Flash Card - Professional Responsibility

Question 1

When is a Lawyer-Client Relationship formed?

Answer 1

When:
1) A person seeks legal advice from a lawyer;
AND
2) The lawyer either:
a. Manifests consent to provide services; OR
b. Fails to manifest a lack of consent and knows the person would reasonably rely on the lawyer to provide legal services.

*In CA, the reasonable perception of a purported client may determine if such person is deemed a client of the lawyer.

Question 2

Generally, a client controls the goals of the representation while the lawyer controls the means.

When may a lawyer limit the scope of the representation?

Answer 2

When:
1) It’s reasonable under the circumstances; AND
2) The client gives informed consent.

Question 3

Duty of Competence

What does the Duty of Competence require of a
lawyer?

Answer 3

To possess the legal knowledge, skills, preparation, and thoroughness to effectively represent the client.

*Lawyer cannot take a case in an unfamiliar area of
law, UNLESS he: (a) associates with another competent lawyer; OR (b) acquires sufficient learning & skill before performance.

Question 4

Duty of Competence

What does incompetence expose a lawyer to?

Answer 4

1) Discipline by the bar;
2) Disqualification from a litigation; AND/OR
3) A civil malpractice lawsuit.

Question 5

Duty of Competence

In California, when does a lawyer breach the
Duty of Competence?

Answer 5

If he intentionally, recklessly, acts with gross negligence, or repeatedly fails to perform legal services with competence.

Question 6

What does the Duty of Communication require?

Answer 6

1) Informing a client when informed consent is required;
2) Keeping the client reasonably informed on status;
3) Promptly complying with requests for info (i.e. phone calls and inquiries);
4) Consulting with the client on strategy decisions and on matters requiring their consent; AND
5) Advising when the lawyer knows a client expects assistance not permitted by ethical rules.

Question 7

Under the ABA, when MAY a lawyer disclose
Confidential Information?

Answer 7

When:
a) The client consents;
b) Ordered by law;
c) It’s needed to defend a malpractice action;
d) To prevent death or substantial bodily harm;
e) To prevent the client from committing a crime/fraud that will result in substantial financial loss; OR
f) To secure legal advice about complying with ethical rules.

Question 8

In California, when MAY a lawyer disclose
Confidential Information?

Answer 8

When:
a) The client consents;
b) To prevent a crime that will result in death or substantial bodily injury;
c) It’s needed to defend a malpractice action or in a suit to recover legal fees; OR
d) The lawyer is compelled by law or court order;

Question 9

In California, what MUST a lawyer do before disclosing Confidential Information pursuant to the death / substantial-bodily-injury exception?

Answer 9

Before disclosure the lawyer must:
1) Make a good faith attempt to counsel the client out of committing the crime; AND
2) Inform the client of the lawyer’s ability/decision to disclose the information.

Question 10

What must occur when a lawyer receives
Confidential & Privileged Documents
inadvertently?

(ABA vs. CA)

Answer 10

ABA: Lawyer has a duty to notify opposing counsel of any documents accidentally received.

CA: Must do three things:
1) Refrain from examining materials any more than
necessary to determine if privileged;
2) Immediately notify the sender; AND
3) Proceed to resolve the situation.

*NOT required to return the documents under ABA or CA.

Question 11

What does the Duty to Safeguard Property
require?

Answer 11

Lawyer must hold property of a client separate from the lawyer’s own property. Funds must be kept in a
separate Attorney Trust Account.

In addition, a lawyer MUST return client property upon request or at the end of representation.

*In CA, a client case file cannot be withheld for the purpose of getting paid.

Question 12

When does a Concurrent Conflict of Interest exist?

Answer 12

If:
a) The representation is directly adverse to another
client; OR
b) There is a significant risk that the representation will be materially limited due to personal interests or responsibilities to another present/former client or third-party.

Question 13

When MAY a lawyer represent a client even though a Concurrent Conflict of Interest exists?

Answer 13

When:
1) Lawyer reasonably believes that he will be able to provide competent and diligent service;
2) It’s not prohibited by law;
3) Lawyer is not representing parties on opposite sides of the same litigation; AND
4) Each client affected by the conflict gives informed
consent.

CA = informed written consent
ABA = informed consent, confirmed in writing

Question 14

In what situations is a lawyer prohibited from representing a client?

Answer 14

If:
a) It’s prohibited by law; OR
b) Representing parties on opposite sides of the same litigation.

Question 15

When is a lawyer NOT allowed to represent a client due to a Former Client Conflict of Interest?

Answer 15

Unless the former client gives informed consent, the lawyer CANNOT:
1) Represent another client in the same or substantially related matter,
2) When the person’s interests are materially adverse to the interests of the former client.

*Lawyer also CANNOT represent a client of their previous firm if:
(1) the above 2 factors are present, AND (2) he acquired confidential info material to the former client matter.

Question 16

Generally, a conflict of interest is imputed to the
entire firm, and all lawyers in the firm are disqualified from the representation.

When is this NOT the case?

Answer 16

When:
a) The conflict is purely personal and doesn’t
materially limit the representation; OR
b) It arises out of association with the lawyer’s previous firm and the lawyer is properly screened.

Question 17

When is a former Government Lawyer not allowed to work on a matter?

Answer 17

If the govt. lawyer worked personally and substantially on a matter, he CANNOT work on that same matter at a private firm unless:
the government agency consents in writing.
BUT, the conflict will NOT be imputed to the rest of
the firm if: (1) the lawyer is properly screened; AND
(2) prompt written notice is given to the govt. agency.

Question 18

May a lawyer own and operate a business separate
from the practice of law?

Answer 18

Yes.
However, he must be careful to not engage in a business that would pose a conflict of interest with his clients.

Question 19

When are business transactions between a lawyer
and client permitted?

Answer 19

If:
1) All terms are fair and reasonable to the client;
2) All terms are fully disclosed in writing;
3) The client is advised to consult outside counsel (and given reasonable time to do so); AND
4) The client consents in writing.

Question 20

When can a lawyer acquire a proprietary interest in the cause of action or subject matter of litigation?

Answer 20

When the interest is:
a) A lien authorized by law to secure the lawyer’s
fee/expenses; OR
b) A contingency fee in a civil case.

Question 21

Loans to Clients
(ABA vs. CA)

Answer 21

ABA: Loans in excess of litigation costs/expenses are NOT permitted.

CA: Loans ARE permitted if:
1) made after lawyer is retained,
2) with written promise to repay by client, AND
3) compliance with relevant ethical rules (concurrent conflicts rule + business transactions with client rule).

Question 22

When may a lawyer advance an indigent client’s
litigation expenses?

Answer 22

When the lawyer can later recover the expenses as part of his contingency fee.

Question 23

When may a third-party pay a client’s legal fees?

Answer 23

When:
1) The client gives informed consent (need informed written consent in CA);
2) There is no interference with the lawyer’s independence of professional judgement; AND
3) The information related to the representation remains confidential.

Question 24

May a lawyer serve as a board member for an Organization he represents?

Answer 24

YES.
But, he must do so effectively AND without jeopardizing his ethical duties to the organization as his client.

*He will be held to a higher standard in his knowledge of company matters.

Question 25

When can a lawyer settle aggregate claims?

Answer 25

With informed written consent of each client.

Question 26

Contracts Limiting a Lawyer’s Liability
(ABA vs. CA)

Answer 26

ABA: Contract is PERMITTED if the client is independently represented in making the agreement.

CA: Lawyer CANNOT contract to limit prospective liability (for malpractice).

ABA & CA: Lawyer CANNOT settle a claim for malpractice liability UNLESS: (a) client has independent lawyer; OR (b) the client is informed in writing that they may seek the advice of an independent lawyer (and is given an opportunity to do so).

Question 27

Sexual Relations with Clients
(ABA vs. CA)

Answer 27

Under both ABA & CA, a lawyer CANNOT engage in
consensual sexual relations with a client UNLESS the relationship existed before the representation.

*In CA, a lawyer’s spouse or registered domestic partner are specifically excluded from the definition of “current client”.

Question 28

Who does the attorney represent when retained by
an Organization?

Answer 28

The Organization is the client, and lawyer MUST act in its best interest.

*The lawyer generally DOES NOT represent the officers, directors, or managers of the organization individually (unless otherwise agreed).

Question 29

What action may a lawyer take when representing an organization, and is aware of a matter that violates a law, legal obligation, or will result in substantial injury to the organization?

Answer 29

Lawyer MAY refer the matter to higher authorities within the organization.

ABA: Permits disclosure to an outside source if there is a clear violation of law AND it’s needed to prevent substantial injury.

CA: Outside disclosure generally NOT allowed. Only permits disclosure to an outside source to prevent death or substantial bodily harm [see Confidential Info rule].

Question 30

Mandatory Withdrawal

When MUST a lawyer withdraw from representing
a client?

Answer 30

When:
a) Discharged;
b) Physical/mental condition of lawyer exists (ABA =
materially impairs the representation; CA = unreasonably difficult to effectively carry out representation); OR
c) Continuing the representation would violate an ethics rule or other law.

In CA: A lawyer must ALSO withdraw if he knows that the client is bringing an action (1) without probable cause, (2) for the purpose of
harassing or maliciously injuring a person.

Question 31

How does a lawyer properly withdraw?

Answer 31

Lawyer must:
1) Provide timely notice to the client; AND
2) Promptly return any unspent fees and all of the client’s papers and property.

*After a lawsuit has been filed, the lawyer MUST obtain the court’s approval to withdraw.

Question 32

Permissive Withdrawal

Under the ABA, when MAY a lawyer withdraw from representing a client?

Answer 32

a) Client persists on a criminal or fraudulent course of action;
b) Client used lawyer’s services to commit a crime or fraud;
c) Client fails to substantially fulfill an obligation after reasonable warning (i.e. pay legal fees);
d) Representation has been rendered unreasonably difficult by the client;
e) Other good cause exists;
f) Withdrawal will not materially damage the client’s interests;
g) Client insists on an action the lawyer deems repugnant or has a fundamental disagreement with; OR
h) Representation will result in an unreasonable financial burden on lawyer.

Question 33

Permissive Withdrawal

In California, when MAY a lawyer withdraw from
representing a client?

Answer 33

a) Client persists on a criminal or fraudulent course of action;
b) Client used lawyer’s services to commit a crime or fraud;
c) Client fails to substantially fulfill an obligation after reasonable warning (i.e. pay legal fees);
d) Representation has been rendered unreasonably difficult by the client;
e) Other good cause exists;
f) Client insists on unwarranted claim, defense, position, or demand;
g) Client freely and knowingly consents;
h) Inability to work with co-counsel;
i) Mental or physical condition makes representation difficult; OR
j) Likely to violate an ethical rule.

Question 34

Duty of Candor

What types of conduct are prohibited?

Answer 34

To knowingly:
a) Make a false statement of fact/law;
b) Fail to correct a false statement of material fact or law;
c) Fail to disclose known controlling legal authority
(unless opposing counsel does so); OR
d) Offer or use evidence that the lawyer knows to be
false.

Question 35

When a criminal defendant wants to testify on his own behalf (and lawyer knows he will commit perjury), what MUST the lawyer do?

Answer 35

1) Try to persuade client to not commit perjury;
2) Attempt to withdraw from the case; AND
3) If attempt to withdraw is unsuccessful, then:
a. ABA: Lawyer must tell the court (including confidential info, if necessary).
b. CA: Allow defendant to testify in narrative fashion (cannot disclose confidential info to the court).

Question 36

What is a lawyer required to do during an authorized Ex Parte Proceeding with the court?

Answer 36

To inform the tribunal of all material facts known that will enable the tribunal to make an informed decision (whether or not the facts are adverse).

Question 37

A lawyer CANNOT file frivolous positions with the
court.

What does the rule specifically prohibit?

Answer 37

It prohibits:
Filing frivolous claims, defenses, arguments, or positions with the Court.
*A good faith argument for an extension, modification, or reversal of existing law is NOT deemed frivolous.

In CA, the rule also specifically prohibits actions, defenses, positions, and appeals that lack probable cause AND are intended to harass or maliciously injure.

Question 38

Under what circumstances can a lawyer request a person (other than a client) to refrain from giving information to another party?

Answer 38

1) The other party is a relative, employee, or other agent of the client; AND
2) The lawyer reasonably believes that silence will not adversely affect the person’s interests.

Question 39

When is a lawyer permitted to pay a witness?

Answer 39

For:
a) Expenses reasonably incurred (i.e. travel, hotel);
b) Reasonable compensation for loss of time; OR
c) Reasonable fee to an expert witness.

*CANNOT offer an unlawful inducement to a witness or make payments contingent upon the content of the testimony or outcome of the case.

Question 40

Lawyer as Witness Rule
(ABA vs. CA)

Answer 40

A lawyer CANNOT act as trial counsel when likely to be a necessary witness, unless:
a) it relates to an uncontested issue;
b) it relates to the nature/value of legal services rendered in case;
c) the lawyer’s disqualification would create a substantial hardship on the client [ABA only]; OR
d) lawyer has obtained informed written consent of the client [CA only].

Question 41

When can a lawyer (that knows a person is represented by counsel in a matter) speak to that person regarding that matter?

Answer 41

If:
a) Lawyer has permission from the other person’s
lawyer;
*Even if the represented person agrees, it is still a violation without the permission of their lawyer.
b) Authorized by law or court order; OR
c) Communications with a public official, board committee or body [CA only].

Question 42

When are Extrajudicial Statements NOT permitted?

Answer 42

A lawyer participating in an investigation/litigation CANNOT make statements to the public which:
1) he knows (or should know),
2) will be disseminated by means of public communication; AND
3) will have a substantial likelihood of materially prejudicing the case or influencing jurors.

Question 43

What are the exceptions to the Extrajudicial
Statements rule?

Answer 43

Statements:
1) To protect the client from substantial undue prejudice.
2) Of the claim, offense, defense, or identity of persons (unless prohibited by law).
3) Regarding information in a public record.
4) To inform the public of an ongoing investigation.
5) Requesting assistance in obtaining evidence.
6) Warning of danger.
7) Of certain information in a criminal case.

Question 44

What types of Extrajudicial Statements are
Prosecutors NOT permitted to make?

Answer 44

Statements that have a substantial likelihood of enhancing public disapproval of the accused.

Prosecutors MUST exercise reasonable care to prevent others under their supervision/direction from making statements that the Prosecutor would be prohibited from making.

Question 45

What type of evidence MUST a Prosecutor disclose
to the Defendant?

Answer 45

Prosecutors MUST disclose any exculpatory or mitigating evidence.

(The evidence must be provided within a sufficient time to allow the defendant to prepare for trial.)

Question 46

Prosecutors may only proceed with a case if
probable cause exists.

When does probable cause exist?

Answer 46

If there are:
1) Sufficient facts;
2) To lead a reasonable person to believe;
3) That a crime was committed; AND
4) That the defendant committed the crime.

Question 47

Ethical Amount of Lawyer’s Fees
(ABA vs. CA)

Answer 47

ABA: Must be reasonable in light of the skill, experience, time, degree of specialty, and difficulty
required for the task.

CA: Fee CANNOT be unconscionable or illegal.

Question 48

General Fee Arrangements
(ABA vs. CA)

Answer 48

ABA: NOT required to be in writing, BUT the fee must be communicated to the client.

CA: ALL agreements must be in writing unless:
a) The fee is $1,000 or less;
b) The work is routine work for a regular client;
c) The client is a corporation;
d) The client states in writing, after full disclosure, that a written fee agreement is not required;
e) An emergency to avoid foreseeable prejudice to the client’s rights/interests; OR
f) The circumstances make a written agreement impractical.

Question 49

In CA, what MUST a Fee Arrangement include?

Answer 49

1) How the fee is calculated;
2) Nature of legal services to be provided; AND
3) The responsibilities of the lawyer and client.

Question 50

What is a Contingency Fee Agreement?
What are the requirements under the ABA?

Answer 50

An agreement between lawyer and client stating that the legal fees will be paid out of any recovery the client receives.

Requirements:
1) Must be in a writing signed by the client; AND
2) Include: the % of recovery the lawyer will take, the expenses deducted from recovery, and whether the % will be taken before or after expenses.

Question 51

In CA, what additional items are required in a Contingency Fee Agreement?

Answer 51

The writing must also include:
1) How work/expenses not covered by the contingency fee will be charged; AND
2) That the fee is not set by law and is negotiable.

Failure to comply with ethical rules renders the
agreement voidable at option of the client.

Question 52

When are contingency fees prohibited?

Answer 52

Prohibited:
1) In domestic relations matters – when payment is contingent upon divorce or amount obtained.
2) When representing a criminal defendant.

Question 53

Under the ABA, when CAN a lawyer share legal fees with lawyers outside of the law firm?

Answer 53

When:
1) the total fee is reasonable;
2) the client agrees (incl. share of each lawyer) and the agreement is confirmed in writing; AND
3) the division is proportional to the work done by each lawyer (unless each is jointly responsible).

Question 54

In CA, when CAN a lawyer share legal fees with lawyers outside of the law firm?

Answer 54

When:
1) the lawyers enter into a written division agreement;
2) the client consents in writing after full disclosure; AND
3) the total fee is not increased by virtue of the fee
division agreement.

*In CA, “pure referral fees” ARE ALLOWED if the above items are met.

Question 55

When CAN a lawyer / law firm share legal fees with
a non-lawyer?

Answer 55

For:
a) Death benefits paid to the deceased lawyer’s estate or heirs;
b) Payments to an estate/representative for the purchase of a lawyer’s practice;
c) Compensation or retirement plan payments to non-lawyer employees;
d) Court awarded legal fees that are shared with a non-profit organization that employed, retained, or recommended the lawyer;
e) Authorized lawyer referral service [CA only]; OR
f) Non-court-awarded legal fees with a non-profit organization if certain conditions are met [CA only].

Question 56

What are the requirements for Advertising Legal Services?

Answer 56

Advertising is permitted in all formats if it:
1) Is not false or misleading;
2) Identifies at least one lawyer or law firm;
3) Does not hold out a lawyer to be a specialist, unless the lawyer is certified as such; AND
4) [CA only] clearly includes the word “Advertisement”, unless it’s apparent that the communication is an advertisement.

Question 57

What are the rules for Solicitation?

Answer 57

A lawyer CANNOT solicit a person for professional employment by in person, live telephone, or real time electronic contact when a significant motive is for pecuniary gain,
UNLESS the person:
a) is a lawyer;
b) has a family, close personal, or prior professional relationship with the lawyer; OR
c) routinely uses the type of legal services offered for business purposes [ABA only].

Question 58

When CAN a lawyer pay another person/entity for
recommending the lawyer’s services?

Answer 58

A lawyer may:
a) Pay reasonable costs of permitted advertisements;
b) Pay usual charges of a legal service plan or approved lawyer referral service;
c) Pay for a law practice; OR
d) Give nominal gifts as an expression of appreciation – not intended/expected to be compensation for recommending the lawyer’s services.

Question 59

Can a lawyer enter into a business deal with a non-lawyer?

Answer 59

YES.
However, non-lawyers CANNOT be partners, shareholders, or officers in a law firm or business that involves the practice of law.

Question 60

What is Professional Misconduct?

Answer 60

To:
a) Violate ethical rules [or an attempt to – ABA only];
b) Commit a criminal act that reflects adversely on the honesty, trustworthiness, or fitness as a lawyer;
c) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation;
d) Engage in conduct that is prejudicial to the administration of justice;
e) State/imply an ability to improperly influence a govt. agency or official; AND/OR
f) Knowingly assist a judge or judicial officer in a violation of ethical rules or other law.

Question 61

Reporting of Ethical Violations
(ABA vs. CA)

Answer 61

ABA: Must report another lawyer/judge when (1) the lawyer knows, (2) the other lawyer/judge violated an ethical rule, (3) that raises a substantial question, (4) as to their honesty, trustworthiness, or fitness as a lawyer/judge.

CA: NOT required to report another lawyer/judge. But, all lawyers MUST self-report in certain instances.