CA Professional Responsibility

Question 1

The Applicable Law –> In General

Answer 1

Conduct of lawyers licensed to practice in CA governed by the CA Rules of Prof Conduct (CRPC) and CA statute.

The American Bar Association’s Model Rules of Professional Ethics (Model Rules) are similar to the CRPC and provide occasional guidance w/o any legal effect, since they are only models for states to follow if they so choose.

Question 2

The Applicable Law –> Powers of Courts

Answer 2

Applications for ADMISSION/ REINSTATEMENT are filed with and heard by the State Bar Court.
—–> The CA Supreme Court ultimately has the power to DISBAR or SUSPEND lawyers.

Question 3

The Applicable Law –> Violation of the CRPC (Requirement)

Answer 3

A WILLFUL violation of any of these rules is a basis for discipline.

Willfulness generally means that the lawyer intended to commit, or intended to abstain from committing, an act.
—-> The lawyer need not have known his behavior was a violation of the standards or have had any bad faith or intent to do wrong.

Question 4

Regulation of the Legal Profession –> Admission to the Bar: Duty to Cooperate

Answer 4

Own application for admission
—> Applicant is prohibited from making a statement of material fact that she knows to be false, or with reckless disregard to its truth or falsity.

Another person’s application for admission
—> Lawyer cannot make a statement of material fact that the lawyer knows to be false.

Question 5

Regulation of the Legal Profession –> Regulation After Admission: Misconduct

Answer 5

It is professional misconduct for a lawyer to:

(1) violate (or attempt to) the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(2) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects;
(3) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation;
(4) engage in conduct that is prejudicial to the administration of justice;
(5) state or imply an ability to influence improperly a govt agency or official or to achieve results by means that violate the rules of professional conduct or other law; or
(6) knowingly assist a judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.

Question 6

Regulation of the Legal Profession –> Regulation After Admission: Harassment, Discrimination, and Retaliation

Answer 6

While MRs impose an obligation not to harass or discriminate on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status in the operation of a law practice, CA’s rule goes further.

CRPC: a lawyer in his practice of law cannot harass, discriminate, or retaliate on the basis of any protected characteristic, meaning:
•	race;
•	religious creed;
•	national origin;
•	ancestry;
•	physical disability;
•	mental disability; etc. etc.
-----> Basically, don't need to know categories; if you see discrimination, it's not okay in CA even under the Model Rules.

Question 7

Regulation of the Legal Profession –> Multi-jurisdictional Practice

Answer 7

Lawyer admitted to practice law in CA shall not:

(1) practice law in a jdx where it would be in violation of the regs in that jdx; or
(2) knowingly assist a person in the unauthorized practice of law in that jdx.

Lawyer not admitted to practice law in CA shall not:

(1) unless authorized, est an office / other systematic / continuous presence in CA for the practice of law; or
(2) hold himself out to the public or otherwise represent that the lawyer is admitted to practice law in CA.

However, the practice of law in jdxs in which a lawyer is not admitted is permissible on a temporary basis in the following situations:

(1) in association with a lawyer who is admitted to practice in that jdx and who actively participates in the matter;
(2) pro hac vice admission;
(3) where legal services are reasonably related to an arbitration, mediation, or other alternative dispute resolution proceeding and derive from the lawyer’s practice of law w/in a jdx where the lawyer is admitted to practice; and
(4) as a catch-all category, where legal services arise out of or are reasonably related to the lawyer’s practice in a jdx in which he is admitted to practice.

Question 8

Law Firms and Associations –> Vicarious Responsibility in Law Firms: Managers

Answer 8

Lawyer w/ managerial authority in a law firm must make reasonable efforts to ensure that the firm has in place MEASURES giving REASONABLE assurance that all lawyers in the firm comply w/ the Rules.
—> If a lawyer has direct supervisory authority over another lawyer the supervising lawyer must make REASONABLE EFFORTS to ensure that the other lawyer conforms to the Rules.

A lawyer is responsible for another lawyer’s violation of the Rules if:

(1) the lawyer orders or, w/ knowledge of the specific conduct, ratifies the conduct involved; or
(2) the lawyer has managerial authority in the law firm in which the other lawyer practices (or has direct supervisory authority over the other lawyer) and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

Question 9

Law Firms and Associations –> Vicarious Responsibility in Law Firms: Subordinates

Answer 9

Lawyers are bound by the Rules even when acting at the direction of another.
—–> However, subordinate lawyers do not violate the Rules if they act in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty.

Question 10

Law Firms and Associations –> Sale of Law Practice

Answer 10

All/substantially all of a law practice can be sold (including goodwill) regardless of whether the lawyer is alive or dead, provided that a # of conditions are met:

(1) FEES charged to clients cannot be increased solely by reason of the sale; and
(2) if the sale contemplates the transfer of responsibility for work not yet completed or for client files, then all clients must receive written NOTICE stating that:
- —-> the interest in the law practice is being TRANSFERRED to the purchaser;
- —-> the clients have the right to RETAIN their own counsel;
- —-> the clients may take POSSESSION of their materials and property;
- —-> if no response is received from a client within 90 days, or if the client’s rights would be prejudiced by a failure to act, then the purchaser may act on behalf of the client until otherwise notified by the client.

CRPC similar to Model Rule , except that CRPC allows the sale of substantially all of the practice, but not necessarily its entirety, whereas Model Rule reqs the entire practice to be sold and reqs the seller to cease practicing law or at least to cease practicing the type of law that has been sold, in that geographic territory.

Question 11

Finding the Client and Entering into a Relationship w/ the Client —-> Advertising: Communications in General

Answer 11

A lawyer cannot make a FALSE/MISLEADING communication about the lawyer/the lawyer’s services.

A communication is false or misleading if it:

(1) Contains a MATERIAL misrepresentation of fact/law; or
(2) OMITS a fact NECESSARY to make the communication considered as a whole not materially misleading.

Question 12

Finding the Client and Entering into a Relationship w/ the Client —-> Advertising: Prohibited (CA Business and Professional Code)

Answer 12

The following are prohibited:

(1) Statements that the lawyer can GUARANTEE the outcome of a legal matter;
(2) Statements that the lawyer can obtain IMMEDIATE cash or quick settlements for clients;
(3) IMPERSONATIONS of the lawyer and a client, unless disclosure of dramatization is made;
(4) Statement that a lawyer offers representation on a CONTINGENT basis, unless it also states (if applicable) that the client will be responsible for any costs advanced by the lawyer if no recovery is obtained; and
(5) Ads containing any FALSE, MISLEADING, or DECEPTIVE statements, or omissions of any fact necessary to make the statements made not false, misleading, or deceptive.

Question 13

Finding the Client and Entering into a Relationship w/ the Client —-> Field of Practice

Answer 13

Certain communications of fields of practice and specialization are prohibited:

(1) Can communicate that lawyer does/does not practice/concentrate in a field of law; and
(2) Cannot state/imply being a certified specialist in a certain field unless the lawyer has been certified as a specialist by the CA Board of Legal Specialization or an approved authority, and the name of that entity is clearly identified in the communication.

Question 14

Finding the Client and Entering into a Relationship w/ the Client —-> Solicitations

Answer 14

DIRECT CONTACT for purposes of soliciting a prospective client is prohibited, UNLESS the person contacted is a lawyer/has a PRIOR personal or professional relationship w/ the lawyer contacting him.
—> The solicitation prohibition does not apply if PECUNIARY gain is NOT a motive.

Employment of a RUNNER
—–> CA PROHIBITS the employment of a runner or capper (using someone else to carry out solicitation for you) to solicit business for a lawyer or firm.

Question 15

Finding the Client and Entering into a Relationship w/ the Client —-> Lawyer Referrals

Answer 15

A lawyer is prohibited from giving anything of value to a person for recommending the lawyer’s services, except for:

(1) payment for reasonable ADVERTISING COSTS;
(2) payment of usual charges of a legal service plan/non-profit, or a qualified lawyer REFERRAL SERVICE approved by the State bar;
(3) payment for SALE of a law practice; or
(4) referral of clients to another lawyer/non-lawyer professional pursuant to an agreement, which provides that the other person refers clients/customers to the lawyer, as long as the RECIPROCAL REFERRAL AGREEMENT is not exclusive and the client is informed of the agreement and nature.

At this point, CA diverges from the Model Rules: MRs allow a lawyer to give only a NOMINAL gift as an expression of appreciation.

• —–> However, CRPC:
  (1) does not use the adjective “nominal”; and
  (2) allows a lawyer to give a gift to a person who referred a client to the lawyer or firm, provided that it was NOT offered/`given in CONSIDERATION of any promise, agreement, or understanding that the gift would be forthcoming or that referrals would be made or encouraged in the future.

CA one of the few states that allow NAKED REFERRAL FEES, where the referring lawyer does no work on the case.
—> The rationale for allowing these gifts to the referring lawyer is to encourage lawyers not to keep cases that are outside their area of competence, but to refer the client to a lawyer who can truly serve the client well.

Question 16

Finding the Client and Entering into a Relationship w/ the Client —-> Fees: Model Rule v. CRPC Rule

Answer 16

MR: Prohibits UNREASONABLE fees.

CRPC: Prohibits UNCONSCIONABLE fees.
—–> Higher burden

Question 17

Finding the Client and Entering into a Relationship w/ the Client —-> Fees: Fee Agreement Writing Requirement

Answer 17

CA reqs a lawyer to communicate fee rates to clients in writing where it is reasonably foreseeable that the total fees and expenses will exceed $1,000 in non-contingency fee cases.

The written contract must contain:

(1) the BASIS for compensation, including but not limited to hourly rates, statutory fees/flat fees, and other standard rates, fees, and charges applicable to the case;
(2) the general NATURE of the legal services to be provided to the client; and
(3) the respective RESPONSIBILITIES of the attorney and the client as to the performance of the contract.

Failure to comply with the writing req’ment renders the K voidable at the option of the client, and the lawyer can only collect a reasonable fee.

EXCEPTION (the writing req’ment does not apply to):

(1) services rendered in an EMERGENCY to avoid foreseeable prejudice to the rights/interests of the client or where a writing is otherwise impractical;
(2) an AGREEMENT as to the fee implied by the fact that the attorney’s services are of the same general kind as previously rendered to and paid for by the client;
(3) when the client knowingly states in WRITING (after full disclosure) that a writing concerning fees is not req’d; and
(4) where the client is a CORP.

Question 18

Finding the Client and Entering into a Relationship w/ the Client —-> Fees: Contingency Fees

Answer 18

Lawyer PROHIBITED from entering into:

(1) a fee agreement in a DOMESTIC RELATIONS matter where payment (or amount thereof) is contingent on securing a divorce, an amount of alimony or support, or property settlement; or
(2) a contingency fee agreement for representing a D in a CRIMINAL CASE.

Question 19

Finding the Client and Entering into a Relationship w/ the Client —-> Fees: Flat Fees

Answer 19

CA: A lawyer can charge a flat fee for a specified service and collect that flat fee in advance.

There is no counterpart in the Model Rules.

Question 20

Finding the Client and Entering into a Relationship w/ the Client —-> Fee Splitting

Answer 20

Model Rule
Cannot divide fees between lawyers who are not in the same firm, unless:
(1) the division is in PROPORTION to the services performed by each lawyer, or each lawyer assumes joint responsibility for representation;
(2) the client agrees in writing to the arrangement; and
(3) the total fee is reasonable.

CRPC
Does NOT req proportionality between the fee amount retained by each lawyer and the amount of work performed by each.
—-> The CA req’ments are only that:
(1) the fee division must be in WRITING, including the names of the lawyers and the terms;
(2) the client must CONSENT in writing to the division at the time the agreement is made or as soon thereafter as reasonably practicable; and
(3) the total fee must not be INCREASED solely because of the fee division.

Question 21

Finding the Client and Entering into a Relationship w/ the Client —-> Safekeeping Client Funds or Property

Answer 21

A lawyer is req’d to deposit any client funds (including advanced fees and costs) into a SEPARATE bank account (in CA labeled “Trust Account” or words of similar import).
——> The separate account must be located in the state where lawyer’s office is situated or elsewhere w/ consent of client (in CA, if keeping elsewhere, must be a jdx where there is a substantial relationship between client and the other jdx and need client written consent).

COMMINGLING of the lawyer’s and client’s money is PERMITTED to the extent that funds:

(1) are reasonably needed to pay bank charges; and
(2) belong in part to the lawyer and in part to the client, unless there is a dispute over the funds, in which case the disputed portion must remain in the trust account.

Question 22

Duty to Clients –> Duty of Competence

Answer 22

A lawyer must provide competent representation to their clients.
—> A lawyer should not accept representation that he does not have the time or resources to perform properly.

1. GENERAL RULE
   Competence is defined as applying:
   (1) the LEARNING and skill; and
   (2) the MENTAL, emotional, and physical ability reasonably necessary for performing legal services.
   —–> NOTE: The duties set forth in CRPC include the duty to keep abreast of the changes in the law and its practice, including the benefits and risks associated with relevant technology.
2. EXCEPTIONS
   Even w/o this level of competence, however, a lawyer may perform such services competently by:
   (1) associating/consulting with a lawyer reasonably believed to be competent; or
   (2) acq’ing suff learning and skill before performance is req’d.
   (3) or an emergency.

Question 23

Duty to Clients –> Malpractice

Answer 23

In CA, a lawyer may not agree prospectively to limit his liability for malpractice.
—–> However, under the Model Rule, a lawyer may prospectively limit liability for malpractice if the client is independently represented in making the agreement.

Question 24

Duty to Clients –> Lawyer’s Personal Interest

Answer 24

A lawyer cannot enter into a business transaction w/ a client or knowingly acquire an ownership, possessory, security, or other pecuniary interest ADVERSE to the client, unless:

(1) the transaction is FAIR and REASONABLE to the client, and the terms are disclosed in writing;
(2) the client has INDEPENDENT legal representation or is advised to seek such representation; and
(3) the client then provides INFORMED WRITTEN CONSENT to the terms and to the lawyer’s role in the transaction.

Question 25

Duty to Clients –> CA Business and Professional Code

Answer 25

A lawyer is subject to disbarment/suspension if the lawyer engages in any act of MORAL TURPITUDE, DISHONESTY, OR CORRUPTION, whether in the course of practicing law or otherwise.
—-> Ex: when negotiating a business transaction between two clients, a lawyer breaches his fiduciary duty and is subject to sanctions on the ground of moral turpitude by inducing a vulnerable client to enter into a disadvantageous transaction that favors the lawyer/other client.

Question 26

Duty to Clients –> Acquiring an Interest in Litigation

Answer 26

MR
A lawyer cannot acquire a proprietary interest in the cause of action or subject matter of litigation that the lawyer is conducting for a client.
—–> The lawyer may, however:
(1) acquire a lien authorized by law to secure the lawyer’s fee or expenses; and
(2) contract with a client for a reasonable contingent fee in a civil case.

CRPC
No parallel rule, however, a lawyer is prohibited from obtaining any financial interest that would be adverse to the client, w/o the client’s informed written consent.

Question 27

Duty to Clients –> Concurrent Conflicts of Interest

Answer 27

A lawyer is prohibited from representing a client where there is a concurrent conflict of interest, which exists where:

(1) the representation is DIRECTLY ADVERSE to another client in the same or a separate matter; or
(2) there is SIGNIFICANT RISK the lawyer’s representation of the new client would be materially limited by the duty to a current client, a former client, a third person, or by the lawyer’s own interests.

Under the CRPC, even if there is not a significant risk that the representation of the client will be material limited by the lawyer’s responsibilities to another client, a lawyer shall not represent a client without written disclosure of the relationship to the client where:

(1) the lawyer has, or knows that another lawyer in the firm has a legal, business, financial, professional, or personal relationship with or responsibility to a party or witness in the same manner; or
(2) the lawyer knows, or reasonably should know, that another party’s lawyer is a spouse, parent, child, or sibling of the lawyer, lives with the lawyer, is a client of the lawyer or another lawyer in the lawyer’s firm, or has an intimate personal relationship with the lawyer.

Under both the Model Rules, representation in each situation is still permissible if:

(1) informed written consent is obtained from each client;
(2) the lawyer reasonably believes that competent, diligent representation can be provided;
(3) no law prohibits it; and
(4) there is no claim by one of the clients against the other in the same litigation.

Question 28

Duty to Clients –> Prospective Clients

Answer 28

A lawyer is prohibited from using/revealing info learned from a prospective client, or from representing a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received info from the prospective client that could be significantly harmful to that person in the matter.
—–> Representation is permitted if both the affected client and the prospective client provided informed, written consent.

Question 29

Duty to Clients –> Sexual Relations w/ Clients

Answer 29

A lawyer cannot have sexual relations with a client unless a consensual sexual relationship existed when the A-C relationship began.

Question 30

Duty to Clients –> Imputed Disqualifications

Answer 30

Lawyers in a firm may not knowingly represent a client when any one of them practicing alone would be prohibited from doing so by conflicts w/ current or former clients, UNLESS:

(1) the conflict is due to a PERSONAL INTEREST the lawyer has, and does NOT present a sig risk of materially limiting the representation of the client by the remaining lawyers in the firm; or
(2) the conflict is due to the lawyer’s FORMER REPRESENTATION in the same/substantially related matter, either individually or w/ a law firm the lawyer was formerly associated with, and:
- —–> the disqualified lawyer is timely screened from any participation in the matter and receives no fee from the matter;
- —–> the former client is notified promptly in writing so that he may ensure compliance w/ the screening procedures in place and can make objections to the representation; and
- —–> the former client receives periodic certifications of compliance.

Any imputed disqualification may be waived by all the affected clients through informed written consent.

Question 31

Duty of Confidentiality –> CRPC 1.6

Answer 31

General Rule:
A lawyer may not reveal the confidences and secrets of a client w/o the client’s informed consent.

Exception for Bodily Harm:
A lawyer may (not req’d) reveal confidential info to the extent that the lawyer reasonably believes the disclosure is necessary to prevent a criminal act that he reasonably believes is likely to result in the death, or substantial bodily harm to, an individual.
—–> Can only reveal as much info as is necessary to prevent the crime.
—–> CRPC is narrower than the MRs bc CPRC contains no other express exceptions to the duty of confidentiality.

Question 32

Duty of Confidentiality –> MR 1.6

Answer 32

The MRs allow a lawyer to reveal info when:

(1) the client has given informed consent;
(2) the disclosure is impliedly authorized to carry out representation; or
(3) the lawyer reasonably believes disclosure is necessary to:
(1) prevent reasonably certain death/substantial bodily harm;
(2) prevent the client from committing a crime/fraud that is reasonably certain to result in substantial injury to the financial interests of another and in furtherance of which the client is using the lawyer’s services;
(3) prevent, mitigate, or rectify substantial injury to the financial interests or property of another that is reasonably certain to result in or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;
(4) secure legal advice about the lawyer’s compliance w/ the MRs;
(5) est a claim/defense on behalf of the lawyer in a controversy between the lawyer and the client, est a defense to a criminal charge/civil claim against the lawyer based on the client’s conduct; or respond in any proceeding concerning the lawyer’s representation of the client; or
(6) comply w/ another law or a court order.

Question 33

Attorney-Client Privilege –> Rule and Exceptions

Answer 33

Rule:
The privilege attaches to the entire communication between the lawyer and his client, including preliminary consultations w/ a lawyer for the purpose of determining whether to hire the lawyer, regardless of whether the communication contains what would otherwise be unprivileged material.

Exceptions:

(1) Where the lawyer’s services were sought to enable or assist the client to commit a crime or fraud.
(2) If the lawyer reasonably believes that disclosure is necessary to prevent a criminal act that the lawyer reasonably believes is likely to result in the death of, or substantial bodily harm to, an individual.
(3) Where an attorney has removed or altered evidence, the privilege does not bar revelation of the original location or condition of the evidence in question.
(4) For communications relating to a deed, will, or other instrument of conveyance executed by the decedent, or other issues between parties claiming through a deceased client.

Question 34

Termination and Scope of Representation –> Withdrawal from Representation: Mandatory Withdrawal

Answer 34

A lawyer must withdraw from representation if:

(1) CA ONLY - the lawyer knows/reasonably should know, that the client is bringing an action, conducting a defense, asserting a litigation position, or taking an appeal w/o PC and for the purpose of harassing/maliciously injuring a person;
- ——> Note that MR does not contain this provision req’ing withdrawal when the client is proceeding in bad faith, while it does contain the provisions that follow.

(2) the lawyer knows/reasonably should know, that representation will result in a violation of the CRPC or the State Bar Act;
(3) the lawyer’s mental or physical condition makes it unreasonably difficult to carry out the representation effectively; or
(4) the client discharges the lawyer.

Question 35

Termination and Scope of Representation –> Withdrawal from Representation: Permissive Withdrawal (CA)

Answer 35

A lawyer can, but is not req’d to, withdraw when…

1. The CLIENT:
   (1) insists on presenting a claim/defense not warranted under existing law and cannot be supported by a good-faith argument for an extension, modification, or reversal of existing law;
   (2) seeks to pursue a criminal/fraudulent course of conduct;
   (3) insists that the lawyer pursue a course of conduct that is criminal/fraudulent;
   (4) by other conduct renders it unreasonably difficult for the lawyer to carry out the representation effectively;
   (5) breaches an agreement or obligation to the lawyer, and the lawyer has warned the client that withdrawal will follow; or
   (6) knowingly and freely assents to the withdrawal.
2. The inability to work with co-counsel indicates that the best interests of the client likely will be served by withdrawal.
3. The lawyer’s mental or physical condition renders it difficult for him to carry out the employment effectively.
4. A continuation of representation is likely to result in a violation of the CRPC or the State Bar Act; or
5. The lawyer believes in good faith in a proceeding pending before a court that the court will find existence of other good cause for withdrawal.

Question 36

Termination and Scope of Representation –> Withdrawal from Representation: Permissive Withdrawal (MR)

Answer 36

A lawyer may withdraw under the Model Rule if:

(1) it can be done without material adverse effect;
(2) the client persists in a criminal or fraudulent course of action involving the lawyer’s services;
(3) the client used the lawyer’s services to perpetrate a crime or fraud;
(4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;
(5) the client fails to substantially fulfill an obligation to the lawyer (i.e., fees) and is given reasonable warning of withdraw unless fulfilled;
(6) representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or
(7) other good cause.

Question 37

Termination and Scope of Representation –> Withdrawal from Representation: Responsibilities of Withdrawing Lawyer

Answer 37

Upon termination, a lawyer must take reasonable steps to PROTECT THE CLIENT’S INTERESTS, such as giving suff NOTICE, allowing TIME for appointment of other counsel, SURRENDERING papers and property to which the client is entitled, and REFUNDING unearned portions of fees.

An attorney voluntarily withdrawing from a contingency fee case in which he believes the case is w/o merit has no claim on any eventual recovery.

Question 38

Termination and Scope of Representation –> Communication w/ Client

Answer 38

A lawyer must:

(1) promptly INFORM the client of any decision where the client’s informed consent is required;
(2) reasonably CONSULT with the client about the means to accomplish the client’s objectives;
(3) keep the client REASONABLY INFORMED about significant developments, including prompt compliance with reasonable requests for information and copies of significant documents necessary to keep the client informed; and
(4) advise the client about any relevant limitation on the lawyer’s conduct when the lawyer knows the client expects assistance as permitted by law.

A lawyer may not counsel a client to engage, or assist the client, in conduct the lawyer knows is criminal or fraudulent; however, the lawyer may discuss the legal consequences of such conduct.

Question 39

Duties to Others –> Meritorious Claims and Contentions

Answer 39

A lawyer is prohibited from:

(1) bringing an action, conducting a defense, asserting a position, or taking an appeal w/o PC and for the purpose of harassing a person; or
(2) presenting a claim/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 the existing law.

When representing a criminal D, the lawyer should defend the proceeding to req every element of the crime to be est’d.

CA Business and Professional Code
o The lawyer has a duty to bring only legal or just claims and defenses, and may not file or pursue legal actions or tactics for corrupt motives.

Question 40

Duties to Others –> Lawyer as a Witness

Answer 40

A lawyer shall not act as an advocate in a trial in which the lawyer is likely to be a witness unless:
(1) the lawyer’s testimony relates to an uncontested issue or matter;
(2) the lawyer’s testimony relates to the nature and value of legal services rendered in the case; or
(3) See Below
CRPC ONLY –
——> the lawyer has obtained informed written consent from the client.
Model Rule ONLY –
——> disqualification of the lawyer would cause substantial hardship on the client.

Question 41

Duties to Others –> Special Responsibilities of Prosecutors

Answer 41

A prosecutor must:

(1) not institute charges against someone when he knows the charges are not supported by PC;
(2) make reasonable efforts to assure that the accused has been advised of the RTC and has been given a reasonable opportunity to obtain counsel;
(3) not seek to obtain from an UNREPRESENTED accused any WAIVER of important trial rights;
(4) timely DISCLOSE all evidence/info known to him that tends to negate the guilt of the accused or mitigates the offense/other info relevant for sentencing;
(5) exercise reasonable care to prevent persons under the prosecutor’s supervision from making prohibited EXTRAJUDICIAL PUBLICITY STATEMENTS that the prosecutor would be prohibited from making under CRPC Rule 3.6;
(6) when knowing new, credible, material evidence creating a reasonable likelihood that a CONVICTED D did NOT commit the crime:
- —–> promptly disclose the evidence to the ct or other authority;
- —–> if the conviction occurred in the prosecutor’s jdx, promptly disclose the evidence to the convicted D; and
- —–> undertake further investigation to determine whether the D was convicted of a crime he did not commit.
(7) when knowing CACE establishing that a D convicted in the prosecutor’s jdx did not commit the crime, seek to remedy the conviction.

Question 42

Duties to Others –> Impartiality and Decorum

Answer 42

Ex parte communication w/ jurors is prohibited.
—–> A lawyer may not communicate w/ anyone the lawyer knows to be a member of the venire from which the jury will be selected.

During trial a lawyer:

(1) connected w/ the case may not communicate w/ a juror; and
(2) not connected w/ the case may not communicate w/ anyone he knows is a juror in the case.

After discharge of the jury, a lawyer may not ask questions/make comments to a juror that are intended to harass or embarrass the juror or influence the juror’s actions in future jury service.

Question 43

Duties to Others –> Duty to Expedite Litigation

Answer 43

CRPC: A lawyer must not prolong the proceeding or cause needless expense.

MR: A lawyer must make reasonable efforts to expedite litigation consistent with the interests of the client.

CBPC: The willful delay of a client’s suit for the lawyer’s own gain is a crime in California.
—–> Violation of this law amounts to an act of moral turpitude justifying discipline.

Question 44

Duties to Others –> Fairness to Opposing Party and Counsel

Answer 44

It is a misdemeanor to willfully conceal/destroy evidence.

A lawyer shall not (MR much the same but worded differently):

(1) unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a doc or other material having potential evidentiary value (or counsel another person to do so);
(2) suppress any evidence that the lawyer or client has a legal obligation to produce;
(3) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;
(4) directly or indirectly pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of the witness’s testimony or the outcome of the case;
(5) advise or cause a person to secrete himself or to leave the jdx, for the purpose of making that person unavailable as a witness;
(6) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists; or
(7) in trial, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the guilt or innocence of an accused.

Question 45

Duties to Others –> Fraud or Perjury: False Statements to the Tribunal

Answer 45

A lawyer cannot:

(1) knowingly make a false statement of fact/law to a tribunal or fail to correct a false statement of material fact or law previously made by the lawyer;
(2) fail to disclose to the tribunal legal authority in the controlling jdx known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel, or knowingly misquote the law; or
(3) offer evidence that the lawyer knows to be false.

If the lawyer, the client, or a witness called by the lawyer has offered material evidence, and the lawyer comes to know of its falsity, the lawyer must take reasonable remedial measures, including, if necessary, disclosure to the tribunal, unless the disclosure would violate the duty of confidentiality.

If the lawyer knows that a person intends to engage in criminal/fraudulent conduct related to the proceeding, the lawyer must take reasonable remedial measures to the extent permitted by the duty of confidentiality.

Offering false evidence in either a crim/civil proceeding is a felony in CA.

Question 46

Duties to Others –> Maintaining the Integrity of the Legal Profession: Reporting Professional Misconduct

Answer 46

MR
A lawyer who knows that another lawyer or judge has committed a violation of the MRs that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects, is req’d to inform the appropriate professional authority.
—–> However, a lawyer is not re’d to disclose confidential info/info gained by another lawyer or a judge while participating in an approved lawyers’ assistance program.

CA
In CA there is no express duty to report misconduct of other lawyers or judges.
——-> However, a lawyer must report himself to the CA State Bar, in writing, within 30 days of the time the lawyer has knowledge of any of the following:
(1) the filing of 3 or more lawsuits in a 12-month period against the lawyer for malpractice/other wrongful conduct committed in a professional capacity;
(2) the entry of judgment against the lawyer in a civil action for fraud, misrepresentation, breach of fiduciary duty, or gross neg committed in a professional capacity;
(3) the imposition of judicial sanctions against the lawyer, except for sanctions for failure to make discovery or monetary sanctions of less than $1,000;
(4) the bringing of an indictment or information charging a felony against the lawyer;
(5) the conviction of the lawyer, including any verdict of guilty, or plea of guilty or no contest, of a felony, or a misdemeanor committed in the course of the practice of law, or in a manner in which a client of the lawyer was the victim, or a necessary element of which, as determined by the statutory or common law definition of the misdemeanor, involves improper conduct of a lawyer, including dishonesty or other moral turpitude, or an attempt or a conspiracy or solicitation of another to commit a felony or a misdemeanor of that type;
(6) the imposition of discipline against the lawyer by a professional or occupational disciplinary agency or licensing board, whether in CA or elsewhere; and
(7) reversal of judgment in a proceeding based in whole or in part upon:
1. misconduct;
2. grossly incompetent representation; or
3. willful misrepresentation by a lawyer.

Bottom line: not heavily tested; MR: must report others; CA: must report self.

Question 47

Duties to Others –> Unauthorized Practice of Law

Answer 47

A lawyer cannot aid any person/entity in the unauthorized practice of law or from practicing in a jdx where to do so would be in violation of the regs of the profession in that jdx.
—–> It is punishable as a misdemeanor in CA to advertise/hold oneself out as practicing or entitled to practice law if such person is not an active member of the State Bar.

A lawyer’s partnership with a non-lawyer is prohibited if any of the activities of the partnership constitute the practice of law.
——> A lawyer may employ a disbarred, suspended, resigned, or involuntarily inactive lawyer to do research, drafting, or clerical activities, but must serve the State Bar w/ a written notice of the employment.

Question 48

Duties to Others –> Law Reform Activities Affecting Client Interests

Answer 48

MR
Under MRs, a lawyer can server as a director, officer, or member of an organization involved in reform of the law or its administration, notwithstanding that the reform may affect the interests of a client.
—–> When the lawyer knows that the interest of a client may be materially benefitted by a decision in which the lawyer participates, the lawyer must disclose that fact but does not have to identify the client.

CA
California does not have corresponding rule.