Final Flashcards
Attorney Client Privilege
Model Rules: Limits the governments ability to compel disclosure of confidential communications pertaining to legal services with your client. Protects communications leading up to formal relationship and goes until after death.
California: The privilege ends when the estate is settled.
Exceptions to Duty of Confidentiality
Model Rules: Crimes
- If client is using you to commit a crime, or you reasonably believe that it is necessary to prevent death or serious bodily harm.
California: If reasonable, attempt to persuade the client not to commit the crime, and inform him that you’re telling.
Publication Rights
Model Rules: Can’t buy the rights to a client’s story until after representation has ended.
California: Discourages this practice, but allows it if the judge is satisfied that the client clearly understands and consents.
Loans and Advances
Model Rules: Prohibits loans to clients, except for the costs of litigation if client is indigent, and an advance of expenses if client promises to pay back.
California: Prohibits promise of paying client’s debts to gain business, but allows loans in all matters for any purpose after attorney is hired if put in writing.
Gifts
Model Rules: You cannot solicit substantial gifts from a client or draft legal instruments, if the client isn’t your relative, if it provides a substantial gift to your your close relative.
California: Only prohibits inducing the gift, not drafting the instrument.
Close Relationships With Other Lawyers Involved in the Same Matter
Model Rules: Creates potential conflicts. No imputed disqualification for this.
California: Extends to any intimate relationship, not just immediate family.
Trial Counsel as Necessary Witness
Model Rules: Not allowed unless lawyer’s appearance will not prejudice client and testimony is uncontested, or regarding nature of services rendered, or a withdrawal would impose substantial hardship.
California: Allows you to testify if it is to anyone but the jury, or if the client consents in writing.
Opposing a Present Client in a Simultaneously Pending Matter
Model Rules: Consent to parties opposed to each other, even in an unrelated case, is rarely reasonable.
California: Absolutely prohibits you from taking case that is adverse to a client you are currently representing regardless of the relationship of the case.
Former Government Attorney Now in Private Practice
Model Rules: If you worked “personally and substantially” on a matter, you may not work on the same matter later in private practice.
Exceptions:
1) Screening processes
2) Don’t share in fees
3) Government employer is notified
California: Has not adopted this rule, but does prohibit criminal prosecutors from later participating on defense.
Duty of Financial Integrity
Model Rules: Arrangements should be reached clearly. Non-contingent arrangements should include how fee is calculated, services covered, the lawyer and client’s duties.
California: Arrangements must be in writing unless 1) under $1,000, 2) corp. client, 3) routine services regular client, 4) emergency/impractical.
Contingent Fees
Model Rules: Must be 1) Signed, 2) include your % 3) what expenses to be deducted from recovery, and 4) whether % is taken before or after expenses deducted
California: Also must include 1) how work not covered by contingency fee will be paid, 2) fees are negotiable
Contingency Fees for Criminal and Domestic Relations
Model Rules: Can’t use them in domestic relations and criminal cases
California: Silent on criminal, and ok for divorces, unless it encourages breakup of salvageable marriage.
Fee Splitting
Model Rules: Ok with attorneys in your firm. Also ok with attorneys outside of firm if 1) written disclosure and consent, 2) total amount not too high, 3) division must be proportional to work done by each attorney
California: Doesn’t require proportionality
Duty to Keep Records for your Client
Model Rules: Must keep good records, render accounting, notify him of money received on his behalf, and pay promptly money due to him.
California: Must keep records of client property for 5 years after final distribution.
Duty of Candor to the Public and Dignity of the Profession
Model Rules: A state can regulate attorney advertising and soliciting subject to constitution (intermediate scrutiny)
California: Dicta says our constitution protects commercial speech as fully as noncommercial speech, provided it is truthful and not misleading.
Advertising
Model Rules: A lawyer’s communication with the public at large or a segment of the public must not be false or misleading.
California: Presumes improper any ad that contains guarantees, warranties, or predictions of a result. No testimonials or endorsements may be used unless there is an express disclaimer.
What if you Know your Criminal Client is Going to Lie?
Model Rules: Counsel client to testify truthfully or not to take the stand, and try to withdraw from the case. If that doesn’t work, tell the judge.
California: Seeking withdrawal is permissive, not mandatory. If he insists, allow client to testify in narrative fashion but do not further the deception.
Reporting Misconduct
Model Rules: Must report any attorney or judges violation of the Rules if it raises a substantial question as to their honesty, trustworthiness, or fitness as a lawyer.
California: Only requires self-reporting
Duties of Subordinate Lawyers
Model Rules: If the ethical responsibility is clear, you are subject to discipline. If ethical responsibility is debatable, the superior is solely responsible.
California: You can be disciplined for knowing about a firm members disciplinary violation and doing nothing to prevent it .
Appearance vs. Actual Impropriety
Model Rules: An attorney may be disciplined for the appearance of impropriety, regardless whether any actual impropriety occurred.
California rules permit discipline for only actual impropriety.
Sexual Relations Between Attorney and Client
Model Rules: Contains an outright ban on sexual relations between attorney and client (unless the relationship predated the legal representation).
California: Only prohibits sexual relationships, that 1) require or demand sexual relations with a client incident to or as a condition of any professional representation; or, 2) employ coercion, intimidation, or undue influence in entering into sexual relations with a client; or, 3) continue representation of a client with whom the member has sexual relations if such sexual relations cause the member to perform legal services incompetently.
