CA Rules Flashcards
A. A member shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence.
B. For purposes of this rule, “competence” in any legal service shall mean to apply the 1) diligence, 2) learning and skill, and 3) mental, emotional, and physical ability reasonably necessary for the performance of such service.
C. If a member does not have sufficient learning and skill when the legal service is undertaken, the member may nonetheless perform such services competently by 1) associating with or, where appropriate, professionally consulting another lawyer reasonably believed to be competent, or 2) by acquiring sufficient learning and skill before performance is required.
CA Rule 3-110: Failing To Act Competently
A member shall not advise the violation of any law, rule, or ruling of a tribunal unless the member believes in good faith that such law, rule, or ruling is invalid. A member may take appropriate steps in good faith to test the validity of any law, rule, or ruling of tribunal.
CA Rule 3-210: Advising the Violation of Law
A member shall keep a client reasonably informed about significant developments relating to the employment or representation, including promptly complying with reasonable requests for information and copies of significant documents when necessary to keep the client so informed.
CA Rule 3-500: Communication
A. A member shall promptly communicate to the member’s client:
1. All terms and conditions of any offer made to the client in a criminal matter; and
2. All amounts, terms, and conditions of any written offer of settlement made to the client in all other matters.
B. As used in this rule, “client” includes a person who possesses the authority to accept an offer of settlement or plea, or, in a class action, all the named representatives of the class.
CA Rule 3-510: Communication of Settlement Offer
A. A member shall not enter into an agreement for, charge, or collect an illegal or unconscionable fee.
B. Unconscionability of a fee shall be determined on the basis of all the facts and circumstances existing at the time the agreement is entered into except where the parties contemplate that the fee will be affected by later events. Among the factors to be considered, where appropriate, in determining the conscionability of a fee are the following:
1. The amount of the fee in proportion to the value of services performed.
2. The relative sophistication of the member and the client.
3. The novelty and difficulty of the questions involved and the skill requisite to perform the legal service properly.
4. The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the member.
5. The amount involved and the results obtained.
6. The time limitations imposed by the client or by the circumstances.
7. The nature and length of the professional relationship with the client.
8. The experience, reputation, and ability of the member or members performing the services.
9. Whether the fee is fixed or contingent.
10. The time and labor required.
11. The informed consent of the client to the fee.
CA Rule 4-200: Fees for Legal Services
A. An attorney who contracts to represent a client on a contingency fee basis shall, at the time the contract is entered into, provide a duplicate copy of the contract, signed by both the attorney and the client, or the client’s guardian or representative, to the plaintiff, or to the client’s guardian or representative. The contract shall be in writing and shall include, but is not limited to, all of the following.
1. A statement of the contingency fee rate that the client and attorney have agreed upon.
2. A statement as to how disbursements and costs incurred in connection with the prosecution or settlement of the claim will affect the contingency fee and the client’s recovery.
3. A statement as to what extent, if any, the client could be required to pay any compensation to the attorney for related matters that arise out of their relationship not covered by their contingency fee contract. This may include any amounts collected for the plaintiff by the attorney.
4. Unless the claim is subject to the provisions of Section 6146, a statement that the fee is not set by law but is negotiable between attorney and client.
5. If the claim is subject to the provisions of Section 6146, a statement that the rates set forth in that section are the maximum limits for the contingency fee agreement, and that the attorney and client may negotiate a lower rate.
B. Failure to comply with any provision of this section renders the agreement voidable at the option of the plaintiff, and the attorney shall thereupon be entitled to collect a reasonable fee.
C. This section shall not apply to contingency fee contracts for the recovery of workers’ compensation benefits.
CA Section 6147: Contingency Fee Contract Requirements; Exclusion for Recovery of Workers’ Compensation Benefits
A. A member shall not divide a fee for legal services with a lawyer who is not a partner of, associate of, or shareholder with the member unless:
1. The client has consented in writing thereto after a full disclosure has been made in writing that a division of fees will be made and the terms of such division; and
2. The total fee charged by all lawyers is not increased solely by reason of the provision for division of fees and is not unconscionable as that term is defined in rule 4-200.
B. Except as permitted in paragraph (A) of this rule or rule 2-300, a member shall not compensate, give, or promise anything of value to any lawyer for the purpose of recommending or securing employment of the member or the member’s law firm by a client, or as a reward for having made a recommendation resulting in employment of the member or the member’s law firm by a client. A member’s offering of or giving a gift or gratuity to any lawyer who has made a recommendation resulting the employment of the member or the member’s law firm shall not of itself violate this rule, provided that the gift or gratuity was not offered in consideration of any promise, agreement, or understanding that such a gift or gratuity would be forthcoming or that referrals would be made or encouraged in the future.
CA Rule 2-200: Financial Arrangements Among Lawyers
A. A member shall not reveal information protected from disclosure by Business and Professions Code section 6068, subdivision (e)(1) without the informed consent of the client, or as provided in paragraph (B) of this rule.
B. A member may, but is not required to, reveal confidential information relating to the representation of a client to the extent that the member reasonably believes the disclosure is necessary to prevent a criminal act that the member reasonably believes is likely to result in death of, or substantial bodily harm to, an individual.
C. Before revealing confidential information to prevent a criminal act as provided in paragraph (B), a member shall, if reasonable under the circumstances:
1. Make a good faith effort to persuade the client: (i) not to commit or to continue the criminal act or (ii) to pursue a course of conduct that will prevent the threatened death or substantial bodily harm; or do both (i) and (ii); and
2. Inform the client, at an appropriate time, of the member’s ability or decision to reveal information as provided in paragraph (B).
D. In revealing confidential information as provided in paragraph (B), the member’s disclosure must be no more than is necessary to prevent the criminal act, given the information known to the member at the time of the disclosure.
E. A member who does not reveal information permitted by paragraph (B) does not violate this rule.
CA Rule 3-100: Confidential Information of a Client
It is the duty of an attorney to:
Maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.
CA Section 6068(e): Duties of Attorney
A. For purposes of this rule:
1. “Disclosure” means informing the client or former client of the relevant circumstances and of the actual and reasonably foreseeable adverse consequences to the client or former client;
2. “Informed written consent” means the client’s or former client’s written agreement to the representation following written disclosure;
3. “Written” means any writing as defined in Evidence Code section 250.
B. A member shall not accept or continue representation of a client without providing written disclosure to the client where:
1. The member has a legal, business, financial, professional, or personal relationship with a party or witness int he same matter; or
2. The member knows or reasonably should know that:
a. The member previously had a legal, business, financial, professional, or personal relationship with a party or witness in the same matter; and
b. The previous relationship would substantially affect the member’s representation; or
3. The member has or had a legal, business, financial, professional, or personal relationship with another person or entity the member knows or reasonably should know would be affected substantially by resolution of the matter; or
4. The member has or had a legal, business, financial, or professional interest in the subject matter of the representation.
C. A member shall not, without the informed written consent of each client:
1. Accept representation of more than one client in a matter in which the interests of the clients potentially conflict; or
2. Accept or continue representation of more than one client in a matter in which the interests of the clients actually conflict; or
3. Represent a client in a matter and at the same time in a separate matter accept as a client a person or entity whose interest in the first matter is adverse to the client in the first matter.
D. A member who represents two or more clients shall not enter into an aggregate settlement of the claims or against the clients without the informed written consent of each client.
E. A member shall not, without the informed written consent of the client or former client, accept employment adverse to the client or former client, where, by reason of the representation of the client or former client, the member has obtained confidential information material to the employment.
F. A member shall not accept compensation for representing a client from one other than the client unless:
1. There is no interference with the member’s independence of professional judgment or with the client-lawyer relationship; and
2. Information relating to representation of the client is protected as required by 6068(e); and
3. The member obtains the client’s informed written consent, provided that no disclosure or consent is required if:
a. Such nondisclosure is otherwise authorized by law; or
b. The member is rendering legal services on behalf of any public agency which provides legal services to other public agencies or the public.
CA Rule 3-310: Avoiding the Representation of Adverse Interests
A member shall not enter into a business transaction with a client; or knowingly acquire an ownership, possessory, security, or other pecuniary interest adverse to a client, unless each of the following requirements has been satisfied:
A. The transaction or acquisition and its terms are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner which should reasonably have been understood by the client; and
B. The client is advised in writing that the client may seek the advice of an independent lawyer of the client’s choice and is given a reasonable opportunity to seek that advice; and
C. The client thereafter consents in writing to the terms of the transaction or the terms of the acquisition.
CA Rule 3-300: Avoiding Interests Adverse to a Client
A member shall not induce a client to make a substantial gift, including a testamentary gift, to the member or to the member’s parent, child, sibling, or spouse, except where the client is related to the member.
CA Rule 4-400: Gifts from Clients
A. A member shall now directly or indirectly pay or agree to pay, guarantee, represent, or sanction a representation that the member or member’s law firm will pay the personal or business expenses of a prospective or existing client, except that this rule shall not prohibit a member:
- With the consent of the client, from paying or agreeing to pay such expenses to third persons from funds collected or to be collected for the client as a result of the representation; or
- After employment, from lending money to the client upon the client’s promise in writing to repay such loan; or
- From advancing the costs of prosecuting or defending a claim or action or otherwise protecting or promoting the client’s interests, the repayment of which may be contingent on the outcome of the matter. Such costs within the meaning of this subparagraph (3) shall be limited to all reasonable expenses of litigation or reasonable expenses in preparation for litigation or in providing any legal services to the client.
CA Rule 4-210: Payment of Personal or Business Expenses Incurred by or for a Client
A member shall not:
A. Contract with a client prospectively limiting the member’s liability to the client for the member’s professional malpractice; or
B. Settle a claim or potential claim for the member’s liability to the client for the member’s professional malpractice, unless the client is informed in writing that the client may seek the advice of an independent lawyer of the client’s choice regarding the settlement and is given a reasonable opportunity to seek that advice.
CA Rule 3-400: Limiting Liability to Client
A. For purposes of this rule, “sexual relations” means sexual intercourse or the touching of an intimate part of another person for the purpose of sexual arousal, gratification, or abuse.
B. A member shall not:
1. Require or demand sexual relations with a client incident to or as a condition of any professional representation; or
2. Employ coercion, intimidation, or undue influence in entering into sexual relations with a client; or
3. Continue representation of a client with whom the member has sexual relations if such sexual relations cause the member to perform legal services incompetently in violation of Rule 3-110.
C. Paragraph (B) shall not apply to sexual relations between members and their spouses or to ongoing consensual sexual relationships which predate the initiation of the lawyer-client relationship.
D. Where a lawyer in a firm has sexual relations with a client but does not participate in the representation of that client, the lawyers in the firm shall not be subject to discipline under this rule solely because of the occurrence of such sexual relations.
CA Rule 3-120: Sexual Relations with Client
A. In representing an organization, a member shall conform his or her representation to the concept that the client is the organization itself, acting through its highest authorized officer, employee, body, or constituent overseeing the particular engagement.
B. If a member acting on behalf of an organization knows that an actual or apparent agent of the organization acts or intends or refuses to act in a manner that is or may be a violation of law reasonably imputable to the organization, or in a manner which is likely to result in substantial injury to the organization, the member shall not violate his or her duty of protecting all confidential information as provided in 6068(e). Subject to 6068(e), the member may take such actions as appear to the member to be in the best lawful interest of the organization. Such actions may include among others:
1. Urging reconsideration of the matter while explaining its likely consequences to the organization; or
2. Referring the matter to the next higher authority in the organization, including, if warranted by the seriousness of the matter, referral to the highest internal authority that can act on behalf of the organization.
C. If, despite the member’s actions in accordance with paragraph (B), the highest authority that can act on behalf of the organization insists upon action or a refusal to act that is a violation of law and is likely to result in substantial injury to the organization, the member’s response is limited to the member’s right, and where appropriate, duty to resign in accordance with rule 3-700.
D. In dealing with an organization’s directors, officers, employees, members, shareholders, or other constituents, a member shall explain the identity of the client for whom the member acts, whenever it is or becomes apparent that the organization’s interests are or may become adverse to those of the constituent(s) with whom the member is dealing. The member shall not mislead such a constituent into believing that the constituent may communicate confidential information to the member in a way that will not be used in the organization’s interest if that is or becomes adverse to the constituent.
E. A member representing an organization may also represent any of its directors, officers, employees, members, shareholders, or other constituents, subject to the provisions of rule 3-310. If the organization’s consent to the dual representation is required by rule 3-310, the consent shall be given by an appropriate constituent of the organization other than the individual or constituent who is to be represented, or by the shareholder(s) or organization members.
CA Rule 3-600: Organization as Client
A. All funds received or held for the benefit of clients by a member or law firm, including advances for costs and expenses, shall be deposited in one or more identifiable bank accounts labeled “Trust Account,” “Client’s Funds Account” or words of similar import, maintained in the State of California, or, with written consent of the client, in any other jurisdiction where there is a substantial relationship between the client or the client’s business and the other jurisdiction. No funds belonging to the member or the law firm shall be deposited therein or otherwise commingled therewith except as follows:
1. Funds reasonably sufficient to pay bank charges.
2. In the case of funds belonging in part to a client or in part presently or potentially to the member or the law firm, the portion belonging to the member or the law firm must be withdrawn at the earliest reasonable time after the member’s interest in that portion becomes fixed. However, when the right of the member or law firm to receive a portion of trust funds is disputed by the client, the disputed portion shall not be withdrawn until the dispute is finally resolved.
B. A member shall:
1. Promptly notify a client of the receipt of the client’s funds, securities, or other properties.
2. Identify and label securities and properties of a client promptly upon receipt and place them in a safe deposit box or other place of safekeeping as soon as practicable.
3. Maintain complete records of all funds, securities, and other properties of a client coming into the possession of the member or law firm and render appropriate accounts to the client regarding them; preserve such records for a period of no less than five years after final appropriate distribution of such funds or properties; and comply with any order for an audit of such records issued pursuant to the Rules of Procedure of the State Bar.
4. Promptly pay or deliver, as requested by the client, any funds, securities, or other properties in the possession of the member which the client is entitled to receive.
C. The Board of Governors of the State Bar shall have the authority to formulate and adopt standards as to what “records” shall be maintained by members and law firms in accordance with subparagraph (B)(3). The standards formulated and adopted by the Board, as from time to time amended, shall be effective and binding on all members.
CA Rule 4-100: Preserving Identity of Funds and Property of a Client
A. In general
1. If permission for termination of employment is required by the rules of a tribunal, a member shall not withdraw from employment in a proceeding before that tribunal without its permission.
2. A member shall not withdraw from employment until the member has taken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client, including giving due notice to the client, allowing time for employment of other counsel, complying with rule 3-700(D), and complying with applicable laws and rules.
B. Mandatory Withdrawal.
A member representing a client before a tribunal shall withdraw from employment with the permission of the tribunal, if required by its rules, and a member representing a client in other matters shall withdraw from employment, if:
1. The member knows or should know that the client is bringing an action, conducting a defense, asserting a position in litigation, or taking an appeal, without probable cause and for the purpose of harassing or maliciously injuring any person; or
2. The member knows or should know that continued employment will result in violation of these rules or of the State Bar Act; or
3. The member’s mental or physical condition renders it unreasonably difficult to carry out the employment effectively.
C. Permissive Withdrawal.
If rule 3-700 (B) is not applicable, a member may not request permission to withdraw in matters pending before a tribunal, and may not withdraw in other matters, unless such request or such withdrawal is because:
1. The client
a. Insists upon presenting a claim or defense that is not warranted under existing law and cannot be supported by good faith argument for an extension, modification, or reversal of existing law, or
b. Seeks to pursue an illegal course of conduct, or
c. Insists that the member pursue a course of conduct that is illegal or that is prohibited under these rules or the State Bar Act; or
d. By other conduct renders it unreasonably difficult for the member to carry out the employment effectively, or
e. Insists, in a matter not pending before a tribunal, that the member engage in conduct that is contrary to the judgment and advice of the member but not prohibited under these rules or the State Bar Act, or
f. Breaches an agreement or obligation to the member as to expenses or fees.
2. The continued employment is likely to result in a violation of these rules or of the State Bar Act, or
3. The inability to work with co-counsel indicates that the best interests of the client likely will be served by withdrawal; or
4. The member’s mental or physical condition renders it difficult for the member to carry out the employment effectively; or
5. The client knowingly and freely assents to termination of the employment; or
6. The member believes in good faith, in a proceeding pending before a tribunal, that the tribunal will find the existence of other good cause for withdrawal.
D. Papers, Property, and Fees.
A member whose employment has terminated shall:
1. Subject to any protective order or non-disclosure agreement, promptly release to the client, at the request of the client, all the client papers and property. “Client papers and property” includes correspondence, pleadings, deposition, transcripts, exhibits, physical evidence, expert’s reports, and other items reasonably necessary to the client’s representation, whether the client has paid for them or not; and
2. Promptly refund any part of a fee paid in advance that has not been earned. This provision is not applicable to a true retainer fee which is paid solely for the purpose of ensuring the availability of the member for the matter.
CA Rule 3-700: Termination of Employment
All or substantially all of the law practice of a member, living or deceased, including goodwill, may be sold to another member or law firm subject to all the following conditions:
A. Fees charged to clients shall not be increased solely by reason of such sale.
B. If the sale contemplates the transfer of responsibility for work not yet completed or responsibility for client files or information protected by 6068(e), then;
1. If the seller is deceased, or has a conservator or other person acting in a representative capacity, and no member has been appointed to act for the seller pursuant to 6180.5, then prior to the transfer;
a. The purchaser shall cause a written notice to be given to the client stating that the interest in the law practice is being transferred to the purchaser; that the client has the right to retain other counsel; that the client may take possession of any client papers and property, as required by rule 3-700(D); and that if no response is received to the notification within 90 days of the sending of such notice, or in the event the client’s rights would be prejudiced by a failure to act during that time, the purchaser may act on behalf of the client until otherwise notified by the client.
b. The purchaser shall obtain the written consent of the client provided that such consent shall be presumed until otherwise notified by the client if no response is received to the notification specified in subparagraph within 90 days of the date of the sending of such notification to the client’s last address as shown on the records of the seller, or the client’s rights would be prejudiced by a failure to act during such 90-day period.
2. In all other circumstances, not less than 90 days prior to the transfer;
a. The seller or the member appointed to act for the seller pursuant to 6180.5 shall cause a written notice to be given to the client stating that the interest in the law practice is being transferred to the purchaser; that the client has the right to retain other counsel; that the client may take possession of any client papers and property, as required by rule 3-700(D); and that if no response is received to the notification within 90 days of the sending of such notice, the purchaser may act on behalf of the client until otherwise notified by the client.
b. The seller, or the member appointed to act for the seller pursuant to 6180.5, shall obtain the written consent of the client prior to the transfer provided that such consent shall be presumed until otherwise notified by the client if no response is received to the notification specified in subparagraph(a) within 90 days of the date of the sending of such notification to the client’s last address as shown on the records of the seller.
CA Rule 2-300: Sale or Purchase of a Law Practice of a Member, Living or Deceased
