CA Professional Responsibility Flashcards
What are lawyers duties to their clients?
1) Competence
2) Loyalty (no conflicts of interest)
3) Financial responsibility
4) Confidentiality
“Clients Love Fierce Counsel”
What are lawyers’ duties to the court/3rd parties/client?
1) Candor
2) Fairness
3) Dignity/Decorum
“Courts Feel Differently”
What are the prohibitions w/rt advertising?
You CAN’T
1) hire an actor to impersonate a lawyer
2) guarantee/warrantee an outcome
3) Make a misleading/false statement (MPRC requires materiality)
4) Claim to be a specialist unless you are so certified by either the CA Bar or the ABA
What makes a statement misleading?
A statement is misleading if it
1) materially misstates/omits law or fact;
2) creates a misleading expectation; or
3) compares lawyer with others
What advertisements are presumed violations of the professional rules?
1) testimonials
2) guarantees (unless there’s a disclaimer)
3) ads implying a relationship
4) failing to label itself as an ad
What constitutes solicitation and when is it permitted?
(1) Live contact or (2) real-time electronic contact.
Permitted only when (1) motive is not pecuniary gain or (2) when there is a prior relationship
When are recommendations permitted?
CRPC/MPRC prohibit giving anything of value for recommendations.
Exception: Can pay reasonable advertising costs.
What is the general rule for fees according to the CRPC and MPRC?
CRPC: No unconscionable fees
MPRC: No unreasonable fees
What factors are considered in determining the reasonableness of a fee?
1) fee customarily charged in the locality
2) proportion to value of service
3) relative sophistication of parties
4) informed consent
When must a fee agreement be in writing?
Both CA/MC require a written agreement for contingency fees.
In CA, it also must be in writing if fee arrangement exceeds $1,000
What are the requirements for contingency fees?
Must be in writing and clearly explained.
Under MRPC, prohibited in criminal cases and domestic relations cases.
What are the rules for fee splitting?
MRPC: Can’t split fees unless (a) proportional; (b) client consents; and (c) fee is reasonable.
CA: Client must consent in writing. Total fee can’t be higher just because another lawyer is involved.
BOTH: Can’t split fees w/ NON-LAWYERS, except: (a) reasonable fee for lawyer referral service; (b) payment to deceased attorney’s estate.
What must you do to safeguard client property?
(a) keep it separate from the attorney’s property
(b) put it in a trust account
(c) promptly pay client when funds are received
(d) keep records
What does the duty of competence entail?
In general, a lawyer cannot take on a matter which he/she is not competent to handle.
Competence cannot be waived.
Can you settle a malpractice claim?
Yes, but only if you inform client in writing to seek independent counsel.
In CA, violating an ethics rule is admissible on the standard of care issue.
Can you prospectively limit malpractice liability?
No
What are the types of conflicts of interest?
1) client-lawyer
2) client-current client
3) client-former client
4) client-prospective client
W/rt conflicts, a CA lawyer must provide written disclosure to a client where…
… the attorney has a legal, business, financial or professional interest in the subject matter of representation
Can a lawyer still represent a client if a conflict of interest exists?
Yes, but only if:
1) attorney reasonably believes the representation will not be adversely affected; and
2) client is given full disclosure in writing and gives informed consent in writing
What are the rules for gifts from clients?
Attorneys cannot induce substantial gifts from clients.
Under MRPC, an attorney can’t solicit any substantial gift from a client, OR prepare any instrument giving the laywer any substantial gift from the client unless they are related
Rules governing use of client info?
MRPC prohibit use of client information to the client’s disadvantage without informed consent.
CA doesn’t have this rule, but it would violate the fiduciary duty.
What are the rules for acquiring an interest in litigation?
IN general, a lawyer cannot obtain a proprietary interest in the subject matter of representation.
XC1: lien to secure lawyer’s fees
XC2: contracting w/ client for reasonable contingency fee in a civil case
Advancing money to client
MRPC: Can’t provide financial assistance to client except to advance costs of lit (or pay costs on behalf of indigent client)
CA: costs/expenses can be advanced.
Can a CA attorney loan money to a client?
Loans are permitted if client agrees to repay and loan arrangement is in writing
Requirements for entering a business transaction w/ a client
1) terms must be fair and reasonable
2) terms must be fully disclosed
3) written consent from client
4) client advised about getting independent counsel
Can you accept fees from a third party?
In CA, yes, only if:
1) no interference w/ attorney’s independent judgment;
2) confidentiality maintained
3) informed written consent from client
Rules for acquiring literary/media rights?
MRPC: cannot get if it clouds the attorney’s judgment
CA: look to general conflict principles
Rules for imputed disqualifications
In a law firm, a single attorney’s conflict doesn’t DQ the whole firm if:
1) no significant risk for other lawyers;
2) if from former rep, DQd lawyer is timely screened, receives no fee, and written notice given to former client
Is concurrent representation permitted?
Yes, only when:
1) the attorney believes neither rep will be adversely affected
2) each client gives informed written consent
Organization as client
MRPC: require the lawyer to report up the chain. If that doesn’t work, reveal to an outsider only to the extent reasonably necessary
CA: requires lawyer to advise rogue employee before reporting up the chain. CAN’T report outside in CA.
The only explicit exception to confidentiality in CA
MAY reveal to prevent criminal act likely to result in death or substantial bodily injury
Implied exceptions to confidentiality in CA
1) where lawyer is defending an action brought by the client (e.g. malpractice)
2) reveal w/ client consent
MPRC exceptions to duty of confidentiality
Can reveal when:
1) it would prevent death or SBH
2) informed client consent
3) defending an action brought by client
4) attorney seeking ethical advice
5) crime/fraud (ONLY if the client has used the lawyer’s services in a crime reasonably certain to result in substantial injury to the financial interests/property of another)
When is withdrawal mandatory?
1) if continued representation will result in knowing violation of ethical rules/law
2) lawyer’s physical/mental abilities impaired (MPRC: “materially impaired”, CA: “unreasonably difficult”)
(CA ONLY) 3) if client’s action is without probable cause or designed to harass
(MRPC ONLY) 4) if client fires attorney
Court permission needed for all.
When is withdrawal permitted?
when client
1) insists on pursuing a claim that results in violation of the rules/law
2) makes it unreasonably difficult
3) uses attorney’s services for fraud
Responsibilities of withdrawing lawyer
1) due notice to client
2) return unearned fees
3) return files
4) protect client’s interests
5) ensure client not prejudiced
What are the rules surrounding trial publicity?
In CA, can’t make a media statement if it has a substantial likelihood of materially prejudicing the proceeding. But you can protect your client in response, as long as you didn’t start the media frenzy.
XC: lawyer may state (1) claim, offense, or defense; (2) investigation is in progress; (3) scheduling/result of litigation step; (4) request for assistance in obtaining evidence; (5) warning of danger
What happens if you know your client is perjuring himself?
General rule: can’t lie to the court.
MRPC: you can tell the judge as a last resort (try to talk them out of it first)
CA: “look the other way”. Avoid using the perjured facts in an argument, don’t tell the court, must avoid questioning where you know the witness will lie
What must you do when hiring a disbarred attorney?
The hiring attorney must notify the bar that they have done so and ensure that the disbarred attorney is not acting as an attorney. They can do clerical, research, or drafting work.
Ways to gain competency:
1) acquiring knowledge/skill required (if it won’t cause excess delay or cost); OR
2) associating competent counsel.
XC: Can perform work in an emergency
When may a CA attorney reveal client confidences?
In California, an attorney may, but is not required to, reveal client confidences related to the representation if he reasonably believes disclosure is necessary to prevent a criminal act that may reasonably lead to the death of, or substantial bodily injury to, an individual
When may an attorney reveal confidences under the ABA Rules?
Under the ABA Model Rules, an attorney may disclose confidential information if it is reasonably certain to prevent death or substantial bodily harm, or prevent the commission of a crime or fraud that is reasonably certain
to cause injury to financial interest or property
