial harm
MR- disclosure permitted if L reasoncably believes it is necessary to prevent mitigating or rectify C from using Ls services to cause substantial financial harm to others.
CA- Can’t disclose for financial harm
Conflicts of Interest- Lawyers Personal INterest
L must not represent C if there is a significant risk that representatoin may be materially limited by L’s own interest unless:
1) reasonably believes he can provide competent/dilgent representation to the affected C;
2) Respresentation not prohbited by law
3) Affected client gives informed consent, confirmed in writing (ML) informed written consent (CA)
- Representation does not involve the assertion of a claim by one client against another client represented by the same lawyer.
Opposing Lawyers Related- MR
Related L cannot represent Cs in the same matter unless C’s give infomred consent
Opposing L’s Related- CA
Even when there is not a a significant risk that L’s representation of C will be materially limited, L cannot represent C in a matter in which L KNSK that another party’s L
Need to inform client in writing of the releationshipo
Sexual Relations with C
NOt allowed unless relationship predates L-C relationship (cannot be waived)
CA- Exception for spouses and domestic partner
