Other Duties Flashcards
General Lawyer Duties
- A lawyer must not commit any violations of the ethical rules, knowingly assist another, or use the acts of another to commit a violation
- A lawyer must not commit a crime that adversely reflects on the lawyer’s honesty or fitness as a lawyer
- Engage in conduct involving fraud, dishonesty, or misrepresentation
Unauthorized practice of law
RS: a lawyer must not assist another in the unauthorized practice of law or practice law in a state where the lawyer is not licensed to practice law or violate the legal rules in the jx where the lawyer is practicing law
Exception: professional judgment not required
RS: Nonlawyer may engage in occupations even if they require special knowledge of law in certain areas
I.e. real estate brokers, agents, tax advisers, estate planning
Cannot draft wills or prepare estate lans, counsel on tax implications, and draft sales contracts
Multi-jx practice
- Lawyer must be admitted to practice in one state
- Must not be disbarred or suspended in any other state
If so, she may provide legal services in a second state on a TEMP BASIS in 4 situations:
1. She associates with a local lawyer who participates in matter (consults the other lawyer, but does not participate)
- Special permission (pro hac vice) to practice for special purpose
- ADR in a state where not admitted to practice if her services arise out of her practice in state where admitted
- Reasonably related to home practice
CA RULES:
1. CA resident working as in house counsel must register and pay dues, but may not make court appereances or represent clients as individuals
- ay work under close supervision of CA lawyer, register, pay dues, and comply with rules for up to three years
Practicing Law with Non-lawyers
RS: a lawyer may not practice law in association with, or otherwise share fees with a non-lawyer
Exception: may delegate tasks to paralegal, law clerk, intern, but the lawyer must supervise the delegated work carefully and will be ultimately responsible for the results.
A lawyer may not share legal fees unless:
- provide payment to lawyer’s estate after death
- provide purchase price of law firm to estate
- salary or retirement plan
- sharing court awarded legal fees with a non-profit org that employed or recommended the lawyer
LAW FIRMS: a non-lawyer may not own an interest in a law firm, be a partner, officer, or director
A non-lawyer must not have a right to direct or control the lawyer’s professional judgment
Law Firm
A law firm must ensure that its members conform to the RPC.
A lawyer will be responsible for another’s violation if
- the lawyer ratifies or orders the conduct OR
- the L is a partner or similar manager OR has direct supervisory authority over the other lawyer and knows of the conduct at a time when its consequences could have been avoided or mitigated, and did nothing about it
CA: prohibits lawyer from soliciting, assisting, or inducing an ethics violaton by another. Other members can be disciplined if they
- approved it
- knew about it and did nothing to prevent it
Sale of Law practice
RPC: a lawyer may sell his entire practice or area of practice if:
- sold to lawyers
- he ceases to do private practice or goes elsewhere
- client fees do not increase
- Notify each client of the sale, the client’s right to hire another lawyer, and take possession of the client’s file.
CA: four differences
- Client notification process must more complicated
- The lawyer may not sell an area of practice
- The lawyer does not have to cease working in the geographic territory, but the agreement may include sucha promise
- The lawyer need not sell the entire practice, but substantially all, which allows the lawyer to retain clients who have a conflict of interest with the purchaser or who have a long relationship with the seller
Advertising
RPC: the rules prohibit lawyers from communicating false or misleading ads for services to the public at large.
RPC Rule: it is false and misleading if it
- contains a material misrepresentation of law or fact OR
- omits info that is necessary to make the communication as a whole not materially misleading
Ad must contain name and office address of at least one lawyer/firm responsible for content
Rule: a lawyer must not pay people for recommending him, but can pay people for designing, running ads, and usual feels for plan or referral service
CA: Ads must not contain
- a guarantee or warranty of the outcome
- quick cash or settlement words
- impersonation of lawyer or client without disclosing impersonation
- must disclose it is a dramatization
- contingent fee offer without disclosing client must pay litigation costs if client loses
Rebuttable presumptions that ad is false or misleading:
- hospitalized patient or suffering
- not clearly labeled as ad and seeking fee paying work
- testimonials or endorsements without disclaimer they are not a promise
Solicitation
ABA: a lawyer must not seek fee-paying work by in person, live telephone, or real time electronic contact with a person not a lawyer or personal, family, or prior professional connection
CA: 3 differences
- prohibits all telephone contact
- not specifically electronic contact
- when the sender knows that person is already represented by legal counsel
Rules: includes agents
only for pecuniary gain as significant motive, free legal services are permitted
Direct mail allowed if they are truthful and non-deceptive for persons faced with specific legal problem (must be labeled as ads)
No harassing
Duty of Fairness
CA: forbids a lawyer from threatening to bring disciplinary, administrative, or criminal proceedings to gain an advantage in a civil dispute.
Balance with ABA rule to report (no CA rule): But may report in CA
A lawyer who knows that another lawyer has committed a violation of the ABA rules that raises a substantial question as to the lawyer’s honesty and fitness as a lawyer must inform the authorities.
Withholding of Legal Services
ABA and CA: a lawyer has a duty to act on behalf of the client with reasonable diligence and promptness and must see the matter through completion.
Withdrawal: a lawyer may withdraw from the case if the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services (paying fees)
Proprietary Interest
RS: a lawyer must not acquire a proprietary interest in the cause of action or subject matter the lawyer is conducting for the client. I.e. personal stake in the outcome
Exception: a lawyer may contract with a client for a reasonable contingent fee.
ABA: must be reasonable and not for domestic proceedings or criminal cases.
CA: a contingent fee is prohibited if it encourages the dissolution of marriage or otherwise against public policy (case law).
Protection of Client’s Interests upon Termination
RS: a lawyer must take steps to the extent reasonably practicable to protect a client’s interest.
surrendering papers and property to which client is entitled
CA: specifically forbids a lawyer from retaining a client’s papers or property in order to force the client to pay the lawyer’s legal fees.
Mandatory Withdrawal
A lawyer must withdraw from the rep when he is discharged by his client
