Miscellaneous

Question 1

Confidentiality

Answer 1

Under ABA and California, a lawyer must not reveal any information relating to the representation of a client.

Question 2

Exceptions to confidentiality

Answer 2

Exceptions permit a lawyer to reveal confidential information relating to the representation of a client when: (1) under ABA and California, the client gives the lawyer informed consent to do so, (2) under ABA and California, lawyer is impliedly authorized to reveal confidential information to carry out the representation, (3) under ABA, lawyer can disclose confidential client communications if he reasonably believes it is necessary to prevent a person’s reasonably certain death or serious bodily injury; under California, to prevent a criminal act that is likely to lead to death or serious bodily injury if the lawyer first makes a good faith effort to convince the client not to commit the criminal act, and if the client refuses, the lawyer informs the client of the intention to reveal the client’s confidence, (4) under ABA, a lawyer may disclose confidential client communications to prevent a crime or fraud likely to produce substantial financial loss to a person, so long as the client uses the lawyer’s services to perpetrate the crime or fraud; no equivalent exception in California.

Question 3

Competence

Answer 3

An attorney must act with the care, skill, preparation, thoroughness and diligence of a reasonable attorney under the circumstances. To avoid violating the duty of competence, a lawyer can (1) achieve competence through adequate preparation, or (2) consult with a lawyer of established competence in the field.

Question 4

Communication

Answer 4

Under ABA, a lawyer must: (1) keep the client promptly informed of any decision or circumstance to which the client must provide informed consent, and (2) reasonably consult with the client about means by which to accomplish client’s objectives.

Question 5

Surrender the documents

Answer 5

Upon termination of representation, a lawyer must take steps to the extent reasonably practicable to protect a client’s interests, which includes surrendering papers and property to which the client is entitled.

Question 6

Duty of fairness to opposing party

Answer 6

A lawyer owes a duty of fairness to the opposing party and counsel. Under the ABA and California rules, a lawyer must not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value, or counsel or assist another person to do any such act.

The ABA Rules generally prohibit a lawyer from requesting that a person refrain from voluntarily giving relevant information to another party.

Question 7

Duty to report misconduct

Answer 7

ABA Rules: a lawyer who knows that another lawyer has committed a violation of the Rules that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects must inform the appropriate professional authority.

California: does not require lawyers to report violations by other lawyers.