Chapter 1: Atty-Client Relationship

Question 1

Rule 1.1(a)-(d)

Answer 1

(a) An atty shall not intentionally, recklessly, with gross negligence, or repeatedly fail to perform legal services with competence.

(b) competence= possessing the legal skillset, knowledge, ,mental, physical, and emotional abilities to aid clients.

(c) If at the time an atty begins representation, the atty does not possess the legal knowledge necessary for a specific area of law, the atty may: consult another competent atty, refer the case to another atty, or become knowledgeable in that area before performance becomes due.

(d) An atty may in an emergency situation provide legal advice or assistance to a client on a matter in which the atty does not possess the skills ordinarily required if it is impossible to refer the matter to another atty or consult another competent atty.

Comment: The duty of competence also requires the atty to be up to date on all changes in the law.

Question 2

Rule 1.2 Scope of Representation & Allocation of Authority ( Applies in civil & family law cases)

Answer 2

(a) An atty shall abide by a client’s request regarding the scope & objectives of representation and consult with the client about the manner in which these objectives are to be achieved.

• An atty shall abide by a client’s decision to settle a matter.
• In a criminal case, an atty shall abide by a client’s decision after consulting with the atty as to whether to enter a plea, testify, or waive a jury trial.

(b) An atty may limit the scope of their representation provided that it is not unreasonable to do so, not prohibited by the law, and the client gives their informed consent.

• A lawyer is only authorized to act on behalf of client regarding procedural matters.
• A client may authorize an atty to take certain actions on their behalf at the beginning of the representation, without any need for follow-up. This grant of authority is freely revocable.

– Representing a client does not mean that the atty endorses or holds any of the client’s views or political beliefs.

Question 3

Rule 1.2.1. Advising or Assisting the Violation of Law

Answer 3

(a) An atty shall not aid, counsel, or encourage a client to participate in any behavior that the atty knows to be fraudulent, criminal, or a violation of the law or tribunal.

(b)(1) An atty may discuss the negative implications of a client’s conduct

(b)(2) An atty may assist or counsel the client regarding the applicability of the law to their proposed action.

Comment 5: If a lawyer knows or becomes aware that the client expects assistance with committing their crime, the atty must advise the client of the limited scope of the atty’s conduct.

Question 4

Rule 1.3: Diligence

Answer 4

(a) A lawyer shall not intentionally, repeatedly, or recklessly or with gross negligence fail to act with reasonable diligence in representing a client.

(b) Diligence= committed, dedicated to client’s needs and does not ignore duties expected of atty

Question 5

Rule 1.4: Communication with Clients

Answer 5

(a)(1)An atty shall promptly inform a client of any and all matters requiring the client’s informed consent

(a)(2) Atty should reasonably consult with the client about the manner in which client would like their goals accomplished
(a)(3) Keep client informed about any recent developments in their case, including complying with reasonable request for info and furnishing copies of documents to the client.

(a)(4) advise the client about any relevant
limitation on the lawyer’s conduct when the
lawyer knows* that the client expects assistance
not permitted by the Rules of Professional
Conduct or other law.

(b) An atty shall reasonably explain the matter to the client in a manner that permits the client to make an informed decision.

(c) A lawyer may delay transmission of information
to a client if the lawyer reasonably believes* that the
client would be likely to react in a way that may cause
imminent harm to the client or others.
(d) A lawyer’s obligation under this rule to provide
information and documents is subject to any
applicable protective order, non-disclosure agreement,
or limitation under statutory or decisional law.

Comment

[1] A lawyer will not be subject to discipline under
paragraph (a)(3) of this rule for failing to
communicate insignificant or irrelevant information.

Question 6

Rule 1.4.1 Communication of Settlement Offers

Answer 6

(a) A lawyer shall promptly communicate to the lawyer’s client:
(1) all terms and conditions of a proposed plea
bargain or other dispositive 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.

Question 7

Rule 1.4.2 Disclosure of Professional Liability
Insurance

Answer 7

(a) An atty who knows or should reasonably know that they do not have professional liability insurance should inform a client in writing at the onset of representation.

(b) If notice is not given as outlined in section a, the lawyer shall inform the client in writing*
within thirty days of the date the lawyer knows* or reasonably should know* that the lawyer no longer has professional liability insurance during the representation of the client.
This rule does not apply to: (1) an atty who knows or should reasonably know that the atty’s representation of the client will not exceed 4 hours, if it does, then section a & b apply, (2) an atty serving as in-house counsel or a govt atty & providing legal advice in this capacity, (3) atty who previously advised client in writing of their lack of insurance, or (4) a lawyer who is rendering legal services in
an emergency to avoid foreseeable prejudice to the rights or interests of the client.

Question 8

Rule 1.5 Fees for Legal Services(a)(b)

Answer 8

(a) A lawyer shall not make an agreement for,
charge, or collect an unconscionable or illegal fee.

The reasonableness of the fee depends on:

(1) whether the atty engaged in fraud or overreaching in negotiating or setting the fee

(2) whether the lawyer has failed to disclose
material facts;

(3) the amount of the fee in proportion to the
value of the services performed;

(4) atty’s experience

(5) the novelty and difficulty of the questions
involved, and the skill requisite to perform the
legal service properly;
(6) the likelihood, if apparent to the client,
that the acceptance of the particular
employment will preclude other employment by the lawyer

(7) the amount involved and the results
obtained;
(8) the time limitations imposed by the client
or by the circumstances;
(9) the nature and length of the professional
relationship with the client;
(10) the experience, reputation, and ability of
the lawyer or lawyers performing the services;
(11) whether the fee is fixed or contingent;
(12) the time and labor required; and
(13) whether the client gave informed consent*
to the fee.

Question 9

Rule 1.5 Fees for Legal Services(c)

Answer 9

A lawyer shall not make an agreement for,
charge, or collect:
(1) any fee in a family law matter, the
payment or amount of which is contingent upon the securing of a dissolution or declaration of nullity of a marriage or upon the amount of spousal or child support, or property settlement in lieu thereof; or
(2) a contingent fee for representing a
defendant in a criminal case.

Comment: An atty may charge a contingent fee for legal representation in connection with the recovery of post-judgment balances due under child or spousal support or other
financial orders.

ABA Rule

(b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client.

A contingent fee agreement shall be in a writing signed by the client and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.

Question 10

Rule 1.5 Fees for Legal Services(d)

Answer 10

(d) A lawyer may make an agreement for, charge, or collect a fee that is denominated as “earned on receipt” or “non-refundable,” or in similar terms, only if the fee is a true retainer and the client agrees in writing* after disclosure that the client will not be
entitled to a refund of all or part of the fee charged. A true retainer is a fee that a client pays to a lawyer to ensure the lawyer’s availability to the client during a
specified period or on a specified matter, but not to any extent as compensation for legal services performed or to be performed.

Comment: When a lawyer-client relationship terminates, the lawyer must refund the unearned portion of a fee.
(See rule 1.16(e)(2).)

Question 11

Rule 1.5.1 Fee Divisions Among Lawyers

Answer 11

(a) Lawyers who are not in the same law firm* shall not divide a fee for legal services unless:
(1) the lawyers enter into a written* agreement to divide the fee;
(2) the client has consented in writing,* either at the time the lawyers enter into the agreement to divide the fee or as soon thereafter as reasonably* practicable, after a full written* disclosure to the client of: (i) the fact that a division of fees will be made; (ii) the identity of the lawyers or law firms*
that are parties to the division; and (iii) the terms of the division; and
(3) the total fee charged by all lawyers is not increased solely by reason of the agreement to divide fees.
(b) This rule does not apply to a division of fees pursuant to court order.

Question 12

Rule 1.6 Confidential Information of a Client (a)(b)(c)

Answer 12

a) A lawyer shall not reveal information protected from disclosure by Business and Professions Code section 6068, subdivision (e)(1) unless the client gives informed consent,* or the disclosure is permitted by paragraph (b) of this rule.

(b) A lawyer may, but is not required to, reveal information protected by Business and Professions Code section 6068, subdivision (e)(1) to the extent that the lawyer reasonably believes* the disclosure is necessary to prevent a criminal act
that the lawyer reasonably believes* is likely to result in death of, or substantial* bodily harm to, an individual, as provided in paragraph (c).

(c) Before revealing information protected by Business and Professions Code section 6068, subdivision (e)(1) to prevent a criminal act as provided in paragraph (b), a lawyer 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 lawyer’s ability or decision to reveal information protected by Business and Professions Code section 6068, subdivision (e)(1) as provided in paragraph (b).

Question 13

Rule 1.6 Confidential Information of a Client(d)(e)

Answer 13

(d) In revealing information protected by Business and Professions Code section 6068, subdivision (e)(1) as provided in paragraph (b), the lawyer’s disclosure must be no more than is necessary to prevent the criminal act, given the information known* to the lawyer at the time of the disclosure.

(e) A lawyer who does not reveal information permitted by paragraph (b) does not violate this rule.

Question 14

Comments on Rule 1.6

Answer 14

Although a lawyer is not permitted to reveal
information protected by section 6068, subdivision (e)(1) concerning a client’s past, completed criminal acts, the policy favoring the preservation of human life that underlies
this exception to the duty of confidentiality and the evidentiary privilege permits disclosure to prevent a future or ongoing criminal act.

Among the factors to be considered in determining
whether to disclose information protected by section 6068, subdivision (e)(1) are the
following:
(1) the amount of time that the lawyer has to make a decision about disclosure;
(2) whether the client or a third-party has made similar threats before and whether they have ever acted or attempted to act upon them;
(3) whether the lawyer believes* the lawyer’s efforts to persuade the client or a third person* not to engage in the criminal conduct have or have not been successful;
(4) the extent of adverse effect to the client’s rights under the Fifth, Sixth and Fourteenth Amendments of the United States Constitution and analogous rights and privacy rights under Article I of the Constitution of the State of California that may result from disclosure contemplated by the lawyer;
(5) the extent of other adverse effects to the client that may result from disclosure contemplated by the lawyer; and
(6) the nature and extent of information that must be disclosed to prevent the criminal act or threatened harm.

Question 15

Comments on 1.6

Answer 15

A lawyer is required to keep a client reasonably* informed about significant developments regarding the representation.

Among the factors to be considered in determining an appropriate time, if any, to inform a client are:
(1) whether the client is an experienced user of legal services;
(2) the frequency of the lawyer’s contact with the client;
(3) the nature and length of the professional relationship with the client;
(4) whether the lawyer and client have discussed the lawyer’s duty of confidentiality or any exceptions to that duty;
(5) the likelihood that the client’s matter will involve information within paragraph (b);
(6) the lawyer’s belief,* if applicable, that so informing the client is likely to increase the likelihood that a criminal act likely to result in the death of, or substantial* bodily harm to, an individual; and
(7) the lawyer’s belief,* if applicable, that good faith efforts to persuade a client not to act on a threat have failed.

Question 16

Rule 1.7 Conflict of Interest: Current Clients (a)-(d)

Answer 16

(a) A lawyer shall not, without informed written consent* from each client and compliance with paragraph (d), represent a client if the representation is directly adverse to another client in the same or a separate matter.

(b) A lawyer shall not, without informed written consent* from each affected client and compliance with paragraph (d), represent a client if there is a significant risk the lawyer’s representation of the client will be materially limited by the lawyer’s responsibilities to or relationships with another client, a former client or a third person,* or by the lawyer’s own interests.

(c) Even when a significant risk requiring a lawyer to comply with paragraph (b) is not present, a lawyer shall not represent a client without written* disclosure of the relationship to the client and compliance with paragraph (d) where:
(1) the lawyer has, or knows* that another lawyer in the lawyer’s firm* has, a legal, business, financial, professional, or personal relationship with or responsibility to a party or witness in the same matter; 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.

(d) Representation is permitted under this rule only if the lawyer complies with paragraphs (a), (b), and (c), and:
(1) the lawyer reasonably believes* that the lawyer will be able to provide competent and diligent representation to each affected client;
(2) the representation is not prohibited by law; and
(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal.

Question 17

Rule 1.8.1 Business Transactions with a Client and Pecuniary Interests Adverse to a Client

Answer 17

A lawyer 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 the terms and the lawyer’s role in the transaction or acquisition are fully disclosed and transmitted in writing* to the client in a manner that should reasonably* have been understood by the client;
(b) the client either is represented in the transaction or acquisition by an independent lawyer of the client’s choice or the client is advised in writing* to 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 provides informed written consent* to the terms of the transaction or acquisition, and to the lawyer’s role in it.

Question 18

Rule 1.8.2 Use of Current Client’s Information

Answer 18

A lawyer shall not use a client’s information protected by Business and Professions Code section 6068, subdivision (e)(1) to the disadvantage of the client unless the client gives informed consent,* except as permitted by these rules or the State Bar Act.

Question 19

Rule 1.8.3 Gifts from Client

Answer 19

(a) A lawyer shall not:
(1) solicit a client to make a substantial* gift, including a testamentary gift, to the lawyer or a person* related to the lawyer, unless the lawyer or other recipient of the gift is related to the client, or
(2) prepare on behalf of a client an instrument giving the lawyer or a person* related to the lawyer any substantial* gift, unless (i) the lawyer or other recipient of the gift is related to the client, or (ii) the client has been advised by an independent lawyer who has provided a certificate of independent review that complies with the requirements of Probate Code section 21384.
(b) For purposes of this rule, related persons* include a person* who is “related by blood or affinity” as that term is defined in California Probate Code section 21374, subdivision (a).

Comment
[1] A lawyer or a person* related to a lawyer may accept a gift from the lawyer’s client, subject to general standards of fairness and absence of undue influence. A lawyer also does not violate this rule merely by engaging in conduct that might result in a client making a gift, such as by sending the client a wedding announcement. Discipline is appropriate where impermissible influence occurs. (See Magee v. State Bar (1962) 58 Cal.2d 423 [24 Cal.Rptr. 839].)
[2] This rule does not prohibit a lawyer from seeking to have the lawyer or a partner* or associate of the lawyer named as executor of the client’s estate or to another potentially lucrative fiduciary position. Such appointments, however, will be subject to rule 1.7(b) and (c).

Question 20

Rule 1.8.5 Payment of Personal or Business Expenses Incurred by or for a Client

Answer 20

(a) A lawyer shall not directly or indirectly pay or agree to pay, guarantee, or represent that the lawyer or lawyer’s law firm* will pay the personal or business expenses of a prospective or existing client.
(b) Notwithstanding paragraph (a), a lawyer may:
(1) pay or agree to pay such expenses to third persons,* from funds collected or to be collected for the client as a result of the representation, with the consent of the client;
(2) after the lawyer is retained by the client, agree to lend money to the client based on the client’s written* promise to repay the loan, provided the lawyer complies with rules 1.7(b), 1.7(c), and 1.8.1 before making the loan or agreeing to do so;
(3) advance the costs of prosecuting or defending a claim or action, or of otherwise protecting or promoting the client’s interests, the repayment of which may be contingent on the outcome of the matter; and
(4) pay the costs of prosecuting or defending a claim or action, or of otherwise protecting or promoting the interests of an indigent person* in a matter in which the lawyer represents the client.

Question 21

Rule 1.8.6 Compensation from One Other than Client

Answer 21

A lawyer shall not enter into an agreement for, charge, or accept compensation for representing a client from one other than the client unless:
(a) there is no interference with the lawyer’s independent professional judgment or with the lawyer-client relationship;
(b) information is protected as required by Business and Professions Code section 6068, subdivision (e)(1) and rule 1.6; and
(c) the lawyer obtains the client’s informed written consent* at or before the time the lawyer has entered into the agreement for, charged, or accepted the compensation, or as soon thereafter as reasonably* practicable, provided that no disclosure or consent is required if:
(1) nondisclosure or the compensation is otherwise authorized by law or a court order; or
(2) the lawyer is rendering legal services on behalf of any public agency or nonprofit organization

Question 22

Rule 1.8.7 Aggregate Settlements

Answer 22

(a) A lawyer who represents two or more clients shall not enter into an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregate agreement as to guilty or nolo contendere pleas, unless each client gives informed written consent.* The lawyer’s disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person* in the settlement.
(b) This rule does not apply to class action settlements subject to court approval

Question 23

Rule 1.8.8 Limiting Liability to Client

Answer 23

A lawyer shall not:
(a) Contract with a client prospectively limiting the lawyer’s liability to the client for the lawyer’s professional malpractice; or
(b) Settle a claim or potential claim for the lawyer’s liability to a client or former client for the lawyer’s professional malpractice, unless the client or former client is either:
(1) represented by an independent lawyer concerning the settlement; or
(2) advised in writing* by the lawyer to seek the advice of an independent lawyer of the client’s choice regarding the settlement and given a reasonable* opportunity to seek that advice

Question 24

Rule 1.8.9 Purchasing Property at a Foreclosure or a Sale Subject to Judicial Review

Answer 24

(a) A lawyer shall not directly or indirectly purchase property at a probate, foreclosure, receiver’s, trustee’s, or judicial sale in an action or proceeding in which such lawyer or any lawyer affiliated by reason of personal, business, or professional relationship with that lawyer or with that lawyer’s law firm* is acting as a lawyer for a party or as executor, receiver, trustee, administrator, guardian, or conservator.
(b) A lawyer shall not represent the seller at a probate, foreclosure, receiver, trustee, or judicial sale in an action or proceeding in which the purchaser is a spouse or relative of the lawyer or of another lawyer in the lawyer’s law firm* or is an employee of the lawyer or the lawyer’s law firm.*
(c) This rule does not prohibit a lawyer’s participation in transactions that are specifically authorized by and comply with Probate Code sections 9880 through 9885, but such transactions remain subject to the provisions of rules 1.8.1 and 1.7.
Comment
A lawyer may lawfully participate in a transaction involving a probate proceeding which concerns a client by following the process described in Probate Code sections 9880- 9885. These provisions, which permit what would otherwise be impermissible self- dealing by specific submissions to and approval by the courts, must be strictly followed in order to avoid violation of this rule

Question 25

Rule 1.8.10 Sexual Relations with Current Client

Answer 25

(a) A lawyer shall not engage in sexual relations with a current client who is not the lawyer’s spouse or registered domestic partner, unless a consensual sexual relationship existed between them when the lawyer-client relationship commenced.
(b) 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.
(c) If a person* other than the client alleges a violation of this rule, no Notice of Disciplinary Charges may be filed by the State Bar against a lawyer under this rule until the State Bar has attempted to obtain the client’s statement regarding, and has considered, whether the client would be unduly burdened by further investigation or a charge.

Question 26

Rule 1.8.11 Imputation of Prohibitions Under Rules 1.8.1 to 1.8.9

Answer 26

While lawyers are associated in a law firm,* a prohibition in rules 1.8.1 through 1.8.9 that applies to any one of them shall apply to all of them.
Comment
A prohibition on conduct by an individual lawyer in rules 1.8.1 through 1.8.9 also applies to all lawyers associated in a law firm* with the personally prohibited lawyer.

Question 27

Rule 1.9 Duties to Former Clients

Answer 27

a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person* in the same or a substantially related matter in which that person’s* interests are materially adverse to the interests of the former client unless the former client gives informed written consent.*
(b) A lawyer shall not knowingly* represent a person* in the same or a substantially related matter in which a firm* with which the lawyer formerly was associated had previously represented a client
(1) whose interests are materially adverse to that person;* and
(2) about whom the lawyer had acquired information protected by Business and Professions Code section 6068, subdivision (e) and rules 1.6 and 1.9(c) that is material to the matter;
unless the former client gives informed written consent.*
(c) A lawyer who has formerly represented a client in a matter or whose present or former firm* has formerly represented a client in a matter shall not thereafter:
(1) use information protected by Business and Professions Code section 6068, subdivision (e) and rule 1.6 acquired by virtue of the representation of the former client to the disadvantage of the former client except as these rules or the State Bar Act would permit with respect to a current client, or when the information has become generally known;* or
(2) reveal information protected by Business and Professions Code section 6068, subdivision (e) and rule 1.6 acquired by virtue of the representation of the former client except as these rules or the State Bar Act permit with respect to a current client.

Question 28

Rule 1.10 Imputation of Conflicts of Interest

Answer 28

a) While lawyers are associated in a firm,* none of them shall knowingly* represent a client when any one of them practicing alone would be prohibited from doing so by rules 1.7 or 1.9, unless
(1) the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm;* or
(2) the prohibition is based upon rule 1.9(a) or (b) and arises out of the prohibited lawyer’s association with a prior firm,* and
(i) the prohibited lawyer did not substantially participate in the same or a substantially related matter;
(ii) the prohibited lawyer is timely screened* from any participation in the matter and is apportioned no part of the fee therefrom; and
(iii) written* notice is promptly given to any affected former client to enable the former client to ascertain compliance with the provisions of this rule, which shall include a description of the screening* procedures employed; and an agreement by the firm* to respond promptly to any written* inquiries or objections by the former client about the screening* procedures.
(b) When a lawyer has terminated an association with a firm,* the firm* is not prohibited from thereafter representing a person* with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm,* unless:
(1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and
(2) any lawyer remaining in the firm* has information protected by Business and Professions Code section 6068, subdivision (e) and rules 1.6 and 1.9(c) that is material to the matter.
(c) A prohibition under this rule may be waived by each affected client under the conditions stated in rule 1.7.
(d) The imputation of a conflict of interest to lawyers associated in a firm* with former or current government lawyers is governed by rule 1.11.

Question 29

Comment on Rule 1.10

Answer 29

Comment
[1] In determining whether a prohibited lawyer’s previously participation was substantial,* a number of factors should be considered, such as the lawyer’s level of responsibility in the prior matter, the duration of the lawyer’s participation, the extent to which the lawyer advised or had personal contact with the former client, and the extent to which the lawyer was exposed to confidential information of the former client likely to be material in the current matter.
[2] Paragraph (a) does not prohibit representation by others in the law firm* where the person* prohibited from involvement in a matter is a nonlawyer, such as a paralegal or legal secretary. Nor does paragraph (a) prohibit representation if the lawyer is prohibited from acting because of events before the person* became a lawyer, for example, work that the person* did as a law student. Such persons,* however, ordinarily must be screened* from any personal participation in the matter.

5.3.)
[3] Paragraph (a)(2)(ii) does not prohibit the screened* lawyer from receiving a salary or partnership share established by prior independent agreement, but that lawyer may not receive compensation directly related to the matter in which the lawyer is prohibited

Question 30

Rule 1.10(c)

Answer 30

A lawyer who was a public official or employee and, during that employment, acquired information that the lawyer knows* is confidential government information about a person,* may not represent a private client whose interests are adverse to that person* in a matter in which the information could be used to the material disadvantage of that person.* As used in this rule, the term “confidential government information” means information that has been obtained under governmental authority, that, at the time this rule is applied, the government is prohibited by law from disclosing to the public, or has a legal privilege not to disclose, and that is not otherwise available to the public. A firm* with which that lawyer is associated may undertake or continue representation in the matter only if the personally prohibited lawyer is timely screened* from any participation in the matter and is apportioned no part of the fee therefrom.

Question 31

Rule 1.10(d)

Answer 31

d) Except as law may otherwise expressly permit, a lawyer currently serving as a public official or employee
(1) is subject to rules 1.7 and 1.9; and
(2) shall not:
(i) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment unless the appropriate government agency gives its informed written consent;* or
(ii) negotiate for private employment with any person* who is involved as a party, or as a lawyer for a party, or with a law firm* for a party, in a matter in which the lawyer is participating personally and substantially, except that a lawyer serving as a law clerk to a judge, other adjudicative officer or arbitrator may negotiate for private employment as permitted by rule 1.12(b) and subject to the conditions stated in rule 1.12(b).

Question 32

Rule 1.11 Special Conflicts of Interest for Former and Current Government Officials and Employees(a)(b)

Answer 32

a) Except as law may otherwise expressly permit, a lawyer who has formerly served as a public official or employee of the government:
(1) is subject to rule 1.9(c); and
(2) shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public official or employee, unless the appropriate government agency gives its informed written consent* to the representation. This paragraph shall not apply to matters governed by rule 1.12(a).
(b) When a lawyer is prohibited from representation under paragraph (a), no lawyer in a firm* with which that lawyer is associated may knowingly* undertake or continue representation in such a matter unless:
(1) the personally prohibited lawyer is timely screened* from any participation in the matter and is apportioned no part of the fee therefrom; and
(2) written* notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule

Question 33

Rule 1.11 Special Conflicts of Interest for Former and Current Government Officials and Employees(c)(d)

Answer 33

a lawyer who was a public official or employee and, during that employment, acquired information that the lawyer knows* is confidential government information about a person,* may not represent a private client whose interests are adverse to that person* in a matter in which the information could be used to the material disadvantage of that person.* As used in this rule, the term “confidential government information” means information that has been obtained under governmental authority, that, at the time this rule is applied, the government is prohibited by law from disclosing to the public, or has a legal privilege not to disclose, and that is not otherwise available to the public. A firm* with which that lawyer is associated may undertake or continue representation in the matter only if the personally prohibited lawyer is timely screened* from any participation in the matter and is apportioned no part of the fee therefrom.
(d) Except as law may otherwise expressly permit, a lawyer currently serving as a public official or employee:
(1) is subject to rules 1.7 and 1.9; and
(2) shall not:
(i) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment,
unless the appropriate government agency gives its informed written consent;* or
(ii) negotiate for private employment with any person* who is involved as a party, or as a lawyer for a party, or with a law firm* for a party, in a matter in which the lawyer is participating personally and substantially, except that a lawyer serving as a law clerk to a judge, other adjudicative officer or arbitrator may negotiate for private employment as permitted by rule 1.12(b) and subject to the conditions stated in rule 1.12(b).

Question 34

Rule 1.12 Former Judge, Arbitrator, Mediator or Other Third-Party Neutral

Answer 34

2018)
(a) Except as stated in paragraph (d), a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer, judicial staff attorney or law clerk to such a person* or as an arbitrator, mediator, or other third-party neutral, unless all parties to the proceeding give informed written consent.*
(b) A lawyer shall not seek employment from any person* who is involved as a party or as lawyer for a party, or with a law firm* for a party, in a matter in which the lawyer is participating personally and substantially as a judge or other adjudicative officer or as an arbitrator, mediator, or other third party neutral. A lawyer serving as a judicial staff attorney or law clerk to a judge or other adjudicative officer may seek employment from a party, or with a lawyer or a law firm* for a party, in a matter in which the staff attorney or clerk is participating personally and substantially, but only with the approval of the court.
(c) If a lawyer is prohibited from representation by paragraph (a), other lawyers in a firm* with which that lawyer is associated may knowingly* undertake or continue representation in the matter only if:
(1) the prohibition does not arise from the lawyer’s service as a mediator or settlement judge;
(2) the prohibited lawyer is timely screened* from any participation in the matter and is apportioned no part of the fee therefrom; and
(3) written* notice is promptly given to the parties and any appropriate tribunal* to enable them to ascertain compliance with the provisions of this rule.
(d) An arbitrator selected as a partisan of a party in a multimember arbitration panel is not prohibited from subsequently representing that party

Question 35

Rule 1.13 Organization As A Client(a)-(c)

Answer 35

2018)
(a) A lawyer employed or retained by an organization shall conform his or her representation to the concept that the client is the organization itself, acting through its duly authorized directors, officers, employees, members, shareholders, or other constituents overseeing the particular engagement.
(b) If a lawyer representing an organization knows* that a constituent is acting, intends to act or refuses to act in a matter related to the representation in a manner that the lawyer knows* or reasonably should know* is (i) a violation of a legal obligation to the organization or a violation of law reasonably* imputable to the organization, and (ii) likely to result in substantial* injury to the organization, the lawyer shall proceed as is reasonably* necessary in the best lawful interest of the organization. Unless the lawyer reasonably believes* that it is not necessary in the best lawful interest of the organization to do so, the lawyer shall refer the matter to higher authority in the organization, including, if warranted by the circumstances, to the highest authority that can act on behalf of the organization as determined by applicable law.
(c) In taking any action pursuant to paragraph (b), the lawyer shall not reveal information protected by Business Professional Code

Question 36

Rule 1.13 Organization As a Client(d)-(g)

Answer 36

e).
(d) If, despite the lawyer’s actions in accordance with paragraph (b), the highest authority that can act on behalf of the organization insists upon action, or fails to act, in a manner that is a violation of a legal obligation to the organization or a violation of law reasonably* imputable to the organization, and is likely to result in substantial* injury to the organization, the lawyer shall continue to proceed as is reasonably* necessary in the best lawful interests of the organization. The lawyer’s response may include the lawyer’s right and, where appropriate, duty to resign or withdraw in accordance with rule 1.16.
(e) A lawyer who reasonably believes* that he or she has been discharged because of the lawyer’s actions taken pursuant to paragraph (b), or who resigns or withdraws under circumstances described in paragraph (d), shall proceed as the lawyer reasonably believes* necessary to assure that the organization’s highest authority is informed of the lawyer’s discharge, resignation, or withdrawal.
(f) In dealing with an organization’s constituents, a lawyer representing the organization shall explain the identity of the lawyer’s client whenever the lawyer knows* or reasonably should know* that the organization’s interests are adverse to those of the constituent(s) with whom the lawyer is dealing.
(g) A lawyer representing an organization may also represent any of its constituents, subject to the provisions of rules 1.7, 1.8.2, 1.8.6, and 1.8.7. If the organization’s consent to the dual representation is required by any by any of these rules, the consent shall be given by an appropriate official, constituent, or body of the organization other than the individual who is to be represented or by h to r shareholders.

Question 37

Rule 1.15 Safekeeping Funds and Property of Clients and Other Persons (a)-(b)

Answer 37

a) All funds received or held by a lawyer or law firm* for the benefit of a client, or other person* to whom the lawyer owes a contractual, statutory, or other legal duty, including advances for fees, costs and expenses, shall be deposited in one or more identifiable bank accounts labeled “Trust 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.
(b) Notwithstanding paragraph (a), a flat fee paid in advance for legal services may be deposited in a lawyer’s or law firm’s operating account, provided:
(1) the lawyer or law firm* discloses to the client in writing* (i) that the client has a right under paragraph (a) to require that the flat fee be deposited in an identified trust account until the fee is earned, and (ii) that the client is entitled to a refund of any amount of the fee that has not been earned in the event the representation is terminated or the services for which the fee has been paid are not completed; and
(2) if the flat fee exceeds $1,000.00, the client’s agreement to deposit the flat fee in the lawyer’s operating account and the disclosures required by paragraph (b)(1) are set forth in a writing* signed by the client.

Question 38

Rule 1.15 Safekeeping Funds and Property of Clients and Other Persons(c)

Answer 38

c) Funds belonging to the lawyer or the law firm* shall not be deposited or otherwise commingled with funds held in a trust account except:
(1) funds reasonably* sufficient to pay bank charges; and
(2) funds belonging in part to a client or other person* and in part presently or potentially to the lawyer or the law firm,* in which case the portion belonging to the lawyer or law firm* must be withdrawn at the earliest reasonable* time after the lawyer or law firm’s interest in that portion becomes fixed. However, if a client or other person* disputes the lawyer or law firm’s right to receive a portion of trust funds, the disputed portion shall not be withdrawn until the dispute is finally resolved.

Question 39

Rule 1.15 Safekeeping Funds and Property of Clients and Other Persons(d)

Answer 39

d) A lawyer shall:
(1) absent good cause, notify a client or other person* no later than 14 days of the receipt of funds, securities, or other property in which the lawyer knows* or reasonably should know* the client or other person* has an interest;
(2) identify and label securities and properties of a client or other person* 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 property of a client or other person* coming into the possession of the lawyer or law firm;*
(4) promptly account in writing* to the client or other person* for whom the lawyer holds funds or property;
(5) preserve records of all funds and property held by a lawyer or law firm* under this rule for a period of no less than five years after final appropriate distribution of such funds or property;
(6) comply with any order for an audit of such records issued pursuant to the Rules of Procedure of the State Bar; and
(7) promptly distribute any undisputed funds or property in the possession of the lawyer or law firm* that the client or other person* is entitled to receive

Question 40

Rule 1.15 Safekeeping Funds and Property of Clients and Other Persons(f)(g)

Answer 40

f) For purposes of determining a lawyer’s compliance with paragraph (d)(7), unless the lawyer, and the client or other person* agree in writing that the funds or property will continue to be held by the lawyer, there shall be a rebuttable presumption affecting the burden of proof as defined in Evidence Code sections 605 and 606 that a violation of paragraph (d)(7) has occurred if the lawyer, absent good cause, fails to distribute undisputed funds or property within 45-days of the date when the funds become undisputed as defined by paragraph (g). This presumption may be rebutted by proof by a preponderance of evidence that there was good cause for not distributing funds within 45 days of the date when the funds or property became undisputed as defined in paragraph (g).
(g) As used in this rule, “undisputed funds or property” refers to funds or property, or a portion of any such funds or property, in the possession of a lawyer or law firm* where the lawyer knows* or reasonably should know* that the ownership interest of the client or other person* in the funds or property, or any portion thereof, has become fixed and there are no unresolved disputes as to the client’s or other person’s* entitlement to receive the funds or property

Question 41

Standards for Maintaining Client Funds

Answer 41

1) A lawyer shall, from the date of receipt of funds of the client or other person* through the period ending five years from the date of appropriate disbursement of such funds, maintain a) a written* ledger for each client or other person* on whose behalf funds are held that sets forth:
(i) the name of such client or other person;*
(ii) the date, amount and source of all funds received on behalf of such client or other person;*
(iii) the date, amount, payee and purpose of each disbursement made on behalf of such client or other person;* and
(iv) the current balance for such client or other person;*
(b) a written* journal for each bank account that sets forth:
(i) the name of such account;
(ii) the date, amount and client affected by each debit and credit; and
(iii) the current balance in such account;
(c) all bank statements and cancelled checks for each bank account; and
(d) each monthly reconciliation (balancing) of (a), (b), and (c).
(2) A lawyer shall, from the date of receipt of all securities and other properties held for the benefit of client or other person* through the period ending five years from the date of appropriate disbursement of such securities and other properties, maintain a written* journal that specifies:
(a) each item of security and property held;
(b) the person* on whose behalf the security or property is held;
(c) the date of receipt of the security or property;
(d) the date of distribution of the security or property; and
(e) person* to whom the security or property was distributed

Question 42

Comment on Rule 1.15

Answer 42

account.
[3] Absent written* disclosure and the client’s agreement in a writing* signed by the client as provided in paragraph (b), a lawyer must deposit a flat fee paid in advance of legal services in the lawyer’s trust account. Paragraph (b) does not apply to advance payment for costs and expenses. Paragraph (b) does not alter the lawyer’s obligations under paragraph (d) or the lawyer’s burden to establish that the fee has been earned.

Question 43

Rule 1.16 Declining or Terminating Representation(a)

Answer 43

A) a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:
(1) the lawyer knows* or reasonably 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;*
(2) the lawyer knows* or reasonably should know* that the representation will result in violation of these rules or of the State Bar Act;
(3) the lawyer’s mental or physical condition renders it unreasonably difficult to carry out the representation effectively; or
(4) the client discharges the lawyer.

Question 44

Rule 1.16 Declining or Terminating Representation(B)

Answer 44

a lawyer may withdraw from representing a client if:
(1) the client insists upon presenting a claim or defense in litigation, or asserting a position or making a demand in a non-litigation matter, that is not warranted under existing law and cannot be supported by good faith argument for an extension, modification, or reversal of existing law;
(2) the client either seeks to pursue a criminal or fraudulent* course of conduct or has used the lawyer’s services to advance a course of conduct that the lawyer reasonably believes* was a crime or fraud;*
(3) the client insists that the lawyer pursue a course of conduct that is criminal or fraudulent;*
(4) the client by other conduct renders it unreasonably difficult for the lawyer to carry out the representation effectively;
(5) the client breaches a material term of an agreement with, or obligation, to the lawyer relating to the representation, and the lawyer has given the client a reasonable* warning after the breach that the lawyer will withdraw unless the client fulfills the agreement or performs the obligation;
(6) the client knowingly* and freely assents to termination of the representation;
(7) the inability to work with co-counsel indicates that the best interests of the client likely will be served by withdrawal;

8) the lawyer’s mental or physical condition renders it difficult for the lawyer to carry out the representation effectively;
(9) a continuation of the representation is likely to result in a violation of these rules or the State Bar Act; or
(10) the lawyer believes* in good faith, in a proceeding pending before a tribunal,* that the tribunal* will find the existence of other good cause for withdrawal.

Question 45

Rule 1.16 Declining or Terminating Representation(c)(d)

Answer 45

(c) If permission for termination of a representation is required by the rules of a tribunal,* a lawyer shall not terminate a representation before that tribunal* without its permission.
(d) A lawyer shall not terminate a representation until the lawyer has taken reasonable* steps to avoid reasonably* foreseeable prejudice to the rights of the client, such as giving the client sufficient notice to permit the client to retain other counsel, and complying with paragraph (e

Question 46

Rule 1.16 Declining or Terminating Representation(e)

Answer 46

e) Upon the termination of a representation for any reason:
(1) subject to any applicable protective order, non-disclosure agreement, statute or regulation, the lawyer promptly shall release to the client, at the request of the client, all client materials and property. “Client materials and property” includes correspondence, pleadings, deposition transcripts, experts’ reports and other writings,* exhibits, and physical evidence, whether in tangible, electronic or other form, and other items reasonably* necessary to the client’s representation, whether the client has paid for them or not; and
(2) the lawyer promptly shall refund any part of a fee or expense paid in advance that the lawyer has not earned or incurred. This provision is not applicable to a true retainer fee paid solely for the purpose of ensuring the availability of the lawyer for the matter.

Question 47

Rule 1.17 Sale of a Law Practice(a)

Answer 47

(a) Fees charged to clients shall not be increased solely by reason of the sale.

Question 48

Rule 1.17 Sale of a Law Practice(b)(1)

Answer 48

b) If the sale contemplates the transfer of responsibility for work not yet completed or responsibility for client files or information protected by Business and Professions Code section 6068, subdivision (e)(1), then;
(1) if the seller is deceased, or has a conservator or other person* acting in a representative capacity, and no lawyer has been appointed to act for the seller pursuant to Business and Professions Code section 6180.5, then prior to the transfer;
(i) the purchaser shall cause a written* notice to be given to each client whose matter is included in the sale, 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 materials and property, as required by rule 1.16(e)(1); and that if no response is received to the notice within 90 days after it is sent, or if the client’s rights would be prejudiced by a failure of the purchaser to act during that time, the purchaser may act on behalf of the client until otherwise notified by the client, and
(ii) the purchaser shall obtain the written* consent of the client. If reasonable* efforts have been made to locate the client and no response to the paragraph (b)(1)(i) notice is received within 90 days, consent shall be presumed until otherwise notified by the client.

Question 49

Rule 1.17 Sale of a Law Practice(b)(2)

Answer 49

2) in all other circumstances, not less than 90 days prior to the transfer;
(i) the seller, or the lawyer appointed to act for the seller pursuant to Business and Professions Code section 6180.5, shall cause a written* notice to be given to each client whose matter is included in the sale, 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 materials and property, as required by rule 1.16(e)(1); and that if no response is received to the notice within 90 days after it is sent, or if the client’s rights would be prejudiced by a failure of the purchaser to act during that time, the purchaser may act on behalf of the client until otherwise notified by the client,

and ii) the seller, or the lawyer appointed to act for the seller pursuant to Business and Professions Code section 6180.5, shall obtain the written* consent of the client prior to the transfer. If reasonable* efforts have been made to locate the client and no response to the paragraph (b)(2)(i) notice is received within 90 days, consent shall be presumed until otherwise notified by the client.

Question 50

Rule 1.17 Sale of a Law Practice(C)(D)(E)

Answer 50

c) If substitution is required by the rules of a tribunal* in which a matter is pending, all steps necessary to substitute a lawyer shall be taken.
(d) The purchaser shall comply with the applicable requirements of rules 1.7 and 1.9.
(e) Confidential information shall not be disclosed to a nonlawyer in connection with a sale under this rule

Question 51

Rule 1.18 Duties to Prospective Client(A)(B)

Answer 51

a) A person* who, directly or through an authorized representative, consults a lawyer for the purpose of retaining the lawyer or securing legal service or advice from the lawyer in the lawyer’s professional capacity, is a prospective client.
(b) Even when no lawyer-client relationship ensues, a lawyer who has communicated with a prospective client shall not use or reveal information protected by Business and Professions Code section 6068, subdivision (e) and rule 1.6 that the lawyer learned as a result of the consultation, except as rule 1.9 would permit with respect to information of a former client.

Question 52

Rule 1.18 Duties to Prospective Client(C)

Answer 52

client.
(c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received from the prospective client information protected by Business and Professions Code section 6068, subdivision (e) and rule 1.6 that is material to the matter, except as provided in paragraph (d). If a lawyer is prohibited from representation under this paragraph, no lawyer in a firm* with which that lawyer is associated may knowingly* undertake or continue representation in such a matter, except as provided in paragraph (d)

Question 53

Rule 1.18 Duties to Prospective Client(D)

Answer 53

d) When the lawyer has received information that prohibits representation as provided in paragraph (c), representation of the affected client is permissible if:
(1) both the affected client and the prospective client have given informed written consent,* or
(2) the lawyer who received the information took reasonable* measures to avoid exposure to more information than was reasonably* necessary to determine whether to represent the prospective client; and
Comment
(i) the prohibited lawyer is timely screened* from any participation in the matter and is apportioned no part of the fee therefrom; and
(ii) written* notice is promptly given to the prospective client to enable the prospective client to ascertain compliance with the provisions of this rule.