General

Question 1

What is Competent Representation?

Answer 1

Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

A lawyer must decline or withdraw from representation unless competence is achievable through reasonable preparation or association with competent counsel

1.3 = A lawyer shall act with reasonable diligence and promptness in representing a client.

Question 2

Who has decision regarding the objectives of representation?

Answer 2

1.2 = A lawyer shall abide by a client’s decisions concerning the objectives of representation

shall consult with the client as to the means by which they are to be pursued.

May take such action as is impliedly authorized to carry out the representation.

Shall abide by a client’s decision re settlement.

In a criminal case, the lawyer shall abide by the client’s decision, re please, jury trial, and testifying

Question 3

Does a lawyer’s representation of a client constitute an endorsement of client’s, political, economic, social or moral views or activities?

Answer 3

No

Question 4

Can a lawyer limit the scope of rep?

Answer 4

Yes, if the limitation is reasonable under the circumstances and the client gives informed consent.

Question 5

What can a lawyer do when a client come to an attorney with a crime?

Answer 5

A lawyer shall not counsel a client to commit crime, or assist a client in crime that the lawyer knows is criminal or fraudulent,

but a lawyer may discuss the legal consequences of the crime

and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

Question 6

When must an attorney notify the client during representation?

Answer 6

(1) must promptly inform the client when informed consent is required

(2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished;

(3) keep the client reasonably informed about the status of the matter;

(4) promptly comply with reasonable requests for information; and

(5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

Question 7

Sex with client?

Answer 7

1.8(j) = A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.

Question 8

Can a lawyer discriminate?

Answer 8

Cannot engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.

Question 9

Where can an attorney be disciplined?

Answer 9

Subject to own jurisdiction, regardless of where the lawyer’s conduct occurs.

If the lawyer provides or offers to provide any legal services in a jurisdiction, then also subject to that jurisdiction.

Question 10

When being disciplined, how are the rules being applied?

Answer 10

The rules of professional conduct to be applied shall be as follows:

(1) If the conduct related to a matter in a tribunal, then follows the jurisdiction of tribunal; and

(2) for any other conduct, where act occurred rules,

or, if the predominant effect of the conduct is elsewhere, then that jurisdiction.

A lawyer shall not be subject to discipline if the lawyer’s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer’s conduct will occur.

Question 11

CA: Sex with client?

Answer 11

No, unless a consensual sexual relationship existed between them when the lawyer-client relationship commenced.

(b) For purposes of this rule, “sexual relations” means sexual intercourse or the touching of an intimate part of another person* for the purpose of sexual arousal, gratification, or abuse. **

Question 12

Is a partner responsible for conformity to the Rules?

Answer 12

5.1 = (a) A partner in a law firm shall make reasonable efforts** to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.

(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts** to ensure that the other lawyer conforms to the Rules of Professional Conduct.

(c) A lawyer shall be responsible for another lawyer’s violation of the Rules if:
(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or

(2) the lawyer reasonably knows of the consequences when it can be avoided or mitigated but fails to take reasonable remedial action.

Question 13

Is a lawyer responsible for a nonlawyer’s conformity with rules?

Answer 13

5.3(b) = a lawyer having direct supervisory authority shall make reasonable efforts** to ensure that the person’s conduct is compatible with the professional obligations of the lawyer;

Question 14

Can a lawyer practice in another jurisdiction?

Answer 14

No, if it violates the rules of that jurisdiction.

(b) A lawyer shall not:
(1) establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or

(2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.

Question 15

Can a lawyer provide temporary legal services in another jurisdiction?

Answer 15

(c) A lawyer may provide legal services on a temporary basis in that jurisdiction if:
(1) in association with a lawyer who is admitted and who actively participates in the matter;

(2) reasonably related to a pending or potential proceeding before a tribunal if authorized by law or to be so authorized;

(3) if the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice; or

Question 16

Can a lawyer practice as an in-house counsel in a foreign jurisdiction?

Answer 16

may provide legal services through an office or other systematic and continuous presence in this jurisdiction that:
(1) are provided to the lawyer’s employer or its organizational affiliates, not requires pro hac vice admission; and foreign lawyer has appropriate in state advice, or

(2) are services that the lawyer is authorized by federal or other law or rule to provide in this jurisdiction.

Question 17

CA: Can a lawyer practice is a jurisdiction where they not unauthorized?

Answer 17

A CA lawyer shall not:
(1) practice law that violates other jurisdiction; or
(2) knowingly* assist a person* in the unauthorized practice of law in that jurisdiction.

(b) A non-CA lawyer in CA shall not:
(1) establish or maintain a resident office or other systematic or continuous presence in California for the practice of law; or

(2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in California.

Question 18

BPC: Unauthorized Practice

Answer 18

“No person shall practice law in California unless the person is actively licensed”

To be found guilty under BP 6125 the prosecution must prove:
- You either advertised or otherwise held yourself out as practicing or are entitled to practice law or you are actually practicing law; AND
- You did this while not being an active member of the California State Bar or are otherwise authorized to practice law by statute or court rule.

6127. The following acts or omissions in respect to the practice of law are contempts of the authority of the courts:
      (a) Assuming to be an officer or attorney of a court and acting as such, without authority.
      (b) Advertising or holding oneself out as practicing or as entitled to practice law or otherwise practicing law in any court, without being an active member of the State Bar.
      Proceedings to adjudge a person in contempt of court under this section are to be taken in accordance with the provisions of Title V of Part III of the Code of Civil Procedure.

Question 19

When shall a lawyer withdraw?

Answer 19

shall withdraw from the representation of a client if:
(1) the representation violates rules or laws;
(2) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client; or
(3) the lawyer is discharged.

Question 20

When may a lawyer withdraw? How may a lawyer withdraw?

Answer 20

may withdraw from representing a client if:
(1) withdrawal can be accomplished without material adverse effect on the interests of the client;
(2) the client persists in a criminal or fraudulent course of action involving the lawyer’s services
(3) the client has used the lawyer’s services to perpetrate a crime or fraud;
(4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;
(5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;
(6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or
(7) other good cause for withdrawal exists.

(c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.

(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law.

Question 21

What is an attorney’s duty of confidentiality?

Answer 21

1.6 = (a) A lawyer shall not reveal 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 the disclosure is permitted by paragraph (b).

Question 22

When may a lawyer reveal information?

Answer 22

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(1) to prevent reasonably certain death or substantial bodily harm;

(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another

(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another

(4) to secure legal advice about the lawyer’s compliance with these Rules;

(5) to establish a claim or defense against client
- to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client;

(6) to comply with other law or a court order; or

(7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.

(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

Question 23

When is a client-lawyer relationship formed? If lawyer does receiver information when can they still rep?

Answer 23

1.18 = (a) A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.

(b) If a lawyer has learned information from a prospective client. shall not use or reveal that information, except as per rules.

(c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d).

(d) When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if:
(1) both the affected client and the prospective client have given informed consent, confirmed in writing, or:
(2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and
(i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and
(ii) written notice is promptly given to the prospective client.

Question 24

Confidential Information and Former Clients

Answer 24

1.9(c) = A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or
(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.

Question 25

When can a lawyer reveal corporate information?

Answer 25

1.13 = (a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.

(b) If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law that reasonably might be imputed to the organization, and that is likely to result in substantial injury to the organization, then the lawyer shall proceed as is reasonably necessary in the best interest of the organization. Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so, the lawyer shall refer the matter to higher authority in the organization, including, if warranted by the circumstances to the highest authority that can act on behalf of the organization as determined by applicable law.
(c) Except as provided in paragraph (d), if
(1) despite the lawyer’s efforts in accordance with paragraph (b) the highest authority that can act on behalf of the organization insists upon or fails to address in a timely and appropriate manner an action, or a refusal to act, that is clearly a violation of law, and
(2) the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization, then the lawyer may reveal information relating to the representation whether or not Rule 1.6 permits such disclosure, but only if and to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization.
(d) Paragraph (c) shall not apply with respect to information relating to a lawyer’s representation of an organization to investigate an alleged violation of law, or to defend the organization or an officer, employee or other constituent associated with the organization against a claim arising out of an alleged violation of law.
(e) A lawyer who reasonably believes that he or she has been discharged because of the lawyer’s actions taken pursuant to paragraphs (b) or (c), or who withdraws under circumstances that require or permit the lawyer to take action under either of those paragraphs, shall proceed as the lawyer reasonably believes necessary to assure that the organization’s highest authority is informed of the lawyer’s discharge or withdrawal.
(f) In dealing with an organization’s directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client when the lawyer knows or reasonably should know that the organization’s interests are adverse to those of the constituents with whom the lawyer is dealing.
(g) A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7. If the organization’s consent to the dual representation is required by Rule 1.7, the consent shall be given by an appropriate official of the organization other than the individual who is to be represented, or by the shareholders.

Question 26

CA: Confidentiality

Answer 26

1.6 = (a) A lawyer shall not reveal information protected from disclosure by Business and Professions Code section 6068, subdivision (e)(1) unless the client gives informed consent,* or the disclosure is permitted by paragraph (b) of this rule.
(b) A lawyer may, but is not required to, reveal information protected by Business and Professions Code section 6068, subdivision (e)(1) to the extent that the lawyer reasonably believes* the disclosure is necessary to prevent a criminal act that the lawyer reasonably believes* is likely to result in death of, or substantial* bodily harm to, an individual, as provided in paragraph (c).
(c) Before revealing information protected by Business and Professions Code section 6068, subdivision (e)(1) to prevent a criminal act as provided in paragraph (b), a lawyer shall, if reasonable* under the circumstances:
(1) make a 8good faith effort to persuade the client: (i) not to commit or to continue the criminal act; or (ii) to pursue a course of conduct that will prevent the threatened death or substantial* bodily harm; or do both (i) and (ii); and
(2) inform the client, at an appropriate time, of the lawyer’s ability or decision to reveal information protected by Business and Professions Code section 6068, subdivision (e)(1) as provided in paragraph (b).
(d) In revealing information protected by Business and Professions Code section 6068, subdivision (e)(1) as provided in paragraph (b), the lawyer’s disclosure must be no more than is necessary to prevent the criminal act, given the information known* to the lawyer at the time of the disclosure.
(e) A lawyer who does not reveal information permitted by paragraph (b) does not violate this rule.

Question 27

FRCP Disclosure

Answer 27

Fed R. Civ. P. 26(a)(2)(B)
(B) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report—prepared and signed by the witness—if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony. The report must contain:
(i) a complete statement of all opinions the witness will express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness’s qualifications, including a list of all publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and testimony in the case.

Question 28

Concurrent conflict of Interest - and when can represent?

Answer 28

A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.

Question 29

Can a lawyer enter into a business transaction with a client or knowingly acquire owernship in an interest adverse to client?

Answer 29

No, unless:
(1) the transaction and terms is fair, reasonable and in writing;

(2) client is given a reasonable opportunity to seek the advice of independent legal counsel; and

(3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction.

Question 30

Can a lawyer use information to disadvantage a client?

Answer 30

No, unless informed consent or permitted or required by these Rules

Question 31

Can a lawyer solicit a substantial gift from a client?

Answer 31

No, unless the lawyer or other recipient of the gift is related to the client.

For purposes of this paragraph, related persons include a spouse, child, grandchild, parent, grandparent or other relative or individual with whom the lawyer or the client maintains a close, familial relationship.

Question 32

Story Rights?

Answer 32

(d) Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation.

Question 33

Can a lawyer provide financial assistance to a client in connection with pending litigation?

Answer 33

No, except that:
(1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter;
(2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client; and
(3) If indigent, then may provide modest gifts to the client for food, rent, transportation, medicine and other basic living expenses.

The lawyer:
(i) may not promise, assure or imply the availability of such gifts prior to retention or as an inducement to continue the client-lawyer relationship after retention;
(ii) may not seek or accept reimbursement from the client, a relative of the client or anyone affiliated with the client; and
(iii) may not publicize or advertise a willingness to provide such gifts to prospective clients.

Question 34

Can someone else pay for a client’s services?

Answer 34

(f) A lawyer shall not accept compensation for representing a client from one other than the client unless:
(1) the client gives informed consent;
(2) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and
(3) information relating to representation of a client is protected as required by Rule 1.6.

Question 35

Can a lawyer make an aggregate settlement for two or more clients?

Answer 35

No, unless each client gives informed consent, in a writing signed by the client. The lawyer’s disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement.

Question 36

Can a lawyer limit malpractice liability?

Answer 36

A lawyer shall not:
(1) make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless the client is independently represented in making the agreement; or
(2) settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith.
(i) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may:

Question 37

Can a lawyer acquire a lien to secure lawyer’s fee?

Answer 37

No

Question 38

Can a lawer contract with a client for a reasoanble contingent fee in a civil case?

Answer 38

No

Question 39

Can a lawyer represent another person in the same or a substantially related manner to a former client?

Answer 39

No, unless the former client gives informed consent, confirmed in writing.

(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client
(1) whose interests are materially adverse to that person; and
(2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing.

(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or
(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.

Question 40

If an attorney leaves a firm, can the firm represent a client conflicted with the leaving attorney?

Answer 40

Yes, unless:
(1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and
(2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter.

Question 41

If one lawyer is conflicted, can other attorneys at firm represent?

Answer 41

No, unless
(1) the prohibition is based on a personal interest of the disqualified lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm; or

(2) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom;
(ii) written notice is promptly given to any affected former client to enable the former client to ascertain compliance with the provisions of this Rule, which shall include a description of the screening procedures employed

Question 42

Can a former government officer of employee represent a client where they formerly participated in that matter for the government?

Answer 42

1.11 = (a) Except as law may otherwise expressly permit, a lawyer who has formerly served as a public officer or employee of the government:
(1) is subject to Rule 1.9(c); and
(2) shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation.

Question 43

Can a law firm represent a client when that firm has a disqualified government attorney there?

Answer 43

(b) When a lawyer is disqualified from representation under paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless:
(1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and
(2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule.

Question 44

Can a lawyer represent a client who is adverse to a person where a government lawyer knows confidential government information?

Answer 44

(c) Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. As used in this Rule, the term “confidential government information” means information that has been obtained under governmental authority and which, at the time this Rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose and which is not otherwise available to the public. A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom.

Question 45

Can a lawyer currently serving as a public officer or employee participate in private practice?

Answer 45

(d) Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or employee:
(1) is subject to Rules 1.7 and 1.9; and
(2) shall not:
(i) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless the appropriate government agency gives its informed consent, confirmed in writing; or
(ii) negotiate for private employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially, except that a lawyer serving as a law clerk to a judge, other adjudicative officer or arbitrator may negotiate for private employment as permitted by Rule 1.12(b) and subject to the conditions stated in Rule 1.12(b).

Question 46

When does a client-relationship form with a prospective client?

Answer 46

1.18 = (a) A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.

(b) Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information, except as Rule 1.9 would permit with respect to information of a former client.

(c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d).

(d) When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if:
(1) both the affected client and the prospective client have given informed consent, confirmed in writing, or:
(2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and
(i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and
(ii) written notice is promptly given to the prospective client.

Question 47

Can a lawyer argue for an issue that does not have a basis in law but argues for reversing an existing law?

Answer 47

3.1 = A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.

Question 48

Must a lawyer make reasonable efforts to expedite litigation consistent with the interests of the client?

Answer 48

3.2 = A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.

Question 49

Rules for Candor to the Court?

Answer 49

3.3 = (a) A 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 to the tribunal by the lawyer;
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
(3) offer evidence that the lawyer knows to be false.

If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.

A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

Question 50

Must a lawyer disclose a client’s attempt to engage in criminal or fraudelent conduct related to the proceeding?

Answer 50

(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.
(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.

Question 51

What must an attorney disclose in an ex parte proceeding?

Answer 51

(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.

Question 52

What are a lawyer’s duties re evidence in a proceeding?

Answer 52

3.4 = A lawyer shall not:
(a) unlawfully obstruct another party’ s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act;
(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;
(c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists;
(d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party;

(e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused; or

(f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless:
(1) the person is a relative or an employee or other agent of a client; and
(2) the lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving such information.

Question 53

Can a lawyer speak to a juror outside of the proceeding?

Answer 53

3.5 = A lawyer shall not:
(a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law;
(b) communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order;
(c) communicate with a juror or prospective juror after discharge of the jury if:
(1) the communication is prohibited by law or court order;
(2) the juror has made known to the lawyer a desire not to communicate; or
(3) the communication involves misrepresentation, coercion, duress or harassment; or
(d) engage in conduct intended to disrupt a tribunal.

Question 54

Can a lawyer speak publicly about a proceeding?

Answer 54

3.6 = (a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make 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.
(b) Notwithstanding paragraph (a), a lawyer may state:
(1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved;
(2) information contained in a public record;
(3) that an investigation of a matter is in progress;
(4) the scheduling or result of any step in litigation;
(5) a request for assistance in obtaining evidence and information necessary thereto;
(6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and
(7) in a criminal case, in addition to subparagraphs (1) through (6):
(i) the identity, residence, occupation and family status of the accused;
(ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person;
(iii) the fact, time and place of arrest; and
(iv) the identity of investigating and arresting officers or agencies and the length of the investigation.
(c) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.
(d) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a).

Question 55

In course of representation, what is an attorney’s duty re material facts?

Answer 55

4.1 = In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; or
(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

Question 56

Can a lawyer speak to a person the lawyer knows is represented by another lawyer in the matter?

Answer 56

4.2 = In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.

Question 57

Can a lawyer use evidence that would embarass a third person?

Answer 57

4.4 = (a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.
(b) A lawyer who receives a document or electronically stored information relating to the representation of the lawyer’s client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender.

Question 58

What are the factors in determining a reasonable fee?

Answer 58

1.5 (a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.

Question 59

Does a fee have to be put in writing to the client?

Answer 59

(b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client.

Question 60

Rules on Contingent Fees?

Answer 60

A contingent fee agreement shall be in a writing signed by the client and shall state the method by which the fee is to be determined, including the percentage

The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.

Question 61

Can a lawyer enter into a contingent fee at anytime?

Answer 61

(d) A lawyer shall not enter into an arrangement for, charge, or collect:
(1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof; or
(2) a contingent fee for representing a defendant in a criminal case.

Question 62

Can a lawyer divide a fee with a lawyer at a different firm?

Answer 62

(e) A division of a fee between lawyers who are not in the same firm may be made only if:
(1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation;
(2) the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing; and
(3) the total fee is reasonable.

Question 63

Rule for holding client’s or third person’s property or funds?

Answer 63

1.15 = (a) A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property.

Funds shall be kept in a separate account maintained in the state where the lawyer’s office is situated, or elsewhere with the consent of the client or third person. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of [five years] after termination of the representation.

(b) A lawyer may deposit the lawyer’s own funds in a client trust account for the sole purpose of paying bank service charges on that account, but only in an amount necessary for that purpose.

(c) A lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred.

(d) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.

(e) When in the course of representation a lawyer is in possession of property in which two or more persons (one of whom may be the lawyer) claim interests, the property shall be kept separate by the lawyer until the dispute is resolved. The lawyer shall promptly distribute all portions of the property as to which the interests are not in dispute.

Question 64

CA: lawyer fees

Answer 64

1.5 = (a) A lawyer shall not make an agreement for, charge, or collect an unconscionable
or illegal fee.

(b) Unconscionability of a fee shall be determined on the basis of all the facts and circumstances existing at the time the agreement is entered into. The factors to be considered:
(1) fraud* or overreaching in negotiating or setting the fee;
(2) whether the lawyer has failed to disclose material facts;
(3) the amount of the fee in proportion to the value of the services performed;
(4) the relative sophistication of the lawyer and the client;
(5) the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(6) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(7) the amount involved and the results obtained;
(8) the time limitations imposed by the client or by the circumstances;
(9) the nature and length of the professional relationship with the client;
(10) the experience, reputation, and ability of the lawyer or lawyers performing the services;
(11) whether the fee is fixed or contingent;
(12) the time and labor required; and
(13) whether the client gave informed consent* to the fee.

(c) A lawyer shall not make an agreement for, charge, or collect:
(1) any fee in a family law matter, the payment or amount of which is contingent upon the securing of a dissolution or declaration of nullity of a marriage or upon the amount of spousal or child support, or property settlement in lieu thereof; or
(2) a contingent fee for representing a defendant in a criminal case.
(d) A lawyer may make an agreement for, charge, or collect a fee that is denominated as “earned on receipt” or “non-refundable,” or in similar terms, only if the fee is a true retainer and the client agrees in writing* after disclosure.
(e) A lawyer may make an agreement for, charge, or collect a flat fee for specified legal services.

Question 65

Can a lawyer omit a fact in a communication?

Answer 65

7.1 = A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.

Question 66

Can a lawyer communicate information through media?

Answer 66

7.2 = (a) A lawyer may communicate information regarding the lawyer’s services through any media.

Question 67

Can a lawyer pay a person to recommend the lawyer’s services?

Answer 67

No, except that a lawyer may:
(1) pay the reasonable costs of advertisements or communications permitted by this Rule;
(2) pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service;
(3) pay for a law practice in accordance with Rule 1.17;

(4) refer clients to another lawyer or a nonlawyer professional pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, if:
(i) the reciprocal referral agreement is not exclusive; and
(ii) the client is informed of the existence and nature of the agreement; and

(5) give nominal gifts as an expression of appreciation that are neither intended nor reasonably expected to be a form of compensation for recommending a lawyer’s services.

Question 68

Can a lawyer state that they are a specialist?

Answer 68

(c) A lawyer shall not state or imply that a lawyer is certified as a specialist in a particular field of law, unless:
(1) the lawyer has been certified as a specialist by an organization that has been approved by an appropriate authority of the state or the District of Columbia or a U.S. Territory or that has been accredited by the American Bar Association; and
(2) the name of the certifying organization is clearly identified in the communication.

Question 69

Rule on Solicitation

Answer 69

A lawyer shall not solicit professional employment by live person-to-person contact when a significant motive for the lawyer’s doing so is the lawyer’s or law firm’s pecuniary gain, unless the contact is with a:
(1) lawyer;
(2) person who has a family, close personal, or prior business or professional relationship with the lawyer or law firm; or
(3) person who routinely uses for business purposes the type of legal services offered by the lawyer.

c) A lawyer shall not solicit professional employment even when not otherwise prohibited by paragraph (b), if:
(1) the target of the solicitation has made known to the lawyer a desire not to be solicited by the lawyer; or
(2) the solicitation involves coercion, duress or harassment.
(d) This Rule does not prohibit communications authorized by law or ordered by a court or other tribunal.
(e) Notwithstanding the prohibitions in this Rule, a lawyer may participate with a prepaid or group legal service plan operated by an organization not owned or directed by the lawyer that uses live person-to-person contact to enroll members or sell subscriptions for the plan from persons who are not known to need legal services in a particular matter covered by the plan.

Question 70

Commercial speech test

Answer 70

At the outset, we must determine whether the expression is protected by the first amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the government interest asserted, and whether it is not more extensive than necessary to serve that interest.

Question 71

When may a lawyer reveal information?

Answer 71

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(1) to prevent reasonably certain death or substantial bodily harm;

(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another

(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another

(4) to secure legal advice about the lawyer’s compliance with these Rules;

(5) to establish a claim or defense against client
- to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client;

(6) to comply with other law or a court order; or

(7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.

(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

Question 72

Elements of Attorney-Client Privilege

Answer 72

• Communication must be made between client
  and attorney or their representatives;
• Communication must be made in confidence;
• Communication must be for purpose of legal
  assistance

Question 73

Predominant Purpose Test

Answer 73

In rending legal advice, a lawyer may address
“benefits, risks or costs in terms of expense,
politics, insurance, commerce, morals, and
appearances.” This does not forfeit attorney-
client privilege, so long as “the predominant
purpose of the communication is legal
advice.”

Question 74

Attorney-Client Privilege with a Corporation Test

Answer 74

• 1. The communication is between a lawyer or her representative and representative of the company.
• 2. The communication was made for the purpose of securing legal advice;
• 3. the employee (or former employee) making the communication did so at the direction of his corporate superior;
• 4. the superior made the request so that the corporation could secure legal advice;
• 5. the subject matter of the communication is within the scope of the employee’s (or former employee’s) corporate duties;
• 6. the communication is not disseminated beyond those persons who, because of the corporate structure, need to know its contents.

Question 75

Exceptions to ACP

Answer 75

• Wavier
• Lawyer’s need to reveal the communication in
  self-defense (e.g., professional negligence)
• Advice or service sought in furtherance of a
  crime or fraud

Question 76

Crime-Fraud Exception Test

Answer 76

• Prima facie showing of client fraud when
  seeking legal advice
• Showing that attorney provided assistance in
  furtherance of the crime or fraud (In re Grand
  Jury)
  – Applies even attorney is unaware of the fraudulent intent
  – Applies only to ongoing and future fraud, not past fraud

Question 77

Informed Consent vs. In Writing vs. Writing Signed

Answer 77

Informed Consent
- Limiting the scope of rep
- third person paying
- providing materially harmful eval to third party re client
- revealing confidential information

Informed Consent in Writing
- Direct adverse/material limitation
- Former clients and employment
- Prospective clients
- Gov. work
- Prior involvement in matter as judge, arb, etc.
- Certain IMPUTED conflicts juts need written notice
- fee-splitting agreements

Signed by client
- Business transaction with pecuniary interest adverse to client
- Aggregate settlement between clients
- contingent fee agreement