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CA Professional Responsibility > Essay Rule Statements > Flashcards

Essay Rule Statements Flashcards

1
Q

Referral Fees

ABA

A

The Model Rules (MR) prohibit payment to anyone for recommending a lawyer’s services, except for:

1) Permissible lawyer referral services

2) Reciprocal referral agreements, and nominal gifts of appreciation.

A referral fee given in return for merely recommending another attorney violates this rule.

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2
Q

Referral Fees

CA

A

Under the California Rules of Professional Conduct (CA RPC), although a referral fee is generally impermissible, an attorney may give a “thank you” gift for a referral that results in employment of the attorney so long as:

1) It was not offered or

2) Given in consideration of any promise, agreement, or understanding that the gift or

3) Gratuity would be forthcoming or additional referrals would be made or encouraged in the future.

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3
Q

Fee Splitting

ABA

CA

A

Under the MR and the CA RPC, legal fees may not be shared between lawyers and non-lawyers unless an exception applies.

The exceptions to this rule are:

(i) a non-lawyer paid over a reasonable period after the death of the lawyer according to the lawyer’s law firm operating agreement;

(ii) a lawyer who purchases the practice of a deceased, disabled, or missing lawyer and pays the estate or the representative of that lawyer;

(iii) fees shared with law-firm personnel though a compensation or retirement plan; and

(iv) a lawyer who shares court-awarded legal fees with a nonprofit organization that employed, retrained, or recommended employment of the lawyer in the underlying matter.

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4
Q

Solicitation

ABA

CA

A

A lawyer must not solicit professional employment in person, by telephone, or by real-time electronic contact when a significant motive is the lawyer’s pecuniary gain.

  • ABA: Ok for real-time electronic contact.

UNLESS the person contacted is

(i) a lawyer or

(ii) a person with whom the lawyer has a familial, close personal, or prior professional relationship.

Solicitation is defined as a communication initiated by or on behalf of a lawyer that is directed to a specific person the lawyer knows or reasonably should know needs legal services in a particular matter and that offers to provide, or reasonably can be understood as offering to provide, legal services for that matter.

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5
Q

Partnership with Non-Attorneys

ABA

CA

A

Under the MR and the CA RPC, a lawyer is not permitted to form a partnership with a non-lawyer if any of the activities of the partnership consist of the practice of law.

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6
Q

What are Runners and Cappers?

A

Lawyers who employ agents to monitor accidents and other events likely to produce legal work and to solicit business for the lawyer are subject to discipline.

In CA, use of runners or cappers is a criminal violation, and any such contract is specifically void as illegal in CA.

However, use of a state bar–authorized lawyer-referral service, legal insurance, prepaid legal service plan, or pro bono network is not subject to this prohibition.

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7
Q

Sexual Relationship with Client

ABA

CA

A

The MR and CA RPC prohibit a lawyer from engaging in sexual relations with a client, unless a consensual sexual relationship existed between the lawyer and client before the lawyer-client relationship commenced.

In CA, there is an exception for sexual relations with a client who is the lawyer’s spouse or registered domestic partner.

The rule does not permit the client to waive the conflict through informed consent.

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8
Q

Conflict of Interest: Lawyer Personal Interest

ABA

CA

A

A conflict of interest (COI) arises when there is a significant risk that the representation of a client will be materially limited by the lawyer’s own personal interests.

UNLESS

(i) the lawyer reasonably believes that she will be able to provide competent and diligent representation

(ii) the representation is not prohibited by law

(iii) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same proceeding, and

(iv) the affected client gives** informed consent, confirmed in writing** (MR) or informed written consent (CA RPC).

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9
Q

Duty of Diligence

ABA

CA

A

Under the MR, a lawyer must act with reasonable diligence and promptness in representing a client.

Under the CA RPC, a lawyer must not intentionally, repeatedly, recklessly or with gross negligence fail to act with reasonable diligence in representing a client.

Under both the MR and CA RPC, a lawyer is generally required to be dedicated and committed to the interests of the client despite obstruction or inconvenience to the lawyer and must not neglect, disregard, or unduly delay a legal matter entrusted to the lawyer.

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10
Q

Duty of Competence

ABA

CA

A

Under the MR, a lawyer is obligated to provide competent representation to a client and must possess the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

Under the CA RPC, a lawyer must not** intentionally, recklessly, or repeatedly fail** to perform legal services with competence, which requires

(i) the learning and skill and

(ii) mental, emotional, and physical ability reasonably necessary for the representation.

An attorney who lacks the requisite level of competence may accept the representation **if she can achieve competency by reasonable preparation or by associating with a more competent attorney in the field.

Disciplinary cases within CA provide that mere negligence is not a violation of the duty of competence

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11
Q

Contingent Fee Agreement

ABA

CA

A

Under the MR, to be valid, a CFA must

1) Be in writing

2) Signed by the client

3) State the methodology for determining the fee, and

4) Provide details on deductions for expenses, including whether such expenses are to be deducted before or after the contingency fee is calculated.

Additionally, the CA RPC require the client to be given a duplicate copy of the agreement that is signed by both the lawyer and client.

Such fees are prohibited in criminal cases and most domestic-relations cases

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12
Q

When is CFA prohibited re: domestic-relations matter?

A

A lawyer must not enter into a CFA in a domestic-relations matter when the fee is contingent upon

1) Obtaining a divorce or

2) Upon the amount of alimony or support recovered.

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13
Q

Duty to Report

ABA

CA

A

Under the MR, a lawyer is required to report misconduct by another lawyer to the appropriate professional authority when the lawyer has

1) Actual knowledge of the misconduct, and

2) It concerns material matters of clear and weighty importance that raise a substantial question as to the lawyer’s honesty or professional fitness.

The CA RPC require a lawyer, without undue delay, to inform the State Bar or an appropriate tribunal when the lawyer knows of credible evidence that another lawyer has engaged in misconduct.

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14
Q

Threat to Gain Advantage

CA

A

In CA, a lawyer must not threaten to bring criminal, administrative, or disciplinary charges in an effort to obtain an advantage in a civil dispute.

There is no specific counterpart under the MR.

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15
Q

ESSAY TIP: Could a referral agreement constitute solicitation or an advertisement?

A

Yes! Look at the facts to see if either are met.

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16
Q

Prosecutor Duties: Probable Cause

A

A prosecutor must not prosecute a charge that the prosecutor knows is not supported by probable cause.

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17
Q

Duty regarding Extrajudicial Statements

A

All Attorneys: The Model Rules and the CRPC prohibit a lawyer involved in a case from making an extrajudicial statement that the lawyer knows or reasonably should know will be

  • Disseminated by means of public communication and
  • Will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.
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18
Q

Prosecutor Duties: Duty Regarding Statements About the Accused

A

Prosecutors: Both the MR and the CRPC prohibit prosecutors from making extrajudicial statements that would have the substantial likelihood of heightening public condemnation of the accused, and require that prosecutors exercise reasonable to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor from making such statements.

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19
Q

What public statements regarding a trial are allowed?

[EIGHT OPTIONS]

A

1) To mitigate recent prejudicial publicity

2) About relevant claim

3) Information on public record

4) Status of litigation

5) Identity of criminal defendants

6) Identity of officers and agencies involved

7) Assistance in finding evidence or information

8) A warning to a particular individual, but only with enough information necessary to protect them

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20
Q

Duty of Candor

ABA

CA

A

Under both the MR and CRPC, a lawyer must not knowingly make

1) A false statement of fact to a tribunal or

2) Fail to correct a false statement of material fact previously made.

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21
Q

Duties of a Prosecutor

A

1) May not prosecute without probable cause

2) Must advise defendant right to counsel and providing **reasonably opportunity to defendant to find counsel

3) Timely disclose exculpatory material evidence

4) Properly disclose new evidence that has a reasonable likelihood of demonstrating defendant’s innocence AFTER they have been convicted

5) Cannot waive pretrial rights with unrepresented defendant.

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22
Q

Ex Parte Communications

ABA

CA

A

A lawyer is not permitted to communicate ex parte **with any person serving in an official capacity in the proceeding, such as a judge.

However, ex parte communications involving logistical matters that do not involve the merits of the case and emergency communications authorized by law or court order are permitted.

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23
Q

Employing a Disbarred Attorney

CA

A

Under the California Rules of Professional Conduct (“CRPC”), a lawyer must not employ, associate in practice with, or assist a person the lawyer knows or reasonably should know is a disbarred attorney to:

(i) render legal advice to a client

(ii) make appearances on behalf of a client

(iii) appear as a representative of the client at a deposition or other discovery matter

(iv) engage in activities that constitute the practice of law.

However, a lawyer may employ, associate in practice with, or assist an ineligible person to perform research, drafting, or clerical activities.

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24
Q

Unauthorized Practice of Law

ABA

CA

A

Under the ABA Model Rules (“MR”) and the CRPC, a lawyer must not knowingly assist a person who is not admitted to the bar in the unauthorized practice of law.

The non-lawyer who engages in the unauthorized practice of law will be **subject to civil and criminal penalties,* but will not be subject to discipline under the ethics rules.

**A lawyer* who engages in the unauthorized practice of law or assists a non-lawyer in unauthorized practice may be subject to civil and criminal penalties and is subject to discipline under the ethics rules.

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25
Q

Direct Supervision over Lawyers/Non-Lawyers

ABA

CA

A

Under the Model Rules and the CRPC, a lawyer with direct supervisory authority over another lawyer or non-lawyer must make reasonable efforts to ensure that the supervised person’s conduct conforms to the ethics rules.

26
Q

Duty Not to File Frivolous Claim

ABA

CA

A

The MR prohibit lawyers from bringing or defending a proceeding, or asserting or opposing an issue in a proceeding, unless there is a basis in law and fact for doing so that is not frivolous.

Under the CRPC, a lawyer must not present a claim or defense in litigation that is not warranted under existing law, unless it can be supported by a good-faith argument for an extension, modification, or reversal of such existing law.

27
Q

Communication with Represented Individuals: Organizations

ABA

CA

A

Under the Model Rules, in the case of a represented organization, a lawyer is prohibited from communicating with a constituent of the organization who has authority to obligate the organization with respect to the matter, or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.

Under the CRPC, in the case of a represented organization, a lawyer is prohibited from communicating with

(i) a current officer, director, partner, or managing agent of the organization or

(ii) a current employee, member, agent or other constituent of the organization

  • If the subject of the communication is any act or omission of such person in connection with the matter which may be binding upon or imputed to the organization for purposes of civil or criminal liability.
28
Q

Duty of Loyalty

ABA

CA

A

Lawyers owe clients a basic duty of loyalty and independent professional judgment.

When a lawyer’s independent professional judgment is potentially compromised by a nonclient interest (i.e., a conflict of interest exists), the lawyer may be in breach of the duty of loyalty.

29
Q

COI: Concurrent Clients

ABA

CA

A

A lawyer must not represent a client if doing so would be directly adverse to the interests of another current client OR if there is a significant risk that the representation of the client will be materially limited by the lawyer’s responsibilities to the current client

UNLESS

(i) the lawyer reasonably believes that she will be able to provide competent and diligent representation

(ii) the representation is not prohibited by law

(iii) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same proceeding, and

(iv) the affected client gives informed consent, confirmed in writing (MR) or informed written consent (CA RPC) consent, confirmed in writing.

30
Q

COI: Current and Former Clients

A

A lawyer who has previously represented a client in a matter must not subsequently 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 consent, confirmed in writing (MR) or informed written consent (CA RPC) consent, confirmed in writing.

31
Q

Duty of Confidentiality

ABA

CA

A

Under the Model Rules, a lawyer is prohibited from disclosing information relating to the representation of a client, unless

  • the client gives informed consent;
  • the disclosure is impliedly authorized in order to carry out the representation; or
  • other specific exceptions apply.

A California lawyer is required to “maintain inviolate the confidence, and at every peril to himself to preserve the secrets of the client.”

Additionally, a California lawyer must not reveal any confidential information unless

  • the client gives informed consent or
  • the lawyer reasonably believes the disclosure is necessary to prevent a criminal act that the lawyer reasonably believes is likely to result in the death of, or substantial bodily harm to an individual.
32
Q

Attorney-Client Privilege

ABA

CA

A

Confidential communication between a client and his lawyer is privileged. The evidentiary lawyer-client privilege covers the client’s communication with a lawyer whom the client reasonably believes represents the client and only when the circumstances indicate a desire by the client for confidentiality.

The communication must be for the purpose of seeking legal advice or representation, but the lawyer is not required to give advice or agree to the representation for the privilege to exist.

The client holds the privilege and is the only one who may waive it. The lawyer must assert the privilege on the client’s behalf to protect the client’s interests.

33
Q

COI: Payment From a Third Party

ABA

CA

A

A lawyer may not accept payment for representation from someone other than the client, unless:

(i) the client gives informed consent;

(ii) there is no interference with the lawyer’s professional judgment; and

(iii) lawyer-client confidentiality is preserved.

34
Q

Duty of Loyalty: Organization

A

A lawyer who represents an organization owes the duties of loyalty and confidentiality to the organization, not to its individual constituents, such as officers, directors, or employees.

35
Q

Fee Agreement: Communication

ABA

CA

A

All rate or fee arrangements must be communicated to the client before, or within a reasonable time after, the relationship commences.

36
Q

Fee Agreement: Writing Requirement

A

However, California requires that a contract for services be in writing when it is reasonably foreseeable that the total expense to a client, including attorney’s fees, will exceed $1,000.

37
Q

What are the EXCEPTIONS to the California Fee Writing Requirement?

[Think: CHEW]

A

1) Corporations

2) History of similar services provided to client in the past

3) Services are provided in an emergency

4) Client waives in writing the right to a written fee requirement

38
Q

Duty to Communicate

ABA

CA

A

Lawyers have a duty to communicate with clients, to keep them reasonably informed of the status of the matter, and to respond to their reasonable requests for information so that they can make informed decisions.

39
Q

COI: Forming a Law Firm/Partnership

A

Under the ABA, a law firm/partnership may be formed by one or multiple lawyers who work together as a legal service organization to practice law.

CA has no adjacent rule. Whether two or more practitioners formally constitute as a law firm depends on specific facts.

For example, if two lawyers who practice different fields of law simply share an office space and occasionally assist one another, this does not rise to the level of a partnership.

However, if the same lawyers promote themselves as a firm or promote their work together, then this could rise to the level of a partnership.

40
Q

Inadvertent Disclosure

ABA

CA

A

Under the MR, a lawyer who receives a document relating to the representation of the lawyer’s client and who knows or reasonably should know that the document was inadvertently sent must promptly notify the sender.

However, under the CRPC, where it is reasonably apparent to a lawyer that a writing was inadvertently sent, and the lawyer knows or reasonably should know that the writing is privileged or subject to the work product doctrine, the lawyer shall

(i) refrain from examining the writing any more than is necessary to determine that it is privileged or subject to the work product doctrine, and

(ii) promptly notify the sender.

Additionally, the lawyer should return the writing to the sender, try to reach an arrangement with the sender, or seek guidance from a tribunal.

41
Q

Duty of Subordinate Lawyers

ABA

CA

A

Under both the Model Rules (MR) and the California Rules of Professional Conduct (CA RPC), a subordinate lawyer must conform to the ethics rules even if acting under the direction of a supervising lawyer.

But the subordinate lawyer does not violate the ethics rules if he acts in accordance with the supervising lawyer’s reasonable resolution of an arguable question of professional duty.

42
Q

What is a reasonable resolution of law?

A

Subordinate lawyer does their own research

  • If ethical question can be argued one way or another, not unreasonable
43
Q

Duty of Fairness to Opposing Party: Discovery

ABA

A

Under the MR, the duty of fairness requires that a lawyer not make a frivolous discovery request of an opposing party.

44
Q

Screening Procedures re: Imputation

ABA

A

Under the MR, any COI that arises from the lawyer’s association with a prior law firm will not be imputed to the lawyer’s new firm if

(i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee,

(ii) written notice is given to any affected former client to enable the former client to ascertain compliance with ethical rules, and

(iii) certification of compliance with ethical rules and with screening procedures is provided to the former client by the screened lawyer and by a partner of the firm at reasonable intervals upon the former client’s written request and upon termination of the screening procedures.

45
Q

Screening Procedures re: Imputation

CA

A

Under the CA RPC, any conflict of interest that arises from the lawyer’s association with a prior law firm will not be imputed to the lawyer’s new firm if

(i) the prohibited lawyer did not substantially participate in the same or a substantially related matter

(ii) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee, and

(iii) written notice is given to any affected former client to enable the former client to ascertain compliance with the ethics rules.

46
Q

Could there be a conflict of interest between two criminal co-defendants?

A

Yes!

First, one of the clients may be offered a plea deal by the prosecution and, in exchange for a lighter sentence, be required to provide information about, or testify against, the other client, which would put Lou in the position of having to advocate for one client to the detriment of the other.

Second, their cases** may require different tactical strategies that may not be conducive to each client’s defense,** such as if Lou wants to argue that one client was placed under duress by the other client.

47
Q

May a client waive a COI through the a fee agreement?

A

Yes! So long as:

1) There has been full disclosure

2) And Client consents under ABA and CA.

48
Q

Reasonableness of Fees

A

MR: Fee must be reasonable.

California: Fee must be not be unconscionable.

49
Q

Advancement of Court Costs

ABA

CA

A

Under the MR, a lawyer may advance litigation costs to the client. Although the client usually must remain liable for those costs, repayment may be made contingent on the outcome of the case.

Under the CA RPC, a lawyer may advance 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.

50
Q

Lawyer’s Recovery of Fees in Quantum Meruit

A

When a fee arrangement is fixed or hourly and the lawyer’s services are terminated early, the lawyer can recover in quantum meruit for the reasonable value of services rendered, although a cap on the lawyer’s recovery may apply.

51
Q

ESSAY TIP: Could an attorney recover in quantum meruit even if they have not incurred any costs yet?

A

Maybe!

Depends on the amount of hours that they spent preparing for the case, and their level of competency.

52
Q

ESSAY TIP: Could the duty of competence be raised when an attorney accepts representation?

A

Yes! An attorney must take steps to investigate a client’s claim before agreeing to represent them.

53
Q

ESSAY TIP: Regarding frivolous claims, what must an attorney do if they knew of no basis of law or fact?

A

The attorney must withdrawal the suit!

54
Q

Duty of Fairness: Access to Evidence

ABA

CA

A

Under both the MR and CA RPC, a lawyer must not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value.

55
Q

What is the procedure or withdrawing?

A

1) Must provide reasonable notice

2) If necessary, obtain permission from tribunal

  • Necessary if there is an ongoing case!

3) Following termination, lawyer must return all papers and property that client is entitled too.

56
Q

Duty of Candor: Use of False Statements in Closing

A

Lawyer may not rely on perjured testimony when making their closing arguments.

57
Q

Lawyer Asserting Personal Knowledge of Facts

A

The MR and CRPC prohibit a lawyer from asserting personal knowledge of facts in issue, except when testifying as a witness.

58
Q

What is the Attorney Client Privilege?

A

The attorney-client privilege (A-C privilege) is an evidentiary privilege that prevents the attorney from testifying to

all communications

made by the client or his authorized representatives

that were made for the purposes of seeking legal advice or representation

that the client intends to be confidential.

The privilege exists until it is waived, and as the client is the holder of the privilege, only the client may waive it.

59
Q

ESSAY TIP: Does the duty of confidentiality survive the death of the client?

A

No!

60
Q

What are three common exceptions to the duty of confidentiality?

A

1) Consent

  • Both ABA and CA

2) Substantial Bodily Injury or Death of Person

  • **MR*: Allowed
  • CA: Allowed not required, when reasonably believe to prevent criminal act

3) To prevent or rectify serious financial harm

  • MR: 1) Prevent such harm to another’s finances or property; 2) In furtherance of which client used lawyer’s services
  • CA: No exception

CA Professional Responsibility (10 decks)

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