Duties to Non-Clients Flashcards
Duties of candor to the public and dignity of the profession: Advertising
- Advertising must not be false or misleading
CA = Explicitly requires disclosing if the client will pay costs
CA = Forbids advertisements with guarantees warranties or predictions of a result
Don’t use testimonials or endorsements without an express disclaimer that they are not a GWP
CA = If an ad implies legal help in a foreign language either the attorney or a person whose title is stated in that language must be able to speak it
- Do not advertise claims of specialization unless you are a certified specialist and your ad identifies the certifying organization
- You shall not pay anyone for recommending your services except the cost of advertising. You may pay the usual charges of a qualified lawyer referral service. Reciprocal referrals are OK if they are not exclusive and you explain the arrangement to the client
Duties of candor to the public and dignity of the profession: Solicitation
Solicitation is communication directed to a specific person known to need legal help that offers legal services
CA = Considers any targeted outreach solicitation, but if person also needs legal help, it must contain the word advertisement
Do not seek employment for financial gain by initiating a live telephone or real time auditory or visual contact with whom you have no prior relationship
Agents cannot do anything that a lawyer cannot do
Duty of candor to the court and fairness to your adversary
Your duty of candor trumps conflicting duties of confidentiality and loyalty to your client
You must not make a false statement of material fact or offer evidence you know is to be false or fail to correct a false statement of material fact or law that you previously presented
Client perjury
In a civil case you must refuse to call a witness including your client if you know he tends to perjure himself
For a criminal client, you can counsel him to testify truthfully or not take the stand and if that fails you may try to withdraw from the case and if that fails you can tell the judge. The right to counsel and the duty of confidentiality do not shield perjury
CA = If all else fails you can allow the defendant to testify in a narrative fashion but not further than deception
If you know a Witness plans to perjure do not put him on the stand
If you do not know, but only believe, that testimony is false, these rules are permissive
Duty to produce evidence
You must not suppress any evidence that you or your clients has a legal obligation to reveal or produce regardless of your duty of loyalty. You must not abstract access to or tamper with fruits or instrumentalities of a crime.
There is a distinction between the physical evidence and confidential information
Ex Parte proceedings
Communications with the judge without your adversary present
Your ethical duties of candor to the court and fairness to your adversary require you to volunteer relevant information in these cases
Special duties of prosecutors
Prosecutors have a special duty to timely disclose evidence favorable to the defense. Prosecutors must have probable cause
Duty to state the law truthfully
You cannot make a false statement of law to the court
Be candid about the law and site to adverse authority if controlling and on point
Duty to uphold the law
If continued representation would require you to commit or assist in committing a crime you must withdraw
If your client is going to commit an act likely to result in reasonably certain death or substantial bodily harm your disclosure of confidence is permitted
If your clients crime or fraud would only cause substantial financial loss and your services were employed the ABA permits disclosure.
CA forbids for financial crimes, but federal security law preempts
Additional duties of fairness
- You have a duty to behave honestly in all dealings both in and out of legal practice
CA: Bar is using threats of disciplinary administrative or criminal proceedings as leverage in a civil dispute
Documents sent inadvertently
If you open something that you knew was in advertently sent you must promptly notify opposing counsel
CA = You must stop reading as soon as you realize an inadvertent transmission is privileged or work product
Communication with represented entities
You must not communicate with a person you know is represented by counsel on the subject of your inquiry without consent of his counsel unless authorized by law or giving a second legal opinion
Dealing with the press
Do you have a duty not to interfere with a defendants write a fair trial. You and your agents must avoid out of court statements that you reasonably should know should have a likelihood of materially prejudicing the case
Press exceptions
Matters in the public record, or routine booking information, warning the public, informing them of an ongoing investigation, mitigate undue prejudice to your clients from publicity that you didn’t start
Prosecutors must not make comments that have a high likelihood of heightening public condemnation of the accused
Duty to preserve the decorum impartiality of the tribunal
You must not talk to any perspective or impaneled jurors
You cannot refer to any inadmissible material or matters unsupported by evidence asserting personal knowledge of facts at issue
Duty to expedite cases
You have an affirmative duty to expedite cases
CA = Must not delay cases to harass an adversary or for your own personal gain or convenience
Duty to follow valid procedural rules and court orders unless you’re making a good faith challenge to their validity
Multi jurisdictional practice
Under the ABA you may temporarily practice out of state if you are in good standing any state and: you associate with a locally admitted a lawyer who participates in the matter or the services relate to alternative dispute resolution or the matter is reasonably related to your home state practice and the forum does not require a pro hac vice appearance
California out of state lawyers
The lawyer must register with the California bar, pay dues, get continuing legal education, and be subject to California ethics rules.
Registered foreign legal consultants are limited to advising on the law of their country of licensure
Policing misconduct
Under ABA you must report to the appropriate professional authority any other lawyer or judge is violation of the rules in any legal or non legal context
CA = You are not required to external reporting but you can be disciplined if you knew about a colleagues violation and did nothing to prevent it. You must also self report if you are charged with a felony serious crimes or found civilly liable for fraud or breach of fiduciary duty, discipline or sanctioned or sued for malpractice three times in a year
Duties of subordinate lawyers
If your violation is a clear violation you are subject to discipline
If your violation is a debatable problem your supervisor is solely responsible
If your supervisor ratify the action or knew of the conduct and fail to take action he is in violation
Managing partners must also make a reasonable efforts to ensure that the conduct of all firm employees comports with the professional obligations of a lawyer
