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Professional Responsibility > PR > Flashcards

PR Flashcards

1
Q

A Lawyer is subject to discipline for:

A
  1. Actual or attempted rule violation (individually or though the acts of another)
  2. Crimes reflecting on honesty, trustworthiness, or fitness of a lawyer; and dishonesty, fraud, deceit, or misrepresentation (regardless of whether they relate to lawyer’s practice)
  3. Actions that harm the justice system
  4. Discrimination and Harassment related to law practice
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2
Q

Discrimination and Harassment Related to Law Practice

A

ABA: harassment or discrimination in conduct related to the practice of law based on a protected characteristic.

CA: unlawful discrimination and harassment and unlawful retaliation, prohibits lawyer from permitting unlawful discrimination or harassment in relation to firms’ operations, lawyer subject to a disciplinary proceeding re: violating this rule must notify State Bar of any criminal, civil, or admin action based on same conduct

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3
Q

Major duties owed to clients

A

CLFC - Clients Love Fierce Counsel

Confidentiality
Loyalty
Financial Responsibility
Competence

& other reasonable things

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4
Q

Duties to entities other than your clients (e.g., court, adversaries, legal profession, third parties, public)

A

CFD - “Courts Feel Differently”

Candor (truthfulness)

Fairness

Dignity and decorum

& other reasonable things

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5
Q

Formation of lawyer-client relationship

A
  1. Express agreement of parties
  2. Implied agreement based on intent and conduct of parties (i.e., person seeks legal services and lawyer fails to clearly decline despite knowing that person is reasonably relying on them)
  3. Court’s appointment

Lawyers are free to refuse service to any person for any reason (and must decline if it would result in ethical violation)

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6
Q

Mandatory Rejection or Withdrawal

A
  1. Representation will result in violation of rules of professional conduct or other law
  2. Lawyer’s physical or mental condition substantially impairs ability to represent client
  3. Lawyer is fired by client

In CA: client is taking action without probable cause and for purpose of harassing or maliciously injuring any person

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7
Q

Permissive Withdrawal

A

If it can be accomplished without material adverse effect on client’s interests, OR where there is good cause

CA: where client knowingly and freely assents to termination of representation

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8
Q

Protecting Client’s Interest on Termination

A
  • Give reasonable notice to client
  • Allow time for employment of other counsel
  • Surrender papers and property to which client is entitled
  • Refund unearned advanced payments
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9
Q

When Client has Final Decision

A

Lawyer must abide by client’s decisions as to the following:

  • Whether to accept settlement offer
  • What plea to enter
  • Whether to waive jury trial in criminal case
  • Whether client will testify in criminal case
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10
Q

Assisting Client in Criminal or Fraudulent Conduct

A

A lawyer must not counsel or assist the client in illegal or fraudulent conduct. A lawyer MAY advise the client of legal consequences, but if the client insists on pursuing illegal or unethical conduct, lawyer must withdraw.

CA: also prohibits lawyer from assisting a client in conduct that violates a court rule or ruling

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11
Q

CA rule where CA law conflicts with Federal or Tribal Law

A

A lawyer must inform the client about the related federal or tribal law or policy that conflicts with CA law. E.g., marijuana use legal in CA but illegal federally

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12
Q

Limiting Scope of Representation

A

Lawyer may limit scope of representation if

  1. limitation is reasonable under the circumstances, AND
  2. client gives informed consent
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13
Q

Representing Organizations

A

Lawyer owes a duty to an organization, not to the people associated with the organization

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14
Q

Protecting Organization’s Interests and Outside Reporting

A

If lawyer learns that a person associated with the org has acted, or is about to act, in a way that violates a duty to the org or law in a way that may be imputed to the org, lawyer MUST proceed as reasonably necessary to protect orgs interests.

Ordinarily reporting matter to higher authority in organization

Outside reporting:
ABA - if highest authority in org fails to act, lawyer MAY report to appropriate persons outside of org to the extent necessary to prevent substantial injury tot he org. ok even if info is protected by confidentiality.

CA - does not authorize outside reporting. Can only disclose if exception to duty of confidentiality exists. However, if highest authority in org fails to act, lawyer may withdraw

SECURITIES LAWYERS: Reporting up is Mandatory. If all else fails, lawyer may disclose to SEC to prevent substantial injury to org, rectify financial injury from violation, or prevent client from committing perjury

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15
Q

Duty to Client - Competence

A

Acting competently = acting with the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation

CA: recognizes mental, emotional, and physical ability as part of competence

Solving a competence problem: if a lawyer doesn’t know the law, decline to take representation unless

  1. can learn it without undue expense or delay to client, OR
  2. consult with a lawyer who is competent in the area

CA: lawyer is subject to discipline if she intentionally, recklessly, with gross negligence, or repeatedly fails to perform legal services with competence

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16
Q

Duty to Client - Diligence

A

Lawyer must act with reasonable diligence in representing a client.

  • control workload so each matter can be adequately handled
  • act with dedication to client’s interests and promptly pursue matter to completion

CA: lawyer must not intentionally, recklessly, repeatedly, or with gross negligence fail to perform legal services with reasonable competence or diligence. Generally NOT subject to discipline for a minor, isolated act

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17
Q

Duty to Client - Communication

A

Lawyer must:

  1. Explain matter to client to extent necessary for client to make informed decisions
  2. Keep client reasonably informed about matter and significant development
  3. Comply with all reasonable requests for info from the client

CA: must inform client in writing at time of engagement if lawyer lacks professional liability insurance

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18
Q

Plea Bargains and Settlement offers

A

Lawyer must notify client of any settlement offer or proffered plea bargain unless client has previously indicated that the proposal would be acceptable or unacceptable or has authorized the lawyer to accept or reject the offer

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19
Q

Duty to Client - Confidentiality

A

A lawyer must not reveal any info relating to the representation of a client, unless the client consents or some other exception applies.

A lawyer is prohibited from using confidential info that is not generally known to the client’s disadvantage unless client consents or exception applies

Affirmative duty to take reasonable measures to prevent unauthorized access to, or inadvertent disclosure of, client’s confidential info

Applies for prospective clients even if not hired, after lawyer-client relationship terminates, and even after client dies

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20
Q

Confidentiality exception: consent or implied authority

A

If client gives informed consent or disclosure is impliedly authorized in order to carry out representation

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21
Q

Confidentiality exception: prevent death or substantial bodily harm

A

ABA: lawyer may reveal info to prevent reasonably certain death or substantial bodily harm

CA: disclosure must be to prevent a criminal act that is likely to result in death or substantial bodily harm and the lawyer must first make a good faith effort to persuade the client not to commit or continue the criminal act. Must also inform client of lawyer’s ability or decision to reveal info.

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22
Q

Confidentiality exception: prevent or rectify substantial financial loss

A

ABA: may disclose confidential info to prevent a client from committing a crime or fraud that is reasonably certain to cause substantial financial loss to a person, if the client is using or has used the lawyer’s services in furtherance of the crime or fraud. Also allowed to rectify or mitigate financial loss if crime is already completed (NOTE: lawyer has to have been involved)

CA: does not recognize this exception

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23
Q

Confidentiality exception: Defend self or establish claim against client

A

In malpractice proceedings to defend themselves or establish their claim. Must be actual claim or proceeding involved

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24
Q

Confidentiality exception: ethics advice

A

May disclose confidential info to obtain confidential legal advice about lawyer’s personal duty to comply with legal ethics rules

CA: does not recognize this exception

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25
Q

Confidentiality exception: addressing conflict as a result of organizational change

A

ABA: may reveal info to detect and resolve conflicts of interest arising from change of employment or from changes in law firm’s composition or ownership. but NOT info that would compromise attorney-client privilege or prejudice client

CA: no exception

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26
Q

Confidentiality exception: comply with court order

A

Lawyer should first try to challenge a court order requiring disclosure and seek appellate review if there are grounds to do so

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27
Q

Duty of Loyalty - Imputation

A

Lawyer owes duty of loyalty to client and must avoid or properly address conflicts of interest.

Generally, when one lawyer cannot take on matter because of a conflict of interest, other lawyers at a firm are barred from taking on that matter because the conflict is “imputed” from first lawyer to others.

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28
Q

Imputation Exceptions

A
  1. Conflict is uniquely personal and would not materially limit representation of client by other lawyers in firm
  2. Conflict based on certain situations ab prior employment and lawyer is properly screened
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29
Q

Current Client Conflict - Where a lawyer must NOT represent a client

A
  1. Client will be directly adverse to another client who is represented by the lawyer (in same or separate matter), OR
  2. There is a significant risk that representation will be materially limited by lawyer’s own interest or by lawyer’s responsibilities to another client, a former client, or a third person, or by lawyer’s personal interests
30
Q

Four conditions to resolve current-client conflict

A

Can still undertake representation of client even if a conflict of interest IF: must satisfy ALL four conditions:

  1. lawyer reasonably believes that they can competently and diligently represent client (objective standard)
  2. representation not prohibited by law
  3. No direct adversity where lawyer is on both sides of same litigation
  4. Each affected client gives informed consent, confirmed in writing

CA: informed written consent - both the disclosure to client and consent from client must be in writing

CA: if a lawyer has a personal, legal, business, financial, or professional relationship with a party or witness in client’s matter, lawyer must provide written disclosure to client even if there is no significant risk that relationship would materially limit representation

31
Q

Business Transactions with Clients and Pecuniary Interests Adverse to Client

A

A lawyer must not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security, or money interest that is adverse to a client, unless ALL of the following conditions are met:

  1. terms are fair to client
  2. terms and lawyer’s role in transaction are fully disclosed to client in writing client can understand
  3. client is advised in writing that they should get independent advice from outside lawyer
  4. client gives informed consent in writing signed by client

“First Discuss Over Coffee” - Fairness, Disclosure, Advice for Outside Lawyer, Consent

Ex of business transactions - accepting non-monetary property (such as stock) as payment for legal services, borrowing money from client or purchasing property from client, selling property to a client, taking an interest in client’s property as security for payment or fees

32
Q

Substantial Gifts from Clients

A

Lawyer must not:

  1. Solicit a substantial gift from a client
  2. Prepare an instrument (e.g., will) on behalf of client giving a substantial gift to lawyer

exception: if client is related to recipient of gift

CA: more flexible with preparing an instrument. Ok if client has been advised by independent lawyer who has provided a certificate of independent review

33
Q

Financial Assistance to Client

A

Lawyer must not provide financial assistance to client in connection with pending or contemplated litigation, EXCEPT:

  • lawyer may advance court costs and litigation expenses where the repayment is contingent on outcome of case (contingency fee agreement)
  • if client indigent, lawyer may pay court costs and litigation expenses outright
  • pro bono indigent client - may provide modest goods

CA: Prohibits lawyer from “buying” potential client with promise to pay client’s personal or business debts, BUT after lawyer is hired, regardless of client’s financial status, lawyer may lend client money for any purpose if client gives him a written promise to repay the loan

34
Q

Aggregate Settlement Agreements

A

Lawyer must not participate in the making of an aggregate settlement agreement unless:

  1. discloses to each client the existence and nature of all claims or pleas involved and the participation of each person in settlement, AND
  2. each client gives informed consent to the agreement in writing signed by client
35
Q

Compensation from someone other than client

A

Lawyer must not accept compensation for representing a client from someone other than client unless

  1. Client gives informed consent
  2. no interference with the lawyer’s independence of professional judgement or with lawyer-client relationship, AND
  3. confidential information relating to representation is protected

CA: informed written consent- written disclosure and signed by client

36
Q

Settling Existing Malpractice Claim with Unrepresented Client/Former Client

A

Must:

  1. advise person in writing that independent counsel is desirable
  2. give person reasonable chance to consult independent counsel
37
Q

Prospectively Limiting Liability for Malpractice

A

ABA: must not make agreement unless client is independently represented

CA: not allowed in any circumstance

38
Q

Acquiring Literary or Media Rights Concerning Client’s Case

A

ABA: must not acquire literary or media rights to a story based in substantial part on info related to lawyer’s current representation of a client. May acquire rights after legal matter entirely completed.

CA: treated as a business transaction

39
Q

Opposing Former Client in Substantially Related Matter

A

Must not represent one client whose interests are materially adverse to those of a former client in a matter that is the same or substantially related to a matter in which client represented former client, unless former client gives informed consent, confirmed in writing

40
Q

Opposing Client of Former Firm in Substantially Related Matter

A

If lawyer’s former firm represented client and lawyer actually acquired confidential info that is material to the matter, lawyer must not subsequently represent another person in the same or substantially related matter adverse to former firm’s client unless informed consent in writing

41
Q

Incoming Lawyer’s Conflict on Firm

A

Imputation cured and other lawyers at firm not disqualified if:

  • disqualified lawyer is properly screened from matter and does not share in fee of matter, AND
  • former client given notice

CA: screening only cures where disqualified lawyer did not substantially participate in same or substantially related matter at former firm

42
Q

Firm Opposing Client of Departed Lawyer

A

Old firm is generally not prohibited from representing client adverse to former client, unless

  1. matter is same or substantially related to that in which formerly associated lawyer represented former client, AND
  2. at least one remaining lawyer in firm has confidential info material to matter
43
Q

Opposing Prospective Client in Substantially Related Matter

A

Lawyer who obtains confidential info during consultation with prospective client must not later represent a client adverse to the prospective client in the same or substantially related matter if the info could be significantly harmful to prosepctive client, UNLESS both current and prospective client give informed consent in writing

CA: “material” not “significantly harmful”

Imputation: others at firm can represent current client if:

  • disqualified lawyer took care to avoid exposure to more confidential info than necessary
  • screened and will not share in fee
  • written notice to prospective client
44
Q

Gov’t –> Private Sector

A
  1. Same matter - must not represent private client in matter which lawyer personally and substantially participated in gov’t, unless gov’t agency gives informed consent in writing.
  2. Info gained during gov’t service - if lawyer received confidential gov’t info lawyer must not later represent private client who’s interests are adverse to that person when info could be used to material disadvantage of that person
45
Q

Private Sector –> Gov’t

A

Must not participate in matter in which participated personally and substantially in private practice unless gov’t employer gives informed consent in writing

46
Q

Fee Amount

A

Lawyer must not make agreement for, charge, or collect unreasonable fee or unreasonable amount for expenses.

Factors considered: time and labor, skill required, customary fee, reputation of atty, fixed or contingent, opportunity cost, time constraints, etc.

CA: prohibits “illegal or unconscionable” fees

47
Q

Fee Agreements

A
  • communicate basis or rate of fee and expenses client will be responsible for before or within reasonable time after commencing representation. Writing is generally not required

Exception to communication:
- lawyer regularly represents client and charging same basis or rate as other matters

CA: if reasonably foreseeable that total expensive will exceed 1k, agreement must be in writing unless:

  • client is corporation
  • client states in writing they dont want written fee agreement
  • same kind of services client has previously received and paid for
  • lawyer acted in emergency
  • writing impractical for other reasons
48
Q

Advance Payments

A

May require fee to be paid in advance but must refund unearned portion

Lawyer not required to refund true retainer fee (paid to ensure lawyer will be available)

49
Q

Contingency Fee Requirements

A
  1. must be reasonable
  2. in writing signed by client and disclose: how fee is calculated, expenses deducted from recovery, whether expenses deducted before or after fee is calculated, what expenses client must pay regardless of outcome (CA: also requires that lawyer’s % can be negotiated, how client will be charged for work not covered by contingency)

Prohibited in criminal case ALWAYS and domestic relations case where contingent on divorce, alimony, child support, or property settlement

50
Q

Separation of Funds

A

Placed in interest-bearing client trust account. SEPARATE from personal or firm money

Property: identify and label and in safe deposit box or other place of safekeeping

Disputed funds: kept separate until resolution of dispute

51
Q

Splitting Legal Fees

A

With lawyers in firm - can pool and split legal fees

With outside lawyers - if 1. reasonable, 2. split in proportion to services OR each lawyer assumes joint responsibility, AND 3. client agrees to split in writing that discloses each share

with nonlawyers - cannot share legal fees except: death benefit to dead lawyer’s estate, nonlawyer employees in compensation or retirement plan funded by legal fees, sharing court-awarded legal fees with nonprofit org that employed or recommended lawyer

52
Q

Candor to the Tribunal - Stating Law and Facts

A

Lawyer must not knowingly make a false statement of law or fact to the tribunal

Affirmative duties:

  • Correct false statements of material fact or law
  • In ex parte proceedings, inform tribunal of all material facts known to lawyer
  • Disclose legal authority in controlling jdx that is directly adverse to client’s position

CA: also prohibits lawyer from knowingly misquoting to a tribunal the language of a book, statute, decision, or other authority

53
Q

Candor to Tribunal - False Evidence

A
  1. Must refuse to offer evidence known to be false
  2. May refuse to offer evidence reasonably believed to be false, except criminal D’s testimony on own behalf
  3. If later discover evidence is false, take remedial measures (urge client to withdraw, seek to withdraw, disclose to judge)

CA: cannot breach confidentiality

CA: perjury by criminal D –> narrative form

54
Q

Preserving Impartiality and Decorum of Tribunal

A
  • Must not seek to influence judge, court official, juror, or prospective juror by improper means
  • no ex parte communication with prospective juror or juror
  • after discharge of jury ok unless juror made clear they have no desire to communicate or communication is misrepresentation, coercion, duress, harassment
55
Q

“Chicanery” at trial

A

During trial, a lawyer must not:

  1. assert personal knowledge of facts
  2. refer to inadmissible material
  3. state a personal opinion about justness of cause, culpability of civil litigant, or guilt or innocence of accused

CA: no prohibition on inadmissible material, only prohibits opinion statements concerning guilt or innocence of accused

56
Q

Duty to Opponents - Evidence and Witnesses

A
  1. must not falsify evidence or assist in perjury or unlawfully obstruct access to evidence
  2. may not advise a person to not give information
  3. cannot make witness payments contingent on outcome. Ok witness payments include: travel and incidental expenses, compensation for loss of time, reasonable fees to expert witnesses
57
Q

Duty to Opponents - Court Process

A
  1. must not make frivolous discovery requests or fail to make reasonable efforts to comply w discovery
  2. must not violate court order
  3. when representing client in civil dispute, must not threaten to present criminal, administrative, or disciplinary charges for the purpose of gaining an advantage for the client
58
Q

Communicating with a person represented by counsel

A

Lawyer must not communicate about the subject of the representation with a person they know to be represented by counsel in a matter unless:

  • counsel has granted permission, or
  • lawyer is otherwise authorized by law or court order

CA: does not prohibit lawyer from communicating with public official or public entity

59
Q

Receipt of Docs or ESI sent by mistake

A

ABA: when you know or reasonably should know that it was sent by mistake, must promptly notify sender so sender can take protective measures

CA: only applies if lawyer knows or reasonably should know that writing is privileged or subject to work product doctrine. In addition to notifying sender, must refrain from examining the writing any more than is necessary to determine that it is privileged or subject to work product doctrine

60
Q

Advertising - False or Misleading Statements

A

Must not make false or misleading statements about themselves or their services

  • would lead a reasonable person to reach unfounded conclusion
  • reports lawyer’s achievements that would lead a reasonable person to form an unjustified expectation of receiving same results in similar mattter
  • contains unsubstantiated comparison or claim or lawyer’s services or fees

CA: states or implies that lawyer can provide services in a language other than english unless 1. lawyer actual can, or 2. communication also states, in language of communication, the employment title of person in firm who speaks that language. ALSO prohibits communication that states or implies “no fee w/o recovery” unless communication discloses whether or not client will be liable for costs

61
Q

CA Statutory Restrictions on Advertising

A

Prohibited:

  • guarantee or warranty of outcome of case
  • words or symbols that suggest quick cash or quick settlement
  • impersonation of lawyer or client
  • dramatization of accident or event
62
Q

Communication of Specialties

A

must not state or imply they are certified as a specialist unless

  • lawyer has been certified as a specialist by an approved org, AND
  • name of certifying org is clearly identified in the communication
63
Q

Solicitation

A

Generally prohibits live person-to-person contact

Except:

  • another lawyer
  • person with close familial, personal, or prior professional relationship
  • routinely uses for business purposes the type of legal services offered by lawyer
64
Q

Recommendations/Referrals

A
  • must not give anything of value for another person’s recommendation
  • nominal gift or gratuity as token of appreciation ok as long as not offered in consideration
  • permitted to use reciprocal referral agreements, but they cannot be exclusive and client must be informed of existence and nature of agreement
65
Q

Practice by Out-Of-State Lawyer

A

Temporary:

  • associates with active local lawyer
  • pro hac vice
  • relates to lawyer’s home state practice and phv not required for such practice

OK:

  • in house counsel
  • authorized by federal or local law for a restricted branch of law
66
Q

Relationships with Nonlawyers

A
  1. Must not form a partnership or other org with nonlawyer if any of the orgs activities consist of practice of law
  2. Law firms cannot be set up so that a nonlawyer owns interest in firm, is corporate director or officer of firm, or has right to direct or control lawyer’s judgement
67
Q

Responsibilities of Subordinate Lawyer

A

Responsible for clearly unethical misconduct, even if following orders

Not subject to discipline for acting in accordance w/ supervisor’s reasonable resolution of an arguable Q of prof. Duty

68
Q

Lawyer’s Responsibility for Another’s Misconduct

A

Subject to discipline if:

  1. lawyer ordered second lawyer’s misconduct, or knew about it and ratified it, OR
  2. had direct supervisory responsiblity and knew about misconduct at time when consequences could have been avoided or mitigated and they failed to take reasonable remedial action
69
Q

Reporting Misconduct

A

must report violations, Except when

  1. duty of confidentiality
  2. approved lawyers assistance program
70
Q

CA - Communication with Client and 3rd Parties

A

Lawyer must obtain client’s consent before agreeing to pay the client’s expenses to third persons from funds to be collected for the client

71
Q

Duties of Communication to Client and 3rd parties

A

Upon receiving funds, securities, or other property in which a client or third person has an interest, a lawyer must promptly notify the client or third person

A lawyer must hold separate the disputed portion of the funds or other property until the third person’s claim is resolved

72
Q

Acceptance of Property for Legal Services

A

A lawyer may accept property in return for services

Under the ABA rules, such an arrangement must not involve a proprietary interest in the cause of action or subject of litigation

Professional Responsibility (1 decks)

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