CA Rules Flashcards
What Duties do Attornies Owe to Clients - 5 Rules
Duty of:
1. Confidentiality
2. Loyalty
3. Financial Responsibility
4. Compentence
5. Communication
What Duties do Attornies Owe to the Court and Public?
Duty of:
1. Candor
2. Fairness
3. Decorum
4. Special Duties of Prosecutors
What Duty do Attornies Owe to Clients AND the Public?
Duty to Withdraw
Best way to start PR answer and order?
Establishing Attorney-Client Relationship exists and then chronologically by event
Rule for Attorney Client Relationship with Indvidual
An attorney client relationship begins when the client retains the attorney to represent her.
ABA and CARPC
Attorney-Client Relationship with Organization
An attorney who represents an organization represents the entity, not the employees and must act in the best of the entity, even if an officer, employee or other associated person acts to the contrary.
ABA and CARPC
Role of Attorney and Client
An attorney controls the means of the representation while the client controls the ends.
ABA and CARPC
Duty of Loyalty
An attorney owes duty of loyalty to her client. If an interest of another client, the attorney, or a third party materially limits or is adverse to the attorney’s loyal representation, a COI exists. – then add rule for the type of conflict.
ABA and CA
Conflicts Between or Among Clients – 7 Types
- Opposite Sides in the Same Proceeding
- Opposing a Current Client in Another Matter
- Two Clients with Inconsistent Positions
- Representing Multiple Parties in the Same Matter
- New Clients in Matters Related to Former Clients
- Former Government Attorney in Private Practice
- Prospective Client and Current Client
Opposite Sides in the Same Proceeding
It is per se unreasonable to represent opposing parties in the same matter.
ABA and CA
Opposing a Current Client in Another Matter - ABA
Under the ABA, an attorney must obtain consent of all clients when she seeks to represent someone in a matter adverse to another current client.
Two Clients with Inconsistent Positions
Generally, inconsistent positions do not amount to a conflict; however, it may create a conflict when a client would be disadvantages, in which case the attorney must obtain consent from both clients.
Opposing a Current Client in Another Matter - CA
Under CA rules, no conflict exists when an attorney represents a policyholder and his insurance company as joint clients and the insurer’s interest is only for indemnity.
Representing Multiple Parties in the Same Matter
A potential conflict exists when an attorney represents multiple parties in the same matter. An attorney who represents a corporation and any of its shareholders, directors, officers, or shareholders in the same matter creates at least a potential conflict.
New Clients in Matters Related to Former Clients
An attorney may not take on a new client when that client’s interests are materially adverse to a former client unless the attorney obtains written consent from the former client.
Former Government Attorney in Private Practice - ABA
The ABA bars a former government attorney who worked personally and substantially on a matter from working on that same matter later in private practice. Under the ABA, other members of the former government attorney’s firm may work on the case when:
* (1) the conflicted attorney is screened from the matter,
* (2) the conflicted attorney does not share in the fees from that matter, and
* (3) the former government employer is informed of the conflict.
Former Government Attorney in Private Practice - CA
In CA, prosecutors who worked on the case may not later work for the defense on that case. Although CA is silent on civil cases, case law follows the ABA rules on screening.
Prospective Client and Current Client
A potential conflict may exist when an attorney seeks to represent someone in a matter adverse to another current client. Under the ABA, an attorney must obtain consent of all clients when she seeks to represent someone in a matter adverse to another current client.
Conflicts Between Attorney and Client - 12 Types
- Attorney’s Personal Interests
- Sexual Relationships with Client
- Business Transactions or Adverse Interests
- Gifts
- Limiting Liability
- Publication Rights
- Loans to Clients
- Use of Information
- Trial Counsel as Necessary Witness
- Close Relationship with Adversary’s Attorney
- Conflicts from Third-Party Interference
- Relationship with Witness
Close Relationship with Adversary’s Attorney
An attorney cannot oppose a party represented by the attorney’s immediate family without client consent.
In CA, an attorney cannot oppose a party represented by the attorney’s relative without client consent.
Trial Counsel as Necessary Witness
An attorney may not appear as counsel and witness in the same trial unless:
* (1) the attorney’s testimony is uncontested,
* (2) the attorney’s distinctive value to the case means withdrawal would impose a substantial hardship on the client, and
* (3) if testifying would prejudice client, the client must consent and the conflict is imputed to the attorney’s colleagues.
In CA, an attorney may testify in any bench trial if the client consents in writing.
Use of Information
An attorney may not use confidential information to a client’s disadvantage without her consent.
Loans to Clients
The ABA bars all financial assistance to a client except litigation expenses for an indigent client and an advance of litigation expenses in contingency cases.
In CA, an attorney cannot promise to pay a prospective client’s debts; however, an attorney may loan a client money in all matters and for any purpose when the attorney obtains a written loan agreement.
Publication Rights
An attorney may not acquire rights to publish a client’s story until the attorney-client relationship has ended.
In CA, an attorney may acquire publication rights during the representation when a judge is satisfied that the client clearly understands and consents.
Limiting Liability
An attorney may not limit her client’s right to report the attorney for professional misconduct or to cooperate in an investigation. Additionally, an attorney may not limit her malpractice lability when entering the attorney-client relationship unless the client is independently represented with respect to that agreement.
CA bars limiting malpractice.
- If the client sues the attorney for malpractice, the attorney may not settle the case until the client consults outside independent counsel
Gifts
An attorney may not solicit a substantial gift from a client or draft a legal instrument that directs a gift to the attorney for a client who is not his or her close relative.
Business Transactions or Adverse Interests
An attorney may enter into a business with a client or obtain an interest adverse to a client when (1) the terms are fair to the client, (2) the terms and the conflict are disclosed in understandable writing, (3) the client is advised to discuss the issue with outside counsel, and (4) the client consents in writing.
Business Transactions or Adverse Interests - Partnerships
An attorney may not enter into a partnership with non-attorneys in providing legal services, which excludes non-attorneys from being partners, shareholders, officers, or possess any role that might control the attorney’s professional judgment.
Sexual Relationships with Client
The ABA and CA prohibit consensual sex between an attorney and client absent a preexisting sexual relationship.
Attorney’s Personal Interests
A conflict may exist when the interests of the attorney are adverse to the client. Under the ABA, purely personal conflicts are not a COI.
In CA, a purely personal conflict may amount to a conflict.
Relationship with Witness
Under CA rules, an attorney has a conflict of interest when the attorney has a personal relationship with any witness.
Conflicts from Third-Party Interference
An attorney’s duty is solely to her client. A third-party may pay an attorney for her services to the client when the client provides informed consent. An attorney must maintain all confidence as required under the professional rules.
Potential Conflict
A potential conflict exists when the attorney believes a COI may exist but the issue does not yet materially limit the representation. Under the ABA, there is no disclosure or consent requirements for potential conflicts. Under the CA rules, an attorney must obtain informed written consent when there is a potential conflict
Actual Conflict
An actual conflict exists when a conflict of interest materially limits the attorney’s representation of another client, the attorney, or a third party.
Representation Despite Conflict
An attorney may represent a client with who she has a conflict when:
* (1) the attorney reasonably believes she will be able to provide competent and diligent representation to each affected client,
* (2) the representation is not prohibited by law,
* (3) the representation does not involve the assertion of a claim by one client against another client in the same matter, and
* (4) each client gives informed written consent.
Difference in Converage of A-C Privilege and Duty of Confidentiality
- A-C Covers: confidential commuincation between A and C n
- Confidentiality: all information relating to representatio nand not generally known
When does A-C Privilege apply versus duty of condentiality?
- AC – Applies when Rules of Evidence Apply
- Confidentiality – ALL times
Effect of A-C Privilege versus Duty of Confidentiality
- AC – Defense agaisnt tribunal could otherwise compel
- Confindentiality - Forbids voluntary disclosure (but not disclosure required by law)
Duty of Confidentiality
An attorney may not reveal anything related to the representation of a client or use such information without her consent. This includes information a prospective client relays to an attorney, even if the prospective client does not retain the attorney.
Exceptions to Duty of Confidentiality
- Consent
- Attorney Defending Herself
- Conflicts Check
- Death of Substantial Bodily Harm
- Crime / / Fraud Causing Financial Injury
Confidentiality Exception: Consent
An attorney may reveal otherwise confidential information when the client consents. A client may impliedly consent when the representation requires the attorney to reveal some confidential information to the extent necessary to effectively represent the client.
Confidentiality Exception: Attorney Defending Herself
An attorney may reveal otherwise confidential information to establish a claim or defense when a client (1) sues the attorney for malpractice, (2) brings a disciplinary action against the attorney, or (3) when the client refuses to pay the attorney and the attorney must sue for fees.
Confidentiality Exception: Conflicts Check
An attorney may disclose non-privileged minimal information for a conflicts check when moving to a new firm.
Confidentiality Exception: Death by Substantial Bodily Harm
Under the ABA, an attorney may reveal confidential information when it is reasonably necessary to prevent death or substantial bodily harm.
Under CA rules, the attorney must first, if reasonable under the circumstances, make a good faith effort to dissuade the client from committing the act, and inform the client of her decision to reveal the client’s confidences.
Confidentiality Exception: Crime Fraud Causing Financial Harm
Under the ABA, an attorney may reveal a client’s confidences when the client (1) is using the attorney’s serves to commit the crime and (2) disclosure would prevent or mitigate financial loss.
California has not adopted the financial harm exception.
Non-Contingent Fee Agreements
An attorney handling a non-contingent fee matter must have an agreement providing (1) how the fee is calculated; (2) what services are covered, and (3) the attorney’s and client’s duties.
In CA, the agreement must be inwriting unless (1) the fee is under $1,000, (2) with a corporate client, (3) for routine services for a regular client, or (4) it’s an emergency or impractical.
Non-Contingent Fee Agreements
An attorney handling a non-contingent fee matter must have an agreement providing (1) how the fee is calculated; (2) what services are covered, and (3) the attorney’s and client’s duties.
In CA, the agreement must be inwriting unless (1) the fee is under $1,000, (2) with a corporate client, (3) for routine services for a regular client, or (4) it’s an emergency or impractical.
Contingent Fee Agreements
An attorney handling a contingent fee matter must have a written agreement signed by the client, providing (1) the attorney’s percent recovery, (2) what expenses will be deducted from the recover, and (3) whether the attorney’s fee will be calculated before or after expenses. In CA, the agreement must also provide (4) how work not covered by the contingency will be paid, and (5) state that the attorney’s fees are negotiable
Contingency fees in domestic relations and criminal matters?
ABA rules prohibit contingency fees in domestic relations and criminal matters.
In CA, case law permits contingency agreements in domestic matters so long as they do not promote the dissolution of a salvageable marriage.
Termination Before Contingency Paid or Judgment Rendered
If a client fires his attorney before the matter is tried or settled, the attorney may recover fees proportionate to the amount of work she did.
Can the attorney include a clause for hourly rates if a dispute arises?
Yes.
An attorney may include a clause in the contingency agreement that requires that client to pay the attorney a set hourly rate for all work done to date if a client fires that attorney or refuses a settlement offer the attorney believes is fair and reasonable when the hourly rate is a good-faith valuation of the attorney’s services.
Attorney Fee Rates
Under the ABA, an attorney’s fees must be reasonable. In CA, fees must not be unconscionably high. Under the ABA, double billing is unreasonable and dishonest; however, in CA, it is justified when not unconscionable.
Fee Splitting with Attorneys - ABA
Generally, attorneys may split fees within a law firm. An attorney may share a fee with an attorney outside the firm when the total fee is: (1) ethical; (2) the client receives written disclosure; (3) the client consents; and (4) the fee is proportional to the amount of work done.
Fee Splitting with Attorneys - CA
In CA, an attorney may share fees with others outside her firm when the total fee (1) is not unconscionable and (2) the client consents in writing at the time of the agreement or as soon thereafter as reasonably practicable after (3) the client is informed that a fee division will be made, the identity of the lawyers/law firms to the division, and the terms of the division.
Fee Splitting - Non-Attorneys
Generally, an attorney may not share a fee with a non-attorney. An attorney may share a fee with a non-attorney when it is to: (1) pay death benefits to a deceased attorney’s firm or heirs of the decedent’s work; (2) salaries to non-attorney employees; (3) sharing court-awarded legal fees with a non-profit organization that employed or recommended the attorney; or (4) pay the usual charges of a qualified attorney referral service. An attorney may enter a reciprocal referral agreement with other professionals if they are not exclusive and the client is informed of the agreement.
Payment from Third Parties
An attorney may allow payment of fees by a third party if:
* (1) the client being represented is aware of the arrangement and provides informed, written consent;
* (2) the attorney’s judgement and effectiveness of representation will not be affected by the interests of the person paying the fees; and
* (3) the client’s confidential information remains protected.
Payment Third Parties - CA additional Requirement
California mandates the same standards as the ABA, except that it also requires signed consent in writing to the third-party payment of fees.
Safeguarding Client Property
An attorney has a duty to safeguard her client’s property by labeling it and storing it in a safe place.
Client Trust Accounts
An attorney must put money held for the client in a client trust account, which includes money received on his behalf and his advances for costs, expenses, and unearned fees.
What type of client trust account must be used?
An attorney shall use an interest-bearing trust account to hold client funds where interest collected after bank charges are paid belong to the client.
Can an attorney pool client funds?
An attorney may put funds in a pooled client trust account if funds are too small or held for an insufficient time to cover bank charges. Interest from such an account shall be paid to the State Bar to provide services to indigents.
Can an attorney pay third parties with money from client’s trust account?
An attorney may pay third parties with the money from the client’s trust account when the attorney obtains client consent. An attorney must maintain individual client ledgers, render accountings, notify clients of money received on her behalf, and promptly pay the client any money owed to her.
How long must an attorney keep records of client property in CA?
In CA, an attorney must keep records of client property for five years after final distribution.
Commingling Funds
An attorney may not borrow or co-mingle funds with her personal money.
Retainer – Fees
When an attorney utilizes a retainer, the client must agree to the retainer after the attorney informs the client that the client is not entitled to a refund on part or all of the fee. Retainers must be deposited into a client trust account maintained in CA.
Fee Disputes
If an attorney has a fee dispute with a client or a third-party has a lawful claim over the client’s funds in a client trust account, the attorney must withhold the disputed portion in the client trust account until the claim is resolved.
Duty of Candor to the Public - Advertising
Attorney advertisements may not be false or misleading, including not omitting material information. In CA, ads are presumptively improper when it contains any guarantees, warranties, or predictions of a result.
Additionally CA Advertising Requirements
Additionally, CA bars testimonials or endorsements unless there is an express disclaimer that they are not a guarantee, warranty, or a prediction of result. Every ad must be labeled as advertising and, if applicable, a “dramatization” or “impersonation.” It must identify at least one attorney responsible for its contents and attorneys must keep a record of placement of any ad for two years.
Agents Acting on Behalf of Attorney
An attorney may not have an agent do anything the attorney cannot do.
Claims of Legal Specialties
An attorney may explain her field of practice but may not claim specialization unless she is a certified specialist. In CA, the attorney must have experience, have passed an examination, education, and evaluations.
Advertising may not harass or solicit someone who has said she wants to be left along. Targeted, direct mail is permissible buy must meet exact guidelines for labeling as “Advertising Material.”
Solicitation
An attorney may not seek professional employment for pecuniary gain by initiating a live or telephone contact with a specific person with whom she has no prior professional, personal, or family relationship.
Under the ABA, solicitation extends to real time electronic contact.
In CA, live or telephonic contact is narrowly construed; however, CA presumes communications are improper when made at the scene of an accident, en route to a medical facility, or to a potential client the attorney knows is not in physical or mental state to exercise reasonable judgment.
Duty of Candor
An attorney may not engage in conduct involving dishonesty, fraud, or misrepresentation.
Duty to Present Facts and Evidence Truthfully
An attorney may not:
* (1) make a false statement of material fact,
* (2) offer evidence she knows is a false statement of material fact,
* (3) offer evidence she knows is false to a tribunal, or
* (4) fail to correct a false statement of a material fact or law that she previously presented.
Client Perjury
An attorney may not knowingly facilitate perjury.
Client Perjury – Civil Case
- In a civil case, an attorney must refuse to call a witness, including her own client, if she knows he intends to perjure himself.
Client Perjury - Criminal Case ABA
In a criminal case, a criminal defendant 5th Amendment right to testify on his own behalf and a 6th Amendment right to counsel. Thus, an attorney must counsel her client to testify truthfully and, if that fails, the attorney must try to withdraw from the case. If that fails, the ABA requires an attorney to tell the judge because the right to counsel and the right to confidentiality do not shield perjury.
Client Perjury - CA
- In CA, an attorney must allow the D to testify in the narrative; however, an attorney may not further the deception by asking questions or arguing those points later to the jury. If an attorney does not know, but reasonably believes, that testimony is false, the above rules are permissible. If, after a proceeding, a client tells his attorney that he lied, the attorney must take reasonable remedial measures to correct; however, the attorney’s duties end with proceeding and need not inform the court.
Duty to Produce Evidence
An attorney may not suppress any evidence that she or her client has a legal obligation to reveal or produce, regardless of her duty of loyalty.
Intereference with Evidence
If a client tells an attorney where an instrumentality of a crime is located, the attorney may observe it but may not touch it. If the attorney has someone retrieve the evidence, she may be compelled to testify as to the original location or condition of evidence she moved or altered. However, the attorney still may not reveal the source of the information.
Ex Parte Proceeding
In an ex parte proceeding where opposing counsel is not present, an attorney’s duties of candor and fairness are heightened and require the attorney to volunteer relevant information, which supersedes the notion that an attorney does not necessarily reveal facts harmful to her client.
Special Duties of Prosecutors – Production of Evidence
Prosecutors have a duty to timely disclose evidence favorable to the defendant, which requires disclosure irrespective of admissibility or impact upon outcome. Prosecutors shall seek justice, not just win cases. Prosecutors must have probable cause to bring a charge.
Special Duties of Prosecutors – Production of Evidence
Prosecutors shall seek justice, not just win cases. Prosecutors must have probable cause to bring a charge.
Duty to State the Law Truthfully
An attorney may not knowingly make a false statement of law or present frivolous claims or defense to the court. An attorney shall be candid about the law and cite to adverse authority if controlling and on point. A claim is frivolous if the lawyer cannot make a good-faith argument for a modification or reversal of existing law.
Attorney Committing a Crime
An attorney must withdraw if continued representation would require the attorney to commit or assist in committing a crime. Under both the ABA and CA rules, an attorney may not commit a criminal act that reflects adversely on the attorney’s honesty, trustworthiness or fitness as a lawyer.
Attorney Engaging in Unlawful Conduct
An attorney shall not engage in unlawful harassment, discrimination, and harassment in the representation, termination or refusing to accept the representation of a client, and in law firm operations.
Duty of Fairness
An attorney has a duty to behave honestly, both in and out of legal practice. An attorney must promote public confidence in the integrity and efficiency of the legal system and profession.
Privileged Documents
If an attorney knows confidential information was sent inadvertently or intentionally but anonymously, an attorney must stop reading and notify opposing counsel. Pending. Resolution, an attorney may not copy, disseminate, or use the document to her advantage. If an attorney violates this rule, she will be disqualified. In CA, an attorney may not bring disciplinary, administrative, or criminal proceedings against someone as leverage to a civil dispute.
Communication with Adversaries
An attorney may not lie to people or mislead them as to her interests. An attorney may not violate someone’s legal rights to obtain evidence or use means with no purpose other than to delay, burden, or embarrass.
Communication with Represented Entities
An attorney may not communicate with someone she knows is represented by legal counsel on the subject of her inquiry without consent of that individual’s counsel. In CA, an attorney must obtain consent for interviews of an officer, director, or managing agent.
Communication with Press
An attorney has a duty not to interfere with a defendant’s right to a fair trial. An attorney and her agents must avoid out of court statements that the attorney reasonably should know has a substantial likelihood of materially prejudicing the case unless
* (1) the matter is in the public record or routing booking information;
* (2) it is intended to warn the public;
* (3) informing the public regarding an ongoing investigation; or
* (4) the statements are required to protect a client from substantial undue prejudice from recent publicity that is not self-initiated.
Communication with Press by Prosecutor
A prosecutor and her aides may not make comments to the press that have a substantial likelihood or heightening public condemnation of the accused.
Duty to Preserve the Dignity of the Court
An attorney may not attempt to influence anybody improperly. An attorney may not talk to any prospective or impaneled juror either before or during trial.
Duty to Expedite
Under the ABA, an attorney has an affirmative duty to expedite a case. In CA, an attorney must not delay to harass an adversary or for her own personal gain or convenience.
Duty to Preserve Decorum and Impartiality of the Tribunal
An attorney may not try to improperly influence anybody, which bars attorneys from (1) talking to any prospective or impaneled juror before or during trial, (2) engaging in chicanery, or (3) engaging in abusive conduct, belligerence, or theatrics.
Communication with Judge
An attorney may not engage in ex parte communications with a judge in an attempt to influence the proceeding.
Threatening Criminal, Administrative or Disciplinary Charges
Under CA rules, an attorney shall not threaten to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute. No such rules exists under ABA rules.
Unauthorized Practice of Law
An attorney may not assist or engage in the unauthorized practice of law.
Violation of Professional Rules
An attorney shall not knowingly assist in, solicit, or induct any violation of the rules of professional responsibility.
Pro Hac Vice
An attorney may temporarily practice out of state if the attorney is in good standing and the attorney is in good standing and the attorney associates with local counsel who actively participates in the matter, the services relate to alternative dispute resolution, or the matter is reasonably related to the attorney’s home state practice and the forum does not require pro hac appearance.
Policing Misconduct - ABA
Under the ABA, an attorney must report to the appropriate professional authority any other lawyers’ or judges’ violation of the rules in any legal or non-legal context if it raises a substantial question as to that person’s honesty, trustworthiness, or fitness as an attorney.
Policing Misconduct - CA
CA does not require external reporting, but can discipline an attorney for knowing about a colleague’s violation and doing nothing to prevent it. CA also requires self-reporting if charged with a felony, convicted of serious crime, or found civility liable for fraud or breach of fiduciary duty, disciplined or sanctioned, or sued for malpractice three time in one year.
Duties of Subordinate Attorneys
If an attorney is under the control of another attorney who ratifies or orders her to take an action, violating an ethical rule, the attorney is subject to discipline if it is a clear violation; however, a supervisor is solely responsible if the issue was debatable. If a supervising attorney ratifies an action that is a violation or knows of the conduct but fails to act, she is liable.
Mandatory Withdrawal
An attorney must withdraw from a pending case if fired or if continuing would violate a law or ethical rule. In CA, an attorney must withdraw if a client acts without probable cause to harass or maliciously injure another.
Permissive Withdrawal
An attorney may withdraw when the attorney can demonstrate good cause, if it won’t damage the client’s interests, if the client has used the attorney to perpetuate a crime or fraud, or if the representation will financially burden the attorney.
Procedure for Withdrawal
To withdraw, an attorney must (1) timely notify the client, and (2) promptly return any unspent fee and expense advances and all the client’s property and material papers, including everything needed to pursue the case to completion, even attorney work product. In CA, an attorney may not withhold client’s materials to obtain payment.
