Interaction with Clients or Lawyers

Question 1

what does duty of competence require? aba and ca

Answer 1

ABA: Lawyer must have legal knowledge, skill, thoroughness and preparation reasonably necessary to represent client
[CA]: L may not intentionally, recklessly, or repeatedly fail to perform legal services with competence

Question 2

what does duty of diligence require? aba and ca

Answer 2

○ L must act with reasonable diligence and promptness in representing C but it does not mean pressing for every advantage
[CA] L may not intentionally, repeatedly, recklessly or with gross negligence fail to act with reasonable diligence in representing C (“reasonable diligence” is commitment and dedication to C’s interests)

Question 3

what does duty of loyalty require? aba and ca

Answer 3

○ Under the MR and CA RPR may not accept or continue representation of C if
□ 1) the representation is directly adverse to another C’s interests (“actual” COI);
□ 2) there is a “significant risk” that representation of C will be materially limited by L’s responsibilities to another C or former C, or by personal interest of L (“potential” COI); or
□ 3) [CA] only, if she has legal, business, financial, professional, or personal relationship with a party or witness in same matter,
§ UNLESS she
□ (1) obtains informed consent, confirmed in writing (MR)/informed, written consent (CA) from each client and lawyer,
□ (2)reasonably believes he can competently and diligently represent each client, and
(3) The representation is not prohibited by law.

Question 4

can lawyer represent concurrently clients with COI?

Answer 4

Under the MR and CA RPR, lawyer may not represent the client if
□ 1) the representation is directly adverse to another C’s interests (“actual” COI);
□ 2) there is a “significant risk” that representation of C will be materially limited by L’s responsibilities to another C or former C, or by personal interest of L (“potential” COI)
□ UNLESS L reasonably believes he can competently and diligently represent both Cs + each affected client gives IWC

Question 5

when is a lawyer’s COI not imputed to the firm?

Answer 5

□ 1) due to L’s personal interest,
□ 2) L is screened from participation in subject matter of former representation, given no fee, and former C notified in writing, or
3) L is leaving the firm

Question 6

can a lawyer prepare an instrument that gives him a gift?

Answer 6

only if for relative

Question 7

when can a lawyer can sexual relations with a client? and in context of org?
cali?

Answer 7

L may not have sexual relation with C, unless it existed before AC relationship.

If C is an organization, rule applies to any constituent of org who supervises, directs or regularly consults with L concerning org’s legal matters.

[CA] L may not have sexual relation with UNLESS C is L’s spouse or registered domestic partner

Question 8

when can a lawyer have a pecuniary interest in litigation subject matte?

Answer 8

Pecuniary interest in litigation subject matter: Only allowed as lien to secure fees, contingency agreement

Question 9

when a lawyer have a pecuniary interest in lit?

Answer 9

Only allowed as lien to secure fees, or contracts for contingency agreement

Question 10

when can L loan money? in cali?

Answer 10

L cannot provide financial assistance to C in connection w/ lit, EXCEPT
® 1. Advancing litigation expenses in contingency case (no personal loans), paying for an indigent C
® 2. [CA] Advancing litigation expenses in contingency case, paying 3P from funds collected or to be collected with C consent, personal loans after being hired if C agrees to repay in writing

Question 11

when can L enter biz tx with c?

Answer 11

not permitted unless terms are fully disclosed and understood by C in writing, and are fair/reasonable to C, and is C is advised in writing of desirability of having independent counsel

Question 12

what is the general rule for fees? in cali?

what factors are taken in consideration?

Answer 12

Fees cannot be [ABA MR] “unreasonable” / [CA] “illegal or unconscionable”

		§ Factors include novelty and difficulty of legal issues, time limitation (preclusion of other work), nature of relationship w/ client, experience, contingency, and customary local fee [CA]: includes amount in proportion to value of services, relative sophistication of attorney and client, client’s informed consent to fee]

Question 13

is writing required for fee agr?

Answer 13

no under aba

for ca, if nly if expenses reasonably foreseeable > $1k, except for corp

Question 14

when are contingency fees not allowed?

Answer 14

criminal or domestic relation cases (divorce, determining alimony/support, property settlement).

Question 15

when a 3P pay for C?

Answer 15

only if
□ 1) 3P does not interfere with independence of professional judgment or with lawyer-client relationship,
□ 2) C info is kept confidential, and
□ 3) C gives informed consent
® [CA] C gives informed, written consent (IWC))

Question 16

when is fee pslitting allowed? cali?

Answer 16

can only happen between lawyers.
□ [CA]: fee splitting is permitted with non-lawyers only for referral service w/ CalBar OR deceased attorney’s estate

□ Division is restricted unless
® 1) client agrees in writing,
◊ [CA]: client gives IWC
® 2) fees are proportional to work done by each lawyer, and
◊ [CA] fees need not be proportional
® 3) is overall reasonable and does not increase free
[CA] and the total fee does not increase because of division

Question 17

what is quantum meruit?

Answer 17

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 value of services rendered

Question 18

what are the exceptions to confidentialit? cali?

Answer 18

§ To prevent death or serious bodily harm
□ [CA] Lawyer may reveal to extent necessary after dissuading C and informing C that info can be revealed
§ To prevent substantial financial harm
□ [CA] N/A
§ When lawyer has informed consent,
§ To get ethics advice
□ [CA] N/A
§ When there is a suit against the client
§ To collect fees,
§ When compelled by court/law/ethics rules
[CA] when compelled by court/law only

Question 19

what are exceptions for ACP? cali?

Answer 19

□ Crime/fraud by the client (conflicts w/ duty of confidentiality - discuss this)
® [CA]: crime/fraud by anyone, not just the client
□ suit v. client,
□ joint clients,
□ competency or intention of testator client,
[CA]: to prevent substantial bodily injury or death

Question 20

when is WPP discoverable?

Answer 20

§ Not discoverable unless unfairly prejudice the party seeking discovery or injustice
[CA] writing that reflects L’s impressions, conclusions, opinions, legal research NOT discoverable under any circumstances

Question 21

what things must L communicate to C?

Answer 21

settlment offer and plea bargain

Question 22

when MUST a L w/d?

Answer 22

§ representation will result in violation of the rules and “other law,”
§ physical or mental condition of L [ABA: “materially impairs” ability represent client / CA: “renders it unreasonably difficult” to carry out employment effectively], or
§ L is discharged by C,
§ [CA: frivolous litigation]—L knows or reasonably should know C’s action is without probable cause and for purpose of harassing or maliciously injuring a person

Question 23

when MAY a L w/d?

Answer 23

□ No harm to client
® [CA] cannot
□ With harm to client if
® C insists on taking action L considers repugnant or has fundamental disagreement with,
® C insists on pursuing criminal or fraudulent action, or has used L’s services in furtherance of
® representation will be unreasonably difficult,
® C freely agrees to termination, or other good cause
® Rep causes unreasonable financial burden
◊ [CA] not allowed
[CA]: any of foregoing, or C insists on action not warranted under existing law, or continued representation is likely to result in violation of these rules]

Question 24

when can L repping an org report out? cali?

Answer 24

aba - if reported up and fails

ca - never

Question 25

what is required under duty not to further perjury?

Answer 25

may not
○ knowingly make a false statement of law or material fact or fail to disclose it;
○ fail to disclose controlling, directly adverse authority; or
misquote authority

Question 26

what are criminal prosecutor duties?

Answer 26

Prosecutor must
○ have probable cause to bring charges,
§ Probable cause is facts sufficient to lead a man of ordinary caution to believe that a crime was committed and the defendant was the one who committed it.
○ make reasonable efforts to protect Δ’s right to counsel,
○ refrain from and prevent those helping from making extrajudicial comments biased against Δ,
○ disclose mitigating evidence to Δ.
○ [CA] all of the above and when prosecutor knows of new evidence creating reasonable likelihood that Δ did not commit the offense, promptly disclose to court (if conviction was obtained in prosecutor’s jurisdiction, promptly disclose evidence to Δ)

Question 27

when can L be witness?

Answer 27

○ uncontested matter,
○ explanation of nature and value of legal services,
○ substantial hardship on C, or
[CA] client gives IWC

Question 28

what subduties are there under duty of fairness?

Answer 28

○ Duty not to tamper with evidence: L may not unlawfully obstruct access to or alter, destroy, or hide evid. or witnesses from opposing party
§ [CA]: A lawyer may not suppress any evidence that the lawyer or his client has a legal obligation to produce.
○ Duty to produce incriminating evidence: L who receives incriminating evidence from C must turn it over but may refuse to disclose its source in order to preserve confidentiality
○ Duty to expedite litigation: L must make reasonable efforts to expedite litigation

Question 29

when can L pay a witness?

Answer 29

L may provide reasonable expenses, reasonable lost wages, reasonable expert fees, but these compensations cannot be contingent on content of testimony

Question 30

when can L NOT make public statements about trial?

Answer 30

substantial likelihood of prejudicing the proceedings.

Question 31

what can L say to media/

Answer 31

§ charges, 
			§ defense, 
			§ that investigation exists, 
			§ schedule, 
			§ To ask for help, 
§warn public danger

Question 32

when can L speak with represented 3P?

Answer 32

counsel consented and L does not intend to embarrass, delay or burden 3P; or unless legally authorized

Question 33

what are presumed violations for advertising?

cali?

Answer 33

ABA
◊ Communication delivered to potential C in a time of physical/mental stress or delivered at accident scene, hospital or healthcare center are presumed to be false and misleading, UNLESS L proves otherwise
◊ Omitting a necessary fact is presumed false and misleading
◊ Stating past result w/o disclaimer is presumed false and misleading

[CA] 
◊ testimonials (unless disclaimer), 
◊ guarantees, 
◊ predictions,
◊implied affiliations

Question 34

can L seek work via inperson or phone or real electronics?

Answer 34

no unless family, prior profress rel or close personal rel

Question 35

when can L have recip referral?

Answer 35

if it is not exclusive, and L explains to C when making referral

Question 36

can L give value to person who recs lawyer in cali?

Answer 36

no - except reasonable media cost

Question 37

what are exceptions to no solicitations?

Answer 37

prior relationship
pro bobno
client initiated C

Question 38

can L send letters to ppl facing a specific legla problem?

Answer 38

generally yes unless L knows C does not want the communication

Question 39

what are grouds for discipline under aba? ca?

Answer 39

○ A lawyer may not violate the rules or knowingly assist or induce others, or commit a criminal act or engage in conduct that reflects dishonesty
[CA] L may not commit felony, crime, or act involving “moral turpitude, dishonesty or corruption”

Question 40

is L required ro report misconduct?

Answer 40

If the lawyer knows (suspicion or speculation insufficient) of a violation of rules that presents a substantial question as to the honesty, trustworthiness, or fitness as an attorney, he is obligated to report it, UNLESS it was learned in attorney-client confidence.
○

[CA] Although California has no ethics rule requiring a lawyer to report misconduct by another lawyer, the State Bar Act (SBA) which requires self-reporting if sanctions > $1k, 3 suits were filed against the lawyer within 1 year, or lawyer is facing felony charges

Question 41

in CA can L hire adisbarred, suspended, resigned or inactive meber?

Answer 41

yes to do not atty work and with written notice to state bar/client

Question 42

when is L responsible/liable for another L?

Answer 42

§ 1) orders misconduct,
§ 2) ratifies misconduct (approve after finding subordinate’s misconduct), or
3) fails to remedy (stop, prevent, dissuade)

Question 43

when can a law practice be sold?

Answer 43

□ 1) notice to client (regarding sale, right to select own counsel),
□ 2) confidentiality and COI rules still apply, and
□ 3) fees do not increase because of sale
□ Entire practice must be sold. Lawyer must cease practicing law in the geographic area
[CA] substantially all of practice must be sold.

Question 44

what is the general rule on advertising?

Answer 44

generally allowed by not false or misleading communcation containing material misrepresentation

false and misleading =

1. may confuse client
2. may make client think ad or lawyer is promising something else