CA Professional Responsibility

Question 1

What are lawyers duties to their clients?

Answer 1

1) Competence
2) Loyalty (no conflicts of interest)
3) Financial responsibility
4) Confidentiality

“Clients Love Fierce Counsel”

Question 2

What are lawyers’ duties to the court/3rd parties/client?

Answer 2

1) Candor
2) Fairness
3) Dignity/Decorum

“Courts Feel Differently”

Question 3

What are the prohibitions w/rt advertising?

Answer 3

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

Question 4

What makes a statement misleading?

Answer 4

A statement is misleading if it

1) materially misstates/omits law or fact;
2) creates a misleading expectation; or
3) compares lawyer with others

Question 5

What advertisements are presumed violations of the professional rules?

Answer 5

1) testimonials
2) guarantees (unless there’s a disclaimer)
3) ads implying a relationship
4) failing to label itself as an ad

Question 6

What constitutes solicitation and when is it permitted?

Answer 6

(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

Question 7

When are recommendations permitted?

Answer 7

CRPC/MPRC prohibit giving anything of value for recommendations.

Exception: Can pay reasonable advertising costs.

Question 8

What is the general rule for fees according to the CRPC and MPRC?

Answer 8

CRPC: No unconscionable fees

MPRC: No unreasonable fees

Question 9

What factors are considered in determining the reasonableness of a fee?

Answer 9

1) fee customarily charged in the locality
2) proportion to value of service
3) relative sophistication of parties
4) informed consent

Question 10

When must a fee agreement be in writing?

Answer 10

Both CA/MC require a written agreement for contingency fees.

In CA, it also must be in writing if fee arrangement exceeds $1,000

Question 11

What are the requirements for contingency fees?

Answer 11

Must be in writing and clearly explained.

Under MRPC, prohibited in criminal cases and domestic relations cases.

Question 12

What are the rules for fee splitting?

Answer 12

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.

Question 13

What must you do to safeguard client property?

Answer 13

(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

Question 14

What does the duty of competence entail?

Answer 14

In general, a lawyer cannot take on a matter which he/she is not competent to handle.

Competence cannot be waived.

Question 15

Can you settle a malpractice claim?

Answer 15

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.

Question 16

Can you prospectively limit malpractice liability?

Answer 16

No

Question 17

What are the types of conflicts of interest?

Answer 17

1) client-lawyer
2) client-current client
3) client-former client
4) client-prospective client

Question 18

W/rt conflicts, a CA lawyer must provide written disclosure to a client where…

Answer 18

… the attorney has a legal, business, financial or professional interest in the subject matter of representation

Question 19

Can a lawyer still represent a client if a conflict of interest exists?

Answer 19

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

Question 20

What are the rules for gifts from clients?

Answer 20

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

Question 21

Rules governing use of client info?

Answer 21

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.

Question 22

What are the rules for acquiring an interest in litigation?

Answer 22

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

Question 23

Advancing money to client

Answer 23

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.

Question 24

Can a CA attorney loan money to a client?

Answer 24

Loans are permitted if client agrees to repay and loan arrangement is in writing

Question 25

Requirements for entering a business transaction w/ a client

Answer 25

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

Question 26

Can you accept fees from a third party?

Answer 26

In CA, yes, only if:

1) no interference w/ attorney’s independent judgment;
2) confidentiality maintained
3) informed written consent from client

Question 27

Rules for acquiring literary/media rights?

Answer 27

MRPC: cannot get if it clouds the attorney’s judgment

CA: look to general conflict principles

Question 28

Rules for imputed disqualifications

Answer 28

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

Question 29

Is concurrent representation permitted?

Answer 29

Yes, only when:

1) the attorney believes neither rep will be adversely affected
2) each client gives informed written consent

Question 30

Organization as client

Answer 30

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.

Question 31

The only explicit exception to confidentiality in CA

Answer 31

MAY reveal to prevent criminal act likely to result in death or substantial bodily injury

Question 32

Implied exceptions to confidentiality in CA

Answer 32

1) where lawyer is defending an action brought by the client (e.g. malpractice)
2) reveal w/ client consent

Question 33

MPRC exceptions to duty of confidentiality

Answer 33

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)

Question 34

When is withdrawal mandatory?

Answer 34

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.

Question 35

When is withdrawal permitted?

Answer 35

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

Question 36

Responsibilities of withdrawing lawyer

Answer 36

1) due notice to client
2) return unearned fees
3) return files
4) protect client’s interests
5) ensure client not prejudiced

Question 37

What are the rules surrounding trial publicity?

Answer 37

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

Question 38

What happens if you know your client is perjuring himself?

Answer 38

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

Question 39

What must you do when hiring a disbarred attorney?

Answer 39

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.

Question 40

Ways to gain competency:

Answer 40

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

Question 41

When may a CA attorney reveal client confidences?

Answer 41

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

Question 42

When may an attorney reveal confidences under the ABA Rules?

Answer 42

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