Duty to Public/Professional Integrity Flashcards
Advertising
Advertising must not be false or misleading. Lawyer may advertise services through written, recorded, or electronic communication, including public media.
All advertisements must: be truthful (lawyer shall not make false or misleading communications about their services); contain the name and office address of at least one lawyer responsible for its content; be labeled as advertising material (all written, recorded, or electronic communications must include the word “Advertising Material”) [CA – allows “Advertisement” or similar words] on the outside of the envelope and at the beginning and end of any recorded or electronic communication.
Solicitation
Lawyer may not conduct in-person, live telephone, or real-time electronic contact for professional employment when the motive is pecuniary unless the person contacted is: a lawyer, or a family, close personal, or prior professional relationship with lawyer (current or former client).
Usually fine unless potential client says they want to be left alone: Free legal services; truthful, non-deceptive letters, labeled as advertising material, to people known to face a specific legal problem.
Specializations
Lawyer shall not imply or state that they are certified as a specialist in a particular field of law, unless lawyer has been certified as a specialist by the ABA or a state-approved organization, and the name of the certifying organization is clearly identified in the communication.
Under CA: Requires the organization to be certified by the Board of Legal Specialization or accredited by the CA State Bar.
Unauthorized Practice of Law
Lawyer shall not practice with or form a partnership or association authorized to practice law with a non-lawyer if any of the organization’s activities consists of the practice of law. Lawyer may also not share fees with a non-lawyer unless it is payment for a deceased lawyer and goes to his estate.
Liability for the Ethical Violations of Others
Lawyer shall be responsible for another lawyer’s violation of ethics rules if the lawyer: knowingly ratifies; or is a partner; or has direct supervisory authority and could have mitigated consequences.
Duty of Fairness to Represented Parties
Lawyer shall not communicate with parties or witnesses known to be represented by another lawyer unless the other lawyer has consented, or the communication is authorized by law or court order.
Duty to Represented Corporations/Organizations
Lawyer must obtain consent of organization’s counsel before speaking with constituent of organization who: supervises or regularly consults with organization’s lawyer, has authority to obligate organization with respect to matter, and conduct in matter may be imputed to the organization.
Duty of Fairness to Opposing Counsel
A lawyer shall not: unlawfully obstruct evidence, or destroy or conceal [CA includes suppress] documents or other material or counsel another person to do so; falsify evidence including testimony; knowingly disobey the court rules; allude to any matter lawyer does not reasonably believe is relevant or will not be supported by admissible evidence during trial [CA says to not assert personal knowledge of facts]; promptly notify the sender of any materials inadvertently sent to lawyer [CA also states that lawyer should not refrain from examining the writing to the extent possible].
ABA Only – request others to refrain from giving relevant information unless a relative or agent of client; make a frivolous discovery request or fail to reasonably comply with discovery requests.
CA Only – Pay a witness to testify unless for reasonable expert fees, compensation for loss of time for witness to testify, or reasonable expenses incurred; advise a person to secrete himself or leave the jurisdiction to avoid being available to testify; threaten to bring disciplinary, administrative or criminal proceedings to gain advantage in a civil case.
Duty of Candor to the Tribunal
Lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made; (2) fail to disclose adverse legal authority; or (3) offer evidence that the lawyer knows to be false (perjury). If lawyer knows it is false: persuade client not to offer, then refuse to offer evidence, may seek permission for withdrawal; if lawyer reasonably believes it is false: may refuse to offer, may offer; (4) lawyer who knows client intends to engage in fraudulent or criminal activity shall take reasonable remedial measures, including, if necessary and permissible, disclosure to the tribunal.
Duty of Candor to the Tribunal: Criminal Cases
In criminal cases: must allow client to testify even when lawyer knows or reasonably believed client will testify falsely. Can persuade client not to testify falsely and ask permission to withdraw. May disclose enough information to explain withdrawal. CA – lawyer is not permitted to disclose any information.
If lawyer is not permitted to withdraw, may allow client to testify in a narrative fashion: lawyer may not solicit perjurious testimony, lawyer may not rely on false parts of client’s testimony in closing arguments.
Duty to Preserve Decorum of the Tribunal/Impartiality Towards Tribunal
A lawyer shall not: seek to influence judges, jurors, or other officials, communicate ex parte with such persons during proceedings, engage in conduct intended to disrupt proceedings, or; communicate with jurors after they are discharged if they do not want to communicate or the communication is coercion, duress, or harassment.
Prosecutor Duties
A prosecutor must refrain from prosecution in absence of probable cause.
Must make reasonable efforts to ensure accused is advises of right to counsel.
Make timely disclosure to defense of all evidence negating guilt; turn over exculpatory evidence.
Refrain from extrajudicial comments that heighten public condemnation of the accused.
Seek to remedy wrongful convictions
Duty to the Public
Lawyer should promote public confidence in the profession and not bring or defend a proceeding unless there is a good faith basis in law and fact for doing so that is not frivolous.
It is okay to advance a position with good faith argument for extension, modification, or reversal of existing law.
Reporting Ethical Violations
A lawyer knows that another lawyer has committed a violation of ethics rules that raises a substantial question of honesty, trustworthiness, or fitness as a lawyer shall inform the appropriate authority.
CA: Lawyers are permitted, but not required, to report ethical violations. Lawyers are required to report themselves when: sued for malpractice 3 times in the last 12 months; found civilly liable for fraud, breach of fiduciary duty, etc.; sanctioned more than $1,000; charged with a felony; convicted of a serious crime; disciplined in another jurisdiction.
